Case Information
*1 Filed 4/30/19; See Dissenting Opinion
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT
DIVISION TWO
E068801 In re GREGORY WHITE
(Super.Ct.No. RIC1512917) on Habeas Corpus. OPINION ORIGINAL PROCEEDINGS; petition for writ of habeas corpus. Richard A.
Erwood, Judge. Petition is denied.
John P. Dwyer, under appointment by the Court of Appeal, for Petitioner. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina, Meagan J. Beale, and Lynne G. McGinnis, Deputy Attorneys General, for Respondent.
Petitioner Gregory White challenges the constitutionality of his conviction for
second degree felony murder (Pen. Code, § 187)
1
on the basis of the United States
1
All further citations are to the Penal Code, unless otherwise indicated.
*2
Supreme Court’s decision in
Johnson v. United States
(2015) __ U.S. __,
2 After briefing was complete, this court issued a tentative opinion preparatory to oral argument. The tentative opinion was based on the law existing at the time of petitioner’s offense and trial. We became aware that effective January 1, 2019, after the tentative opinion issued but before oral argument, Senate Bill 1437 (2017-2018 Reg. Sess.) (SB 1437) amended sections 188 and 189 and created new section 1170.95. The amendments to sections 188 and 189 together change the felony murder rules and the “natural and probable consequences theory” when convicting a participant in a felony for murder, but who did not actually kill the victim. Of interest here, effective January 1, 2019, the second degree felony-murder rule in California is eliminated. However, the change does not automatically apply to convictions that are final before the effective date, like petitioner’s. Instead, section 1170.95 establishes a procedure for such defendants to apply to the sentencing superior court to have their murder conviction vacated and be resentenced on any remaining counts, where certain conditions are met. (§ 1170.95, subd. (a)(1)-(3).) In light of these amendments, the Attorney General filed a letter brief here on January 30, 2019, the week before oral argument, formally providing notice to the court and counsel of the changes. At oral argument on February 5, 2019, counsel for petitioner stated that petitioner had not yet petitioned for relief under SB 1437 but would do so within 14 days. The Attorney General pointed out that until petitioner obtains relief, if he does, he is still subject to the second degree felony-murder conviction; if relief is denied, he remains subject to the conviction and the pre-SB 1437 law. Further, the Attorney General represented that the SB 1437 petition process in superior court is just beginning and that early experience is that the process may take months to complete. Counsel for petitioner did not contradict the time issue. We accept it, arguendo, at face value. Additionally, we are still subject to our Supreme Court’s show-cause order on petitioner’s challenge under Johnson , discussed post . It is worth mentioning that SB 1437 does not address either or its constitutional vagueness analysis. In other words, this issue is not moot. Accordingly, we will not hold this decision in abeyance but deny the petition on the merits as discussed herein. Finally, after oral argument and while our opinion was circulating for comment, Division 8 of the Second District Court of Appeal issued its opinion in People v. Frandsen (Apr. 4, 2019, B280329) __ Cal.App.5th __ [2019 Cal.App. LEXIS 309] ( Frandsen ), in which that court found that California’s second degree felony-murder rule is not unconstitutionally vague under . ( Frandsen , at *22-*35.) As described herein, our decision need not reach that ultimate constitutional issue and we offer no opinion as to Frandsen .
I
FACTUAL BACKGROUND 3
On October 25, 2000, at approximately 11:00 p.m., petitioner helped his friend, Brian Keith Rhea (Rhea), to “pull” or extract methamphetamine dissolved in a container of Coleman fuel. 4 The Coleman fuel was left over from a previous methamphetamine manufacture. Petitioner picked Rhea up at Rhea’s home, where he lived with girlfriend Linda Loerch (Loerch). Petitioner and Rhea were long-time friends, and petitioner was driving Rhea’s truck, which he had borrowed. Both petitioner and Rhea smoked some methamphetamine while Rhea retrieved the leftover Coleman fuel. Petitioner drove Rhea to the home of Steven Burtness (Burtness). The area included several other residential trailers. Petitioner parked at another residence, that of Mr. Hornsby. Burtness owned a converted school bus used for manufacturing methamphetamine, outfitted with electrical outlets. Petitioner had obtained Burtness’s permission to use the bus, in return for a share of the “pulled” methamphetamine.
Rhea’s first attempt, in which he tried to “gas” the methamphetamine out of the Coleman fuel, was unsuccessful and he wanted to try a different method with a hot plate. 3 The factual background is taken in part from our opinion on petitioner’s direct appeal from conviction ( People v. White (July 12, 2005, E034877) [nonpub. opn.] ( White )), and from the record of petitioner’s trial. We take judicial notice of the record in E034877 and trial proceedings in case No. RIF94362. (Evid. Code, § 452, subd. (d).)
4 Commonly used for camping, Coleman fuel is a petroleum-based solvent that is highly flammable. Its use in manufacturing methamphetamine is discussed post . *4 Petitioner went to Burtness’s trailer and asked to use a hot plate. Burtness directed him to the kitchen or back out to the bus. Petitioner returned to the bus with a hot plate, to find Rhea already using an older hot plate with exposed coils. Rhea was using it to boil off saturated Coleman fuel in a bowl on top of the “antique” hot plate to recover methamphetamine. The back door of the bus was wedged open. Rhea was wearing gloves that had become soaked in the Coleman fuel. As petitioner saw the old hot plate, the bowl containing about a quart of the Coleman fuel cracked and the fuel ran into the red-hot coils, causing a flash fire. The fuel splashed on the ground and flamed up, catching petitioner in the face. Petitioner was burned, but not as severely as Rhea. He ran to get out of the front of the bus. Rhea stepped back out the back of the bus. Rhea was burned more severely and exacerbated it by trying to put out the flames with his glove-covered hand, which was soaked in Coleman fuel and spread the flames on his body. Petitioner tackled him and managed to get the flames out, rolling Rhea and throwing dirt on him. Between Burtness, who had come outside, and petitioner, they put the fire out on the bus; petitioner used a hose to water down Rhea and ease the pain from his burns.
Petitioner and Rhea walked back to the truck but could not find the keys. Petitioner borrowed Burtness’s truck. He intended to take Rhea to the hospital, but Rhea wanted to go home. Petitioner was also concerned the hospital might get the truck’s license place and he would be tracked down. They went to Rhea’s trailer, where Loerch met them. Rhea was in worse pain. Petitioner told Loerch to take Rhea to the hospital *5 and Rhea would say he was burned in an engine backfire. He left; Loerch took Rhea to the hospital. Rhea died later of his injuries. Eventually, petitioner was questioned by law enforcement.
Petitioner was charged in a two-count information with the murder of Rhea (count 1; Pen. Code, § 187) and with manufacturing methamphetamine (count 2; Health & Saf. Code, § 11379.6, subd. (a)). It was further alleged that defendant had one prison prior (Pen. Code, § 667.5, subd. (b)) and had a prior conviction for possessing ephedrine for the manufacture of methamphetamine, an enhancement in count 2 (Health & Saf. Code, §§ 11383, subd. (c) & 11370.2, subd. (b)). ( White , supra , E034877, at p. 2.)
On count 1, the jury was instructed on second degree implied malice murder and second degree felony murder. The evidence showed that an explosion occurred while defendant and Rhea were manufacturing methamphetamine. Rhea suffered extensive second and third degree burns, and later died of his injuries. The jury found defendant guilty of second degree felony murder; guilty as charged in count 2; and found the prison prior and enhancement allegations true. The jury specially found that the murder “occurred during the commission of the crime of manufacturing methamphetamine” and that the murder “was not committed with implied malice.” ( White , E034877, at p. 2.)
Petitioner was sentenced to 19 years to life, consisting of 15 years to life on count 1, plus three years for the enhancement on count 2, plus one year for the prison prior. The upper term of seven years was imposed but stayed on count 2. On direct *6 appeal, we stayed the three-year enhancement on count 2, and otherwise affirmed. ( White , E034877, at pp. 2, 34.)
Petitioner filed his initial petition for writ of habeas corpus on this issue in Riverside Superior Court case No. RIC1512917, after the United States Supreme Court issued its 2015 opinion in . That petition was denied on November 6, 2015. He then filed his habeas petition, including the instant issue, before us in our case No. E065246. We summarily denied the petition on February 3, 2016. Petitioner then filed his habeas petition before the California Supreme Court, in case No. S233265 on March 24, 2016. Respondent filed an informal response in the Supreme Court on August 31, 2016; petitioner, acting in propria persona, filed a reply on October 20, 2016.
