People v. Chun

45 Cal.4th 1172, 203 P.3d 425 (2009)

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Nature of the Case

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Facts

Judy Onesavanh and Sophal Ouch were planning a party for their son's birthday. They and a friend, Bounthavy Onethavong, were driving to the store. Onesavanh's brother, George, also drives the car. George was highly ranked in the Asian Boys street gang (Asian Boys). Ouch was driving, with Onesavanh in the front passenger seat and Onethavong behind Ouch. A blue Honda with tinted windows pulled up beside them. When the light changed, gunfire erupted from the Honda, hitting all three occupants. 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. Chun (D) was arrested and subsequently made two statements regarding the shooting in this case. D 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. D, who was 16 years old at the time of the shooting, was tried as an adult for his role in the shooting. P 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. The Court of Appeal reversed the murder conviction and otherwise affirmed the judgment. It 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.' The State (P) appealed.