In In re Ferrell, the Supreme Court today grants habeas corpus relief to a petitioner convicted of second degree murder because an error in permitting the conviction to be based on an invalid felony-murder theory was not harmless.
The court’s unanimous opinion by Justice Martin Jenkins concludes a separate jury finding that the petitioner intentionally discharged a firearm and caused death, “whether viewed in isolation or in light of the entire record, . . . fails to establish the mental component of implied malice, which requires a defendant to act with a conscious disregard for life, knowing his act endangers another’s life.”
Ferrell is the court’s second decision this week in a case with an invalid murder theory submitted to a jury.
On Monday, in In re Lopez, the court unanimously held the Court of Appeal had improperly analyzed whether the instructional error was prejudicial, but delegated the ultimate harmlessness determination to the appellate court on remand. The Supreme Court abstained on the bottom-line question for the stated reason that the trial record was large and complex and, we speculated, for the possible unstated reason that the justices couldn’t agree whether the error was prejudicial.
Today, the court does the evaluation itself.
The Second District, Division Six, had denied a separate habeas corpus petition by Ferrell in an opinion that, contrary to today’s Supreme Court decision, concluded the erroneous felony-murder instruction was harmless. Despite expressly disagreeing with a Second District, Division One, decision (People v. Offley (2020) 48 Cal.App.5th 588), Division Six didn’t publish its opinion, even after defendant filed a publication request. (See here; see also rule 8.1105(c)(5) [an opinion “should be certified for publication in the Official Reports if the opinion . . . [a]ddresses or creates an apparent conflict in the law”].)