On July 26, 2017, the Supreme Court issued the following order: “The Secretary
of the Department of Corrections and Rehabilitation is ordered to show cause before the
Second Division of the Fourth District Court of Appeal, when the matter is placed on
calendar, why petitioner is not entitled to a reversal of his second degree felony murder
conviction because the reasoning set forth in
Johnson v. United States
(2015) __ U.S. __
[
After extensions of time, respondent filed a return on October 12, 2017. After further extensions of time, petitioner filed a traverse by appointed counsel on February 26, 2018, 7 followed by a letter notice on May 8, 2018, as to a new United States Supreme Court case arising from Johnson Sessions v. Dimaya (2018) __ U.S. __, 138 S.Ct. 1204 ( Dimaya ), which petitioner contends is applicable to arguments in his traverse. Petitioner filed a second letter notice on October 17, 2018, as to a new United States Court of Appeals for the Ninth Circuit case, Henry v. Spearman (9th Cir. 2018) 899 F.3d 703 ( Henry ), which he also contends is applicable to arguments in his traverse.
II
DISCUSSION Petitioner seeks a writ of habeas corpus to vacate his conviction of second degree felony murder. He contends that the United States Supreme Court’s ruling in that the residual clause of the Armed Career Criminal Act, 18 U.S.C.S. section 924(e)(2)(B)(ii) (hereafter ACCA), is unconstitutionally vague and fails to meet 6 Now, Evan Tsen Lee, Why California’s Second-Degree Felony-Murder Rule is Void for Vagueness (2015) 43 Hastings Const. L.Q. 1 (hereafter, Lee).
7 The petition (written in pro. per.) included a single-page claim that applies. Petitioner, still acting in pro. per., expanded his argument in his reply to respondent’s informal response filed in the Supreme Court. The claim is fleshed out by counsel for the first time in the traverse, relying in part on the Lee article. Petitioner’s other claim in Supreme Court case No. S233265 is not included in the Supreme Court’s order to show cause, and we do not address it here.
the due process requirement of notice to potential defendants but invites arbitrary enforcement by judges, and applies equally to California’s second degree felony-murder rule. As we discuss herein, there are some general similarities and some differences between the categorical approach analysis to the ACCA’s residual clause that the United States Supreme Court found unconstitutionally vague in Johnson and the abstract analysis under California law for the second degree felony-murder rule. However, on this record, we do not find unconstitutional vagueness in petitioner’s conviction for second degree felony murder for the death of an accomplice arising out of the felonious manufacture of methamphetamine. Accordingly, we will deny the petition.
The thoughtful dissent would apply Johnson to find California’s former second degree felony-murder rule unconstitutionally vague in general. (“Under , then, a statute fails to provide ordinary people fаir notice of what is criminal when it requires courts to apply an indefinite standard to an abstract construction of a statute that is not tied to their own conduct. This holding condemns few laws, but, in my view, one of them is California second degree felony murder.” (Dis. opn. post , at p. 5, fn. omitted.) Also, “my view is that our second degree felony-murder law is unconstitutionally vague under because it has a defendant’s guilt depend on a court’s evaluation of a hypothetical risk posed by an abstract generic version of the offense.” (Dis. opn. post , at p. 18.) We respect his viewpoint but emphasize again that we limit this decision to this record presented before us in this case, which we hold does not support such a finding.
The dissent contends that the California approach to assessing
“inherent dangerousness to human life” is to consider “ ‘whether the felony “by its
very nature . . . cannot be committed without creating a substantial risk that someone
will be killed . . . .” [Citations.]’ (
People v. Howard
(2005)
In
Howard
, for example, our Supreme Court found that a violation of Vehicle
Code section 2800.2, “ ‘driving in willful or wanton disregard for the safety of persons or
property while fleeing from a pursuing police officer’ ” (
Howard
,
supra
, 34 Cal.4th at
p. 1134), specified that the act included without limitation, “driving while fleeing or
attempting to elude a pursuing peace officer during which time either three or more
violations that are assigned a traffic violation point count under Section 12810 occur, or
damage to property occurs.” (Veh. Code, § 2800.2, subd. (b).) Our Supreme Court
observed that violations assigned points under Vehicle Code section 12810 that “can
be committed without endangering human life include driving an unregistered
vehicle owned by the driver . . . , driving with a suspended license . . . , driving on a
highway at slightly more than 55 miles per hour when a higher speed limit has not been
*10
posted . . . , failing to come to a complete stop at a stop sign . . . , and making a right turn
without signaling for 100 feet before turning.” (
Howard
, at pp. 1137-1138 [Vehicle Code
sections omitted].) Because Vehicle Code section 2800.2 could be violated in these ways
without being inherently dangerous to human life, “the secоnd degree felony-murder rule
does not apply when a killing occurs during a violation of section 2800.2.” (
Howard
, at
p. 1139.) Similarly, as the dissent correctly points out, this maxim has been applied in
People v. Burroughs
(1984)
These cases are distinguishable. First, as we explain,
post
, the determination of
“inherent dangerousness to human life” in this methamphetamine manufacturing case is
based on expert testimony as to a scientific process in chemistry and physics. It is not, as
the dissent suggests, a “hypothetical” evaluation. The “ ‘defendant’s specific conduct,’ ”
Howard
,
supra
,
Moreover, the determination that an individual evading police pursuit in a willful and wanton manner, for example, might still do so without acting with inherent dangerousness to human life arises from the nature of the specified traffic violations in the statute. Thus, failure to signal a turn or to “sedately” speed slightly above the posted speed limit may not be inherently dangerous. In the case of feloniously manufacturing methamphetamine (Health & Saf. Code, § 11379.6, subd. (a)), however, there are no such “safe” violations. Suggesting that some individuals have produced many batches of methamphetamine without fire or explosion simply recounts an exercise in experience—yet, gaining experience generally extracts a price. Unlike the case of avoiding police pursuit where any driver regardless of experience could operate his or her vehicle “relatively safely,” there is no suggestion that the novice (or even the skilled) methamphetamine maker has or can obtain the experience necessary to manufacture many times before an incident, including death, occurs.
Second, California courts have held felonies inherently dangerous to human life.
In addition to our prior manufacturing methamphetamine case in
People v. James
(1998)
Third, one of the dissent’s main premises regarding the instant case (as opposed to
the bigger picture of second degree felony murder in general) is that conceivably there
are ways to manufacture methamphetamine “relatively” safely, meaning that the felony is
not a basis for felony murder. We will address this, but we point out here that we
rejected this argument in our prior decision in
James
,
supra
,
A. Standard
“A habeas corpus remedy may be available when relief by direct apрeal is
inadequate. [Citation.]” (
In re Figueroa
(2018)
In his traverse, petitioner states for the first time that he is currently released on
parole. Accepting this assertion as true, which counsel affirmed at oral argument, as a
*14
parolee he is still entitled to habeas review because he remains under restraint, despite not
being in physical custody. (
People v. Villa
(2009)
B. Analytical Framework
In , the United States Supreme Court considered the statutory ACCA’s
ban on firearm possession to certain persons, and how its applicability was determined. It
observed, “Federal law forbids certain people—such as convicted felons, persons
committed to mental institutions, and drug users—to ship, possess, and receive firearms.
§ 922(g). In general, the law punishes violation of this ban by up to 10 years’
imprisonment. § 924(a)(2). But if the violator has three or more earlier convictions for a
‘serious drug offense’ or a ‘violent felony,’ the Armed Career Criminal Act increases his
prison term to a minimum of 15 years and a maximum of life. § 924(e)(1);
Johnson v.
United States
,
‘any crime punishable by imprisonment for a term exceeding one year . . . that— ‘(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or
‘(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another .’ § 924(e)(2)(B) (emphasis added).” ( , __ U.S. at p. __ [135 S.Ct. at pp. 2555-2556].) The italicized portion is the “residual clause” of the ACCA. ( Ibid .) *15 The Supreme Court explained that the ACCA “requires courts to use a framework known as the categorical approach when deciding whether an offense ‘is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.’ ” ( Id . at p. 2557.) “Under the categorical approach, a court assesses whether a crime qualifies as a violent felony ‘in terms of how the law defines the offense and not in terms of how an individual offender might have committed it on a particular occasion.’ [Citation.]” ( Ibid .)
To do so, a court must “picture the kind of conduct that the crime involves in ‘the
ordinary case,’ and to judge whether that abstraction presents a serious potential risk of
physical injury. [Citation.]” ( , __ U.S. at p. __ [
In that light, the Supreme Court found that, first, the residual clause left grave uncertainly about how to estimate the risk posed by a crime by tying that assessment to a judicially imagined “ ‘ordinary case’ ” of a crime instead of real-world facts or statutory elements. It questioned how to imagine a criminal’s behavior and, further, how the idealized ordinary case of the crime subsequently plays out in assessing potential risk. *16 ( , __ U.S. at p. __ [135 S.Ct. at pp. 2557-2558].) Second, the residual clause left uncertainty about how much risk it takes for a crime to qualify as a violent felony. ( Id . at p. 2558.) The United States Supreme Court found that “[b]y combining indeterminacy about how to measure the risk posed by a crime with indeterminacy about how much risk it takes for the crime to qualify as a violent felony, the residual clause produces more unpredictability and arbitrariness than the Due Process Clause tolerates.” ( Ibid .) Thus, the United States Supreme Court found the residual clause of the ACCA to be unconstitutionally vague.
