People v. Clark

KAUFMAN, J., *

Concurring and Dissenting.—I concur in the judgment except for the portion ordering stayed the sentence for the arson conviction pending service of the sentence for murder and the sentences for attempted murder. I would affirm the judgment in its entirety. In my view the Penal Code section 654 1 issue is erroneously determined and a number of other issues are incorrectly analyzed and resolved by the majority. Further, one significant issue resolved by the majority, whether correctly or incorrectly, should not be resolved at all in this case because its resolution is unnecessary to deciding this case.

To get them out of the way I start with several errors in the majority opinion that would be of little importance if opinions of this court were not published.

I.

In rejecting defendant’s claim that assault instructions should have been given by the court, the majority erroneously and gratuitously states that “to have done so would have been error of constitutional dimension.” (Maj. opn., ante, at p. 637.) Implicit in defendant’s contention on appeal, however, is that he would have desired such an instruction and would not have objected to it. Under those circumstances there would have been no error, much less constitutional error, had such instructions been given. (See People v. Toro (1989) 47 Cal.3d 966 [ 254 Cal.Rptr. 811 , 766 P.2d 577 ].) I agree, however, the court was not required to give such instructions sua sponte.

*645 II.

The majority’s conclusion that section 654 requires a stay of the sentence on the arson conviction (maj. opn., ante, at p. 637) is apparently based on the notion that the arson consisted of a single act rather than a course of conduct and that the evidence that defendant may have had an intent or objective in committing the arson other than murder or attempted murder is of no consequence. I do not agree. The evidence plainly shows that the arson conviction was based upon several acts, in fact, two separate acts of throwing and igniting gasoline, so there was a “course of conduct” involved in the arson and the intent and purpose of defendant must be considered in determining whether that course of conduct can be punished under more than one penal statute.

Whether a course of conduct is to be considered a single act for purposes of section 654 depends upon whether the course of conduct was “indivisible,” which in turn depends upon whether the defendant’s acts were performed with the same intent and for the same purpose. (People v. Beamon (1973) 8 Cal.3d 625, 637-638 [ 105 Cal.Rptr. 681 , 504 P.2d 905 ]; see also People v. Miller (1977) 18 Cal.3d 873, 885 [ 135 Cal.Rptr. 654 , 558 P.2d 552 ]; Neal v. State of California (1960) 55 Cal.2d 11, 19 [ 9 Cal.Rptr. 607 , 357 P.2d 839 ].) That question is a question of fact to be determined by the trial court. (People v. Porter (1987) 194 Cal.App.3d 34, 38 [ 239 Cal.Rptr. 269 ]; People v. Goodall (1982) 131 Cal.App.3d 129, 148 [ 182 Cal.Rptr. 243 ]; People v. Ferguson (1969) 1 Cal.App.3d 68, 74-75 [ 81 Cal.Rptr. 418 ]; People v. Scott (1966) 247 Cal.App.2d 371, 375-376 [ 55 Cal.Rptr. 525 ].)

Impliedly, the trial court here determined the several acts involved in the arson were not committed with the same intent and objective. And clearly there is substantial evidence to support that determination. The first act of throwing gasoline into the house may have been committed, as defendant testified, merely to drive the occupants out of the house. Having heard the occupants screaming and apparently having concluded the occupants could not be forced out as he expected, the second act of throwing gasoline into the house could well have been committed by defendant with the intent to kill all the occupants. This seems likely because after he threw the second quantity of gasoline, defendant put the shotgun away in the trunk of the automobile he had rented and left the scene. Further, he stated that he realized at that time he could not carry out the plan “specifically” but intended “to carry out whatever other steps [he] had already preplanned.” (Maj. opn., ante, at p. 608.)

I conclude the trial court was not required to stay sentence on the arson conviction. (Cf. People v. Ramirez (1979) 93 Cal.App.3d 714, 728-729 [ 156 Cal.Rptr. 94 ]; People v. Ferguson, supra, 1 Cal.App.3d 68, 75 .)

