45 Cal.4th 1172, S157601, People v. Chun

Docket Nº:S157601
Citation:45 Cal.4th 1172, __ Cal.Rptr.3d__; __P.3d__
Party Name:THE PEOPLE, Plaintiff and Respondent, v. SARUN CHUN, Defendant and Appellant.
Case Date:March 30, 2009
Court:Supreme Court of California

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45 Cal.4th 1172

__ Cal.Rptr.3d__; __P.3d__

THE PEOPLE, Plaintiff and Respondent,


SARUN CHUN, Defendant and Appellant.


Supreme Court of California

March 30, 2009

Superior Court, San Joaquin County, Bernard J. Garber Judge Ct.App. 3 C049069, No. SF090168C

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Mark D. Greenberg, under appointment by the Supreme Court, for Defendant and Appellant.

Dallas Sacher, for Sixth District Appellate Program, as Amicus Curiae on behalf of Defendant and Appellant.

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson and Dane R. Gillette, Chief Assistant Attorneys General, Mary Jo Graves and Michael P. Farrell, Assistant Attorneys General, John G. McLean, Janet Neeley, Stephen G. Herndon, Melissa Lipon and Paul E. O'Connor, Deputy Attorneys General, for Plaintiff and Respondent.

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In this murder case, the trial court instructed the jury on second degree felony murder with shooting at an occupied vehicle under Penal Code section 246 the underlying felony.1 We granted review to consider various issues concerning the validity and scope of the second degree felony-murder rule.

We first discuss the rule’s constitutional basis. Although the rule has long been part of our law, some members of this court have questioned its constitutional validity. We conclude that the rule is based on statute, specifically section 188’s definition of implied malice, and hence is constitutionally valid.

Next we reconsider the contours of the so-called merger doctrine this court adopted in People v. Ireland (1969) 70 Cal.2d 522 [75 Cal.Rptr. 188, 450 P.2d 580] (Ireland). After reviewing recent developments, primarily some of our own decisions, we conclude the current state of the law in this regard is untenable. We will overrule some of our decisions and hold that all assaultive-type crimes, such as a violation of section 246, merge with the charged homicide and cannot be the basis for a second degree felony-murder instruction. Accordingly, the trial court erred in instructing on felony murder in this case. We also conclude, however, that this error, alone, was not prejudicial.

We reverse the judgment of the Court of Appeal, which had found the same error prejudicial. However, the Court of Appeal also found a second error, a finding not before us on review. We remand the matter to the Court of Appeal to decide whether the two errors, in combination, were prejudicial.

I. Facts and Procedural History

We take our facts primarily from the Court of Appeal’s opinion.

Judy Onesavanh and Sophal Ouch were planning a party for their son’s birthday. Around 9:00 p.m. on September 13, 2003, they and a friend, Bounthavy Onethavong, were driving to the store in Stockton in a blue Mitsubishi that Onesavanh’s father owned. Onesavanh’s brother, George, also drives the car. The police consider George to be highly ranked in the Asian Boys street gang (Asian Boys).

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That evening Ouch was driving, with Onesavanh in the front passenger seat and Onethavong behind Ouch. While they were stopped in the left turn lane at a traffic light, a blue Honda with tinted windows pulled up beside them. When the light changed, gunfire erupted from the Honda, hitting all three occupants of the Mitsubishi. Onethavong was killed, having received two bullet wounds in the head. Onesavanh was hit in the back and seriously wounded. Ouch was shot in the cheek and suffered a fractured jaw.

Ouch and Onesavanh identified the Honda’s driver as “T-Bird,” known to the police to be Rathana Chan, a member of the Tiny Rascals Gangsters (Tiny Rascals), a criminal street gang. The Tiny Rascals do not get along with the Asian Boys. Chan was never found. The forensic evidence showed that three different guns were used in the shooting, a .22, a .38, and a .44, and at least six bullets were fired. Both the .38 and the .44 struck Onethavong; both shots were lethal. Only the .44 was recovered. It was found at the residence of Sokha and Mao Bun, brothers believed to be members of a gang.

Two months after the shooting, the police stopped a van while investigating another suspected gang shooting. Defendant was a passenger in the van. He was arrested and subsequently made two statements regarding the shooting in this case. He admitted he was in the backseat of the Honda at the time; T-Bird was the driver and there were two other passengers. Later, he also admitted he fired a .38-caliber firearm. He said he did not point the gun at anyone; he just wanted to scare them.

