## IN THE SUPREME COURT OF CALIFORNIA

In re TYREE FERRELL on Habeas Corpus.

S265798

April 6 , 202 3

Justice Jenkins authored the opinion of the Court, in which Chief Justice Guerrero and Justices Corrigan, Liu, Kruger, Groban, and Evans concurred.1 In re TYREE FERRELL

S265798

Opinion of the Court by Jenkins, J.

Jury instructions erroneously permitted the second degree murder conviction of petitioner Tyree Ferrell based on a felony

murder theory invalidated by People v. Chun (2009) 45 Cal.4th 1172 ( Chun ). The jury’s unadorned guilty verdict does not show
it avoid ed this now

- invalid theory. The Secretary of the Department of Corrections and Rehabilitation nevertheless

argues the instructional error was harmless and asks us to uphold Ferrell’s conviction

. T he Secretary argues the jury’s additional finding

— that F errell intentionally discharged a firearm and caused death in committing his offense (Pen. Code, § 12022.53, subd

. (d))

— along with the evidence adduced at trial, show that any rational jury would have found Ferrell guilty under a valid theory of second d egree murder, implied
malice.
We conclude that, whether viewed in isolation or in light of the entire record, the jury’s additional finding 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. The jury could have, consistent with its additional finding, concluded Ferrell shot
Lawrence Rawlings , his childhood friend, while trying to stop a fight without believing he was shooting towards any person.
This scenario would not demand a finding of implied malice. We therefore cannot say beyond a reasonable doubt that a jury properly instructed without the erroneous felony

- murderIn re FERRELL Opinion of the Court by Jenkins, J.

2 instructions would have still returned a second degree murder verdict. We accordingly grant Ferr ell relief pursuant to his petition for habeas corpus.

I. FACTS

A. Rawlings I s Killed.

A gambling dispute incited a fist fight between two Blood gang subsets , “All For Crime” ( AFC ) and “ 40 Piru

. ” These two subsets were “kind of alright” and could “get along” while gambling, but sometimes arguments arose that spilled into fights in the nature of “athletic contests” with “bloody lips, that’s
all.” On this occasion, Ferrell, Ferrell’s friend Lawrence Rawlings, and Henry Keith fought for AFC. Rawlings ’ girlfriend
and cousin both observed the fight

. Cussondra Davis , Rawlings’ girlfriend, believed the fighting was “completely over” and saw gang members shaking hands, hugging, and making up

. Rawlings

, according to Davis’ testimony, had finished hug ging a 40 Piru nicknamed Diggum
when she observed Ferrell shoot a gun in the direction of the 40
Pir us. She described Ferrell as holding his shooting arm at a right angle to his body

— that is, parallel to the ground

— and moving his arm back and forth. Davis saw Ferrell fire a second
shot with his arm in th is same position. No 40 Piru s , however,

were struck . Instead, Davis saw her boyfriend, Rawlings

, lying on the ground , bloodied

. Davis watched Ferrell drop the gun
and fle e

. Latesha Rawlings , meanwhile, saw Ferrell pointing a gun toward her cousin

, Rawlings. She too thought the fighting had stopped. She then saw Ferrell discharge “maybe three shots ”

— his shooting arm outstretched, “bouncing” or “going all kinds of ways like he couldn’t handle the gun.” Rawlings fell to theIn re FERRELL Opinion of the Court by Jenkins, J.

3 ground , and Ferrell ran to him, saying “he was sorry, that he
didn’t mean to do it.”

Ferrell fled the state after the shooting , but when police
located him, he voluntarily spoke to officers. He admitted being at the fight and firing the gun but claimed he “ shot one time into
the air

, and the second time it just went off

. ” He “was trying to break up the fight.” In particular, he hoped to stop a skirmish his friend Rawlings had been losing

. Ferrell asserted he “didn’t point” the gun “at anybody.” Rather, he kept the gun barrel pointed to “ the air ” the “ whole time, ” even as he brought his arm
down from over his head. Rawlings , explained Ferrell, could only have been shot by “accident.” When asked how Rawlings could get shot if Ferrell had been pointing in the air, Ferrell responded, “I don’t know, I just seen him standing there, then he just fell, that’s when I ran to him and I was holding him, and everybody told me I hit him and I left. ” Asked a second time, Ferrell said, “accident, ‘cause he was running and everything was just . . . I don ’ t know it was just.”
Henry Keith , who had fought alongside Ferrell, believed Ferrell’s first shot was into the air. He heard the first shot, saw
F errell’s arm coming down, and heard a second shot. He “didn’t see nothing aimed at nobody.” Keith then saw Rawlings on the ground. Ferrell went over to Rawlings and said he “didn’t mean it.” Keith believed some fighting was still on going when the shooting occurred.