*646 I now turn to matters of greater import.

III.

I agree the defendant’s claim of reversible error in the court’s restriction of the death qualification voir dire is not meritorious. And I agree that is so because the defendant, though not precluded from doing so, did not attempt in the general jury voir dire to inquire whether the severe burns suffered by the victims would cause one or more jurors automatically to vote for the death penalty. But that reason goes only to lack of prejudice; it does not at all answer the question whether the questions should have been permitted in the death qualification voir dire. Contrary to the conclusion of the majority I believe they should have been.

The reason is a simple and practical one. Under our practice, the death qualification voir dire is conducted in sequestration; that is, the other prospective jurors are not present and are not exposed to the repetition of inflammatory questions or the unknown, potentially prejudicial answers of other prospective jurors. (Hovey v. Superior Court (1980) 28 Cal.3d 1, 80-81 [ 168 Cal.Rptr. 128 , 616 P.2d 1301 ].) In my view, for many of the reasons given in Hovey for sequestering jurors for the death qualification voir dire, questions such as counsel wanted to ask here would be better asked in sequestration. No one knows in advance what the answers might be, how emotion packed they might be or what effect they might have on the other jurors.

The majority seems concerned with the possibility that the length of the death qualification voir dire might be overly extended by such questioning. But at the same time the majority concedes the same questions could be asked in the general voir dire. So where is the savings of time? In fact, it appears to me the procedure suggested by the majority would be awkward and more time-consuming. The majority apparently contemplates the asking of such questions at general voir dire unless and until an answer from some juror indicates a problem. The court and counsel would then be required to decide whether to air the matter within hearing of all the other prospective jurors or to go back into a sequestered voir dire session each time a problem arises. What sense does that make?

Further, I am far from persuaded the law supports the conclusion that such questions are outside the proper purview of the death qualification voir dire.

During the death qualification voir dire, defendant sought to inquire whether prospective jurors would automatically vote for the death penalty if *647 a victim suffered serious burn injuries of the kind suffered by one of the victims in this case. The court sustained the People’s objection, ruling that defendant would not be permitted to ask the prospective jurors if the victim’s injuries would determine their penalty verdict. The majority concludes that the proposed inquiry “was not relevant to the death qualification process” because that process “seeks to determine only the views of the prospective jurors about capital punishment in the abstract.” (Maj. opn., ante, at p. 597.) In my view that conclusion unduly and improperly restricts the scope of the death qualification voir dire.

Under Wainwright v. Witt (1985) 469 U.S. 412, 424 [ 83 L.Ed.2d 841, 851-852 , 105 S.Ct. 844 ], the proper standard for determining when a prospective juror may be excluded for cause because of the juror’s views on capital punishment is “whether the juror’s views would ‘prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.’ ” This standard was adopted as a matter of state law in People v. Ghent (1987) 43 Cal.3d 739, 767 [ 239 Cal.Rptr. 82 , 739 P.2d 1250 ]. Penalty phase jurors are instructed that in determining penalty they “shall consider, take into account and be guided by the aggravating and mitigating circumstances” as defined in the instructions and that they shall impose the death penalty if, and only if, the aggravating circumstances outweigh the mitigating circumstances. (§ 190.3.) If a certain factual circumstance by itself would cause a prospective juror automatically to vote either for or against the death penalty, regardless of other aggravating or mitigating circumstances, then that juror holds a capital punishment view impairing his or her ability to perform the duty of a penalty phase juror. Under the Witt standard, such a juror is subject to challenge for cause.

