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Murder Conviction Vacated-Harmless Error

In re Ferrell Docket: S265798, Opinion Date: April 6, 2023. A gambling dispute incited a fistfight between gang subsets. Witnesses later testified that after they thought the fight was over, they saw Ferrell shoot a gun, then saw Rawlings, lying on the ground, bloodied. Ferrell dropped the gun and fled. Ferrell later claimed he had only shot once, into the air. The juvenile court transferred Ferrell, age 17, to a court of criminal jurisdiction, where he was charged with murder, with alleged sentencing enhancements for use of a firearm. The Court of Appeal affirmed Ferrell’s second-degree murder conviction and 40-year sentence. The California Supreme Court granted Ferrell habeas relief. The jury instructions erroneously permitted the conviction based on a felony-murder theory invalidated in 2009. The unadorned guilty verdict does not show that the jury avoided that theory. The court rejected an argument that the jury’s additional finding — that Ferrell intentionally discharged a firearm and caused death in committing his offense — along with other evidence, establish that any rational jury would have found Ferrell guilty under a valid theory of second-degree murder, implied malice. Even 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 finding, concluded Ferrell shot Rawlings while trying to stop a fight without believing he was shooting toward any person.


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