B. Ferrell I s Convicted.
Though Ferrell was 17 years old at the time he shot
R awlings

, the j uvenile court deemed Ferrell unfit for rehabilitation in that system and transferred him to a court of criminal jurisdiction

. ( S ee Welf

. & Inst. Code, § 707

. ) TheIn re FERRELL Opinion of the Court by Jenkins, J.

4 People then charged Ferrell with murder (Pen

. Code, § 187, subd. (a)) and alleged sentencing enhancements related to his use of a firearm (Pen

. Code, § 12022.53, subds., (b)

– (d) )

. 1 Davis
and Latesha Rawlings testified for the prosecution while Keith
testified for the defense

. Ferrell did not testi fy

, but his

statement s to police were admitted into evidence. Amongst other witnesses, a medical examiner testified that assuming Rawlings was upright when shot, the bullet that struck him travelled parallel to the ground. Only if Rawling s ’ head had
been angled such that its left side faced skyward could the bullet have come from the sky.
The prosecutor, in closing argument, told jurors they could
find Ferrell guilty of first or second degree murder , or, at minimum, involuntary manslaughter

. The prosecutor offered
three possible theories of second degree murder : (1) express malice murder

, requiring an intent to kill ; (2) implied malice murder, requiring an intentional act whose natural consequences are dangerous to human life, and which was deliberately performed with knowledge of the danger to, and with conscious disregard for, human life; and (3) felony murder

, premised on the killing occurr ing during a felony , namely the
willful discharg e of a firearm in a grossly negligent manner in
violation of Penal Code section 246.3

. The court instructed the jury on each of these theories of second degree murder, as well

as first d egree murder (see Pen. Code, § 189, subd. (a) [a “willful,

1 The People also charged Ferrell with assault with a firearm ( Pen. Code, § 245, subd. (a)(2)) based on him, two weeks before he killed Rawlings, shooting another victim in the groin after a fight that started over a possibly stolen bicycle. Ferrell

was con victed of this charge, but does not challenge that conviction here.In re FERRELL Opinion of the Court by Jenkins, J.

5 deliberate, and premeditated killing”]) and involuntary manslaughter ( id. , § 192 [“Manslaughter is the unlawful killing of a human being without malice”]), providing versions of
CALJIC Nos. 8.10, 8.11, 8.20, 8.30, 8

. 31, 8.32 , and 8.45

. The court also explained the doctrine of transferred intent, whereby one who “attempts to kill a certain person, but by mistake or inadvertence kills a different person” is guilty as if “the person originally intended to be killed, had been killed.”
The jury acquitted Ferrell of first degree premeditated
murder but found him guilty of second degree murder. J ur ors did not specify which theory or theories of second degree murder supported their verdict

. They did

, however

, find that Ferrell, in killing Rawlings, had “personally and intentionally discharged a firearm, to wit, a handgun, w hich proximately caused great bodily injury and death to the victim within the meaning of [the] Penal Code Section 12022.53(d)” sentencing enhancement. T he trial court imposed a sentence of 40 years to life for the murder of Rawlings and the true finding on the enhancement

. The Court of Appeal affirmed Ferrell’s second degree
murder conviction

. ( People v. Ferrell (Sep. 27, 2004, B168679) [nonpub. opn.] .) It rejected his argu ment that the trial court erroneously instruct ed jurors on a felony

- murder theory

. It
invok ed the then

- current rule of People v. Robertson (2004) 34 Cal.4th 156, that a n assaultive felony , such as willful discharge of a firearm under section 246.3, could support a felony

- murder
conviction so long as the felonious act had a purpose “collateral” to the killing. Because Ferrell’s “ jury could reasonably
conclude ” he fired his gun “ intentionally as a warning

. . . the felony

- murder instruction was proper. ” We denied review. ( People v. Ferrell

, supra , review den. Dec. 22, 2004, S129037.)In re FERRELL Opinion of the Court by Jenkins, J.

