People v. Clark

Apr. 24342. S004662. Crim. No. 1990.] [No. PEOPLE, Respondent, Plaintiff and

THE CLARK, and Appellant. Defendant WILLIAM JOHN Counsel Johnson, W. under

Eric S. and Melissa Multhaup appointments Court, and for Defendant Supreme Appellant. General, B. Attorney K. de Steve White and Richard Kamp,

John Van General, Overoye, Arnold Attorneys Acting Chief Assistant O. Iglehart, General, Attorney Attorney Chief John H. Assistant Sugiyama, Assistant General, General, Berkow, Attorneys R. Gillette and Josanna Deputy Dane for Plaintiff and Respondent.

Opinion EAGLESON, J. by jury in the Los Angeles was convicted Defendant wife, of Penal County Court of former in violation rape his Superior (2)1 (count degree the first murder I); Code section subdivision second (§§ 187/189) (count II); degree David Gawronski attempted III & (§§ 664/187) (counts murder of Ava Gawronski and Sara Gawronski (count The also found true IV); (§451, (a)) V). jury arson subd. statutory specified. are Code All references to the Penal unless otherwise under circum- special that the murder had been committed allegations 190.2, (a)(6)) subd. (§ a murder means of explosives stances as 190.2, and an (a)(17)(viii)), allegation arson subd. (§ commission of 12022.7 & bodily (§§ on Ava Gawronski great injury defendant inflicted in the murder. 1203.075) attempted penalty excused it deadlocked on jury appropriate when 190.4, subd. jury (§ return a verdict. A second was empaneled

was unable to appli- returned a verdict of death. The court denied defendant’s (b)), which of death for modification of the verdict and imposed cation for 667.6, murder; years (§ (c)) term of subd. eight a consecutive upper three-year wife; years the term of nine with a upper the of his former rape great- murder of Ava Gawronski and the enhancement for the attempted term, of the middle bodily-injury years, two one-third finding; representing Gawronski; four years murder of Sara and two and for the attempted months, term, for the arson. The terms were to be one-third of the middle term, consecutive, a subordinate and the designated the term was rape of the death and stayed imposition determinate terms were pending thereafter. permanently (§ (b).)

This is automatic. subd. appeal error, find merit many considered defendant’s claims of we Having may circumstance delivery-of-explosives special his assertions conduct, determinate term must be not be to his and that one applied 190.2, stayed. We shall strike the circumstance found under section special stay it fails to modify judgment subdivision and insofar as (a)(6), to 654. In all other will respects judgment arson term section pursuant be affirmed.

Summary on the of Novem- evening The of defendant’s former wife occurred rape admitted he her 1981. She defendant to her when told apartment ber ill. He then forced her to submit to sexual very that his mother was intercourse. 6, 1982, when defendant January

The other offenses were committed on and by David and Ava Gawronski threw into the home gasoline occupied Sara, highway daughter ignited gasoline vapors their infant and David, burns over 90 third-degree percent flares. who suffered second- seriously Ava so burned that she body, January of his died on 1982. was nose, months, lost her and suffered fingers hospitalized by neigh- unharmed The child was rescued injuries. additional permanent action. bor’s heroic evidence, conviction support than was more sufficient

The which offenses, in greater will discussed be each the substantive defendant of de- Although disputing his contentions. addressing specific below in detail committed, defendant arson was the manner in which the regarding tails arson, He murder. deny rape, does the commission did not and victims, murder however. attempted intent to kill denies shortly after and confessed Defendant surrendered authorities arson was committing his He claimed that purpose offenses occurred. Gawronski, kill family of the home so that he could David to drive the out His was to Ava watched. avowed shotgun, purpose him with a as shooting he to have suffered claimed pain cause her to suffer the same emotional had been him. giving that she abruptly counseling when she discontinued that, actually ignited at the time defendant sought prove home, to kill the entire his intent was the Gawronski gasoline vapor family. Gawronski by throughout guilt was counsel the appointed

Defendant represented the When and of the trial and first trial. special phases penalty circumstance however, a and jury discharged, the was unable to reach verdict penalty the assis- represent accepting he elected to himself future proceedings, attorneys tance of as counsel.2 standby his former trials, Between the two defendant wrote letters to Ava Gawronski penalty and to live he would others which he threatened if he were allowed He by continue to cause Ava to suffer her relatives. testified that harming to his was not to the but the purpose upset recipients, provoke prosecutor, letters, he had belittled the into the second competence seeking whose by jury trial he felt that final determination a penalty penalty because of was “appropriate.” substantially

Defendant the same evidence that had presented mitigating however, chose, trial. presented penalty been the first He to withhold by jury suggested evidence heard the first which penalty quality by and manner in which it was terminated Ms. Gawronski counseling may have contrib- professional did meet standards competence to con- uted an emotional and mental turmoil that defendant’s precipitated Instead, highest duct. defendant that she had him the given stipulated 2 trial, they Although prior imposition had been relieved before to second phase. judgment argue guilt were to a permitted counsel motion for new trial addressed to the

596 treatment, he only what urged jury to consider possible quality may mental state have affected his any did and not whether emotional or actions.

Jury Penalty Trial Selection—Second 1. Restriction on Voir Dire.

Defendant’s claim that the trial court restricted improperly of voir dire the initial examination of scope during prospective penalty jurors lacks merit. phase

After considering exemptions prospective requests hardship (see voir dire of those jurors, sequestered remaining the court conducted 128, Hovey (1980) v. Court 80-81 Superior [168 to “death 1301]), qualification”—i.e., P.2d that initial examination limiting had such conscientious juror determination of whether prospective views would “pre or about his religious scruples capital punishment juror vent of his as a substantially duties impair performance oath.” v. Texas (Adams (1980) accordance with his instructions his 581, 589, 100 S.Ct. also Wainwright U.S. L.Ed.2d See 2521]. 841, 851-852, Witt 105 S.Ct. 844]; 469 U.S. L.Ed.2d Coleman People In an the evidence of serious burn

1260].) effort to determine whether automatically the victims would vote for injuries jury suffered cause jurors’ the death about the penalty, sought inquire prospective and, injuries. objected stage attitudes toward such at that examination,3 injuries ruled that the would not be told of the jury court Gawronski, suffered Ava and defendant would not be to ask permitted the if the extent would jurors knowledge injuries of those prospective affect their to their duties. ability perform

It be to ask of prospective is true that counsel must permitted questions v. jurors challenges (1981) lead to for cause. Williams 29 might (People 392, 317, 628 P.2d The 869].) inquiry Cal.3d 407 Cal.Rptr. [174 3 bodily jurors great injury prospective The advised at that time that the alle had not been gation accompanying attempted degree had been found true. the second murder conviction rearraigned finding qualifying Defendant and that included after the death voir dire had was completed. been general qualification pro- the death of the Our examination of the voir dire conducted after spective jurors attempt questioning jurors’ reveals no to restrict on the attitudes about arson sum, jurors injuries. ruling ensuing the and burn In neither the court’s nor the examination of jury upon right impartial a fair affords a basis which to conclude that defendant’s to 1046, any way by (1989) ruling. (See People the v. Bittaker 48 Cal.3d 1086 affected court’s 630, 659].) Cal.Rptr. 774 P.2d [259

