residual clause in California

2023In that case, “the United States Supreme Court considered the ‘residual clause’ of the Armed Career Criminal Act of 1984 (ACCA) . . . , is no less crucial to the potential for deprivation of liberty on the part of the accused than are the elements of the underlying crime,” and thus that “there is no reason why due process should not require the same specificity in defining the special circumstance that it requires in the definition of the crime itself.” (Ibid.) 26 which imposes increased penalties for the federal crime of felon in possession of a firearm if the defendant has three or more prio

2021Johnson In Johnson, the United States Supreme Court held the residual clause of the Armed Career Criminal Act of 1984 (ACCA) was impermissibly vague. 6 (Johnson, supra, 576 U.S. at p. 597 .) The ACCA forbids certain individuals from possessing firearms and punishes a person with three or more prior convictions for a “violent felony” more harshly.

2021Defendant cites Welch v. United States (2016) ___ U.S. ___, ___ [ 136 S.Ct. 1257, 1264 ], as support that Johnson announced a “new rule.” But the “new rule” of Johnson was its holding that the residual clause of the ACCA was void for vagueness.

2021(Welch, supra, 136 S.Ct. at p. 1265 [“By striking down the residual clause as void for vagueness, Johnson changed the substantive reach of the Armed Career Criminal Act, altering ‘the range of conduct or the class of persons that the [Act] punishes’ ”].) Johnson did not purport to set forth a new test for determining whether a law is unconstitutionally vague.

2023In that case, “the United States Supreme Court considered the ‘residual clause’ of the Armed Career Criminal Act of 1984 (ACCA) . . . , is no less crucial to the potential for deprivation of liberty on the part of the accused than are the elements of the underlying crime,” and thus that “there is no reason why due process should not require the same specificity in defining the special circumstance that it requires in the definition of the crime itself.” (Ibid.) 26 which imposes increased penalties for the federal crime of felon in possession of a firearm if the defendant has three or more prio

2021This is precisely the type of determination that Johnson held was beyond the void-for-vagueness problem presented by the residual clause.” (Id. at pp. 838–839.) The court also observed, “[A]ppellate courts have routinely assessed the validity of aggravated kidnapping convictions in published decisions without suggestion that the section 209, subdivision (b)(2) asportation requirement is unworkable or too vague to be constitutional.” (Ledesma, supra, 14 Cal.App.5th at p. 836 .) The court concluded with a quote from our Supreme Court. “ ‘ “The law is replete with instances in which a person must

2022The residual clause pronounced that a “violent felony” included “any felony that ‘involves conduct that presents a serious potential risk of physical injury to another,’ [citation].” (Id. at p. 593.) What made this language unconstitutionally vague, Johnson reasoned, was that this assessment was to be made categorically—that is, by looking to “the kind of conduct that [the felony at issue] involves in ‘the ordinary case,’ and to judge whether that abstraction presents a serious potential risk of physical injury.” (Id. at 596.) Because the categorical approach “tie[d] the judicial assessment of

2020(See People v. Frandsen (2019) 33 Cal.App.5th 1126, 1143 [rejecting vagueness challenge based on Johnson to California’s second degree felony-murder rule requiring commission of an inherently dangerous felony]; Ledesma, supra, 14 Cal.App.5th 830, 839-840 [rejecting Johnson vagueness challenge based on the asportation element in aggravated kidnapping and the one strike law]; White, supra, 3 Cal.App.5th at pp. 453-454 [rejecting Johnson 15 vagueness challenge based on the term “sexually violent criminal behavior” in the Sexually Violent Predator Act].) Unlike the residual clause in Johnson, Cali

2019In James v. United States (2007) 550 U.S. 192 , 226, 127 S.Ct. 1586 , 167 L.Ed.2d 532 ( James )-a case cited in Johnson to illustrate how speculative and detached from statutory elements a categorical approach under the ACCA presents-the court was tasked with deciding whether an attempted burglary is a violent felony under the residual clause.

2019In James v. United States (2007) 550 U.S. 192 , 226, 127 S.Ct. 1586 , 167 L.Ed.2d 532 ( James )-a case cited in Johnson to illustrate how speculative and detached from statutory elements a categorical approach under the ACCA presents-the court was tasked with deciding whether an attempted burglary is a violent felony under the residual clause.