In
Dimaya
, the U.S. Supreme Court found a similar constitutional infirmity in the
residual clause of the Immigration and Nationality Act (INA). The U.S. Supreme Court
explained, “The INA defines ‘aggravated felony’ by listing numerous offenses and types
of offenses, often with cross-references to federal criminal statutes. [8 U.S.C.S.]
§ 1101(a)(43); see
Luna Torres v. Lynch
,
‘(a) an offensе that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or *17 ‘(b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.’
Section 16(b), the residual clause, is the part of the statute at issue in this case.”
(
Dimaya
,
In comparison, California’s former second degree felony-murder rule, which the California Supreme Court has interpreted as broad statutory language despite its roots in common law ( Chun , supra , 45 Cal.4th at pp. 1181-1188), “makes a killing while committing certain felonies murder without the necessity of further examining the defendant’s mental state.” ( Id . at p. 1182.) “First degree felony murder is a killing during the course of a felony specified in section 189, such as rape, burglary, or robbery. Second degree felony murder is ‘an unlawful killing in the course of the commission of a *18 felony that is inherently dangerous to human life but is not included among the felonies enumerated in section 189 . . . .’ [Citation.]” ( Chun , at p. 1182.) 8
“ ‘In determining whether a felony is inherently dangerous, the court looks to the
elements of the felony in the abstract, “not the ‘particular’ facts of the case,” i.e., not to
the defendant’s specific conduct. [Citation.]’ [Citations.]” (
James
,
supra
, 62
Cal.App.4th at p. 258; see
Chun
,
As we discuss herein, the California approach also admits of the possibility of taking expert testimony and scientific evidence on the issue of determining whether a felony is inherently dangerous to human life, in the appropriate case.
8 Specifically, the version of section 189 in effect at the time of petitioner’s offense stated in pertinent part, “All murder which is perpetrated by means of . . . is murder of the first degree. All other kinds of murders are of the second degree.”
This comparison highlights some of the differences between the approach taken to
analyze prior felonies under the ACCA’s residual clause and the approach taken to
analyze a current felony under the pre-2019 second degree felony-murder rule. For one
thing, the California rule used the actual elements of the crime to create an “abstract” of
the felony while the ACCA approach takes two branches. First, the enumerated crimes
(burglary, arson, extortion, or involving the use of explosives) are analyzed by
hypothesizing a generic crime encompassing how that crime would theoretically be
committed across a multitude of jurisdictions and states. Second, crimes under the
residual clause (unenumerated crimes involving conduct that presents a serious potential
risk of physical injury to another) are analyzed according to the state-based elements of
the individual offense. California’s former second degree felony-murder rule had no
such dichotomy. In fact, discussed further,
post
, the second degree felony-murder rule
did not relate to or even contain any specifically enumerated felonies, as does
section 924(e)(2)(B)(ii) of the ACCA. The U.S. Supreme Court discussed the need for
this approach. The emphasis in the ACCA is on prior
convictions
. That is, specifically,
enhancements for prior qualifying violent felonies or drug offenses under the ACCA rests
solely on the existence of those prior convictions, not the conduct underlying them.
( , __ U.S. at p. __ [
Further, the very need to consider felonies that “otherwise involves conduct that presents a serious potential risk of physical injury to another” (18 U.S.C.S.
§ 924(e)(2)(B)(ii)), in light of the specifically enumerated felonies of burglary, arson, extortion, or involving use of explosives, ( ibid. ), was never implicated in California’s second degree felony-murder rule, unlike under the Supreme Court’s original analysis of the ACCA in Johnson . For purposes of second degree felony-murder analysis, the enumerated felonies listed in Penal Code section 189 defined first degree murder (now enumerated in current § 189, subd. (a)). But, “[a]ll other kinds of murder are of the second degree.” (Former § 189; now contained in current § 189, subd. (b).) A determination of second degree murder, including felony murder, therefore, was not considered in the light of, or with the need to compare, the enumerated felonies applicable to the wholly separate first degree murder determination. That is different from the approach originally undertaken in under the ACCA. We acknowledge that Professor Lee claims to the contrary in his article. (Lee, 43 Hastings Const. L.Q. at pp. 47-49.) He contends that the sentence quoted immediately above is itself a residual 9 The dissent considers the distinction between prior convictions, for the purpose of sentence enhancements under the ACCA, and current convictions with the dynamics of ongoing trials as “meaningless to a categorical inquiry.” (Dis. opn. post , at p. 22.) In section II.D., post , we point out how the use of expert testimony at trial in cases such as this distinguish this process from the categorical inquiry used in .
clause inviting comparison with the enumerated felonies before it. However, the residual clause of the ACCA specifically invokes its enumerated felonies (“burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another”) in defining “ ‘violent felon[ies].’ ” 10 (18 U.S.C.S. § 924(e)(2)(B).) On the other hand, the enumerated felonies in former section 189 define first degree murder. The final sentence of that paragraph, which Professor Lee argues is the residual clause, strikes out in a different direction, excluding the enumerated felonies comprising first degree murder and defining the separate offense of second degree murder. We do not see that sentence аs a “residual clause.”
Notwithstanding, while not trivial, these differences do not form the basis of our
opinion. Here, petitioner’s conviction did not simply rest on an abstract, elements-based
analysis of the inherent dangerousness of the underlying crime, manufacturing
methamphetamine. Instead, the trial court relied on real-world, concrete
evidence
on the
10
We also agree with the dissent that the more recent U.S. Supreme Court review
in
Dimaya
,
supra
, __ U.S. __,
issue of inherent dangerousness. It simply was not real-world evidence of petitioner’s particular facts.
C. Manufacturing Methamphetamine is Inherently Dangerous to Human Life
We have no difficulty finding inherent dangerousness here. First, in
James
, this
court considered the felonious manufacture of methamphetamine as a qualifying
inherently dangerous felony for the second degree murder rule. We reasoned that,
“Whether a felony is inherently dangerous for purposes of the second degree felony-
murder rule is a question of law, or, at a minimum, a mixed question of law and fact,
which we review de novo.” (
James
,
Our review of second degree felony-murder cases found that many cases made the
determination of inherent dangerousness to human life on the elements of the respective
crime, without resort to other evidence. (
James
,
supra
, 62 Cal.App.4th at pp. 259-260.)
However, at the time we decided
James
, at least two cases we reviewed involved
considering evidence to make the inherent dangerousness determination. One was
Patterson
, in which our Supreme Court directed the Court of Appeal to remand the
matter (whether furnishing cocaine is inherently dangerous to human life) to the trial
court to consider “various medical articles and reports that assertedly demonstrate that the
offense of furnishing cocaine is sufficiently dangerous to life to constitute an inherently
*23
dangerous felony,” of which the People had requested the Supreme Court take judicial
notice. (
Patterson supra
,
claimed to be inherent in the elements of a felony is a matter of scientific, medical or technological expertise, rather than common knowledge.” ( James , at p. 261.)
In fact, we viewed—and still do view—the circumstances in
James
as analogous
as to whether a new scientific technique is generally accepted within the relevant
scientific community so as to be admissible under the
Kelly
/
Frye
rule.
12
(
James
,
supra
,
In
James
, the evidence presented in the trial court detailed the various steps in
manufacturing methamphetamine, supported by the testimony of several expert
witnesses. The most common method is using ephedrine or pseudoephedrine from a
medication. (
James
,
fuel, trichloroethylene or Freon. ( Ibid .) The fifth step, called gassing, applies hydrochloric acid or sulfuric acid to rock salt or table salt. The gas produced and applied to the solution causes the methamphetamine to crystalize. ( Ibid .) A sixth step sometimes used washes the methamphetamine with acetone to make it whiter. ( Ibid .) Every step of this process is dangerous. Acetone and its vapors, and Coleman fuel and its vapors are extremely flammable; iodine crystals are poisonous; red phosphorus explodes in contact with a flame and creates poisonous gas if overheated, and flames are often present in the manufacture of methamphetamine; the acids described above can burn; and fumes from the chemicals cause lung damage. ( Ibid .) An alternative method of manufacture other than ephedrine involves the “ ‘P2P’ ” (phenyl-2-propanone) method, which uses ether, also volatile and flammable. ( Id . at p. 264.)
These steps and methods were described in full from real-world crimе site investigation and observation, experience and known chemical processes. Several experienced witnesses from the California Department of Justice and elsewhere testified as to details of methamphetamine laboratories and fires/explosions. ( James , 62 Cal.App.4th at p. 264.) In addition, we examined California cases in related areas not involving second degree felony murder, but which detailed the dangers of producing methamphetamine in an unprofessional laboratory. ( Id . at pp. 265-267.) Further, cases from other jurisdictions also detailed the same dangers. ( Id . at pp. 268-269.)
