In re White

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.

1

Supreme Court’s decision in Johnson v. United States (2015) __ U.S. __, 135 S.Ct. 2551

(Johnson), and seeks relief via a petition for writ of habeas corpus. We have determined

that the petition must be denied on this record.2

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 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) __ 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 Johnson. (Frandsen, at *22-*35.) As described herein, our decision need

not reach that ultimate constitutional issue and we offer no opinion as to Frandsen.

2

I

FACTUAL BACKGROUND3

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.

3

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

4

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, 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

5

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 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. __

[135 S.Ct. 2551] renders the California second-degree murder[5] rule unconstitutionally

vague. (See also Lee, Why California’s Second-Degree Felony-Murder Rule is Now

Unconstitutionally Vague (2015) Hastings Const. L. Q., Forthcoming; UC Hastings

5 Probably intended to read, “California second-degree felony murder rule[.]”

6

Research Paper No. 158.)[6] The return is to be filed on or before August 25, 2017.” We

appointed counsel in the instant case.

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 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

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 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.

7

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 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.” (Dis. opn. post, at p. 5, fn. omitted.)

Also, “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.” (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.

8

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) 34 Cal.4th 1129, 1135

(Howard).)” (Dis. opn. post, at p. 6.) In making that assessment, courts look 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.” ’ ” (Dis. opn. post, at p. 6.) On that basis, the dissent

posits, if there is a way for a felony to be committed without a high probability of death,

it cannot be “ ‘inherently dangerous to human life’ ” or act as “a predicate for second

degree felony murder.” (Dis. opn. post, at p. 8.)

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

9

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 second 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) 35 Cal.3d 824 (practicing medicine without a license under

conditions creating a risk of great bodily harm, serious physical or mental illness, or

death because the “great bodily injury” could be non-life-threatening); People v.

Henderson (1977) 19 Cal.3d 86 (felony false imprisonment may be effected by violence,

menace, fraud, or deceit under the then-existing Pen. Code, § 237; inherently dangerous

when effected by violence or menace, but not if effected by fraud or deceit); and People

v. Caffero (1989) 207 Cal.App.3d 678 (felony child abuse is not inherently dangerous

because “great bodily harm” might not endanger human life).

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, 34 Cal.4th at p. 1135, was not considered in making this determination.

The elements of the felony, manufacturing methamphetamine, were considered but the

abstract was made concrete by the expert testimony on the nature and processes involved

10

in the manufacture of the drug. In so doing, the trial court, and we, concluded that

felonious manufacturing of methamphetamine is inherently dangerous to human life for

purposes of the second degree felony-murder rule. Taking evidence of the dangerousness

is supported in precedent discussed herein, including by our Supreme Court. (People v.

Patterson (1989) 49 Cal.3d 615.)

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)

62 Cal.App.4th 244 (James) discussed post, felonies including poisoning with intent to

11

injure (People v. Mattison (1971) 4 Cal.3d 177); grossly negligent discharge of a firearm

(People v. Clem (2000) 78 Cal.App.4th 346, but see, People v. Robertson (2004) 34

Cal.4th 156); kidnapping (People v. Greenberger (1997) 58 Cal.App.4th 298); and

reckless or malicious possession of a destructive device (People v. Morse (1992) 2

Cal.App.4th 620 (Morse)), are all found inherently dangerous. In addition, other felonies

have been found to be inherently dangerous to human life, such as shooting at an

inhabited dwelling (People v. Hansen (1994) 9 Cal.4th 300) and shooting at an occupied

vehicle (People v. Tabios (1998) 67 Cal.App.4th 1) (both Pen. Code, § 246). Hansen was

overruled and Tabios disapproved by People v. Chun (2009) 45 Cal.4th 1172, 1199

(Chun), not because their respective felonies were not inherently dangerous to human

life, but because they were assaultive in nature, merged with the charged homicide, and

thus could not be the basis for second degree felony murder. That is not implicated here.

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, 62 Cal.App.4th at p. 270

(relying on Morse, supra, 2 Cal.App.4th at p. 646): “ ‘Appellant argues that because

there are “conceivable [ ] ways of violating the statute that do not necessarily pose a

threat to human life” the crime is not inherently dangerous. . . . [¶] We must view the

elements of the offense, not the particular facts of the instant offense. In viewing the

12

elements our task is not to determine if it is possible (i.e., “conceivable”) to violate the

statute without great danger. By such a test no statute would be inherently dangerous.

Rather the question is: does a violation of the statute involve a high probability of death?

[Citation.] If it does, the offense is inherently dangerous.’ ” Under this “any

conceivable” test, any of the long-standing cases finding inherent danger to human life

could be invalidated. But, as noted above, in viewing the elements of methamphetamine

manufacture, we (and the trial court) also viewed expert testimony on the scientific

process of the manufacture, rendering a more concrete view of the felony in place of an

abstract. In James, we found the felony inherently dangerous to human life on this

augmented review, as we do here. We note that the dissent also questions the

determination of a “high probability of death.” We address that as well.

A. Standard

“A habeas corpus remedy may be available when relief by direct appeal is

inadequate. [Citation.]” (In re Figueroa (2018) 4 Cal.5th 576, 587.) Petitions for a writ

of habeas corpus are evaluated by asking whether, if the factual allegations are true, the

petitioner would be entitled to relief. (Ibid.) “ ‘Because a petition for a writ of habeas

corpus seeks to collaterally attack a presumptively final criminal judgment, the petitioner

bears a heavy burden initially to plead sufficient grounds for relief, and then later to

prove them. [Citation.]’ ” (Ibid., italics omitted.)

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

13

parolee he is still entitled to habeas review because he remains under restraint, despite not

being in physical custody. (People v. Villa (2009) 45 Cal.4th 1063, 1069; People v.

Cruz-Lopez (2018) 27 Cal.App.5th 212, 221.)

