IN THE SUPREME COURT OF 

CALIFORNIA

In re TYREE FERRELL

on Habeas Corpus.

S265798

April 6, 2023

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 felonymurder theory invalidated by People v. Chun (2009) 45 Cal.4th 

1172 (Chun). The jury’s unadorned guilty verdict does not show 

it avoided 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. The Secretary argues the jury’s 

additional finding — that Ferrell 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 degree 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-murder 
In re FERRELL

Opinion of the Court by Jenkins, J.

2

instructions would have still returned a second degree murder 

verdict. We accordingly grant Ferrell relief pursuant to his 

petition for habeas corpus.

I. FACTS

A. Rawlings Is 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 hugging a 40 Piru nicknamed Diggum 

when she observed Ferrell shoot a gun in the direction of the 40 

Pirus. 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 this same position. No 40 Pirus, however, 

were struck. Instead, Davis saw her boyfriend, Rawlings, lying 

on the ground, bloodied. Davis watched Ferrell drop the gun 

and flee.

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 the 
In 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 

Ferrell’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 ongoing when the 

shooting occurred. 

B. Ferrell Is Convicted.

Though Ferrell was 17 years old at the time he shot 

Rawlings, the juvenile court deemed Ferrell unfit for 

rehabilitation in that system and transferred him to a court of 

criminal jurisdiction. (See Welf. & Inst. Code, § 707.) The 
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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 testify, but his 

statements 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 Rawlings’ 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 occurring during a felony, namely the 

willful discharge 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 degree 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 convicted 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. Jurors

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, which proximately caused great 

bodily injury and death to the victim within the meaning of [the]

Penal Code Section 12022.53(d)” sentencing enhancement. The 

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 argument that the trial court

erroneously instructed jurors on a felony-murder theory. It 

invoked the then-current rule of People v. Robertson (2004) 34 

Cal.4th 156, that an 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.) 
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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 asserts 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. We 

ordered 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-murder 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 consciously disregards danger to human life.

(Id. at pp. 151, 156–157.) Implied malice requires proof of both 

a physical act and a mental state. Physically, a defendant must 
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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, knowing 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, commission 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 grossly negligent manner and, during 

that offense, Rawlings was unlawfully killed, whether 
In 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.)

After Ferrell’s conviction became final, we revisited the 

scope of the second degree felony-murder rule. We held in Chun

that when the underlying felony 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 prosecutions if assaultive felonies

were 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 malice aforethought to every 

assault, merging every assault resulting in death — a great 

majority of all killings — into murder. (Id. at p. 1189.) Such 

“ ‘bootstrapping finds support neither in logic nor in law.’ ” 

(Ibid.) More recently, 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 concedes applies 

retroactively in postconviction proceedings because it alters the 
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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: expressmalice murder and implied-malice murder without the felonymurder shortcut. 

Ferrell’s case, then, presents the type of “alternativetheory 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 when a theory of guilt is 

factually incorrect, meaning the facts put in evidence do not 

support 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.) When, 

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.) We evaluate the prejudice of such 

errors under the heightened standard of Chapman v. California 

(1967) 386 U.S. 18 (Chapman), the same standard of prejudice 

applicable to other instructional errors that misdescribe 

criminal offenses. (Aledamat, at pp. 7–13.)
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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. 13.) In the 

context of alternative-theory errors, this means we reverse

“ ‘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.) 

Harmlessness 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 Cal.5th at pp. 10, 15.) “In 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 

Aledamat, 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”].)

We have applied these 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, 1222–1225; 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 they 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 “other 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; see In re 

Lopez, supra, __ Cal.5th __ [pp. 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 required 

as the intent to discharge a firearm. And the court’s instructions
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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 acknowledges, 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 component:

defendant’s deliberate performance of the act with conscious 

disregard for life, knowing 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 intentional 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.) 

Section 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.”].) Thus, a finding under this section is 

no proxy for the mental component of implied malice murder.
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Opinion of the Court by Jenkins, J.

13

The Secretary contends that even if the jury’s findings 

under section 12022.53, subdivision (d), are not themselves 

“dispositive” of whether Ferrell harbored malice, the jury’s 

findings are nonetheless “informative” on the issue. The 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 as 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 found in favor of the defendant. (In 

re Lopez, supra, __ Cal.5th __ [pp. 23, 39, fn. 8, 41–42];

Aledamat, supra, 8 Cal.5th at pp. 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 skyward. 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, Ferrell 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 “straight 
In re FERRELL

Opinion of the Court by Jenkins, J.

14

up in the air.” In addition, one 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, the 

prosecution never suggested a motive for Ferrell to kill his 

childhood friend and fellow gang member and, furthermore,

conceded, 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. 

Looking 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 could have 

concluded Ferrell intentionally discharged his weapon but 

credited Ferrell’s subjective belief he was pointing the gun to 

“the air” the “whole time,” never at people, and the shooting was 

accidental in this way.2 Although Ferrell’s jurors were 

instructed, per CALJIC No. 2.21.2, that they 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 those 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.”
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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) 61 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 violating 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. The 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 

relationship to that first shot, proximately caused death by
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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 based 

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 satisfies

the physical component of implied malice (People v. Knoller, 

supra, 41 Cal.4th at p. 156), 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 mental 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 

another’s life (see id. at p. 143). 

We have held that when 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 heavily 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 boys 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, the 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, unlike 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. We acknowledge 

shooting into the air has its dangers, which the Legislature 
In re FERRELL

Opinion of the Court by Jenkins, J.

18

recognized in 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, the 

question for us — in walking the “tightrope” of this aspect of 

harmless 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 

“impossible, 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 Assuming 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 would equate with 

malice, but instead acknowledges 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 the 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 Court 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 respondent 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, 2023

__________________________________________________________

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, CA 94702

(510) 524-1093

Lindsay Boyd

Deputy Attorney General

300 South Spring Street, Suite 1702

Los Angeles, CA 90013

(213) 897-2000