Appendix — Ayers v. Clark (No. 06-287)

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06-287 DAGINAL

NO. OFFICE OF THE CLERK

IN THE SUPREME COURT OF THE UNITED STATES

ROBERT L. AYERS, Jr., Acting Warden, San Quentin State

Prison, California, Petitioner,

Vv.

WILLIAM CLARK, Respondent.

ON PETITION F OR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE CIRCUIT

APPENDIX TO PETITION FOR WRIT OF CERTIORARI

BILL LOCKYER

Attorney General of the State of California

MARY JO GRAVES

Chief Assistant Attorney General

PAMELA C. HAMANAKA

Senior Assistant Attorney General

DONALD E. DE NICOLA

Deputy State Solicitor General

KEITH H. BORJON

Supervising Deputy Attorney Genera]

SCOTT A. TARYLE

Deputy Attorney General

State Bar No. 156158

300 South Spring Street, Suite 1702

Los Angeles, CA 90013

Telephone: (213) 897-2363

‘Fax: (213) 897-6496

Email: DocketingLAAWT @doj.ca.gov

Counsel for Petitioner

INDEX TO APPENDIX

APPENDIX PAGE

A Amended Opinion of Ninth Circuit Court of Appeals ]

B Original Opinion of Ninth Circuit Court of Appeals 27

C California Supreme Court Opinion 53

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

William CLARK, Petitioner-Appellant,

Jill BROWN, Warden, California

State Prison at San Quentin,-

Respondent-Appellee.

No. 02-99007.

D.C. No. CV-95-0034-DOC

ORDER AMENDING OPINION AND DENYING

- REHEARING AND AMENDED OPINION

Appeal from the United States District Court

for the Central District of California

Argued and Submitted

Feb. 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).

SUMMARY

Criminal Law and Procedure/Jury Instructions

The court of appeals reversed a judgment of the district court and

remanded. The court held that under California's felony-murder

special circumstance statute, as interpreted in People v. Green, 27

Cal. 3d 1 (1980), a murder defendant was entitled to an instruction

that told the jury he was not guilty of a special circumstance that

would make him death-eligible — murder in the commission of a

felony (arson) — if the arson was a felony whose sole object was to

facilitate the primary crime of murder.

Appellant William Clark threw gasoline into the house where Ava

Gawronski-— Clark's fomer therapist — her husband, and their infant

daughter Sara were sleeping, and ignited gasoline by throwing

highway flares into the house. Gawronski's husband died as a result

of the burns he suffered, Gawronski lost her fingers and nose, and

suffered additional permanent injuries, and the baby was rescued

unharmed. Clark was charged in California state court with first-

degree murder of Gawronski's husband, attempted first-degree

murder of Gawronski and her daughter, and arson. The state also

charged two special circumstances that would make Clark death-

eligible: murder by means of explosive, and murder in the

commission of a felony (arson). Clark, whose stated purpose was to

cause Gawronski to suffer the same emotional pain that he claimed

to have suffered when she discontinued his therapy, contended that

his plan had been to set the fires in order to drive the family out of

the house, and then to kill Gawronksi's husband with a shotgun in

front of Gawronski once the family was outside. The defense theory

of the case was that while Clark intended to kill Gawronski's husband

by means of his plan, he never intended to kill or physically injure

Gawronksi or her daughter. Clark requested the then-standard jury

instruction on the felony-murder special circumstance, California

Jury Instruction (CALJIC) 8.81.17, which contained language based

on the California Supreme Court's decision in Green, that provided

a narrowing construction of California's felony-murder special

circumstance statute. The court rejected the request and gave an

instruction that required only that the mruder have been committed

while Clark "was engaged in" the commission or attempted

commission of arson. The jury convicted Clark of first-degree

murder of Gawronski's husband, attempted second-degree murders of

Gawronski and her daughter, and arson. It also found both special

circumstances true, and ultimately returned a verdict of death.

