450 F.3d 898 (9th Cir. 2006), 02-99007, Clark v. Brown

Docket Nº:02-99007.
Citation:450 F.3d 898
Party Name:William CLARK, Petitioner-Appellant, v. Jill BROWN, Warden, California State Prison at San Quentin, [*] Respondent-Appellee.
Case Date:March 17, 2006
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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450 F.3d 898 (9th Cir. 2006)

William CLARK, Petitioner-Appellant,

v.

Jill BROWN, Warden, California State Prison at San Quentin, [*] Respondent-Appellee.

No. 02-99007.

United States Court of Appeals, Ninth Circuit.

March 17, 2006

Argued and Submitted Feb. 17, 2005.

Amended May 30, 2006.

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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Maria E. Stratton, Sean K. Kennedy and Mark R. Drozdowski, Office of the Federal Public Defender, Los Angeles, CA, for the petitioner-appellant.

Bill Lockyer, Robert R. Anderson, Pamela C. Hamanaka, Keith H. Borjon and Scott A. Taryle, Office of the California Attorney General, Los Angeles, CA, for the respondent-appellee.

Appeal from the United States District Court for the Central District of California; David O. Carter, District Judge, Presiding. D.C. No. CV-95-00334-DOC.

Before DOROTHY W. NELSON, WILLIAM A. FLETCHER, and RAYMOND C. FISHER, Circuit Judges.

ORDER AMENDING OPINION AND DENYING REHEARING AND AMENDED OPINION

WILLIAM A. FLETCHER, Circuit Judge.

ORDER

This court's opinion filed March 17, 2006, and published at Clark v. Brown, 442 F.3d 708 (9th Cir. March 17, 2006) is amended as follows:

The last two lines of slip op. 2802 and the first line of 2803, replace the sentence:

"Not only was Murtishaw a non-capital special circumstance felony-murder case in which the Court was careful to distinguish Green, as just noted."

With:

"Not only was Murtishaw a non-special circumstance felony-murder case in which the Court was careful to distinguish Green, as just noted."

With this amendment, the panel has voted to deny the petition for rehearing. Judges Fletcher and Fisher have voted to

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deny the petition for rehearing en banc; and Judge Nelson so recommends.

The full court has been advised of the petition for rehearing en banc and no judge of the court has requested a vote on whether to rehear the matter en banc. Fed. R.App. P. 35.

The petition for rehearing and the petition for rehearing en banc, filed April 27, 2006, are DENIED.

OPINION

William Clark, a California death row inmate, appeals the district court's denial of his 28 U.S.C. § 2254 habeas corpus petition asserting several constitutional errors related to his sentence. We hold that there were two interrelated due process violations in this case. First, we hold that the state trial court's failure to give a felony-murder special circumstance jury instruction based on the California Supreme Court's decision in People v. Green, 27 Cal.3d 1, 164 Cal.Rptr. 1, 609 P.2d 468 (1980), violated Clark's due process right to present a complete defense. Second, we hold that the California Supreme Court's retroactive application of a new interpretation of Green and of the felony-murder special circumstance statute, on direct review, violated Clark's due process right to fair warning that his conduct made him death-eligible. Finally, we hold that these violations were not harmless. We do not reach Clark's remaining challenges to his sentence. Our decision does not affect Clark's conviction for first-degree murder, his two convictions for attempted second degree murder, and his conviction for arson.

I. Background

In the early morning hours of January 6, 1982, Clark threw gasoline into the house where David and Ava Gawronski and their infant daughter Sara were sleeping. He then ignited the gasoline by throwing highway flares into the house. David Gawronski suffered second-- and third-degree burns over 90 percent of his body and died eight days later. Ava Gawronski was so seriously burned that she was hospitalized for 10 months. She ultimately lost her fingers and nose, and suffered additional permanent injuries. Sara, the baby, was rescued unharmed by a neighbor.

Clark surrendered to authorities and confessed the next day. He contended that his plan had been to set the fires in order to drive the family out of the house, and then to kill David Gawronski with a shotgun in front of Ava once the family was outside. Ava Gawronski had been Clark's therapist. A short time before the fires, she had discontinued Clark's counseling sessions against his wishes. Clark's stated purpose was to cause her to suffer the same emotional pain that he claimed to have suffered when she discontinued his therapy.

Clark was charged with first-degree murder of David Gawronski, attempted first-degree murder of Ava and Sara Gawronski, and arson. The state also charged two special circumstances that would make Clark death-eligible: murder by means of explosive, and murder in the commission of a felony (arson).

