In re Ferrell

IN THE SUPREME COURT OF
CALIFORNIA

In re TYREE FERRELL
on Habeas Corpus.

S265798

April 6, 2023

Justice Jenkins authored the opinion of the Court, in which
Chief Justice Guerrero and Justices Corrigan, Liu, Kruger,
Groban, and Evans concurred.
 In re TYREE FERRELL
S265798

Opinion of the Court by Jenkins, J.

Jury instructions erroneously permitted the second degree
murder conviction of petitioner Tyree Ferrell based on a felony-
murder theory invalidated by People v. Chun (2009) 45 Cal.4th
1172 (Chun). The jury’s unadorned guilty verdict does not show
it avoided this now-invalid theory. The Secretary of the
Department of Corrections and Rehabilitation nevertheless
argues the instructional error was harmless and asks us to
uphold Ferrell’s conviction. The Secretary argues the jury’s
additional finding — that Ferrell intentionally discharged a
firearm and caused death in committing his offense (Pen. Code,
§ 12022.53, subd. (d)) — along with the evidence adduced at
trial, show that any rational jury would have found Ferrell
guilty under a valid theory of second degree murder, implied
malice.
We conclude that, whether viewed in isolation or in light
of the entire record, the jury’s additional finding fails to
establish the mental component of implied malice, which
requires a defendant to act with a conscious disregard for life,
knowing his act endangers another’s life. The jury could have,
consistent with its additional finding, concluded Ferrell shot
Lawrence Rawlings, his childhood friend, while trying to stop a
fight without believing he was shooting towards any person.
This scenario would not demand a finding of implied malice. We
therefore cannot say beyond a reasonable doubt that a jury
properly instructed without the erroneous felony-murder

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instructions would have still returned a second degree murder
verdict. We accordingly grant Ferrell relief pursuant to his
petition for habeas corpus.
I. FACTS
A. Rawlings Is Killed.
A gambling dispute incited a fist fight between two Blood
gang subsets, “All For Crime” (AFC) and “40 Piru.” These two
subsets were “kind of alright” and could “get along” while
gambling, but sometimes arguments arose that spilled into
fights in the nature of “athletic contests” with “bloody lips, that’s
all.” On this occasion, Ferrell, Ferrell’s friend Lawrence
Rawlings, and Henry Keith fought for AFC. Rawlings’ girlfriend
and cousin both observed the fight.
Cussondra Davis, Rawlings’ girlfriend, believed the
fighting was “completely over” and saw gang members shaking
hands, hugging, and making up. Rawlings, according to Davis’
testimony, had finished hugging a 40 Piru nicknamed Diggum
when she observed Ferrell shoot a gun in the direction of the 40
Pirus. She described Ferrell as holding his shooting arm at a
right angle to his body — that is, parallel to the ground — and
moving his arm back and forth. Davis saw Ferrell fire a second
shot with his arm in this same position. No 40 Pirus, however,
were struck. Instead, Davis saw her boyfriend, Rawlings, lying
on the ground, bloodied. Davis watched Ferrell drop the gun
and flee.
Latesha Rawlings, meanwhile, saw Ferrell pointing a gun
toward her cousin, Rawlings. She too thought the fighting had
stopped. She then saw Ferrell discharge “maybe three shots” —
his shooting arm outstretched, “bouncing” or “going all kinds of
ways like he couldn’t handle the gun.” Rawlings fell to the

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ground, and Ferrell ran to him, saying “he was sorry, that he
didn’t mean to do it.”
Ferrell fled the state after the shooting, but when police
located him, he voluntarily spoke to officers. He admitted being
at the fight and firing the gun but claimed he “shot one time into
the air, and the second time it just went off.” He “was trying to
break up the fight.” In particular, he hoped to stop a skirmish
his friend Rawlings had been losing. Ferrell asserted he “didn’t
point” the gun “at anybody.” Rather, he kept the gun barrel
pointed to “the air” the “whole time,” even as he brought his arm
down from over his head. Rawlings, explained Ferrell, could
only have been shot by “accident.” When asked how Rawlings
could get shot if Ferrell had been pointing in the air, Ferrell
responded, “I don’t know, I just seen him standing there, then
he just fell, that’s when I ran to him and I was holding him, and
everybody told me I hit him and I left.” Asked a second time,
Ferrell said, “accident, ‘cause he was running and everything
was just . . . I don’t know it was just.”
Henry Keith, who had fought alongside Ferrell, believed
Ferrell’s first shot was into the air. He heard the first shot, saw
Ferrell’s arm coming down, and heard a second shot. He “didn’t
see nothing aimed at nobody.” Keith then saw Rawlings on the
ground. Ferrell went over to Rawlings and said he “didn’t mean
it.” Keith believed some fighting was still ongoing when the
shooting occurred.
B. Ferrell Is Convicted.
Though Ferrell was 17 years old at the time he shot
Rawlings, the juvenile court deemed Ferrell unfit for
rehabilitation in that system and transferred him to a court of
criminal jurisdiction. (See Welf. & Inst. Code, § 707.) The