6 C. Ferrell ’s Petitions for Habeas Corpus
Five years after Ferrell’s direct appeal

, we overruled
Robertson and concluded assaultive felonies

, “ such as a violation
of section 246 or 246.3

, . . . cannot be the basis of a felony

- murder instruction.” ( Chun

, supra , 45 Cal.4th at p. 1200; see also id. at

pp. 1200

– 1201 .)

Ferrell

, relying on Chun

, has sought a writ of habeas

corpus. He assert s that his jury received felony

- murder instructions predicated on a section 246.3 violation , that these instructions allowed the jury to convict on an invalid theory of second degree murder

, and that

, therefore

, his murder
conviction cannot stand. Ferrell first filed a petition for habeas corpus in the trial court , which was summarily denied, and a petition in the Court of Appeal

, which was denied on its merits

. ( In re Ferrell (Oct. 22, 2020, No. B303028) [nonpub. opn.] .)
Ferrell then filed a petition for habeas corpus in this court . W e order ed the Secretary to show cause why relief should not be granted and now address the merits of Ferrell’s claim.

II. DISCUSSION

A. Jurors at Ferrell’s Trial Received Instructions on an Invalid Second Degree Felony

- m urder Theory.
Second degree murder is an unlawful killing with malice aforethought

, but without the premeditation or deliberation required for first degree murder . ( People v. Knoller (2007) 41 Cal.4th 139, 151.) Malice may be express or implied. ( Ibid .) Malice is express when a defendant intends to kill and implied
when a defendant conscious ly disregard s danger to human life

. ( Id

. at p p

. 151, 156

– 157

. ) I mplied malice requires pro of of both a physical act and a mental state

. Physically

, a defendant mustIn re FERRELL Opinion of the Court by Jenkins, J.

7 perform an act whose natural consequences are dangerous to
life , or put another way, defendant must perform “an act that involves a high degree of probability ” of death

. ( Id. at p. 156 ; see also People v. Nieto Benitez (1992) 4 Cal.4th 91, 111.) To establish the mental state required for implied malice, the
defendant must deliberately perform the act with a conscious disregard for life

, know ing the act endangers another ’s life

. ( Knoller , at p. 143 [malice is implied when the act dangerous to life “ ‘ “ was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life. ” ’ ”] ; Chun, supra, 45 Cal.4th at p.
1181 ; Nieto Benitez

, at p. 104 [explaining the evolution of the phrasing of the implied malice components ].)
Under the second degree felony

- murder rule, as our cases have described it

, c ommission of a felony “ ‘ inherently dangerous
to human life ’ ” can substitute for malice

. ( Chun

, supra , 45 Cal.4th at p. 1182 .) This rule curtails the malice inquiry

, obviating the need for the jury to “further examin[e] the
defendant ’ s mental state.” ( Ibid. ; see People v. Patterson (1989) 49 Cal.3d 615, 626 [“The felony

- murder rule generally acts as a
substitute for the mental state ordinarily required for the offense of murder”] ; People v. Satchell (1971) 6 Cal.3d 28, 43 [describing the rule as a “short

- circuit”] ; People v . Ireland (1969) 70 Cal.2d 522, 538 [“[A] second degree felony

- murder instruction” relieves

“ ‘the jury of the necessity of finding one of the elements of the
crime of murder’ [citation] , to wit, malice aforethought”].)

Pursuant to the second degree felony

- murder rule

, Ferrell’s jury was instructed to convict him of second degree
murder if Ferrell intentionally committed the felony of willfully discharging a firearm in a gross ly negligent manner and , during that offense, Rawlings was unlawfully killed, whetherIn re FERRELL Opinion of the Court by Jenkins, J.

8 intentionally, unintentionally, or accidentally. The Legislature enacted section 246.3’s prohibition on grossly negligent firearm discharges specifically to dissuade celebratory, skyward gunshots in an urban setting. (See People v. Ramirez (2009) 45 Cal.4th 980, 987

– 988; People v. Thomas (2011) 52 Cal.4th 336, 363.)

