Amicus Curiae Brief — Ayers v. Clark (No. 06-287)

No.06-287 LED

=SEP=2 7 2006

In the OFFICE OF THE CLERK

SUPREME COURT OF THE UNITED-STP ATES CURL US.

ctober Term, 2006

ROBERT AYERS, Acting Warden, San Quentin State Prison,

California, Petitioner,

v.

WILLIAM CLARK, Respondent.

On Petition for a Writ of Certiorari to the

United States Court Of Appeals For The Ninth Circuit

AMICUS CURIAE BRIEF OF LOS ANGELES COUNTY

DISTRICT ATTORNEY IN SUPPORT OF PETITIONER

ON PETITION For A WRIT OF CERTIORARI

STEVE COOLEY

District Attoney of Los Angeles County

LAEL R. RUBIN

Head Deputy, Appellate Division

PATRICK D. MORAN

Deputy District Attoney

SHIRLEY S. N. SUN

Deputy District Attorney

Counsel of Record

Appellate Division -

320 West Temple Street, Suite 540

Los Angeles, California 90012-3213

Telephone: (213) 893-0632

Fax: (213) 217-5104

Email: pmoran@Jacountyda.org

_ ssun@lacountyda.org -

Attorneys for Amicus Curiae

TABLE OF CONTENTS

Pages

AMICUS CURIAE BRIEF IN SUPPORT OF PETITION FOR

WRIT OF CERTIORARI (Rule 37.2(a): Consent of Parties) 1

INTEREST OF AMICUS CURIAE 2

SUMMARY OF ARGUMENT 3

ARGUMENT 6

I. THE NINTH CIRCUIT MISCONSTRUED PEOPLE V. GREEN AS

PRECLUDING A FELONY-MURDER SPECIAL CIRCUMSTANCE

FINDING WHERE THE FELONY WAS COMMITTED TO

FACILITATE THE MURDER 6

A. The Death Penalty Statute Does Not Require A

Felony-Murder To Advance An Independent Felonious

Purpose, Nor Does It Preclude A Felony-Murder Special

Circumstance Finding Where There Was A Concurrent

Intent To Kill While Carrying Out Another Felonious

Purpose 6

B. Because Callous Disregard For Human Life And

Deliberate Exposure Of Society To The Danger Of Death

Justify The Capital Penalty For Felony-Murder, Green

Only Established A Narrow Exception To The

Felony-Murder Special Circumstance If The Felony,

Being Incidental To An Intended Murder, Created No

Additional Danger To The Public 7

C. Green Neither Required A Felony-Murder To

Advance An Independent Felonious Purpose Nor Did It

Preclude A Special Circumstance Finding Of

Felony-Murder Where An Intent To Kill Existed

Concurrently With Another Felonious Purpose 10

I. STATE COURTS MUST BE AFFORDED GREAT LATITUDE IN

CLARIFYING NEW STATUTES OR MODIFYING OR REVISING

JUDICIAL DOCTRINES INVOLVING NOVEL AREAS OF LAW 12

III. BOUIE V. CITY OF COLUMBIA IS NOT APPLICABLE TOA

SPECIAL CIRCUMSTANCE FINDING 16

IV. FEDERAL HABEAS CORPUS IS UNAVAILABLE TO REVIEW

INSTRUCTIONAL ERROR 17

CONCLUSION 19

ii

TABLE OF AUTHORITIES

CASES Pages

FEDERAL CASES

Bouie v. City of Columbia,

FIER, BET CIID otitis 2, 3, 4, 5, 13, 14, 16, 17

Bradshaw v. Richey,

126 S. Ct. 602, 163 L. Ed. 2d 407 (2008)... eee 13, 14

Butier v. McKellar,

EE Ie COO iiscicciensaneisseitccincincnliinactisisctlbactmuiazsiimiptinsmnlicia 4

Calder v. Bull, |

Rik Mage BR Tey. 5 > Sh Seen 17

Carmell v. Texas,

a ee Ee winckcoceustisccdicitasebcviactainsteandeneniaigiinama 17

Clark v. Brown,

FS re re Gr Dies ceceinrsivcntianenicctetssurccvintetcenie 2, 5,43

Collins v. Youngblood,

gt hs gc, Seer enom nanny mere es toe 17

Darnell v. Swinney,

ee re Ns BOT i oeciesgnicchinsianicneceicccecninlecabcamcnatiiateas 16

Douglas v. Buder,

412 U.S. S30 C1973) (Bee CUTIGIE) occ cccccceciscccorcrsncenecsetetens 14

Estelle v. McGuire,

ee ins eitciarnedcnsitinseebiatamiataaaiaamanpiin 4,18

Furman v. Georgi, |

Be, Se PD sicicceseccntncintiotvinibcssaswsiosiauiaaaaiaia 4,6, 15

Gregg v. Georgia,

ee Be RT sicsinscinsncicovnciciobbeipaeusenseiiededuntecas tad 4,6, 15 -

Lewis v. Jeffers,

RE rs Fs Fe Ce iirbeciciniiienkacteciorstbonacniants 3, 18

Lockhart v. Fretwell,

is I sinicssintindeaceniienictateenianeitaseegs ae PIES 4,19

Marks v. United States,

I eh IP ED vidiicivnsitninintiiiiciectasiecuiicouieabudiptommaaienl 14, 16

McSherry v. Block,

Be Sn a. CI aiicececn reich kcestnabicipindiintignicconivirdinptinns 16

iii

Nix v. Whiteside,

Ne IF IEE sia ieacsssttnatbinaktunediseincicecabibvigbenipidictanaence 4,19

Rabe v. Washington,

BOS U.S. STS C197Z) Chee GUPIMM) «2... cc cccccssevecescececoervesvenee 14, 16

Rogers v. Tennessee,

Re AA IE TED ehstcctscdseuisncsicincnniios 2, 4, 5, 12, 13, 14, 16, 17

- Rose v. Locke,

ee es aD OE CUI sv sccsesccccrvinsionpetsnechecavonsesannsininiie 14

Teague v. Lane,

Re ee Be EOD esenitiiicoisvieieshiicininseeis in aceenadasounioniceanana 4,19

United States v. Lanier,

a AE MTD rciuoiivasictnsiitepeitiaiiedichiidintcsatoubeaeumlaiiindn 13, 14

Webster v. Woodford,

DED Fh SORE CO Che: BOOG) once scecicsioiggsccersctvies 10, 16

CALIFORNIA CASES

People v. Clark,

50 Cal. 3d 583, 789 P.2d 127, 268 Cal. Rptr. 399 (1990).........

a ciisaiclih te oieaiddelisbechisiahieidssuinecseabeoniatii 2, 3, 6, 7,9, 10, 11, 14, 15, 16