Having considered the evidence adduced before the James trial court, the testimony of experts on the issue of illicit manufacture of methamphetamine and its *26 dangers, and the various cases in diverse jurisdictions, we concluded that “the trial court correctly ruled that manufacturing methamphetamine is inherently dangerous to human life for purposes of the second degree felony-murder rule.” ( James , 62 Cal.App.4th at p. 271.)
Turning to the instant case, the trial court here cited James and built on its foundation with additional expert testimony on the issue of manufacturing methamphetamine, including in the form of “pulling” methamphetamine from leftover, meth-saturated solvent. Sheriff’s investigator Thomas Salisbury testified he was involved in meth lab investigations since 1986; was present and assisted in the investigation of “probably 1,000 meth labs to date, typically investigating somewhere in the area of 300 a year”; was intimately familiar with methamphetamine, its use, its packaging and sale and the manner of manufacture based on his interaction with manufacturers and users; and, had personally manufactured methamphetamine five times under controlled conditions. He has testified in court as an expert with regard to methamphetamine labs or methamphetamine lab fires 300 times.
He first described the “Reader’s Digest” version of manufacture as, “you get over- the-counter cold medication such as Sudafed or Actifed or something that has the active ingredient pseudoephedrine in it. You take the oxygen molecule away from that pill, away from the pseudoephedrine, and you have methamphetamine. That’s the Reader’s Digest version.” He then continued in detailed steps: crushing the pills and mixing them with a solvent, such as methanol and denatured alcohol; filtering the solution to remove *27 binders in the pills, such as starch; and boiling the flammable liquid so it evaporates, leaving extracted pseudoephedrine. Next, the extracted pseudoеphedrine is mixed with iodine (a poison), red phosphorus (a flammable solid) or hydriodic acid, which are oxidizers, to take the oxygen away and start converting the mix to methamphetamine, adding distilled water as a liquid and venting the mix through a filter such as kitty litter. Then, the resulting mix is cooked for a significant amount of time, depending on how much is being made, and the mix is filtered again to remove the red phosphorous if it is used, because it does not dissolve. Next, the remaining liquid—called reaction mass liquid—is as acidic as battery acid, a pH of 1, which must be raised by either adding a lot of water or adding lye, with a pH of 14, to result in a mixture around 8 or 9 on the pH scale. Then, an organic solvent—a petroleum-based distillate such as Coleman fuel, charcoal lighter fluid or Freon—is added so that the majority of the methamphetamine goes from the basic layer into the organic layer. Then, the liquid form is turned into a powder, typically by creating hydrogen chloride gas using muriatic acid and aluminum foil, which is directed into the liquid to solidify the methamphetamine, which is filtered out and dried. In an additional step, acetone is added to wash the dried methamphetamine.
Investigator Salisbury also testified that the residue liquid or “waste,” such as Coleman fuel, can be saved because it contains leftover dissolved methamphetamine that has not been recovered. The waste is sometimes re-gassed, or is heated to evaporate it off and recover the residue methamphetamine left behind. Another alternative is to use a *28 “shaker jar” method in which an acid is slowly dropped into the waste liquid to convert the methamphetamine into a solid.
Investigator Salisbury further testified that “the chances of having a lab fire and explosion at any site is 1 in 5.” He also testified that “the most common cause of meth lab explosions from a solvent is either from the initial extraction phase or the later, the solvent out phase where you actually heat up a solvent.” 13
This detailed evidence, presented first in the
James
case, which we reviewed on
appeal in 1998, and again in the instant case, ineluctably leads to the conclusion that
13
The dissent also suggests that technological advances might develop a way to
make methamphetamine manufacturing less dangerous to human life, invalidating the
second degree felony-murder rule under
Howard
. Yet, there are many obsolete laws and
legal maxims that fell by the wayside due to technological evolution. (See, e.g., Ruddell
and Decker,
Train Robbery: A Retrospective Look at an Obsolete Crime
(2017) 42 Crim.
Just. Rev. 333, 2 [check kiting as a type of bank fraud less frequent today due to advances
in electronic benefit transfers (EBT) and debit cards].) That still did not invalidate a
conviction for the law violated at the time of commission. In the case of
methamphetamine manufacturing, we could consider a method of production more
prevalent today than at the time of petitioner’s fatal fire, though not universal. The newer
method is called “shake and bake” or “one pot” methamphetamine laboratories.
“Generally, these laboratories are small-scale, easy to conceal, and produce two ounces
or less of methamphetamine per batch. The ingredients, which are common household
items (e.g. pseudoephedrine/ephedrine tablets, lithium batteries, camp fuel, starting fluid,
cold packs, and drain cleaner), are mixed in a container, such as a plastic soda bottle.
This provides a portable method of producing small amounts of methamphetamine.
‘One-pot’ laboratories are
extremely dangerous
,
and
,
in many cases
,
cause fires
,
which
can lead to injury and death
.” (Drug Enforcement Admin., U.S. Dept. of Justice, 2017
National Drug Threat Assessment (Oct. 2017) pp. 74-75, italics added.) Thus, the
ingredients remain hazardous: lithium scavenged from batteries, volatile liquids, and
caustic lye, subject to fires and explosions when mixed. Absent actual evidence to the
contrary, we do not see this particular technological “advance” as an improvement to the
dangerousness to human life inherent in methamphetamine manufacturing.
*29
manufacturing methamphetamine in an unprofessional laboratory is inherently dangerous
to human life.
14
The trial court here came to that precise determination. After the People
14
The dissent asks us to consider the impact on inherent dangerousness by
manufacturing methamphetamine in a more professional setting. To that end, he suggests
that manufacturing (1) in a well-ventilated and equipped laboratory or (2) by a Ph.D. in
chemistry could demonstrate that it is possible to manufacture methamphetamine safely,
citing
Howard
. He offers in support a 2005 article titled
SDSU grad indicted on charges
he used campus lab to make drugs
, and a 2008 article titled,
Ex-Ph.D student makes a
deal in meth, theft case
, involving a University of California at Merced doctoral student.
(Dis. opn.
post
, at p. 12, fns. 3, 4.) The first article alleged a San Diego State University
graduate “used a campus laboratory to manufacture methamphetamine, Ecstasy and other
drugs,” and that аdditional Ecstasy and fentanyl were recovered at his residence. The
article presents no information from which to infer that the campus environment was any
“safer” a venue to manufacture methamphetamine. (See The San Diego Union-Tribune,
SDSU grad indicted on charges he used campus lab to make drugs
(June 30, 2005)
http://www.sandiegouniontribune.com/sdut-sdsu-grad-indicted-on-charges-he-used-
campus-lab-2005jun30-story.html [as of April 25, 2019].) Similarly, the doctoral student
in Merced was charged with “felony conspiracy to make meth[amphetamine] and
embezzlement” for allegedly stealing “$10,000 in chemicals and equipment from the
school” to manufacture methamphetamine. Again, the article reveals nothing from which
to infer that the student was “safely” producing methamphetamine. In fact, the
investigation led to his and other residences where “several thousand dollars worth of
glass flasks, vessels, pumps and other equipment, as well as chemicals used in the
production of meth” was found. (See The Modesto Bee,
Ex-Ph.D student makes a deal in
meth
,
theft case
(Sept. 27, 2018) <https://www.modbee.com/news/local/crime/
article3114437.html> [as of April 25, 2019].) Storing chemicals in residences does not
seem particularly any safer, despite the student’s doctoral candidacy. The dissent also
asks whether the outcome would be different if manufacturing took place in an isolated
location, and “Does the law change if, in the next case, the defendant is not someone like
Gregory White but instead like Walter White?” (Dis. opn.
post
, at p. 13 and fn. 5 [citing
a Wikipedia entry for the fictional Walter White of the “Breaking Bad” television show].
(See
Walter White
(
Breaking Bad
)—Wikipedia, The Free Encyclopedia
<https://en.wikipedia.org/wiki/Walter_White_(Breaking_Bad)> [as of April 25, 2019]).)
The comparison to a fictional character is compromised when one realizes that the
producers of that series had an interest in ensuring the protagonist—meth-cooking
Walter—returned after each episode instead of perhaps perishing in a fire or explosion or
from toxic fumes. Further, while we are reluctant to rely on a Wikipedia article (see
Crispin v. Christian Audigier
,
Inc.
(C.D. Cal. 2010)
The trial court was correct in relying on
James
for a determination of inherent
dangerousness to human life. As we observed there, “On appeal, we review the trial
court’s determination independently. Once a published appellate opinion holds a felony
is (or is not) inherently dangerous, that precedent is controlling, unless and until a litigant
makes an offer of proof that technological changes have changed the status of the felony.
Gerritsen v. Warner Bros. Entertainment Inc.
