In re Hansen

In 1992, a jury convicted Michael Hansen of one count of second degree murder (Pen. Code, § 187, former subd. (a)) 1 and found that Hansen personally used a firearm within the meaning of former section 12022.5, subdivision (a). The jury also convicted Hansen of one count of shooting at an inhabited dwelling. (§ 246.) On appeal, the Supreme Court affirmed Hansen’s conviction. (People v. Hansen (1994) 9 Cal.4th 300, 311 [ 36 Cal.Rptr.2d 609 , 885 P.2d 1022 ] (Hansen).) Rejecting Hansen’s contention to the contrary, the Supreme Court determined that the offense of shooting at an inhabited dwelling did not “merge” with a homicide that results from such a shooting. *911 (Id. at p. 316.) The offense of shooting at an inhabited dwelling could therefore form the basis for a second degree felony-murder conviction. (Ibid.) Fifteen years later, the Supreme Court reconsidered the scope of the second degree felony-murder rule and expressly overruled this holding. (People v. Chun (2009) 45 Cal.4th 1172, 1199 [ 91 Cal.Rptr.3d 106 , 203 P.3d 425 ] (Chun)) In Chun , the Supreme Court determined that the offense of shooting at an inhabited dwelling was “assaultive” in nature, and thus…

I agree with the majority’s conclusion that, in light of People v. Chun (2009) 45 Cal.4th 1172, 1198-1201 [ 91 Cal.Rptr.3d 106 , 203 P.3d 425 ] (Chun), the jury in this case should not have been instructed on a theory of felony murder based on Michael Hansen’s alleged violation of Penal Code section 246. I am also willing to accept that Hansen is entitled to the benefit of the new rule set forth in Chun .

What I cannot join is the majority’s determination Hansen was prejudiced by inclusion of a felony-murder instruction. My principal point of departure is the majority’s application of the harmless beyond a reasonable doubt standard of review for prejudice. Although our California Supreme Court has not considered what standard to apply when, as here, we are engaged in collateral review of a final judgment, we should adopt and apply the more deferential “grave doubt” harmless error standard of review, which governs consideration of similar trial errors when found in federal habeas corpus proceedings. (See Chun, supra, 45 Cal.4th at p. 1204 .) At the very least, the majority should explain why its harmless error analysis departs from the grave doubt standard adopted by the United…

FACTS

We adopt the statement of facts that the Supreme Court articulated in Hansen:

"On September 19, 1991, defendant Michael Hansen, together with Rudolfo

Andrade and Alexander Maycott, planned to purchase $40 worth of methamphetamine.

With that purpose, defendant, accompanied by his girlfriend Kimberly Geldon and

Maycott, drove in defendant's Camaro to an apartment duplex located in the City of San

Diego. Upon arriving at the duplex, defendant pounded on the door of the upstairs

apartment where Christina Almenar resided with her two children. When he received no

response, defendant proceeded to return to his automobile and was approached by

Michael Echaves.

"Echaves resided in the downstairs apartment with Martha Almenar (Christina's

sister) and Martha's two children, Diane Rosalez, thirteen years of age, and Louie

Miranda, five years of age. At the time, Diane and Louie were outside with Echaves

helping him with yard work. In response to a question from Echaves, defendant said he

was looking for Christina. When Echaves stated he had not seen her, defendant asked

whether Echaves would be able to obtain some crystal methamphetamine (speed).…