APPEAL from a judgment of the Superior Court of San Joaquin County, Terrence R. Van Oss, Judge. Affirmed. (Super. Ct. No. SF097303A).
The opinion of the court was delivered by: Morrison, J.*fn4
CERTIFIED FOR PARTIAL PUBLICATION*fn1
When defendant found his common law wife alone with her new lover in a car, he fired a single shot and killed Joshua Chace.
A jury convicted him of second degree murder (Pen. Code, § 187)*fn2 and shooting at an occupied vehicle (§ 246). The jury found true the allegation that defendant personally discharged a firearm, causing death. (§ 12022.53, subd. (d).) The court sentenced defendant to state prison for 40 years to life.
The jury was instructed on alternate theories of second degree murder, both malice aforethought and felony murder with shooting at an occupied vehicle as the predicate felony. Defendant contends the application of the felony-murder rule in this case violated his rights under the Sixth and Fourteenth Amendments of the United States Constitution. He argues that since the merger rule of People v. Ireland (1969) 70 Cal.2d 522 (Ireland) precludes application of the felony-murder rule unless defendant has a purpose collateral and independent to assault, and since the evidence of defendant's purpose was conflicting, the trial court erred in failing to instruct the jury that it must find a collateral and independent purpose before it could rely on the felony-murder doctrine. Defendant contends permitting the jury to rely on the felony-murder rule without a jury finding of a collateral purpose violates his right to have the jury determine all factual issues beyond a reasonable doubt.
After briefing in this case was complete, the California Supreme Court issued its opinion in People v. Chun (2009) 45 Cal.4th 1172 (Chun). In Chun, the Supreme Court overruled prior decisions and held "that all assaultive-type crimes, such as a violation of section 246, merge with the charged homicide and cannot be the basis for a second degree felony-murder instruction." (Id. at p. 1178.) In the published part of the opinion, we find that the trial court erred in instructing on second degree felony murder. However, as in Chun, we find the error was harmless and affirm the judgment.
In the unpublished part of the opinion, we reject defendant's contention that his concurrent sentence on shooting at an occupied vehicle should be stayed under section 654 because the act was part of the same conduct as the murder.
Defendant and Savy Yip lived together for over six years, since they were 17. They had two children, but never married. They lived with defendant's mother and brother. Yip's parents lived a house away.
Yip met Joshua Chace on a telephone chat line. After a few weeks, she started talking to him individually and considered him "somewhat" her boyfriend. Yip told Chace the father of her children was "not in the picture."
On August 19, 2005, Chace came to California from Massachusetts to see Yip. Yip told defendant she was going out with friends that night and picked Chace up at the airport. They spent the night together.
When Yip went home the next day, she and defendant got into an argument. She packed her things and went to her mother's. She spent the next four days with Chace.
The night before the incident, Yip returned home and fell asleep. While she was sleeping, Chace called. Defendant answered and Chace told him he was Yip's "man."
When Yip awoke the next afternoon, she and defendant argued. Yip told defendant she did not want to be with him. She left about 6:00 p.m. and went to Chace. They went to a park and talked.
Defendant claimed he was heartbroken and hurt when he found out about Chace. When Yip told him it was over, they argued and defendant said he might do something stupid. After Yip left, defendant waited several hours for her to return. Later that night defendant waved down a friend and got in his 4Runner with a gun; he wanted to bring Yip home. They went to four or five parks before they found Yip.
Around midnight, Yip and Chace were at Laughlin Park in the car with the seats reclined. Yip was in the driver's seat and Chace in the passenger seat. Yip saw headlights coming from behind. A car ...