On automatic appeal, the California Supreme Court struck the

explosives special circumstance (People v. Clark, 50 Cal. 3d 583

(1990)). It affirmed Clark's conviction for the felony-murder special

circumstance, but only after substantially reinterpreting its earlier

decision in Green, ruling that Clark's arson was not "incidental" to

the murder of Gawronski's husband. After unsuccessfully petitioning

for habeas corpus in the California Supreme Court, Clark petitioned

for habeas corpus in federal district court. The district court denied

Clark's petition.

Clark appealed.

[1] On federal habeas, the issue is whether the ailing instruction

by itself so infected the entire trial that the resulting conviction

violates due process. [2] When habeas is soughter under 28 U.S.C.

§ 2254, failure to instruct on the defense theory of the case is

reversible error if the theory is legally sound and evidence in the case

makes it applicable.

[3] In Green, the California Supreme Court narrowed the felony-

murder special circumstance statute. [4] Green held that a felony

whose sole object is to facilitate or conceal the primary crime of

murder is incidental, and therefore does not qualify a defendant for

the death penalty under the special circumstance statute. [5] It had

to be held 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 special circumstance if the arson was a

felony whose sole object was to facilitate the primary crime of

murder. Under Clark's theory of the case, he did not have an

"independent felonious purpose" in committing arson. Rather, he set

the fires only for the purpose of driving Gawronski's husband out of

the house so that he could shoot him. He was therefore entitled to the

Green instruction.

[6] Under Green, a felony qualified under the special circumstance

statute on!~ if two requirements were satisfied: (1) the felony, such

as robbei 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.

[7] In Clark, the California Supreme Court sigr.ificantly changed the

first requirement and entirely dispensed 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 the the sense used in Green a purpose independent of the murder.

[8] 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.

[9] An unforseeable judicial enlargement of a criminal statute,

applied retroactively, violates the federal due process right to fair

warning of what constitutes criminal conduct. A new judicial

interpretation of a special circumstance provision can be challenged

because special circumstances that make a criminal defendant

eligibile for the death penalty operate as the functional equivalent of

an element of a greater offense. [10] To evaluate foreseeability, the

court of appeals also looked to the CALJIC instruction in place at the

time of trial. There was no indication whatsoever in CALJIC

8.81.17, as it existed at the time of Clark's trial, that the concept of

“concurrent” purposes in the context of special circumstance predated

the California Supreme Court's decision in Clark. [11] It had to be

concluded that the California Supreme Court's new interpretation of

the felony-murder special 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. It had to be held 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.

[12] Ifthe jury had been properly instructed under Green, there

was a reasonable probability that it would have concluded that the

arson was incidental and that the felony-murder special circumstance

therefore was not true. [13] It therefore had to be held that the

failure to give the Green-based instruction had a substantial and

injurious effect or influence in determining the jury's verdict. [14]

These violations were not harmless. The district court's denial of

Clark's petition for habeas corpus had to be reversed, and the case

had to be remanded with instructions to grant relief with respect to

his death sentence.

COUNSEL

Maria E. Stratton, Sean K. Kennedy and Mark R. Drozdowski, 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.

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 circumstance

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 distinguish

Green, as just noted.”

With this amendment, the panel has voted to deny the petition 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 petition

asserting several constitutional errors related to his sentence. We hold

that there were two interrelated due process 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 decision 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 application 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 challenges 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 counseling sessions against his wishes. Clark's

stated purpose was 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 circumstances 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 contested 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 circumstance 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.

The prosecutor objected to the CALJIC instruction requested by

Clark. Instead, he sought an instruction that simply tracked the

language of the felony-murder special circumstance statute without

adding the narrowing construction then required by Green. The

language of the statute, and the prosecutor's requested instruction,

required only that the murder have been committed while Clark "was

engaged in" the commission 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. “ It also found both special circumstances

true, thereby making Clark death-eligible. After seven days of further

deliberation, the jury hung on the question 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 reinterpreting its earlier

decision in Green. Id. at 606-09. It then affirmed Clark's death

sentence. /d. 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 failure to state a claim and denied Clark's second habeas

petition on procedural grounds. Jn 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.