A fter Ferrell’s conviction became final, we revisited the scope of the second degree felony

- murder rule

. We held in Chun
that when the underlying felon y is assaultive

, such as the willful discharge felony in section 246.3 , that felony always “merges with the homicide” and cannot support a felony

- murder
conviction

. ( Chun

, supra , 45 Cal.4th at p. 1200.) We overruled cases taking a contrary approach to merger , including those that
had allowed felony

- murder prosecution s if assaultive felon ies

w ere committed with a purpose collateral to the killing. ( Id. at pp. 1199

– 1201

. ) Applying the felony

- murder rule to any assault

, we said, would stretch the rule “beyond its required application

. ” ( Id. at p. 1200.) It would impute m alice aforethought to every assault

, merging every assault resulting in death

— a great majority of all killings

— into murder

. ( I d. at p. 1189

. ) Such

“ ‘bootstrapping finds support neither in logic nor in law.’ ” ( Ibid. ) More r ecently, our Legislature has gone farther than
Chun

, saying without varnish that “[m]alice shall not be imputed to a person based solely on his or her participation in a crime.” (Senate Bill No. 1437 (2017

– 2018 Reg. Sess.) § 2 ; Pen. Code, § 188, subd. (a)(3) .)

B. Alternative

- Theory Error Calls for Harmless Error Analysis

. In light of Chun

, which as the Secretary concede s applies retroactively in postconviction proceedings because it alters theIn re FERRELL Opinion of the Court by Jenkins, J.

9 conduct punishable as second degree murder (see In re Martinez (2017) 3 Cal.5th 1216, 1222, 1224

– 1225)

, the parties agree Ferrell’s jury should not have received instructions on felony
murder , and Ferrell’s conviction would be improper if based solely on that theory. Ferrell’s jury , however, also received
instructions on valid theories of second degree murder : express

malice murder and implied

- malice murder without the felony

murder shortcut

. Ferrell’s case , then, presents the type of “alternative

theory error” that occurs when “ ‘ a trial court instructs a jury on two theories of guilt, one of which was legally correct and one legally incorrect

. ’ ” ( People v. Aledamat (2019) 8 Cal.5th 1, 12 ( Aledamat ) ; see id. at p. 7
, fn. 3 & p. 10 ; see People v. Chiu (2014) 59 Cal.4th 155, 167, superseded by statute on another ground,
as noted in People v. Gentile (2020) 10 Cal.5th 830, 849.) We acknowledged in Aledamat that w hen a theory of guilt is factually incorrect, meaning the facts put in evidence do not

suppo rt it, jurors are equipped to detect the shortcoming in proof and reject the unsupported theory. ( Aledamat , at p. 7.) When a theory of guilt is legally incorrect, however, we confront an incorrect statement of law. Jurors are not equipped to detect
and account for such errors; instead, jurors are told to take the law only from the court’s instructions. ( Id. at pp. 7

– 8 .) W hen, as here, an alternative theory is legally incorrect, instructions on that theory violate a defendant’s constitutional right to “a jury properly instructed in the relevant law

. ” ( In re Martinez
, supra , 3 Cal.5th at p. 1224

. ) W e evaluate the prejudice of such

errors under the heightened standard of Chapman v. California (1967) 386 U.S. 18 ( Chapman ) , the sam e standard of prejudice applicable to other instructional errors that misdescribe
criminal offenses. (

Aledamat , at pp. 7

– 13

. )In re FERRELL Opinion of the Court by Jenkins, J.

10 Under Chapman ’s familiar standard, we reverse a conviction “ unless, after examining the entire cause, including
the evidence, and considering all relevant circumstances, ” the reviewing court “ determines the error was harmless beyond a reasonable doubt.” (

Aledamat

, supra , 8 Cal.5th at p. 1 3 .) In the
context of alternative

- theory error s, this means we revers e

“ ‘ unless the reviewing court concludes beyond a reasonable
doubt that the error did not contribute to the verdict. ’ ” ( Id. at p. 10, quoting Chun, supra , 45 Cal.4th at p. 1201

. )

H armless ness can be shown “ ‘ if the jury verdict on other points effectively embraces ’ ” the valid theory, “ ‘ or if it is impossible, upon the evidence, to have found what the verdict
did find without finding ’ ” the facts underlying the valid theory
as well. ( Chun, supra , 45 Cal.4th at p. 1204; see Aledamat

, supra , 8 C al.5th at pp. 10, 15.) “ I n determining this impossibility or, more generally, whether the error was harmless, the reviewing court is not limited to a review of the verdict itself.” (

Aledamat , at p. 13.) “[I]f ‘ “ [n]o reasonable jury ” ’
would have found in favor of the defendant on the” valid theory, “given the jury’s actual verdict and the state of the evidence, the error may be found harmless beyond a reasonable doubt.” ( In

re Lopez (

April 3 , 2023, S258912 ) __ Cal.5th __ [p. 23] , quoting
Aledama t , at p. 15; accord Neder v. United States (1999) 527 U.S. 1, 19 [“[A] court, in typical appellate

- court fashion, asks whether the record contains evidence that could rationally lead to a contrary finding with respect to the omitted element”].)

