Filed 7/7/14
                            CERTIFIED FOR PUBLICATION

                COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                      DIVISION ONE

                                STATE OF CALIFORNIA



                                                   D063549
In re MICHAEL HANSEN on Habeas
Corpus.

                                                   (Super. Ct. No. HC19540)

        APPEAL from an order of the Superior Court of San Diego County, Gale E.

Kaneshiro, Judge. Affirmed.

        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.



        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 (Hansen).)


1       All further statutory references are to the Penal Code unless otherwise specified.
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.) 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 (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.)

       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

                                              2
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.



                                             3
      "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.



                                            4
       "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) 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.



                                              5
       "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.)




                                             6
                                       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.) Where, as here, the trial court

did not hear evidence or make findings of fact, our review of the trial court's order is de

novo. (Ibid.)

       "[B]ecause petitioner seeks to overturn a final judgment in a collateral attack, he

bears the burden of proof. [Citation.] ' "For purposes of collateral attack, all

presumptions favor the truth, accuracy, and fairness of the conviction and sentence;

defendant thus must undertake the burden of overturning them. Society's interest in the

finality of criminal proceedings so demands, and due process is not thereby offended." '

[Citations.]" (In re Avena (1996) 12 Cal.4th 694, 710.)

                                              II

                                             A

       The District Attorney first contends that the trial court erred in finding that Chun

could apply to Hansen's habeas petition because Hansen's conviction was final on appeal

15 years prior to the decision in Chun. The District Attorney urges that we reject the

holding of In re Lucero (2011) 200 Cal.App.4th 38 (Lucero), in which the Court of

Appeal for the Third Appellate District found that Chun could be applied retroactively to

a conviction that was already final on appeal when Chun was decided. (Lucero, supra, at

                                              7
p. 46.) The District Attorney argues that due process, under either the federal or the

California Constitution, does not require that judicial changes to California criminal law

be applied retroactively to convictions that are final on appeal. Instead, she contends,

well-settled principles of finality counsel against retroactivity in this case.

       Hansen counters that Lucero was correctly decided and that Chun should be

applied to convictions that were already final on appeal. Hansen argues that California

has adopted the rule applicable to federal criminal law, which requires that judicial

decisions that narrow the scope of criminal liability be applied retroactively to

convictions that are final on appeal. (See Schriro v. Summerlin (2004) 542 U.S. 348,

351-352 (Schriro).) Hansen further argues that failure to find retroactivity here would be

unjust and would constitute a miscarriage of justice because the Supreme Court in Chun

adopted the very arguments that Hansen advanced in his direct appeal.

                                               B

       We begin with a brief summary of the Supreme Court's decision in Chun. The

defendant in Chun was accused of taking part in a fatal car-to-car shooting. The victim

was shot while the car in which he was riding was stopped at a traffic light. (Chun,

supra, 45 Cal.4th at pp. 1178-1179.) The defendant was a passenger in another car that

stopped near the car in which the victim was riding, from which the shots were fired. (Id.

at p. 1179.) The defendant was prosecuted as the direct shooter and also, in the

alternative, as an aider and abettor. (Ibid.) After receiving instruction on several theories

of murder, including second degree felony murder, the jury convicted the defendant of

second degree murder without specifying its theory. (Ibid.) On appeal, the defendant

                                               8
contended that the second degree felony-murder rule had no statutory basis and was

therefore unconstitutional. (Id. at p. 1180.) The defendant further contended that the

second degree felony-murder rule, even if valid, could not apply to him because the

underlying felony at issue, shooting at an occupied motor vehicle (§ 246), merged with

the resulting homicide. (Id. at p. 1189.)

       Because " '[t]here are no . . . nonstatutory crimes in this state' [citation]," the

Supreme Court first examined the statutory basis for the second degree felony-murder

rule. (Chun, supra, 45 Cal.4th at p. 1183.) By statute, murder in California requires

"malice aforethought." (§ 187, subd. (a).) Malice may be express or implied. (§ 188.)

Implied malice may be shown "when the circumstances attending the killing show an

abandoned and malignant heart." (Ibid.) In Chun, the Supreme Court determined that

that the second degree felony-murder rule is simply another interpretation of the

"abandoned and malignant heart" requirement. "The willingness to commit a felony

inherently dangerous to life is a circumstance showing an abandoned and malignant

heart." (Chun, supra, 45 Cal.4th at pp. 1187-1188.) Thus, the second degree felony-

murder rule has a statutory basis. (Ibid.)

       The Chun court noted that although the second degree felony-murder rule

originally applied to all felonies, the court "has subsequently restricted its scope in at

least two respects to ameliorate its perceived harshness." (Chun, supra, 45 Cal.4th at p.

1188.) One restriction is the "merger doctrine," which "developed due to the

understanding that the underlying felony must be an independent crime and not merely



                                               9
the killing itself. Thus, certain underlying felonies 'merge' with the homicide and cannot

be used for the purposes of felony murder." (Id. at p. 1189.)

       Various interpretations of the merger doctrine have developed over the years,

among them, the decision in Hansen. The Supreme Court in Chun swept away much of

the prior case law in this area and announced a definitive test for merger: "When the

underlying felony is assaultive in nature, such as a violation of section 246 or 246.3, we

now conclude that the felony merges with the homicide and cannot be the basis of a

felony-murder instruction. An 'assaultive' felony is one that involves a threat of

immediate violent injury." (Chun, supra, 45 Cal.4th at p. 1200.) In formulating the new

test for merger, the Supreme Court expressly overruled Hansen, which had held that the

offense of shooting at an inhabited dwelling (§ 246) did not merge with a resulting

homicide. (Chun, supra, 45 Cal.4th at p. 1199.) The ultimate effect of Chun, as relevant

to Hansen, is to further reduce the scope of the second degree felony-murder rule by

expanding the judicial merger doctrine to include all assaultive felonies.

                                             C

       The Chun opinion does not state whether it applies retroactively to convictions,

like Hansen's, that were final on appeal when Chun was decided. It is well-settled that a

habeas petitioner may obtain relief where "there has been a change in the law affecting

the petitioner." (In re Harris (1993) 5 Cal.4th 813, 841 (Harris).) The threshold

question presented here, however, is whether Chun effected a change in the law that has

retroactive effect, i.e., whether the law affecting Hansen, himself, has changed.



