Filed 10/22/20 In re Ferrell CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
In re TYREE IRVIN 2d Crim. No. B303028
FERRELL, (Super. Ct. No. BA212763)
(Los Angeles County)
on Habeas Corpus.
Tyree Irvin Ferrell petitions for a writ of habeas corpus
claiming the jury was given an erroneous felony murder
instruction along with valid instructions on two other theories of
second degree murder. We conclude the error was harmless
beyond a reasonable doubt and deny the petition.
FACTS
Underlying Trial
Farrell was charged with first degree murder of Lawrence
Rawlings (Pen. Code,1 § 187, subd. (a)), plus a firearm
enhancement pursuant to section 12022.53, subdivision (d).
1 All statutory references are to the Penal Code.
Ferrell and Rawlings were friends and members of the “All
For Crime” (AFC) gang. On July 12, 1999, AFC and another local
gang “40 Piru” got into a fist fight over a gambling debt. Ferrell,
Rawlings, and another AFC member, Henry Keith, participated
in the fight. Rawlings’s girlfriend, Cussondra Davis, and his
cousin, Latesha Rawlings, saw the fight.
After the fight was over, Davis saw Ferrell shoot in the
direction of the 40 Piru gang members. Davis dropped to the
ground and saw Ferrell fire a second shot. When she looked
down the street, she saw Rawlings lying on the ground with blood
coming from his head. Ferrell dropped the gun and fled.
Latesha Rawlings gave testimony similar to Davis’s, except
she testified, “As [Ferrell] was shooting, his hand was going all
kind of ways, like he couldn’t handle the gun. . . . [H]is hand
wasn’t like he had control of the gun. . . .”
Ferrell fled to Missouri. Eventually the police arrested him
there. He waived his Miranda rights and talked to the police.
(Miranda v. Arizona (1966) 384 U.S. 436.) He said that on July
12, 1999, he was with members of his gang and members of the
40 Piru gang. They got into a fight. He said he shot once into the
air to stop the fight. As he brought the gun down, it discharged
accidentally, hitting Rawlings.
Defense
Keith testified that he is a member of the AFC gang. He
participated in the fight on July 12, 1999. He heard a shot and
saw Ferrell holding a gun with his arm straight up in the air. As
Ferrell brought his gun down, Keith heard another shot. Keith
turned and saw Rawlings on the ground. Ferrell went to
Rawlings and said, “I didn’t mean it.” Then Ferrell left the area.
Ferrell did not testify.
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Instructions and Verdict
The prosecution argued to the jury, and the jury was
instructed that it could convict Ferrell of second degree murder
on any one of three theories: 1) an unlawful killing with express
malice but no premeditation, 2) an unlawful killing with implied
malice, and 3) felony murder that occurred during the willful
discharge of a firearm with gross negligence in violation of
section 246.3.
The jury returned a general verdict of second degree
murder without specifying the ground. The jury also found that
in committing the murder, Ferrell personally and intentionally
discharged a firearm proximately causing death. (§ 12022.53,
subd. (d).) The trial court sentenced Ferrell to 15 years to life for
the murder, plus a consecutive 25 years to life for the firearm
enhancement.
APPEAL
On appeal, Ferrell argued that a violation of section 246.3
is not a proper predicate offense for felony murder. We rejected
the argument on the ground that in People v. Robertson (2004) 34
Cal.4th 156, our Supreme Court held that a violation of section
246.3 is a proper predicate offense for felony murder. We
affirmed Ferrell’s conviction. (People v. Ferrell (Sept. 27, 2004,
B168679) [nonpub. opn.].)
POST-APPEAL
In People v. Chun (2009) 45 Cal.4th 1172, our Supreme
Court reconsidered Robertson and held that a violation of section
246.3 is not a proper predicate offense for felony murder. Chun
has been held to be retroactive even to cases that are final on
appeal. (In re Hansen (2014) 227 Cal.App.4th 906, 920.)
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Ferrell filed a petition for a writ of habeas corpus in
superior court on the ground that the trial court erred in
instructing on felony murder. The superior court denied the
petition as untimely and for failure to state a prima facie case.
Ferrell subsequently filed the instant petition in this court. We
issued an order to show cause.
Ferrell filed this petition 10 years after Chun was decided.
He claims he was unaware of Chun until December 2018 when
his former appellate counsel happened to come across the
opening brief he prepared in Ferrell’s appeal. The People do not
challenge the timeliness of the petition.
DISCUSSION
Ferrell contends that reversal of his second degree murder
conviction is required because the jury was improperly given a
felony-murder instruction.
Here the jury was properly instructed on two theories of
second degree murder, express malice and implied malice, but
improperly given a felony-murder instruction based on a violation
of section 246.3. Where a jury is instructed on both correct and
incorrect theories of guilt, reversal is required unless we conclude
beyond a reasonable doubt that the jury based it verdict on a
legally valid theory. (People v. Chiu (2014) 59 Cal.4th 155, 167.)