597 qualification pro- the death not relevant to sought to make was Witt, U.S. v. 469 cess, (Wainwright supra, The Witherspoon-Witt however. 776, L.Ed.2d 88 S.Ct. v. 510 412; (1968) Illinois 391 U.S. Witherspoon [20 jurors views of prospective dire determine 1770]) voir seeks to abstract, if any, because in the to determine capital punishment about against the death penalty would “vote to death penalty, opposition v. (1988) Adcox (People to at trial.” regard produced the evidence without Witt, 55, 207, v. 906]; Wainwright 250 763 P.2d Cal.Rptr. 47 Cal.3d [253 412, 841, may be juror Such 853].) U.S. 416 L.Ed.2d 469 supra, [83 faithfully impartially he be to excused because or she would unable whether, knowing The directed without the law. is apply inquiry case, determi- of the has an mind” on juror “open specifics related jurors’ to the ruling nation. There was no error that questions in this not toward that was to be introduced trial could attitudes evidence voir dire.4 during be asked the sequestered Witherspoon-Witt includes the power judge proceedings control the of discretion the manner in the voir dire be con exercise over which will 478, v. 46 542-544 Cal.Rptr. ducted. Keenan Cal.3d (People (1988) 550, here. No abuse of that discretion occurred 1081].) Defendant was not from to show the attempting subsequent precluded dire bias cause juror voir that a harbored that would general specific evidence, him to vote for the without regard mitigating death penalty so, not do thus should be excused for cause. Since defendant did and did he is challenges, exhaust his from peremptory precluded arguing appeal Coleman, jury was not constituted. properly (People supra, 749, 770.) Cal.3d Qualification.

2. Death cases, reject, We also as have that the death past suggestion we in a because it results death-oriented qualification process impermissible Lockhart jury. (See (1986) v. McCree 476 U.S. L.Ed.2d 1758]; People S.Ct. v. Bloom 1212-1213 [259 78-79 698]; People P.2d Miranda 1127].) P.2d We for the same reasons the reject that jurors during asked of argument questions properly prospective who are to vote for of jurors those selected process predispose imposition death asked dire in penalty. Although during the some voir questions elicit be this case would on their face answers that would the basis for cause, they clearly were directed to attitudes that challenge uncovering 329, 358, (1983) Cal.Rptr. 4We noted in Fields footnote 680], juror against excusing penal 673 P.2d for cause he would vote death because the ty Witherspoon. evidence to presented based on be would violate Cal.3d Balderas (People further inquiry. would warrant 480].) 187-190

Guilt Phase Issues instructions give error the failure of the court Defendant asserts as counts, and challenges murder attempted included within the lesser offenses him of finding guilty the verdict sufficiency the evidence to support claims, conclude which we murder of Sara Gawronski. These the attempted merit, of this opinion. be discussed in another part lack will are to challenges guilt phase proceedings Defendant’s principal refusal to circumstance and the court’s the explosives special application special-circum- instruction that before the arson defendant’s give proffered had must find that defendant jury could be found true allegation stance i.e., arson, the arson was not for the an felonious independent purpose v. Green Gawronski. (People David purpose killing committed for 468].) P.2d the delivery-of-explo- we shall conclude that In affirming judgment, murders in which death circumstance does not special apply sives conclude, however, that We shall also by a fire. gasoline generated caused the fires in the vic- starting had concurrent purposes because defendant home, of arson of murder in the commission tims’ circumstance special found, suffered no prejudice and that defendant charged was properly or finding explosives special-circumstance as a result of either the erroneous ” of the “Green instruction. omission Special Circumstances an by Delivery Explosive. 3. Murder The statute.

a. 190.2, creates as a (a)(6)) subdivision (a)(6) (hereafter Section subdivision murder degree convicted of first that renders a person circumstance special committed means of a “The murder was for the death eligible penalty: device, bomb, defendant mailed or deliv- or explosive destructive ered, deliver, be mailed or delivered to mail or or cause to attempted his act or acts have known that reasonably the defendant knew or should human being beings.” death to a human would create a risk of great an within explosive contends that is not gasoline Defendant but, is, subdivision, only if a if it the subdivision applies of this meaning The concede People explosive. as an gasoline intends to use defendant gasoline “deliver” did that defendant argue but explosive, is not an gasoline meaning which, within is an argue, explosive also People vapor (a)(6). subdivision is an however, evidence, gasoline vapor suggestion refutes the

The subdivi- by contemplated statutes and in the relevant as defined explosive scheme which statutory statutory history nor Neither the (a)(6). sion of section 190.2 (a)(4) subdivision and its (a)(6) companion, subdivision by urged the construction (a)(4))5 operate supports subdivision (hereafter is an And, that gasoline vapor we to assume arguendo even were People. definition, or mail did not “deliver” statutory defendant under explosive gasoline vapor. explosive (a)(6). subdivision application

b. The evidence relevant to The fire and (i) explosion. to the Gaw- in two buckets gasoline 5-gallon, plastic

Defendant carried of the bedroom He threw one bucket the window through ronski home. Gawronski, landed on the bed and by David and Ava where it occupied into the home and the overturned. The other bucket was either carried kitchen, (as area hallway, dining distributed in the gasoline door from the theorized), through sliding glass or that bucket was thrown area, the table (as into the where it landed under patio dining upright mixed with the air testified). rising gasoline The from vapor by flares that ignited lighted highway in these rooms and the mixture was in the in after the The combination gasoline. vapor-air defendant threw burn.” In the instantaneously by as it was heated the “flash rooms expanded bedroom, confined, an created gases where the vapor expanding The flash burn effect or that blew out the window. overpressure explosion It is the burn that led to the death of David Gawronski. injuries caused therefore, “explosion.” that defendant caused a lethal undisputed, (ii) Gasoline as an “explosive.” however, are not all caused agreed, explosions witnesses expert community as that term is understood the scientific “explosives” in the relevant

used statutes. device, bomb, (a)(4): “The means of a destructive Subdivision murder was committed area, structure, any place, dwelling, building explosive planted, hidden or concealed in or or reasonably act acts would create a and the defendant knew or should have known that his or being beings.” great a human human risk of death to

600 an “explo- of is exploding that is every object capable substance or

Not gasoline that neither testimony in this case established expert sive.”6 is an vapor explosive. nor gasoline a below does gasoline arson testified burn experts