                                            10
       Our Supreme Court has not articulated a single test to determine when and under

what circumstances a decision should be given retroactive effect to convictions that are

final on appeal. In certain cases, the Supreme Court has embraced an expansive theory of

retroactivity. For example, in People v. Mutch (1971) 4 Cal.3d 389 (Mutch), the

Supreme Court considered the retroactive effect of its decision overruling established

precedent regarding the scope of the offense of aggravated kidnapping. (Id. at p. 392.)

The court determined that its decision should be given full retroactive effect to

convictions that were final on appeal. (Id. at p. 396.) The court reasoned that because all

crimes in California are statutory, the Supreme Court's new interpretation of the

aggravated kidnapping statute was not a change in the law at all. (Id. at p. 394.) Instead,

the Supreme Court viewed its decision as a confirmation of the correct interpretation of

the statute that should have been applied since its enactment. (Ibid. ["[W]e did not

overturn a judge-made rule of common law; rather, we recognized a statutory rule which

the Legislature adopted in 1951 but to which courts had not previously given appropriate

effect"].) Given this interpretation, the Supreme Court explained that it need not

"undertake the often-perilous task of applying to the facts of this case the test of

'retroactivity' developed in a well-known series of decisions of the United States Supreme

Court." (Ibid.)

       In other cases, largely involving questions of procedure, the Supreme Court has

applied a tripartite test derived from the more established criteria for determining the




                                              11
retroactivity of judicial opinions to convictions not yet final on appeal.2 The tripartite

test consists of three elements: " '(a) the purpose to be served by the new standards,

(b) the extent of the reliance by law enforcement authorities on the old standards, and

(c) the effect on the administration of justice of a retroactive application of the new

standards.' [Citation.]" (In re Dabney (1969) 71 Cal.2d 1, 9; see In re Johnson (1970) 3

Cal.3d 404, 410 (Johnson).)

       In Lucero, the parties agreed that this tripartite test governed the retroactivity of

Chun to convictions that were final on appeal when Chun was decided. (Lucero, supra,

200 Cal.App.4th at p. 45.) Quoting Johnson, supra, 3 Cal.3d at page 413, the court

distilled the tripartite test down to one primary issue: " 'the more directly the new rule in

question serves to preclude the conviction of innocent persons, the more likely it is that

the rule will be afforded retrospective application.' " (Lucero, supra, 200 Cal.App.4th at

p. 45.) The court determined that Chun should apply retroactively to convictions that

were final on appeal because the effect of Chun was to narrow a defendant's potential

liability for second degree murder. "Because application of the new rule announced in


2       Our Supreme Court has stated that an appellate opinion will govern convictions
not yet final on appeal where the opinion does not announce a change in the law or where
the opinion announces a new rule of law where no rule existed before. (See People v.
Guerra (1984) 37 Cal.3d 385, 399 (Guerra).) Where an opinion announces a new rule of
law, but a contrary rule previously existed, "the courts may choose to make, on grounds
of policy, an exception to 'the ordinary assumption of retrospective operation' [citation]."
(Id. at p. 401.) "At the present time the California courts decide whether to make such an
exception by weighing the three factors summarized in Stovall v. Denno (1967) 388 U.S.
293, 297: '(a) the purpose to be served by the new standards, (b) the extent of the reliance
by law enforcement authorities on the old standards, and (c) the effect on the
administration of justice of a retroactive application of the new standards.' [Citations.]"
(Guerra, supra, at p. 401; see People v. Garcia (1984) 36 Cal.3d 539, 548-549.)
                                              12
Chun directly affects inmates such as Lucero, who might have been acquitted of murder

but for application of the felony-murder rule, it impacts the reliability of his murder

conviction." (Id. at p. 46.) Although couched in terms specific to the defendant in that

case, Lucero would apply with equal force to any defendant whose conviction potentially

rests on a theory of second degree felony murder that was rejected in Chun, including

Hansen.

                                              D

       The question presented is whether this court should follow Lucero and apply Chun

retroactively to Hansen's conviction. "We, of course, are not bound by the decision of a

sister Court of Appeal. [Citation.] But '[w]e respect stare decisis . . . which serves the

important goals of stability in the law and predictability of decision. Thus, we ordinarily

follow the decisions of other districts without good reason to disagree.' [Citation.]" (The

MEGA Life and Health Ins. Co. v. Superior Court (2009) 172 Cal.App.4th 1522, 1529

(MEGA Life).)

       The District Attorney argues that Lucero was wrongly decided and should not be

followed. The District Attorney correctly points out that Johnson, on which Lucero

heavily relies, involved an allegedly unconstitutional "prior," i.e., a prior offense that was

introduced to enhance punishment, rather than a straightforward habeas challenge.

(Johnson, supra, 3 Cal.3d at p. 410.) The discussion of retroactivity in Johnson was not

so limited, however, since the Supreme Court sought to answer the same question that is

presented here: whether a subsequent judicial decision operated retroactively to invalidate

a conviction that was final on appeal. (Id. at pp. 410-413.) The District Attorney is also

                                             13
correct that Guerra, on which Lucero also relies, discussed retroactive application only to

convictions that were still pending on appeal, not convictions that were final on appeal.

(See Guerra, supra, 37 Cal.3d at p. 413, fn. 24 ["[W]e do not reach the question whether

the . . . rule applies on collateral attack to cases now final"].) These distinguishing

aspects do not, however, undermine Lucero's holding or reasoning.

       The District Attorney also addresses the tripartite test as applied in Lucero.