People v. Davis,

36 Cal. 4th 510, 115 P.3d 417, 31 Cal. Rptr.3d 96 (2005)....... 18

People v. Dillon,

34 Cal. 3d 441, 668 P.2d 697, 194 Cal. Rptr. 390 (1983).......... 8

People v. Green,

27 Cal. 3d 1, 609 P.2d 468, 164 Cal. Rptr. 1 (1980)...............

rca nameleaeaiaDbedanices, 2, 4, 5, 6, 7, 8,9, 10, 11, 12, 14, 15, 17, 18

People v. Horning,

34 Cal.4th 871, 102 P.3d 228, 22 Cal.Rptr.3d 305 (2004)......

People v. Kimble,

44 Cal.3d 480, 749 P.2d 803, 244 Cal.Rptr. 148 (1988)....17, 18

People v. Lopez,

6 Cal. 3d 45, 489 P.2d 1372, 98 Cal. mo. 44 (1971).......... 7,411

People v. Mattison,

4 Cal.3d 177, 481 P.2d 193, 93 Cal. Rptr. 185 (1971)...........0.. 7

People v. Mendoza,

24 Cal. 4th 130, 6 P.3d 150, 99 Cal. Rptr.2d 485 (2000)......... 17

iv

People v. Murtishaw,

29 Cal.3d 733, 631 P.2d 446, 175 Cal.Rptr. 738 (1981).........

i a 10, 11, 18, 19

People v. Phillips,

64 Cal.2d 574, 414 P.2d 353, 51 Cal. Rptr. 225 (1966)............. 7

People v. Raley,

2 Cal.4th 870, 830 P.2d 712, 8 Cal.Rptr.2d 678 (1992)........... 17

People v. Robertson,

33 Cal. 3d 21, 655 P.2d 279, 188 Cal. Rptr.77 (1982)...............

RSTRNT 5 TPR aD cov seep ar MOR ERAN Mette Ae

People v. Silva,

45 Cal.3d 604, 754 P.2d 1070, 247 Cal.Rptr. 573 (1988)........ 17

People v. Thompson,

27 Cal. 3d 303, 611 P.2d 883, 165 Cal. Rptr. 289 (1980)........ 18

People v. Valdez,

32 Cal. 4th 73, 82 P.3d 296, 8 Cal. Rptr.3d 271 (2004)........... 18

People v. Weidert, :

39 Cal.3d 836, 705 P.2d 380, 218 Cal. Rptr. 57 (1985)........... 17

People v. Wright,

52 Cal.3d 367, 802 P.2d 221, 276 Cal.Rptr. 731 (1990).......... 17

Pizano v. Superior Court of Tulare County,

21 Cal. 3d 128, 577 P.2d 659, 145 Cal. Rptr. 524 (1978)........... 8

STATUTES

CALIFORNIA GOVERNMENT CODE

ke Fa BR __. ETeaeaee ae ae aT Am Pore ee) SN NOM TINO pe PTT 2

' CALIFORNIA PENAL CODE

re PI i ioacccataibecis ces ssvisapaicibencicdeupicmmbecianniacndsaesivabie 8

Be Fr itcns scvsissbevnsiesaicrerinrinictbuncontpacssanempiteaadaineeaas 4

ee Ne WMI TIE oi wnupcttscecosnsitiihansionahidiniontsanieibaennepaiaaiall 9

et 0 SINE ass iss occoesncnednsreob onkeboccieidhesmncadiadp booaiundaneiaade 2

IE FO PPE PIO osecccsscocesccerazomecenvncdueiereasuiasadieeiiosbenmiee 6

PEELS £2 COE PD i sibsiassinosicnncosccrogeinnigatpioioubebctaivedes ay

Dy REE OUI BUEN sscisdss Sci cidesntsnommssningtnReneddaccadeasieile uckaegaaek 9

Vv

“Abeta liter schon, OO Re TREE SARC 9

ee OE RO piessnesotesseviopannhipidoiuemainiu icisis. cola, 12

tb a, RN Sa re aes 3

§ 667.5(a) (West eg ITC TRA EN, FIC 3

$ 667.5(C) (West 2006) .......ccrcscccscsccsseseeoooesees... sinnieibidithnimlidaas aikadd 3

§ 667.61(a) (West EE TE MEA al a A 3

Pe UD inceriverccreseteecrecsoloscnschisciace, So 3

§ 667.61(d) (West eM tinhepehinnininanteciieeisinun koa aor 3

be cia iy eta Soe, LE I ie 3

§ 12022.53(d) (West PD ricinenttnstnubsstniecacieer tiaiee tte 3

vi

IN THE SUPREME COURT OF THE UNITED STATES

No.

ROBERT AYERS, Acting Warden, San Quentin State Prison,

California, Petitioner,

Vv.

WILLIAM CLARK, Respondent.

