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Name: People v. Chun
Case #: C049069
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 09/14/2007
Subsequent History: 12/19/07 Rev. granted: S157601

Jury instruction on second degree murder was improper where collateral purpose was based on appellant’s statements which were improperly admitted. Appellant was convicted of second degree murder and street terrorism, following a drive-by shooting. On appeal, appellant challenged the use of his admissions to police that he was in the car and that he fired a gun. He contended that the statements were coerced because they were elicited by implied threats and promises of leniency. The appellate court agreed regarding the statement about firing the gun. Just before the admission, police repeatedly emphasized appellant’s young age, the seriousness of the situation,and that he should learn from his mistake. The detective urged him to admit he had the smaller gun, assuring him it was not the murder weapon, and that he would not therefore be convicted. The detective’s statements were both legally and factually false. The detective also promised to advocate for appellant before the judge. The admission of the statement was error, but it was harmless as a purely evidentiary matter. However, it contributed to the error of instructing the jury on second degree felony murder. The only express theory of second degree murder offered to the jury was based on the underlying felony of shooting into an occupied vehicle. The merger doctrine prevented using an assaultive crime as the basis for felony murder unless the underlying crime was committed with an intent collateral to committing an injury that would cause death. Without the evidence of appellant’s statements about the shooting, there was no evidence from which a collateral intent or purpose could be found. Therefore it was error to instruct on second degree felony murder, and the conviction had to be reversed. [Note: a copy of appellant’s AOB is in the CCAP briefbank. Search for it in the Searchlight section by entering the case number.]