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Did True Finding on PC 12022.53, subd. (d) Enhancement Render People v. Chun (2009) 45 Cal.4th 1172 Error Harmless Beyond a Reasonable Doubt

Case Name: In re Ferrell (2023) 14 Cal.5th 593
Case #: S265798
Last Updated: April 6, 2023

The court issued an order to show cause why relief should not be granted on the ground that the jury’s true finding on the Penal Code section 12022.53, subdivision (d) enhancement did not render the People v. Chun (2009) 45 Cal.4th 1172 error harmless beyond a reasonable doubt.

The jury’s true finding on a firearm enhancement (Pen. Code, § 12022.53, subd. (d)) did not render Chun error harmless beyond a reasonable doubt. Ferrell was convicted of the second degree murder of his fellow-gang member who was killed when Ferrell fired two shots at the end of a gang fight. The jury also found that Ferrell intentionally discharged a firearm and caused death in committing his offense (Pen. Code, § 12022.53, subd. (d)). At trial, the prosecutor’s presented three theories for murder: express malice, implied malice, or felony murder based on the willful discharge of a firearm in a grossly negligent manner. Ferrell later sought a writ of habeas corpus under People v. Chun (2009) 45 Cal.4th 1172, which held that assaultive felonies cannot be the basis of a felony-murder instruction. The trial court and Court of Appeal denied Ferrell’s petitions. Ferrell filed a petition in the California Supreme Court. Held: Petition granted. The parties agreed Ferrell’s jury should not have received instructions on felony murder, and Ferrell’s conviction would be improper if based solely on that theory. However, because the jury also received instructions on valid theories of second degree murder, Ferrell’s case presented “alternative-theory error.” The Secretary of CDCR argued the erroneous felony-murder instructions given to Ferrell’s jury were harmless because the jury’s true finding on the section 12022.53(d) sentencing enhancement, combined with the evidence presented at trial, established implied malice murder. The Supreme Court disagreed. Findings under section 12022.53(d), do not, on their own, encompass the definition of implied malice. Section 12022.53(d), requires only an intent to discharge a firearm, not subjective awareness of a risk or disregard for life. Additionally, Ferrell’s second degree murder conviction could not be affirmed by looking to the evidence. The evidence of how Ferrell shot the victim and Ferrell’s mental state in doing so was in conflict. A rational factfinder could have found that Ferrell intentionally discharged his weapon but did so without malice. Applying the alternative-theory harmless error standard, the court concluded the error was not harmless and Ferrell is entitled to reversal of his second degree murder conviction.

This case was decided on 4/6/2023. Justice Jenkins authored the opinion of the court, in which Chief Justice Guerrero and Justices Corrigan, Liu, Kruger, Groban, and Evans concurred.

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