(C.D. Cal. 2015)
This ensures that the classification of felonies as inherently dangerous is governed by a
uniform rule of law. (See
People v. Taylor
,
supra
,
As we discuss next, this real-world evidence-based determination is unlike the categorical approach in .
D. ’s Finding of Unconstitutionally Vague is not Implicated Here
In this case, and in the predecessor James case dealing with manufacturing methamphetamine as an inherently dangerous to human life felony, it was established with scientific precision that such manufacture аnd its various permutations are in fact 15 The instant issue is presented to us as a petition for writ of habeas corpus, not on appeal, but we find no principled reason to treat the precedent established in James any differently.
16
The dissent expresses concern over due process notice from diverse decisions
under the former second degree felony-murder rule. Again, our decision here is based on
the record of this case. First, former Sheriff’s Deputy James testified at petitioner’s trial
that in 1996, four years before Rhea’s death, “[h]e specifically told [petitioner] about a
1995 incident involving Kathy [
sic
] James. While Kathy James was manufacturing
methamphetamine, an explosion occurred that resulted in the death of three of her
children. (See
People v.
[
Kathey Lynn
]
James
(1998)
inherently dangerous for the purpose of the second degree felony-murder rule. No mere
categorical approach was involved, limited to either analyzing elements of an
unenumerated felony in a vacuum or hypothesizing a generic felony and how it was
carried out. The process used in the trial courts’ determinations was not limited to that in
Johnson
nor the four predecessor ACCA analysis cases the United States Supreme Court
considered. Those cases were
James v. United States
(2007)
In
James
,
Chambers
, and
Sykes
, the Court concentrated on the level of risk posed
by the crime in question, focusing on comparison to the closest analog among the
enumerated offenses in the ACCA in
James
; and on statistics in
Chambers
and
Sykes
.
( , __ U.S. at p. __ [135 S.Ct. at pp. 2558-2559].) In
Begay
, the Court
considered whether drunk driving resembled the enumerated offenses in kind as well as
*33
in degree of risk. (
Johnson
, __ U.S. at p. __ [
17
As we noted in section I above, petitioner filed a post-traverse letter pointing
out the U.S. Supreme Court’s most recent opinion on this issue in
Dimaya
,
supra
,
__U.S.__,
Petitioner filed a second letter pointing out the Ninth Circuit’s recent opinion in
Henry
,
The approach taken here, and in our predecessor
James
case, is evidence-based on
the specific steps used to manufacture methamphetamine and its objective, inherent
dangerousness. It is different in nature and in kind from the categorical approach the
United States Supreme Court found unconstitutional in
Johnson
. In fact, the Court noted
that, “we do not doubt the constitutionality of laws that call for the application of a
qualitative standard such as ‘substantial risk’ to real-world conduct; ‘the law is full of
instances where a man’s fate depends on his estimating rightly . . . some matter of
degree.’ ” ( , __ U.S. at p. __ [
We further note that Henry does not involve the factual and evidentiary considerations, i.e., expert witness testimony as to a scientific process obviating the vagueness issue in , thаt is central here. Petitioner does not otherwise articulate how Henry is relevant, and it does not avail him.
18
The dissent also suggests that there is no guidance how to determine the
likelihood of death from the manufacture of methamphetamine. In one attempt, however,
*35
the dissent cites a study by the Centers for Disease Control and Prevention,
Injuries from
Methamphetamine Related Chemical Incidents—Five States
,
2001-2012
. (Dis. opn.
post
,
at p. 15 and fn. 6.) That study reviewed 1,325 reports of methamphetamine chemical-
related incidents, finding that in 87 of them (seven percent), 162 persons were injured
with two deaths. The dissent, admitting that the five states involved (Louisiana, Oregon,
Utah, New York, and Wisconsin) did not include California, still questions whether these
statistics should constitute a “ ‘high probability’ ” of death for purposes of the second
degree felony murder rule. (Dis. opn.
post
, at pp. 15-16.) The study itself, however,
admits its limitations in this regard. “First, all meth-related incidents for the five states in
the database might not have been captured because of the queries used. NTSIP does not
include meth incidents in homes unless there is a public health action, such as evacuation.
In addition, because of pending legal actions, data on meth-chemical incidents are often
difficult to obtain. Second, because states rely on relationships with law enforcement
agencies and on scanning media reports, the quality of meth-related chemical incident
data differs among states. Finally, trends from the five states cannot be generalized to the
entire United States.” (Natalia Melnikova et al.,
Injuries from Methamphetamine-
Related Chemical Incidents—Five States
,
2001-2012
(Aug. 28, 2015), at p. 3
<https://www.cdc.gov/mmwr/preview/mmwrhtml/mm6433a4.htm> [as of April 25,
2019].) These limitations make the data in the CDC’s study questionable. For one
example, the “pending legal actions” making data difficult to obtain could easily mean
that deaths are not consistently reported. Aside from this study, the dissent considers
whether expert testimony in the instant case and in
James
sufficiently establishes a “high
probability” of death. The dissent refers to sheriff’s investigator Salisbury’s experience-
based testimony that “the chances of having a lab fire and explosion at any site is 1 in 5”
as “weakly sourced.” (Dis. opn.
post
, at p. 15.) However, Investigator Salisbury
attributed the one in five statistic to data compiled by the national organization of the
Clandestine Laboratory Investigators Association, from whom he also testified he
received part of his formal training. The dissent does not explain how this exрert witness
testimony is “weakly sourced” on this background. We find Salisbury’s testimony
supported by substantial evidence and simply observe that “ ‘the reviewing court must
“accept the trial court’s resolution of disputed facts and inferences, and its evaluations of
credibility, if supported by substantial evidence.” ’ ” (
People v. Tully
(2012) 54 Cal.4th
952, 990 [quoting
People v. Gonzalez
(2005)
This goes well beyond the “categorical approach” of and falls outside any
of the four predecessor ACCA cases in which the Supreme Court considered “ordinary
cases” of the respective charged crimes and speculated as to how the crimes were
committed and whether that means of commission constituted a “violent felony” for the
process, although, when she needed to, she used a lukewarm heating plate,’ ” and hired
two others “to take care of her children so they would not be around when she was
‘cooking.’ ” (
James
,
supra
,
ACCA. Here, while not considering the actual facts of petitioner’s conduct on
October 25, 2000, the superior court had the benefit of a precedential determination in
James
and heard additional expert testimony as well, as contemplated in
James
, including
on the necessary processes used in the closely related but shorter manufacturing form of
“pulling” dissolved methamphetamine from Coleman fuel. Notably, that “shorter”
process is merely a form of a process also described in scientific detail, including with
alternative methods, in the expert testimony adduced in
James
. Leaving scant room for
doubt or error, it established that the overall process of manufacturing methamphetamine
and the shorter subprocess of “pulling” methamphetamine from saturated, leftover
residue Coleman fuel is inherently dangerous to human life. In fact, expert testimony
adduced in petitioner’s trial also established that fires result in about one out of every five
attempts to produce methamphetamine, a condition that certainly exceeds the threshold
for inherent dangerousness, and that the most common reason for a fire or explosion
involves heating a solvent, such as Coleman fuel. This foundation of expert testimony
and evidence of real-world scientific processes provides a factual basis, not a
hypothesized, categorical or abstract one, for a determination of inherent dangerousness
to human life in the felonious manufacture of methamphetamine. That avoids the
compounded indeterminacy the United States Supreme Court found violative of due
process. ( , __ U.S. at p. __ [
Accordingly, we must be “guided by the familiar principle . . . that ‘we do not
reach constitutional questions unless absolutely required to do so to dispose the matter
*38
before us.’ [Citation.]” (
Facebook
,
Inc. v. Superior Court
(2018)
III
CONCLUSION We have considered petitioner’s arguments, bolstered as they are by Professor Lee’s article, and the countervailing ones respondent has offered, in the light of our Supreme Court’s direction to consider “why petitioner is not entitled to a reversal of his second degree felony murder conviction because the reasoning set forth in [ ] renders the California second-degree murder rule unconstitutionally vague.” Necessarily, that consideration has been in the light of the record of petitioner’s case and the relevant authorities discussed herein. Given that record, we cannot find that he is entitled to a reversal of his conviction under .
Accordingly, there is no basis for issuing a writ of habeas corpus.
IV
DISPOSITION
The petition for writ of habeas corpus is denied.
CERTIFIED FOR PUBLICATION
MILLER J. I concur:
RAMIREZ
P. J.
[ In re Gregory White— E068801]
RAPHAEL, J., Dissenting.
Under California’s second degree felony-murder law, petitioner Gregory White’s guilt depended upon an abstract legal issue that had nothing to do with his actions. The trial court had to adjudicate whether California’s offense of manufacturing methamphetamine—in general, not in White’s case in particular—was “inherently dangerous to human life” such that it qualified as a felony murder predicate. If so, the fact that White’s co-conspirator died from burns incurred during the manufacture meant White was guilty of not just the drug crime, but of murdering his accomplice.
