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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_1384%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2006

## Text

Supreme Court, US
ree

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,
v.
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

10

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.

1]

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

12

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:

do

13

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

14

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

15

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

16

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

18

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

19

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

20

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

21

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

22

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

23

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

24

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.

25

[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

26

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.

27

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

William CLARK, Petitioner-Appellant,
v.
Jill BROWN, Warden, California
State Prison at San Quentin,”
Respondent-Appellee.

No. 02-99007.
D.C. No. CV-95-0034-DOC

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.

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).

28

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 staie 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 Ciark "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

29

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 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.
[7] 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 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,

30

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.

OPINION

W. FLETCHER, Circuit Judge:

31

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 claimec 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).

32

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
escapetherefrom 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

1. Clark was also convicted of the unrelated charge of rape of his
ex-wife. The rape conviction is not relevant to this appeal.

33

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. Jd. 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).

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 m 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. zs

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).

34

Il. 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. Kibbe, 431 U.S. 145, 155 (1977)).

[2] Due process requires that criminal prosecutions "comport with
prevailing notions of fundamental fairness" and that "criminal
defendants be afforded a meaningful opportunity to present a

35

complete defense." Trombetta, 467 U.S. at 485. When habeas is
sought under 28 U.S.C. § 2254, bas, “ry 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 US.
619, 637 (1993) (citation omitted); see also Beardsilee, 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: ... (viii) 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

2. Both People v. Green, 27 Cal.3d 1 (1980), and People v.
Thompson, 27 Cal.3d 303 (1980), construe an earlier version of the
felony-murder special circumstance that required the murder to have been
“committed during the commission or attempted commission" of five
enumerated crimes. Cal.Penal Code § 190.2(c)(3) (1977) (emphasis added).
By the time of Clark's trial, the statute had been amended to provide that the
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"
and “engaged in the commission of," and we treat them as having an
identical meaning for purposes of this case.

36

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 felonious 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. /d. 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. Jd. (emphasis added).

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 season 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

Clark took the stand at trial. He testified that he had set the fires as
a means to the end of killing David Gawronski in front of Ava
Gawronski, and that he had no intention of 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

37

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 thougn 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 room,
either through a pane of glass or through a glass door. He then threw
a second flare into the house, igniting the gasoline in the dining room.

Clark testified that when he threw the flare into the 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 aplan 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 objecied. 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? 7

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

38

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 “lark'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:

39

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. 2

Because evidence had been presented--by the prosecutor--under
which Clark could have been found not guilty of the special

40

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:

[D]efendant'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.

[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 Gawroriski 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. Rafer, 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

41

based on its new interpretation of the statute. Clark contends that the
California Supreme Court's new interpretation 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 y.
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 defendant for a purpose other
than causing his death. As iz: 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

ao

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 beiated realization that the Gawronski bedroom was
occupied, and his resolution to proceed with his plan
nonetheless, does not negate the evidence that he had a purpose
independent of causing the death of David Gawronski in his
commission of arson.

In light of that evidence, omission of the requested
instruction was not prejudicial and the felony-murder-arson
special-circumstance allegation was properly found true.

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

Justice Broussard, joined by Justice Mosk, dissented from the
Court's reinterpretation of Green. Id. at 642-44. Justices Broussard
and Mosk agreed with the Court that under the prosecutor's theory of
the case--in which Clark intended that the fires kill the entire family
in the house--Green required the jury to acquit Clark of the
felony-murder special circumstance. But they disagreed with the
Court's conclusion that ander 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 Dawid 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

43

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 .equirement 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
Clark'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 cor-tention--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

44

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. /d.

{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,
consiruction 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 Darnelt, 823 F.2d at 301 (holding that there was no Bouie

45

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." /d. 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

46

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[ J], 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, ne 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. /d. at 321-22. It held that there was insufficient

47

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." Jd. at 324. The Court therefore concluded
that the evidence was "insufficient to establish that the crime ... was
‘in fact\a murder in the commission of a robbery [rather than] the
exact opposite, a robbery in the commission of a murder.'" 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. Jd. 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." Jd. 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." Jd. at 751. The felony-murder
special circumstance statute, by contrast, narrows criminal liability,

48

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-cligible 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." Jd. 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 Ciark's case. Not
only was Murtishaw a non-capital 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

49

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 "coilection.” 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 ... reasonably have found that
defendant killed both victims when he became afraid that they
would report his intended crimes, this case appears to fall
within the class of cases as to which--under Green's
analysis--the "felony-murder" special circumstance of the 1977
statute may properly aprly.
33 Cal.3d at 52. That is, in accordance with the standard Green
analysis, the jury could have concluded in Robertson that the
defendant killed his victims in order to further his independent
felonious purpose of stealing their underwear or other personal
belongings. Thus, far from giving fair warning of a substantial
modification of Green, Robertson cited Green and applied it in an
entirely predictable way.

{10} To evaluate foreseeability, we may alsoook 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 "[c]oncurrent intent to kill and commit an independent

50

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
CALIJIC 8.81.17, as it existed at the time of Clark's trial, that the
concept of "concurrent" purposes in t

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_1384%3A2. Public record. Not legal advice.