Regarding "the purpose to be served by the new standards" (Guerra, supra, 37 Cal.3d at

p. 401), the District Attorney maintains that Chun was intended not to rectify a great

injustice, but rather, to create a uniform standard for the application of the second degree

felony-murder rule. The District Attorney points to the opinion of the New York Court

of Appeals in Policano v. Herbert (2006) 7 N.Y.3d 588 (Policano), in which, she claims,

the court considered an analogous situation. In Policano, the court applied an identical

tripartite test to the question of whether a change in the law of "depraved indifference"

murder in New York should be applied retroactively. The court determined that the

purpose of the change in the law was to "dispel the confusion between intentional and

depraved indifference murder" (id. at p. 603) and that "nonretroactivity poses no danger

of a miscarriage of justice" (id. at p. 604). The court stated, " '[d]efendants who commit[]

vicious crimes but who may have been charged and convicted under the wrong section of

the statute are not attractive candidates for collateral relief . . . .' [Citation]." (Ibid.) The

District Attorney also argues that the Lucero court gave inadequate weight to the second

and third prongs of the tripartite test, which focus on finality and the orderly

administration of justice.

                                               14
       We conclude that Lucero properly applied the tripartite test. The purpose of Chun

was to separate those actions that are punishable as second degree murder from those that

are not. The holding in Chun, at least as applicable here, reflects a narrowing of the class

of conduct that may constitute second degree murder. The expanded merger doctrine

announced in Chun could render some defendants who were previously convicted under

the second degree felony-murder rule entirely innocent of murder. Here, unlike

Policano, the change in scope of the second degree felony-murder rule may mean that

certain accidental—rather than "vicious"—killers may have been convicted of murder

under the rule announced in Hansen but would not have been convicted under the new

rule announced in Chun. The Chun decision therefore goes directly to the question of

guilt or innocence of a defendant and the validity of his conviction. (See Pryor v.

Municipal Court (1979) 25 Cal.3d 238, 258 ["That purpose implicates questions of guilt

and innocence, for conduct which a trier of fact might have found criminal under the

older vague definition may clearly fall beyond the scope of the statute as construed in the

present case"].) The second and third prongs, " ' "the extent of the reliance by law

enforcement authorities on the old standards, and . . . the effect on the administration of

justice of a retroactive application of the new standards" ' [citation]," are much less

significant than the first. (Johnson, supra, 3 Cal.3d at p. 410.) Although applying Chun

retroactively in this case will result in the additional use of scarce judicial resources, the

purpose of the Chun rule clearly outweighs such considerations.3



3      Because Chun resulted in a reinterpretation of the statute governing murder,
                                              15
       More broadly, the District Attorney contends that habeas relief is available "to

correct errors of a fundamental jurisdictional or constitutional type only." (Harris, supra,

5 Cal.4th at p. 828.) The District Attorney argues that this language reflects a limitation

on the scope of habeas relief since Johnson – on which Lucero relies – was decided. But

the supporting citation for this language is In re Winchester (1960) 53 Cal.2d 528, which

was decided well before Johnson. We are not persuaded that this general language

precludes consideration of Hansen's petition. (See Harris, supra, 5 Cal.4th at p. 841.)

       The District Attorney further argues that principles of finality and law of case

generally preclude habeas relief. Such general principles are unpersuasive where, as

here, habeas relief is in fact available based on changed law, at least in some

circumstances. (See Harris, supra, 5 Cal.4th at p. 843 ["The rule discussed above that

one may renew on habeas corpus certain challenges to a final judgment even after

unsuccessfully raising the issue on direct appeal, however, presupposes that no law of the

case barrier exists"]; see also Mutch, supra, 4 Cal.3d at p. 396.) Moreover, it is well-

settled that the doctrine of law of the case will not be applied "when an intervening

decision has altered or clarified the controlling rules of law . . . ." (People v. Jurado

particularly its language pertaining to an "abandoned and malignant heart," it could be
argued that our Supreme Court's decision in Mutch requires that we apply Chun
retroactively to convictions that were final on appeal without reference to the tripartite
test, which appears tailored to procedural, and not substantive, changes in criminal law.
(See Mutch, supra, 4 Cal.3d at p. 394.) The federal courts appear to use a rule similar to
that articulated in Mutch. Under the federal standard, changes to the scope of substantive
federal criminal law must generally be applied retroactively to convictions that are final
on appeal. (See Schriro, supra, 542 U.S. at pp. 351-352.) However, given our
conclusion that Chun should be applied retroactively even under the tripartite test, and
since the parties have not addressed the applicability of Mutch in their briefing, we
decline to discuss it here.
                                              16
(2006) 38 Cal.4th 72, 94.) We do not find the District Attorney's analogy to the rule in In

re Estrada (1965) 63 Cal.2d 740 enlightening, since it does not assist us in determining

when judicial changes in the law must be applied retroactively to convictions that are

final on appeal.

       Because the District Attorney has not established "good reason to disagree" with

the holding in Lucero, and we find its application of the tripartite test persuasive, we

follow it here. (See MEGA Life, supra, 172 Cal.App.4th at p. 1529.)

                                              E

       The parties dispute an additional issue: whether the federal Constitution's

guarantee of due process requires California to apply Chun retroactively to convictions

that are final on appeal. (See Fiore v. White (2001) 531 U.S. 225, 228.) Because we

conclude that Chun should be applied retroactively to convictions that are final on appeal

based on California law, we need not address whether the federal Constitution's guarantee

of due process would mandate such a result, as well.

                                             III

                                             A

       In view of our conclusion that Chun should be applied retroactively to Hansen's

conviction, it was error for Hansen's jury to be presented with a theory of second degree

felony murder based on the underlying offense of shooting at an inhabited dwelling. (See

Chun, supra, 45 Cal.4th at p. 1201.) We must next determine whether this error was

prejudicial.



                                             17
       The parties dispute the applicable standard of review. The District Attorney

argues that California's harmless error standard under People v. Watson (1956) 46 Cal.2d

818 should apply because the decision to apply Chun retroactively is a matter of state

law. Under the Watson standard, a court must determine whether or not it is "reasonably

probable that a result more favorable to the defendant would have been reached in the

absence of the alleged error." (People v. Thomas (2011) 52 Cal.4th 336, 356.) Hansen

argues that the federal "beyond a reasonable doubt" standard under Chapman v.

California (1967) 386 U.S. 18 should apply because the error goes to an element of

second degree murder. "Instructional error regarding the elements of the offense requires

reversal of the judgment unless the reviewing court concludes beyond a reasonable doubt

that the error did not contribute to the verdict." (Chun, supra, 45 Cal.4th at p. 1201.)

