People v. Clark

*642 BROUSSARD, J.,

Concurring and Dissenting.—I agree with the majority opinion that the special circumstance of murder by means of explosives is inapplicable, but dissent from its conclusion that the special circumstance of felony murder can be sustained. The majority correctly recognize that the trial court erred in failing to instruct the jury, pursuant to People v. Green (1980) 27 Cal.3d 1, 61-62 [ 164 Cal.Rptr. 1 , 609 P.2d 468 ], that the arson-murder special circumstance is applicable only when the defendant has an independent felonious purpose for the commission of the arson. That special circumstance is not applicable when the arson is simply incidental to, or committed to facilitate, the murder.

The majority conclude, however, that the error was not prejudicial. They point to evidence that defendant’s initial plan was to set fires to drive the Gawronskis out of their house, then to shoot David Gawronski as he emerged. Defendant left buckets of gasoline by various doors to compel the Gawronskis to flee by the front door, and threw a bucket of gasoline and a highway flare into the Gawronskis’ bedroom. Although recognizing that substantial evidence supports the jury’s implied finding 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” (maj. opn., ante, at p. 609), the majority conclude that “when he commenced the arson his intent was to start a fire that would drive the family out of the home. . . . 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.” (Maj. opn., ante, at p. 609.)

This analysis is plainly wrong, on two counts. First, an essential element of the crime of arson is the burning of a part of the building. (See Pen. Code, § 451; People v. Haggerty (1873) 46 Cal. 354, 355 ; Woolsey v. State (1891) 30 Tex.App. 346 [ 17 S.W. 546 ] [setting fire to a bed insufficient to constitute arson of a building when the bed was removed, and the fire extinguished, before any part of the building burned].) Under the reasoning of the prosecutor, the implied findings of the jury, and the majority’s own words, when defendant actually set fire to the gasoline in the Gawronski home—and thus when the burning commenced—his intent was to kill the family members by burning. The fact that defendant earlier entertained a different plan is irrelevant. When defendant actually committed the crime of arson, he did so intending to kill the victims by burning, and had no independent purpose for his action.

Second, even if defendant set the fire to cause the Gawronskis to go to a place where he could shoot and kill David, that would not constitute an *643 independent felonious purpose under the reasoning of Green, supra, 27 Cal.3d 1 . In that case, defendant took the murder victim’s purse and clothing to hinder identification and thus facilitate his escape. Although his acts constituted the crime of robbery, we held that because the robbery was merely incidental to the murder, it could not support a felony-murder special circumstance. (P. 62.) We explained that “the Legislature must have intended that each special circumstance provide a rational basis for distinguishing between those murderers who deserve to be considered for the death penalty and those who do not. . . . The [felony-murder] provision thus expressed a legislative 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 purpose. . . . [fl] The Legislature’s goal is not achieved, however, when the defendant’s intent is not to steal but to kill and the robbery is merely incidental to the murder . . . because its sole object is to facilitate or conceal the primary crime . . . .” (P. 61, italics added.) 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 defendant can more easily kill him, the felony lacks a purpose independent from the murder, and cannot support a felony-murder special circumstance.

Green (supra, 27 Cal.3d 1 ) pointed out the absurdity that can result if a felony incidental to the murder can render the defendant eligible for the death penalty. In the context of that case, we explained that it would be irrational to hold “that this defendant can be subjected to the death penalty because he took his victim’s clothing for the purpose of burning it later to prevent identification, when another defendant who committed an identical first degree murder could not be subjected to the death penalty if for the same purpose he buried the victim fully clothed—or even if he doused the clothed body with gasoline and burned it at the scene instead.” (P. 61.) Similarly in this case it is irrational to hold this defendant is subject to the death penalty because he initially intended to set a fire to drive the victim from the house and then shoot him, when a defendant who from the beginning intended to burn the victim to death in the conflagration would not be subject to the death penalty, and neither would a defendant who planned to shoot the victim first and then burn down the house to conceal the murder. 1 *644 The death penalty should not turn on such a narrow, technical and insignificant distinction as that invoked as a basis for the majority opinion.

I conclude that the trial court should have instructed the jury that to find a felony-murder special circumstance based on arson it must determine that defendant had an independent felonious purpose for the commission of the arson. The court’s failure to so instruct was prejudicial error. Since neither the special circumstance of murder by means of explosives nor that of felony murder can be sustained, the findings of special circumstances and the penalty judgment should be reversed, and the case remanded for a new trial.

Mosk, J., concurred.

Justice Kaufman finds an absurdity in the application of the Green rule to this case: that if defendant committed the arson intending to kill the victim and succeeded, he would not be death eligible since the burning was done to facilitate the murder, while if he committed the arson for an independent purpose but inadvertently killed an occupant, he would be subject to the death penalty. (Conc, and dis. opn. of Kaufman, J., * post, at p. 655.) I agree that it is absurd for a defendant who kills unintentionally to be subject to the death penalty when a defendant who intended to kill is ineligible for that punishment—regardless of whether death *644 results from burning, shooting, knifing, or any other cause. But Justice Kaufman misplaces the source of the absurdity. It is found not in People v. Green, supra, 27 Cal.3d 1 , but in the felony-murder special circumstances and its application to unintentional killers.

Retired Associate Justice of the Court of Appeal sitting under assignement by the Chairperson of the Judicial Council.

Retired Associate Justice of the Supreme Court sitting under assignment by the Acting Chairperson of the Judicial Council.

All further statutory references are to the Penal Code unless otherwise indicated.