In re White

34 Cal.App.5th 933

246 Cal.Rptr.3d 670

IN RE Gregory WHITE on Habeas Corpus.

E068801

Court of Appeal, Fourth District, Division 2, California.

Filed April 30, 2019

OPINION

MILLER, J.

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 Supreme Court’s decision in Johnson v. United States (2015) ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 ( 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

IFACTUAL 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. 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 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 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, 192 L.Ed.2d 569 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 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, 200 L.Ed.2d 549 ( 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.

IIDISCUSSION

Petitioner seeks a writ of habeas corpus to vacate his conviction of second degree felony murder. He contends that the United States Supreme Court’s ruling in Johnson that the residual clause of the Armed Career Criminal Act, 18 U.S.C.S. section 924(e)(2)(B)(ii) (hereafter ACCA), is unconstitutionally vague and fails to meet the due process requirement of notice to potential defendants but invites arbitrary enforcement by judges, and applies equally to California’s second degree felony-murder rule. As we discuss herein, there are some general similarities and some differences between the categorical approach analysis to the ACCA’s residual clause that the United States Supreme Court found unconstitutionally vague in Johnson and the abstract analysis under California law for the second degree felony-murder rule. However, on this record, we do not find unconstitutional vagueness in 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. 693, 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. 699.) We respect his viewpoint but emphasize again that we limit this decision to this record presented before us in this case, which we hold does not support such a finding.

The dissent contends that the California approach to assessing "inherent dangerousness to human life" is to consider " ‘whether the felony "by its very nature ... cannot be committed without creating a substantial risk that someone will be killed ...." [Citations.]’ ( People v. Howard (2005) 34 Cal.4th 1129, 1135, 23 Cal.Rptr.3d 306, 104 P.3d 107 ( Howard ).)" (Dis. opn. post , at p. 693.) In making that assessment, courts look to " ‘ "the elements of the felony in the abstract , ‘not the "particular" facts of the...