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 ‘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, 559 U.S. 133, 136, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010). The Act defines

‘violent felony’ as follows:

‘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).” (Johnson, supra, __ U.S. at p. __ [135 S.Ct. at

pp. 2555-2556].) The italicized portion is the “residual clause” of the ACCA. (Ibid.)

14

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.]” (Johnson, supra, __ U.S. at p. __ [135 S.Ct. at p. 2557].)

This goes beyond determining whether creation of risk is an element of the crime;

instead, asking whether the crime involves conduct that presents too much risk of

physical injury. (Ibid.) Complicating the decision, the inclusion of the enumerated

crimes of burglary and extortion take the analysis “beyond evaluating the chances that the

physical acts that make up the crime will injure someone,” given that burglary and

extortion do not normally cause physical injury. (Ibid.)

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.

15

(Johnson, supra, __ 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, 578 U.S. __, __, 136 S.Ct. 1619,[ 1623,] 194

L.Ed.2d 737, 739 (2016). According to one item on that long list, an aggravated felony

includes ‘a crime of violence (as defined in section 16 of title 18 . . .) for which the term

of imprisonment [is] at least one year.’ § 1101(a)(43)(F). The specified statute,

18 U.S.C. § 16, provides the federal criminal code’s definition of ‘crime of violence.’ Its

two parts, often known as the elements clause and the residual clause, cover:

‘(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

16

‘(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, 138 S.Ct. at p. 1211.) The U.S. Supreme Court found 18 U.S.C.S.

section 16 structurally similar to 18 U.S.C.S. section 924(e)(2)(B) (ACCA) and its

residual clause in subdivision (e)(2)(B)(ii), and subject to the analysis in Johnson despite

the absence of any enumerated felonies in the INA’s subdivision (b). (Dimaya, at

pp. 1215-1216.) Applying that analysis, the U.S. Supreme Court affirmed the judgment

of the United States Court of Appeals for the Ninth Circuit, finding the INA’s residual

clause unconstitutionally vague. (Dimaya, at pp. 1212, 1223.)

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

17

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, supra, 45 Cal.4th at p. 1188 [“Whether a felony is

inherently dangerous is determined from the elements of the felony in the abstract, not

the particular facts. [Citation.]”].) “ ‘ “This form of [viewed-in-the-abstract] analysis is

compelled because there is a killing in every case where the rule might potentially be

applied. If in such circumstances a court were to examine the particular facts of the case

prior to establishing whether the underlying felony is inherently dangerous, the court

might well be led to conclude the rule applicable despite any unfairness which might

redound to the defendant by so broad an application: the existence of the dead victim

might appear to lead inexorably to the conclusion that the underlying felony is

exceptionally hazardous.” ’ ” (James, at p. 258, quoting Patterson, supra, 49 Cal.3d at

p. 622.)

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.”

18

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. at p. __ [135 S.Ct. at p. 2562].) The Court also considered “the

utter impracticability of requiring a sentencing court to reconstruct, long after the original

conviction, the conduct underlying that conviction,” using as an example a conviction on

a guilty plea with no record of the underlying facts. (Ibid.) Those prior convictions

19

could be in diverse state and federal jurisdictions with varying elements or qualifying

conduct with regard to the laws violated. Such considerations were not present with

California’s former second degree felony-murder rule.9

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 Johnson 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 Johnson.

20

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 as 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. __, 138 S.Ct. 1204, finds it unnecessary to assess

unenumerated residual clause crimes in the light of enumerated crimes. That is because

Dimaya assesses the INA’s reliance on the residual clause definition of “ ‘crime of

violence’ ” in 18 U.S.C.S. section 16, which does not enumerate any specific crimes.

(See discussion, ante.) That does not change our point that the ACCA and the INA each

respectively define a single term between their elements clauses and residual clauses

(with or without enumerated crimes)—either a “violent felony” (ACCA) or a “crime of

violence” (INA). Both do so to analyze prior convictions for the purpose of effectuating

either the ACCA or the INA. California Penal Code section 189 on the other hand,

defines two separate crimes—first degree and second degree murder, from which the

felony murder rules arise, for the purpose of structuring a trial (or plea, or dismissal) with

the attendant admission of evidence, argument, and jury deliberation to arrive at a current

conviction that is its own end. While those portions of the ACCA and the INA may be

structurally similar, section 189 is not.

21

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, 62 Cal.App.4th at p. 259, citing People v.

Taylor (1992) 6 Cal.App.4th 1084, 1090-1094 (Taylor).) In that light, we also considered

what evidence we could look to in determining inherent dangerousness. (Taylor, at

pp. 1090-1094.)

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

22

dangerous felony,” of which the People had requested the Supreme Court take judicial

notice. (Patterson, supra, 49 Cal.3d at p. 625.)11 The other was Taylor, a case of

furnishing phencyclidine (PCP) to a victim who drowned under its influence. (Taylor,

supra, 6 Cal.App.4th at p. 1088.) The trial court had heard expert testimony from both

sides at trial regarding whether furnishing PCP is inherently dangerous and ruled that it

was an inherently dangerous felony; the jury convicted that defendant of murder on that

theory. The Court of Appeal found the issue subject to de novo review and stated, “One

might wonder why, if the issue is a question of law to be independently reviewed, the

Supreme Court in People v. Patterson [ ] ordered the matter remanded to the trial court,

and why we did the same here. The answer is that the determination of a ‘high

probability of death’ depends, at least somewhat, on evidence as to the dangerousness of

the underlying felony in the abstract, evidence which is best garnered from testimony by

experts. Appellate courts have often used evidence gathered by trial courts and referees

as the basis for de novo legal rulings.” (Taylor, at p. 1094; James, at p. 261.) Based on

these cases, we observed, “Patterson and Taylor thus permit a court to consider evidence

of whether a felony is inherently dangerous. This is a practical necessity when the danger

11 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. 10) 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.