Defendant, who was 16 years old at the time of the shooting, was tried as an adult for his role in the shooting. He was charged with murder, with driveby and gang special circumstances, and with two counts of attempted murder, discharging a firearm from a vehicle, and shooting into an occupied vehicle, all with gang and firearm-use allegations, and with street terrorism. At trial, the prosecution presented evidence that defendant was a member of the Tiny Rascals, and that the shooting was for the benefit of a gang. Defendant testified, denying being a member of the Tiny Rascals or being involved in the shooting.

The prosecution sought a first degree murder conviction. The court also instructed the jury on second degree felony murder based on shooting at an occupied motor vehicle (§ 246) either directly or as an aider and abettor. The jury found defendant guilty of second degree murder. It found the personal-firearm-use allegation not true, but found that a principal intentionally used a firearm and the shooting was committed for the benefit of a criminal street

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gang. The jury acquitted defendant of both counts of attempted murder, shooting from a motor vehicle, and shooting at an occupied motor vehicle. It convicted defendant of being an active participant in a criminal street gang.

The Court of Appeal, in an opinion authored by Justice Morrison, reversed the murder conviction and otherwise affirmed the judgment. It found two errors in the case. It held the trial court had properly admitted defendant’s first statement that he had been in the car but that the court should have excluded his subsequent statement that he had fired a gun. It concluded that the latter statement was procured by a false promise of leniency. It found this error harmless beyond a reasonable doubt “as a pure evidentiary matter.” But, partly due to this error, the Court of Appeal also held the trial court erred in instructing the jury on second degree felony murder. It found this error was prejudicial and reversed the murder conviction. It explained: “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 prevents using an assaultive-type crime as the basis for felony murder unless the underlying crime is committed with an intent collateral to committing an injury that would cause death. Without the evidence of defendant’s statements about the shooting, there was no evidence from which a collateral intent or purpose could be found. Accordingly, it was error to instruct on second degree felony murder and the murder conviction must be reversed.”

Justice Nicholson dissented from the reversal of the murder conviction. Relying on People v. Hansen (1994) 9 Cal.4th 300 [36 Cal.Rptr.2d 609, 885 P.2d 1022] (Hansen), he argued that the underlying felony did not merge with the homicide for purposes of the second degree felony-murder rule and, accordingly, the trial court had properly instructed the jury on second degree felony murder.

We granted review. Later, we issued an order limiting review to the issues concerning whether the trial court prejudicially erred in instructing the jury on second degree felony murder.

II. Discussion

A. The Constitutionality of the Second Degree Felony-murder Rule

Defendant contends California’s second degree felony-murder rule is unconstitutional on separation of power grounds as a judicially created doctrine with no statutory basis. To explain the issue, we first describe how the doctrine fits in with the law of murder. Then we discuss defendant’s

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contention. We will ultimately conclude that the doctrine is valid as an interpretation of broad statutory language.

Section 187, subdivision (a), defines murder as “the unlawful killing of a human being, or a fetus, with malice aforethought.” Except for the phrase “or a fetus,” which was added in 1970 in response to this court’s decision in Keeler v. Superior Court (1970) 2 Cal.3d 619 [87 Cal.Rptr. 481, 470 P.2d 617] (see People v. Davis (1994) 7 Cal.4th 797, 803 [30 Cal.Rptr.2d 50, 872 P.2d 591]), this definition has been unchanged since it was first enacted as part of the Penal Code of 1872. Murder is divided into first and second degree murder. (§ 189.) “Second degree murder is the unlawful killing of a human being with malice, but without the additional elements (i.e., willfulness, premeditation, and deliberation) that would support a conviction of first degree murder. (§§ 187, subd. (a), 189; People v. Nieto Benitez (1992) 4 Cal.4th 91, 102 [13 Cal.Rptr.2d 864, 840 P.2d 969].)" (Hansen, supra, 9 Cal.4th at p. 307.)

Critical for our purposes is that the crime of murder, as defined in section 187, includes, as an element, malice. Section 188 defines malice. It may be either express or implied. It is express “when there is manifested a deliberate intention unlawfully to take away the life of a...

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