AMICUS CURIAE BRIEF IN SUPPORT OF

PETITION FOR WRIT OF CERTIORARI

Steve Cooley, Distict Attomey of Los Angeles County,

respectfully submits this brief, as amicus curiae, in support of

the petition for a writ of certiorari to review the judgment of the

United States Court of Appeals for the Ninth Circuit, with the

written consent of the attorneys for Petitioner and Respondent,

as follows:

The undersigned, as attorneys for the Petitioner and the

Respondent in the above-captioned matter, consent to the filing

by the District Attorney of Los Angeles County of an amicus

brief in support of the Petitioner.

ecuted at Los Angeles County this

date:_ 5 ]2¢9 log

Attorney for R€spondent

Attomey for Petifione

2

INTEREST OF AMICUS CURIAE

Amicus curiae, as the executive officer charged with the

prosecution of crime’ in the most populous county in California,

has a strong interest in effectuating the intent of the California

Legislature and preserving the finality of the judgments of

California’s courts of criminal jurisdiction.

The Ninth Circuit (Clark v. Brown, 450 F.3d 898 (9th Cir.

2006)), focusing on one phrase in People v. Green, 27 Cal. 3d 1,

609 P.2d 468, 164 Cal. Rptr. 1 (1980) (Green), reversed the

judgment of death in People v. Clark, 50 Cal. 3d 583, 789 P.2d

127, 268 Cal. Rptr. 399 (1990) (Clark) by extending the Bouie’

doctrine to special circumstance findings and the ex post facto

prohibition to judicial] decisions. This stringent review procedure,

contrary to this Court’s directive of deference to judicial

reevaluation and refinement of legal doctrines, will “place an

unworkable and unacceptable restraint on normal judicial

processes ... incompatible with the resolution of uncertainty that

marks any evolving legal system” (Rogers v. Tennessee, 532 U.S.

451, 457, 461-62 (2001) (Rogers)) and destroy the finality of

many decisions.

{fleft to stand, Clark v. Brown will affect many death penalty

cases and may be the ground for reversing any case in which the

California Supreme Court interpreted a new statute and then

tried to clarify or re-evaluate its interpretations to bring them into

conformity with legislative intent and common sense. There are

many such new statutes. Since the decisions in Green and Clark,

the number of categories of special circumstances that may

subject a defendant to the death penalty has gone from five to 22.

Cal. Penal Code § 190.2(a) (West 2006). Further, if murder is

1. The California general law provides that:

“The district attorney is the general prosecutor, except as otherwise

provided by law. The public prosecutor shall attend the courts, and

within his or her discretion shall initiate and conduct on behalf of

the people all prosecutions for the public offenses.”

Cal. Government Code, § 26500 (West 1988).

2. Bouie v. City of Columbia, 378 U.S. 347 (1964) (Bouie).

3

committed while one is engaged in, is an accomplice in, or is

fleeing after, the commission or attempted commission of any of

12 listed felonies, such a felony-murder also constitutes a special

circumstance. Cal. Penal Code § 190.2(a)(17) (West 2006).

In recent years, to curb recidivism and punish heinous crimes

more appropriately with a view toward deterring the most serious

kinds of misconduct that threaten public safety, the California

Legislature has amended and enacted a number of statutes

re-classifying certain crimes as serious and violent offenses and

providing for additional penalties for recidivism. See, e.g., Cal.

Penal Code §§ 667, 667.5(a), 667.5(c), 1192.7(c) (West 2006) .

In addition to increased penalties for substantive crimes and

recidivism, certain conduct, such as the intentional discharge of

a firearm causing great bodily injury or death in the commission

of certain offenses (Cal. Penal Code § 12022.53(d) (West 2006))

and the infliction of aggravated mayhem or the existence of

certain circumstances connected to the commission of specified

sex offenses (Cal. Penal Code §§ 667.61(a), (c) and (d) (West

2006)), is now punishable by a life sefitence with a minimum

25-year term before parole eligibility.

Thus, the California Supreme Court will be confronted

repeatedly with the need to interpret new criminal and penalty

Statutes. Yet the foregoing examples are but a few of the new

substantive and penalty provisions whose application will be

negatively impacted by the Ninth Circuit’s extension of Bouie

under its all-too-literal due process analysis of State decisional

law. Amicus therefore has a strong interest in urging that

certiorari be granted.

SUMMARY OF ARGUMENT

Using a stringent due process analysis, the Ninth Circuit

found that affirming the death penalty in Clark, 50 Cal. 3d 583,

789 P.2d 127 violated the ex post facto prohibition. The Ninth

Circuit thus extended the scope of the Bouie doctrine to apply to

penalties and imported ex post facto principles into the analysis

of judicial decisions. Ignoring the holdings of Lewis v. Jeffers,

497 U.S. 764, 780 (1990), Estelle v. McGuire, 502 U.S. 62, 72

4

(1991), it granted federal habeas corpus relief for alleged

instructional error, and overlooking the exposition in Lockhart v.

Fretwell, 506 U.S. 364, 371-373 (1993) of the Teague v. Lane’

retroactivity rule in the context of Butler v. McKellar, 494 U.S.

407, 414 (1990), it went beyond due process to accord the

defendant an entitlement to “have the state court make an error in

his favor.” Nix v. Whiteside, 475 U.S. 157, 186-187 (1986)

(Blackmun, J., concurring).

Here, the State Supreme Court had fashioned an exception to

a new statute, but its narrow holding became generalized in the

Green instruction, which the Supreme Court has since then

repeatedly held to be inapplicable to concurrent intent felony-

murders. Certiorari should be granted to address whether federal

courts, in conducting a due process review under Bouie, should

-accord the deference to judicial refinement and reevaluation of

legal doctrines required by Rogers in greater measure when

reviewing a state court decision interpreting or clarifying a new

statute or state-law judicial doctrine.

The California Supreme Court, in applying the arson- murder

special circumstance to Clark’s actions, did not violate due

process, but the Ninth Circuit’s misreading of Green led it to so

conclude. Following this Court’s mandates in Furman v.

Georgia, 408 U.S. 238 (1972) and Gregg v. Georgia, 428 U.S.