23

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,

62 Cal.App.4th at p. 262.) Necessarily, that viewpoint applies to the instant case as well.

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, 62 Cal.App.4th at p. 263.) The first step is to extract the

ephedrine or pseudoephedrine from the medication, using a solvent such as distilled

water, denatured alcohol, Coleman fuel, and acetone. This process may be accelerated

with heating; both acetone and Coleman fuel are flammable, adding the risk of a flash

fire. (Ibid.) The second step is to mix the ephedrine with red phosphorus and hydriodic

acid, both dangerous substances, and apply heat for six to 72 hours. (Ibid.) Iodine or

iodine and muriatic acid are sometimes substituted for hydriodic acid, because it is illegal

to possess. (Ibid.) The third step converts the product from an acid to a base, generally

by adding lye, which produces substantial heat. If not cooled with ice, the solution may

splatter. (Ibid.) The fourth step extracts methamphetamine with a solvent like Coleman

12 People v. Kelly (1976) 17 Cal.3d 24; Frye v. United States (D.C. Cir. 1923) 293

F. 1013.

24

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 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, 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

25

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, 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

26

binders in the pills, such as starch; and boiling the flammable liquid so it evaporates,

leaving extracted pseudoephedrine. Next, the extracted pseudoephedrine 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

27

“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.

28

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 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. 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) 717 F.Supp.2d 965, 976, fn. 19

[collecting cases on the unreliability of a “user-generated source” as a legal reference];

29

rested at trial, and before petitioner put on his case and testified, the trial court recessed

and discussed the exhibits presented. Defense counsel lodged a section 1118.1 motion

for entry of judgment of acquittal for insufficient evidence, which the trial court denied.

The judge stated, “I think as to Count 1 there’s sufficient evidence both on straight

implied malice theory without the second-degree felony murder, that is if 1 in 5 labs blow

up or fire results and you’re heating volatile solvents, I think that’s inherently dangerous.

That’s perhaps not quite as dramatic as playing Russian roulette, but it’s just like playing

Russian roulette. And under those circumstances that would support second-degree

murder, and the James case out of our county supports it. I would deny it on both bases.”

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) 112 F.Supp.3d 1011,

1028; People v. Stamps (2016) 3 Cal.App.5th 988, 997 [Wikipedia considered as

hearsay]), we would point out that the article’s abstract of five seasons of the Breaking

Bad series indicates several deaths occurred during the fictional Walter’s enterprise, if

apparently intentional. For example, the article states that in the first season, Walter

begins a “cook,” only to produce phosphine gas. Phosphine gas is a toxic byproduct of

methamphetamine manufacturing that was used as a nerve agent in World War I. (See

People v. Odom (1991) 226 Cal.App.3d 1028, 1034.) Walter then used the gas to kill one

antagonist and incapacitate another, only to garotte him later. Notwithstanding dramatic

plot twists, manufacturing in an isolated location is not dispositive of safety, and if an

accomplice or other person is killed during the process, exposure to murder charges exists

regardless of location. Of course, if no one else is present, there can be no killing for

purposes of the second degree felony-murder rule and the issue is moot.

30

This ensures that the classification of felonies as inherently dangerous is governed by a

uniform rule of law. (See People v. Taylor, supra, 6 Cal.App.4th at p. 1092.)” (James,

supra, 62 Cal.App.4th at p. 263.)15 Furthermore, James provides defendants with notice

of their exposure to a murder conviction, satisfying due process.16

As we discuss next, this real-world evidence-based determination is unlike the

categorical approach in Johnson.

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

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) 62 Cal.App.4th 244, 250.) In

response, defendant told [Deputy] James that he was aware of the Kathy James case and

of the dangers of manufacturing methamphetamine.” (White, supra, E034877, at pp. 32-

33.) Petitioner also testified at his trial and, “[o]n cross-examination, [he] admitted that

he had extensive knowledge of the different methods of manufacturing

methamphetamine, had been manufacturing the drug for at least 10 years before

October 2000, and knew about the dangers of manufacturing methamphetamine.” (Id. at

p. 15.) There is no question on this record that petitioner had not only constructive notice

but actual notice that death of another during the felonious manufacture of

methamphetamine carries exposure to a murder conviction, or that manufacturing

methamphetamine is inherently dangerous to human life.

31

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) 550 U.S. 192; Begay v.

United States (2008) 553 U.S. 137; Chambers v. United States (2009) 555 U.S. 122; and

Sykes v. United States (2011) 564 U.S. 1. (See Johnson, supra, __ U.S. at p. __ [135

S.Ct. at pp. 2558-2559] [comparing predecessor cases].) We are mindful that in

prefacing its discussion of these cases, the United States Supreme Court wondered, “How

does one go about deciding what kind of conduct the ‘ordinary case’ of a crime involves?

‘A statistical analysis of the state reporter? A survey? Expert evidence? Google? Gut

instinct?’ [Citation.]” (Id. at p. 2557.) None of these four cases embodied the approach

here of expert witness testimony taken as to the dangerousness of a scientific process,

even leaving aside any structural differences between California’s former second degree

felony-murder rule and the analyses in Johnson and Dimaya.

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.

(Johnson, supra, __ 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

32

in degree of risk. (Johnson, __ U.S. at p. __ [135 S.Ct. at p. 2559].) Ultimately, finding

those approaches evidence of the ACCA residual clause’s indeterminacy, the Court found

that imposing an increased sentence under the residual clause violates due process due to

vagueness. (Id. at p. 2563.)17

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.__, 138 S.Ct. 1204, and asserting that “[t]he decision is relevant to arguments in

White’s traverse,” but not explaining how that is so. Dimaya does not add to petitioner’s

argument in this case.

Petitioner filed a second letter pointing out the Ninth Circuit’s recent opinion in

Henry, supra, 899 F.3d 703, also asserting it relevant to arguments in his traverse. There,

the Ninth Circuit considered the request of a California state inmate to file a second or

subsequent federal habeas petition pursuant to 28 U.S.C. section 2254, the applicable

section of the federal Antiterrorism and Effective Death Penalty Act (AEDPA), and

whether that petitioner satisfied the requirements of 28 U.S.C. section 2244(b) to do so.

