Lead Opinion
FACTUAL BACKGROUND
On October 25, 2000, at approximately 11:00 p.m., petitioner helped his friend, Brian Keith Rhea (Rhea), to "pull" or extract 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. 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
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 and Rhea would say
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 , supra , 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 appeal, we stayed the three-year enhancement on count 2, and otherwise affirmed. ( White , supra , 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 Johnson . 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
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
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,
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 Johnson 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 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
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 ,
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
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 appeal 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 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 Johnson , 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
'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
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.]" ( Johnson , supra , --- U.S. ----,
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. ( Johnson , supra , --- U.S. ----, 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
'(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
'(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 , supra ,
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,
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.
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. ( Johnson , supra , --- U.S. ----,
Further, the very need to consider felonies that "otherwise involves conduct that presents a serious potential risk of physical injury to another" (
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 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 , supra ,
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,
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.
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 , supra ,
These steps and methods were described in full from real-world crime 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 , supra ,
Having considered the evidence adduced before the James trial court, the testimony of experts on the issue of illicit manufacture of methamphetamine and its 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 , supra ,
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
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 "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."
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. This ensures that the classification of felonies as inherently dangerous is governed by a uniform rule of law. (See People v. Taylor , supra ,
D. Johnson '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 and its various permutations are in fact inherently dangerous for the purpose of the second degree felony-murder
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 . (
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 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 Johnson [ ] 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 Johnson .
Accordingly, there is no basis for issuing a writ of habeas corpus.
IV
DISPOSITION
The petition for writ of habeas corpus is denied.
I concur:
RAMIREZ, P. J.
Notes
All further citations are to the Penal Code, unless otherwise indicated.
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 Johnson 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)
The factual background is taken in part from our opinion on petitioner's direct appeal from conviction (People v. White (July 12, 2005, E034877)
Commonly used for camping, Coleman fuel is a petroleum-based solvent that is highly flammable. Its use in manufacturing methamphetamine is discussed post .
Probably intended to read, "California second-degree felony murder rule[.]"
Now, Evan Tsen Lee, Why California's Second-Degree Felony-Murder Rule is Void for Vagueness (2015)
The petition (written in pro. per.) included a single-page claim that Johnson 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.
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."
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. 700.) 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 Johnson .
We also agree with the dissent that the more recent U.S. Supreme Court review in Dimaya , supra , --- U.S. ----,
The dissent questions how an ordinary person could be expected to know, or have notice, that an offense had a "high probability" of death in this case if the answer "was not knowable by the Supreme Court" (Dis. opn. post , at p. 695) and had to be remanded. Yet, as discussed immediately post , matters are routinely remanded to the superior court for evidentiary hearings. The point here is that California's approach, established in part by our Supreme Court in Patterson , includes considering evidence on the issue of inherent dangerousness in appropriate cases.
People v. Kelly (1976)
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.
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. 696, 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 additional 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. 697 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 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.
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)
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 , supra ,
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, 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. 698 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. 698-99.) 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. 698.) 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 expert 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)
Dissenting Opinion
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)
I conclude that under Johnson , 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.
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 , supra ,
Johnson addressed one clause in the definition of "violent felony" found in the federal Armed Career Criminal Act (ACCA),
The Court held that "[t]wo features of the residual clause conspire to make it unconstitutionally vague." ( Johnson , supra ,
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 , supra ,
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. Johnson 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. ----,
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.
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 Johnson , 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 that someone will be killed ....' [Citations.]" ( People v. Howard (2005)
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 ,
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 , supra ,
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 Johnson 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" ( Johnson , supra ,
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 Johnson . 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. 684-85.) 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 Johnson 's point about the malleability of an abstract felony inquiry.
Along these lines, and perhaps more realistic for most criminals than manufacture in a laboratory, methamphetamine could be manufactured 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
The second way that this crime illustrates Johnson 's concerns is that the crime of manufacturing methamphetamine "encompasses the initial and
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. 686.) The alternative is that judges simply use their subjective instincts. (See
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 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 Johnson , which explained how no judicial approach could prevent "the risk comparison required by the residual clause from devolving into guesswork and intuition." ( Johnson , supra ,
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
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 Johnson 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. 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. 675.)
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 Johnson and find methamphetamine manufacture inherently dangerous.
A. The Alleged Structural Differences Between Our Law and the Residual Clause
In an attempt to distinguish California's second degree felony-murder rule from the federal ACCA residual clause struck down in Johnson , the majority alleges some differences between the two laws. (Maj. opn., ante , at pp. 680-81.) Though the majority ultimately states that "these differences do not form the basis of our opinion" (Id. at p. 681), I will nevertheless explain why these differences are not relevant to the vagueness inquiry.
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 Johnson vagueness claim. The majority points out that the California law is not a residual clause defined in part by the enumerated list of crimes that precedes it. (Maj. opn., ante , pp. 680-81.) Johnson 's two-pronged vagueness analysis, however,
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. 680-81.) 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 , supra ,
B. The Claim That Real-World Evidence Cures Johnson's Ills
I also am not persuaded by the majority's view that Johnson 's constitutional vagueness problems are cured when courts rely "on real-world concrete evidence on
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)
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 Johnson 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
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)
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 ,
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.
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 Johnson , 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 ,
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 elements 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 , supra ,
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 Johnson . In a manner not previously articulated, Johnson 's two-pronged vagueness test delineates what makes our 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 Johnson 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 Johnson , the law fails to comport with due process.
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 ,
Johnson considered whether the residual clause was void for vagueness under the Due Process Clause of the Fifth Amendment (Johnson , supra ,
(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/sdut-sdsu-grad-indicted-on-charges-he-used-campus-lab-2005jun30-story.html> [as of Apr. 25, 2019].)
(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].)
(See Walter White (Breaking Bad )-Wikipedia, The Free Encyclopedia < https://en.wikipedia.org/wiki/Walter_White_(Breaking_Bad)> [as of Apr. 25, 2019].) The fictional White was a trained chemist who for a time manufactured methamphetamine in a professional laboratory.
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).
See also majority opinion, ante , at page 671 ["the petition must be denied on this record"], p. 674 ["on this record, we do not find unconstitutional vagueness"], p. 686, fn. 16 ["[a]gain, our decision here is based on the record of this case"], p. 690 ["[t]he due process faults the United States Supreme Court found ... are not implicated here, on this record"], p. 690 ["consideration has been in the light of the record .... Given that record, we cannot find that he is entitled to a reversal of his conviction under Johnson ."]
Dimaya involved
Johnson also expressly did not invalidate the portion of the ACCA test found immediately before the residual clause that enumerates certain generic crimes, such as burglary, that are covered by the ACCA. (Johnson , supra ,