For example, a juror might automatically vote for the death penalty if the defendant had killed more than once, if the murder was premeditated, or if the victim was a child. Another juror might automatically vote against the death penalty if the defendant was less than 21 years old, if the defendant was merely an aider and abettor, if there was only 1 victim, or if the victim was a drug dealer. (As these examples indicate, this issue affects prosecution voir dire as well as defense voir dire. See People v. Coleman (1988) 46 Cal.3d 749, 763 [ 251 Cal.Rptr. 83 , 759 P.2d 1260 ] [“the ruling on a challenge for cause when a prospective juror appears biased in favor of the death penalty [italics added] should be examined in light of the same Witherspoon[-Witt\ standard”].) Because they hold fixed views that interfere with their duty to consider all circumstances relevant to penalty, such jurors are subject to challenge for cause under the Witt standard, and appropriate voir dire should be permitted to uncover such death penalty views.

The roots of the majority’s apparently contrary view may be traced to Witherspoon v. Illinois (1968) 391 U.S. 510 [ 20 L.Ed.2d 776 , 88 S.Ct. 1770 ], *648 Before the standard announced in Witherspoon was “substantially modified” (People v. Ghent, supra, 43 Cal.3d 739, 767 ) by Witt , it was sometimes viewed as permitting a challenge for cause on the ground of bias against the death penalty only if a prospective juror’s responses made it unmistakably clear that he or she would always and in every case vote against imposition of the death penalty. If this were now the proper standard, then the majority might be correct: death qualification voir dire could properly be limited to the views of the prospective jurors about capital punishment in the abstract, and questions regarding the facts of the case could properly be excluded.

But this court has never viewed even the Witherspoon standard as being so restrictive. For example, in People v. Fields (1983) 35 Cal.3d 329 [ 197 Cal.Rptr. 803 , 673 P.2d 680 ], we concluded “that a court may properly excuse [for cause] a prospective juror who would automatically vote against the death penalty in the case before him, regardless of his willingness to consider the death penalty in other cases.” (Id. at pp. 357-358, italics added; accord, People v. Hamilton (1989) 48 Cal.3d 1142, 1166 [ 259 Cal.Rptr. 701 , 774 P.2d 730 ] [maj. opn. of Eagleson, J.].) A footnote in Fields may be construed as restricting this conclusion by suggesting that during the death qualification voir dire the prospective jurors should be informed only of the charges involved in the case, and not of the evidence to be introduced. (People v. Fields, supra, 35 Cal.3d 329, at p. 358, fn. 13 .) But this limitation makes little sense since the scope of voir dire would then be dependent upon the level of detail in the charging document and, more importantly, as explained above, because it would allow many objectionable death penalty views to remain undiscovered. Our post- Witt decisions have not limited the death qualification voir dire to the prospective jurors’ views on the death penalty either in the abstract or in the circumstances shown by the charges.

For example, in People v. Rich (1988) 45 Cal.3d 1036 [ 248 Cal.Rptr. 510 , 755 P.2d 960 ], the defense objected to limitations imposed by the trial court on counsel’s “‘use of the facts of [the] case to determine death penalty attitudes’” but then reached agreement with the prosecution to ask the following question: “ ‘If the facts in this case disclose that [defendant] is guilty of four separate murders and multiple rapes, including the murder of an eleven-year-old girl who was sexually abused and was killed by being thrown off a high bridge, would those facts trigger emotional responses in you that would make it hard to consider life imprisonment without possibility of parole, or would you under those circumstances vote for the death penalty?”’ (Id. at pp. 1104-1105.) We stated that this question “fully comports with the law existing at the time the voir dire examination was held” (id. at p. 1105) and we did not suggest there was anything improper in the inclusion of specific factual detail.

*649 And in People v. Coleman, supra, 46 Cal.3d 749 , we held that a challenge for cause was improperly denied where the prospective juror unequivocally stated he would always vote for death in a case of premeditated murder. (Id. at pp. 766-768.) Two felony-murder special circumstances were alleged and found true; it does not appear from the opinion that the information expressly charged premeditation.

