The merger of the crime of shooting at an occupied vehicle with homicide, to preclude application of the felony murder rule, was a new rule announced in People v. Chun (2009) 45 Cal.4th 1172 and may be applied retroactively. Lucero’s jury was instructed that a homicide committed in the course of willfully discharging a firearm at an occupied vehicle can serve as a predicate for murder. Lucero was convicted of second degree murder based on shooting into an occupied car as an inherently dangerous act, and as second degree felony murder. At the time of Lucero’s appeal, controlling California Supreme Court authority allowed instruction on felony-murder based on shooting at an occupied vehicle. (People v. Hansen (1994) 9 Cal.4th 300, 309-310.) The Chun decision expressly overruled the precedent in Hansen. It therefore applies retroactively: the instruction impacts the reliability of a conviction because there might have been an acquittal but for the application of the felony-murder rule. A review of the prosecution’s argument, the defense argument, and the verdicts, including attempted murder, resulted in a finding that the instructional error was harmless beyond a reasonable doubt under either of two possible tests for prejudice.
The petition, filed ten months after the time for filing certiorari had expired in the Chun decision, was timely. The delay was not so unreasonable as to deem the writ untimely because Lucero had limited access to the prison library where newly published decisions are not received for several months.