Filed 9/20/13 In re Arellano CA2/5
Opinion on Remand from Supreme Court

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION FIVE


                                                                     B233239
In re DANIEL ARELLANO, JR.,
                                                                     (Los Angeles County
                                                                     Super. Ct. No. YA042791)
         on Habeas Corpus.




         ORIGINAL PROCEEDING. Petition for Habeas Corpus. John Vernon Meigs,
Judge. Petition for writ of habeas corpus is granted
         Eric R. Larson, under appointment by the Court of Appeal, for Petitioner.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Eric E. Reynolds and Allison H.
Chung, Deputy Attorneys General, for Plaintiff and Respondent.
       This case is before us on order of the California Supreme Court. The order
requires the Secretary of the Department of Corrections and Rehabilitation to show cause
before this court why petitioner is not entitled to relief on the basis that he was convicted
of second degree murder under a theory that was invalidated by the Supreme Court in
People v. Howard (2005) 34 Cal.4th 1129 (Howard).
       Although we previously denied petitioner relief based on Howard, we have
reexamined the issue as required by the Supreme Court’s order and grant the habeas
corpus petition.
                                       DISCUSSION
       Petitioner was convicted, in pertinent part, of second degree murder on the theory
that petitioner’s act of evading police officers (Veh. Code, § 2800.2) amounted to an
inherently dangerous felony such that the resulting crash and death of his passenger
triggered his liability for second degree felony-murder. He challenged the judgment of
conviction on appeal arguing he was improperly convicted of second degree murder
because evading was not an inherently dangerous felony. (See People v. Bryant (2013 )
56 Cal. 4th 959, 965 [“the second degree felony-murder rule applies only to felonies
inherently dangerous to human life”].) We rejected his claim but acknowledged there
was a split of authority on the issue and that the issue was pending in the California
Supreme Court in Howard.
       Howard was decided approximately seven months after our opinion was filed. It
held the crime proscribed by Vehicle Code section 2800.2 was not an inherently
dangerous felony and, therefore, it could not trigger second degree felony-murder.
(Howard, supra, 34 Cal.4th at pp. 1136-1139.) Petitioner made applications for relief in
this court arguing Howard requires the invalidation of his second degree murder
conviction. We rejected the arguments not only on procedural grounds but also on the
basis that any instructional error was harmless because, given appellant’s grossly reckless
driving, “any reasonable juror” would conclude he was guilty of second degree murder
on the theory that he harbored a conscious disregard for human life (see People v.



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Martinez (2003) 31 Cal.4th 673, 684 [a killing resulting from a deliberate act done with
conscious disregard for human life is second degree murder].)
       Petitioner then filed a writ petition in the California Supreme Court. Pursuant to
the Supreme Court’s order, the California Attorney General filed an informal response.
The Attorney General took the position that the petition was procedurally barred and any
instructional error was harmless. The Supreme Court responded to the Attorney
General’s arguments by filing the order to show cause giving rise to the instant
proceeding. The order cited Howard and People v. Guiton (1993) 4 Cal.4th 1116,
1129—a case holding that, if a jury is instructed with an invalid legal theory, “the . . .
rule requiring reversal applies, absent a basis in the record to find that the verdict was
actually based on a valid ground.” (Ibid., footnote omitted.)
       It is undisputed the jury was instructed on a theory of second degree murder that
was eventually determined to be invalid by our High Court. Because this was the only
theory of second degree murder given to the jury, we are unable to conclude the verdict
was based on an alternative theory such as a conscious disregard for human life. In other
words, although the record reflects appellant engaged in exceptionally dangerous
conduct, we cannot say that the verdict was “actually based on a valid ground.” (See
People v. Guiton, supra, 4 Cal.4th at p. 1129.)
       The dissent asserts the habeas corpus petition is untimely, petitioner is not entitled
to the retroactive application of Howard, and petitioner’s method of evading was so
reprehensible that he was not prejudiced by the instruction on what was eventually
determined to be an the invalid theory of culpability. The Attorney General made these
arguments in the informal response she filed in the California Supreme Court. Yet, the
Supreme Court issued an order to show cause citing only Howard and Guiton—cases that
do not discuss timeliness or retroactivity. The issues of retroactivity and timeliness are
outside the scope of the order to show cause. Moreover, it stands to reason that the
Supreme Court rejected the arguments asserted by the Attorney General, and embraced
by the dissent, for denying the petition. Petitioner’s reprehensible conduct may be
addressed at a new trial for second degree murder based on a valid theory of culpability.