153 (1976), the People through the initiative process had enacted

California Penal Code section 190.2 (West 1978), which

narrowly delineates the special circumstances that justify the

imposition of the death penalty by a jury in any given case.

Section 190.2 gave clear notice that first degree murder

committed during the commission of arson is such a special

circumstance.

In 1980, while the current death penalty statute was new, the

California Supreme Court in Green reviewed the applicability of

the felony-murder special circumstance to a premeditated

murder wherein the victim was robbed to conceal her identity.

The State Supreme Court interpreted the special circumstance

3. See, Teague v. Lane, 489 U.S. 288, 310 (1989).

5

felony-murder provision as not including such a case in its

purview because the robbery was incidental to the primary crime

of murder. Green, 27 Cal. 3d at 61. Green created an exception

to the felony-murder special circumstance provision compelled

under its facts; it did not add a requirement that was never

expressed or implied in the statutory language: namely, that the

murder be carried out “in order to advance [the] independent

felonious purpose” of another crime. Green, 27 Cal. 3d at 61

(emphasis added). Neither should legislative effect be given to

Green on Bouie review, usurping on the strength of one phrase in

the Green opinion, the province of the Electorate and the

Legislature, particularly since no amendment was needed to cure

any putative constitutional infirmity in the statute.

This Court has recognized that in determining whether a

judicial decision was so unforeseeable as to violate the due

process right to notice under Bouie, due consideration must be

given to the legitimate need that courts have to revisit prior

decisions on an ongoing basis to review, modify, and clarify

judicial doctrines. Rogers, 532 U.S. at 457,462. That need is the

more compelling where the statutes are new and judicial

doctrines are of recent origin.

A federal court’s due process inquiry in reviewing state court

judgments and decisions should focus — not upon strict

adherence to every corner and edge of decisional law, giving

literal language preference over the legal principles upon which

those decisions rest — but rather upon the constitutional validity

of the judgment or decision as a whole in the context of existing

statutory and decisional law seen from a common sense

perspective, with a view toward avoiding needless reversals and

recognizing that state courts are also capable of properly

interpreting the Federal Constitution and especially their own

laws. Because the Ninth Circuit’s procedure in reviewing state

court decisions as evidenced in Clark v. Brown puts “an

unworkable and unacceptable restraint on normal judicial

processes” (Rogers, 532 U.S. at 461), amicus urges this Court to

grant certiorari.

ARGUMENT

I. THE NINTH CIRCUIT MISCONSTRUED PEOPLE

Vv. GREEN AS PRECLUDING A FELONY-MURDER

SPECIAL CIRCUMSTANCE FINDING WHERE THE

FELONY WAS COMMITTED TO FACILITATE THE

MURDER

A. The Death Penalty Statute Does Not Require A

Felony-Murder To Advance An _ Independent

Felonious Purpose, Nor Does It Preclude A

Felony-Murder Special Circumstance Finding

Where There Was A Concurrent Intent To Kill

While Carrying Out Another Felonious Purpose

When Clark killed Gawronski in 1980, his actions fell

squarely under the arson-murder special circumsiance statute.

California Penal Code section 190.2(a)(17) provided for a

“special circumstance” making Clark subject to death or life in

prison without possibility of parole, where the jury finds:

The murder was committed while the defendant was

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

the immediate flight after committing or attempting to

commit the following felonies: ... (viii) Arson in

violation of Section 447.

Clark, 50 Cal. 3d at 606; Cal. Penal Code § 190.2(a)(17) (West

1980).

Nowhere in the statute is there any requiremert that the

murder must be committed to advance an independent felonious

purpose. Nor does the statute preclude a special circumstance

murder finding if the perpetrator had a concurrent intent to kill

when he committed the felony. The statute, as enacted, was in -

compliance with the holdings of Furman v. Georgia and Gregg

v. Georgia and gave Clark clear notice that he could be subject to

the “ath penalty in setting fire to his victims’ home and killing

Gawronski in the course of the arson. Since the Green exception

has very narrow applicability (see, infra) not relevant to Clark,

the Ninth Circuit engaged in judicial lawmaking in applying

7

Green to all felony-murder special circumstance cases and

reversing the death penalty in Clark on that ground.

B. Because Callous Disregard For Human Life And

Deliberate Exposure Of Society To The Danger Of

Death Justify The Capital Penalty For Felony-Murder,

Green Only Established A Narrow Exception To The

Felony-Murder Special Circumstance If The Felony,

Being Incidental To An Intended Murder, Created No

Additional Danger To The Public

It is well.established that a murder conviction is justified

under the felony-murder rule because the defendant deliberately

participated in the felony, knowing the inherently dangerous

nature of the criminal activity involved. People v. Phillips, 64

Cal. 2d 574, 582, 4:4 P.2d 353, 51 Cal. Rptr. 225 (1966),

overruled ; People v. Mattison, 4 Cal. 3d 177, 184, 481 P.2d 193,

93 Cal. Rptr. 185 (1971), People v. Lopez, 6 Cal. 3d 45, 52, 489

P.2d 1372, 98 Cal. Rptr. 44 (1971) (Lopez). Additionally, if the

defendant participates in the commission or attempted

commission of any of the felonies listed in the death penalty

statute (Cal. Penal Code § 190.2(a)(17)(West 2006)), the

resulting murder committed in thé course of the felony is not

only a first-degree murder, but also one that is punishable by

death.

In affirming the validity of the felony-murder special

circumstance provision, the Supreme Court reasoned:

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, e.g., who

carried out an execution-style slaying of the victim of or

witness to a holdup, a kidnaping, or a rape.

Green, 27 Cal. 3d at 61. The phrase, “who killed in cold blood in

order to advance an independent felonious purpose,” led to many

misinterpretations, including the one at issue here.

The basis of the distinction, justifying the imposition of a

capital sentence, between those who commit first-degree murder

and those who commit felony-murder, however, cannot turn

8

upon the non-existence of a prior intent to kill in the case of

felony-murder, for then the California Legislature would not

have classified premeditated murder as murder in the first degree,

indicating culpability of the first magnitude. The basis for

justifying the capital penalty for felony-murder is rather the

moral culpability of the perpetrator, measured in part by

participation in an inherently dangerous felony (see Pizano v.

