by Douglas Ankney

The Supreme Court of California vacated Tyree Ferrell’s second degree murder conviction because his jury was instructed on a now invalid theory of felony-­murder and the jury’s finding of an enhancement that he intentionally discharged a firearm that caused a death in committing his offense when coupled with the evidence at trial did not prove beyond a reasonable doubt that the jury found he acted with the requisite implied malice to sustain the conviction on one of the two alternative instructions.

Ferrell and his childhood friend Lawrence Rawlings both belonged to the gang “All for Crime” (“AFC”), a Blood gang subset. After a gambling dispute, a minor fight broke out between the AFC and another Blood gang subset “40 Piru.” The two gangs often fought, but the nature of the fights were “athletic contests” resulting in “bloody lips, that’s all.” Prosecution witnesses testified that after the fight was over and the members of the two gangs were shaking hands and hugging, Ferrell began firing a gun in the direction of 40 Piru, with his outstretched arm parallel to the ground and “bouncing” or “going all kinds of ways like he couldn’t handle the gun.” None of the Piru members was hit, but Rawlings fell to the ground. Ferrell ran to him, saying “he was sorry, that he didn’t mean to do it.”

Defense witness Henry Keith, who fought alongside Ferrell, testified that Ferrell’s first shot was into the air, and then as Ferrell’s hand came down, a second shot was fired. Keith testified that Ferrell ran to Rawlings, saying he “didn’t mean it.” Keith believed the fight was still ongoing when Ferrell fired the shots.

When Ferrell was apprehended, he voluntarily spoke with police officers. He admitted to firing the gun but insisted he “shot one time into the air and the second time it just went off.” He told investigators that he “was trying to break up a fight” that his friend Rawlings was losing. The then 17-­year-­old Ferrell was tried as an adult on charges that included murder and the enhancement that he personally and intentionally discharged a firearm which proximately caused great bodily injury and death to the victim.

The jury was instructed on several possible theories of murder, but only two are relevant to this review: (1) 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 (2) felony murder, i.e., the willful discharge of a firearm in a grossly negligent manner in violation of Penal Code § 246.3. The jury convicted Ferrell of second degree murder without specifying which theory or theories supported its verdict, and the jury also found true the sentencing enhancement. He was sentenced to 40 years to life on those offenses. The Court of Appeal affirmed, relying on “the then-­current rule of People v. Robertson, 95 P.3d 872 (Cal. 2004), that the assaultive felony of willful discharge of a firearm under § 246.3 could support a felony-­murder conviction so long as the felonious act had a purpose ‘collateral’ to the killing.”

Five years later, the California Supreme Court overruled Robertson, holding that assaultive felonies “such as a violation of section 246 or 246.3 … cannot be the basis of a felony-­murder instruction.” People v. Chun, 203 P.3d 425 (Cal. 2009). Chun applies retroactively in postconviction proceedings because it altered the conduct punishable as second-­degree murder. In re Martinez, 407 P.3d 1 (Cal. 2017).

Ferrell, relying on Chun, sought habeas relief first in the trial court and then in the Court of Appeal. Both courts denied relief. He then petitioned the California Supreme Court, which ordered the Secretary of the California Department of Corrections and Rehabilitation (“Secretary”) to show cause why relief should not be granted. The Secretary argued that the jury’s finding of the enhancement combined with the evidence at trial showed that the jury found implied malice to sustain the second degree murder under the alternative theory identified as theory (1) above (“implied malice murder”).

The Court observed second degree “murder is an unlawful killing with malice aforethought, but without the premeditation or deliberation required for first degree murder.” People v. Knoller, 158 P.3d 731 (Cal. 2007). “Malice may be express or implied.” Id. “Malice is express when a defendant intends to kill and implied when a defendant consciously disregards danger to human life.” Id. “Implied malice requires proof of both a physical act and a mental state. Physically, a defendant must perform ‘an act that involves a high degree of probability’ of death.” Id. To establish the mental state necessary for implied malice, the physical act must have been “deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life.” Chun.

The Court stated that the current case involves an “alternative-­theory error,” which 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, 447 P.3d 277 (Cal. 2019). The Supreme Court distinguishes between theories of guilt that are “factually incorrect” from those that are “legally incorrect.” See Id. Jurors are capable of determining whether the former type of theories is unsupported by the evidence; however, jurors are not capable of doing so (or even permitted to) when faced with an incorrect statement of the law because they are instructed by the court that only it may provide the applicable law for the case, the Court stated. See id. Consequently, when a legally incorrect theory of guilt is provided to the jury, it violates the defendant’s constitutional right to “a jury properly instructed in the relevant law.” In re Martinez.  

Courts evaluate the prejudice of such errors under the “harmless error” standard of Chapman v. California, 386 U.S. 18 (1967). Under that standard, courts must 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.

In the present case, this means that the Court must reverse unless it determines beyond a reasonable doubt that the instructional error did not contribute to the verdict.

The Court stated, “[g]enerally 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.” People v. Covarrubias, 378 P.3d 615 (Cal. 2016). Ferrell’s enhancement increased the sentence of anyone who “in the commission of a felony specified,” including murder, “personally and intentionally discharges a firearm and proximately causes … death.” § 12022.53(d). The enhancement statute requires only an intent to discharge a firearm, not subjective awareness of a risk or disregard for life, i.e., implied malice. Consequently, the jury could find the enhancement true against Ferrell without finding he acted with malice.

Furthermore, there was evidence to support a finding that Ferrell did not act with malice when he fired the gun. The jury heard evidence that he fired into the air to break up a fight Jenkins was losing; that Jenkins was Ferrell’s childhood friend and fellow gang member; and that Ferrell rushed to Jenkins, saying he was sorry and did not mean it. Had the jury been given only the proper instruction requiring a finding of malice to convict of second degree murder, Ferrell may not have been convicted. The Court could not conclude beyond a reasonable doubt that the legally incorrect jury instruction regarding second degree murder did not contribute to the verdict. Thus, the Court ruled that the error was not harmless.

Accordingly, the Court granted habeas relief on his claim and vacated the judgment against him to the extent it is based upon his conviction for second degree murder. See: In re Ferrell, 526 P.3d 110 (Cal. 2023).  

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