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(See Lockhart v. Nelson (1988) 488 U.S. 33, 40-41 [if the judgment is reversed based on
trial error, double jeopardy does not bar retrial]; see also People v. Llamas (1997) 51
Cal.App.4th 1729, 1741-1743 [prejudicial error under Guiton allows the prosecution to
retry defendant on a valid legal theory].)


                                      DISPOSITION


       The petition for writ of habeas corpus is granted. The judgment of conviction for
second degree murder is vacated. The clerk is ordered to amend the abstract of judgment
to reflect this disposition and provide a copy of the amended judgment to the Department
of Corrections and Rehabilitation.
                            NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS



                            KUMAR, J.*




I concur:




       MOSK, J.




*
        Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

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Turner, P.J., Dissenting

       I respectfully dissent. First, in my view the delay in filing the habeas corpus
petition is unjustified, or at the very least, should be the subject of an evidentiary hearing.
Defendant, Daniel Arrellano, Jr,. participated in the running gun battle, high-speed chase
and killing of Robert Valdez on December 22, 1999. The opinion in People v. Howard
(2005) 34 Cal.4th 1129, 1139 (Howard) was issued over seven and one-half years ago.
This delay has not been justified by reference to particular circumstances and I would
deny the petition on that ground alone. (In re Clark (1993) 5 Cal.4th 750, 765; In re
Stankewitz (1985) 40 Cal.3d 391, 396, fn. 1.) And even defendant presented sufficient
allegations supported by reasonably available documentary evidence, I would appoint a
referee and order an evidentiary hearing on the delay issue. As our Supreme Court has
explained: “Finally, if the return and traverse reveal that petitioner's entitlement to relief
hinges on the resolution of factual disputes, then the court should order an evidentiary
hearing. (Pen. Code, § 1484.) Because appellate courts are ill-suited to conduct
evidentiary hearings, it is customary for appellate courts to appoint a referee to take
evidence and make recommendations as to the resolution of disputed factual issues. (See
In re Fields [(1990)] 51 Cal.3d 1063, 1068; In re Mooney (1937) 10 Cal.2d 1, 15.)”
(People v. Romero (1994) 8 Cal.4th 728, 739-740; italics added.) If I am incorrect that
the delay issue disposes of the petition at the pleading stage, then Romero with its virtual
requirement of an evidentiary hearing is controlling.
       Second, defendant bases his claim for relief on our Supreme Court’s decision in
Howard, supra, 34 Cal.4th at page 1139. Defendant is not entitled to the benefit of
Howard under the circumstances of this case. A judicial decision favorable to the
accused is entitled to retroactive effect in all non-final cases. This limitation to non-final
cases does not apply when there is a conflict in the law. (People v. Watson (2008) 43
Cal.4th 652, 688-689; People v. Guerra (1984) 37 Cal.3d 385, 401, disapproved on
another point in People v. Hedgecock (1990) 61 Cal.3d 395, 409-410.) But when
defendant was tried, all then (now disapproved) binding decisions held a violation of
Vehicle Code section 2800.2 could serve as the predicate for a second degree felony-
murder finding. (People v. Jones (2000) 82 Cal.App.4th 663, 669, fn. 3; People v. Sewell
(2000) 80 Cal.App.4th 690, 696-697; People v. Johnson (1993) 15 Cal.App.4th 169, 173-
174.) Our Supreme Court denied the defendants’ review petitions in Jones, Sewell and
Johnson. (People v. Jones, supra, 82 Cal.App.4th at p. 671; People v. Sewell, supra, 80
Cal.App.4th at p. 698; People v. Johnson, supra, 15 Cal.App.4th at p. 179.) Thus, the
trial court justifiably relied on the prior clear rule (it was required to do so) and the
finality limitation applies here. (People v. Watson, supra, 43 Cal.4th at p. 689 [no
retroactivity issue when “there is “no clear rule on which anyone could have justifiably
relied . . . .””]; Donaldson v. Superior Court (1983) 35 Cal.3d 24, 37 [a new rule for
retroactivity purposes arises when a decision ‘“disapproves a practice this Court has
arguably sanctioned in prior cases . . . or overturns a longstanding and widespread
practice to which this Court has not spoken, but which a near-unanimous body of lower
court authority has expressly approved.”’].) Under traditional finality tests, defendant’s
conviction was final as of November 23, 2004, the last day to file a certiorari petition in
the United States Supreme Court. (In re Gomez (2009) 45 Cal.4th 650, 655; see Caspari
v. Bohlen (1994) 510 U.S. 383, 390.) The new rule in Howard, supra, 34 Cal.4th at page
1139 was established on January 27, 2005. Thus, defendant is not entitled to retroactive
application of Howard.
       The Attorney General expressly raised the retroactivity issue in the informal
response and return. The traverse does not (for good reason because to do so would only
call unwelcome attention to the problem) deny the retroactivity allegations of the
Attorney General. Thus, the retroactivity allegations of the Attorney General are deemed
admitted. (People v. Romero, supra, 8 Cal.4th at p. 739; In re Lewallen (1979) 23 Cal.3d
274, 277.)
       Third, assuming defendant is entitled to the benefit of Howard, the error was
harmless beyond a reasonable doubt. When the sole theory presented to the jury is

