Clark v. Calderon

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

WILLIAM CLARK,  No. 02-99007

Petitioner-Appellant, D.C. No.

v. CV-95-00334-DOC

JILL BROWN, Warden, California ORDER

State Prison at San Quentin,*  AMENDING

Respondent-Appellee. OPINION AND

DENYING

REHEARING AND

AMENDED

 OPINION

Appeal from the United States District Court

for the Central District of California

David O. Carter, District Judge, Presiding

Argued and Submitted

February 17, 2005—San Francisco, California

Filed March 17, 2006

Amended May 30, 2006

Before: Dorothy W. Nelson, William A. Fletcher, and

Raymond C. Fisher, Circuit Judges.

Opinion by Judge William A. Fletcher

*Jill Brown is substituted for Jeanne S. Woodford, her predecessor as

Warden of San Quentin State Prison. See Fed. R. App. P. 43(c)(2).

5853

CLARK v. BROWN 5857

COUNSEL

Maria E. Stratton, Sean K. Kennedy and Mark R. Droz-

dowski, Office of the Federal Public Defender, Los Angeles,

California, for the petitioner-appellant.

Bill Lockyer, Robert R. Anderson, Pamela C. Hamanaka,

Keith H. Borjon and Scott A. Taryle, Office of the California

Attorney General, Los Angeles, California, for the

respondent-appellee.

5858 CLARK v. BROWN

ORDER

This court’s opinion filed March 17, 2006, and published

at Clark v. Brown, 442 F.3d 708 (9th Cir. March 17, 2006) is

amended as follows:

The last two lines of slip op. 2802 and the first line of 2803,

replace the sentence:

“Not only was Murtishaw a non-capital special circum-

stance felony-murder case in which the Court was careful to

distinguish Green, as just noted.”

With:

“Not only was Murtishaw a non-special circumstance

felony-murder case in which the Court was careful to distin-

guish Green, as just noted.”

With this amendment, the panel has voted to deny the peti-

tion for rehearing. Judges Fletcher and Fisher have voted to

deny the petition for rehearing en banc; and Judge Nelson so

recommends.

The full court has been advised of the petition for rehearing

en banc and no judge of the court has requested a vote on

whether to rehear the matter en banc. Fed. R. App. P. 35.

The petition for rehearing and the petition for rehearing en

banc, filed April 27, 2006, are DENIED.

OPINION

W. FLETCHER, Circuit Judge:

William Clark, a California death row inmate, appeals the

district court’s denial of his 28 U.S.C. § 2254 habeas corpus

CLARK v. BROWN 5859

petition asserting several constitutional errors related to his

sentence. We hold that there were two interrelated due pro-

cess violations in this case. First, we hold that the state trial

court’s failure to give a felony-murder special circumstance

jury instruction based on the California Supreme Court’s deci-

sion in People v. Green, 27 Cal. 3d 1 (1980), violated Clark’s

due process right to present a complete defense. Second, we

hold that the California Supreme Court’s retroactive applica-

tion of a new interpretation of Green and of the felony-murder

special circumstance statute, on direct review, violated

Clark’s due process right to fair warning that his conduct

made him death-eligible. Finally, we hold that these violations

were not harmless. We do not reach Clark’s remaining chal-

lenges to his sentence. Our decision does not affect Clark’s

conviction for first-degree murder, his two convictions for

attempted second degree murder, and his conviction for arson.

I. Background

In the early morning hours of January 6, 1982, Clark threw

gasoline into the house where David and Ava Gawronski and

their infant daughter Sara were sleeping. He then ignited the

gasoline by throwing highway flares into the house. David

Gawronski suffered second- and third-degree burns over 90

percent of his body and died eight days later. Ava Gawronski

was so seriously burned that she was hospitalized for 10

months. She ultimately lost her fingers and nose, and suffered

additional permanent injuries. Sara, the baby, was rescued

unharmed by a neighbor.

Clark surrendered to authorities and confessed the next day.

He contended that his plan had been to set the fires in order

to drive the family out of the house, and then to kill David

Gawronski with a shotgun in front of Ava once the family

was outside. Ava Gawronski had been Clark’s therapist. A

short time before the fires, she had discontinued Clark’s coun-

seling sessions against his wishes. Clark’s stated purpose was

5860 CLARK v. BROWN

to cause her to suffer the same emotional pain that he claimed

to have suffered when she discontinued his therapy.

Clark was charged with first-degree murder of David

Gawronski, attempted first-degree murder of Ava and Sara

Gawronski, and arson. The state also charged two special cir-

cumstances that would make Clark death-eligible: murder by

means of explosive, and murder in the commission of a felony

(arson).

The defense theory of the case was that while Clark

intended to kill David Gawronski by means of his plan, he

never intended to kill or physically injure Ava or Sara

Gawronski. Clark took the stand at trial and admitted both the

arson and intent to kill David Gawronski. However, he con-

tested the attempted murder charges and contested the two

special circumstances.

By contrast, the prosecution theory of the case was that

Clark intended to kill the entire family in the house by means

of the fires. The prosecution presented evidence at trial that

Clark first set a fire in the dining room, thereby trapping

David and Ava Gawronski in their bedroom, and then set fire

to their bedroom.

Clark’s defense counsel Charles English requested the

then-standard jury instruction on the felony-murder special

circumstance, California Jury Instruction (CALJIC) 8.81.17.

This instruction contained language based on the California

Supreme Court’s decision in People v. Green, 27 Cal. 3d 1

(1980). Green and CALJIC 8.81.17 provided a narrowing

construction of California’s felony-murder special circum-

stance statute. Under Green, the State had to show that the

murder was “committed in order to carry out or advance the

commission of the crime” of arson, “or to facilitate the escape

therefrom or to avoid detection” of the arson. It was not

enough to show that the arson was “merely incidental” to the

murder.

CLARK v. BROWN 5861

The prosecutor objected to the CALJIC instruction

requested by Clark. Instead, he sought an instruction that sim-

ply tracked the language of the felony-murder special circum-

stance statute without adding the narrowing construction then

required by Green. The language of the statute, and the prose-

cutor’s requested instruction, required only that the murder

have been committed while Clark “was engaged in” the com-

mission or attempted commission of arson. See Cal. Penal

Code § 190.2(a)(17)(viii) (1995) (current version at Cal. Penal

Code § 190.2(a)(17)(H)). The trial court rejected the Green-

based CALJIC instruction requested by Clark and gave the

instruction requested by the prosecutor.

