In re Ferrell CA2/6

Filed 10/22/20 In re Ferrell CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

In re TYREE IRVIN 2d Crim. No. B303028 FERRELL, (Super. Ct. No. BA212763) (Los Angeles County) on Habeas Corpus.

Tyree Irvin Ferrell petitions for a writ of habeas corpus claiming the jury was given an erroneous felony murder instruction along with valid instructions on two other theories of second degree murder. We conclude the error was harmless beyond a reasonable doubt and deny the petition. FACTS Underlying Trial Farrell was charged with first degree murder of Lawrence Rawlings (Pen. Code,1 § 187, subd. (a)), plus a firearm enhancement pursuant to section 12022.53, subdivision (d).

1 All statutory references are to the Penal Code.

Ferrell and Rawlings were friends and members of the “All For Crime” (AFC) gang. On July 12, 1999, AFC and another local gang “40 Piru” got into a fist fight over a gambling debt. Ferrell, Rawlings, and another AFC member, Henry Keith, participated in the fight. Rawlings’s girlfriend, Cussondra Davis, and his cousin, Latesha Rawlings, saw the fight. After the fight was over, Davis saw Ferrell shoot in the direction of the 40 Piru gang members. Davis dropped to the ground and saw Ferrell fire a second shot. When she looked down the street, she saw Rawlings lying on the ground with blood coming from his head. Ferrell dropped the gun and fled. Latesha Rawlings gave testimony similar to Davis’s, except she testified, “As [Ferrell] was shooting, his hand was going all kind of ways, like he couldn’t handle the gun. . . . [H]is hand wasn’t like he had control of the gun. . . .” Ferrell fled to Missouri. Eventually the police arrested him there. He waived his Miranda rights and talked to the police. (Miranda v. Arizona (1966) 384 U.S. 436.) He said that on July 12, 1999, he was with members of his gang and members of the 40 Piru gang. They got into a fight. He said he shot once into the air to stop the fight. As he brought the gun down, it discharged accidentally, hitting Rawlings. Defense Keith testified that he is a member of the AFC gang. He participated in the fight on July 12, 1999. He heard a shot and saw Ferrell holding a gun with his arm straight up in the air. As Ferrell brought his gun down, Keith heard another shot. Keith turned and saw Rawlings on the ground. Ferrell went to Rawlings and said, “I didn’t mean it.” Then Ferrell left the area. Ferrell did not testify.