Is Felony Murder Based on “Inherently Dangerous” Felony Unconstitutionally Vague?
November 5th, 2019

People v. Frandsen (2019) 33 Cal.App.5th 1126 held that the California second-degree felony-murder, which requires a felony “inherently dangerous to human life” in the abstract, is not unconstitutionally vague.  Johnson v. United States (2015) 576 U.S. ___ [192 L.Ed.2d 569, 135 S.Ct. 2551] is distinguishable. Unlike the federal sentencing statute invalidated in Johnson, California’s second-degree felony-murder rule tests the actual elements of the underlying felony.  “Such an approach avoids the uncertainties identified by the Johnson court as fatal to the ACCA residual clause. This is because when a court evaluates the statutory elements of the crime, it is not required to ‘imagine’ what an ‘ordinary’ crime would look like. Neither is a defendant required to guess at whether his conduct is dangerous to life. Rather, the court must determine, by examining the elements of the crime, whether it could possibly be committed without creating a substantial risk that someone will be killed.” (33 Cal. App. 5th at ]; see also In re White (2019) 34 Cal. App 5th at 33 [California’s second-degree felony-murder rule is not unconstitutionally vague as applied to this case in which the predicate felony was manufacture of methamphetamine. A felony may be inherently dangerous even if scenarios can be imagined in which the felony could be committed without endangering human life.


But see dissenting opinion in White which 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., supra at 963, 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., supra at 970.)

Moreover, the importance of Johnson is further demonstrated by the Ninth Circuit’s decision in Henry v. Spearman (9th Cir. 2018) 899 F.3d 703 which concluded that Johnson provides a reasonable basis for concluding that California’s inherently dangerous second degree felony murder rule is unconstitutionally vague.

Henry analyzed the issue as follows:

“In Johnson, the Supreme Court held that the Armed Career Criminal Act’s (‘ACCA’) residual clause was unconstitutionally vague. The ACCA prescribes a mandatory minimum sentence if a person convicted of being a felon in possession of a firearm has three prior convictions for ‘violent felonies.’ That statutory term includes any felony 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.  18 U.S.C. § 924(e)(2)(B). The italicized text is known as the ACCA’s residual clause. Because the ACCA looks simply to the existence of prior ‘violent felony’ convictions, the statute requires a court to assess ‘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.”’ Johnson 135 S.Ct. at 2557. ‘Deciding whether the residual clause covers a crime thus requires a court to 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.’ Id.”  [Additional citations omitted.]

“The Court concluded that ‘[t]wo features’ of the ACCA’s residual clause render it unconstitutionally vague. Id. First, ‘the residual clause leaves grave uncertainty about how to estimate the risk posed by a crime’ by tying ‘the judicial assessment of risk to a judicially imagined “ordinary case” of a crime, not to real-world facts or statutory elements.’ Id. Second, ‘the residual clause leaves uncertainty about how much risk it takes for a crime to qualify as a violent felony.’ Id. at 2558. The resulting ‘wide-ranging inquiry … both denies fair notice to defendants and invites arbitrary enforcement by judges.’ Id. at 2557. ‘By 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.’ Id. at 2558.”

California’s second-degree felony-murder rule, which the 9th Circuit describes as “unique,” imputes malice from the commission of any felony that, viewed in the abstract, is inherently dangerous.  There is no closed list of predicate felonies.  See, e.g., People v. Chun, 45 Cal.4th 1172 (2009).

“Henry contends that the same two features of indeterminacy are at work in California’s second-degree felony-murder rule” as in the ACCA residual clause held invalid in Johnson.  The 9th Circuit cites an article making this argument at length.  Evan Tsen Lee, Why California’s Second-Degree Felony-Murder Rule is Now Void for Vagueness, 43 Hastings Const. L.Q. 1 (2015) [author is a professor at UC-Hastings].

As to the first point, “[a]t times the California Supreme Court has asked whether, ‘by its very nature, [the crime] cannot be committed without creating’ an undue risk to human life, People v. Burroughs, 35 Cal.3d 824 (1984), while at other times it has considered the ordinary commission of a crime, ‘even if, at the time of the [offense],’ there was no innate risk at all, People v. Hansen, 9 Cal.4th 300 (1994), overruled on other grounds by Chun, 45 Cal.4th 1172.”

As to the second point, “the risk threshold for an inherently dangerous crime is imprecise, with the California Supreme Court alternatingly describing that standard as a ‘substantial risk’ or ‘high probability’ that someone will be killed.”  The court cites People v. Robertson, 34 Cal.4th 156 (2004), using the phrases interchangeably, and the separate opinions of Chief Justice Lucas and Justice Mosk in People v. Patterson, 49 Cal.3d 615 (1989), stating that the two phrases mean something different.

The court rejected the state’s argument that Henry lacks standing to make a facial vagueness challenge because the predicate felony in his case, shooting at an inhabited dwelling, is inherently dangerous under any standard and was held to be included in the second-degree felony-murder rule in People v. Hansen, 9 Cal.4th 300 (1994), prior to his offense.  The 9th Circuit says this argument is inconsistent with Johnson, which struck the residual clause in its entirety without considering the circumstances of Johnson’s own crime, and appears to be inconsistent with subsequent USSC decisions interpreting Johnson.

The court also rejected the state’s “cramped reading of Johnson” limiting it to the particular context of the ACCA.  The USSC recently relied on Johnson to invalidate a different statute not comparable to the ACCA in the ways that the state refers to.  Sessions v. Dimaya, 138 S.Ct. 1204 (2018).

Strategy Note: Application of Henry to Other California Crimes

It is unlikely that second-degree felony murder is the only California crime that has vaguely defined elements and may be vulnerable to a vagueness challenge under Johnson on direct appeal or, if the appeal is over, on habeas.  For example, the predicate felonies for first-degree felony-murder convictions and felony-murder special circumstance findings could be subject to vagueness challenges.

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