The permissible purposes of death qualification voir dire include exposing not only grounds for challenges for cause, but also grounds for exercise of peremptory challenges. As we explained in People v. Johnson (1989) 47 Cal.3d 1194, 1224 [ 255 Cal.Rptr. 569 , 767 P.2d 1047 ], counsel “should be allowed to ask questions reasonably designed to assist in the intelligent exercise of peremptory challenges whether or not such questions are also likely to uncover grounds for a challenge for cause.” We also explained that the trial court’s discretion to limit death penalty voir dire is the same as its power to limit the general voir dire. In brief, voir dire may not be used to “educate or indoctrinate the jury” and the court has discretion to contain voir dire within these limits. (Ibid.-, see also, People v. Rich, supra, 45 Cal.3d 1036, 1104-1105 .) We noted approvingly in Johnson that the trial court “permitted a wide range of questions regarding prospective jurors’ attitudes about the death penalty.” (Johnson, supra, at p. 1225 .)

The suggestion that the prospective jurors’ attitudes toward the facts of the case should be explored only during the general voir dire seems clearly erroneous.

IV.

Although I do not agree with the majority’s conclusion that gasoline is not an explosive (see part V, post), even if that is true, it is both unnecessary and incorrect to conclude that the gasoline was not “delivered” by defendant in this case. First, if gasoline is not an explosive what difference does it make whether or not it was “delivered”?

Second, the majority’s characterization of the word “deliver” is overly restrictive and unduly pejorative. Presuming a defendant kills with a “true” explosive, does the majority really mean to say he would be death eligible only if he walked up the sidewalk and put the explosive directly into either the mailbox or the recipient’s hands? I think not. (See Webster’s New Internat. Diet. (2d ed. 1957) p. 693: “deliver” means “To give or put forth in action or exercise; to discharge; as, to deliver a blow; to deliver a broadside or a ball.” “Delivery” means “Act or manner of sending forth, discharging, or throwing . . . .”)

*650 Predictably, the majority’s incorrect and unnecessary dictum will come back to haunt this court in deciding “true explosives” special-circumstance cases. And to what end?

V.

1 agree the “explosives” special-circumstance finding cannot be sustained, but not because gasoline is not an explosive within the meaning of Health and Safety Code section 12000 and Penal Code section 190.2, subdivision (a)(6) (hereafter, section 190.2(a)(6)). My conclusion is that gasoline comes literally with the statutory definition of “explosive,” but because section 190.2(a)(6) applies only if the defendant knew or should have known that his use of an “explosive” created a great risk of death and because no instruction on defendant’s intent or knowledge of the explosive character of gasoline was given, the explosives special-circumstance finding cannot be affirmed.

The People argue that defendant’s use of the combination of gasoline vapor and air within the confines of the victims’ bedroom meets the criteria of Health and Safety Code section 12000 and is therefore use of an explosive. They rely in part on that portion of Health and Safety Code section 12000 that broadly defines an explosive as a substance or combination of substances “the primary or common purpose of which is detonation or rapid combustion and which is capable of a relatively instantaneous or rapid release of gas and heat . . . .” 2

The People concede that gasoline is intended principally for use as motor fuel; is not in and of itself necessarily an “explosive”; and, when uncontained, is designed to burn rather than explode. They argue, nonetheless, *651 that the expert testimony establishes that gasoline as used by defendant, meets the statutory definition of an explosive: Vapor is released from the gasoline exposed to air. When ignited in the proper proportion the combination of gasoline vapor and air is capable of producing heat rapidly, and gas is also produced in the form of carbon monoxide and carbon dioxide. This meets the literal definition of an explosive established in Health and Safety Code section 12000 as a “substance . . . capable of a relatively instantaneous or rapid release of gas and heat.” And, of course, as the evidence confirms, when this reaction occurs in a confined space an explosion occurs.