2019The majority and the dissent set forth vastly different scenarios to support their respective positions: the majority envisioned a confrontation in which a homeowner may chase after a would-be burglar, while the dissent envisioned a confrontation limited to a homeowner yelling, "who's there?" and the would-be burglar running away. ( *675 James, supra, at pp. 211, 226 , 127 S.Ct. 1586 .) As the Johnson court observed, the residual clause offered "no reliable way to choose between these competing accounts of what 'ordinary' attempted burglary involves." ( Johnson, supra, 135 S.Ct. at p. 2558 .)

2019The majority and the dissent set forth vastly different scenarios to support their respective positions: the majority envisioned a confrontation in which a homeowner may chase after a would-be burglar, while the dissent envisioned a confrontation limited to a homeowner yelling, "who's there?" and the would-be burglar running away. ( *675 James, supra, at pp. 211, 226 , 127 S.Ct. 1586 .) As the Johnson court observed, the residual clause offered "no reliable way to choose between these competing accounts of what 'ordinary' attempted burglary involves." ( Johnson, supra, 135 S.Ct. at p. 2558 .)

2026Sessions, supra, 584 U.S. at p. 175 .) Assault with intent to commit rape remained an aggravated felony after Lynch, as that crime relies on the elements clause of the federal definition, not the residual clause.

2026Sessions, supra, 584 U.S. at p. 175 .) Assault with intent to commit rape remained an aggravated felony after Lynch, as that crime relies on the elements clause of the federal definition, not the residual clause.

2019(Johnson, supra, 135 S.Ct. at p. 2560 [“The clause has ‘created numerous splits among the lower federal courts,’ where it has proved ‘nearly impossible to apply consistently,’” quoting Chambers v. United States (2009) 555 U.S. 122, 133 (con. opn. of Alito, J.), abrogated on other grounds in Johnson, supra, 135 S.Ct. at p. 2562 .) As the court observed, “this Court’s repeated attempts and repeated failures to craft a principled and objective standard out of the residual clause confirm its hopeless indeterminacy.” (Johnson, supra, 135 S.Ct. at p. 2558 .) 26 In our view, Johnson did not put an en

2019(Johnson, supra, 135 S.Ct. at p. 2560 [“The clause has ‘created numerous splits among the lower federal courts,’ where it has proved ‘nearly impossible 25 to apply consistently,’” quoting Chambers v. United States (2009) 555 U.S. 122, 133 (con. opn. of Alito, J.), abrogated on other grounds in Johnson, supra, 135 S.Ct. at p. 2562 .) As the court observed, “this Court’s repeated attempts and repeated failures to craft a principled and objective standard out of the residual clause confirm its hopeless indeterminacy.” (Johnson, supra, 135 S.Ct. at p. 2558 .) In our view, Johnson did not put an en

2019Given that record, we cannot find that he is entitled to a reversal of his conviction under Johnson ."] 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 , 138 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.) Johnson also expressly did n

2019Given that record, we cannot find that he is entitled to a reversal of his conviction under Johnson ."] 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 , 138 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.) Johnson also expressly did n

2019The 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).

2019The 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).

2021Application of these factors in any given case will necessarily depend on the particular facts and context of the case.” (People v. Dominguez (2006) 39 Cal.4th 1141, 1153 , italics added and original italics deleted.) Fourth, quoting the Johnson court’s observation that the residual clause of the ACCA “has proved ‘nearly impossible to apply consistently’ ” (Johnson, supra, 576 U.S. at p. 601 ), defendant claims the asportation standard of aggravated kidnapping is similarly suspect because it is applied inconsistently.

2017(See People v. Dominguez (2006) 39 Cal.4th 1141 , 1151-1152, 47 Cal.Rptr.3d 575 , 140 P.3d 866 [summarizing the standard applied in determining the asportation element of aggravated kidnapping; explaining that "the jury must 'consider [ ] the "scope and nature" of the movement,' as well as 'the context of the environment in which the movement occurred' " (italics omitted) & articulating "various circumstances the jury should consider, such as whether the movement decreases the likelihood of detection, increases the danger inherent in a victim's foreseeable attempts to escape, or enhances the a

2019(Cf. District of Columbia v. Heller (2008) 554 U.S. 570 , 625, 128 S.Ct. 2783 , 171 L.Ed.2d 637 [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.

2019(Cf. District of Columbia v. Heller (2008) 554 U.S. 570 , 625, 128 S.Ct. 2783 , 171 L.Ed.2d 637 [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.

2019(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.

2019(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.