The jury convicted Clark of first-degree murder of David

Gawronski, attempted second-degree murders of Ava and

Sara Gawronski, and arson.1 It also found both special cir-

cumstances true, thereby making Clark death-eligible. After

seven days of further deliberation, the jury hung on the ques-

tion of penalty and was excused. The State then retried the

penalty question before a new jury. Clark represented himself

during the penalty retrial. After four hours of deliberation, the

second penalty jury returned a verdict of death.

On automatic appeal, the California Supreme Court struck

the explosives special circumstance. People v. Clark, 50 Cal.

3d 583, 638-39 (1990). It affirmed Clark’s conviction for the

felony-murder circumstance, but only after substantially rein-

terpreting its earlier decision in Green. Id. at 606-09. It then

affirmed Clark’s death sentence. Id. at 638-39. The United

States Supreme Court denied Clark’s petition for certiorari.

Clark v. California, 498 U.S. 973 (1990). The California

Supreme Court dismissed Clark’s first habeas petition for fail-

ure to state a claim and denied Clark’s second habeas petition

on procedural grounds. In re Clark, 5 Cal. 4th 750, 761, 799

(1993).

1

Clark was also convicted of the unrelated charge of rape of his ex-wife.

The rape conviction is not relevant to this appeal.

5862 CLARK v. BROWN

On December 13, 1995, Clark filed a petition for habeas

corpus in federal district court, raising issues as to both the

guilt and penalty phases of his trial. The district court denied

the petition in its entirety, but granted sua sponte a Certificate

of Appealability on Clark’s felony-murder special circum-

stance claim. Clark has appealed only issues relating to his

sentence.

We review de novo the district court’s decision to grant or

deny a 28 U.S.C. § 2254 habeas petition. Douglas v. Wood-

ford, 316 F.3d 1079, 1085 (9th Cir. 2003). Because Clark

filed his habeas petition before the effective date of the Anti-

terrorism and Effective Death Penalty Act of 1996

(“AEDPA”) of April 24, 1996, pre-AEDPA law applies. See

Woodford v. Garceau, 538 U.S. 202, 207 (2003). Under pre-

AEDPA law, the state court’s findings of fact are “entitled to

a presumption of correctness unless they are ‘not fairly sup-

ported by the record.’ ” Silva v. Woodford, 279 F.3d 825, 835

(9th Cir. 2002) (quoting former 28 U.S.C. § 2254(d)(8)). We

review questions of law de novo. Gratzer v. Mahoney, 397

F.3d 686, 690 (9th Cir. 2005). In pre-AEDPA cases, we also

review de novo the state court’s conclusion that a constitu-

tional error was harmless. Ghent v. Woodford, 279 F.3d 1121,

1126 (9th Cir. 2002).

II. Analysis

Because the California Supreme Court struck the explo-

sives special circumstance, the felony-murder special circum-

stance is all that makes Clark death-eligible. If the jury’s

guilty verdict on the felony-murder special circumstance is

reversed, the death penalty must also be reversed.

Clark contends that the felony-murder special circumstance

must be reversed for two interrelated reasons. First, he con-

tends that the trial court’s failure to give his requested jury

instruction under Green violated due process under California

v. Trombetta, 467 U.S. 479, 485 (1984), by unfairly depriving

CLARK v. BROWN 5863

him of “a meaningful opportunity to present a complete

defense.” Second, he argues that the California Supreme

Court’s expansion of Green and reinterpretation of the felony-

murder special circumstance statute was an unforeseeable

new interpretation of California law, and that the retroactive

application of this new interpretation on appeal violated due

process under Bouie v. City of Columbia, 378 U.S. 347, 362

(1964). We agree with both of Clark’s contentions. Because

we reverse the felony-murder special circumstance, we do not

reach other issues raised by Clark, including his competence

to waive counsel and represent himself during his second pen-

alty trial.

A. Failure to Give the Green Instruction

[1] The fact that a jury instruction violates state law is not,

by itself, a basis for federal habeas corpus relief. “[F]ederal

habeas corpus relief does not lie for errors of state law.” Lewis

v. Jeffers, 497 U.S. 764, 780 (1990). “Federal habeas courts

therefore do not grant relief, as might a state appellate court,

simply because the instruction may have been deficient in

comparison to the CALJIC model.” Estelle v. McGuire, 502

U.S. 62, 72 (1991). On federal habeas, the issue is “whether

the ailing instruction by itself so infected the entire trial that

the resulting conviction violates due process.” Id. (quoting

Cupp v. Naughten, 414 U.S. 141, 147 (1973)). The burden on

the habeas petitioner is “especially heavy” where, as here, the

alleged error involves the failure to give an instruction. Hen-

dricks v. Vasquez, 974 F.2d 1099, 1106 (9th Cir. 1992) (as

amended) (quoting Henderson v. Kibbe, 431 U.S. 145, 155

(1997).

[2] Due process requires that criminal prosecutions “com-

port with prevailing notions of fundamental fairness” and that

“criminal defendants be afforded a meaningful opportunity to

present a complete defense.” Trombetta, 467 U.S. at 485.

When habeas is sought under 28 U.S.C. § 2254, “[f]ailure to

instruct on the defense theory of the case is reversible error

5864 CLARK v. BROWN

if the theory is legally sound and evidence in the case makes

it applicable.” Beardslee v. Woodford, 358 F.3d 560, 577 (9th

Cir. 2004) (as amended); see also Bradley v. Duncan, 315

F.3d 1091, 1098 (9th Cir. 2002) (“[T]he right to present a

defense would be empty if it did not entail the further right to

an instruction that allowed the jury to consider the defense.”)

(internal quotation marks omitted); Conde v. Henry, 198 F.3d

734, 739 (9th Cir. 2000) (as amended) (“It is well established

that a criminal defendant is entitled to adequate instructions

on the defense theory of the case.”). A habeas petitioner must

show that the alleged instructional error “had substantial and

injurious effect or influence in determining the jury’s ver-

dict.” Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (cita-

tion omitted); see also Beardslee, 358 F.3d at 578.

