In re Arellano CA2/5

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…