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People then charged Ferrell with murder (Pen. Code, § 187,
subd. (a)) and alleged sentencing enhancements related to his
use of a firearm (Pen. Code, § 12022.53, subds., (b)–(d)).1 Davis
and Latesha Rawlings testified for the prosecution while Keith
testified for the defense. Ferrell did not testify, but his
statements to police were admitted into evidence. Amongst
other witnesses, a medical examiner testified that assuming
Rawlings was upright when shot, the bullet that struck him
travelled parallel to the ground. Only if Rawlings’ head had
been angled such that its left side faced skyward could the bullet
have come from the sky.
The prosecutor, in closing argument, told jurors they could
find Ferrell guilty of first or second degree murder, or, at
minimum, involuntary manslaughter. The prosecutor offered
three possible theories of second degree murder: (1) express
malice murder, requiring an intent to kill; (2) implied malice
murder, requiring an intentional act whose natural
consequences are dangerous to human life, and which was
deliberately performed with knowledge of the danger to, and
with conscious disregard for, human life; and (3) felony murder,
premised on the killing occurring during a felony, namely the
willful discharge of a firearm in a grossly negligent manner in
violation of Penal Code section 246.3. The court instructed the
jury on each of these theories of second degree murder, as well
as first degree murder (see Pen. Code, § 189, subd. (a) [a “willful,

1
The People also charged Ferrell with assault with a
firearm (Pen. Code, § 245, subd. (a)(2)) based on him, two weeks
before he killed Rawlings, shooting another victim in the groin
after a fight that started over a possibly stolen bicycle. Ferrell
was convicted of this charge, but does not challenge that
conviction here.

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deliberate, and premeditated killing”]) and involuntary
manslaughter (id., § 192 [“Manslaughter is the unlawful killing
of a human being without malice”]), providing versions of
CALJIC Nos. 8.10, 8.11, 8.20, 8.30, 8.31, 8.32, and 8.45. The
court also explained the doctrine of transferred intent, whereby
one who “attempts to kill a certain person, but by mistake or
inadvertence kills a different person” is guilty as if “the person
originally intended to be killed, had been killed.”
The jury acquitted Ferrell of first degree premeditated
murder but found him guilty of second degree murder. Jurors
did not specify which theory or theories of second degree murder
supported their verdict. They did, however, find that Ferrell, in
killing Rawlings, had “personally and intentionally discharged
a firearm, to wit, a handgun, which proximately caused great
bodily injury and death to the victim within the meaning of [the]
Penal Code Section 12022.53(d)” sentencing enhancement. The
trial court imposed a sentence of 40 years to life for the murder
of Rawlings and the true finding on the enhancement.
The Court of Appeal affirmed Ferrell’s second degree
murder conviction. (People v. Ferrell (Sep. 27, 2004, B168679)
[nonpub. opn.].) It rejected his argument that the trial court
erroneously instructed jurors on a felony-murder theory. It
invoked the then-current rule of People v. Robertson (2004) 34
Cal.4th 156, that an assaultive felony, such as willful discharge
of a firearm under section 246.3, could support a felony-murder
conviction so long as the felonious act had a purpose “collateral”
to the killing. Because Ferrell’s “jury could reasonably
conclude” he fired his gun “intentionally as a warning . . . the
felony-murder instruction was proper.” We denied review.
(People v. Ferrell, supra, review den. Dec. 22, 2004, S129037.)