[3] Clark was charged with the felony-murder (arson) spe-

cial circumstance under former California Penal Code

§ 190.2(a)(17). This special circumstance provided for the

death penalty or life imprisonment without the possibility of

parole if “[t]he murder was committed while the defendant

was engaged in or was an accomplice in the commission of,

attempted commission of, or the immediate flight after com-

mitting or attempting to commit the following felonies: . . .

(viii) Arson in violation of Section 447.” Cal. Penal Code

§ 190.2(a)(17)(viii) (amended 1995).2 In People v. Green, 27

2

Both People v. Green, 27 Cal. 3d 1 (1980), and People v. Thompson,

27 Cal. 3d 303 (1980), construe an earlier version of the felony-murder

special circumstance that required the murder to have been “committed

during the commission or attempted commission” of five enumerated

crimes. Cal. Penal Code § 190.2(c)(3) (1977) (emphasis added). By the

time of Clark’s trial, the statute had been amended to provide that the spe-

cial circumstance exists if “[t]he murder was committed while the defen-

dant was engaged in or was an accomplice in the commission of,

attempted commission of, or the immediate flight after committing or

attempting to commit” nine enumerated felonies. Cal. Penal Code

§ 190.2(a)(17)(viii) (amended 1995) (emphasis added). California case

law does not draw a substantive distinction between “during the commis-

sion” and “engaged in the commission of,” and we treat them as having

an identical meaning for purposes of this case.

CLARK v. BROWN 5865

Cal. 3d 1, 61 (1980), the California Supreme Court narrowed

the felony-murder special circumstance statute in order to

comply with the requirement of Furman v. Georgia, 408 U.S.

238 (1972), and Gregg v. Georgia, 428 U.S. 153 (1976), that

“each special circumstance provide a rational basis for distin-

guishing between those murderers who deserve to be consid-

ered for the death penalty and those who do not.” See also

Williams v. Calderon, 52 F.3d 1465, 1476 (9th Cir. 1995)

(explaining that Green’s narrowing construction was added

“out of constitutional necessity, not mere state law nicety,”

for the special circumstance would otherwise “run afoul of the

requirements” of Furman and Gregg).

[4] In Green, the California Supreme Court wrote that the

felony-murder special circumstance statute “expressed a legis-

lative belief that it was not unconstitutionally arbitrary to

expose to the death penalty those defendants who killed in

cold blood in order to advance an independent felonious pur-

pose[.]” 27 Cal. 3d at 61 (emphasis added). The California

Supreme Court explained that there is no “independent feloni-

ous purpose” within the meaning of the statute when the fel-

ony is “incidental” to the murder. Id. Green held that a felony

whose “sole object is to facilitate or conceal the primary

crime” of murder is “incidental,” and therefore does not qual-

ify a defendant for the death penalty under the special circum-

stance statute. Id. (emphasis added).

In Green itself, a husband killed his wife and subsequently

took her clothes, rings and purse in order to conceal her iden-

tity. Id. at 62. The California Supreme Court held that this

felonious robbery of the wife’s belongings was insufficient to

support a felony-murder special circumstance conviction

because Green did not commit the robbery for a reason inde-

pendent of the murder, and then commit the murder to

advance the purpose of committing the robbery. Rather,

Green committed the robbery in order to facilitate or conceal

the murder. In other words, the robbery was “incidental” to

the murder. The California Supreme Court summarized its

5866 CLARK v. BROWN

rationale in Green: The felony-murder special circumstance

had not been proved because the crime “was not in fact a mur-

der in the commission of a robbery but the exact opposite, a

robbery in the commission of a murder.” Id. at 60.

Clark took the stand at trial. He testified that he had set the

fires as a means to the end of killing David Gawronski in

front of Ava Gawronski, and that he had no intention of kill-

ing anyone else. Clark testified that his purpose when he

arrived at the house was to set two fires, one at the back of

the house and one in the dining room area, in order to force

the family out the front door. He testified that he first threw

a bucket of gasoline into what he thought was a back room of

the house. When he heard screaming from the room, he real-

ized it was in fact David and Ava Gawronski’s bedroom.

Even though his plan had now gone awry, he threw a flare

into the bedroom to ignite the gasoline. He testified that he

then went to the patio at the side of the house and threw a sec-

ond bucket of gasoline into the dining room, either through a

pane of glass or through a glass door. He then threw a second

flare into the house, igniting the gasoline in the dining room.

Clark testified that when he threw the flare into the bed-

room, “I knew that they were in there; and it was apparent to

me that I was not going to — well, I’d realized at that point

that I was not going to do what I’d set out to do specifically.

I guess if I had a plan at that point, my plan was simply to

carry out whatever other steps I had already preplanned and

that was it. It wasn’t working. I couldn’t take it back. I

couldn’t change it. So I simply played out what I had left.”

Clark testified that he then realized that his plan “was no lon-

ger operable” because David Gawronski “wasn’t going to

come out the front door.” Clark returned to his car, put his

shotgun in the trunk, and drove away.

On direct examination, defense counsel English asked

Clark, “Was the fire incidental to your intent to murder David

Gawronski?” The prosecutor objected. The trial court sus-

CLARK v. BROWN 5867

tained the objection because in its view, the question called

for a “self-serving” answer regarding Clark’s intent, which

the court three times stated was “an ultimate fact” to be

decided by the jury. The court emphasized that this ultimate

fact was “to be decided by the jury based on the totality of the

evidence; whether or not his conduct was in fact primary or

incidental.”

After the court’s ruling on the objection, English continued

his direct examination:

Q: What was your primary goal in going to the

[Gawronski house] that evening?

A: To shoot David in front of Ava.

Q: And in relation to that primary objective, what

relationship did the fire have?

A: The fire was a tactic to achieve an overall stra-

tegic goal, if you want to use those terms. It was a

means to an end.

These questions (and answers) were designed to show that

Clark had no independent felonious intent within the meaning

of Green because the arson was incidental to his primary

intent to kill David Gawronski. That is, the arson was “inci-

dental” because it was intended to “facilitate” the crime of

murder. See Green, 27 Cal. 3d at 61.