I am satisfied, therefore, that gasoline can be an explosive as that term is defined in Health and Safety Code section 12000. However, section 190.2(a)(6) applies only if the defendant knows or should know that his use of an “explosive” creates a great risk of death. Therefore, the defendant’s intent to cause an explosion, and thus the knowledge he has or reasonably should have about the circumstances in which use of gasoline may cause a deadly explosion, must determine whether this special circumstance applies.

When uncontained gasoline is used in such a manner that a diffuse vapor explosion is possible on ignition, several variables outside the control or anticipation of the user may determine if the strength of the explosion is potentially lethal—the concentration of vapor which itself depends on the length of time the gasoline has been present, and the size of the area in which the ignition occurs. Not every gasoline generated fire is preceded by a life-threatening explosion. The harmful effects of igniting the vapor may range from a quick “flash burn” or sufficient burning of a structure and/or its contents to set them afire, to an explosive concussion that causes structural damage. Any of these effects may result in injury or death, but not all persons using gasoline to start a fire would anticipate or intend that an explosion occur.

Since section 190.2(a)(6) is limited by its terms to use of an “explosive” in circumstances in which the defendant knows or reasonably should know that his use of the “explosive” creates a great risk of death, but the felony-murder-arson special circumstance has no comparable limitation, it appears that the electorate did not intend that all arson-related deaths fall within the explosives special circumstance solely for the reason that gasoline was used as an accelerant in the commission of an arson and an explosion occurred when the vapor was lit.

Both the language of section 190.2(a)(6), and the statutory scheme within which it operates, thus support my conclusion that a murder in which the victim dies as a result of injuries suffered in a gasoline generated fire is a murder committed by means of an explosive only if the defendant used *652 gasoline with the intent to exploit its explosive nature and the concussive force of the vapor explosion to cause death or injury, or should have recognized that potential. He must intend that a potentially lethal explosion occur or must act in such a manner in his use of gasoline that he should know of the potential for such an explosion. It is not enough that an explosion and fire occur as a result of the defendant’s acts.

Murder in the commission of arson, when the defendant uses gasoline to commit the arson, but does not intend that there be, or have reason to recognize the probability that there will be, a deadly explosion, therefore, is not within section 190.2(a)(6). This does not preclude the possibility that an arson-related death may be the predicate for a special circumstance. Uncontained gasoline is often used as an accelerant in the commission of arson, and murder in the commission of arson is itself a special circumstance directly related to use of gasoline as an accelerant in burning a structure. (§ 190.2, subd. (a)(17)(viii).) In construing the 1978 death penalty law, it is presumed the Legislature and/or electorate did not intend to create overlapping special circumstances. “[T]he court should construe special circumstance provisions to minimize those cases in which multiple circumstances will apply to the same conduct, thereby reducing the risk that multiple findings on special circumstances will prejudice the defendant.” (People v. Bigelow (1984) 37 Cal.3d 731, 751 [ 209 Cal.Rptr. 328 , 691 P.2d 994 , 64 A.L.R.4th 723 ], See also People v. Montiel (1985) 39 Cal.3d 910, 927 [ 218 Cal.Rptr. 572 , 705 P.2d 1248 ].)

Because the jury was not instructed that the special circumstance of murder by explosives (§ 190.2(a)(6)) required such intent or knowledge, and the evidence does not compel a conclusion that defendant had the requisite intent or knowledge, the finding that the murder was committed by the delivery of an explosive must be stricken. 3

VI.

I do not agree with the conclusion of the majority (maj. opn., ante, at pp. 608-609), that the trial court erred in declining to instruct on the basis of People v. Green (1980) 27 Cal.3d 1 [ 164 Cal.Rptr. 1 , 609 P.2d 468 ] (Green), that “[t]o find the special circumstance [of murder in the course of arson] true, it must be proved 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 *653 referred to in these instructions is not established if the arson was merely incidental to the commission of murder.” (See maj. opn., ante, at p. 607, fn. 14.)