W e have app l ied the se harmless error principles when reviewing alternative

- theory error on both direct appeal and , as here, on habeas corpus

. ( In re Martinez
, supra , 3 Cal.5th at pp.
1218 , 1222

– 122 5 ; accord Hedgpeth v. Pulido (2008) 555 U.S. 57,
61 .)In re FERRELL Opinion of the Court by Jenkins, J.

11 C. The Section 12022.53 , subdivision (d) Finding , Combined with the Evidence at Trial, Does Not
Render the Error Harmless

. We now turn to whether the erroneous felony

- murder instructions given to Ferrell’s jury were harmless. The Secretary argues the y were , because the jury’s true finding on the Penal Code section 12022.53 , subdivision (d) sentencing
enhancement

, combined with the evidence presented at trial,
establishes implied malice murder.
Generally speaking, a sentencing enhancement finding is some “o ther point[]” or “other aspect[]” of a jury’s verdict that could “effectively embrace[]” findings necessary to maintain a conviction. ( Chun

, supra , 45 Cal.4th at pp. 1204

– 1205; s ee In re Lopez
, supra , __ Cal.5th __ [p p

. 32

– 35 ] [assessing the impact of

a gang

- murder special circumstance]; People v. Covarrubias (2016) 1 Cal.5th 838, 902, fn. 26 [ verdicts on other crimes and special circumstance findings conclusively established first degree felony murder]. )
The enhancement here, section 12022.53, subdivision (d),
increases the sentence of anyone who “in the commission of a felony specified,” murder included, “personally and intentionally discharges a firearm and proximately causes

. . . death.” (Pen

. Code, § 12022.53, subd. (d) ; see id. at subd. (a) .) The trial court instructed Ferrell’s jury on this enhancement using a version of CALJIC No. 17.19.5, telling jurors if they found him guilty of murder, they had to “determine whether the defendant intentionally and personally discharged a firearm and proximately caused death to a person in the commission of that felony

. ” The court ’s instructions described the intent r equired as the intent to discharge a firearm . And t he court ’s instruction sIn re FERRELL Opinion of the Court by Jenkins, J.

12 defined an act proximately causing death as one that “sets in motion a chain of events that produces ” death “ as a direct, natural and probable consequence of the act,” “without which
the death would not have occurred.” (See People v. Bland (2002) 28 Cal.4th 313, 333

– 338 [ discussing proximate cause ].)

As the Secretary acknowledge s , findings under section
12022.53 , subdivision (d) , do not, on their own , encompass the
definition of implied malice murder. (See People v. Offley (2020) 48 Cal.App.5th 588, 598.) Recall that implied

- malice murder has a physical component: an act whose natural consequences are dangerous to life. And it has a mental componen t: defendant’s deliberate performance of the act with conscious disregard for life, know ing the act endangers another’s life. ( Chun

, supra , 45 Cal.4th at p. 1181. ) The mental component calls for a subjective inquiry into a defendant’s state of mind and requires “a determination that the defendant actually appreciated the risk involved, i.e., a subjective standard.” ( People v. Watson (1981) 30 Cal.3d 290, 296

– 297 .) The mental component may be absent even if defendant’s int entional acts are inherently dangerous in the abstract or would appear risky to a reasonable person. ( Ibid .; People v. Ochoa (1993) 6 Cal.4th 1199, 1210; People v. Nieto Benitez

, supra , 4 Cal.4th at p. 107.)

S ection 12022.53 , subdivision (d), requires only an intent to discharge a firearm

, not subjective awareness of a risk or disregard for life

. (See People v. Offley

, supra , 48 Cal.App.5th at p. 598 ; People v. Lucero (2016) 246 Cal.App.4th 750, 759

– 760;

see generally In re Tameka C. (2000) 22 Cal.4th 190, 199 [“[W]hen the Legislature intends to require proof of a specific intent in connection with a sentence enhancement provision, it has done so explicitly.”].) Th us, a finding under this section is no proxy for the mental component of implied malice murder.In re FERRELL Opinion of the Court by Jenkins, J.