(Henry, at p. 705.) The inmate had been convicted of felony discharge of a firearm at an

inhabited dwelling and second degree murder in 1996. (Ibid.) Because he had previously

filed a federal habeas petition under 28 U.S.C. section 2254, he was required to obtain the

court of appeals’ authorization for the federal district court to consider his successive

petition. (Henry, at p. 705; 28 U.S.C, § 2241(b)(3)(A).) He requested the second or

successive petition to argue that Johnson applied to California’s second degree felony-

murder rule, and that the rule was made void for vagueness thereby. (Henry, at p. 707.)

The Ninth Circuit found the petitioner made a prima facie showing that his proposed

petition relied on a new rule of constitutional law, made retroactive to cases on collateral

review by the Supreme Court, that was previously unavailable, and overcame the State’s

objections. (Id. at pp. 707-711.) The Ninth Circuit discussed both the Johnson analysis

of the ACCA’s residual clause and California’s second degree felony-murder rule,

comparing certain similarities and differences between them, but limited its

determination to the request for a successive petition. The Ninth Circuit granted that

authorization for a second or subsequent federal habeas petition under the AEDPA, while

noting that the demanding standard of 28 U.S.C. section 2254 may cause the petition to

ultimately fail “for any number of reasons” not then before that court. (Id. at p. 711.) As

such, the case involves a procedural determination under the terms of the AEDPA, not a

substantive consideration of the Johnson second degree felony-murder rule issue raised

by petitioner herein. To the extent that the Ninth Circuit found that the argument as to

unconstitutionality in Henry was “plausible,” as the dissent points out, we read it simply

in the context of overcoming the AEDPA’s bar to a successive federal habeas petition.

33

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.’ ” (Johnson, supra, __ U.S. at p. __ [135 S.Ct. at p. 2561], quoting Nash v.

United States (1913) 229 U.S. 373, 377.) Here, the trial court did precisely that:

considered the qualitative standard of “inherently dangerous to human life” to the real-

world conduct established by concrete, well-documented scientific expert evidence of the

known methods of manufacturing methamphetamine (including “pulling”

methamphetamine from its dissolved state in a solvent, specifically including Coleman

fuel) and the detailed direct observations and forensic reconstructions of meth lab fires to

unavoidably arrive at the determination that manufacturing methamphetamine qualified

as an inherently dangerous felony for the purposes of the second degree felony-murder

rule.18

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

Johnson, that 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,

34

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 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) 54 Cal.4th

952, 990 [quoting People v. Gonzalez (2005) 34 Cal.4th 1111, 1125].) Notwithstanding,

the dissent relies on two other investigators’ experience-based assessments that

methamphetamine manufacture can be done “ ‘ “relatively” safely’ ” and that “ ‘[s]ome

“cookers” have produced thousands of batches without an explosion[.]’ ” (Dis. opn. post,

at p. 25.) The dissent thus reasons that, under Howard, “ ‘in the abstract, manufacturing

methamphetamine is not inherently dangerous.’ ” (Ibid.) Yet, in James, the source of

these two investigators’ testimony, defendant Kathey Lynn James testified that she

manufactured methamphetamine “ ‘in the safest way as possible’ . . . , ‘[o]ne step at a

time, which made it a lot more safe and clean’ . . . , ‘avoid[ed] adding any heat to the

35

This goes well beyond the “categorical approach” of Johnson 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, 62 Cal.App.4th at p. 256.) She testified she had “ ‘cooked’ ”

300 batches of methamphetamine without an explosion or fire. (Id. at p. 255.)

Notwithstanding this supposedly “safe” method of manufacture, she had a

methamphetamine-related fire that killed three of her children, regardless of how many

batches she had made over any amount of time. She was convicted of second degree

murder and second degree felony murder on all three deaths; manufacturing

methamphetamine; and, conspiracy to manufacture. (Id. at p. 250.) As we said in our

review in James, “ ‘In viewing the elements our task is not to determine if it is possible

(i.e., “conceivable”) to violate the statute without great danger. . . . Rather the question

is: does a violation of the statute involve a high probability of death?’ ” (James, at

p. 270; Morse, supra, 2 Cal.App.4th at p. 646.) The outcome in James is illustrative.

Additionally, still in James, Gloria Pingrey, special agent of the California Department of

Justice, had investigated 50 methamphetamine labs. Two fires had resulted in deaths; in

two other cases, toxic fumes had caused death. (James, at p. 264.) Another special agent

of the California Department of Justice, Ken Riding (one of the investigators on whom

the dissent relies), testified that despite any ability to manufacture “ ‘in a relatively safe

way,’ ” using acetone and Coleman fuel is dangerous because they can be ignited by a

hot plate or an open flame and he “knew of ‘several’ deaths from methamphetamine lab

explosions.” (Ibid.) Returning to the instant case, obviously, a death occurred: Brian

Keith Rhea, petitioner White’s friend and accomplice. Together with the expert

testimony of the process of methamphetamine manufacturing, that is sufficiently precise

to inform our decision of inherent dangerousness here. (We have already observed that

the trial court in petitioner’s case analogized the one in five chances of a fire or explosion

to playing Russian roulette—placing a live round in one chamber of a five-chamber

revolver, spinning the cylinder, placing the revolver’s barrel to the head, and pulling the

trigger. After a trigger pull, the hammer may fall on an empty chamber, making that a

“relatively safe” result. Luck or poor gun skills might also result in a wound instead of a

fatality when a round goes off—a “conceivable” relatively safe outcome. Yet, we find

nothing to suggest that playing Russian roulette is other than “inherently dangerous to

human life.”)

36

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. (Johnson, supra, __ U.S. at p. __ [135 S.Ct. at p. 2558].)