       The District Attorney acknowledges that Chun would require application of the

Chapman standard on direct appeal, but argues that our habeas review should be more

deferential. For that proposition, the District Attorney cites only Chun, in which the

court found a statement of the ostensibly more deferential federal habeas standard to be

consistent with the Chapman standard. (Chun, supra, 45 Cal.4th at p. 1204 [discussing

California v. Roy (1996) 519 U.S. 2].) Chun therefore provides no support for the

District Attorney's contention that we should depart from the Chapman standard here,

and we decline to do so. (See Lucero, supra, 200 Cal.App.4th at pp. 48, 50 [applying two

variations of the Chapman standard].)




                                             18
                                              B

       "When the prosecution presents its case to the jury on alternate theories, one of

which is legally correct and the other legally incorrect, 'we must reverse the conviction

unless it is beyond a reasonable doubt that the error did not contribute to the jury's

verdict. [Citation.] Such a reasonable doubt arises where, although the jury was

instructed on alternate theories, there is no basis in the record for concluding that the

verdict was based on a valid ground. . . . [Citations.]' [Citation.]" (People v. Calderon

(2005) 129 Cal.App.4th 1301, 1306-1307.)

       Where, as here, the jury was instructed on a legally correct theory of implied

malice second degree murder and a legally incorrect theory of second degree felony

murder, the error is harmless only "[i]f other aspects of the verdict or the evidence leave

no reasonable doubt that the jury made the findings necessary for conscious-disregard-

for-life malice . . . ." (Chun, supra, 45 Cal.4th at p. 1205.) However, "if the jury

reasonably could have convicted [Hansen] of second degree murder based on felony

murder and not express or implied malice, we reverse." (People v. Bejarano (2007) 149

Cal.App.4th 975, 990 (Bejarano), italics added.)

       Hansen's jury found him guilty of second degree murder, without specifying its

theory, and additionally found that he personally used a firearm in committing the

murder. The jury also found Hansen guilty of shooting at an inhabited dwelling. (§ 246.)

By itself, the jury's verdict provides no indication that the jury rested its second degree

murder verdict on the legally valid theory of implied malice murder.



                                              19
                                                1

         The District Attorney points out that both the prosecution and Hansen's counsel

told the jury during closing arguments that it could not find the personal firearm use

enhancement true if it relied on a felony-murder theory. Although the court also believed

this principle of law to be correct, it was not included in the court's instructions to the

jury.4

         If the court's jury instructions had included the admonition that the jury could find

true the personal firearm use enhancement only if it did not rely on a felony-murder

theory, such an instruction would properly inform our interpretation of the jury's verdict.

"Absent some contrary indication in the record, we presume the jury follows its

instructions [citations] 'and that its verdict reflects the legal limitations those instructions

imposed.' [Citation.]" (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 803-804; see

People v. Avila (2006) 38 Cal.4th 491, 574.) The jury's finding on the personal firearm

use enhancement would provide an indication that the erroneous felony-murder theory

was not the basis of the jury's verdict. (See Chun, supra, 45 Cal.4th at p. 1205 [jury

verdict implied all findings required under the court's instructions]; see also People v.

Ireland (2010) 188 Cal.App.4th 328, 340.)

         Here, however, the court's jury instructions did not include any such admonition.

Instead, this principle was stated only by counsel. Unlike jury instructions, principles of



4      The Supreme Court in Hansen later determined, contrary to counsel's statements
and the trial court's belief, that a jury could find both second degree felony murder and
the personal firearm use enhancement. (Hansen, supra, 9 Cal.4th at p. 316.)
                                               20
law that are expressed only by counsel are not binding on the jury. The court instructed

Hansen's jury on this point: "You must accept and follow the law as I state it to you,

whether or not you agree with the law. If anything concerning the law said by the

attorneys in their arguments or at any other time during trial conflicts with my

instructions on the law, you must follow my instructions." We cannot presume that the

jury followed legal principles that were articulated only by counsel, and not by the court.

This is particularly true in this case since, absent counsel's comments, there is no reason

why a lay jury would think that rendering a true finding on the personal firearm

allegation would conflict with finding Hansen guilty of murder based on a felony-murder

theory.5 Under the court's instructions, the jury was free to find the personal firearm use

enhancement true and, at the same time, rely on the legally erroneous felony-murder

theory for its second degree murder verdict. The true finding on the personal firearm use

enhancement thus provides no basis for us to conclude that the Chun error here was

harmless.

                                               2

       The District Attorney further contends that any rational jury would have had to

convict Hansen of second degree murder, on an implied malice theory, given the

evidence presented at trial. "[A] demonstration of harmless error does not require proof

that a particular jury 'actually rested its verdict on the proper ground [citation], but rather

on proof beyond a reasonable doubt that a rational jury would have found the defendant


5     As noted previously (see fn. 4, ante), in Hansen, supra, 9 Cal.4th at page 316, the
Supreme Court clarified that there is in fact no such conflict under California law.
                                              21
guilty absent the error [citation]' . . . . [Citation.]" (People v. Gonzales (2012) 54 Cal.4th

643, 666; see Chun, supra, 45 Cal.4th at p. 1205.) In this context, we must "exhaustively

review[] the trial evidence to determine 'whether the record contains evidence that could

rationally lead to a contrary finding . . . ' [citation]," i.e., a jury finding that Hansen did

not harbor implied malice. (See People v. Gonzales, supra, at p. 666.)

       Implied malice has " 'both a physical and a mental component. The physical

component is satisfied by the performance of "an act, the natural consequences of which

are dangerous to life." [Citation.] The mental component is the requirement that the

defendant "knows that his conduct endangers the life of another and . . . acts with a

conscious disregard for life." [Citation.]' [Citation.]" (Chun, supra, 45 Cal.4th at p.