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C. Ferrell’s Petitions for Habeas Corpus
Five years after Ferrell’s direct appeal, we overruled
Robertson and concluded assaultive felonies, “such as a violation
of section 246 or 246.3, . . . cannot be the basis of a felony-murder
instruction.” (Chun, supra, 45 Cal.4th at p. 1200; see also id. at
pp. 1200–1201.)
Ferrell, relying on Chun, has sought a writ of habeas
corpus. He asserts that his jury received felony-murder
instructions predicated on a section 246.3 violation, that these
instructions allowed the jury to convict on an invalid theory of
second degree murder, and that, therefore, his murder
conviction cannot stand. Ferrell first filed a petition for habeas
corpus in the trial court, which was summarily denied, and a
petition in the Court of Appeal, which was denied on its merits.
(In re Ferrell (Oct. 22, 2020, No. B303028) [nonpub. opn.].)
Ferrell then filed a petition for habeas corpus in this court. We
ordered the Secretary to show cause why relief should not be
granted and now address the merits of Ferrell’s claim.
II. DISCUSSION

A. Jurors at Ferrell’s Trial Received Instructions on
an Invalid Second Degree Felony-murder Theory.
Second degree murder is an unlawful killing with malice
aforethought, but without the premeditation or deliberation
required for first degree murder. (People v. Knoller (2007) 41
Cal.4th 139, 151.) Malice may be express or implied. (Ibid.)
Malice is express when a defendant intends to kill and implied
when a defendant consciously disregards danger to human life.
(Id. at pp. 151, 156–157.) Implied malice requires proof of both
a physical act and a mental state. Physically, a defendant must

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perform an act whose natural consequences are dangerous to
life, or put another way, defendant must perform “an act that
involves a high degree of probability” of death. (Id. at p. 156; see
also People v. Nieto Benitez (1992) 4 Cal.4th 91, 111.) To
establish the mental state required for implied malice, the
defendant must deliberately perform the act with a conscious
disregard for life, knowing the act endangers another’s life.
(Knoller, at p. 143 [malice is implied when the act dangerous to
life “ ‘ “was deliberately performed by a person who knows that
his conduct endangers the life of another and who acts with
conscious disregard for life.” ’ ”]; Chun, supra, 45 Cal.4th at p.
1181; Nieto Benitez, at p. 104 [explaining the evolution of the
phrasing of the implied malice components].)
Under the second degree felony-murder rule, as our cases
have described it, commission of a felony “ ‘inherently dangerous
to human life’ ” can substitute for malice. (Chun, supra, 45
Cal.4th at p. 1182.) This rule curtails the malice inquiry,
obviating the need for the jury to “further examin[e] the
defendant’s mental state.” (Ibid.; see People v. Patterson (1989)
49 Cal.3d 615, 626 [“The felony-murder rule generally acts as a
substitute for the mental state ordinarily required for the offense
of murder”]; People v. Satchell (1971) 6 Cal.3d 28, 43 [describing
the rule as a “short-circuit”]; People v. Ireland (1969) 70 Cal.2d
522, 538 [“[A] second degree felony-murder instruction” relieves
“ ‘the jury of the necessity of finding one of the elements of the
crime of murder’ [citation], to wit, malice aforethought”].)
Pursuant to the second degree felony-murder rule,
Ferrell’s jury was instructed to convict him of second degree
murder if Ferrell intentionally committed the felony of willfully
discharging a firearm in a grossly negligent manner and, during
that offense, Rawlings was unlawfully killed, whether

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intentionally, unintentionally, or accidentally. The Legislature
enacted section 246.3’s prohibition on grossly negligent firearm
discharges specifically to dissuade celebratory, skyward
gunshots in an urban setting. (See People v. Ramirez (2009) 45
Cal.4th 980, 987–988; People v. Thomas (2011) 52 Cal.4th 336,
363.)
After Ferrell’s conviction became final, we revisited the
scope of the second degree felony-murder rule. We held in Chun
that when the underlying felony is assaultive, such as the willful
discharge felony in section 246.3, that felony always “merges
with the homicide” and cannot support a felony-murder
conviction. (Chun, supra, 45 Cal.4th at p. 1200.) We overruled
cases taking a contrary approach to merger, including those that
had allowed felony-murder prosecutions if assaultive felonies
were committed with a purpose collateral to the killing. (Id. at
pp. 1199–1201.) Applying the felony-murder rule to any assault,
we said, would stretch the rule “beyond its required application.”
(Id. at p. 1200.) It would impute malice aforethought to every
assault, merging every assault resulting in death — a great
majority of all killings — into murder. (Id. at p. 1189.) Such
“ ‘bootstrapping finds support neither in logic nor in law.’ ”
(Ibid.) More recently, our Legislature has gone farther than
Chun, saying without varnish that “[m]alice shall not be
imputed to a person based solely on his or her participation in a
crime.” (Senate Bill No. 1437 (2017–2018 Reg. Sess.) § 2; Pen.
Code, § 188, subd. (a)(3).)