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

37

before us.’ [Citation.]” (Facebook, Inc. v. Superior Court (2018) 4 Cal.5th 1245, 1275,

fn. 31.) The due process faults the United States Supreme Court found in categorical

analysis of the ACCA’s residual clause with regard to prior felonies for the purpose of

penalty enhancement are not implicated here, on this record.

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.

CERTIFIED FOR PUBLICATION

MILLER

J.

I concur:

38

RAMIREZ

P. J.

39

[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. __ [135 S.Ct. 2551, 192

L.Ed.2d 569], the United States Supreme Court held that a law is unconstitutionally

vague if it “require[s] courts to assess the hypothetical risk posed by an abstract generic

version of the offense.” (Welch v. United States (2016) __ U.S. __ [136 S.Ct. 1257,

1264, 194 L.Ed.2d 387].) This was a “new rule” of constitutional law. (Id. at p. 1264.)

1

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) 899 F.3d 703, 711.)

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.

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, supra, 135 S.Ct. at p. 2556, citing Kolender v.

Lawson (1983) 461 U.S. 352, 357-358.) Because all statutory language leaves some need

2

for interpretation, what is “fair” notice and “so” standardless is a matter of degree. In

Johnson, the Court identified a type of criminal law—no doubt rare—that was

sufficiently unfair and standardless that the Constitution cannot permit it.

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.” (Johnson, supra, 135 S.Ct. at p. 2557.) The first feature was

that evaluation of the prior crime depended upon an abstract inquiry about the nature of

the crime, a framework known as the “categorical approach.” (Ibid.) That approach tied

the assessment of a crime’s riskiness to “a judicially imagined ‘ordinary case’ of a

crime,” not to how a particular offender committed it. (Ibid.) In determining whether a

crime carried a sufficient risk of danger to qualify under the residual clause, a court was

to imagine the “ordinary case” of the crime and then evaluate its risk. (Ibid.) Johnson’s

problem with the ordinary case construct was that it required an “abstract inquiry” rather

than one based on the defendant’s actual facts: “The residual clause . . . requires

application of the ‘serious potential risk’ standard to an idealized ordinary case of the

crime. Because ‘the elements necessary to determine the imaginary ideal are uncertain

3

both in nature and degree of effect,’ this abstract inquiry offers significantly less

predictability than one ‘[t]hat deals with the actual, not with an imaginary condition other

than the facts.’” (Id. at p. 2561; see also id. at p. 2563 [prior Supreme Court opinions

rejected vagueness challenges to the residual clause based on the imprecision of the

phrase “‘serious potential risk’” without reaching “the uncertainty introduced by the need

to evaluate the riskiness of an abstract ordinary case of a crime”].)

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, 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. 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. __ [138 S.Ct.

1204, 1214, 200 L.Ed.2d 549] (Dimaya) [“Many perfectly constitutional statutes use

imprecise terms like ‘serious potential risk’ . . . or ‘substantial risk.’”].) In all, Johnson

made clear that its holding that the residual clause was unconstitutionally vague resulted

4

from both features it discussed. That is, a criminal statute is constitutionally void for

vagueness if it employs a combination of (1) an abstract judicial construct that is

(2) evaluated by an uncertain standard. As the Court put it, “[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.”

(Johnson, supra, 135 S.Ct. at p. 2558.)1

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, 135 S.Ct. at p. 2561.)

This principle has been applied in California as a federal constitutional requirement.

(See, e.g., People v. Morgan (2007) 42 Cal.4th 593, 606.) Before Johnson, the apparent

need to prove across-the-board vagueness might have been an impediment to raising or

applying a constitutional vagueness challenge to the second degree felony-murder law.

2 Johnson considered whether the residual clause was void for vagueness under

the Due Process Clause of the Fifth Amendment (Johnson, supra, 135 S.Ct. at p. 2556),

but the same analysis applies under the Due Process Clause of the Fourteenth

Amendment and article I, section 7 of the California Constitution, both of which are

5

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) 45 Cal.4th 1172,

1182 (Chun) [quoting People v. Robertson (2004) 34 Cal. 4th 156, 164].) The idea is that

when a defendant perpetrates a “‘felony inherently dangerous to human life,’” the

requisite malice for murder is imputed to him when death results. (Chun, supra, at p.

1184.) As applied by our courts, second degree felony murder carries the same two-

pronged flaw as the residual clause at issue in Johnson.

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

implicated here. (See Welch v. United States, supra, 136 S.Ct. at pp. 1261-1262; People

v. Heitzman (1994) 9 Cal.4th 189, 199.)

6

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) 35 Cal.3d 824, 830, 833 (Burroughs); see People v. Satchell (1971) 6

Cal.3d 28, 40 (Satchell).)

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, 34 Cal.4th 1129,

the most recent case where our Supreme Court adjudicated whether a particular crime

was inherently dangerous for purposes of second degree felony murder. Howard

addressed whether “driving with a willful or wanton disregard for the safety of persons or

property while fleeing from a pursuing police officer,” in violation of Vehicle Code

section 2800.2, was an inherently dangerous felony. (Howard, supra, at p. 1132.) That

felony certainly seems dangerous ordinarily: on the facts of Howard, the defendant fled

pursuing officers in a sport utility vehicle at speeds of up to 90 miles per hour, running

stop signs and a red light, and driving on the wrong side of a road, until he collided with

another vehicle and killed the driver. (Ibid.) Indeed, the felony even appears dangerous

by its terms, as it expressly requires as an element the “willful or wanton disregard for the

safety of persons or property.” (Ibid.)

7

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, supra, 35 Cal.3d at p. 833.) The Court held that

this felony was not inherently dangerous to human life, principally because the crime

could be committed, for example, with the victim suffering great bodily injury by a

broken bone, in a manner that is not life-threatening. (Id. at p. 831; see also People v.