13 T he Secretary contends that even if the jury’s findings under section 12022.53, subdivision ( d ), are not themselves

“ dispositive ” of whether Ferrell h arb o red malice

, the jury’s findings are nonetheless “ informative” on the issue. T he jury’s finding , says the Secretary, of an intentional gunshot proximately causing death during commission of murder , when
considered with the evidence presented at trial

, establish that
Ferrell not only intentionally shot a firearm, but must have intentionally shot towards people

, which the Secretary equates
with malice

. We disagree

. The evidence of how Ferrell shot Rawlings a s well as Ferrell’s mental state in doing so was in conflict

. Given the
standard of review for alternative

- theory error, we do not view the evidence supporting the valid theory in the light most favorable to the prosecution, but instead consider whether a reasonable jury, given the findings actually made and the state of the evidence, could have fou nd in favor of the defendant. ( In

re Lopez
, supra , __ Cal.5th __ [p p . 23 , 39
, fn. 8, 41

– 42 ] ; Aledamat

, supra , 8 Cal.5th at p p . 10 , 15

. ) To be sure, prosecution witnesses testified that Ferrell shot Rawlings after
the fight was over and that Ferrell only shot towards Rawlings and the gang members

, not s ky ward . Ferrell , however, and his
fellow gang member , Keith, both asserted the fighting was ongoing when Ferrell shot

. In Ferrell ’s statement to police

, which the jury considered as evidence, Ferrel l stated he only intentionally fired once into the sky to stop the fighting and the gun “went off” a second time ; he kept the gun barrel pointing skyward “the whole time

, ” including as he lowered his arm ; he never pointed the gun at anybody ; and he shot his friend accidentally. Keith ’s testimony corroborated Ferrell’s statement to police in that Keith agreed Ferrell’s first shot was “straightIn re FERRELL Opinion of the Court by Jenkins, J.

14 up in the air. ” In addition, o ne of the prosecution witnesses
testified that Ferrell had trouble controlling the gun. This witness and Keith both agreed that Ferrell expressed surprise after the killing , saying he “didn’t mean it.” Indeed, t he prosecution never suggested a motive for Ferrell to kill his
childhood friend and fellow gang member and , furthermore,
conced ed , in argument, the rivalry between the gang subsets “wasn’t strong

, ” suggesting there was similarly no clear motive
for Ferrell to have aimed at members of the other subset

. L ooking at this conflicting evidence, jurors could have

, consistent with the intentional discharge finding, reasonably rejected the factual premise

— a gunshot intentionally fired at people

— that the Secretary equates with malice. Even if jurors ultimately rejected the youthful Ferrell’s story that the second discharge simply “went off” by accident

, jurors co uld have
concluded Ferrell intentionally discharged his weapon but
credit ed Ferrell’s subjective belief he was pointing the gun to “the air” the “whole time

, ” never at people, and the shooting was
accident al in this way. 2 Although Ferrell’s jurors were instructed, per CALJIC No. 2.21.2, that the y could reject a witness’s testimony in its entirety if a witness was “willfully false in a one material part,” the instruction did not so require. Jurors remained free to pick and choose t hose portions of evidence they found credible, “ ‘ weaving a cloth of truth ’ ” from available materials. ( Stevens v. Parke, Davis & Co. (1973) 9

2 The Court of Appeal, when affirming Ferrell’s conviction, adopted this view. It concluded instructions on felony murder had been proper given the evidence at trial, because “although Ferrell claimed the shot that killed Rawlings was fired accidentally, the jury could reasonably conclude it was fired intentionally as a warning.”In re FERRELL Opinion of the Court by Jenkins, J.

15 Cal.3d 51, 68; People v. Riel (2000) 22 Cal.4th 1153, 1182 [noting jurors may believe truth lies “between” the differing testimony of witnesses]; Estate of Gilliland (1971) 5 Cal.3d 56, 60 [the “trier of fact was not required to make a selection between the respective testimony of the witnesses on one side or the other in its entirety”]; People v. Robinson (1964) 6 1 Cal.2d 373, 389 [jurors may “accept one portion of a witness ’ s testimony while rejecting another”].)
Assuming the jury took the view that Ferrell intentionally discharged the fatal shot believing he was aiming skyward

, the jury could have readily found Ferrell guilty under the second degree felony

- murder theory Chun invalidated, premised on
him violati ng section 246.3

. 3 Under this view, a second degree felony

- murder conviction would also harmonize with the jury’s section 12022.53, subdivision (d) finding, because Ferrell would have, in the commission of that crime, intentionally discharged a firearm and proximately caused death

. 4 In addition, a second

3 The parties do not dispute that if Ferrell intentionally discharged a warning shot amidst a gang fist fight it could violate Penal Code section 246.3. T he parties’ closing arguments and jury instructions allowed this possibility. We do not address the question further.