In support of his theory that Clark intended to kill the entire

Gawronski family in the house by means of the fires, the pros-

ecutor sought to prove that Clark trapped David and Ava

Gawronski in the bedroom by first setting fire to the dining

room rather than the bedroom. Ava Gawronski testified to

intense heat emanating from the dining room before there was

a fire in the bedroom. Thomas Derby, a Los Angeles Fire

Department expert, testified that the fire in the dining room

5868 CLARK v. BROWN

was started first, and that, based on burn patterns and the

upright position of a bucket inside the dining room, gasoline

was distributed in the house by someone who had been inside

the house. Carl Rasmusson, another Los Angeles Fire Depart-

ment expert, also testified that the evidence tended to show

that the dining room fire was started first, and that someone

had been inside the house to set that fire.

At the close of Clark’s trial, defense counsel English

requested a jury instruction based on CALJIC 8.81.17. The

second paragraph of the instruction had been added in light of

the Green decision. The entire requested instruction read as

follows:

To find that the special circumstance, referred to

in these instructions as murder in the commission of

an arson is true, it must be proved:

1. That the murder was committed while the

defendant was engaged in the commission of an

arson; and,

2. That the murder was committed in order to

carry out or advance the commission of the crime of

arson or to facilitate the escape therefrom or to avoid

detection. In other words, the special circumstance

referred to in these instructions is not established if

the arson was merely incidental to the commission of

the murder.

The prosecutor argued that paragraph 2, the Green-based

instruction, was inappropriate “simply because the arson was

not incidental.” The trial court agreed with the prosecutor.

Reasoning that the Green instruction would be “confusing to

the jury,” the court declined to define “incidental” and gave

the CALJIC instruction without paragraph 2.

CLARK v. BROWN 5869

English protested the trial court’s ruling, arguing that the

failure to give the Green instruction would critically under-

mine the defense theory of the case. He said:

This case has been tried from day one about a Green

instruction. We have talked about Green. There was

an enormous amount of questioning about the intent

and how the intent was to be done and what the

arson had. [sic] We had days of testimony about that.

And for the Court at this point to say there is not suf-

ficient evidence to even let the jury consider it I sub-

mit is completely erroneous . . . .

The transcript bears out English’s statement that Clark’s

defense had depended from the beginning on securing a

Green instruction. In his opening argument, English conceded

guilt on everything except the attempted murder and special

circumstances charges. English told the jury that “[t]he ques-

tion that you are really going to have to decide and that will

cause you the most time and the most effort, and the defense

will put most of their emphasis on, is the question of whether

the special circumstances apply.” He further explained that, in

the context of the felony-murder special circumstance, the

words “engaged in the commission of an arson” have “spe-

cific and limited application and the Court, of course, will be

instructing you on those.”

The jury returned a verdict finding Clark guilty of first-

degree murder of David Gawronski, attempted second-degree

murders of Ava and Sara Gawronski, and arson. It also found

Clark guilty of the felony-murder special circumstance.

On automatic appeal, the California Supreme Court sub-

stantially reinterpreted Green, as we describe more fully

below. Under the Court’s new interpretation of Green, Clark

was not guilty of the felony-murder special circumstance if he

intended to kill David Gawronski by committing arson to kill

him inside the house. But Clark was guilty of the special cir-

5870 CLARK v. BROWN

cumstance if he had “independent, albeit concurrent, goals” of

committing arson and killing David Gawronski. Clark, 50

Cal. 3d at 609. Surprisingly, under this new view of Green,

Clark was not guilty of the felony-murder special circum-

stance if the prosecutor’s version of the facts were believed.

Clark could be guilty of the special circumstance only if his

own version of the facts were believed — under which he

might have had, in the California Supreme Court’s words, the

“independent, albeit concurrent, goals” of committing arson

and killing David Gawronski. Id.

Because evidence had been presented — by the prosecutor

— under which Clark could have been found not guilty of the

special circumstance under the California Supreme Court’s

new interpretation of Green, the Court held that it had been

“error” not to give an “instruction based on Green” at trial.

But the Court held, under its new view of Green, that the error

had been harmless. Clark, 50 Cal. 3d at 609. The error was

harmless, in the Court’s view, because there was “overwhelm-

ing” evidence supporting Clark’s contention that he had origi-

nally intended that the fires drive the family out of the house.

Id. The Court wrote:

[D]efendant’s own testimony, his extrajudicial state-

ments made before and after the offense, and the

shotgun and ammunition found in the trunk of his

rental car after the offense, afford overwhelming evi-

dence that when he commenced the arson his intent

was to start a fire that would drive the family out of

the home. At that time his purpose was not to kill

David Gawronski.

Id.

[5] We hold that under California’s felony-murder special

circumstance statute, as interpreted in Green, both at the time

of his crime and at the time of his trial, Clark was entitled to

an instruction that told the jury he was not guilty of the spe-

CLARK v. BROWN 5871

cial circumstance if the arson was a felony whose “sole object

[was] to facilitate . . . the primary crime” of murder. Green,

27 Cal. 3d at 61. Clark conceded that he had set the fires at

the Gawronski house, and he conceded that he intended to kill

David Gawronski. Under Clark’s theory of the case, he did

not have an “independent felonious purpose” in committing

arson. Id. Rather, he set the fires only for the purpose of driv-

ing David Gawronski out of the house so that he could shoot

him. He was therefore entitled, both on his own and on the

prosecutor’s theories of the case, to the Green instruction con-

tained in paragraph 2 of CALJIC 8.81.1.

The next question is whether Clark was entitled, under the

due process clause, to that instruction. We now turn to that

question.

B. Retroactive Application

On appeal of Clark’s conviction and sentence, the Califor-

nia Supreme Court abandoned its earlier interpretation of the

California felony-murder special circumstance statute in

Green. Under its new interpretation of Green, the Court held

that the trial court erred in not giving the instruction Clark had

requested, but on a different ground than that argued by Clark.

The Court then held the error harmless based on its new inter-

pretation of the statute. Clark contends that the California

Supreme Court’s new interpretation violated due process by

retroactively changing the felony-murder special circum-

stance statute to reach his conduct. We agree.