1181.) "Implied malice requires that the defendant act with a wanton disregard for the

high probability of death [citation], thereby requiring a subjective awareness of a high

degree of risk [citation]. It is not enough that a reasonable person would have been

aware of the risk. [Citation.]" (People v. Canizalez (2011) 197 Cal.App.4th 832, 842;

see also People v. Watson (1981) 30 Cal.3d 290, 296-297 ["[A] finding of implied malice

depends upon a determination that the defendant actually appreciated the risk involved,

i.e., a subjective standard."].)6



6        Contrary to the dissent's suggestion, implied malice requires more than knowledge
that one's conduct is "dangerous" or "extremely dangerous." (See Chun, supra, 45
Cal.4th at p. 1181.) It is likewise insufficient that the underlying offense at issue here,
shooting at an inhabited dwelling, has been characterized as an "inherently dangerous"
felony in the abstract. (See Hansen, supra, 9 Cal.4th at pp. 310-311.) A defendant who
commits an inherently dangerous felony need not subjectively appreciate that his conduct
is, in fact, inherently dangerous. (See People v. Ramirez (2009) 45 Cal.4th 980, 985
                                                22
       The record contains evidence that would support a finding that Hansen did not

harbor implied malice because he did not subjectively appreciate that his actions carried a

high probability of death. Hansen testified that, at the time of the shooting, he did not

believe there was any chance anyone was inside the apartment at the time he shot at it.

Before shooting at the apartment, Hansen went to the apartment twice, knocked on doors

and windows, and did not get any response. His testimony was corroborated by the

surviving child, Louie, who testified that people pounded on the windows and doors of

the apartment twice prior to the shooting. Louie and his sister stayed quiet because their

mother had told them not to answer the door. Given this evidence, a rational juror could

find that Hansen lacked a subjective awareness that his actions carried a high probability

of death because he did not think that anyone was in the apartment at the time he shot at

it. Because a rational juror could disbelieve the prosecution's theory of implied malice

murder, we cannot say beyond a reasonable doubt that the jury's second degree murder

verdict necessarily rests on a theory of implied malice. The error here was therefore

prejudicial. (See People v. Gonzales, supra, 54 Cal.4th at p. 666.)

       The District Attorney argues that the circumstances of the shooting and Hansen's

pretrial statements to police would compel any rational juror to find that Hansen harbored

implied malice. The District Attorney points out that Hansen knew that people lived in

the apartment. In addition, Hansen also chose to fire multiple times across the length of

[elements of shooting at an inhabited dwelling are "(1) acting willfully and maliciously,
and (2) shooting at an inhabited house"].) By contrast, implied malice requires that a
defendant subjectively know that his conduct carried a high probability of death. (See
People v. Canizalez, supra, 197 Cal.App.4th at p. 842; see also Chun, supra, 45 Cal.4th
at p. 1181.)
                                             23
the apartment, and it was undisputed that at least one light was on in the apartment at the

time of the shooting. While "[m]alice may be inferred from the circumstances of the

murder" (People v. Canizalez, supra, 197 Cal.App.4th at p. 842), and the evidence cited

by the District Attorney would support a verdict based on implied malice, that does not

mean that a contrary finding would be irrational, given Hansen's testimony about his

subjective state of mind.7



7       Similarly, we agree with dicta in People v. Taylor (2004) 32 Cal.4th 863, 868
(Taylor), that "if a gunman simply walked down the hall of an apartment building and
fired through closed doors, he would be liable for the murder of all of the victims struck
by his bullets," i.e., there would be sufficient evidence under those facts to support a
conviction for second degree murder on a theory of implied malice. (Ibid.) In Taylor,
the Supreme Court considered whether a defendant who fatally shot a pregnant woman
could be liable for second degree implied malice murder of her fetus, even though the
defendant did not know that the woman was pregnant. (Id. at p. 865.) Analogizing those
facts to the apartment gunman, the Supreme Court determined that the defendant could be
liable for second degree implied malice murder of the fetus: "When a defendant commits
an act, the natural consequences of which are dangerous to human life, with a conscious
disregard for life in general, he acts with implied malice towards those he ends up killing.
There is no requirement the defendant specifically know of the existence of each victim."
(Id. at p. 868.)
        The scenarios considered in Taylor are distinguishable from the facts here.
Hansen's corroborated testimony was that he knocked on doors and windows of the
apartment before he shot. Unlike the hypothetical apartment gunman in Taylor, Hansen
thus arguably had reason to believe that the apartment was unoccupied at the time he shot
into it. In addition, the defendant in Taylor knew of the existence of the pregnant woman
(although not the fact of her pregnancy) when he shot her. (Taylor, supra, 32 Cal.4th at
p. 866; see id. at p. 869 ["In battering and shooting [the woman], defendant acted with
knowledge of the danger to and conscious disregard for life in general. That is all that is
required for implied malice murder. He did not need to be specifically aware how many
potential victims his conscious disregard for life endangered."].) Moreover, unlike
Taylor, the relevant question here is not whether there is substantial evidence that would
support Hansen's conviction. Instead, we must "exhaustively review[] the trial evidence
to determine 'whether the record contains evidence that could rationally lead to a contrary
finding . . . ' [citation]." (See People v. Gonzales, supra, 54 Cal.4th at p. 666.) The
scenarios considered in Taylor are of little relevance to this task. Taylor does not
                                            24
       The disputed evidence regarding the mental component of implied malice

distinguishes this case from Chun, where the Supreme Court found a similar error

harmless. In Chun, the victim was a passenger in a friend's car. (Chun, supra, 45 Cal.4th

at p. 1179.) "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 [other car]." (Ibid.) The defendant was

a passenger in the Honda. (Ibid.) He was tried for the victim's murder on alternate

theories as the direct perpetrator and as an aider and abettor. (Ibid.) The jury returned a

general second degree murder verdict that, on its face, did not shed light on the theory of

second degree murder relied upon by the jury. (Id. at p. 1204.)

