(Super. Ct. No. SC058983B)
The opinion of the court was delivered by: Butz , J.
CERTIFIED FOR PUBLICATION
ORIGINAL PROCEEDING: Petition for Writ of Habeas Corpus. Denied.
In 1995, petitioner Felix Lucero, Jr., and his friend George Tabios, Jr., shot at an occupied vehicle, killing one of the occupants. They were convicted by a jury of one count of second degree murder and two counts of attempted murder, with special enhancements for firearm use. We affirmed both convictions in People v. Tabios (1998) 67 Cal.App.4th 1 (Tabios).*fn1 In doing so, we rejected the argument that the jury was erroneously instructed on the felony-murder rule based upon the predicate felony of willful shooting at an occupied vehicle. (Pen. Code, § 246.)*fn2 (Tabios, supra, at pp. 9-11.) Our conclusion was mandated by the California Supreme Court case of People v. Hansen (1994) 9 Cal.4th 300 (Hansen). (Tabios, 67 Cal.App.4th at pp. 9-10, citing Hansen, at pp. 309-310.)
In 2009, the California Supreme Court decided People v. Chun (2009) 45 Cal.4th 1172 (Chun), announcing that the crime of shooting at an occupied vehicle now "merges" with the homicide, such that it can no longer provide a predicate for application of the felony-murder rule. In doing so, Chun expressly overruled Hansen and disapproved Tabios. (Chun, at p. 1199.)
Lucero filed a petition for habeas corpus in the trial court asking that the judgment be vacated. He asserted that, under Chun, instructing the jury on felony-murder was both erroneous and prejudicial under the facts of his case. When the trial court denied the petition, Lucero renewed his petition in this court, seeking the same relief. We issued an order to show cause.
Reaching the merits of the habeas petition, we shall conclude that Lucero's petition was not untimely and that Chun should be given retroactive application. However, we also determine that, based on the trial record, any error in instructing the jury on the felony-murder rule was not prejudicial. We shall therefore deny the petition.
The following facts are taken verbatim from our opinion in Tabios. "Defendant George Tabios, Jr. (hereinafter referred to as Tabios or George), is a teenager and, at the time of this incident, lived with his family in Stockton. Family members had previously been harassed, threatened, and physically attacked by a local gang known as Li'l Unity. In November 1994, the family's house was riddled with more than 20 shots from a drive-by shooting. The house was shot at on a subsequent occasion as well.
"Sometime after midnight on March 26, 1995, several teenagers in the Tabios family gathered outside the house to socialize with friends. George remained inside with his friend, defendant Felix Lucero. A car drove slowly down the street, passed the house, and then turned around. Several of the teenagers were sure the car was occupied by members of Li'l Unity intent on shooting at the Tabios house. One of George's cousins ran inside, yelling to George and Lucero that Li'l Unity was 'rolling up.' George and Lucero ran out of the house, armed with rifles pulled from under George's bed.
"The car started toward the Tabios house but then backed up when one of the occupants shouted a warning upon seeing the guns. Three shots were fired at the car, two by Tabios and one by Lucero. One of the bullets fired by Tabios killed one of the car's passengers, David Ware.
"Defendants hid their guns in a truck parked in the Tabios back yard.
"The occupants of the car were not in fact members of Li'l Unity. They were on the Tabios's block to visit a friend and were having trouble finding the correct address.
"Defendants were arrested and charged with Ware's murder and two counts of the attempted murder of the other occupants of the car. Tabios was prosecuted as the person who actually shot Ware, and Lucero was prosecuted as an aider and abettor.
"The prosecutor offered alternative theories of liability, including premeditated first degree murder, second degree murder based on an inherently dangerous act, and second degree felony murder. Under the latter theory, the prosecutor contended the underlying offense, shooting into an occupied car (§ 246), could properly be characterized as an inherently dangerous felony.
"Defendants asserted they fired their guns because they feared a drive-by shooting, and meant only to scare the car away. Their arguments centered on a claim of imperfectself-defense,*fn3 ] and they urged a verdict of manslaughter. Alternatively, Lucero also argued that he should be acquitted because he had not aided or abetted Tabios.
"The jury convicted both defendants of one count of second degree murder and two counts of attempted murder, and found defendants personally used a rifle in the commission of the murder." (Tabios, supra, 67 Cal.App.4th at pp. 5-6.)
Lucero was sentenced to a term of 15 years to life on the murder conviction plus three years for the firearm use enhancement. Punishment on the two attempted murder counts was stayed pursuant to section 654.
In a partially published opinion filed on October 5, 1998, this court affirmed the judgments of both Lucero and Tabios. (Tabios, supra, 64 Cal.App.4th at pp. 1, 12.) The California Supreme Court denied review on January 20, 1999 (S074546).
On March 30, 2009, Chun was decided. (Chun, supra, 45 Cal.4th at pp. 1172, 1216.) Rehearing was denied ...