The People’s however, —45°, Fahrenheit. It vaporizes of 495° temperature 1.4 percent of to 7.6 range is the flammable burn when it within will vapor relatively a vapor ignites, of air and When the combination of the air. occurs,” of burning oxidation or burn a sudden “flash instantaneous flammable as soon as the stops That flash burn gasoline vapor. flammable other consumed, any further fire unless not cause and does mixture is this during process. material is ignited combustible does, however, heated air ambient air. The heat the rapidly A flash burn in air a sudden increase of causes existing gases and that expansion expands, surrounding normally into the dissipates pressure This increased pressure. container, the in a air is confined if heated and expanding air but space, the structural If that exceeds to increase. pressure continues pressure container, the con- will cause the resulting “overpressure” strength burn, when a occurring as that Whether a flash such tainer to explode. this type is will cause ignited, and air gasoline vapor combination of vapor-air of flammable the amount (1) depends primarily explosion size of the container. (2) ignition, at the present mixture moment [necessary mixture of the fuel-air “The explained: quantity One expert If the container.” to the cubic feet of directly an is related explosion] cause large, is too is too small or the container flammable mixture quantity explode. the container to be insufficient to cause will resulting pressure of a Moreover, by the effect overpressure an caused explosion the effect of by were caused what explosion from that of an greatly flash burn differs The source of or “high” explosives. as “true” by experts described typically a true explosive, one caused explosion, “concentrated” 6 as an ex expert witness who offered proposition was illustrated one This self-evident exploding sub on a stove. Other explosion unopened can of beans heated ample the of an judicial in Gordon received attention objects “explosives” have stances or that are not deemed Bottling (beer); v. (1949) Zentz Coca Cola Brewing 33 Cal.2d 514 P.2d v. Aztec Co. 522] [203 (1923) Myers Comm. (Coca-Cola); v. Industrial Acc. (1952) 436 P.2d Co. 39 Cal.2d [247 344] (1953) 40 Cal.2d 608 (sherry); Saporito Corp., v. Pur ex Ltd. [255 P. 191 Cal. 673 [218 11] Cal.Rptr. Way (1976) Cal.App.3d 60 47 (bleach); v. Chem Co. [131 P.2d Park Standard 7] Cal.Rptr. (1962) (cleanser); Aerojet Corp. v. Wollen General [20 338] Co., (10th 1958) Cir. Chicago, III. v. Wichita Flour M. Co. (paint); Ins. P.2d Millers' Nat. 708] U.S. 15 L.Ed. (dust); States Dalehite United [97 257 F.2d 93 A.L.R.2d [76 385] Bros., (1964) 20 A.D.2d 689 (fertilizer); Inc. Kotiadis v. Gristede 73 S.Ct. 956] Diego County Cal.App.3d sections); San (grapefruit Shields N.Y.S.2d 662] Bayview (1968) 268 (tuna waste); Zee v. Hardware Store Van 30] (aerosol can). Cal.App.2d 351 21] a A dynamite. of an solid material as stick of small such quantity explosive of ambient condi- is explosion self-contained—independent concentrated tions, When the explo- on a of detonated dependent supply oxygen. and not a large reaction undergoes abruptly generates sive material a chemical that mainly that was not before the detonation. quantity gas, nitrogen, of present that of of thousands of times than gas rapidly larger volume becomes solid, creates a force resulting the and the shock wave original compressive 25,000 per of inch. approximately pounds square contrast, By by an of and air explosion gasoline caused flash burn vapor material, is “diffuse.” Its source but single explosive is not a of solid piece the entire of air. is gases flammable mixture the Such an explosion If entirely any lacking, e.g., on the ambient conditions. is dependent insufficient time for the mix with the gasoline vaporize vapor or for air, lean, mixture too rich or a vapor-air that is or too container that too or, occurs, of large ignition, the time there will be no burn if no flash one overpressure and no explosion. (a)(6).

c. Construction subdivision of evidence, this Notwithstanding by causing contend flash burn and diffuse gasoline vapor-air that caused the death of explosion Gawronski, David defendant delivered an within the “explosive” meaning of subdivision (a)(6).

The People argue, agree, and we and Safety Health section Code 120007defines “explosive” for of purposes subdivision as it does for (a)(6), Safety broadly 7Section 12000 of the Health and Code “explosives” spe both defines and particular cifies substances that fall within its In provided: definition. the section substance, any substances, ‘explosives’ term shall mean primary “[T]he or combination of or purpose common of rapid which is detonation or capable combustion and which is of a rel atively heat, substance, rapid gas instantaneous or of any purpose release and primary which, others, of relatively when combined capable is to form a substance of a instanta include, rapid gas neous or sarily ‘explosives’ release of The term heat. shall but shall not neces to, any following: be limited acid, “(a) Dynamite, azide, nitroglycerine, picric mercury, powder, lead fulminate of black powder, propellant explosives, detonating smokeless primers, blasting caps, or commercial boosters. “(b) Substances determined to be class A and B explosives class as classified United Department States Transportation. “(c) (blasting agent) Nitro carbo nitrate substances as classified States United De- partment Transportation. “(d) Any designated explosive by material as an the State Fire Marshal. . . . “(e) explosives designated by Certain class C Department as the United States of Trans- portation regulations adopted by when listed the State Fire Marshal. device, purpose part, ‘explosives’ “For the any this the term shall not include destructive Code, as defined in Section 12301 of the Penal nor shall small it include ammunition or arms rifles, primers shotguns, pistols.” manufactured for use in We do (§ 189.) by explosives. of murder category the first murder degree however, is an under vapor explosive that a gasoline not agree, definition. its predeces- to section 190.2 and

In the absence of definition specific sor, must supply Code section 12000 necessity Safety Health and (a)(6). (a)(4) as used subdivisions meaning “explosive” of the term 190.2, section subdivision had been used in the former The term “explosive” definition of contained explosive enacted in 1977.8At that time the (b), 12000, into already incorporated had been Safety Health and Code section defined, alia, by explosive.9 inter first murder degree section 189 which electorate, aware and later the were Legislature, We presume Safety definition of the Health and Code incorporated that section 189 which statutory and framework within cognizant were “explosive” section was to when former operate circumstance explosives special v. (a)(4) (a)(6) adopted. (People and the current subdivisions and were 190.2 656, 1002, 154]; 741 P.2d 43 Cal.3d 1012 (1987) Cal.Rptr. Woodhead [239 57, 836, Cal.3d 844 (1985) Weidert 39 970, 977, fn. 10 (1977) Court 380]; Bailey Superior 838, 669, Phyle In re 394]; P.2d context of these history, language, reason in the or 134].) appears P.2d No any that the term means believing “explosive” circumstances for special history in the of either statute nothing different in section and thing different when former sec meaning that the electorate intended a suggests enacted, section 190.2 was any change present tion 190.2 was or when adopted. circumstance in the 1978 only special reference to the explosives that: “The Analyst the statement of the Legislative

