Filed 4/30/19; See Dissenting Opinion CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO E068801 In re GREGORY WHITE (Super.Ct.No. RIC1512917) on Habeas Corpus. OPINION ORIGINAL PROCEEDINGS; petition for writ of habeas corpus. Richard A. Erwood, Judge. Petition is denied. John P. Dwyer, under appointment by the Court of Appeal, for Petitioner. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina, Meagan J. Beale, and Lynne G. McGinnis, Deputy Attorneys General, for Respondent. 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 1 All further citations are to the Penal Code, unless otherwise indicated. 1 Supreme Court’s decision in Johnson v. United States (2015) __ U.S. __, 135 S.Ct. 2551 (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 2 After briefing was complete, this court issued a tentative opinion preparatory to oral argument. The tentative opinion was based on the law existing at the time of petitioner’s offense and trial. We became aware that effective January 1, 2019, after the tentative opinion issued but before oral argument, Senate Bill 1437 (2017-2018 Reg. Sess.) (SB 1437) amended sections 188 and 189 and created new section 1170.95. The amendments to sections 188 and 189 together change the felony murder rules and the “natural and probable consequences theory” when convicting a participant in a felony for murder, but who did not actually kill the victim. Of interest here, effective January 1, 2019, the second degree felony-murder rule in California is eliminated. However, the change does not automatically apply to convictions that are final before the effective date, like petitioner’s. Instead, section 1170.95 establishes a procedure for such defendants to apply to the sentencing superior court to have their murder conviction vacated and be resentenced on any remaining counts, where certain conditions are met. (§ 1170.95, subd. (a)(1)-(3).) In light of these amendments, the Attorney General filed a letter brief here on January 30, 2019, the week before oral argument, formally providing notice to the court and counsel of the changes. At oral argument on February 5, 2019, counsel for petitioner stated that petitioner had not yet petitioned for relief under SB 1437 but would do so within 14 days. The Attorney General pointed out that until petitioner obtains relief, if he does, he is still subject to the second degree felony-murder conviction; if relief is denied, he remains subject to the conviction and the pre-SB 1437 law. Further, the Attorney General represented that the SB 1437 petition process in superior court is just beginning and that early experience is that the process may take months to complete. Counsel for petitioner did not contradict the time issue. We accept it, arguendo, at face value. Additionally, we are still subject to our Supreme ...
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