Had our Legislature listed methamphetamine manufacture among the crimes that can serve as a predicate for first degree felony murder, White would be guilty of murder with no claim that the crime of conviction was unconstitutionally vague. The Legislature would have provided notice to the public and adequately guided the courts. But there is no statutory list of predicate crimes for second degree felony murder. A defendant such as White may find out whether his crime qualifies after he committed it, when a court determines whether the crime, taken in the abstract, fits the amorphous inherent- dangerousness-to-life standard.
When it decided
Johnson v. United States
(2015) __ U.S. __ [
Following
Johnson
, our Supreme Court set an order to show cause in our court for
the Attorney General to show why White “is not entitled to reversal of his second degree
felony murder conviction because the reasoning set forth in
Johnson
. . . renders the
California second-degree [felony] murder rule unconstitutionally vague.” Our Supreme
Court cited Professor Evan Tsen Lee’s law review article,
Why California's Second-
Degree Felony-Murder Rule Is Now Void for Vagueness
(2015) 43 Hastings Const. L.Q.
1, UC Hastings Research Paper No. 158. Thereafter, in a different case, a three-judge
panel of the United States Court of Appeals for the Ninth Circuit issued a reasoned
decision explaining that, for purposes of allowing a defendant to file a second federal
habeas corpus petition, the defendant had advanced “a plausible position” that
California’s second degree felony-murder statute was unconstitutional under
Johnson
.
(
Henry v. Spearman
(9th Cir. 2018)
I conclude that under , California’s second degree felony-murder law is unconstitutionally vague because it requires courts to assess the hypothetical risk posed by an abstract generic version of the offense.
I.
JOHNSON ’S TWO-PRONGED VAGUENESS TEST
The Due Process Clause of the Fifth Amendment prohibits the government from
taking away life, liberty, or property based on a criminal law that is “so vague that it fails
to give ordinary people fair notice of the conduct it punishes, or so standardless that it
invites arbitrary enforcement.” ( ,
Johnson addressed one clause in the definition of “violent felony” found in the federal Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(2)(B). Known as the “residual clause,” that clause used the following italicized language to identify particular prior convictions that would significantly increase a defendant’s punishment: those for a crime that “is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another .” ( Johnson , supra , 135 S.Ct. at pp. 2555-2556.)
The Court held that “[t]wo features of the residual clause conspire to make it
unconstitutionally vague.” ( ,
The second feature contributing to the vagueness of the residual clause was the “uncertainty about how much risk” was needed to qualify a crime as a violent felony under the unspecific statutory standard of “‘serious potential risk.’” ( Johnson , 135 S.Ct. at p. 2558.) That standard was not vague on its own, but it was problematic when measuring the abstraction of an “ordinary case”: “It is one thing to apply an imprecise ‘serious potential risk’ standard to real-world facts; it is quite another to apply it to a judge-imagined abstraction.” ( Ibid. ; see also id. at p. 2561 [“we do not doubt the constitutionality of laws that call for the application of a qualitative standard such as ‘substantial risk’ to real-world conduct”].)
Thus,
Johnson
’s vagueness test does not affect statutes that occasionally generate
a difficult legal issue about whether a defendant’s crime falls within their ambit. likewise does not affect statutes that apply an indefinite standard such as “dangerousness”
to a defendant’s actual conduct. (See
Sessions v. Dimaya
(2018) __ U.S. __ [138 S.Ct.
1204, 1214,
II.
JOHNSON
’S TWO PRONGS APPLIED TO
SECOND DEGREE FELONY MURDER
Under
Johnson
, then, a statute fails to provide ordinary people fair notice of what
is criminal when it requires courts to apply an indefinite standard to an abstract
construction of a statute that is not tied to their own conduct. This holding condemns few
laws, but, in my view, one of them is California second degree felony murder.
2 1
Importantly as well, apart from
Johnson
’s two-pronged test, the Supreme Court
rejected the principle, indicated by some of its prior cases, that “‘a statute is void for
vagueness only if it is vague in all its applications.’” (
Johnson
,
2
considered whether the residual clause was void for vagueness under
the Due Process Clause of the Fifth Amendment ( ,
First degree felony murder is defined as a killing committed during the
perpetration or attempt to perpetrate any of several specified felonies. (Pen. Code,
§ 189.) There is nothing unconstitutionally vague about that statute. There is no
statutory list of specified felonies, however, for second degree felony murder. In our
state, that crime has been judicially defined as “‘an unlawful killing in the course of the
commission of a felony that is inherently dangerous to human life but is not included
among the felonies enumerated in section 189.” (
People v. Chun
(2009)
A. Abstract Determination
As with the “residual clause” found unconstitutionally vague in , courts
determine whether a felony is “inherently dangerous to human life” categorically for the
felony, independent of the facts of any particular offense. “‘In determining whether a
felony is inherently dangerous [under the second degree felony-murder rule], the court
looks to the elements of the felony
in the abstract
, “not the ‘particular’ facts of the case,”
i.e., not to the defendant’s specific conduct.’ [Citation.] That is, we determine whether
the felony ‘by its very nature . . . cannot be committed without creating a substantial risk
implicated here. (See
Welch v. United States
, 136 S.Ct. at pp. 1261-1262;
People
v. Heitzman
(1994)
that someone will be killed . . . .’ [Citations.]” ( People v. Howard (2005) 34 Cal.4th 1129, 1135 ( Howard ).)
For this law, the “very nature” of the felony that a court is to consider does not
turn on whether the ordinary case of the felony is dangerous to human life, but rather on
whether the felony “possibly could be committed without creating such peril.” (
People v.
Burroughs
(1984)
Thus, the courts are charged with abstractly constructing and then evaluating the
possible means of committing the offense to determine whether any such means is not
sufficiently dangerous. This approach was applied in
Howard
,
supra
,
Our Supreme Court noted, however, that under the statute, the “‘willful or wanton disregard’” element can be met by “ any flight from an officer during which the motorist commits three traffic violations that are assigned a ‘point count.’” ( Howard , supra , 34 Cal.4th at p. 1137.) Such traffic violations include, among others, ones that are relatively nonhazardous: driving with a suspended license, driving slightly more than 55 miles per hour when there is no higher posted speed limit, and making a right turn without signaling for 100 feet before turning. ( Id. at pp. 1137-1138.) The possibility of such a nonhazardous violation was enough for the Supreme Court to conclude “a violation of [Vehicle Code] section 2800.2 is not, in the abstract, inherently dangerous to human life.” ( Id. at pp. 1138-1139.) Thus, because the Supreme Court was able to identify a way that the offense possibly could be committed without a high probability of death, the crime could not serve as a predicate for second degree felony murder.
The Court reasoned similarly in considering the crime of practicing medicine
without a license under conditions creating a risk of great bodily harm, serious physical
or mental illness, or death. (
Burroughs
,
Our Supreme Court’s cases not only indicate that the hypothetical “possibility” of
committing the offense without danger to life need not be the “ordinary case,” but the
cases have not required that the possibility be common at all. For instance, the Court has
reasoned that possession of a sawed-off shotgun is not inherently dangerous because the
possessor may have that firearm as an heirloom, curio, or keepsake rather than as a
weapon. (See
Satchell
,
supra
,
Our second degree felony-murder law differs from the residual clause in because our analysis requires judges to cogitate on various possible means of committing
the offense rather than on the ordinary case of the offense. In my view, this distinction is
not meaningful to constitutional vagueness, as each inquiry requires “a judge-imagined
abstraction” ( ,
B. Indefinite Standard
For a felony to be inherently dangerous to human life, our law requires that the
abstract version of the offense involved “‘a high probability that death will result.’”
(
Chun
,
supra
,
This “high probability” test is no less ill-defined than the “serious potential risk”
standard found in the residual clause in . The problem with such a “fuzzy risk
standard” (
Dimaya
,
supra
,
III.
METHAMPHETAMINE MANUFACTURE AS AN ILLUSTRATION OF INDETERMINACY Petitioner White’s offense, manufacturing methamphetamine, provides a good illustration of the indeterminacy of our state’s second degree felony-murder inquiry. The majority concludes that “manufacturing methamphetamine in an unprofessional laboratory is inherently dangerous to human life.” (Maj. opn., ante , at pp. 28-29.) I do not necessarily disagree with this statement, which makes the application of second degree felony murder to methamphetamine manufacture seem to be an easy case. But I am not convinced that the majority is answering the right question.
Our Supreme Court’s “possible means” approach to second degree felony murder requires us to consider not the means by which defendant White’s cohort actually committed the offense—cooking the substance in a cramped unprofessional laboratory— but whether the offense, taken in the abstract, possibly could be committed in a way that is not inherently dangerous to human life. I see two ways that this felony illustrates ’s point about the malleability of an abstract felony inquiry.