election materials was . . . circumstances modify and the list of expand special would proposition or life without the possibility which either the death require would, measure, by As the list of circumstances special revised parole. involving ... murder following: include generally speaking, 190.2, (b), by Legislature enacted defined as 8Former section subdivision deliberate, willful, by premeditated “perpetrated murder means of special circumstance a and 316, 9, 1257.) (See p. explosive.” Stats. ch. a destructive device or § degree long category of first murder explosives Use of to commit a murder was added as adoption by categorized. provided since its in 1862 after murder arson was so Section 189 has degree. perpe the first In 1969 murder perpetration that murder in the of arson is murder of by degree. In categories of murder that are of the first trated a “bomb” was added to the by by language perpetrated means of a replaced present “murder which is “bomb” was section, in this explosive,” a definitional reference added: “As used destructive device or and any ‘explo defined in Section ‘destructive device’ shall mean destructive device as Safety Health and Code.” explosive sive’ mean as defined in Section 12000 of the shall delivered; concealed that are . . explosives (Bal- or mailed or explosives lot Gen. Elec. Pamp., (Nov. 1978) p. 32.) argument

The ballot thus that subdivision recognized (a)(4) apply by to murder means of concealed and that subdivision explosives, was to (a)(6) by to deaths caused It is apply mailing delivering explosives. history clear from this that subdivisions were intended to (a)(4) (a)(6) do no more than modify circumstance expand special category and/or of murder explosives, change the nature of the substances that had been considered “explosives” section 189 and former section 190.2.

Health and Safety Code section 12000 therefore provides definition for explosive purposes subdivisions as it (a)(4) (a)(6), just did 190.2, former section and continues to do for purposes section 189. case, however, No prior has considered whether a substance other than a “true” one explosive, that does not cause a concentrated explosion con- verting a solid into gases, but is capable of a causing diffuse vapor explosion, is an within explosive the meaning of either section or subdivisions (a)(4) and (a)(6).

The People argue that defendant’s use of the combination gasoline of vapor and air within the confines of the victims’ bedroom meets the criteria of Health and Safety Code section 12000 and therefore use of an explo- sive. in They rely part on the provision Health and Safety Code section 12000 that broadly defines an as a explosive substance or combination of substances “the or primary common of which is purpose detonation or rapid combustion and which is capable relatively of a instantaneous or rapid release of gas and . . .”10 heat. concede, however,

The People that gasoline is intended for principally use as fuel; motor and, is not in and of itself an “explosive”; when uncon- tained, is designed to burn nonetheless, rather than They explode. argue, that the expert testimony defendant, establishes that gasoline, as used by People 10The suggested gasoline have also explosive that is an within the definition of Safety Health by and statutory Code section 12000 by virtue of incorporation reference of adopted by Thus, schedules agencies administrative may named therein. it explo be an sive under the Department Alcohol, United Treasury, States Bureau of Tobacco and Materials, Firearms’ List Explosives of which liquid may includes explode. (51 that Fed.Reg. (Dec. 1986).) 46979-46980 recognize by by We incorporating reference certain state and federal schedules on gasoline which explosive, is listed as an rather than designation its more common as a flam- liquid, mable Safety Health may Code section 12000 literally gaso- times characterize explosive line as an for purposes. People other longer The no gasoline contend that is an ex- plosive purposes (a)(6), of subdivision however. gasoline vaporizes, As the explosive: of an statutory meets the definition the combina- proportion When ignited proper air. mixes with vapor and gas heat rapidly, air is of capable producing gasoline vapor tion of This, and carbon dioxide. monoxide in the form of carbon is also produced contend, established definition of an explosive meets the literal of a relative- “capable 12000 as a substance Code section Safety Health and testimony and heat.” The gas expert release of instantaneous or ly rapid claim. refutes that carbon monoxide instead that while testimony

The establishes expert flash burn and a initiated gasoline vapor are of by-products carbon dioxide “Release” of generated process. is not or gas produced explosion, from that will be gas generated contemplates from a substance gas substance, into another of will be transformed gas that one simply type Thus, as required the flash burn during is not “released” gas. gas type 12000 definition. Safety Code section the Health and another substance gas from generation This distinction between true distinguishes a flash burn which are gases by-products and the in which the con- cause concentrated explosions True explosives. explosives of the solid into a rapidly the transformation generated cussive force is cause a diffuse may explosion, ignition gasoline vapor expanding gas. here, in the air existing gases present expand when like that which occurred monoxide and car- effect. The carbon an ignition causing overpressure are not the a diffuse explosion that remain after by-products bon dioxide explosion. cause of the pressure defendant, that, can be by gasoline as used argument

The further People’s 12000, also fails. Safety in Health and Code section an as defined explosive of a “substance or combination that an is specifies explosive The statute substance, but, substances, have now People . .” be a as may . Gasoline conceded, such based on the It does not become explosive. it is not an statutory definition of explosive, in it is used. Under the manner which used, substance, in a substance is is not the manner which nature of the Therefore, in this context the persuaded even were we determinative.11 statutes, has, pro (a)(4) (a)(6), specific in Legislature in and and other 11The subdivisions (a)(5), within its gasoline. subdivision includes Section vided for the use confined following: “Any which contains a breakable container of a “destructive device” definition or similar degrees Fahrenheit or less and has a wick liquid flashpoint a of 150 flammable with commercially pri ignited, is manufactured capable being other than a device which device designate (a)(4) (a)(6) mur marily turn purpose for the of illumination.” Subdivisions special cir among types which those by device of murder to der means of a destructive apply. cumstances purposes Safety provides at the same time that Code section 12000 “[f]or Health device, any in Section 12301.” as defined part, ‘explosives’ does not include destructive this And, Safety specifically noteworthy identifies while Health and Code section it is other than the common of “deliv- something meaning electorate intended another” which we address er”—“to take and hand over to or leave for below, an “explosive.” it is clear that the defendant did not deliver use of theory

The also fail to a under which defendant’s propose to meet of subdivi- requirement could be deemed the further gasoline vapor by sion of section 190.2 that murder be committed means of an (a)(6) delivered, mail or “that the defendant mailed or explosive attempted deliver, delivered, or to mailed ...” Assuming arguendo be cause[d] “delivery” a substance constitutes throwing through window or door within the of subdivision the substance that defendant meaning (a)(6), not, shown, threw was as have an It gasoline. gaso- we was explosive. line vapor by was not “delivered.” It arose an independent physical process the gasoline after was thrown into the home. And the alone vapor Manifestly, until it combined with air in the explosive required proportion. defendant did not air already deliver the that was in the victims’ present Thus, home. even if gasoline were an or the manner in vapor explosive, which gasoline is used were a basis for it an considering defend- explosive, ant could not be found to have killed by delivery means of of an explosive, and thus his conduct was not conduct described subdivision (a)(6). therefore,