The defense theory of the case was that while Clark intended to kill David Gawronski by means of his plan, he never intended to kill or physically injure Ava or Sara Gawronski. Clark took the stand at trial and admitted both the arson and intent to kill David Gawronski. However, he contested the attempted murder charges and contested the two special circumstances.

By contrast, the prosecution theory of the case was that Clark intended to kill the entire family in the house by means of the fires. The prosecution presented evidence at trial that Clark first set a fire in the

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dining room, thereby trapping David and Ava Gawronski in their bedroom, and then set fire to their bedroom.

Clark's defense counsel Charles English requested the then-standard jury instruction on the felony-murder special circumstance, California Jury Instruction (CALJIC) 8.81.17. This instruction contained language based on the California Supreme Court's decision in People v. Green, 27 Cal.3d 1, 164 Cal.Rptr. 1, 609 P.2d 468 (1980). Green and CALJIC 8.81.17 provided a narrowing construction of California's felony-murder special circumstance statute. Under Green, the State had to show that the murder was "committed in order to carry out or advance the commission of the crime" of arson, "or to facilitate the escape therefrom or to avoid detection" of the arson. It was not enough to show that the arson was "merely incidental" to the murder.

The prosecutor objected to the CALJIC instruction requested by Clark. Instead, he sought an instruction that simply tracked the language of the felony-murder special circumstance statute without adding the narrowing construction then required by Green. The language of the statute, and the prosecutor's requested instruction, required only that the murder have been committed while Clark "was engaged in" the commission or attempted commission of arson. See Cal.Penal Code § 190.2(a)(17)(viii) (1995) (current version at Cal.Penal Code § 190.2(a)(17)(H)). The trial court rejected the Green-based CALJIC instruction requested by Clark and gave the instruction requested by the prosecutor.

The jury convicted Clark of first-degree murder of David Gawronski, attempted second-degree murders of Ava and Sara Gawronski, and arson. 1 It also found both special circumstances true, thereby making Clark death-eligible. After seven days of further deliberation, the jury hung on the question of penalty and was excused. The State then retried the penalty question before a new jury. Clark represented himself during the penalty retrial. After four hours of deliberation, the second penalty jury returned a verdict of death.

On automatic appeal, the California Supreme Court struck the explosives special circumstance. People v. Clark, 50 Cal.3d 583, 638-39, 268 Cal.Rptr. 399, 789 P.2d 127 (1990). It affirmed Clark's conviction for the felony-murder circumstance, but only after substantially reinterpreting its earlier decision in Green. Id. at 606-09, 268 Cal.Rptr. 399, 789 P.2d 127. It then affirmed Clark's death sentence. Id. at 638-39, 268 Cal.Rptr. 399, 789 P.2d 127. The United States Supreme Court denied Clark's petition for certiorari. Clark v. California, 498 U.S. 973, 111 S.Ct. 442, 112 L.Ed.2d 425 (1990). The California Supreme Court dismissed Clark's first habeas petition for failure to state a claim and denied Clark's second habeas petition on procedural grounds. In re Clark, 5 Cal.4th 750, 761, 799, 21 Cal.Rptr.2d 509, 855 P.2d 729 (1993).

On December 13, 1995, Clark filed a petition for habeas corpus in federal district court, raising issues as to both the guilt and penalty phases of his trial. The district court denied the petition in its entirety, but granted sua sponte a Certificate of Appealability on Clark's felony-murder special circumstance claim. Clark has appealed only issues relating to his sentence.

We review de novo the district court's decision to grant or deny a 28 U.S.C. § 2254.

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Douglas v. Woodford, 316 F.3d 1079, 1085 (9th Cir.2003). Because Clark filed his habeas petition before the effective date of the Anti-terrorism and Effective Death Penalty Act of 1996 ("AEDPA") of April 24, 1996, pre-AEDPA law applies. See Woodford v. Garceau, 538 U.S. 202, 207, 123 S.Ct. 1398, 155 L.Ed.2d 363 (2003). Under pre-AEDPA law, the state court's findings of fact are "entitled to a presumption of correctness unless they are 'not fairly supported by the record.' " Silva v. Woodford, 279 F.3d 825, 835 (9th Cir.2002) (quoting former 28 U.S.C. § 2254(d)(8)). We review questions of law de novo. Gratzer v. Mahoney, 397 F.3d 686, 690 (9th Cir.2005). In pre-AEDPA cases, we also review de novo the state court's conclusion that a constitutional error was harmless. Ghent v. Woodford, 279 F.3d 1121, 1126 (9th Cir.2002).

II. Analysis

Because the California Supreme Court struck the explosives special circumstance, the felony-murder special circumstance is all that makes Clark death-eligible. If the jury's guilty verdict on the felony-murder special circumstance is reversed, the death penalty...

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