Superior Court of Tulare County, 21 Cal. 3d 128, 136, 139, 577

P.2d 659, 145 Cal. Rptr. 524 (1978) (Pizano), see also People v.

Dillon, 34 Cal. 3d 441, 453, 668 P.2d 697, 194 Cal. Rptr. 390

(1983), cf. Green, 27 Cal. 3d at 73), but more particularly the

callousness of the conscious and wanton disregard for human life

(Pizano, 21 Cal. 3d at 134, 139) evidenced by the unflagging

pursuit of that dangerous felonious purpose.

The California Supreme Court must have had this point in

mind in using the words “in cold blood” and “execution-style

slaying of the victim ....” (Green, 27 Cal. 3d at 61), i.e., the

cold-blooded, execution-style killing is not morally more

reprehensible than a premeditated murder merely because it

occurs “while the defendant [is] engaged in ... the commission

of ...” (Cal. Penal Code § 190.2(a)(17) (West 2006)) another

felony; rather, the felonies specified in the death penalty statute

are, in the first place, especially heinous or inherently

particularly dangerous to life, and, secondly, the fact that the

defendant is not deterred in their commission by the prospect of

murder, but cold-bloodedly advances toward completion of his

felonious undertaking, is particular proof of “an abandoned and

malignant heart” (Cal. Penal Code § 188 (West 2006)).

That it is the cold-blooded, inexorable manner of the killing

reflecting callousness or a conscious and wanton disregard for

human life which makes the perpetrator deserving of the death

penalty is supported by the fact that this characteristic is shared

by many of the other listed special circumstances: for financial

gain, using explosives, inflicting torture, killing a peace officer in

the performance of duty, to prevent a witness from testifying,

multiple murders, or murder in the commission of certain

inherently dangerous or depraved felonies: kidnaping, robbery,

9

burglary, child molestation, and rape. Cal. Penal Code §§

190.2(a) , (b) ), and (c) (West 1978). On the other hand, the

serious and violent nature of the felonies listed in the statute

under the felony-murder special circumstance creates an

additional danger to the public during the commission of the

felony, either because of the inherently dangerous nature of the

felonies, or because of the increased danger to the victim, or

because others will be put in harm’s way while trying to stop the

crime or help the victim, as was the case with the neighbors in

Clark, who rescued the baby from the fire.

In Green, the defendant had planned and carried out the

murder of his wife by having friends lure her from her friend’s

house; they drove to a remote location, where he had her strip,

and then shot her. He took her rings, purse and clothes to hide

her identity. Green, 27 Cal. 3d at 13-17, 51. Although the jury

had found a robbery-murder special circumstance, the intent in

robbing the wife appeared to be to leave her unidentifiable in a

remote place (id. at 50, 57), and the jury was concerned that

what occurred was in fact “a murder ... and a robbery was just a

second thing to it ....” Jd. at 60. The California Supreme Court

reversed the robbery- murder special circumstance finding,

reasoning that “[t}he Legislature’s goal [of distinguishing

between murderers] is not achieved ... when ... the robbery is

incidental to the murder ... because its sole object is to facilitate

or conceal the primary crime.” /d. at 61.

The reasoning was correct under Green’s given facts, but

because the opinion did not entirely explain the legislative

distinction in terms of its rational basis, it gave rise to the

unfortunate and erroneous conclusion drawn by the Ninth Circuit

in this case: namely, an unpremeditated murder perpetrated

during the commission of arson could be punishable as a capital

crime, but not a premeditated murder, if it was accomplished or

facilitated by the commission of arson. The Green Court reversed

the special circumstance finding because the robbery, in the way

in which it occurred, was not an “inherently dangerous” felony;

i.e., Green did not intentionally expose the public to danger or

increase the victim’s likelihood of death - Green and his victim

10

were in a secluded area, and his intent was always to murder the

victim.

C. Green Neither Required A Felony-Murder To

Advance An Independent Felonious Purpose Nor Did It

Preclude A Special Circumstance Finding Of

Felony-Murder Where An Intent To Kill Existed

Concurrently With Another Felonious Purpose

Neither the California Supreme Court’s rationalization of the

felony-murder category in the death penalty statute, nor its

restrictive application of the statute in a special case, should be

misinterpreted as judicial legislation.

Although the words, “in order to advance an independent

felonious purpose,” are found in the Green decision, it was not

the holding of the case “that on/y a murder for the purpose of

advancing the independent felony could be a murder in the

commission of a [specified felony] for special circumstance

purposes.” Clark, 50 Cal. 3d at 653 (Kaufman, J., concurring

and dissenting). That language was part of a description of the

mens rea that might serve te justify a capital sentence in a

felony-murder. Neither did Green preclude a robbery-murder

special circumstance merely because the intent to kill also

existed; instead, Green only created an exception for a murder in

which a robbery was technically, but merely incidentally,

committed, as a happenstance or afterthought. /d.

Petitioner points out that it was foreseeable (Webster v.

Woodford, 369 F.3d 1062, 1074-75 (9th Cir. 2004)) that the

“concurrent objectives” ruling of People v. Murtishaw, 29 Cal.

3d 733, 631 P.2d 446, 175 Cal. Rptr. 738 (1981) (Murtishaw)

would be imported into the interpretation of the death penalty

statute. Petition for Writ of Cert., p. 8. Indeed, but for the

misleading jury instruction which Green spawned, concurrent

objectives would not even be in issue under the plain language of

the statute. It should be noted that none of the listed felonies

would merge with the murder.

While under due process we may be limited to the holdings

of cases decided before Clark’s crime was committed, we are not

ll

precluded from arguing the plain language of the statute or a fair

reading of the cases decided before Clark. For purposes of

showing what is a reasonable view of the state of the law,

however, subsequent decisions are relevant if they are consistent,

as tending to show that the trend did not deviate from precedent.