As we have explained, in his start a using gasoline attempt to fire the Gawronski home defendant did not commit murder means of an as “explosive” that term is defined in Health Safety Code section Moreover, or used in subdivision (a)(6). of the acceptance People’s argument would make (a)(6) subdivision applicable gasoline whenever used as an accelerant in an arson because an “explosion” accompanies ignition gasoline and would vapor, arbitrary lead to and absurd results. death in Any an arson fire started with be gasoline would murder means burn, of an explosive regardless of whether death was caused a by flash an fire, explosion byor an but ensuing murderers who lethal ignited using fires or wood papers shavings would be deemed less than those who culpable started a fire intensity of equal gasoline. In a statute construing we must avoid such arbitrary, unjust, and absurd results whenever the lan guage statute is susceptible of more reasonable meaning. (People 1119, 897, (1969) 225, Daniels 71 Cal.2d 1130 459 P.2d 43 Cal.Rptr. [80 A.L.R.3d 677].)

Finally, subdivision (a)(17)(viii) of section 190.2 creates a circum- special stance of murder in the commission or attempted commission of arson. A commonly numerous gasoline substances that are much less explosives (pic- available than as acid, azide, mercury, ric substances), lead fulminate of and nitro carbo nitrate it does not gasoline. Surely, mention Legislature gasoline had it been the intent of the be considered definition, explosive statutory an under the it too explosive, would have been listed as an as dynamite nitroglycerine. are and 606 essentially a murder is to what (a)(6) encompass of subdivision

construction circum in overlapping special would result in of arson the commission provi circumstance special court should construe stances. “[T]he to apply circumstances will in multiple minimize those cases which sions to conduct, findings spe thereby multiple the risk reducing the same Bigelow (1984) v. (People the defendant.” prejudice cial circumstances will 994, 328, 731, 64 A.L.R.4th 751 Cal.Rptr. 37 Cal.3d 723]. 572, 910, also, 927 v. Montiel 39 People See 705 P.2d 1248].)12 Arson.

4. Murder in the Commission of statute. a. The mur “The provides: circumstance of section 190.2

The arson special in an accom or was engaged committed while the defendant der was of, of, immediate commission or the in attempted the commission plice . . . felonies: following to commit the committing after flight attempting 190.2, (§ (a)(17)(viii) of Section 447.”13 subd. Arson in violation (viii) [H] (a)(17)(viii)].) subdivision [hereafter 190.2, in felonies addition (a)(17) eight subdivision identifies

Section robbery “felony murder” circumstance: special arson as predicates lewd 261), sodomy (§ 286), 207 (§§ 209), rape (§ (§ 211), kidnapping oral years (§ 288), copula- a child under of age and lascivious conduct on (§ 460). degree burglary and first or second (§ 288a), tion Green, 1, Defendant, contends relying supra, on People jury that the arson refusing erred in to instruct that the trial court trial court pealed in person term is used por “explodes” relevant “wilful and malicious causes to be burned or property. is a habited section peal to section 447 The arson 13Nosection 447 existed In felony punishable Our conclusion held that this subdivision was a restatement property. 1929. guilty ... erroneously pursuant special Oliver ^[11] subdivision when (Stats. establishing of arson when subdivision (b) that defendant did not commit circumstance to the enriched with burning Arson that causes an inhabited structure aids, admitted demonstrative imprisonment. (a)(6) command of Government Code section 9604. counsels or the truth of this ch. (a)(17)(viii) 1978. of a he 26, 6, Cal.App.3d makes it building, thus or she As enacted in oxygen § applies procures p. 47.) . . .’’ should be read as a reference willfully unnecessary special circumstance only evidence of the manner which In ignited of former section murder means of an to arson of an inhabited intent to burning within to address section 447 had defined maliciously section of, destroy a steel or inhabited allegation. appellant’s claim that the structure, provided, sets fire to or tube, it.” Section 447 was re 587], and thus to subdivision evidence that was the Court of property explosive structure or in- forest land or inter alia: the reference arson as the gasoline burns or as that (b) burn Ap- va “A circumstance is when the defendant has an special applicable indepen- dent felonious for the commission of arson.14Defendant purpose argues omission was because there in prejudicial was evidence that his purpose kill committing family arson was either to the Gawronski or to facilitate the killing of David Gawronski.

The trial court refused the argue instruction. The that no Green instruction was required, and that the evidence supports ruling and verdict, because defendant had an intent independent By to commit arson: admission, his own in objective his the arson kill committing was Gawronski, David but to drive him and his wife out of the The house. murder was to follow was to be independent of the arson. The arson to, facilitate, was not simply incidental or committed to the murder. b. The evidence relevant to purpose. defendant's 6, 1982, David Gawronski awakened Ava early January screaming that the house was on fire. There was no fire in their bedroom at that time. When Ava tried to leave the room she was driven back in intense heat the dining room. Based on this testimony, other evidence of the manner in which the in separate fires the home spread, defendant’s admission that he knew that David and Ava Gawronski were in their bedroom when he ignited gasoline and that their vapor was an daughter infant who could herself, not care for the People argued that defendant’s purpose setting the fires was to kill all three members of the Gawronski household. testified, however,

Defendant that his purpose setting the fires was to drive the Gawronskis out of the house. Evidence of his extrajudicial state- ments made both before and after the crimes was consistent in expressing his intent when he went to the Gawronski home to set fires the house for purpose family driving outside. He planned shoot David Gawronski as he fled from the front door as Ava Gawronski watched. To do so he would set one fire in the dining room to prevent family from using the patio door as an exit. To drive the family members out of the front jury circumstance, The was instructed: special “To find that the referred to in in these true, structions as murder in the commission of arson is proved: it must be That the mur []]] der was engaged committed while the defendant was attempted the commission or com mission of an arson.” requested following had that the paragraph, based on that standard instruc- (CALJIC tion 8.81.17), given: true, No. also be special “To find the circumstance . . . it proved must be carry murder was committed in order to out or advance the commis- sion of the crime of escape arson or to facilitate the therefrom or to avoid detection. In other words, special circumstance referred into these instructions is not established if the arson merely incidental to the commission of murder.” of Defendant assumed fire was set at the back the house. another to be

door of bedroom in the front the house. the master was methodically. left gasoline One bucket was The was carried out plan be a thought house that might a window at the rear of the defendant near bedroom, he Another was left although gasoline was not sure. bucket to the an unlit and a Then defendant returned shotgun. the flare patio through the bucket of the win- gasoline rear of the house where he threw dow, even he had by though the Defendant the flare followed flare. threw in they Ava and knew be might heard screams from David and Gawronski After this he to the where he threw the second bucket patio the room. went the door or window. gasoline through sliding adjacent in car he placed then it the trunk of a picked up shotgun, Defendant rented, shotgun left ammunition for it were had the scene. days in car after the fire. found a search conducted two during n knew, screams, defendant he heard Gawronskis’ Although when carry intended “to out carry “specifically,” lie could not out the he plan already whatever other had steps preplanned.” [he] (a)(17)(viii). c. subdivision Application of Green, “felony v. In 27 Cal.3d a case which the People supra, construed, murder” circumstance of the 1977 death law was special court held that the circumstance to cases inapplicable this was special only incidentally which the defendant to commit murder and intended We explained one of the felonies while so. specified doing committed 279], Robertson P.2d People however, when has an purpose the defendant independent it not to the felony, commission of is incidental intended simply murder, Green is inapplicable. out an a fire to drive the of a home would establish

