In re Corpus

• Citation: 174 Cal.Rptr.3d 146,227 Cal.App.4th 906
• Decision Date: 01 January 2014
• Docket Number: D063549
• Court: California Court of Appeals
• Parties: IN RE Michael HANSEN on Habeas Corpus.

227 Cal.App.4th 906

174 Cal.Rptr.3d 146

IN RE Michael HANSEN on Habeas Corpus.

D063549

Court of Appeal,

Fourth District, Division 1, California.

Filed 7/7/2014

APPEAL from an order of the Superior Court of San Diego County, Gale E. Kaneshiro, Judge. Affirmed. (Super. Ct. No. HC19540)

Bonnie M. Dumanis, District Attorney, Laura Tanney, James E. Atkins and Craig E. Fisher, Deputy District Attorneys, for Appellant.

Henry C. Coker, Public Defender, Randy Mize, Chief Deputy Public Defender, and Matthew Braner, Deputy Public Defender, for Respondent.

AARON, J.

In 1992, a jury convicted Michael Hansen of one count of second degree murder (Pen.Code, § 187, subd. (a)) ¹ and found that Hansen personally used a firearm within the meaning of section 12022.5, subdivision (a). The jury also convicted Hansen of one count of shooting at an inhabited dwelling. (§ 246.) On appeal, the Supreme Court affirmed Hansen's conviction. ( People v. Hansen (1994) 9 Cal.4th 300, 311, 36 Cal.Rptr.2d 609, 885 P.2d 1022 ( Hansen ).) Rejecting Hansen's contention to the contrary, the Supreme Court determined that the offense of shooting at an inhabited dwelling did not “merge” with a homicide that results from such a shooting. ( Id. at p. 316, 36 Cal.Rptr.2d 609, 885 P.2d 1022.) The offense of shooting at an inhabited dwelling could therefore form the basis for a second degree felony-murder conviction. ( Ibid.) Fifteen years later, the Supreme Court reconsidered the scope of the second degree felony-murder rule and expressly overruled this holding. ( People v. Chun (2009) 45 Cal.4th 1172, 1199, 91 Cal.Rptr.3d 106, 203 P.3d 425 ( Chun ).) In Chun, the Supreme Court determined that the offense of shooting at an inhabited dwelling was “assaultive” in nature, and thus merged with a resulting homicide, such that the second degree felony-murder rule could not apply. ( Id. at p. 1200, 91 Cal.Rptr.3d 106, 203 P.3d 425.)

Relying on Chun, Hansen filed a petition for writ of habeas corpus in the San Diego County Superior Court. Hansen argued that the Supreme Court's holding in Chun applied to the theory of second degree felony murder presented at his trial, that it was therefore error for his jury to have been instructed that second degree felony murder was a valid theory for a conviction, and that error required reversal of his conviction for second degree murder. The trial court agreed and granted Hansen's petition.

The People of the State of California, represented by the San Diego County District Attorney (District Attorney), appeal. The District Attorney contends that the trial court erred in applying Chun retroactively to Hansen's conviction and in finding reversible error. The District Attorney further contends that the trial court erred in considering certain statements and declarations from jurors in Hansen's underlying trial in assessing the prejudicial impact of the error. We conclude that the court properly gave retroactive effect to Chun and, even setting aside the juror statements and declarations, that the error under Chun was prejudicial. We therefore affirm the trial court's order.

FACTS

We adopt the statement of facts that the Supreme Court articulated in Hansen:

“On September 19, 1991, defendant Michael Hansen, together with Rudolfo Andrade and Alexander Maycott, planned to purchase $40 worth of methamphetamine. With that purpose, defendant, accompanied by his girlfriend Kimberly Geldon and Maycott, drove in defendant's Camaro to an apartment duplex located in the City of San Diego. Upon arriving at the duplex, defendant pounded on the door of the upstairs apartment where Christina Almenar resided with her two children. When he received no response, defendant proceeded to return to his automobile and was approached by Michael Echaves.

“Echaves resided in the downstairs apartment with Martha Almenar (Christina's sister) and Martha's two children, Diane Rosalez, thirteen years of age, and Louie Miranda, five years of age. At the time, Diane and Louie were outside with Echaves helping him with yard work. In response to a question from Echaves, defendant said he was looking for Christina. When Echaves stated he had not seen her, defendant asked whether Echaves would be able to obtain some crystal methamphetamine (speed). After making a telephone call, Echaves informed defendant that he would be able to do so. Defendant said he would attempt to purchase the drug elsewhere but, if unsuccessful, would return.