In my view, the requested instruction was incorrect in two vital respects, notwithstanding it was based on CALJIC No. 8.81.17. Green did not hold or even state that only a murder for the purpose of advancing the independent felony could be a murder in the commission of a robbery for special circumstance purposes; it stated only 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 . . . .” (Green, supra, 27 Cal. 3d at p. 61 .) 4

Nor did Green hold that no robbery-murder special circumstance could be found merely because the defendant intended to kill rather than to steal. It stated that a robbery-murder special circumstance is inappropriate “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.” (Green, supra, 27 Cal.3d at p. 61 , italics added.) In applying its rule to the facts, and in stating its holding, the court in Green expressly quoted the concession of the Attorney General in that case: “ ‘It is true that this murder was the prime crime and that the robbery was incidental to that murder, since the underlying motive for the robbery was to leave Karen’s corpse bereft of anything whatsoever by which she could be identified.’ For the reasons stated, we hold this evidence insufficient as a matter of law to support the jury’s finding of the truth of the robbery special circumstance alleged in count I.” (Id. at p. 62.)

Shortly after Green , four members of this court in People v. Thompson (1980) 27 Cal.3d 303 [ 165 Cal.Rptr. 289 , 611 P.2d 883 ] (Thompson), relying on no authority other than Green , completely misread Green as holding: “A murder is not committed during a robbery within the meaning of the statute unless the accused has ‘killed in cold blood in order to advance an independent felonious purpose . . . .’” (Italics added, original italics omitted. Thompson, supra, 27 Cal.3d at p. 322.) Thompson did correctly state that “the . . . issue under Green is whether or not the perpetrator’s intent to steal was ‘merely incidental’ to his intent to kill” (Thompson, supra, 27 *654 Cal.3d at p. 323), but it misstated the holding in Green and therefore incorrectly applied the Green rule. Accordingly, it should be overruled.

Since the majority finds the arson in this case was not merely to facilitate the murder, it incorrectly holds that a Green instruction was required. As I discuss, post, I do not agree that the arson here was, as a matter of law, not committed to facilitate the murder. However, as will appear, I do not believe the fact the underlying felony was committed to facilitate the murder renders the underlying felony “incidental” or precludes a felony-murder special-circumstance finding.

On its facts the Green decision was clearly correct in concluding murder in the course of a robbery had not been proved. The only robbery, if indeed there was a robbery, was the defendant’s ordering the victim to disrobe and placing her clothes in his vehicle before transporting her to a secluded area where he raped, sodomized and killed her. It was clear from the evidence and the prosecution argument that the only purpose for the “robbery” was to hinder identification of the victim, i.e., to conceal the murder. The Green court quite correctly concluded on these facts that there had been a robbery in the commission of a murder rather than a murder in the commission of a robbery. (27 Cal.3d at pp. 60, 62.)

Although the Green court in defining an “incidental” robbery during a murder stated it could be one the sole object of which “is to facilitate or conceal the primary crime” (Green, supra, 27 Cal.3d at p. 61, italics added), the question of facilitating the crime was not actually before the Green court in connection with the robbery, so its statement about “facilitating the primary crime” should not be considered binding. Significantly, the Green court did not apply the “facilitation” rule to invalidate the kidnap-murder special-circumstance finding the Green jury had also returned. Clearly, the purpose of the kidnapping was to facilitate the murder and if a death-eligibility felony may not be the basis of a special circumstance finding if its purpose was to facilitate the murder, that would have been an easy and obvious answer to the kidnap-murder special-circumstance finding in Green . The court, however, felt it necessary to discuss the sufficiency of the evidence of kidnapping at great length and considerable complexity, concluding ultimately the evidence was insufficient in view of instructional error. (Id. at pp. 62-73.)

