In re Lucero

*41 Opinion

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 [ 78 Cal.Rptr.2d 753 ] (Tabios). 1 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.) 2 (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 [ 36 Cal.Rptr.2d 609 , 885 P.2d 1022 ] (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 [ 91 Cal.Rptr.3d 106 , 203 P.3d 425 ] (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…