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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2006

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_1384%3A5. Public record. Not legal advice.