B. Alternative-Theory Error Calls for Harmless Error
Analysis.
In light of Chun, which as the Secretary concedes applies
retroactively in postconviction proceedings because it alters the

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conduct punishable as second degree murder (see In re Martinez
(2017) 3 Cal.5th 1216, 1222, 1224–1225), the parties agree
Ferrell’s jury should not have received instructions on felony
murder, and Ferrell’s conviction would be improper if based
solely on that theory. Ferrell’s jury, however, also received
instructions on valid theories of second degree murder: express-
malice murder and implied-malice murder without the felony-
murder shortcut.
Ferrell’s case, then, presents the type of “alternative-
theory error” that occurs when “ ‘a trial court instructs a jury on
two theories of guilt, one of which was legally correct and one
legally incorrect.’ ” (People v. Aledamat (2019) 8 Cal.5th 1, 12
(Aledamat); see id. at p. 7, fn. 3 & p. 10; see People v. Chiu (2014)
59 Cal.4th 155, 167, superseded by statute on another ground,
as noted in People v. Gentile (2020) 10 Cal.5th 830, 849.) We
acknowledged in Aledamat that when a theory of guilt is
factually incorrect, meaning the facts put in evidence do not
support it, jurors are equipped to detect the shortcoming in proof
and reject the unsupported theory. (Aledamat, at p. 7.) When a
theory of guilt is legally incorrect, however, we confront an
incorrect statement of law. Jurors are not equipped to detect
and account for such errors; instead, jurors are told to take the
law only from the court’s instructions. (Id. at pp. 7–8.) When,
as here, an alternative theory is legally incorrect, instructions
on that theory violate a defendant’s constitutional right to “a
jury properly instructed in the relevant law.” (In re Martinez,
supra, 3 Cal.5th at p. 1224.) We evaluate the prejudice of such
errors under the heightened standard of Chapman v. California
(1967) 386 U.S. 18 (Chapman), the same standard of prejudice
applicable to other instructional errors that misdescribe
criminal offenses. (Aledamat, at pp. 7–13.)

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Under Chapman’s familiar standard, we reverse a
conviction “unless, after examining the entire cause, including
the evidence, and considering all relevant circumstances,” the
reviewing court “determines the error was harmless beyond a
reasonable doubt.” (Aledamat, supra, 8 Cal.5th at p. 13.) In the
context of alternative-theory errors, this means we reverse
“ ‘unless the reviewing court concludes beyond a reasonable
doubt that the error did not contribute to the verdict.’ ” (Id. at
p. 10, quoting Chun, supra, 45 Cal.4th at p. 1201.)
Harmlessness can be shown “ ‘if the jury verdict on other
points effectively embraces’ ” the valid theory, “ ‘or if it is
impossible, upon the evidence, to have found what the verdict
did find without finding’ ” the facts underlying the valid theory
as well. (Chun, supra, 45 Cal.4th at p. 1204; see Aledamat,
supra, 8 Cal.5th at pp. 10, 15.) “In determining this
impossibility or, more generally, whether the error was
harmless, the reviewing court is not limited to a review of the
verdict itself.” (Aledamat, at p. 13.) “[I]f ‘ “[n]o reasonable jury” ’
would have found in favor of the defendant on the” valid theory,
“given the jury’s actual verdict and the state of the evidence, the
error may be found harmless beyond a reasonable doubt.” (In
re Lopez (April 3, 2023, S258912) __ Cal.5th __ [p. 23], quoting
Aledamat, at p. 15; accord Neder v. United States (1999) 527 U.S.
1, 19 [“[A] court, in typical appellate-court fashion, asks whether
the record contains evidence that could rationally lead to a
contrary finding with respect to the omitted element”].)
We have applied these harmless error principles when
reviewing alternative-theory error on both direct appeal and, as
here, on habeas corpus. (In re Martinez, supra, 3 Cal.5th at pp.
1218, 1222–1225; accord Hedgpeth v. Pulido (2008) 555 U.S. 57,
61.)