On appeal in Clark’s case, the California Supreme Court

wrote:

In People v. Green, . . . , 27 Cal.3d 1, a case in

which the “felony murder” special circumstance of

the 1977 death penalty law was construed, this court

held that the special circumstance was inapplicable

to cases in which the defendant intended to commit

5872 CLARK v. BROWN

murder and only incidentally committed one of the

specified felonies while doing so. We explained in

People v. Robertson (1982) 33 Cal.3d 21, however,

that when the defendant has an independent purpose

for the commission of the felony, and it is not simply

incidental to the intended murder, Green is inappli-

cable.

Setting a fire to drive the occupants out of a home

would establish an independent purpose since the

fire is not intended to kill. Thus, if defendant’s testi-

mony and statements are believed, the death of

David Gawronski fell squarely within the purpose of

the felony-murder-arson special circumstance. The

victim died in an arson fire set by defendant for a

purpose other than causing his death. As in People

v. Robertson, . . . 33 Cal.3d 21, the underlying fel-

ony, here arson, was not simply incidental to the

intended murder of David Gawronski, which was to

be committed by another means independent of the

arson. The relation between defendant’s intent to

murder David Gawronski, and his intent to burn the

Gawronski home, would not invoke the Green rule

since defendant had independent, albeit concurrent,

goals.

There was also circumstantial evidence, however,

to support a conclusion, and indeed the prosecutor

argued and the jury apparently agreed, that when

defendant actually set fire to the gasoline in the

Gawronski home, regardless of the order in which

the rooms were torched, defendant intended to kill

the family members. The trial court erred, therefore,

in refusing to give defendant’s requested instruction

based on Green that the arson special circumstance

could not be found true unless defendant had a pur-

pose for commission of the arson independent of

causing the death of David Gawronski.

CLARK v. BROWN 5873

By any standard the error was harmless. We rec-

ognize that the jury verdicts finding defendant guilty

of the attempted second degree murder of Ava

Gawronski and Sara Gawronski confirm that the jury

believed defendant ignited the gasoline vapor with

the intent thereby to kill the family members in the

ensuing fire. Nonetheless, defendant’s own testi-

mony, his extrajudicial statements made before and

after the offense, and the shotgun and ammunition

found in the trunk of his rental car after the offense,

afford overwhelming evidence that when he com-

menced the arson his intent was to start a fire that

would drive the family out of the home. At that time

his purpose was not to kill David Gawronski. His

belated realization that the Gawronski bedroom was

occupied, and his resolution to proceed with his plan

nonetheless, does not negate the evidence that he had

a purpose independent of causing the death of David

Gawronski in his commission of arson.

In light of that evidence, omission of the requested

instruction was not prejudicial and the felony-

murder-arson special-circumstance allegation was

properly found true.

Clark, 50 Cal. 3d at 608-09 (footnote omitted).

Justice Broussard, joined by Justice Mosk, dissented from

the Court’s reinterpretation of Green. Id. at 642-44. Justices

Broussard and Mosk agreed with the Court that under the

prosecutor’s theory of the case — in which Clark intended

that the fires kill the entire family in the house — Green

required the jury to acquit Clark of the felony-murder special

circumstance. But they disagreed with the Court’s conclusion

that under Clark’s theory of the case — in which Clark

intended that the arson drive the family out of the house so

that he could kill David Gawronski — Green allowed a con-

viction. After quoting from Green, Justice Broussard wrote:

5874 CLARK v. BROWN

Thus if, as here, the defendant’s purpose in setting

the fire is not to destroy property, but to drive the

intended victim to a place where the defendant can

more easily kill him, the felony lacks a purpose inde-

pendent from the murder, and cannot support a

felony-murder special circumstance.

Id. at 643 (Broussard, J., dissenting) (emphasis in original).

[6] As indicated by Justice Broussard’s dissent, the Califor-

nia Supreme Court substantially reinterpreted Green in

Clark’s appeal. Under Green, if the sole purpose of the felony

was to “facilitate” the commission of the murder, the felony

was “incidental.” An incidental felony did not qualify a defen-

dant for the death penalty under the felony-murder special cir-

cumstances statute. Rather under Green, a felony qualified

under the special circumstance statute only if two require-

ments were satisfied: (1) the felony, such as robbery or arson,

must have been committed for a purpose “independent” of the

murder, and (2) the murder must have been committed in

order to advance that “independent felonious purpose.” 27

Cal. 3d at 61. The example given by the Court in Green of a

felony murder qualifying as a special circumstance was the

murder of a witness to, or victim of, a holdup, kidnaping or

rape. Id. In the Court’s example, the holdup, kidnaping or

rape was the “independent” felony (requirement one). The

murder of the witness or victim was committed in order to

advance the independent felonious purpose of the holdup, kid-

naping or rape (requirement two).

[7] On appeal in Clark, the California Supreme Court sig-

nificantly changed the first requirement and entirely dis-

pensed with the second. The Court changed the first

requirement by expanding the definition of an “independent”

purpose to include a concurrent purpose that was not — in

any ordinary sense of the term, and, more important, in the

sense used in Green — a purpose “independent” of the mur-

der. On the prosecutor’s theory of the case, Clark intended to

CLARK v. BROWN 5875

kill the entire family, including David Gawronski, directly by

means of the fire. On Clark’s theory of the case, he intended

to kill David Gawronski indirectly by means of the fire, driv-

ing him out of the house so he could shoot him. On either the-

ory, the arson was not “independent” of the murder; rather,

under both theories, the arson was a means to kill David

Gawronski.

The Court dispensed entirely with the second requirement

that the murder have the purpose of advancing the “indepen-

dent felonious purpose” of the arson. There was never any

contention — by either the prosecutor or Clark — that Clark

murdered David Gawronski in order to advance his purpose

of committing arson.

[8] Thus, in holding that Clark’s arson was not “incidental”

to the murder of David Gawronski, the California Supreme

Court dramatically altered the interpretation of the special cir-

cumstance statute that it had previously provided in Green.

Under the California Supreme Court’s new interpretation of

the felony-murder special circumstance statute, the Green

instruction should have been given, but not for the reason

advocated by Clark. Rather, according to the Court in Clark,

the Green instruction should have been given to allow the jury

to acquit on the special circumstance charge if it agreed with

the prosecutor’s theory of the case — that is, if it agreed that

the fires had been set in order to kill the entire family in the

house. If those had been the facts, the Court wrote, the arson

would not have qualified as a special circumstance. But the

Court held that the failure to give the Green instruction had

been harmless because there was “overwhelming” evidence

that Clark intended that the fires drive the family out of the

house. 50 Cal. 3d at 609. Under the Court’s new interpretation

of the statute, Clark’s purpose of driving the family out of the

house now qualified as an “independent, albeit concurrent”

purpose. Id.