       The Supreme Court examined the jury instructions, which included a second

degree felony-murder theory based on the predicate offense of shooting at an occupied

motor vehicle. (Chun, supra, 45 Cal.4th at p. 1202.) In order to convict the defendant of

second degree murder on that theory, the instructions required the jury to find that "the

defendant had the specific intent to commit the underlying felony of shooting at an

occupied vehicle." (Id. at p. 1205.) Given these instructions, the court held that "any

juror who relied on the felony-murder rule necessarily found that defendant willfully shot

at an occupied vehicle." (Ibid.)




mandate, or even imply, that the hypothetical apartment gunman would be liable for
second degree implied malice murder under all circumstances. Where, as here, the
evidence could lead a rational juror to conclude that a defendant did not have "a
conscious disregard for life" (Taylor, supra, at p. 869), liability is not a foregone
conclusion.
                                             25
       Turning to the evidence, the Supreme Court stated, "The undisputed evidence

showed that the vehicle shot at was occupied by not one but three persons. The three

were hit by multiple gunshots fired at close range from three different firearms. No juror

could have found that defendant participated in the 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." (Chun, supra, 45 Cal.4th at p. 1205.) Because "no jur[y] could

find felony murder without also finding conscious-disregard-for-life malice," any error in

the second degree felony murder jury instructions was therefore harmless beyond a

reasonable doubt. (Ibid.; see People v. Hach (2009) 176 Cal.App.4th 1450, 1457 [error

under Chun harmless where defendant shot victim from 10 feet away knowing car was

occupied].)

       As in Chun, the jury here was instructed that it must find that Hansen possessed

specific intent to shoot at an inhabited dwelling in order to find second degree felony

murder. The jury's general second degree murder verdict demonstrates that the jury

found that Hansen possessed such specific intent, i.e., that Hansen willfully shot at an

inhabited dwelling. However, unlike shooting at an occupied vehicle (the offense at issue

in Chun), shooting at an inhabited dwelling does not require that individuals be present in

the dwelling at the time of the shooting. (§ 246 ["As used in this section, 'inhabited'

means currently being used for dwelling purposes, whether occupied or not."]; see

Hansen, supra, 9 Cal.4th at p. 310.) "A defendant may violate section 246 by

discharging a firearm into an inhabited, but temporarily unoccupied dwelling. In that

                                             26
circumstance, there is no person present to be the target of the unlawful attack and the

threat of injury or risk to human health and safety is lacking." (In re Daniel R. (1993) 20

Cal.App.4th 239, 244.) By contrast, the act of shooting at an occupied vehicle is more

likely to carry some risk of injury because at least one person must be present in an

occupied vehicle. (See People v. Ochoa (2001) 26 Cal.4th 398, 461-462.)

       The specific circumstances of the shooting here are, moreover, quite different

from the facts of Chun. The victim in Chun was shot from a neighboring car, several feet

away, while both cars were stopped on a public street. The victim's car was indisputably

occupied. It appears that no reasonable argument could be made that the defendant in

Chun was unaware of that fact. Here, by contrast, Hansen fired at the apartment from

many feet away after knocking twice on the doors and windows and receiving no

response. Unlike in Chun, in which there was no evidence from which a rational juror

could find that the defendant did not know of the danger and did not harbor conscious

disregard for life, a rational juror could have believed Hansen's testimony that he was not

aware that the apartment was occupied at the time he shot into the apartment, and still

convicted Hansen of second degree murder based on a legally erroneous felony-murder

theory.

       The decision in Bejarano, supra, 149 Cal.App.4th at page 979, is instructive in

this context. In that case, the jury convicted the defendant of second degree murder,

again without specifying its theory. The jury was presented with alternate theories of

second degree murder, including implied malice and felony murder. (Id. at pp. 990-991.)

As in Chun, the predicate offense was shooting at an occupied motor vehicle. (Id. at p.

                                            27
990.) Predicting the result in Chun, the Bejarano court decided that this offense merged

with any resulting homicide and thus could not form the basis of a second degree felony

murder conviction. (Ibid.) In assessing the question of prejudice, the court examined the

evidence presented at trial. The victim was shot once while driving in the vicinity of the

defendant's home in Los Angeles. (Id. at p. 979.) The defendant, who was drunk at the

time, gave conflicting accounts of his involvement in the shooting. (Id. at p. 991.) His

accounts centered around a car, specifically, an Oldsmobile, that was different from the

victim's car that was actually hit. The court explained, "[Defendant] admitted that he

pointed his gun at the Oldsmobile's occupants and intended to shoot them. However,

there was also evidence he pointed the gun at the Oldsmobile after it left and then the gun

discharged. There was no evidence that he carefully aimed at the Oldsmobile's occupants

when he fired. [The defendant] at one point told police he mistakenly pulled the gun's

trigger and the gun went off. He denied pointing at the Oldsmobile and following it as it

drove away." (Id. at p. 991.) The defendant stated that the Oldsmobile was "far" away

from him when he shot, and he did not see the victim's car. (Id. at pp. 991-992.)

       The Bejarano court concluded, "Given the subjective mental component of

implied malice and the above recited facts, a jury reasonably could have concluded that

the issue of whether [the defendant] harbored malice (express or implied) was not

reasonably free from dispute. Accordingly, the jury reasonably could have convicted [the

defendant] of second degree murder based on a felony-murder theory and not malice,

either because convicting him on the less demanding theory of felony murder made it



                                            28
unnecessary to reach the issue of whether appellant harbored malice, or because the jury

actually entertained a reasonable doubt that he harbored malice." (Id. at p. 992.)

       The facts here are even more compelling than in Bejarano, since the jury could

reasonably have determined that Hansen did not know that the apartment was occupied at

the time of the shooting, as we have explained. While ample evidence would have

supported a jury finding of implied malice here, we cannot say that a contrary finding

would be unreasonable. (See People v. Gonzales, supra, 54 Cal.4th at p. 666.) The

prejudicial effect of the erroneous felony murder instruction is thus apparent, and a new

trial is required.

                                               3

       The District Attorney further argues that Lucero supports a finding of harmless

error here. We disagree. Unlike Lucero, where the felony-murder rule was given "short

shrift at trial" and "was virtually ignored in closing arguments" (Lucero, supra, 200

Cal.App.4th at pp. 48, 49), the rule here was the subject of substantial instruction by the

court and argument by counsel. The jury's verdict in Lucero also found the defendant

guilty of additional counts of attempted murder, which showed that the jury found malice

as to those victims: "No juror who correctly followed the instructions could arrive at a

verdict of attempted murder without addressing the question of malice aforethought and

resolving it against Lucero." (Id. at p. 51.) The Lucero court concluded that the jury's

guilt determinations on the attempted murder counts " 'leave no reasonable doubt that the

jury made the findings necessary for conscious-disregard-for-life malice.' " (Ibid.,

quoting Chun, supra, 45 Cal.4th at p. 1205.)