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C. The Section 12022.53, subdivision (d) Finding,
Combined with the Evidence at Trial, Does Not
Render the Error Harmless.
We now turn to whether the erroneous felony-murder
instructions given to Ferrell’s jury were harmless. The
Secretary argues they were, because the jury’s true finding on
the Penal Code section 12022.53, subdivision (d) sentencing
enhancement, combined with the evidence presented at trial,
establishes implied malice murder.
Generally speaking, a sentencing enhancement finding is
some “other point[]” or “other aspect[]” of a jury’s verdict that
could “effectively embrace[]” findings necessary to maintain a
conviction. (Chun, supra, 45 Cal.4th at pp. 1204–1205; see In re
Lopez, supra, __ Cal.5th __ [pp. 32–35] [assessing the impact of
a gang-murder special circumstance]; People v. Covarrubias
(2016) 1 Cal.5th 838, 902, fn. 26 [verdicts on other crimes and
special circumstance findings conclusively established first
degree felony murder].)
The enhancement here, section 12022.53, subdivision (d),
increases the sentence of anyone who “in the commission of a
felony specified,” murder included, “personally and intentionally
discharges a firearm and proximately causes . . . death.” (Pen.
Code, § 12022.53, subd. (d); see id. at subd. (a).) The trial court
instructed Ferrell’s jury on this enhancement using a version of
CALJIC No. 17.19.5, telling jurors if they found him guilty of
murder, they had to “determine whether the defendant
intentionally and personally discharged a firearm and
proximately caused death to a person in the commission of that
felony.” The court’s instructions described the intent required
as the intent to discharge a firearm. And the court’s instructions

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defined an act proximately causing death as one that “sets in
motion a chain of events that produces” death “as a direct,
natural and probable consequence of the act,” “without which
the death would not have occurred.” (See People v. Bland (2002)
28 Cal.4th 313, 333–338 [discussing proximate cause].)
As the Secretary acknowledges, findings under section
12022.53, subdivision (d), do not, on their own, encompass the
definition of implied malice murder. (See People v. Offley (2020)
48 Cal.App.5th 588, 598.) Recall that implied-malice murder
has a physical component: an act whose natural consequences
are dangerous to life. And it has a mental component:
defendant’s deliberate performance of the act with conscious
disregard for life, knowing the act endangers another’s life.
(Chun, supra, 45 Cal.4th at p. 1181.) The mental component
calls for a subjective inquiry into a defendant’s state of mind and
requires “a determination that the defendant actually
appreciated the risk involved, i.e., a subjective standard.”
(People v. Watson (1981) 30 Cal.3d 290, 296–297.) The mental
component may be absent even if defendant’s intentional acts
are inherently dangerous in the abstract or would appear risky
to a reasonable person. (Ibid.; People v. Ochoa (1993) 6 Cal.4th
1199, 1210; People v. Nieto Benitez, supra, 4 Cal.4th at p. 107.)
Section 12022.53, subdivision (d), requires only an intent
to discharge a firearm, not subjective awareness of a risk or
disregard for life. (See People v. Offley, supra, 48 Cal.App.5th at
p. 598; People v. Lucero (2016) 246 Cal.App.4th 750, 759–760;
see generally In re Tameka C. (2000) 22 Cal.4th 190, 199
[“[W]hen the Legislature intends to require proof of a specific
intent in connection with a sentence enhancement provision, it
has done so explicitly.”].) Thus, a finding under this section is
no proxy for the mental component of implied malice murder.