Setting occupants Thus, fire not kill. if defend- since the intended to independent purpose believed, testimony and are death of David Gawronski ant’s statements felony-murder-arson special fell within the circum- squarely purpose The victim died fire set for a other purpose stance. in an arson Robertson, his death. causing supra, than As arson, felony, incidental to the intended here underlying simply Gawronski, means murder of David which was be committed another to mur- arson. The relation between defendant’s intent independent Gawronski, home, would der David and his intent to burn the Gawronski had albeit concur- independent, not invoke Green rule since defendant the rent, goals.15 however, evidence, a conclu-

There also support was circumstantial sion, agreed, and the and the that prosecutor argued jury apparently indeed home, in the when fire to the Gawronski actually gasoline defendant set torched, order in the intend- regardless of the which rooms were defendant erred, therefore, kill family refusing ed to the members. The trial court Green that give special defendant’s instruction based on the arson requested circumstance could not be true unless had a purpose found defendant the of independent causing commission of arson of death David Gawronski.

By any standard the error was harmless. We that the recognize jury finding verdicts guilty second murder of attempted degree Ava jury Gawronski Sara Gawronski confirm believed defend- ant ignited gasoline with the vapor thereby family intent to kill the Nonetheless, members in the fire. ensuing testimony, defendant’s own his offense, extrajudicial statements made before and after shotgun and the offense, and ammunition found in the trunk of his car rental after the afford evidence that he overwhelming when commenced the arson intent his to start a fire that would the family drive out of the home. time At that his not to kill purpose was David Gawronski. His belated realization Gawronski bedroom was and his occupied, resolution with his proceed nonetheless, plan does not the evidence he negate had a inde- purpose pendent causing death David Gawronski his commission of arson. evidence,

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

Penalty Phase Issues Defendant’s numerous assertions of penalty error include claims of phase prejudicial error in granting him right self-representation; the voir dire of jurors; prospective evidence; admission of prosecutorial misconduct; instructions; on ruling his motion for of sentence; reduction disproportion- reject 15For this argument reason we also People defendant’s the rule Ireland 188, (1969) 580, Cal.Rptr. 522 Cal.2d 450 P.2d 40 A.L.R.3d be should extended 1323] felony-murder-arson to the special (See People circumstance in (1989) this case. v. Farmer 888, Cal.3d Cal.Rptr. 940]; People 765 P.2d v. Ainsworth 1017]; 755 P.2d v. Burton 387-388 [99 793].) and sentence sentence; failure to instruct ality properly of the death requires of these claims The resolution of some offenses. noncapital men- background of the evidence relevant to defendant’s consideration evidence, includ- detail this greater tal state. We therefore describe below at the first trial. evidence ing presented offenses. A summa cum years was 42 old at the time of these Defendant in January in he had been Bradley University graduate laude he in literature when degree English school a master’s graduate pursuing married, school, childhood an insurance underwriter. Since left and became family thoughts who did not discuss his with he had been “closed” person friends, been a and he few close friends. he had not Although or had childhood, during undergraduate in two incidents his problem disciplinary treatment. career led to brief for college hospitalizations psychiatric shot at other The first incident occurred 1966 when defendant twice a classmate the freeway report drivers on a in order to and to experience one, injured. to He knowledge, emotions of a who kills. No his was person his who professors arranged psychiatric his conduct to one of reported burned an treatment. The second incident occurred 1967 when defendant object- at the time Assertedly, therapist automobile. he did this because his to sessions on “ethical” dating group therapy ed his another participant arson, but left briefly He was after the automobile grounds. hospitalized believe he from benefitting hospitalization. because he did not he married in 1968. He had this Defendant discontinued when therapy concluded that his concern was not his well- psychiatrist’s primary time but actions reflected on her Defendant com- being, professionally. how his counseling mitted no further acts and received no or illegal psychotherapy until he and his divorced. At separated subsequently when wife Gawronski, worker, and fami- marriage that time Ava a licensed social counselor, ly counseled the about their marital When couple problems. from another Ms. Gawronski sought counseling therapist, defendant’s wife later, defendant, marriage, continued to treat first with to the but regard saved, when the could not be for his individual emotional marriage felt able to be difficulties. She became the first with whom defendant person her. extremely about his and he became open thoughts, dependent upon The record and the do not strongly suggests, dispute, his “borderline nature of defendant’s with his relationship therapist, characteristics,16 his precipitated obsessive-compulsive having personality,” homicidal conduct. in fre- increased session with Ava Gawronski counseling

Defendant’s such The sessions assumed weekly he thrice appointments. until had quency from out-of-town back to Los Angeles to him that he even flew importance that entailed a move attend. He accepted promotion appointments Atlanta, Los immediately to return to but left almost Georgia de- counseling In addition to the sessions to resume his Angeles therapy. often on an “emer- therapist, fendant made numerous calls to his telephone basis, on his in- therapist to seek her advice. As his gency” dependence fantasies,” but he also what she termed began experience “rape creased extremely as an desire to commit an act strong which defendant described his Ms. Gawronski therapist. encouraged ex-wife with rape him him would not him assuring reject to discuss these that she thoughts, He thoughts of what he told her about his or behavior.17 was regardless might that time “terrified” that she end their relationship.

The focus of defendant’s shifted to the thera- thoughts rape gradually alone. She him her. continued to to discuss his with pist encourage thoughts In actually October an intent to commit the act expressed stood, and started to cross the room toward Ms. before rape, Gawronski to responding her remonstration and to his seat. She continued returning the session and elicited a from him that in the future he call promise would her to warn her if he felt that he act out In a might again. telephone however, conversation evening, later that she concern that con- expressed defendant, be in tinuing therapy might not the best interests of herself or and said she would need time to think about be what would best. She spoke with defendant on following day and indicated that continuing professional would not be in their relationship interest.