Henderson (1977) 19 Cal.3d 86, 94-95 [felony false imprisonment dangerous when

accomplished by “violence” or “menace” but not inherently dangerous to life because it

also may be accomplished by “fraud or deceit”]; People v. Caffero (1989) 207

Cal.App.3d 678, 683 [felony child abuse not inherently dangerous to life because “[i]f the

8

statute may be violated by conduct which does not endanger human life, it is not

inherently dangerous to human life.”].)

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, 6 Cal.3d at p. 42 [statute “makes no distinction between

the innocent ‘collector’ and the hardened criminal”].) That logic did not depend on how

common it is for a sawed-off shotgun to be kept as an heirloom, only that it is possible to

do so. (Cf. District of Columbia v. Heller (2008) 554 U.S. 570, 625 [short-barreled

shotguns are “not typically possessed by law-abiding citizens for lawful purposes”].)

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, 135 S.Ct. at p. 2561) that is untethered to the conduct of the

particular defendant. This is the domain of legal interpretation by lawyers and judges,

not of fair notice to ordinary people. (See, e.g., Howard, 34 Cal.4th at p. 1141 (conc. &

dis. opn. of Brown, J.) [disagreeing with majority on ground that “if any offense should

easily qualify as inherently dangerous, Vehicle Code section 2800.2 certainly would”],

pp. 1141-1148 (dis. opn. of Baxter, J.) [same].)

9

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, 45 Cal.4th at p. 1207 [quoting People v. Hansen (1994) 9 Cal.4th 300, 309,

overruled on another ground in Chun, supra, at p. 1199]; People v. Patterson (1989) 49

Cal.3d 615, 627 (Patterson) [establishing “‘high probability’” standard because a “less

stringent standard would inappropriately expand the scope of the second degree felony-

murder rule”].)

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, 138 S.Ct. at p. 1221) is that it allows for a wide range of

arguable results in evaluating the danger of any particular abstract of a felony, giving

inadequate notice of which crimes are to be punished and creating unpredictable

determinations by our courts. In Patterson, for instance, our Supreme Court established

the “high probability” test but did not decide whether the offense at issue, furnishing

cocaine, met that standard, sending the case to the trial court to evaluate evidence on the

matter. (Patterson, supra, 49 Cal.3d at pp. 618, 625.) If the answer to that question was

not knowable by the Supreme Court, it was not something that the ordinary person could

be expected to know. A remand for an evidentiary hearing about the facts of a

defendant’s crime is standard appellate fare. More unusual, if not unique to California

second degree felony murder, is a remand for a court to take evidence, wholly divorced

from the defendant’s case, to determine whether an offense is criminal.

10

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

Johnson’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/

11

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) 62 Cal.App.4th 244, 264 [recounting expert testimony that

experienced cooks can manufacture methamphetamine relatively safely].) Manufacture

by trained chemists in a laboratory, to be sure, is not the ordinary case of

methamphetamine manufacturing in California. But we are not charged with evaluating

the ordinary case, but whether the offense is, by its nature, dangerous to human life. If

Howard held driving with willful or wanton disregard for safety to be not inherently

dangerous due to the possibility that a driver might be driving in that manner without

threatening lives, on what basis do we disregard the possibility of a relatively safe

manufacture here?

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 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].)

12

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 Johnson.

The second way that this crime illustrates Johnson’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) 21 Cal.4th 868, 874;

People v. Hard (2003) 112 Cal.App.4th 272, 279 [“The scope of the prohibition in

[Health & Saf. Code] section 11379.6 is broad because the production of

methamphetamine is an incremental, not instantaneous process, often conducted in a

piecemeal fashion to avoid detection. [Citation.] Because the police can interrupt

production at any stage, the language of [Health & Saf. Code] section 11379.6 should be

construed broadly to ensure that a manufacturer will not receive any benefit from police

intervention early in the process.”].) That means that the statute is violated even by

conduct that is not the part of the manufacturing process that might involve an explosion.

A defendant could, for example, violate the statute by bringing a large amount of a

5 (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.

13

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) 3 Cal.3d 150, 158 & fn. 3 [stating without explanation that offense of burning a

14

motor vehicle under Penal Code former section 449a was inherently dangerous, though

the offense contained no requirement that the vehicle be occupied and the statute

criminalized burning various other items, such as a stack of hay].)

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).

15

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, 135 S.Ct. at p. 2559.) These types of policy

determinations are normally the domain of the Legislature. There is no statutory

vagueness problem when our Legislature considers evidence and opts to add an offense,

such as methamphetamine manufacture, to the list of offenses that can be predicates for

first degree felony murder. One can find the legislative determination either wise or

misguided, but, regardless, the statute is not vague. If a statute defines the crime, citizens

have notice of what is criminal, and the courts have a reasonably specific penal law to

apply.

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 majority is using expert testimony to determine, in essence, whether a matter

16

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,

supra, 62 Cal.App.4th at p. 263 [“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”], italics added.) Thus, apparently not only could a defendant be convicted of

second degree felony murder where there was no law expressly including his crime at the

time of his offense, but he could even be convicted if the law was squarely on his side,

but the prosecution put on a better showing of statistical evidence and expert testimony in

the next case. I believe this possibility is obviously anathema to the due process concept

of fair notice, and it is one illustration of the particular problem with having courts take

evidence in individual cases to determine what crimes qualify as second degree felony-

murder predicates.

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

17

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, supra, 135 S.Ct. at p. 2560;

see id. at p. 2561 [“why should the existence of some clearly risky crimes save the

residual clause?”]; id. at p. 2580 (dis. opn. of Alito, J.) [arguing that the Court erred in

“concluding that the residual clause is facially void for vagueness”]; Henry v. Spearman

(2018) 899 F.3d 703, 709 [Supreme Court “struck down the residual clause in its entirety,

even as to ‘straightforward cases’”].) While other vagueness challenges, such as those to

the breadth of a statute’s wording, allow for as-applied challenges, it may be that Johnson

error differs because it implicates the manner in which courts apply a criminal law to all

See also majority opinion, ante, at page 2 [“the petition must be denied on this

7

record”], p. 8 [“on this record, we do not find unconstitutional vagueness”], p. 31, fn. 16

[“[a]gain, our decision here is based on the record of this case”], p. 38 [“[t]he due process

faults the United States Supreme Court found . . . are not implicated here, on this

record”], p. 38 [“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.”]