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The Secretary contends that even if the jury’s findings
under section 12022.53, subdivision (d), are not themselves
“dispositive” of whether Ferrell harbored malice, the jury’s
findings are nonetheless “informative” on the issue. The jury’s
finding, says the Secretary, of an intentional gunshot
proximately causing death during commission of murder, when
considered with the evidence presented at trial, establish that
Ferrell not only intentionally shot a firearm, but must have
intentionally shot towards people, which the Secretary equates
with malice. We disagree.
The evidence of how Ferrell shot Rawlings as well as
Ferrell’s mental state in doing so was in conflict. Given the
standard of review for alternative-theory error, we do not view
the evidence supporting the valid theory in the light most
favorable to the prosecution, but instead consider whether a
reasonable jury, given the findings actually made and the state
of the evidence, could have found in favor of the defendant. (In
re Lopez, supra, __ Cal.5th __ [pp. 23, 39, fn. 8, 41–42];
Aledamat, supra, 8 Cal.5th at pp. 10, 15.) To be sure,
prosecution witnesses testified that Ferrell shot Rawlings after
the fight was over and that Ferrell only shot towards Rawlings
and the gang members, not skyward. Ferrell, however, and his
fellow gang member, Keith, both asserted the fighting was
ongoing when Ferrell shot. In Ferrell’s statement to police,
which the jury considered as evidence, Ferrell stated he only
intentionally fired once into the sky to stop the fighting and the
gun “went off” a second time; he kept the gun barrel pointing
skyward “the whole time,” including as he lowered his arm; he
never pointed the gun at anybody; and he shot his friend
accidentally. Keith’s testimony corroborated Ferrell’s statement
to police in that Keith agreed Ferrell’s first shot was “straight

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up in the air.” In addition, one of the prosecution witnesses
testified that Ferrell had trouble controlling the gun. This
witness and Keith both agreed that Ferrell expressed surprise
after the killing, saying he “didn’t mean it.” Indeed, the
prosecution never suggested a motive for Ferrell to kill his
childhood friend and fellow gang member and, furthermore,
conceded, in argument, the rivalry between the gang subsets
“wasn’t strong,” suggesting there was similarly no clear motive
for Ferrell to have aimed at members of the other subset.
Looking at this conflicting evidence, jurors could have,
consistent with the intentional discharge finding, reasonably
rejected the factual premise — a gunshot intentionally fired at
people — that the Secretary equates with malice. Even if jurors
ultimately rejected the youthful Ferrell’s story that the second
discharge simply “went off” by accident, jurors could have
concluded Ferrell intentionally discharged his weapon but
credited Ferrell’s subjective belief he was pointing the gun to
“the air” the “whole time,” never at people, and the shooting was
accidental in this way.2 Although Ferrell’s jurors were
instructed, per CALJIC No. 2.21.2, that they could reject a
witness’s testimony in its entirety if a witness was “willfully
false in a one material part,” the instruction did not so require.
Jurors remained free to pick and choose those portions of
evidence they found credible, “ ‘weaving a cloth of truth’ ” from
available materials. (Stevens v. Parke, Davis & Co. (1973) 9

2
The Court of Appeal, when affirming Ferrell’s conviction,
adopted this view. It concluded instructions on felony murder
had been proper given the evidence at trial, because “although
Ferrell claimed the shot that killed Rawlings was fired
accidentally, the jury could reasonably conclude it was fired
intentionally as a warning.”

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Cal.3d 51, 68; People v. Riel (2000) 22 Cal.4th 1153, 1182 [noting
jurors may believe truth lies “between” the differing testimony
of witnesses]; Estate of Gilliland (1971) 5 Cal.3d 56, 60 [the
“trier of fact was not required to make a selection between the
respective testimony of the witnesses on one side or the other in
its entirety”]; People v. Robinson (1964) 61 Cal.2d 373, 389
[jurors may “accept one portion of a witness’s testimony while
rejecting another”].)
Assuming the jury took the view that Ferrell intentionally
discharged the fatal shot believing he was aiming skyward, the
jury could have readily found Ferrell guilty under the second
degree felony-murder theory Chun invalidated, premised on
him violating section 246.3.3 Under this view, a second degree
felony-murder conviction would also harmonize with the jury’s
section 12022.53, subdivision (d) finding, because Ferrell would
have, in the commission of that crime, intentionally discharged
a firearm and proximately caused death.4 In addition, a second