4 Ferrell, pressing the theory that the fatal shot was instead an accidental discharge that more plainly lacked malice because it simply “went off,” argues jurors could have, consistent with this theory and as instructed, found the section 12022.53, subdivision (d) enhancement true by finding Ferrell’s first, intentional discharge caused the second, fatal shot , and, in this way, proximately caused Rawlings’ death

. Ferrell also argues jurors could have found the enhancement true if they found he fired the first, intentional shot and then, without any relations hip to that first shot, proximately caused death byIn re FERRELL Opinion of the Court by Jenkins, J.

16 degree felony

- murder theory would comfortably fit between, on the one hand, the jury’s rejection of first degree murder

— a murder with intent to kill and deliberation or premeditation

— and the jury’s rejection of an accidental shooting without malice warranting either an involuntary manslaughter conviction or an outright acquittal.
At the same time, the jury would have avoided the requirement to consider malice, and its verdict, standing alone, would not have “effectively embrace[d]” that concept. ( Chun

, supra , 45 Cal.4th at p. 1204.) Moreover, because a rational jury

, consistent with a finding under section 12022.53, subdivision (d)

, could find Ferrell intended to shoot only skyward, it would not have been “impossible, upon the evidence,” for such a jury to reject implied malice and a second degree murder verdict base d on that theory. ( Ibid. ; People v. Merritt (2017) 2 Cal.5th 819,
827 , 832; accord Neder v. United States

, supra , 527 U.S. at pp.
19

– 20.) Putting aside the question of whether a skyward shooting carries a “high probability of death ” and thus satisfie s the physical component of implied malice ( People v. Knoller

, supra , 41 Cal.4th at p. 1 56)

, such a jury could have found Ferrell

accidentally discharging the second. According to Ferrell

, when jurors were instructed to find the enhancement true if

“ defendant intentionally and personally discharged a firearm and proximately caused death to a person in the commission of that felony

, ” they were not asked to decide , and so did not decide, whether an intentional discharge itself directly caused death

. We do not address what precise causal link the jury instructions here required, the instructions’ adequacy

, or the plausibility of a first, intentional warning shot proximately causing an accidental but fatal discharge. As we explain in the main text, a jury could have concluded Ferrell lacked the men tal state necessary for implied malice murder even if the fatal shot was deemed intentional.In re FERRELL Opinion of the Court by Jenkins, J.

17 to be lacking the mental component of implied malice

— a conscious disregard for life, knowing one’s act endangers

ano ther’s life (see id . at p. 143)

. W e have held that w hen evidence allows the conclusion that a defendant “shot to frighten

. . . but had no intention of killing or injuring anyone and did not aim at them, the jury could have found defendant guilty of involuntary manslaughter”

— a killing without malice

— and instructions on that theory had to be given upon prosecution for murder. ( People v. Carmen (1951) 36 Cal.2d 768, 772, 774; see People v.
McGee (1947) 31 Cal.2d 229, 238 [discharging a pistol with intent to frighten could be involuntary manslaughter]; cf. People v. Pshemensky (1966) 244 Cal.App.2d 154, 155

– 156 [involuntary manslaughter conviction affirmed when defendant shot a rifle “in the heavi ly populated Hollywood area” but intending to shoot birds in an avocado tree]; People v. Nuno (1928) 89 Cal.App. 1 [ affirming grant of new trial after manslaughter conviction where evidence showed defendant only intended to shoot gun into ground to scare b oys stealing fruit from his orchard and never aimed at them or pointed his gun in their direction].) In
Chun

, by contrast, we concluded that because a jury found
defendant had the “ specific intent ” to “ shoot [] at an occupied
vehicle

, ” and did so at close range in violation of Penal Code section 246, th e jury would have necessarily found defendant
had the mental state , in addition to having performed the physical act

, required for implied malice murder. ( Chun

, supra , 45 Cal.4th at p. 1205 , italics omitted .)
Here, u nlike in Chun , it is not clear Ferrell was ever aiming at a specific target and may have only believed, as he claimed, that he was shooting skyward. W e acknowledge shooting into the air has its dangers, which the LegislatureIn re FERRELL Opinion of the Court by Jenkins, J.