In any event, I do not agree that a death-eligibility felony cannot give rise to a special circumstance finding merely because it was committed to facilitate the murder. First, such a felony cannot accurately be characterized as “incidental” to the murder in the sense the robbery in Green was only *655 “incidental.” 5 The robbery in Green was “incidental” because it was peripheral—it had little or nothing to do with the murder; its only purpose was to conceal or delay identification of the victim. When one of the statutorily enumerated felonies is committed to facilitate the murder or make the murder possible, it has everything to do with the murder and invariably demonstrates a predetermined scheme and greater culpability in the willingness to commit multiple felonies to carry out that scheme.

Second, the rule that a statutory death-eligibility felony which “facilitates” the murder cannot give rise to a special circumstance finding leads to incomprehensibly nonsensical, absurd results. In the case at bench it would mean that if the defendant committed the arson with the express intent to kill all the occupants of the house, and succeeded in killing one, no arson-murder special-circumstance finding could be upheld and the defendant would not be death eligible, whereas if he committed the arson without intending to kill anyone but an occupant was inadvertently or accidentally killed in the fire, an arson-murder special circumstance would be proper and the defendant would be death eligible. The culpability-penalty relationship is thus turned upside down. 6

The point is made equally vivid by considering the burglary-murder special circumstance. If the defendant commits the burglary with the intent to steal personal property, finds the resident at home and accidentally kills the resident in an ensuing struggle, a burglary-murder special-circumstance finding is appropriate and the defendant is death eligible. If the burglary is based on the defendant’s entry with the intent to kill the resident, no burglary-murder special circumstance can be upheld because the burglary facilitated the murder and the defendant is not death eligible.

The majority concludes from defendant’s testimony he intended the arson only to force the occupants out of the house so he could shoot David Gawronski in the presence of Ava Gawronski, that defendant had an independent felonious purpose and that no “Green ” instruction 7 was required. *656 However, that same testimony would establish that the arson was intended by defendant only to facilitate the murder of David Gawronski, and as analyzed by the majority I cannot agree with its conclusion that the arson was, as a matter of law, not intended to “facilitate” the murder. In the burglary-murder case, it is necessary to get into the residence to kill the victim; here, the arson’s purpose, if defendant is to be believed, was to drive the victim out of the house so he could be killed. What is the difference?

The answer is that the “facilitation” rule is wrong. It is based on a misunderstood dictum in Green and has been improvidently accepted with little reasoning or discussion in later cases. The decision in this case should put an end to this mischievous misunderstanding.

VII.

I agree with the majority’s refusal to extend the Ireland 8 -Wilson 9 -Sears 10 “merger” fiction to special circumstance law (maj. opn., ante, at p. 609, fn. 15) but not with the reason given for its refusal. The reasons I would not extend the fiction are two-fold. First, extension of the “merger” fiction to felony-murder special-circumstance law would produce the very same nonsensical, absurd results produced by the “facilitation” rule found in the Green dictum and Green's progeny. (See, e.g., People v. Farmer (1989) 47 Cal.3d 888, 915 [ 254 Cal.Rptr. 508 , 765 P.2d 940 ]; People v. Garrison (1989) 47 Cal.3d 746, 778 [ 254 Cal.Rptr. 257 , 765 P.2d 419 ].) (See discussion, ante.)

Second, even if the adoption in Ireland of the “merger” fiction was appropriate in the context of the court-created second degree felony-murder rule, and even if the extension of the merger fiction to statutorily prescribed first degree murder was appropriate in Wilson, which I doubt, its further extension to special circumstance law would be wholly improvident. The felony-murder special circumstances enumerated in section 190.2, subdivision (a)(17) constitute a legislative determination that a killing during the commission of one of the enumerated felonies is sufficiently culpable to render the actual killer death eligible whether the killing was intentional or unintentional. (People v. Anderson, supra, 43 Cal.3d 1104, 1138-1147 .) Absent unconstitutionality the courts are not at liberty to apply legal fictions to circumvent legislative assessments of culpability and indeed, as I have shown, the result of disallowing the statutorily prescribed special-circumstance finding when the underlying felony was a means of facilitating the *657 murder stands the legislative culpability-penalty relationship on its head, making the more culpable ineligible for the death penalty and the less culpable death eligible. If this court were to extend the “merger” fiction to achieve this irrational result it would not only put in question its collective judgment but also put in question the rationality and thus the constitutionality of the felony-murder portion of the state’s death penalty law.