The People argue that the jury’s true finding that Ferrell
violated section 12022.53, subdivision (d) shows beyond a
reasonable doubt that the jury based its verdict on a correct legal
theory.
Section 12022.53, subdivision (d) provides for a consecutive
25-years-to-life enhancement for any person who in the
commission of a murder “personally and intentionally discharges
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a firearm and proximately causes great bodily injury . . . or death,
to any person other than an accomplice . . . .”
The People argue that by finding Ferrell intentionally
discharged a firearm, the jury rejected his defense that he
accidentally fired the shot that killed Rawlings. The People
conclude that the jury necessarily based its verdict on one of the
two valid theories.
Ferrell does not contest that he personally and
intentionally discharged his firearm. But he claims he only
intentionally discharged it into the air. Ferrell argues the jury
could find both that he intentionally discharged his firearm into
the air and that the bullet that hit Rawlings was discharged
accidentally as a proximate cause of the intentional discharge
when he lowered the gun.
Included with the instruction on the elements of section
12022.53, subdivision (d), the jury was instructed on proximate
cause as follows: “A proximate cause of death is an act or
omission that sets in motion a chain of events that produces as a
direct, natural and probable consequence of the act or omission
the death and without which the death would not have occurred.”
(CALJIC No. 17.19.5.)
The proximate cause instruction requires the death be the
“direct, natural and probable consequence” of the act that caused
the death. Rawlings’s death was not the direct consequence of
Ferrell’s discharging his firearm into the air. His death was the
direct consequence of Ferrell’s shot parallel to the ground. In
finding the firearm allegation pursuant to section 12022.53,
subdivision (d) true, the jury necessarily found that Ferrell
intentionally fired the shot that killed Rawlings. There is no
reasonable doubt that the jury based its verdict on a valid theory.
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Ferrell points out that in our opinion on appeal we stated
the felony-murder instruction meant that the jury did not have to
consider whether he acted without malice. (People v Ferrell,
supra, B168679.) But in finding the section 12022.53,
subdivision (d) allegation to be true, there is no reasonable doubt
that the jury found Ferrell acted with at least implied malice.
Ferrell is not helped by People v. Bland (2002) 28 Cal.4th
313. In Bland, the defendant and a cohort shot into a car killing
the driver and wounding two passengers. It could not be
determined which shooter inflicted the harm. A jury convicted
the defendant of murder and two counts of attempted murder.
The jury also found true a firearm enhancement pursuant to
section 12022.53, subdivision (d). The trial court instructed the
jury on section 12022.53, subdivision (d), but failed to define
proximate cause. Our Supreme Court concluded the failure to
define proximate cause was harmless. It reasoned that although
it could not be determined which shooter inflicted the actual
injuries, proximate cause does not require the defendant to inflict
an actual injury. Second, an uninstructed jury would interpret
“proximate cause” to have a narrower meaning than it does.
(Bland, at p. 338.)
Here, unlike Bland, the trial court instructed on the
definition of proximate cause. In addition, here there is no doubt
Ferrell inflicted the injury that killed Rawlings. He admitted so
to the police, and his defense witness so testified at trial.
Ferrell relies on People v. Offley (2020) 48 Cal.App.5th 588.
In Offley, gang members entered into a conspiracy to ambush a
vehicle believing its occupants were members of a rival gang. At
least three people fired shots into the vehicle, including
defendant. The defendant was convicted of murder and
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attempted murder, and the jury found a firearm enhancement
pursuant to section 12022.53, subdivision (d) to be true.
Subsequently, the Legislature changed the law to require proof of
personal malice aforethought for a murder conviction. (§ 188,
subd. (a)(3).) The defendant petitioned for relief under section
1170.95, establishing a procedure for vacating murder convictions
for defendants who could not have been convicted of murder
under the new law. Based on the jury’s section 12022.53,
subdivision (d) finding, the trial court summarily denied the
petition for failure to state a prima facie case. The Court of
Appeal reversed. The court held, “Because an enhancement
under section 12022.53, subdivision (d) does not require that the
defendant acted either with the intent to kill or with conscious
disregard to life, it does not establish that the defendant acted
with malice aforethought.” (Offley, at p. 598.)
We respectfully disagree with Offley. Under these facts,
section 12022.53, subdivision (d) leads the Offley court to the
wrong conclusion. It strains our credulity to believe that gang
members shooting into a car containing rival gang members were
not acting with at least implied malice. Similarly, here, Ferrell
brought a gun to a gang fight and used it. It strains credulity
beyond all reason to believe he did not act with at least implied
malice.
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DISPOSITION
The order to show cause is dissolved and the petition for a
writ of habeas corpus is denied.
NOT TO BE PUBLISHED.
GILBERT, P. J.
We concur:
YEGAN, J.
PERREN, J.
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Terry A. Bork, Marsha N. Revel, Judges
Superior Court County of Los Angeles
______________________________
Tyree Ferrell, in pro. per.; Cliff Gardner, under
appointment by the Court of Appeal, for Petitioner.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Jaime L. Fuster and Joseph P. Lee, Deputy
Attorneys General, for Respondent.
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