Defendant subsequently received two letters from Ms. Gawronski. The first stated rather that she abruptly terminating The relationship. by 16Prior trial psychiatrist psychologist. defendant had been examined both a and a Neither believed that he was either insane or suffered mental from disorder. aspects personality emerge clearly The two of his most from defendant’s own testimo- ny experts precise, literally and that of description these are an insistence on accurate emotions, expectation person up events and and an that a with whom he feels close will live kept, important person to commitment. If a commitment is not it was himto who impact has failed him be made to understand the of that failure on defendant. precise Manifestations of these characteristics are found in defendant’s and detailed de- committed, scription tions, including preoffense prepara- of the manner in which the arson was his reasoning sought justify and in the and emotions which he or rationalize his ho- micidal conduct. kept diary thoughts Defendant in which he recorded or ideas that he wanted to discuss therapist. diary with his was admitted into evidence. decision, but nonetheless detail the reasons for more explained second made several attempts as to the reasons. Defendant left defendant uncertain to resolve his ques- and in person Ms. Gawronski telephone to contact automobile and he her pursued When these efforts were unsuccessful tions. break the glass he used an ice axe to freeway, it to the side of a where forced her.18He left when the car to speak in an her from attempt pull he terrified her that he and he realized that had so other motorists stopped, rational discussion with her. not be able to have a would Gawronski, mind, the first person in defendant’s Ms. Most significantly, she her commitment absolutely, he trusted had broken whom had her how him. He obsessed with a need to show reject never became would him, her to suffer by causing to do so she had hurt and decided much pain. similar emotional suicide, several whose killing strangers and ideas of rejected

Defendant indicating Gawronski with a note severed heads he would mail to Ms. him, killing no see and of longer he had done so because she would likely He reasoned that these acts would not daughter. Gawronskis’ infant effect, “appropriate” and also decided that it be have the desired would 1981, defendant concluded to kill an infant or In mid-December strangers. eyes. early kill before her In that he should Ms. Gawronski’s husband Stein, receiving Dr. from whom defendant was then January when talk with told defendant that Ms. Gawronski would not psychotherapy,19 defendant, to with his to kill David Gawronski. At proceed plan he decided Gawronski, with an of Ms. charged attempted rape that time he had been attack, axe and with the of his former wife. rape with the ice 4, 1982, carry January out the murder on initially Defendant planned 3 made an his January audiotape explaining feelings and on the evening statement, he In this and for what was about do. accepting responsibility Dr. that Ms. Gawronski was not a defendant referred to Stein’s opinion her incompe- and his view that seemingly accepted competent therapist, in which she terminated the had contrib- relationship tence and the manner state.20 distraught uted to his emotional hiking climbing. piece equipment and mountain The ice axe was a defendant used Gawronski, counselor, family sought counseling A after Ms. had from whom therapy competent not to treat him and had

terminated her when she concluded that she was psychiatric recommended that he seek care. statement, excessively dependent upon taped he become In the defendant said that had years receiving counseling her. He during he had been from loved Ms. Gawronski the three life, anyone during his and he did not think he could and trusted her more than he had else stated, however, through Dr. his discussions with Stein he live without her. He also one, personal therapeutic relationship realize had become a that Ms. Gaw- came to trial, to confirm admitted that tended At the first evidence was fully not rendered competent Dr. Stein’s that Ms. Gawronski had view Sharma, M.D., a psy- Kaushal forensic services to defendant. professional of clinical psychiatry and an assistant private professor chiatrist practice Medicine, testified as University at the of Southern California School of “many major in his there had been opinion defense witness. He stated that that under the in the treatment He offered his problems process.” opinion should have treatment standard for social workers acceptable patient fantasies; of treat- been from about the number discouraged talking rape decreased, increased, have been rather than in order to ment sessions should fantasies; alone evening avoid that late intensifying appointments in a dimly lit office would not be considered patient appropriate; that the preferred treatment would be to decrease the obsession patient’s and to dilute the by making dependent less relationship patient therapist.

Dr. Sharma testified also that the manner in had been which therapy abruptly very “major terminated for a was a dependent patient problem,” and that the two letters defendant from Ms. Gawronski a double gave Dr. message. Sharma believed that defendant’s mental impairment psychological major disturbance were factors actions. contributing to his testified, however, He that while defendant was he had not been distraught insane, legally and did not suffer from diminished at the time of the capacity charged offenses. this, ronski realized therapy that she discontinued the when she concluded that she could tape not handle it. Defendant believed when the was made that Ms. had Gawronski fostered dependence participated his and had in it. repeatedly reject Defendant referred to Ms. Gawronski’s assurances that she would him, him, given only day say- assurances explanation before she told than without other control,” ing that he again. seemingly “was out of that she accepted would not see him He Dr. Stein’s belief that competent, incompe- Ms. Gawronski’s treatment was not and that her tence was reflected in the manner in therapy, leaving which she terminated the to defendant

believe that he expressed was at fault. Defendant also frustration that Ms. Gawronski was complacent life-style, in her in the counseling satisfaction she received from “non- other clients, threatening” and in competent therapist, therapy her belief that she was a when her destroyed had him. tape At the end of the going along defendant said he could not “stand think of her com- placently feeling everything, you so damned self-satisfied about I can’t take I’m know. that. going to do I happen, willing what have to and see that it pay penalty doesn’t and I’m Gawronski, doing expressed for that.” He also his love for Ms. and indicated that he did not her, her, want to hurt accepted responsibility those around and that he for what he was her, “However, level, going level, saying: to do. He personal nonetheless blamed on a and a moral level, and ethical I think Ava happened must realize that much this have would not had she professional conducted herself in a manner.” A dozen by witnesses were called defendant at the penalty They first trial. included persons whom he had worked and with he whom had devel- ran, social oped members of a track relationships, club with whom he a Brother,” father, child for whom he had been a his “Big and defendant himself.21 trial,

At the outset of the second penalty defendant leave to requested himself, represent explaining that he had observed legal closely process over the past years, two and one-half felt he job could do a reasonable himself, defending and wished to exercise his to do so. The right court described in detail the dangers and defendant ex- self-representation, his pressed understanding of the he difficulties would face. The court then education, noted defendant’s stated that he had demonstrated that he was articulate and total command of the and English language, found that defendant was mentally competent himself and to make represent voluntary and intelligent waiver of counsel. The court did so after rejecting the prosecutor’s request for consideration of letters written defendant after the first trial harm to Ms. threatening relatives of Gawronski. The court concluded that the letters were irrelevant to defendant’s compe- himself, tence to represent and refused to consider them as evidence that might himself if comport properly granted the of self- right representation.

At the second penalty Instead, trial defendant did not call Dr. Sharma. he proffered stipulation that Ms. Gawronski had provided highest testified, of care.22He quality again and while he did not call all of the trial, witnesses who had testified at the first several were called and testimo- ny similar to that given earlier was elicited.