Prior decisional law is consistent in finding the felony-

murder rule justified by the danger inherent in the felonies which

the defendant intentionally perpetrated with conscious disregard

for the deadly consequences. The intent to kill was satisfied by

the malice implied in that callous or wanton disregard for human

life. Murder was fixed at first degree for listed felonies and

second degree for other inherently dangerous felonies. Lopez, 6

Cal. 3d at 47, 49. In Green the California Supreme Court created

an exception to the special circumstarice robbery-murder where

the robbery was not the intentional felonious conduct which

created a danger resulting in harm, but only incidental to the

intended murder. Under Murtishaw, 29 Cal. 3d 733, concurrent

intent did not preclude application of the felony-murder rule.

The California Supreme Court made it clear that Green is not

applicable if the defendant had independent albeit concurrent

goals for the felony and the murder (People v. Robertson, 33 Cal.

3d 21, 52, 655 P.2d 279, 188 Cal. Rptr. 77 (1982) (Robertson),

Clark, 50 Cal. 3d at 608-609) and that Green did not stand for the

proposition that, for a felony-murder special circumstance to be

found, the murder must carry out or advance the purpose of the

felony (People v. Horning, 34 Cal. 4th 871, 907, 102 P.3d 228,

22 Cal. Rptr. 3d 305 (2004) (Horning)).

Seen in its fuil context, the “concurrent intent” ruling of

Murtishaw and Robertson was not a new development in the law

of the felony-murder category of special circumstances, but a

continuation of a well-established legal theory of the

felony-murder rule. Under that rule, it was never the absence of

a prior intent to kill that allowed a homicide in the course of a

felony to be designated felony-murder, but it was the malice

implied in the intentional commission of an inherently dangerous

felony with wanton disregard of the danger to human life that

permitted a homicide in the commission of a felony to be

12

designated a murder. The murder in Green failed to qualify as a

special circumstance felony-murder, not because that murder

was not the handmaiden of the robbery, but because the robbery,

being incidental, seemed to lack the intensity of purpose

necessary to impute wanton disregard for danger to life and to

make the intentional murder more reprehensible.

The arson perpetrated by Clark, whatever Clark’s intent, was

an inherently dangerous felony specified in the special

circumstances statute. It is irrelevant to the felony-murder

whether Clark intended to kill David Gawronski by burning him

to death or by shooting him after the fire had driven him from his

home, or not at all. The requisite felonious intent is only the

intent needed to set an inhabited building on fire willfully and

maliciously. Cal. Penal Code § 447a (West 1978). Clark had

this intent, and he carried it out with all the callous disregard for

loss of human life which the special circumstance statute was

intended to address. In committing arson, he not only killed his

intended victim, but he also injured the victim’s wife and risked

the lives of the baby and the neighbors who went into the burning

building to save the baby. In spite of the danger and foreseeable

consequences, Clark proceeded in cold blood.

Amicus urges this Court to direct that due process analyses

of state court judgments and decisions be conducted with a view

of the entire context of the state’s statutory and decisional law.

Further, due regard may be given to later decisions where such

decisions are consistent with prior case law and tend to support

a view of the case or judgment under review as being consistent

with constitutional principles.

II. STATE COURTS MusT BE AFFORDED GREAT

LATITUDE IN CLARIFYING NEW STATUTES OR

‘MODIFYING OR REVISING JUDICIAL DOCTRINES

INVOLVING NOVEL AREAS OF LAW

In our legal tradition of evolving jurisprudence, courts have

an important and legitimate need to review, modify, and clarify

judicial doctrines, and to revisit prior decisions on an ongoing

basis. This Court recognized (in Rogers, 532 U.S. at 457, 462)

13

that in determining whether a particular judicial decision was so

unforeseeable as to violate the due process right to notice under

the Bouie doctrine, the judicial evolutionary need must be

accommodated, especially where a state court is faced with

interpreting new statutes or expounding or applying judicial

doctrines of recent origin.

Bouie held that when an “unforeseeable state-court

construction of a criminal statute is applied retroactively to

subject a person to criminal liability for past conduct, the effect

is to deprive him of due process of law in the sense of fair

warming that his contemplated conduct constitutes a crime.”

Bouie, 378 U.S. at 354-55. A due process violation occurs when

the “state court's construction of a criminal statute was so

unforeseeable as to deprive the defendant of the fair warning to

which the Constitution entitles him.” Jd. at 354 (emphasis

added).

This Court has historically demanded a very high degree of

unforeseeability as a prerequisite for Bouie error: the judicial

interpretation must be “unexpected and indefensible by reference

to the law which had been expressed prior to the conduct in

issue.” Bouie, 378 U.S. at 353; accord Rogers, 532 U.S. at 457.

Moreover, the due process right to notice requires only

““reasonable waming’” that one's conduct is proscribed; it does

not require “fundamentally similar prior cases.” Bradshaw v.

Richey, 126 S. Ct. 602, 604, 163 L. Ed. 2d 407 (2005) (citing

United States v. Lanier, 520 U.S. 259, 269-70, (1997)). As this

Court warned, overly stringent applications of Bouie would have

an unwarranted chilling effect on the courts’ traditional and

legitimate function of developing and refining judicial doctrines

on an ongoing basis:

In the context of common law doctrines . . ., there often

arises a need to «larify or even to reevaluate prior opinions

as new circumstances and fact patterns present themselves.

Rogers, 532 U.S. at 461 (emphasis added) (declining to import

ex post facto principles into the Bouie doctrine).

The “unexpected and indefensible” standard of Bouie

therefore strikes a balance between the due process interest in

14

preventing “vindictive or arbitrary judicial lawmaking” and the

courts’ need to “reevaluat[e] and refin{e]” judicial doctrines “as

may be necessary to bring the common law into conformity with

logic and common sense.” Rogers, 532 U.S. at 461-62.