First, it is not clear why we are to assume the case of an unprofessional laboratory.
The offense of manufacturing methamphetamine
could
be accomplished in a well-
ventilated, professional laboratory.
3
It could be executed by a trained chemist.
4
In fact,
3
(See The San Diego Union-Tribune,
SDSU grad indicted on charges he used
campus lab to make drugs
(June 30, 2005) <https://www.sandiegouniontribune.com/
*51
our record indicates that the manufacture would be dramatically safer in such
circumstances. The lead law enforcement agent in this case testified that, as part of his
training, he had manufactured methamphetamine in controlled settings on five occasions,
each time in a certified lab. Presumably, he was not risking his life in doing so. (See
People v. James
(1998)
Along these lines, and perhaps more realistic for most criminals than manufacture in a laboratory, methamphetamine could be manufacturеd in an isolated location such as a field or empty lot—putting no nonparticipants at risk—with those involved in manufacture wearing protective, fire-resistant gear that would drastically reduce the risk of death, even if a fire occurred. I cannot see a basis for us to ignore such a possibility in sdut-sdsu-grad-indicted-on-charges-he-used-campus-lab-2005jun30-story.html> [as of Apr. 25, 2019].)
4 (See The Modesto Bee, Ex-Ph.D student makes a deal in meth, theft case (Sept. 27, 2018) <https://www.modbee.com/news/local/crime/article3114437.html> [as of Apr. 25, 2019].)
considering the inherent dangerous of the offense, unless, contrary to cases such as Howard Burroughs , and Satchell , we are to consider the ordinary case rather than whether the offense possibly can be committed without a high probability of death. Is the only reason not to consider the “empty lot” scenario that no one has provided testimony that it is possible? Does the law change if, in the next case, the defendant is not someone like Gregory White but instead like Walter White? 5 The uncertainty of this type of hypothetical inquiry is precisely what animated .
The second way that this crime illustrates ’s concerns is that the crime of
manufacturing methamphetamine “encompasses the initial and intermediate steps carried
out to process a controlled substance.” (
People v. Coria
(1999)
precursor chemical (such as pseudoephedrine) to a place where he expected methamphetamine to be manufactured, only to have the manufacturing plan interrupted by an undercover officer. (Compare, e.g., People v. Lancellotti (1993) 19 Cal.App.4th 809, 811 [conviction for manufacturing methamphetamine upheld where the defendant owned a “boxed” laboratory in a storage locker, even though the locker did not contain a piece of equipment and a chemical agent which were necessary for the final step of the manufacturing process].) It is not clear to me why the majority does not use, as an abstract version of the felony, such ways of committing it where there is little chance of explosion.
Finally, on top of these uncertainties about the proper abstract version of the felony of manufacturing methamphetamine, the uncertainty of the second prong of the inherent dangerous inquiry completes the constitutional vagueness problem. We must find that there is a “high probability” that death will result from the abstract version of the felony, yet we have no guidance as to what a high probability is. That uncertain threshold alone causes unpredictability. But the data that is used as evidence underlying any such probability determination—which depends upon what litigants in a particular case choose to introduce—compounds the uncertainty.
In that regard, I share with the majority the view that, when courts consider
whether a probability is “high” for these purposes, it is preferable that they act with
“scientific precision” in a manner that is “evidence-based.” (Maj. opn.,
ante
, at p. 31.)
The alternative is that judges simply use their subjective instincts. (See
People v. Nichols
(1970)
The statistical evidence here, however, comes down to weakly sourced testimony from the case agent that about one in five methamphetamine manufacturing crimes results in an explosion. (Maj. opn., ante , at p. 28.) Thus, in the instant case, we have no evidence of how often death results from methamphetamine manufacture. There surely is some causal connection between the frequency of explosions and the frequency of death. But it is only our gut instincts (or our subjective experiences) that determine whether this connection results a high probability, whatever level that is. Simply to illustrate the type of additional statistical evidence that might instead by considered by a court, I note that a study available on the Federal Centers for Disease Control and Prevention website evaluated 1,325 “meth-related chemical incidents” that were reported in five states (not California) over the 12 years covering 2001–2012, and found that in 87 (or 7 percent of the incidents) persons were injured, and there were a total of two deaths—one person, who might have been a meth cook, was found dead in a laboratory; the second death was of a law enforcement officer. 6
I do not know whether this study is the best one to rely on if statistical evidence of deaths during methamphetamine were evaluated. If this study were considered, I do not 6 Natalia Melnikova et al., Injuries from Methamphetamine-Related Chemical Incidents — Five States, 2001–2012 (Aug. 28, 2015) <https://www.cdc.gov/mmwr /preview/mmwrhtml/mm6433a4.htm> (as of Apr. 25, 2019).
know whether two deaths out of thousands of methamphetamine manufacturers should constitute evidence of a “high probability” in our circumstances. I also do not know how one could ever come up with a mortality statistic that reflects an abstract version of felony that is the least hazardous possible way of committing it, rather than reflecting “all” methamphetamine manufactures or the “ordinary” case.
I do know that the uncertainty of these matters is the type of uncertainty identified
by the Supreme Court in , which explained how no judicial approach could
prevent “the risk comparison required by the residual clause from devolving into
guesswork and intuition.” ( ,
But the situation is different where
a court
is charged with applying a loose legal
standard to decide what crimes are felony murder predicates, based on the expert
testimony or statistical evidence that a particular party thinks to introduce in a particular
case. The judicial process is ideal for resolving individual disputes. Expert testimony is
typically used to determine whether a particular person committed the crime. Here, in
contrast, the majоrity is using expert testimony to determine, in essence, whether a matter
*56
should be criminalized. The logical consequence of such caselaw policymaking is that
the criminal law could change if the next party does a better job of marshaling the real-
world evidence. This possibility underscores the serious constitutional vagueness
problem. Remarkably, in our prior decision on methamphetamine manufacture as a
predicate, this court even acknowledged that new expert testimony offered in a
subsequent case can change the status of a predicate offense. (See
People v. James
,
,
IV.
THE MAJORITY OPINION
As laid out in the preceding sections, my view is that our second degree felony- murder law is unconstitutionally vague under because it has a defendant’s guilt depend on a court’s evaluation of a hypothetical risk posed by an abstract generic version *57 of the offense. Today’s majority opinion eschews arguing the wholly contrary view. Rather than offer a full-throated defense of California’s second degree felony-murder rule, the majority emphasizes that it is holding only that “ this record presented before us in this case” does not support a finding of constitutional vagueness. (Maj. opn., ante , at p. 8.) 7
It is not clear that such an “as applied” approach is available for the type of
constitutional vagueness identified by
Johnson
. There, the Supreme Court found it
“[t]rue enough” that “there will be straightforward cases under the residual clause,
because some crimes clearly pose a serious potential risk of physical injury” but
nevertheless held the residual clause facially void. (
Johnson
,
Regardless of whether the majority’s “as applied” approach is even a viable possibility, it is important to note that the majority’s view here leaves open void-for- vagueness challenges to our state’s second degree felony-murder rule as applied to other offenses and other records. Under this view, our state is left not merely with cases where the parties argue about the result of applying the “high probability of death” standard categorically to particular crimes, but where they also contest whether that abstract inquiry reaches some undefined level of unacceptable vagueness to be constitutionally void on the particular record about the particular offense.
Putting the availability of the “as applied” approach aside, I disagree with three ways in which the majority opinion attempts to distinguish and find methamphetamine manufacture inherently dangerous.
A. The Alleged Structural Differences Between Our Law and the Residual Clause In an attempt tо distinguish California’s second degree felony-murder rule from the federal ACCA residual clause struck down in , the majority alleges some differences between the two laws. (Maj. opn., ante , at pp. 19-21.) Though the majority ultimately states that “these differences do not form the basis of our opinion” ( Id. at p. *59 21), I will nevertheless explain why these differences are not relevant to the vagueness inquiry.
First, the majority finds it significant that the residual clause is one part of a test
that has “two branches,” including enumerated crimes such as burglary and arson, and the
residual clause, which evaluated unenumerated crimes under a “serious potential risk of
physical injury to another” standard. (Maj. opn.,
ante
, at p. 19.) The majority states that
California’s second degree felony-rule “had no such dichotomy.” (
Ibid.
) The lack of any
such dichotomy, however, would not support the constitutionality of California’s rule,
because
Johnson
approved the constitutionality of the enumerated crimes clause.
( ,
A further dimension to the majority’s focus on the ACCA enumerated crimes
clause has been held by the United States Supreme Court to be immaterial to a vagueness claim. The majority points out that the California law is not a residual clause
*60
defined in part by the enumerated list of crimes that precedes it. (Maj. opn.,
ante
, pp. 20-
21.)