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 circumstance 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. Woodford, 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 supported 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 constitutional error was harmless. Ghent v.

Woodford, 279 F.3d 1121, 1126 (9th Cir.2002).

II. Analysis

Because the California Supreme Court-struck the explosives

special circumstance, the felony-murder special circumstance 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 contends 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 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 penalty 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." Jd. (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. Hendricks v.

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

Henderson v. Kibbz, 431 U.S. 145, 155 (1977)).

[2] Due process requires that criminal pfSsecutions "comport 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, "[flailure to instruct on the defense

theory of the case is reversible error 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 verdict." Brecht v. Abrahamson, 507 U.S.

619, 637 (1993) (citation omitted); see also Beardslee, 358 F.3d at

578.

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

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 committing or attempting to commit the following

felonies: ... (vi‘1) Arson in violation of Section 447." Cal.Penal Code

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

those murderers who deserve to be considered 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 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 felon‘ous purpose [.]" 27 Cal.3d at 61

(emphasis added). The California Supreme Court explained that there

is no "independent felonious purpose" within the meaning of the

statute when the felony is "incidental" to the murder. Jd. Green held

that a felony whose "sole object is to facilitate or conceal the primary

crime " of murder is "incidental,"and therefore does not qualify a

defendant for the death penalty under the special circumstance

statute. /d. (emphasis added).

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)(197 , (emphasis added).

By the time of Clark's trial, the statute had been amended to provide that the

special circumstance exists 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 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 commission"

aud “engaged in the commission of," and we treat them as having an

identical meaning for purposes of this case.

In Green itself, a husband killed his wife and subsequently took

her clothes, rings and purse in order to conceal her identity. /d. 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 independent 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 rationale in Green: The

felony-murder special circumstance had not been proved because the

crime "was not in fact a murder in the commission of a robbery but

the exact opposite, a robbery in the commission of a murder." Jd. at

60.

Clark took the stand at trie]. 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 killing 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 realized 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 second bucket of gasoline into the dining roorn,

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 bedroom, "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 longer 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 sustained 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 strategic 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 "incidental" 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 prosecutor

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 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 Department 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.

English protested the trial court's ruling, arguing that the failure to

give the Green instruction would critically undermine 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 sufficient evidence to even let the jury consider it I

submit 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 question 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 “specific 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 substantially

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 circumstance 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

circumstance 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 “overwhelming" evidence supporting Clark's

contention that he had originally intended that the fires drive the

family out of the house. Id. The Court wrote:

[Djefendant's own testimony, 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 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 special 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

driving 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 contained 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 California

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 interpretation of the statute. Clark contends that the

California Supreme Court's new interprttation violated due process

by retroactively changing the felony-murder special circumstance

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 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 inapplicable.

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 testimony 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 2ndant for a purpose other

than causing his death. As in People v. Robertson, ... 33 Cal.3d -

21, the underlying felony, 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 purpose for commission of the arson

independent of causing the death of David Gawronski.

By any standard the error was harmless. We recognize 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 testimony, 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

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.

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).

: 17

Justice Broussard, joined by Justice Mosk, dissented from the

Court's reinterpretation of Green. /d. 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 conviction. After

quoting from Green, Justice Broussard wrote:

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 independent 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 California

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 defendant for the death penalty under the

felony-murder special circumstances statute. Rather under Green, a

felony qualified under the special circumstance statute only if two

requirements 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, kidnaping

or rape (requirement two).

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

changed the first requirement and entirely dispensed 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 murder. On the

prosecutor's theory of the case, Clark intended to kill the entire

family, including David Gawronski, directly by means of the fire. On

Ciark's theory of the case, he intended to kill David Gawronski

indirectly by means of the fire, driving him out of the house so he

could shoot him. On either theory, 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 "independent 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 circumstance

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. Jd.