VIII.

I conclude the judgment should be affirmed in its entirety.

Appellant’s petition for a rehearing was denied June 7, 1990, and the opinion was modified to read as printed above.

Section 12000 of the Health and Safety Code both broadly defines “explosives” and specifies particular substances that fall within its definition: In 1982 it provided in part: “[T]he term ‘explosives’ shall mean any substance, or combination of substances, the primary or common purpose of which is detonation or rapid combustion and which is capable of a relatively instantaneous or rapid release of gas and heat, or any substance, the primary purpose of which, when combined with others, is to form a substance capable of a relatively instantaneous or rapid release of gas and heat.”

The People also suggest that gasoline is an explosive within the definition of Health and Safety Code section 12000 by virtue of the statutory incorporation by reference of schedules adopted by the administrative agencies named therein. Thus, it may be an explosive under the United States Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms’ Notice 614, List of Explosives Materials, which includes any liquid that may explode. (51 Fed.Reg. 46979-46980 (Dec. 29, 1986).)

However, in view of my conclusion that gasoline falls within the express statutory definition of an explosive, I do not consider whether the electorate intended that section 190.2(a)(6) apply to substances identifiable only by virtue of their occasional inclusion in schedules of explosives adopted by federal as well as state administrative agencies for other purposes.

This conclusion makes it unnecessary to address defendant’s claim that the trial court erroneously admitted demonstrative evidence of the manner in which gasoline vapor “explodes” when enriched with oxygen and ignited within a steel tube, evidence that was relevant only to establishing the truth of this special circumstance allegation.

The Green court made this statement in express reliance on the provision in the 1977 death penalty act (former § 190.2, subd. (c)(6)) that felony-murder special circumstances could only be made when the murder was “willful, deliberate and premeditated.” ( Green, supra, 27 Cal.3d p. 61.) That requirement was deleted in the 1978 death penalty act and, in the case of an actual killer, is no longer a prerequisite to a felony-murder special-circumstance finding. (People v. Anderson (1987) 43 Cal.3d 1104, 1138-1147 [ 240 Cal.Rptr. 585 , 742 P.2d 1306 ].)

Perhaps a more useful term for the Green-type underlying felony would be “peripheral.”

Contrary to the suggestion of Justice Broussard (see conc, and dis. opn. of Broussard, J., at p. 643, fn. 1), the legislative prescription of death eligibility for unintentional, actual killers who kill in the course of certain enumerated felonies is not itself absurd, irrational or unconstitutionally arbitrary. (See People v. Anderson, supra, 43 Cal.3d 1104, 1138-1147 .) The application of felony-murder special circumstances to unintentional, though actual, killers is a legislative assessment of culpability which the courts are not free to disregard. Accepting that premise, as we must, and given that the principle at issue in determining death eligibility is a determination of individual culpability, the use of court-created fictions to render felony-murder special circumstances inapplicable to intentional killers otherwise engaging in the same conduct as an unintentional killer is both an absurdity and a usurpation of the legislative power.

It would be far more appropriate to call the “Green” instruction the Thompson instruction. (See discussion of Thompson's misreading of Green, ante.)

People v. Ireland (1969) 70 Cal.2d 522 [ 75 Cal.Rptr. 188 , 450 P.2d 580 , 40 A.L.R.3d 1323 ],

People v. Wilson (1969) 1 Cal.3d 431 [ 82 Cal.Rptr. 494 , 462 P.2d 22 ].

People v. Sears (1970) 2 Cal.3d 180 [ 84 Cal.Rptr. 711 , 465 P.2d 847 ],