3
The parties do not dispute that if Ferrell intentionally
discharged a warning shot amidst a gang fist fight it could
violate Penal Code section 246.3. The parties’ closing
arguments and jury instructions allowed this possibility. We do
not address the question further.
4
Ferrell, pressing the theory that the fatal shot was instead
an accidental discharge that more plainly lacked malice because
it simply “went off,” argues jurors could have, consistent with
this theory and as instructed, found the section 12022.53,
subdivision (d) enhancement true by finding Ferrell’s first,
intentional discharge caused the second, fatal shot, and, in this
way, proximately caused Rawlings’ death. Ferrell also argues
jurors could have found the enhancement true if they found he
fired the first, intentional shot and then, without any
relationship to that first shot, proximately caused death by

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degree felony-murder theory would comfortably fit between, on
the one hand, the jury’s rejection of first degree murder — a
murder with intent to kill and deliberation or premeditation —
and the jury’s rejection of an accidental shooting without malice
warranting either an involuntary manslaughter conviction or an
outright acquittal.
At the same time, the jury would have avoided the
requirement to consider malice, and its verdict, standing alone,
would not have “effectively embrace[d]” that concept. (Chun,
supra, 45 Cal.4th at p. 1204.) Moreover, because a rational jury,
consistent with a finding under section 12022.53, subdivision
(d), could find Ferrell intended to shoot only skyward, it would
not have been “impossible, upon the evidence,” for such a jury to
reject implied malice and a second degree murder verdict based
on that theory. (Ibid.; People v. Merritt (2017) 2 Cal.5th 819,
827, 832; accord Neder v. United States, supra, 527 U.S. at pp.
19–20.) Putting aside the question of whether a skyward
shooting carries a “high probability of death” and thus satisfies
the physical component of implied malice (People v. Knoller,
supra, 41 Cal.4th at p. 156), such a jury could have found Ferrell

accidentally discharging the second. According to Ferrell, when
jurors were instructed to find the enhancement true if
“defendant intentionally and personally discharged a firearm
and proximately caused death to a person in the commission of
that felony,” they were not asked to decide, and so did not decide,
whether an intentional discharge itself directly caused death.
We do not address what precise causal link the jury instructions
here required, the instructions’ adequacy, or the plausibility of
a first, intentional warning shot proximately causing an
accidental but fatal discharge. As we explain in the main text,
a jury could have concluded Ferrell lacked the mental state
necessary for implied malice murder even if the fatal shot was
deemed intentional.

16
 In re FERRELL
Opinion of the Court by Jenkins, J.

to be lacking the mental component of implied malice — a
conscious disregard for life, knowing one’s act endangers
another’s life (see id. at p. 143).
We have held that when evidence allows the conclusion
that a defendant “shot to frighten . . . but had no intention of
killing or injuring anyone and did not aim at them, the jury
could have found defendant guilty of involuntary
manslaughter” — a killing without malice — and instructions
on that theory had to be given upon prosecution for murder.
(People v. Carmen (1951) 36 Cal.2d 768, 772, 774; see People v.
McGee (1947) 31 Cal.2d 229, 238 [discharging a pistol with
intent to frighten could be involuntary manslaughter]; cf. People
v. Pshemensky (1966) 244 Cal.App.2d 154, 155–156 [involuntary
manslaughter conviction affirmed when defendant shot a rifle
“in the heavily populated Hollywood area” but intending to shoot
birds in an avocado tree]; People v. Nuno (1928) 89 Cal.App. 1
[affirming grant of new trial after manslaughter conviction
where evidence showed defendant only intended to shoot gun
into ground to scare boys stealing fruit from his orchard and
never aimed at them or pointed his gun in their direction].) In
Chun, by contrast, we concluded that because a jury found
defendant had the “specific intent” to “shoot[] at an occupied
vehicle,” and did so at close range in violation of Penal Code
section 246, the jury would have necessarily found defendant
had the mental state, in addition to having performed the
physical act, required for implied malice murder. (Chun, supra,
45 Cal.4th at p. 1205, italics omitted.)
Here, unlike in Chun, it is not clear Ferrell was ever
aiming at a specific target and may have only believed, as he
claimed, that he was shooting skyward. We acknowledge
shooting into the air has its dangers, which the Legislature