                                             29
       Here, unlike in Lucero, there is nothing in the jury's verdict that shows that it made

the required findings of malice that would support Hansen's second degree murder

conviction on a valid theory of implied malice. The District Attorney's reliance on

Lucero is therefore unavailing.

                                              4

       In light of our conclusion that the error was prejudicial based on the jury's verdict

and evidence presented at trial, we need not address Hansen's additional arguments

regarding prejudice. We note specifically that we have not relied on the juror

declarations and questionnaires obtained by Hansen's trial counsel. These documents

purport to reflect the jury's reasoning and mental impressions regarding their verdict. As

such, they are inadmissible to impeach the jury's verdict, as Hansen seeks to do here.

(See Evid. Code, § 1150; People v. Sutter (1982) 134 Cal.App.3d 806, 820.)

       The District Attorney's failure to object to these declarations and questionnaires at

Hansen's trial is of no moment. "[E]vidence that violates Evidence Code section 1150 is

not merely inadmissible; it is irrelevant—'of no jural consequence.' [Citation.] Thus, the

People did not have to object below to preserve this contention." (People v. Johnson

(2013) 222 Cal.App.4th 486, 494; see People v. Lindberg (2008) 45 Cal.4th 1, 53.)




                                             30
                              DISPOSITION

    The order is affirmed.



                                            AARON, J.

I CONCUR:



               McDONALD, J.




                                  31
BENKE, J., Dissenting.

       I agree with the majority's conclusion that, in light of People v. Chun (2009) 45

Cal.4th 1172, 1198-1201 (Chun), the jury in this case should not have been instructed on

a theory of felony murder based on Michael Hansen's alleged violation of Penal Code

section 246. I am also willing to accept that Hansen is entitled to the benefit of the new

rule set forth in Chun.

       What I cannot join is the majority's determination Hansen was prejudiced by

inclusion of a felony-murder instruction. My principal point of departure is the majority's

application of the harmless-beyond-a-reasonable-doubt standard of review for prejudice.

Although our California Supreme Court has not considered what standard to apply when,

as here, we are engaged in collateral review of a final judgment, we should adopt and

apply the more deferential "grave doubt" harmless error standard of review, which

governs consideration of similar trial errors when found in federal habeas proceedings.

(See Chun, supra, 45 Cal.4th at p. 1204.) At the very least, the majority should explain

why its harmless error analysis departs from the "grave doubt" standard adopted by the

United States Supreme Court in Brecht v. Abrahamson (1993) 507 U.S. 619 (Brecht) and

Kotteakos v. United States (1946) 328 U.S. 750 (Kotteakos).

       However, even under the stricter reasonable doubt standard, the record here shows

Hansen was not prejudiced by the felony-murder theory provided to the jury. As I

explain more fully, the undeniable evidence Hansen knew he was acting in a life-

threatening manner, and thus with implied malice, eliminates the possibility of any
prejudice.

       1. Harmless Error

       As the majority note, the trial court's error in giving a felony-murder instruction

was subject to harmless error analysis. (See Chun, supra, 45 Cal.4th at p. 1201.) "As the

United States Supreme Court has emphasized, '"[t]he harmless-error doctrine recognizes

the principle that the central purpose of a criminal trial is to decide the factual question of

the defendant's guilt or innocence [citation], and promotes public respect for the criminal

process by focusing on the underlying fairness of the trial rather than on the virtually

inevitable presence of immaterial error. Cf. R. Traynor, The Riddle of Harmless Error 50

(1970) ('Reversal for error, regardless of its effect on the judgment, encourages litigants

to abuse the judicial process and bestirs the public to ridicule it')."' (Rose v. Clark

[(1986)] 478 U.S. [570,] 577, quoting Delaware v. Van Arsdall (1986) 475 U.S. 673, 681;

cf. People v. Cahill [(1993)] 5 Cal.4th [478,] 508-509 [noting similar policies underlying

the reversible error rule under the California Constitution].)" (People v. Flood (1998) 18

Cal.4th 470, 507.) Thus, where the record shows an instructional error has nothing to do

with a jury's determination of guilt or innocence, reversing a defendant's conviction will

"erode the purpose and rationale of the harmless error doctrine and promote disrespect for

the judicial system." (Ibid.)

       Although it does not appear that our own California Supreme Court has addressed

the issue, the United States Supreme Court has made it clear that in federal habeas

proceedings, the beyond-a-reasonable-doubt harmless error standard set forth in


                                               2
Chapman v. California (1967) 386 U.S. 18 (Chapman) does not apply to trial errors.

(See Brecht, supra, 507 U.S. at p. 637; see also O'Neal v. McAninch (1995) 513 U.S. 432,

438-439; California v. Roy (1996) 519 U.S. 2, 5-6.)1 "Overturning final and

presumptively correct convictions on collateral review because the State cannot prove

that an error is harmless under Chapman undermines the States' interest in finality and

infringes upon their sovereignty over criminal matters. Moreover, granting habeas relief

merely because there is a '"reasonable possibility"' that trial error contributed to the

verdict, [citation], is at odds with the historic meaning of habeas corpus—to afford relief

to those whom society has 'grievously wronged.' Retrying defendants whose convictions

are set aside also imposes significant 'social costs,' including the expenditure of additional

time and resources for all the parties involved, the 'erosion of memory' and 'dispersion of

witnesses' that accompany the passage of time and make obtaining convictions on retrial

more difficult, and the frustration of 'society's interest in the prompt administration of

justice.' [Citation.] And since there is no statute of limitations governing federal habeas,

and the only laches recognized is that which affects the State's ability to defend against

the claims raised on habeas, retrials following the grant of habeas relief ordinarily take

place much later than do retrials following reversal on direct review. [¶] The imbalance

of the costs and benefits of applying the Chapman harmless-error standard on collateral

review counsels in favor of applying a less onerous standard on habeas review of


1     In People v. Flood, supra, 18 Cal.4th at page 498, our Supreme Court recognized
the more lenient standard of review applied in federal habeas proceedings but did not
have occasion to apply it in the direct appeal before it.
                                              3
constitutional error." (Brecht, at p. 637.)