18

defendants charged with it. (See People v. Superior Court (Apr. 16, 2019)

__ Cal.App.5th __ [2019 WL 1615288 at *14] [suggesting that, while an “as applied” test

remains for vagueness challenges, Johnson appeared to involve an “exceptional statute in

which the key defect could be established without examining the statute as applied to the

challenger’s circumstances”].)

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. 19-21.) Though the majority

ultimately states that “these differences do not form the basis of our opinion” (Id. at p.

19

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.

(Johnson, supra, 135 S.Ct. at p. 2563.) That is, the fact that California’s rule lacks a

branch that is not vague, containing only the portion that is indeterminate, is not helpful

to the law. In any event, California does have a branch of its felony murder law that

enumerates crimes: first degree felony murder, in which the legislature listed crimes such

as burglary and arson that provide a predicate for felony murder. Like the ACCA

residual clause, the second degree felony-murder rule provides an indeterminate test to

identify other unenumerated crimes. And, as with adding enumerated crimes to the valid

clause that preceded the residual clause, our state’s vagueness problem could be cured if

the legislature provided a complete list of qualifying crimes, rather than leaving the status

of any unlisted felonies to be determined by courts after charges are filed.

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

20

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, 138 S.Ct. 1204, the Supreme Court applied

Johnson in holding that a clause defining the term “crime of violence” was

unconstitutionally vague. (Dimaya, supra, at p. 1211.) Neither the clause struck down in

Dimaya nor its preceding language “specifically invoke[d] . . . enumerated felonies”

(maj. opn., ante, at p. 21). Instead, what mattered was whether the law in question “had

both an ordinary-case requirement and an ill-defined risk threshold.” (Dimaya, supra, at

p. 1223.) “Strip away the enumerated crimes,” as Congress did in the clause in question,

the Court stated, “and those dual flaws yet remain[,] [a]nd ditto the textual indeterminacy

that flows from them.” (Id. at pp. 1221-1222.)8 Those dual flaws existed in the language

struck down in Dimaya just as they do here.

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, supra, 136 S.Ct. at p. 1211.) The Court

concluded that “Johnson tells us how to resolve this case” and that “just like ACCA’s

residual clause, § 16(b) ‘produces more unpredictability and arbitrariness than the Due

Process Clause tolerates.’” (Id. at p. 1223.)

21

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,

supra, 135 S.Ct. at p. 2562.) It does not matter to our inquiry today why either the ACCA

or the California test apply a categorical approach that does not evaluate the particular

defendant’s conduct. All that matters is that both do so. That simple fact satisfies the

first prong of Johnson’s two-prong test and thus goes a long way to demonstrating that

the inquiries implicate similar constitutional vagueness concerns.

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 the

22

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 Johnson 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 (Johnson, supra, 135 S.Ct. at p. 2558) are

simply different matters. Our second degree felony-murder law requires a “judge-

imagined abstraction” not because evidence is lacking, but because courts are prohibited

from considering the particular facts of the case before it and must evaluate ways that the

offense can be committed. (See Howard, supra, 34 Cal.4th at p. 1138.) Thus, if a death

occurs during a felony that is claimed to be a basis for second degree felony murder,

judges must ponder in the abstract whether there is some way (or ways) of committing

that felony that is sufficiently safe to not carry a “high probability” of death. This

endeavor may be uncertain regardless of whether or not scientific evidence of

dangerousness of the offense in general, or of its particular applications, is presented.

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

23

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 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 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, supra, 62 Cal.App.4th at p. 264

24

[one expert testified that “an experienced methamphetamine ‘cooker,’ who knows what

he or she is doing, can make methamphetamine using ephedrine ‘in a relatively safe

way’”; another testified that “methamphetamine can be manufactured ‘relatively’ safely,

‘if the person is very skilled,’” and that “[s]ome ‘cookers’ have produced thousands of

batches without an explosion”].) Under Howard’s approach, this testimony seems

adequate to establish that, in the abstract, manufacturing methamphetamine is not

inherently dangerous. The majority’s approach ultimately finds it sufficient to tie

explosions to methamphetamine manufacture in general. That approach would render the

crime in Howard inherently dangerous: after all, many car accidents occur from reckless

driving with disregard for safety. But the crime in Howard was held not inherently

dangerous, even though a lot of accidents result from its commission. It was not

inherently dangerous because “not all violations of [the felony] pose a danger to human

life.” (Howard, supra, at p. 1139.) It seems to me that the difference between the

approaches in these two cases demonstrates the grave uncertainty resulting from

requiring courts to analyze abstractions of crimes.

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 Johnson’s vagueness test,

Frandsen takes a different tack than today’s majority, which has limited its opinion to

25

“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) 14 Cal.App.5th 830 and People v. White (2016) 3 Cal.App.5th

433].) A statute that applies a qualitative standard to a defendant’s actual conduct—such

as a prohibition on “reckless” driving—is not unconstitutionally vague under Johnson.

(Johnson, supra, 135 S.Ct. at p. 2561.) Such a law provides the defendant fair notice of

the standard under which he will be tried and punished.

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 Johnson as containing an “[i]mplicit” holding that a categorization

rule is not vague if it involves “consideration of the statutory elements of the crime.”

26

(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 Johnson, supra, 135 S.Ct. at p. 2564

[“To determine whether an offense falls within the residual clause, we consider ‘whether

the conduct encompassed by the elements of the offense, in the ordinary case, presents a

serious potential risk of injury to another.’”], italics added; Dimaya, supra, 138 S.Ct. at p.