Johnson
’s two-pronged vagueness analysis, however, does not turn on whether the
law at issue combines a list of enumerated crimes with “catch-all” language for similar,
unenumerated crimes. In
Dimaya
,
supra
,
Apart from its focus on the enumerated crimes clause, the majority identifies
another difference that is meaningless to a categorical inquiry. The majority notes that
the “emphasis in the ACCA is on prior
convictions
.” (Maj. opn.,
ante
, at p. 19; see
id.
at
p. 21, fn. 10 [ACCA analyzed “
prior
convictions,” whereas the California rule concerns
“
a current
conviction that is its own end”]). But when a test for qualifying an offense
8
Dimaya
involved 18 U.S.C. § 16, the federal criminal code’s definition of
“crime of violence” that contained a residual clause the same as the ACCA’s clause but
no list of enumerated crimes. (
Dimaya
,
under a particular standard is categorical—that is, when it has nothing to do with the particular facts of the defendant’s case—it does not matter whether a court is examining a charge or a conviction, past or present. The only question is whether the offense, analyzed in the abstract, qualifies under the applicable standard. Because both the ACCA residual clause and California second degree felony murder apply categorical tests, it does not matter to a vagueness inquiry whether prior convictions or current charges are at issue. There can be no distinction for that reason.
Finally, the majority notes that
Johnson
considered the impracticality of requiring
a sentencing court to reconstruct old crimes, which (unlike with the California second
degree felony-murder rule) could come from diverse jurisdictions with varying laws.
(Maj. opn.,
ante
, at pp. 19-20.) This has nothing to do with the issue before us. The
majority is relying on a passage in
Johnson
that explained—in response to a change
urged by dissenting Justices—why the Court was sticking to a categorical approach to the
residual clause, rather than focusing on the defendant’s particular conduct. (See
Johnson
,
,
B. The Claim That Real-World Evidence Cures ’s Ills I also am not persuaded by the majority’s view that ’s constitutional vagueness problems are cured when courts rely “on real-world concrete evidence on the *62 issue of inherent dangerousness.” (Maj. opn., ante , at pp. 21-22.) That evidence here was expert testimony on the crime’s dangerousness. ( Id. at pp. 10, 13, 25-26.) The majority holds that once there is a “foundation of expert testimony” and “real-world scientific” evidence there is no need for a hypothesized or abstract determination of inherent dangerousness, so does not apply. (Maj. opn., ante , at p. 37.)
The strength of the real-world evidence of dangerousness and the need for reliance
on “a judge-imagined abstraction” of a felony ( ,
supra
,
Over the years, for example, our Court of Appeal has reached differing conclusions as to whether felony child endangerment in violation of Penal Code section 273a is an inherently dangerous felony. (Compare People v. Shockley (1978) 79 Cal.App.3d 669, 677 [affirming second degree felony-murder conviction based on a conception that it is inherently dangerous to life to allow a “child to be placed in such a situation that its person or health is endangered”] with People v. Lee (1991) 234 *63 Cal.App.3d 1214, 1224 [reversing second degree felony-murder conviction in part by hypothesizing an offense that “could include a broken arm or leg” but not jeopardize the life of the child].) This difference in judicial hypothesizing has nothing to do with evidence of the dangerousness of felony child endangerment. It instead has to do with the conceptions judges formulate about the possible ways of violating the statute and the level of abstraction at which the dangerousness of the offense is evaluated. That problem exists in this case because the result can turn on what abstract ways of committing the offense of methamphetamine manufacture a judge imagines. The vagueness problem resulting from “judge-imagined abstractions” applies even when, as here, the trial court relies on statistical or expert testimony in considering whether a felony is inherently dangerous to human life.
C.
Reliance on
People v. James
in Lieu of the Abstract Felony Inquiry
Finally, the majority relies heavily on our
James
opinion, but I am doubtful that
citing that opinion clears up the vagueness problem.
James
cannot easily be
reconciled with the Supreme Court’s opinion in
Howard,
decided several years after this
court decided
James
. In
Howard
, our Supreme Court held that the possibility of
committing a felony—driving with a willful or wanton disregard for the safety of persons
or property while fleeing from a pursuing police officer—in a nonhazardous way was
enough to render it “not, in the abstract, inherently dangerous to human life.” (
Howard
,
supra
, 34 Cal.4th at pp. 1138-1139.) In
James
, two California Department of Justice
experts testified that a skilled or experienced methamphetamine cooker could
manufacture methamphetamine safely. (
People v. James
,
V.
PEOPLE v. FRANDSEN
While this appeal was under submission, a panel in another Court of Appeal district held in People v. Frandsen (Apr. 4, 2019) __ Cal.App.5th __ [2019 W.L. 1486863] ( Frandsen ) that the second degree felony-murder rule is not unconstitutionally vague. In attempting to steer California’s entire rule around ’s vagueness test, Frandsen takes a different tack than today’s majority, which has limited its opinion to *65 “ this record presented . . . in this case.” (Maj. opn., ante , at p. 8.) The reasoning in Frandsen , however, turns on a misunderstanding of one phrase in Johnson .
Frandsen
correctly recognizes that in assessing whether a crime is inherently
dangerous to human life under the second degree felony-murder rule, a California court
“looks to the elements of the felony in the abstract, not at the particular facts of the case.
[Citations.]” (
Frandsen
,
supra
, __ Cal.App.5th at p. __ [2019 W.L. 1486863 at *10]).
Consequently,
Frandsen
correctly construes the California cases that have held
Johnson
inapplicable where a crime requires the court to apply a statutory standard to “real-world
facts” underlying the defendant’s conviction. (
Frandsen
,
supra
, at *10-11 [discussing
People v. Ledesma
(2017)
But both the ACCA residual clause and California’s second degree felony-murder rule do not involve consideration of a defendant’s actual conduct. Rather, they both involve a categorical approach that has nothing to do with the defendant; instead, a defendant’s liability turns on a court’s classifying, under an imprecise standard of risk, the entire crime that he committed. Frandsen goes wrong in its attempted manner of distinguishing the two categorical inquiries.
Frandsen reads as containing an “[i]mplicit” holding that a categorization rule is not vague if it involves “ consideration of the statutory elements of the crime .” *66 ( Frandsen , supra , 2019 W.L. 1486863 at *10.) It reasons that because the California second-degree felony murder rule involves “a statutory elements evaluation of risk,” it is not an unconstitutionally vague law under Johnson . ( Frandsen , supra , at *11).
This construction of
Johnson
is wrong.
Johnson
did not hold that consideration of
the statutory elements of the crime immunizes an inquiry from unconstitutional
vagueness. This is clear because the Supreme Court’s test for applying the residual
clause—which it articulated repeatedly, including in
Johnson
itself—required the
consideration of the elements of the crime. (See ,
supra
,
Frandsen
’s view came from a misconstruction of a sentence in
Johnson
that stated
that the residual clause inquiry was not tied “to real-world facts or
statutory elements
.”
(
Frandsen
,
supra
, 2019 W.L. 1486863 at *10, citing
Johnson
,
supra
, 135 S.Ct. at p.
2557, original italics.) In context,
Johnson
’s reference to an inquiry tied to “statutory
elements” means one that depends
exclusively
on the elements, leaving little or no room
for judicial discretion. Two paragraphs before this sentence in
Johnson
, the Court
explained why it was not invalidating another categorical test in the ACCA. That test,
known as the elements clause, includes felonies that require force as an element. (See
Welch v. United States
,
supra
,
There
is
a difference between the residual clause inquiry and the second degree
felony-murder one. But it is not whether statutory elements are “considered” as
Frandsen
stated. It is what the elements are considered
for
. With the residual clause,
courts considered the elemеnts to construct an ordinary case of the offense, which they
then evaluated to see if it carried a serious potential risk of physical injury. For second
degree felony murder, courts consider the elements to determine if they can construct a
least harmful case in which the offense “possibly could be committed without creating” a
high probability of death. (
Burroughs
,
supra
,
In this regard, the principal case that
Frandsen
relies upon,
People v. Hansen
,
supra
,
Johnson
reviewed the case law concerning the residual clause and determined that
judicial “experience” in applying that clause convinced it that the “uncertainties” were
intolerable. (
Johnson
,
VI.
CONCLUSION Our Supreme Court has not yet considered the second degree felony-murder law in light of the U.S. Supreme Court’s new vagueness rule in . In a manner not previously articulated, ’s two-pronged vagueness test delineates what makes our *71 rule unconstitutionally uncertain. Because Johnson requires a finding of unconstitutional vagueness only when guilt depends on creating an abstraction of a crime divorced from the defendant’s actual conduct, and then using an indefinite standard to evaluate the abstraction, it implicates only laws on the periphery of our Penal Code, if any others exist at all. Our courts surely will have few occasions where Johnson requires us to invalidate a statute. But could have been written about our second degree felony-murder law. That law embodies both inadequate notice to perpetrators and an indefinite standard for the courts. Under a straightforward application of , the law fails to comport with due process.
RAPHAEL J.