{9} An unforeseeable judicial enlargement of a criminal statute,

applied retroactively, violates the federal due process 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 articulated a “basic and general

principle of fair warning"); LaGrand 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 construction 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 defendant."). A new judicial interpretation of a special

circumstance provision can be challenged under Bouie because

"(s]pecial circumstances that make a criminal defendant eligible 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 warning that his conduct

was criminal. In McSherry, we distinguished 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 application of an

unforeseeable modification of a special circumstance 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." Jd. at 353-54. In

Webster, we implicitly--but clearly--rejected the State's suggested

application of McSherry to special circumstance statutes. Without

once suggesting that Bouie was inapplicable because the behavior in

question was inherently criminal, we conducted a thorough Bouie

analysis of a death- qualifying special circumstance statute 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 constructions of the

statute." Jd. 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 statutory 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

conviction."). If the California Supreme Court's decision in Clark

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 circumstance 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 consider intermediate appellate court rulings to the

extent they offer predictive value in determining whether a particular

construction 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 interpretation 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) undermined Green's holding. Two were felony-murder special

circumstance 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.

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

Supreme Court held that there was insufficient evidence 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. /d. at 310-11. He took no

other property. /d. at 323.

The Court spent three paragraphs describing its then-recent

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

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 reasonably 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 shootings suggests that this was indeed his reason for

demanding the car keys.” /d. at 324. The Court therefore concluded

that the evidence was "ins: fficient to establish that the crime ... was

‘in fact a murder in the c »mmission of a robbery [rather than] the

exact opposite, a robbery .a the commission of a murder.'" Jd. at 325

(quoting Green, 27 Cal.3d at 60) (bracketed 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 them. See id. at 289. The

court held that a felony-murder special circumstance could not be

sought where the kidnaping was "for the purpose of accomplishing

the murders" and hence “incidental” to the murders. /d. 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." /d. 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 broadens 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 killing. 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." /d. at 751. The felony-murder

special circumstance statute, by contrast, narrows criminal liability,

allowing capital punishment 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 murder of a witness to a

felony in order to avoid identification.

In Murtishaw, the Court held that there was sufficient evidence to

support a felony-murder conviction because the jury could have

concluded that the defendant acted with the "concurrent goals of

killing the victims and taking their car." /d. at 752. In a footnote, the

Court in Murtishaw distinguished Green by explaining that "the theft

here was not ancillary to the murder, but if [the witness's] testimony

is believed, a concurrent objective." /d. 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. /d. at 750-51.

Footnote 13, just quoted, insured that the reader understood 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 circumstance 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 sufficient 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 Murtishaw 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:

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 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 "collection." 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. /d. 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 murders

and was not planned simply as a means of concealing the

killings. Because the jury could ... reasonabiy 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 circumstance 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 conciuded in Rodertson that the

defendant killed his victims in order to further his independent

felonious purpose of stealing their underwear or other persona!

belongings. Thus, far from giving “#:: warning of a substantial

modification of Green, Robertson cited Green and applied it in an

entirely predictable way.

{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.

CALJIC 8.81.17 has since been amended to include a comment

stating that "[cJoncurrent intent to kill and commit an independent

felony will support a felony-murder special circumstance." 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 “concurrent” purposes in the context of special

circumstance predated the California Supreme Court's decision in

Clark. And there is a strong indication from the later-adoptec version

of CALJIC 8.81.57, 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 unforeseeable 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 eligible 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

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

was precisely what defeated his appeal.

[11] We conclude from the foregoing that the California Supreme

Court's new interpretation of the felony-murder special 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 US. at 461 (quoting Bouie, 278 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 instruction 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 srmply 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] Ifthe 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 would have reached a different verdict).

Clark presented substantial 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 reinforced

in this view of the evidence by the California Supreme Court's

statement that the evidence supporting Clark's contention that when

he set the fires he intended to drive the family 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 determining 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 interpretation 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 district 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 decision.

REVERSED and REMANDED.