Chun Error: 9th Circuit overturns CSC Finding of harmless error
August 15th, 2016

Chun was convicted of second-degree felony murder based on shooting at an occupied motor vehicle either directly or as an aider and abetter. He appealed, arguing that felony murder was inapplicable under the merger doctrine. He also contended that improperly giving the jury the felony murder instruction allowed the jury to convict him of second-degree murder without finding malice, an element of the crime. The California Court of Appeal agreed and reversed Chun’s murder conviction. People v. Chun, UNPUBLISHED, 155 Cal. App. 4th 170, 65 Cal. Rptr. 3d 738 (Ct. App. 2007). Ultimately the CSC agreed that giving the felony murder instruction was error but held the error harmless. (People v. Chun (2009) 45 C4th 1172, 1199 [when underlying felony is assaultive in nature, felony merges with homicide and cannot be basis of a felony-murder instruction]; see also CC 541A “inserting appropriate “nonassaultive” felon(y/ies).)

Chun sought a writ of habeas corpus from the district court, which denied it. However, the 9th Circuit reversed under the harmless error standard for federal habeas corpus review established in O’Neal v. McAninch, 513 U.S. 432, 436, 115 S. Ct. 992, 130 L. Ed. 2d 947 (1995) and Brecht v. Abrahamson, 507 U.S. 619, 627, 113 S. Ct. 1710, 123 L. Ed. 2d 353 (1993)) holding that the CSC’s finding that the error was harmless beyond a reasonable doubt was objectively unreasonable. (See Davis v. Ayala (2015) 135 S. Ct. 2187, 2198-99.)

The jury  almost certainly based its conviction on Chun having aided and abetted the shooting because it found that Chun was a gang member present at the scene of a gang shooting who did not fire a weapon. The jury acquitted Chun of the felonies of shooting at a vehicle and firing from a vehicle (or aiding or abetting those acts). Both acquittals were inconsistent with the second-degree murder conviction.

When faced with inconsistent verdicts, the courts cannot know which one—the conviction or the acquittal—”the jury ‘really meant.'” United States v. Powell, 469 U.S. 57, 68, 105 S. Ct. 471, 83 L. Ed. 2d 461 (1984). In such cases the jury may have convicted Chun through “mistake [or] compromise,” in which case proper instructions could easily have swayed the outcome. See Powell, 469 U.S. at 65; see also Glasser v. United States, 315 U.S. 60, 67, 62 S. Ct. 457, 86 L. Ed. 680 (1942) see also Strickland v. Washington, 466 U.S. 668, 696, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) (“[A] verdict . . . only weakly supported by the record is more likely to have been affected by errors . . . “];  Parle v. Runnels, 505 F.3d 922, 928 & n.7 (9th Cir. 2007) [the Supreme Court’s analysis in Glasser and Strickland binds all fair-minded jurists].)

Hence the 9th Circuit concluded:

This is precisely the kind of case to which O’Neal’s “grave doubt” holding is meant to apply. We also find the state court’s harmlessness decision objectively unreasonable within the meaning of section 2254(d)(1). No fair minded jurist would conclude that it was correct to find the error harmless beyond a reasonable doubt, given the total absence of evidence of what Chun did to aid and abet and our resulting inability to assess the effect of the instructional error which permitted the jury to convict Chun absent a showing of malice.

Chun v. Lopez, No. 13-16466, 2016 U.S. App. LEXIS 10457, at *1-6 (9th Cir. June 9, 2016)

***Note:  On June 24, the state filed a petition for panel rehearing and rehearing en banc.

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