17
 In re FERRELL
Opinion of the Court by Jenkins, J.

recognized in adopting Penal Code section 246.3.5 (See People
v. Ramirez, supra, 45 Cal.4th at pp. 987–988.) But it is the jury’s
province, in a homicide case, to assess that danger, probe
defendant’s state of mind, and determine whether or not a
defendant killed with implied malice. Whether jurors might
have, if directly asked, found Ferrell harbored implied malice is,
as we have noted, a separate question, and it is not the one
before us. (See People v. Mil (2012) 53 Cal.4th 400, 417–419
[distinguishing between substantial evidence of a mental state
and evidence of a mental state so convincing that no rational
factfinder would reject it].) If we look at the evidence, the
question for us — in walking the “tightrope” of this aspect of
harmless error review where we must avoid “displacing the jury
as finder of fact” on contested issues (Aledamat, supra, 8 Cal.5th
at p. 17 (conc. & dis. opn. of Cuéllar, J.); see Neder v. United
States, supra, 527 U.S. at pp. 17–19) — is whether it was
“impossible, upon the evidence, to have found what the verdict
did find,” namely an intentional discharge, without also finding
implied malice (Chun, supra, 45 Cal.4th at p. 1204). It was not.
Because a rational factfinder, consistent with a finding under
section 12022.53, subdivision (d), could have rejected malice and

5
Assuming Ferrell’s jury found he committed the willful
discharge felony necessary for a felony murder verdict, the
Secretary has not argued that such a finding would equate with
malice, but instead acknowledges the willful discharge felony
requires the lesser mental state of gross negligence. (See Pen.
Code, § 246.3, subd. (a) [“any person who willfully discharges a
firearm in a grossly negligent manner”]; People v. Watson,
supra, 30 Cal.3d at p. 296 [“Implied malice contemplates a
subjective awareness of a higher degree of risk than does gross
negligence, and involves an element of wantonness which is
absent in gross negligence.”].)

18
 In re FERRELL
Opinion of the Court by Jenkins, J.

rendered a different verdict but for the erroneous felony murder
instructions, Ferrell’s second degree murder conviction cannot
be affirmed by looking to the evidence. (In re Lopez, supra, __
Cal.5th __ [p. 23].)
Ultimately, the Secretary has not demonstrated the
harmlessness of instructing Ferrell’s jury with a now-invalid
theory of felony murder. Neither the section 12022.53,
subdivision (d) finding nor the evidence cure this error. Ferrell,
therefore, is entitled to reversal of his second degree murder
conviction.
III. DISPOSITION
Ferrell has established entitlement to habeas corpus relief
on his claim that his jury received instruction on an invalid
theory of second degree murder. We therefore grant relief and
vacate the judgment against Ferrell in Los Angeles County
Superior Court Case No. BA212763 insofar as it rests on
Ferrell’s conviction for second degree murder. Upon finality of
our opinion, the Clerk of the Supreme Court is to remit a
certified copy of the opinion to the Los Angeles County Superior
Court for filing, and respondent is to serve a copy of the opinion
on the prosecuting attorney. (See Pen. Code, § 1382, subd.
(a)(2).)
JENKINS, J.
We Concur:
GUERRERO, C. J.
CORRIGAN, J.
LIU, J.
KRUGER, J.
GROBAN, J.
EVANS, J.

19
See next page for addresses and telephone numbers for counsel who
argued in Supreme Court.

Name of Opinion In re Ferrell
__________________________________________________________

Procedural Posture (see XX below)
Original Appeal
Original Proceeding XX
Review Granted (published)
Review Granted (unpublished)
Rehearing Granted
__________________________________________________________

Opinion No. S265798
Date Filed: April 6, 2023
__________________________________________________________

Court: Superior
County: Los Angeles
Judge: Marsha N. Revel
__________________________________________________________

Counsel:

Clifford Gardner, under appointment by the Supreme Court, for
Petitioner Tyree Ferrell.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Susan Sullivan Pithey, Assistant Attorney General,
Louis W. Karlin, David W. Williams, and Lindsay Boyd, Deputy
Attorneys General, for Respondent Department of Corrections and
Rehabilitation.
Counsel who argued in Supreme Court (not intended for
publication with opinion):

Clifford Gardner
Attorney at Law
1448 San Pablo Avenue
Berkeley, CA 94702
(510) 524-1093

Lindsay Boyd
Deputy Attorney General
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
(213) 897-2000