[9] An unforeseeable judicial enlargement of a criminal

statute, applied retroactively, violates the federal due process

5876 CLARK v. BROWN

right to fair warning of what constitutes criminal conduct. See

Bouie v. City of Columbia, 378 U.S. 347, 353 (1964); see also

Rogers v. Tennessee, 532 U.S. 451, 459 (2001) (Bouie articu-

lated a “basic and general principle of fair warning”); LaG-

rand v. Stewart, 133 F.3d 1253, 1260 (9th Cir. 1998) (“[T]he

Due Process Clause . . . protects criminal defendants against

novel developments in judicial doctrine.”). A judicial con-

struction of a statute may violate due process if the defendant

was “unfairly surprised in a way that affected his legal

defense.” Darnell v. Swinney, 823 F.2d 299, 301 (9th Cir.

1987). The “crucial test” is “whether the construction actually

given the statute was foreseeable.” McSherry v. Block, 880

F.2d 1049, 1053 (9th Cir. 1989) (citation omitted); see also

Oxborrow v. Eikenberry, 877 F.2d 1395, 1399 (9th Cir. 1989)

(“An unforeseeable, albeit legitimate, construction of a state

law by the courts may not be retroactively applied to a defen-

dant.”). A new judicial interpretation of a special circum-

stance provision can be challenged under Bouie because

“[s]pecial circumstances that make a criminal defendant eligi-

ble for the death penalty operate as ‘the functional equivalent

of an element of a greater offense.’ ” Webster v. Woodford,

369 F.3d 1062, 1068 (9th Cir. 2004) (as amended) (quoting

Ring v. Arizona, 536 U.S. 584, 609 (2002)).

Based on our decision in McSherry v. Block, the State

argues that Bouie is inapplicable because Clark had fair warn-

ing that his conduct was criminal. In McSherry, we distin-

guished Bouie on the ground that “there was no danger that

a person pursuing what would otherwise be purely innocent

behavior could be ensnared by the statute with no warning

whatsoever.” 880 F.2d at 1056. We wrote, “[I]t simply cannot

be said that appellant had no fair warning that the particular

conduct in which he was engaged was punishable.” Id.; see

also Darnell, 823 F.2d at 301 (holding that there was no

Bouie violation where defendant “clearly had fair warning

that his contemplated conduct — attempting to possess stolen

property — was criminal”). We disagree with the State’s

argument, for applying McSherry’s rationale to the retroactive

CLARK v. BROWN 5877

application of an unforeseeable modification of a special cir-

cumstance statute would be both unworkable and contrary to

Bouie.

Because a felony-murder special circumstance necessarily

involves conduct that is criminal, acceptance of the State’s

argument would mean that no judicial expansion of a death-

qualifying special circumstance could ever be challenged

under Bouie on retroactivity grounds. But Bouie itself states

that a prohibited ex post facto law either “makes an action

done before the passing of the law, and which was innocent

when done, criminal” or “aggravates a crime, or makes it

greater than it was, when committed.” 378 U.S. at 353

(emphasis added) (citation omitted). “If a state legislature is

barred by the Ex Post Facto Clause from passing such a law,

it must follow that a State Supreme Court is barred by the Due

Process Clause from achieving precisely the same result by

judicial construction.” Id. at 353-54. In Webster, we implicitly

— but clearly — rejected the State’s suggested application of

McSherry to special circumstance statutes. Without once sug-

gesting that Bouie was inapplicable because the behavior in

question was inherently criminal, we conducted a thorough

Bouie analysis of a death-qualifying special circumstance stat-

ute to determine whether it had been improperly expanded

and retroactively applied. 369 F.3d at 1073-75.

“The beginning point for a Bouie analysis is the statutory

language at issue, its legislative history, and judicial construc-

tions of the statute.” Id. at 1069. The statute under which

Clark was sentenced provided simply that the murder must be

committed “while the defendant was engaged in or . . . in the

commission of, attempted commission of, or the immediate

flight after committing or attempting to commit” arson. Cal.

Penal Code § 190.2(a)(17)(viii) (amended 1995). Broad statu-

tory language generally precludes a Bouie challenge. See

McSherry, 880 F.2d at 1052 (“[T]he very ambiguity that

exists in this statute is, in part, what saves appellant’s convic-

tion.”). If the California Supreme Court’s decision in Clark

5878 CLARK v. BROWN

interpreting the felony-murder special circumstance statute

had been written on a clean slate, it would not constitute a due

process violation, or indeed anything close to it. In that event,

there could have been no federal constitutional objection to

the Court’s interpretation of the statute, for the California

Supreme Court is the final arbiter of the meaning of its state’s

statutes. But the Court was not writing on a clean slate, for it

had previously narrowed the felony-murder special circum-

stance statute in Green.

An established part of our foreseeability inquiry under

Bouie is whether prior judicial interpretations have “narrowed

the clear terms of the statute[ ] to [a defendant’s] benefit”

before the commission of the crime. LaGrand, 133 F.3d at

1260. In examining judicial interpretations of California’s

special circumstance statute, we give “primacy to controlling

decisions of the California Supreme Court, but must also con-

sider intermediate appellate court rulings to the extent they

offer predictive value in determining whether a particular con-

struction was unexpected or unforeseen.” Webster, 369 F.3d

at 1070 (“lying in wait” special circumstance is a “specific

California statute[ ], with a long history of California judicial

construction”). Because the Bouie analysis focuses on notice

to the defendant, we look only to cases decided before the

crime was committed. See LaGrand, 133 F.3d at 1261 n.2.

The decisions of the California appellate courts indicate

that, at the time Clark committed his crimes, Green’s interpre-

tation of the felony-murder special circumstance statute was

well-established, and that the California Supreme Court’s new

interpretation of that statute in Clark was unforeseeable. None

of the three relevant, or possibly relevant, cases decided

between the date of the Court’s decision in Green (April 24,

1980) and the date of Clark’s crime (January 6, 1982) under-

mined Green’s holding. Two were felony-murder special cir-

cumstance cases that clearly followed Green. The third, upon

which the State relies, was a simple felony-murder case that

had no bearing on a special circumstance case.