[T]he fact of the matter is that common law courts then, as

now, were deciding cases, and in doing so were fashioning

and refining the law as it then existed in light of reason and

experience. Due process clearly did not prohibit this

process of judicial evolution at the time of the framing, and

it does not do so today.

Id. at 462.

The “Bouie doctrine” cases heretofore decided by this Court

have generally involved judicial interpretations or expansions of

old, well-established statutes or common law doctrines.“ This —

Court has not yet squarely addressed whether the deference to

judicial reevaluation and refinement of legal doctrines required

by Rogers should be amplified in cases involving a state court’s

interpretation of a recently enacted statute or of a fairly new

state-law judicial doctrine.

Here, the allegedly “unforeseeable” state court ruling was a

Supreme Court opinion interpreting a special circumstance

statute enacted only four years before Clark's crime. Moreover,

the judicially-created exception to that statute at issue here (“the

Green rule’’) was first announced less than two years before the

crime. At the time of the crime, the California Supreme Court

had not decided the precise issue relevant to Clark: whether

4. See United States v. Lanier, 520 U.S. at 266 (Reconstruction Era civil

rights statute); Marks v. United States, 430 U.S. 188 (1977) (decades-old

federal obscenity statute); Rose v. Locke, 423 U.S. 48, 53 (1975) (per

curiam) (decades-old Tennessee statute derived from common law,

prohibiting “crimes against nature”); Douglas v. Buder, 412 U.S. 430, 432

(1973) (per curiam) (decades-old Missouri statute defining “arrest’”’); Rabe

v. Washington, 405 U.S. 313, 316 (1972) (per curiam) (century-old state

obscenity statute). In Bradshaw v. Richey, 126 S. Ct. 602, this Court

addressed the intepretation of a state aggravated murder statute enacted

only four years before the crime, but the novelty of the statute was not an

articulated basis of the Court's analysis.

15

Green applied where a defendant harbored multiple, concurrent

objectives for committing arson-murder. State courts grappling

with a newly-created and unsettled area of state law need to be

given greater leeway to clarify, refine, and modify state law.

On the other hand, because Green involved an exception to,

rather than the normal case under the felony-murder rule, the

focus was on the edge, as it were, rather than at the center of the

area of legal inquiry, so that the view was accordingly skewed.

As the function of the highest appellate court is to establish

guidelines and general rules rather than to correct error, the

formulation of the exception to the felony-murder rule, coming

from the California Supreme Court, became known as the Green

rule, rather than the Green exception. Adding to this distortion

was the concern with over-breadth under the Furman-Gregg

mandate. The California Supreme Court reversed the robbery-

murder special circumstance under the facts of Green, but the

displacement of the felony-murder rule by the Green exception

led, in the eagerness to avoid constitutional over-breadth, to the

legally and logically incorrect Green instruction.

Where once the pursuit of an inherently dangerous felonious

purpose in wanton disregard of the danger to human life sufficed

to imply malice under the felony-murder rule, the existence of

malice in the commission of an intentional murder, under the

Green instruction, would not support a felony-murder special

finding notwithstanding the tempora! nexus between the murder

and an independent felony, unless the murder served the purpose

of the independent felony. Clark, 50 Cal. 3d at 607, n. 14. Under

the Ninth Circuit’s expansion of the Green exception, if the

felony’s sole purpose was to facilitate the intentional murder, it

was “‘incidental’” and “did not qualify a defendant for the death

penalty under the felony- murder special circumstances statute.”

Clark v. Brown, 450 F.3d at 909-10.

By this reasoning, the arsonist who unintentionally kills is

subject to a capital penalty, but one who intentionally burns his

victim to death by setting fire to his house is not. The felonious

intent is the same, as is the resulting harm, but the morally more

culpable murderer will not be subject to as heavy a penalty as the

16

improvident arsonist.

However, not only does the Ninth Circuit’s expansion of

Green lead to absurd results, its analysis also extends Bouie to

reach results inconsistent with federal precedents.

Ill. BOuIE v. CITY OF COLUMBIA IS NOT APPLICABLE

To A SPECIAL CIRCUMSTANCE FINDING

Bouie, which struck down a judicial retroactive expansion of

trespass (statutorily defined as illegal entry) to cover illegally

remaining on legally entered premises (id. 378 U.S. at 349-50),

has hitherto been invoked against judicial decisions enlarging the

scope of criminal liability to cover previously non-criminal

conduct.°

The Ninth Circuit, relying on Ex Post Facto Clause principles,

extended Bouie to overturn Clark because it believed that Clark

increased the penalty for conduct which was clearly defined as

first-degree murder when the crime was committed.® In so doing,

it reached a decision that conflicted with its own past decisions.

McSherry, 880 F.2d at 1056 (Bouie inapplicable unless someone

“pursuing ... otherwise ... innocent behavior could be ensnared by

the statute with no warning whatsoever”); see also Darnell v.

Swinney, 823 F.2d 299, 301 (9th Cir. 1987) (Bouie not violated

where defendant “clearly had fair warning that his contemplated

conduct ... was criminal”).

However, the ex post facto language in Bouie was dicta.

Rogers, 532 U.S. at 458-59, citing Bouie 378 U.S. at 353-54, 362.

5. Marks v. United States, 430 U.S. 188 (broadened “obscenity” definition

not retroactively applicable to charge of transporting obscene materials);

Rabe v. Washington, 405 U.S. at 316; McSherry v. Block, 880 F.2d 1049,

1053 n.4 (9th Cir. 1989); Darnell v. Swinney, 823 F.2d 299, 301 (9th Cir.

1987) (“fair warning that ... contemplated conduct constitutes a crime”

required under Bouie).

6. Webster v. Woodford, 369 F.3d at 1068 did not explicitly hold Bouie

applied to judicial enlargements of the scope of California's special

circumstance provisions and ultimately rejected petitioner's claim of

unforeseeable expansion. /d. at 1070-72, 1074.