1253 [“the Court held that the categorical approach for the residual clause asks ‘whether

the conduct encompassed by the elements of the offense, in the ordinary case, presents a

serious potential risk of injury to another.’”], italics added, original italics omitted; James

v. United States (2007) 550 U.S. 192, 202 [“we consider whether the elements of the

offense are of the type that would justify its inclusion within the residual provision”],

original italics; Sykes v. United States (2011) 564 U.S. 1, 7 [quoting preceding test from

James v. United States].) That is, in Johnson the Supreme Court invalided a test that

involved the “consideration of the statutory elements of the crime.” (Frandsen, supra,

2019 W.L. 1486863 at *10, italics omitted.) For this reason, there is no implicit holding

of the type Frandsen discerns. The fact that the California second degree felony-murder

27

inquiry involves consideration of the elements does not mean Johnson is inapplicable to

it.

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, 136 S.Ct. at p. 1261; 18 U.S.C. § 924(e)(2)(B)(i).)

Johnson stated that with the residual clause, “[t]he court’s task goes beyond deciding

whether creation of risk is an element of the crime[,] . . . unlike the part of the definition

of a violent felony that asks whether the crime ‘has as an element the use . . . of physical

force.’” (Johnson, supra, 135 S.Ct. at p. 2557, italics omitted.) Thus, in distinguishing

the residual clause from the elements clause, Johnson indicated that a law provides fair

notice by stating that crimes containing a particular element (force) qualify for

heightened punishment. This is the context for Johnson’s statement a few sentences later

distinguishing the residual clause from laws tied to “statutory elements.” (See also Welch

v. United States, supra, 136 S.Ct. at p. 1261 [stating, after defining “elements clause” and

“residual clause,” that “[i]t is the residual clause that Johnson held to be vague and

invalid”].) There is no example in Johnson of a satisfactory law that involves mere

28

consideration of the elements. Especially when considered along with the fact that

Johnson recognizes that the residual clause itself involved consideration of statutory

elements, the sentence that Frandsen relies on cannot plausibly be read to mean that a

legal test is protected from constitutional vagueness simply because it considers statutory

elements.9 A test that depends exclusively on the elements, in contrast, is saved by the

second prong of Johnson’s vagueness test because it does not carry a “fuzzy risk

standard” (Dimaya, supra, 138 S.Ct. at p. 1221), even if it involves an abstract version of

crimes and thus implicates the first prong of the test.

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, 35 Cal.3d at p. 830.) A determination that

9 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, 135 S.Ct. at p. 2563.) That

inquiry also depended exclusively on the elements of the defendant’s offense, because

“[t]o determine whether a past conviction is for one of those offenses, courts compare the

elements of the crime of conviction with the elements of the ‘generic’ version of the

listed offense.” (Mathis v. United States (2016) 136 S.Ct. 2243, 2247; see also Stokeling

v. United States (2019) 139 S.Ct. 544, 556 (dis. opn. of Sotomayor, J.) [discussing the

valid elements and enumerated clauses, and the invalid residual clause].)

29

our second degree felony-murder rule is not impermissibly vague must turn on a

conclusion that our “possibly could be committed” inquiry provides fair notice of what is

criminal, even though the residual clause “ordinary case” inquiry does not. As discussed

earlier, I believe that both inquiries are indeterminate. Unlike the vast majority of

criminal laws, both of these inquiries turn on the uncertainty of how judges will construe

the defendant’s offense in the abstract, against a qualitative risk standard.

In this regard, the principal case that Frandsen relies upon, People v. Hansen,

supra, 9 Cal.4th 300 (Hansen), illustrates the unpredictability of California’s “possibly

could be committed” inquiry. Hansen held that discharging a firearm at an “inhabited

dwelling house” (Pen. Code, § 246) is inherently dangerous for the purposes of the

second degree felony-murder rule. In holding that the crime is dangerous to human life,

the court relied on the fact that people generally are in or around an inhabited building.

(Hansen, supra, at p. 310.) That is the ordinary case. But the test is whether the offense

“possibly could be committed” without a high probability of danger to human life.

Hansen recognized such a possibility: that “a defendant may be guilty of this felony even

if, at the time of the shooting, the residents of the inhabited dwelling happen to be

absent.” (Id. at pp. 324-325; see Pen. Code, § 246 [“‘inhabited’ means currently being

used for dwelling purposes, whether occupied or not”].) That means a defendant can

commit the crime if, for example, he shoots at a cabin in the woods, knowing its occupant

is away. With little explanation, however, Hansen rejected the unoccupied dwelling

scenario as dispositive, viewing the offense at a high level of abstraction. Hansen’s

analysis thus underscores the question: How can a litigant have fair notice as to which

30

abstract possibilities will carry the day in court? In other cases, hypothetical possibilities

have rendered the second degree felony-murder rule inapplicable. (See, e.g., People v.

Lopez (1971) 6 Cal.3d 45, 51 [though prosecution argued that offense of escape was

inherently dangerous because all escapes invite efforts at apprehension by officers, court

rejected that argument by hypothesizing nonviolent escapes, such as one by a “committed

inebriate who wanders off from a county road job in search of drink”].)

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, 135 S.Ct. at p. 2560.) Hansen helps illustrate the same

uncertainties in California’s second degree felony-murder rule. As in Johnson, these

differ in kind and degree from the uncertainties that affix to ordinary statutes. At the end

of the day, I am not sure there can be a definitive answer to the question as to which

abstract test—the residual clause in Johnson or California’s second degree felony

murder-rule—is more vague. Both inquiries require courts to assess hypothetical risks

posed by an abstract consideration of offenses, so they are similarly malleable and

unpredictable. The two inquiries cannot be cleanly distinguished in the manner that

Frandsen attempts.

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

31

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.

RAPHAEL

J.

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