CLARK v. BROWN 5879

In People v. Thompson, 27 Cal. 3d 303, 325 (1980), the

California Supreme Court held that there was insufficient evi-

dence to support robbery and burglary special circumstances.

The defendant in Thompson had broken into a house and had

held a male and a female occupant at gunpoint. He purported

to be seeking money and valuables, but when they were

offered he did not take them. After forcing the two occupants

to the living room, he stated, “You know why I’m here and

you know who sent me.” He then fired three shots into each

of them, killing the man and wounding the woman. He left the

house with the keys to the man’s car. Id. at 310-11. He took

no other property. Id. at 323.

The Court spent three paragraphs describing its then-recent

decision in Green. Id. at 321-22. It held that there was insuffi-

cient evidence to support a conviction for theft, or intended

theft, of anything but the car keys. See id. at 323-24. The

Court held that the theft of the keys was not an independent

felony within the meaning of Green because it was most rea-

sonably seen as a means of facilitating the defendant’s escape.

Noting that the defendant had arrived at the house on foot, the

Court wrote, “[H]e had a motive to take a car simply to effect

his getaway from the shootings he intended; and the fact that

his first demand for the car was made just prior to the shoot-

ings suggests that this was indeed his reason for demanding

the car keys.” Id. at 324. The Court therefore concluded that

the evidence was “insufficient to establish that the crime . . .

was ‘in fact a murder in the commission of a robbery [rather

than] the exact opposite, a robbery in the commission of a

murder.’ ” Id. at 325 (quoting Green, 27 Cal. 3d at 60) (brack-

eted language in original) (footnote omitted). There was no

discussion in Thompson of concurrent purposes.

In Ario v. Superior Court, 124 Cal. App. 3d 285, 287

(1981), a California Court of Appeal granted a writ preventing

the trial court from proceeding on allegations of a kidnaping-

murder special circumstance. The defendant had transported

the victims from their home to another site in order to murder

5880 CLARK v. BROWN

them. See id. at 289. The court held that a felony-murder spe-

cial circumstance could not be sought where the kidnaping

was “for the purpose of accomplishing the murders” and

hence “incidental” to the murders. Id. at 289-90. As in

Thompson, the crucial question was whether the defendant

had a “separate purpose” for committing the felony “other

than merely to facilitate the primary crime of murder.” Id. at

289. There was no discussion in Ario of concurrent purposes.

Finally, the state relies on the California Supreme Court’s

decision in People v. Murtishaw, 29 Cal. 3d 733 (1981).

Murtishaw involved the felony-murder rule rather than the

felony-murder special circumstance statute. The difference

between the two is significant. The felony-murder rule broad-

ens criminal liability, imposing a kind of vicarious liability for

murders that occur during the commission of a felony. A

defendant may be convicted of murder under the felony-

murder rule if he is involved in the commission of a felony

during which a murder occurs, even if he does not do the kill-

ing. The Court in Murtishaw invoked this definition of felony

murder when it wrote: “[T]he prosecution may seek to prove

[the charge of felony murder] by showing that the homicide

occurred during the commission of an enumerated felony.” Id.

at 751. The felony-murder special circumstance statute, by

contrast, narrows criminal liability, allowing capital punish-

ment only for a certain restricted class of murders. Under the

felony-murder special circumstance statute, as defined in

Green, a defendant is not death-eligible for ordinary felony

murder. Rather, he is death-eligible only if the murder

advances an independent felonious purpose, such as the mur-

der of a witness to a felony in order to avoid identification.

In Murtishaw, the Court held that there was sufficient evi-

dence to support a felony-murder conviction because the jury

could have concluded that the defendant acted with the “con-

current goals of killing the victims and taking their car.” Id.

at 752. In a footnote, the Court in Murtishaw distinguished

Green by explaining that “the theft here was not ancillary to

CLARK v. BROWN 5881

the murder, but if [the witness’s] testimony is believed, a con-

current objective.” Id. at 752 n.13. The Court had been careful

to state that the issue in Murtishaw was first-degree felony

murder, not felony-murder special circumstance. Id. at 750-

51. Footnote 13, just quoted, insured that the reader under-

stood that the two were different.

Felony murder, without more, does not make a defendant

eligible for the death penalty. California’s felony-murder rule

is significantly broader than its felony-murder special circum-

stance statute. Because the death penalty is not at stake in a

simple felony-murder case, the requirements of Furman and

Gregg (which were responsible for the California Supreme

Court’s narrowing of the felony-murder special circumstance

statute in Green, see 27 Cal. 3d at 61-62) are not in play. The

Court’s holding in Murtishaw that the defendant’s concurrent

objectives to murder the victims and steal their car was suffi-

cient to support a verdict of felony murder thus has no bearing

on Green.

Footnote 13 in Murtishaw was not a fair warning that the

California Supreme Court would expand Green’s definition of

felony-murder special circumstance in deciding Clark’s case.

Not only was Murtishaw a non-special circumstance felony-

murder case in which the Court was careful to distinguish

Green, as just noted. In addition, the Court did not cite Murt-

ishaw in People v. Robertson, 33 Cal. 3d 21 (1982), a case

decided a year after Murtishaw, in which it applied Green.

Nor did the Court cite Murtishaw in Clark itself.

The only case cited by the California Supreme Court in

Clark in support of its new interpretation was the Robertson

case, just mentioned. Clark committed his crime in January of

1982. Robertson was decided in December of that year. The

Court’s very citation of Robertson in Clark helps show that

Clark was an unforeseeable departure from Green. The Court

in Clark wrote:

5882 CLARK v. BROWN

We explained in People v. Robertson (1982) 33

Cal.3d 21, however, that when the defendant has an

independent purpose for the commission of the fel-

ony, and it is not simply incidental to the intended

murder, Green is inapplicable.

50 Cal.3d at 608.

Robertson was a capital case in which the defendant raped

and killed two women, and stole their underwear for his “col-

lection.” 33 Cal. 3d at 33. When the defendant was arrested,

the underwear of several women (not limited to that of the

two victims) was found concealed under his bed. Id. at 32.