18 recognized i n adopting Penal Code section 246.3

. 5 ( See People
v. Ramirez
, supra , 45 Cal.4th at pp. 987

– 988

. ) But it is the jury’s province , in a homicide case, to assess that danger

, probe defendant’s state of mind , and determine whether or not a
defendant killed with implied malice

. Whether jurors might
have , if directly asked, found Ferrell harbored implied malice is

, as we have noted, a separate question

, and it is not the one before us. (See People v. Mil (2012) 53 Cal.4th 400, 417

– 419 [distinguishing between substantial evidence of a mental state and evidence of a mental state so convincing that no rational factfinder would reject it].) If we look at the evidence, t he question for us

— in walking the “tightrope” of this aspect of
harm less error review where we must avoid “displacing the jury as finder of fact” on contested issues ( Aledamat

, supra , 8 Cal.5th at p. 17 (conc. & dis. opn. of Cuéllar, J.); see Neder v. United
States

, supra , 527 U.S. at pp. 17

– 19)

— is whether it was “imposs ible, upon the evidence, to have found what the verdict
did find ,” namely an intentional discharge, without also finding implied malice ( Chun

, supra , 45 Cal.4th at p. 1204). It was not.
Because a rational factfinder

, consistent with a finding under section 12022.53, subdivision (d)

, could have rejected malice and

5 A ssuming Ferrell’s jury found he committed the willful discharge felony necessary for a felony murder verdict

, the Secretary has not argued that such a finding w ould equate with malice, but instead acknowledg e s the willful discharge felony requires the lesser mental state of gross negligence. (See Pen. Code, § 246.3 , subd. (a) [“any person who willfully discharges a firearm in a grossly negligent manner”]; People v. Watson
, supra , 30 Cal.3d at p. 296 [“Implied malice contemplates a subjective awareness of a higher degree of risk than does gross negligence, and involves an element of wantonness which is absent in gross negligence.”].)In re FERRELL Opinion of the Court by Jenkins, J.

19 rendered a different verdict but for the erroneous felony murder instructions, Ferrell’s second degree murder conviction cannot be affirmed by looking to the evidence

. ( In re Lopez
, supra , __ Cal.5th __ [p. 23] .)
Ultimately, the Secretary has not demonstrated the harmlessness of instructing Ferrell’s jury with a now

- invalid theory of felony murder. Neither the section 12022.53, subdivision (d) finding nor th e evidence cure this error. Ferrell, therefore, is entitled to reversal of his second degree murder
conviction.

III. DISPOSITION
Ferrell has established entitlement to habeas corpus relief on his claim that his jury received instruction on an invalid theory of second degree murder. We therefore grant relief and vacate the judgment against Ferrell in Los Angeles County Superior Cour t Case No. BA212763 insofar as it rests on Ferrell’s conviction for second degree murder. Upon finality of our opinion, the Clerk of the Supreme Court is to remit a certified copy of the opinion to the Los Angeles County Superior Court for filing, and res pondent is to serve a copy of the opinion on the prosecuting attorney. (See Pen. Code, § 1382, subd. (a)(2).)
JENKINS, J.

We Concur: GUERRERO, C. J. CORRIGAN, J. LIU, J. KRUGER, J. GROBAN, J. EVANS, J.See next page for addresses and telephone numbers for counsel who

argued in Supreme Court.

Name of Opinion In re Ferrell

__________________________________________________________
Procedural Posture (see XX below) Original Appeal Original Proceeding XX Review Granted (published) Review Granted (unpublished) Rehearing Granted

__________________________________________________________ Opinion No. S265798 Date Filed: April 6
, 202 3

__________________________________________________________
Court: Superior County: Los Angeles Judge: Marsha N. Revel

__________________________________________________________
Counsel:

Clifford Gardner , under appointment by the Supreme Court

, for Petitioner Tyree Ferrell

.

Rob Bonta , Attorney General, Lance E. Winters , Chief Assistant Attorney General, Susan Sullivan Pithey , Assistant Attorney General, Louis W. Karlin

, David W. Williams

, and Lindsay Boyd

, Deputy Attorneys General, for Respondent Department of Corrections and Rehabilitation

.Counsel who argued in Supreme Court (not intended for

publication with opinion):

Clifford Gardner Attorney at Law 1448 San Pablo Avenue Berkeley, C A 94702 (510) 524

- 1093

Lindsay Boyd Deputy Attorney General 300 South Spring Street, Suite 1702 Los Angeles, CA 90013 (213) 897

- 2000