2019That avoids the compounded indeterminacy the United States Supreme Court found violative of due process. ( Johnson , supra , --- U.S. ----, 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 before us.' [Citation.]" ( Facebook , Inc. v. Superior Court (2018) 4 Cal.5th 1245 , 1275, fn. 31, 233 Cal.Rptr.3d 77 , 417 P.3d 725 .) The due process faults the United States Supreme Court found in categorical analysis of the ACCA's residual clause with regard to pri

2019That avoids the compounded indeterminacy the United States Supreme Court found violative of due process. ( Johnson , supra , --- U.S. ----, 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 before us.' [Citation.]" ( Facebook , Inc. v. Superior Court (2018) 4 Cal.5th 1245 , 1275, fn. 31, 233 Cal.Rptr.3d 77 , 417 P.3d 725 .) The due process faults the United States Supreme Court found in categorical analysis of the ACCA's residual clause with regard to pri

2019(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

2019There, 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 (9th Cir. 2018) 899 F.3d 703 , 709 [S

2019(See, e.g., People v. Lopez (1971) 6 Cal.3d 45 , 51, 98 Cal.Rptr. 44 , 489 P.2d 1372 [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 *979 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 , 13

2019(See, e.g., People v. Lopez (1971) 6 Cal.3d 45 , 51, 98 Cal.Rptr. 44 , 489 P.2d 1372 [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 *979 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 , 13

2017(See People v. Dominguez (2006) 39 Cal.4th 1141 , 1151-1152, 47 Cal.Rptr.3d 575 , 140 P.3d 866 [summarizing the standard applied in determining the asportation element of aggravated kidnapping; explaining that "the jury must 'consider [ ] the "scope and nature" of the movement,' as well as 'the context of the environment in which the movement occurred' " (italics omitted) & articulating "various circumstances the jury should consider, such as whether the movement decreases the likelihood of detection, increases the danger inherent in a victim's foreseeable attempts to escape, or enhances the a

2017(See People v. Dominguez (2006) 39 Cal.4th 1141 , 1151-1152, 47 Cal.Rptr.3d 575 , 140 P.3d 866 [summarizing the standard applied in determining the asportation element of aggravated kidnapping; explaining that "the jury must 'consider [ ] the "scope and nature" of the movement,' as well as 'the context of the environment in which the movement occurred' " (italics omitted) & articulating "various circumstances the jury should consider, such as whether the movement decreases the likelihood of detection, increases the danger inherent in a victim's foreseeable attempts to escape, or enhances the a

2017(See People v. Dominguez (2006) 39 Cal.4th 1141 , 1151-1152, 47 Cal.Rptr.3d 575 , 140 P.3d 866 [summarizing the standard applied in determining the asportation element of aggravated kidnapping; explaining that "the jury must 'consider [ ] the "scope and nature" of the movement,' as well as 'the context of the environment in which the movement occurred' " (italics omitted) & articulating "various circumstances the jury should consider, such as whether the movement decreases the likelihood of detection, increases the danger inherent in a victim's foreseeable attempts to escape, or enhances the a

2017(See People v. Dominguez (2006) 39 Cal.4th 1141 , 1151-1152, 47 Cal.Rptr.3d 575 , 140 P.3d 866 [summarizing the standard applied in determining the asportation element of aggravated kidnapping; explaining that "the jury must 'consider [ ] the "scope and nature" of the movement,' as well as 'the context of the environment in which the movement occurred' " (italics omitted) & articulating "various circumstances the jury should consider, such as whether the movement decreases the likelihood of detection, increases the danger inherent in a victim's foreseeable attempts to escape, or enhances the a

2017(See People v. Dominguez (2006) 39 Cal.4th 1141 , 1151-1152, 47 Cal.Rptr.3d 575 , 140 P.3d 866 [summarizing the standard applied in determining the asportation element of aggravated kidnapping; explaining that "the jury must 'consider [ ] the "scope and nature" of the movement,' as well as 'the context of the environment in which the movement occurred' " (italics omitted) & articulating "various circumstances the jury should consider, such as whether the movement decreases the likelihood of detection, increases the danger inherent in a victim's foreseeable attempts to escape, or enhances the a

2017(See People v. Dominguez (2006) 39 Cal.4th 1141 , 1151-1152, 47 Cal.Rptr.3d 575 , 140 P.3d 866 [summarizing the standard applied in determining the asportation element of aggravated kidnapping; explaining that "the jury must 'consider [ ] the "scope and nature" of the movement,' as well as 'the context of the environment in which the movement occurred' " (italics omitted) & articulating "various circumstances the jury should consider, such as whether the movement decreases the likelihood of detection, increases the danger inherent in a victim's foreseeable attempts to escape, or enhances the a