The Court wrote:

[T]he jury could reasonably have concluded . . . that

from the outset of both incidents defendant harbored

the intent to steal some of the victims’ underwear or

other personal property as well as the intent to

assault them sexually. Unlike in Green, such an

intent to steal was entirely independent of the mur-

ders and was not planned simply as a means of con-

cealing the killings. Because the jury could . . .

reasonably have found that defendant killed both

victims when he became afraid that they would

report his intended crimes, this case appears to fall

within the class of cases as to which — under

Green’s analysis — the “felony-murder” special cir-

cumstance of the 1977 statute may properly apply.

33 Cal. 3d at 52. That is, in accordance with the standard

Green analysis, the jury could have concluded in Robertson

that the defendant killed his victims in order to further his

independent felonious purpose of stealing their underwear or

other personal belongings. Thus, far from giving fair warning

of a substantial modification of Green, Robertson cited Green

and applied it in an entirely predictable way.

CLARK v. BROWN 5883

[10] To evaluate foreseeability, we may also look to the

CALJIC instruction in place at the time of trial. In Webster,

we held that the fact that the challenged jury instruction in

that case tracked the standard CALJIC instruction was “one

of the strongest indications” of foreseeability. 369 F.3d at

1075. We wrote, “Given the existence and wide publication

of this standard instruction, it was foreseeable that it would be

applied.” Id. As described above, paragraph 2 of CALJIC

8.81.17 had specifically incorporated Green’s holding. CAL-

JIC 8.81.17 has since been amended to include a comment

stating that “[c]oncurrent intent to kill and commit an inde-

pendent felony will support a felony-murder special circum-

stance.” But the two cases cited in support of this comment

are Clark and People v. Raley, 2 Cal. 4th 870, 903 (1992), a

case relying on Clark. No pre-Clark case is cited. There is

thus no indication whatsoever in CALJIC 8.81.17, as it

existed at the time of Clark’s trial, that the concept of “con-

current” purposes in the context of special circumstance pre-

dated the California Supreme Court’s decision in Clark. And

there is a strong indication from the later-adopted version of

CALJIC 8.81.17, as evidenced by its citation to Clark and

Raley in the accompanying comment, that the concept of

“concurrent” purposes did not exist prior to Clark.

That the California Supreme Court’s new interpretation of

the arson-murder special circumstance statute was unforesee-

able is demonstrated by the deeply ironic result it produced.

Clark’s trial strategy had been to prove precisely what the

Court now held was a special circumstance making him eligi-

ble for the death penalty. The prosecutor had tried to show

that Clark had tried to kill the entire family, including David

Gawronski, in the house by means of the fires. By contrast,

Clark’s experienced and skilled trial counsel, Charles English,

had tried to show that Clark set the fires in order to drive the

family out of the house. Now, under the Court’s new interpre-

tation of Green, what Clark had been at pains to show at trial

was precisely what defeated his appeal.

5884 CLARK v. BROWN

[11] We conclude from the foregoing that the California

Supreme Court’s new interpretation of the felony-murder spe-

cial circumstance in Clark’s case was a substantial change

from its prior interpretation of that statute in Green. This new

interpretation and its retroactive application were “unexpected

and indefensible by reference to the law which had been

expressed prior to the conduct in issue.” Rogers, 532 U.S. at

461 (quoting Bouie, 378 U.S. at 354). We therefore hold that

the California Supreme Court’s retroactive application of its

new interpretation of the felony-murder special circumstance

statute in Clark’s case violated due process.

C. Harmless Error

We have now concluded that the failure to give the instruc-

tion in paragraph 2 of CALJIC 8.81.17 violated due process

under Trombetta and Bouie. The final question is whether

these violations were harmless. Under Brecht v. Abrahamson,

507 U.S. 619, 637 (1993), habeas corpus relief may be

granted only if the failure to give the Green instruction “had

a substantial and injurious effect or influence in determining

the jury’s verdict.”

The instruction given to the jury simply echoed the words

of the felony-murder special circumstance statute. The

instruction provided, without elaboration or narrowing, that

“it must be proved . . . [t]hat the murder was committed while

the defendant was engaged in the commission or attempted

commission of an arson.” (Emphasis added.) The jury was

not told that the arson must not have been “incidental” to the

murder within the meaning of Green.

[12] If the jury had been properly instructed under Green,

there is a reasonable probability that it would have concluded

that the arson was “incidental” and that the felony-murder

special circumstance therefore was not true. See Belmontes v.

Brown, 414 F.3d 1094, 1139 (9th Cir. 2005) (construing

Brecht to require “a reasonable probability” that the jury

CLARK v. BROWN 5885

would have reached a different verdict). Clark presented sub-

stantial evidence from which the jury could have concluded

that he intended to set fire to the house to drive the family

outside so that he could shoot David Gawronski in front of

Ava Gawronski. It is fairly clear that the jury accepted Clark’s

version of the facts, for it found him guilty of attempted

second-degree murders of Ava and Sara Gawronski. If the

jury had believed the prosecutor’s version of the facts — that

Clark set the fires in order to kill the entire family in the

house — it would have returned a verdict of attempted first-

degree murders of Ava and Sara Gawronski. We are rein-

forced in this view of the evidence by the California Supreme

Court’s statement that the evidence supporting Clark’s con-

tention that when he set the fires he intended to drive the fam-

ily out of the house — was “overwhelming.” Clark, 50 Cal.

3d at 609.

[13] We therefore hold that the failure to give the Green-

based instruction contained in paragraph 2 of CALJIC 8.81.17

“had a substantial and injurious effect or influence in deter-

mining the jury’s verdict.” Brecht, 507 U.S. at 637.

Conclusion

[14] We hold that there were two interrelated due process

violations in this case: first, the trial court’s refusal to give the

Green-based instruction, and, second, the California Supreme

Court’s retroactive application of its unforeseeable new inter-

pretation of Green. We further hold that these violations were

not harmless. We therefore reverse the district court’s denial

of Clark’s petition for habeas corpus. We remand to the dis-

trict court with instructions to grant relief with respect to his

death sentence.

Clark’s convictions for the first-degree murder of David

Gawronski, for the attempted second-degree murders of Ava

and Sara Gawronski, and for arson are unaffected by our deci-

sion.

REVERSED and REMANDED.