       Rather than the Chapman beyond-a-reasonable-doubt harmless error standard, the

United States Supreme Court found that the "substantial and injurious effect" or "grave

doubt" standard, which applies when a federal court is reviewing nonconstitutional errors

in criminal cases, is more suited to collateral review. (Brecht, supra, 507 U.S. at pp. 637-

638.) This more lenient standard was adopted in Kotteakos, supra, 328 U.S. at page 776

and requires reversal only when a reviewing court finds that an error had substantial

influence on the jury's verdict or "is left in grave doubt" (Kotteakos, at pp. 764-765).

Later, in O'Neal v. McAninch, supra, 513 U.S. at page 435, the court provided this

amplification of the grave doubt standard: "By 'grave doubt' we mean that, in the judge's

mind, the matter is so evenly balanced that he feels himself in virtual equipoise as to the

harmlessness of the error."

       The record here fully warrants application of the Kotteakos standard. Diane

Rosalez was killed in 1991, and Hansen was tried in 1992. Even if Michael Echaves,

Martha Almenar, Louis Miranda, Rudolfo Andrade, Alexander Maycott, and the other

witnesses are still alive, time has no doubt faded all their memories of the complicated

series of transactions and events that lead to Diane's death. Thus, retrial here imposes the

very social costs and harm to the public's interest in the prompt administration of justice

that convinced the Supreme Court the Kotteakos standard is more appropriate than

Chapman in collateral proceedings as a means of determining whether an error is

harmless.


                                              4
       2. Analysis

       Even if we were reviewing this record on direct appeal and were required to apply

the stricter standard of review for prejudice, this record, like the records considered in

Chun and In re Lucero (2011) 200 Cal.App.4th 38, leaves no reasonable possibility the

jury somehow found a violation of Penal Code section 246 but no implied malice.

       I begin with the instructions provided to the jury. Those instructions, taken

together with Hansen's conduct, virtually eliminate the possibility the jury could find

felony murder without also finding implied malice. The felony-murder instruction the

jury was given expressly required the prosecution to prove Hansen committed a crime

that was inherently dangerous to human life and further instructed the jury that shooting

into an inhabited dwelling is a felony inherently dangerous to human life. The implied

malice instruction the jury was given required that the prosecution prove that Hansen

intentionally committed an act dangerous to human life with knowledge that it was

dangerous and with conscious disregard for human life.2 The only difference between

the instructions was the requirement under the implied malice instruction that the jury


2       The felony-murder and implied malice theories were given to the jury in the
following form: "In order to prove such crime, each of the following elements must be
proved: a human being was killed, the killing was unlawful, and the killing was done
with malice aforethought or occurred during the commission or attempted commission of
a felony inherently dangerous to human life. Shooting at an inhabited dwelling is a
felony inherently dangerous to human life.
        "'Malice' may be either express or implied. Malice is express when there is
manifested an intention unlawfully to kill a human being. Malice is implied when: the
killing result[s] from an intentional act, the natural consequences of the act are dangerous
to human life and the act was deliberately performed with knowledge of the danger and
with conscious disregard for human life."
                                              5
find Hansen knew about the dangerousness of his conduct and acted with conscious

disregard to human life. (See People v. Patterson (1989) 49 Cal.3d 615, 626; see also

Chun, supra, 45 Cal.4th at p. 1181.) Thus, in order for Hansen to have been prejudiced

by the felony-murder instruction the jury was given, we would have to conclude that one

or more of the jurors believed that, although Hansen committed an inherently dangerous

felony, he nonetheless did not know that it was dangerous or was unconscious of the

threat it posed. I do not believe a juror could make such a finding, where, as here, the

crime involved multiple and intentional gunshots into a lighted dwelling. Rather, I

believe the record shows that while Hansen may not have intended to kill anyone, he had

to be aware that the multiple gunshots he deliberately fired into the Echaves apartment

were lethally dangerous and, thus, was acting with implied malice.

       Consideration of the court's holding in Chun only confirms my conclusion. In

finding that violation of Penal Code section 246 merges with any homicide so that felony

murder is unavailable, the court in Chun did so because it found that shooting at a vehicle

is an "assaultive" felony. The court in Chun defined an "assaultive" felony as "one that

involves a threat of immediate violent injury." (Chun, supra, 45 Cal.4th at p. 1200.)

While it is conceivable that a defendant could commit an assaultive crime, such as

shooting into a dwelling or vehicle, and be unaware of its dangerousness, such a state of

mind would be very rare. (See, e.g., People v. Taylor (2004) 32 Cal.4th 863, 868.)

Indeed, in Chun, the court determined that, because the shooting there involved three

victims traveling together in a car and each was hit by a bullet from a different firearm,


                                             6
any felony-murder finding necessarily included a conscious-disregard-for-life malice

finding. (Chun, at p. 1205.) The court stated, "on this evidence, no juror could find

felony murder without also finding conscious-disregard-for-life malice." (Ibid.) Here,

Hansen approached the apartment with the headlights of his car turned off. A jury could

not interpret this fact as anything other than an attempt to avoid detection by anyone in

the apartment. Hansen then deliberately fired multiple rounds into the apartment, where

lights were still on. Hansen's stealthy approach did not give Diane or her brother a

chance to hide anywhere in the apartment and entirely undermines his contention he did

not believe anyone was in the apartment when he began firing. Unlike my colleagues, I

find it difficult to believe the jury could find that, on those facts, Hansen was guilty of

felony murder without also finding the conscious-disregard-for-life needed for implied

malice. Thus, as in Chun, I do not believe there is any possibility the felony-murder

instruction prejudiced Hansen.

       In sum, I have no doubt—grave, reasonable or otherwise—that Hansen acted with

implied malice and that the jury so found. I would reverse the trial court's order granting

Hansen's petition.


                                                                        BENKE, Acting P. J.




                                              7
