Metropolitan News-Enterprise


Tuesday, March 31, 2009


Page 3


Supreme Court Clarifies Rule on ‘Merger’ of Assault and Homicide




An “assaultive-type” crime, such as shooting at an occupied vehicle, merges into a resulting homicide, precluding application of the second-degree felony murder rule, the California Supreme Court ruled yesterday.

The justices reversed the second degree murder conviction of Sarun Chun, implicated in the September 2003 shooting death of Bounthavy Onethavaong. The victim was a passenger in a Mitsubishi that was hit by gunfire from a Honda that had pulled up beside them at a Stockton intersection.

The driver and surviving passenger in the Mitsubishi identified the driver of the Honda, whom authorities have been unable to locate, as a person known to the police to be a member of the Tiny Rascals Gangsters. Police and prosecutors said the Mitsubishi was fired upon because the surviving passenger is the brother of a high-ranking member of the Asian Boys gang, a rival of the Tiny Rascals.

Forensic evidence showed that three different guns were used in the shooting, a .22, a .38, and a .44, and that the victim was killed by shots from both the .38 and the .44.

Two months after the shooting, Chun was arrested. He later admitted having been in the Honda and fired a .38, but denied having pointed it at anyone.

Charged as Adult

At trial, Chun who was 16 years old at the time of the shooting but was charged with first degree murder with special circumstances as an adult, denied being a gang member or being involved in the shooting. The jury found him guilty of second degree murder; it rejected an allegation that he had personally used a firearm but found that a principal in the crime used a firearm and that the shooting was committed for the benefit of a gang.

It also convicted Chun being an active participant in a gang, but acquitted him of attempted murder, shooting from a motor vehicle, and shooting at an occupied motor vehicle.  

The Third District Court of Appeal reversed the murder conviction, holding that a jury instruction on second degree felony murder should not have been given because there was no admissible evidence that the shooting was “committed with an intent collateral to committing an injury that would cause death,” so the underlying crime merged into the homicide.

Separation of Powers

Before the Supreme Court, the defense argued that the second degree felony-murder rule has no statutory basis and thus violates the separation of powers, an argument rejected by Justice Ming Chin for a five-justice majority. The rule—which holds that a killing during the commission or attempted commission of a felony, other than one enumerated in the first degree felony-murder statute, is second degree murder—is consistent with the definition of implied malice in Penal Code Sec. 188, Chin said.

The justice went on to say, however, that in this case, the trial judge should not have instructed on second degree felony murder.

Chin agreed with both the majority and dissenting justices in the Court of Appeal, who complained of the “muddled” state of California case law with regard to the merger doctrine. The requirement of an “collateral and independent felonious design” to avoid having the underlying crime and the homicide merge, the justice reasoned, creates an anomaly in which a person who merely intends to frighten the victim is in a worse position than one who actually intends to shoot at someone.

“When the underlying felony is assaultive in nature, such as a violation of [Penal Code] section 246 [shooting at an occupied vehicle or dwelling] or 246.3 [discharging a firearm in a grossly negligent manner] we now conclude that the felony merges with the homicide and cannot be the basis of a felony-murder instruction,” Chin concluded.

The instructional error alone, however, was not prejudicial, the justice went on to say.

“The undisputed evidence showed that the vehicle shot at was occupied by not one but three persons,” Chin wrote. “The three were hit by multiple gunshots fired at close range from three different firearms.  No juror could have found that defendant participated in this shooting, either as a shooter or as an aider and abettor, without also finding that defendant committed an act that is dangerous to life and did so knowing of the danger and with conscious disregard for life — which is a valid theory of malice.  In other words, on this evidence, no juror could find felony murder without also finding conscious-disregard-for-life malice.”

Other Error

The jurist noted, however, that the Court of Appeal also found another error, that the defendant’s admission of having fired a gun should have been excluded. Since the panel never ruled on whether that error, in combination with the erroneous second-degree murder instruction, constituted prejudicial error, the case must go back to the Court of Appeal to make that determination, Chin said.

Chin was joined by Chief Justice Ronald M. George and Justices Joyce L. Kennard, Kathryn M. Werdegar, and Carol Corrigan.

Justice Marvin Baxter argued in his concurring and dissenting opinion that a second degree felony-murder conviction may be based on the underlying felony of shooting at an occupied dwelling, so that the instruction was correct. People v. Hansen (1994) 9 Cal.4th 300, which held that the crime of shooting into a dwelling did not merge into the resulting homicide, was “well-reasoned and most directly on point in the matter now before us.”

Justice Carlos Moreno, concurring and dissenting, argued that “the time has come to abandon the second degree felony-murder rule” because it has no express statutory basis and is largely unnecessary and potentially unfair.

The case is People v. Chun, 09 S.O.S. 1873.


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