                                               2
legally inadequate, under California law, the instructional error is generally reversible.
(People v. Nunez (2013) 57 Cal.4th 1, 42 [‘“cases involving a “legally inadequate theory”
are “‘subject to the rule generally requiring reversal”’] first italics in original, second
italics added; People v. Guiton (1993) 4 Cal.4th 1116, 1127 [same].) But this is not the
general case. This is probably the most aggravated violation of Vehicle Code section
2800.2 in California history. This is the most malice laden pursuit and ensuing crashes I
have ever seen. There were multiple crashes during the pursuit. Gunfire from defendant
and his confederates was directed at pursuing police officers. In my view, given that this
is the ultimate extreme and not the general case, Guiton with its virtual automatic reversal
rule, is not controlling.
       Further, at some point, I would urge our Supreme Court to reconsider Guiton,
which abides by the automatic reversible error analysis in People v. Green (1980) 27
Cal.3d 1, 70-71, overruled on a different point in People v. Morgan (2007) 42 Cal.4th
593, 611. Green holds that when there is a verdict which could have been based on valid
and invalid theories, the error is always reversible. In my respectful view, Green is a
state, not federal, rule. Green cannot be squared with the federal constitutional analysis
in Griffin v. United States (1991) 502 U.S. 46, 59-60, concerning instruction on valid and
invalid theories. Griffin holds no federal constitutional violation results in that scenario.
(Ibid.) The United States Supreme Court described its holding in Griffin thusly: “Thus,
Sochor implicitly suggests that, if the jury was allowed to rely on any of two or more
independent grounds, one of which is infirm, we should presume that the resulting
general verdict rested on the infirm ground and must be set aside. See Mills v. Maryland
[(1988)] 486 U.S. 367, 376-377; cf. Stromberg v. California [(1931)] 283 U.S. 359, 368.
Just this Term, however, we held it was no violation of due process that a trial court
instructed a jury on two different legal theories, one supported by the evidence, the other
not. See Griffin v. United States, [supra,] 502 U.S. [at p.] 46. We reasoned that although
a jury is unlikely to disregard a theory flawed in law, it is indeed likely to disregard an
option simply unsupported by evidence. [(Id., at 59-60.)] We see no occasion for

                                               3
different reasoning here, and accordingly decline to presume jury error.” (Sochor v.
Florida (1992) 504 U.S. 527, 538 [refusing to find an Eighth Amendment violation when
it cannot be determined how a jury resolved an aggravating factor in capital litigation].)
Thus, it would seem Green and by extension Guiton articulates a state rule--one which
must be subject to the People v. Watson (1956) 46 Cal.2d 818, 836 prejudice analysis.
(See People v. Breverman (1998) 19 Cal.4th 142, 164-179.) I recognize this may not be
the proper case to engage in a reevaluation of Guiton and Green. In my view, this case is
resolvable based on the hyper-extreme evidence of malice which falls outside the general
rule in Guiton.
       Fourth, I wish to emphasize the body of my colleagues’ opinion makes clear the
prosecution may retry defendant. At present, our disposition merely vacates the
conviction. But the opinion’s discussion clarifies defendant may be retried for murder.




                                          TURNER, P. J.




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