“Defendant and his companions departed but returned approximately 20 minutes later. Defendant, accompanied by Echaves, Maycott, and Geldon, then drove a short distance to another apartment complex. Defendant parked his vehicle, gave Echaves two $20 bills, and told Echaves he would wait while Echaves obtained the methamphetamine. Echaves said he would be back shortly.

“When Echaves failed to return, defendant and his companions proceeded to Echaves's apartment. Defendant knocked on the door and the windows. Diane and Louie were inside the apartment alone but did not respond. Their mother, Martha, had left the apartment to meet Echaves, who had telephoned her after eluding defendant. After meeting Echaves at a hardware store, Martha telephoned her children from a public telephone booth. Diane answered and told her mother that the ‘guys in the Camaro’ had returned, pounded on the door, and then had left.

“Meanwhile, defendant, Maycott, and Geldon returned to the location where Andrade was waiting for them, acquiring en route a handgun from an acquaintance. The three men then decided to return to Echaves's apartment with the objective either of recovering their money or physically assaulting Echaves. At approximately 7:30 p.m., defendant approached the apartment building in his automobile with the lights turned off, and then from the vehicle fired the handgun repeatedly at the dwelling. At the time, Diane was inside the apartment, in the living room with her brother. The kitchen and living room lights were on. Diane was struck fatally in the head by one of the bullets fired by defendant.

“On the basis of information furnished by witnesses to the shooting, the police were able to trace to defendant the vehicle from which the shots had been fired. On September 20, at approximately 3 a.m., police officers arrested defendant at the room of a motel where he was staying. Searching the trunk of his Camaro, the police discovered a nine-millimeter semi-automatic handgun and an empty ammunition clip for the weapon.

“Five bullet holes were found at the scene of the homicide inside the apartment. It later was determined that shell casings and three bullets recovered at that location had been fired from the handgun found inside the trunk of defendant's vehicle.

“That same morning, at 7 a.m., defendant was advised of his Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694) and waived them. He then confessed to having fired several shots from a handgun aimed at the apartment building. He stated that he had been waiting for someone whom he believed ‘took off with forty bucks' belonging to him, that he was shooting at ‘[j]ust the house,’ and that he would not have engaged in this conduct had he known ‘those kids were in there.’

“At trial, as part of the defense case, defendant testified that on the day of the shooting he had consumed a substantial quantity of alcohol and some crystal methamphetamine. He further testified that, when he initially returned to Echaves's apartment, he had observed the lights were on, but after knocking on the door and receiving no response, he believed no one was inside. He denied any recollection of actually having fired the shots at the apartment, although he remembered hearing ‘four or five loud noises,’ and denied having intended to harm anyone.

“A neurologist and a neuropsychologist testified that defendant suffered from a mild prefrontal lobe injury that, in conjunction with the use of alcohol and drugs, could result in sudden, unplanned, and impulsive actions. A toxicologist testified regarding defendant's blood-alcohol level and its possible effects, based upon defendant's report as to the amount of alcohol he had consumed prior to the shooting. (His testimony did not refer to the possible effect of defendant's use of crystal methamphetamine, as testified to by defendant.)

“The trial court instructed the jury on several theories of murder, including second degree felony murder as an unlawful killing that occurs during the commission or attempted commission of a felony inherently dangerous to human life, and further instructing that the felony of shooting at an inhabited dwelling is inherently dangerous to human life. The jury returned a verdict finding defendant guilty of second degree murder (without specifying the theory upon which the conviction was based), and found true the allegation that he personally used a firearm during the commission of that offense (§ 12022.5, subd. (a)). The jury also found defendant guilty of discharging a firearm at an inhabited dwelling. At sentencing, the trial court imposed a term of imprisonment of 15 years to life for the second degree murder conviction, plus a consecutive term of 4 years for the personal-use-of-a-firearm enhancement. The court also imposed a term of five years for the offense of shooting at an inhabited dwelling, but stayed the sentence for that offense pursuant to section 654.” (Hansen, supra, 9 Cal.4th at pp. 305–307, 36 Cal.Rptr.2d 609, 885 P.2d 1022.)

DISCUSSION

I

In this habeas appeal, “[o]ur standard of review is de novo with respect to questions of law and the application of the law to the facts. We accept as final the superior court's resolution of pure questions of fact if they are supported by substantial evidence.” (In re Richards (2012) 55 Cal.4th 948, 960, 150 Cal.Rptr.3d 84, 289 P.3d 860.) Where, as here, the trial court did not hear evidence or make findings of fact, our review of the trial court's...