17

The Bouie doctrine is based on the Due Process Clause, not the

Ex Post Facto Clause (applicable only to legislative acts); these

clauses differ in scope, and Calder (Calder v. Bull, 3 U.S. (3

Dall.) 386, 390 (1798) (Chase, J.)) limitations specific to ex post

facto legislation should not be imported into Bouie’s due process

doctrine because of “institutional and contextual differences”

between the legislative and judicial bodies and how they function.

Rogers, at 459-60. Moreover, such limitations’ “would place an

unworkable and unacceptable restraint on normal judicial

processes ... incompatible with the resolution of uncertainty that

marks any evolving legal system.”” /d. at 461.

Clark had fair warning that arson-murder was a special

circumstance. In any case, whether Clark’s crimes supported

such a finding does not implicate Bouie concerns.

IV. FEDERAL HABEAS CORPUS IS UNAVAILABLE TO

REVIEW INSTRUCTIONAL ERROR

The Supreme Court in Green reversed the death penalty on

factual, not constitutional, grounds, because murder was the

intended crime and robbery was committed as an afterthought.

Green, 27 Cal. 3d at 49, 59-62. The Green instruction is thus

extraneous to the felony-murder special circumstance statute.

Fairly stated, decisional law prohibited felony-murder

special circumstance findings® only when the specified felony

7. Prohibited are laws which after the fact (1) criminalize innocent acts; (2)

aggravate crimes; (3) increase punishment; or (4) alter evidentiary rules to

require less or different testimony for conviction. (Accord, Carmell v.

Texas, 529 U.S. 513, 521-25 (2000); Collins v. Youngblood, 497 U.S. 37,

41-42, 46 (1990).)

8. See, Robertson, 33 Cal. 3d at 52; People v. Weidert, 39 Cal. 3d 836,

842, 705 P.2d 380, 218 Cal. Rptr. 57 (1985); People v. Kimble, 44 Cal. 3d

480, 501, 749 P.2d 803, 244 Cal. Rptr. 148 (1988) (Kimble); People v.

Silva, 45 Cal. 3d 604, 632, 754 P.2d 1070, 247 Cal. Rptr. 573 (1988);

People v. Wright, 52 Cal. 3d 367, 416-417, 802 P.2d 221, 276 Cal. Rptr.

731 (1990); People v. Raley, 2 Cal. 4th 870, 902-903, 830 P.2d 712, 8 Cal.

Rpitr. 2d 678 (1992); People v. Mendoza, 24 Cal. 4th 130, 6 P.3d 150, 99

Cal. Rptr. 2d 485 (2000); People v. Valdez, 32 Cal. 4th 73, 113, 82 P.3d

was an afterthought, as in Green, or if it added nothing to

defendant’s guilt, as in People v. Thompson, 27 Cal. 3d 303,

321-324, 611 P.2d 883, 165 Cal. Rptr. 289 (1980), where robbery

was a pretext and the intent all along was to kill the victims.

When Clark was tried, the statute required only that “the

murder [be] committed while the defendant was engaged in ...

the commission of ... , or the immediate flight after committing ...

the ... [felony]” — here arson of an inhabited structure. Clark, 50

Cal. 3d at 606. It does not, and never did, require the murder to

advance the commission of the felony. Horning, 34 Cal. 4th at

907. Here, the arson was not merely incidental to David

Gawronski’s murder (Clark’s intended crime), but had an

independent purpose: to set fire to the Gawronski home, to drive

David and Ava out so that Clark could shoot David in Ava’s

presence, to hurt Ava: thus, Green is inapplicable. Robertson, 33

Cal. 3d at 52.

Green did not establish an element of special circumstance.

Valdez, 32 Cal. 4th at 113, affirming Kimble, 44 Cal. 3d at 501.

The instruction not being constitutionally required, it was not

error to omit it where Green was inapplicable. The requirement

of a temporal, non-trivial nexus between commission of the

felony and the murder under the felony-murder special

circumstance statute was unaltered by admitting a concurrent

intent to kill. The over-expansive Green instruction, correct

under Green’s facts, misstates what is constitutionally required

under the felony-murder special circumstance statute. In any

case, instructional error under state law provides no basis for

federal habeas relief under Lewis v. Jeffers, 497 U.S. at 780, and

Estelle v. McGuire, 502 U.S. at 72.

Murtishaw held in 1981 that felony-murder applied where

there was a concurrent intent to kill, and Robertson established in

1982 the inapplicability of Green when an independent purpose

exists for the felony. Whether Clark was entitled to a Green

instruction was an issue of criminal trial procedure, and Green

(. .continued)

296, 8 Cal. Rptr. 3d 271 (2004); Horning, 34 Cal. 4th at 907; People v.

Davis, 36 Cal. 4th 510, 568-569, 115 P.3d 417, 31 Cal. Rptr. 3d 96 (2005).

19

being inapplicable to Clark’s facts, the instruction was properly

omitted after Murtishaw and Robertson.

Defendants do not have the same interest as the state in the

non-retroactivity rule under Teague v. Lane, that rule being

grounded in the states’ strong interest in the finality of judgments.

Lockhart v. Fretwell, 506 U.S. at 371-373. Clark was not

entitled to “have the state court make an error in his favor.” Nix

v. Whiteside, 475 U.S. at 186-187 (Blackmun, J., concurring).

CONCLUSION

For the foregoing reasons, this Court should grant certiorari

to review the Ninth Circuit’s decision and procedures in

conducting a due process analysis of state court judgments.

Respectfully submitted,

STEVE COOLEY

District Attomey of Los Angeles County

By

LAEL RUBIN, SBN 82752

Head Deputy District Attomey

PATRICK D. MORAN, SBN 66907

Deputy District Attorney

SHIRLEY S. N. SUN, SBN 112803

Deputy District Attorney

Attomeys for Amicus Curiae in Support

of Petitioner for Writ of Certiorari