The People’s evidence in aggravation included graphic descriptions the physician who had attended the burn victims of the extent of their injuries, Gawronski, the death of David emo- excruciating physical and work, Defendant was professional described as an excellent helpful his to those with run, whom caring he had gone and solicitous of hiking those with whom he had climbing. mountain stipulated testify Defendant if (1) called Ms. provid Gawronski would that: she had “highest ed him with possible quality counseling”; regarding her decisions method of professional treatment were opinion based on her of what would be most beneficial him; it was never her attempt intent that defendant rape to act out his fantasies nothing she did to acceptable; (4) rape indicate this would be attempted complete awas surprise her; (5) to therapy her decision to terminate was made not because she feared safety largely for her but therapy defendant; because she did not feel further would benefit intentionally she had not anything said or done intended to cause defendant to harm family. her or her Gawronski, necessary to the extent of rehabilitation Ava suffering tional and dis- disfiguring and the permanent live independently, enable her to taped and postoffense Defendant’s injuries. pre- of her abling aftermath read,24and letters were jury, threatening to the his statements23 were played his regarding after the offense testified examined him who had experts to kill he would like and his statement statements about the offenses he disliked. other whom persons also committed was the offenses were

Evidence of the manner which earlier, offered, As noted evidence of defendant’s including preplanning. fires in the Gawronski setting claimed that his two purpose defendant with a waiting he would be home to drive the outside where couple watched, but the kill David Gawronski as his wife and would shotgun ignited that when the fires were suggested evidence People’s evidence, which kill all of the home. occupants intended to light- defendant threw the defendant did not established that before dispute, Ava Gawronski had been sleep- ed flare into the room in which David and window, he gasoline through but after he had thrown the bucket of ing, he they their were the room when heard screams and was aware felt he had to go Defendant testified that he ignited gasoline vapor. through with his plan. longer had Defendant testified that at the time of trial he no believed that Ms. Gawronski incompetent.

been get if prosecutor 24Theletter to Ms. Gawronski asserted that the “could not a death verdict Aviv,” nothing he tried Heinrich Himmler in Tel and assured Ms. Gawronski that she had every long happened him time fear from as he wanted her to live a time to think about what mirror, longer something. promised she looked into a or could no do He that he would not However, you please her .... seek to harm brother “as much as his death would me do family promised have other . . . I not to harm. . . . members and friends whom have not get necessary. prison, When I I will have all of the time in the world to do whatever is To any against ...” appropriate people initiate action of these someone on the outside. opined prosecutor as in- Defendant’s letter to Ms. Gawronski’s father was “almost your ept prosecutor daughter therapist,” daughter had as a as was as a reassured him that his him, nothing wanting to fear from far harm her he wanted her to and declared that from long “Perhaps live a time so that she could reflect on what and she had done. in the future he quick promises keep. she will not be so to make which she does not intend to may girls ought “Perhaps this affair Little not to sordid be summarized as follows: [[[] do, they they they promises keep. playing make not intend to When are with fire which do they apt fingers. are to burn their case, figure speech particularly appropriate. “In Ava’s event, got “. . . In I I With in her what wanted out of all of this. David dead and Ava condition, present I am satisfied.” attorney At trial defendant testified that he had written the letters after his had told him retrying recipients penalty phase. that the attitude of the would be critical to a decision thought jury penalty, provoke Because he trial, should determine the he wrote the letters to a re- frighten recipients. had not intended to threaten or Hatcher, presented testimony Evidence was of Dr. John a through Francisco, University affiliated with the of California at San psychologist who study and of violent individuals. He specialized management had confession, interviewed defendant at heard his length, taped spoken Gawronski, Ms. defendant’s interviewed former wife. Defendant told Dr. Hatcher that he morally felt what he had done under his justified code, for, own ethical which all he was responsible that “[i]n sense of I revenge, couldn’t have asked for it to turn better than out it did.”

Dr. Hatcher believed that Ms. Gawronski’s diagnosis defendant as a narcissistic having personality was consistent with the information avail- made, able at the it although time was his own would be diagnosis “border- line personality”—a person somewhere between neurotic and psychotic, who, when he is able to form a close tends personal relationship, to idealize and must devalue if person the ideal is unable to live person toup the image, by somehow he is not showing person or she perfect.

Dr. Linda Weinberger, psychologist employed by County of Los California, Angeles University and the had been the court appointed to examine defendant at response defense counsel’s In to her request. ques- tion whether he had thoughts killing anyone, told her if defendant that he were not in he kill jail would like to two individuals—his former wife’s him, employer, whom he believed had her to leave encouraged and the Gawronski, brother of Ms. whom defendant believed had encouraged Ms. Gawronski him. stop seeing Defendant had if stated that sent to prison he would consider who was finding prisoner about to be released to kill for him.25

5. Self-representation.

Defendant claims both that trial court in permitting erred him to represent himself and that by a self-representation during of a penalty phase capital case is forbidden section 686.1. We reject both arguments.

Defendant’s first theory is that the letters he had written Ms. Gawron- ski himself, and her father were relevant to his competence to represent letters, illness, that these history his of mental and his self-destructive be- by Weinberger might When Dr. potential advised she have to advise the victims of threats, testified, pleased might his defendant was cause this them discomfort. He how ever, anyone, that at the time of the trial he had no intent to harm and then felt that a desire revenge “unfulfilling was an attitude.”

617 be not determination would penalty that a reliable all indicative havior were himself. to represent if he were permitted possible claim, faulty in which rests part not this support The record does if neces- phase denied at the may penalty be that premise self-representation is presented. evidence mitigating to ensure that sary is fully supported was competent that defendant ruling The trial court’s first already had at the testified experts (who the record. None of the mentally ill. He was incompetent that defendant was trial) concluded at at the length He testified intelligence. had superior well educated and of to represent his be to request permitted and own guilt phase presented to, or that that elected The refutes defendant suggestion himself. record to, himself as represent he intended should have that judge predicted inference no therefore an suicide. There was basis means state-aided make an intelligent not have been to competent that defendant might voluntary decision. that he not argument should hindsight support

Nor does defendant’s He evi- have to himself. did permitted represent present mitigating been His to the of counsel- quality dence. decision to withhold evidence relevant received, effect on him of the manner in which ing possible he had and the discontinued, make. was that a defendant is entitled to therapy that was one To to his the extent that this defendant’s mental state contributed peculiar decision, it was in his to have a rather jury, legal reflected need than determine health that was professionals, punishment mental appropriate to he acted. The record his conduct circumstances which light vindicated, may that to be suggests partially, defendant have least hoped entirely his conduct unreasonable in light his that perception his standards. None of this refutes evidence personal moral/ethical defendant was competent. conclude, therefore,

We that the trial court did not err in ruling conclude, himself. as represent sug defendant was We also competent Bloom, 48 in our v. Cal. 3d at gested People supra, pages recent decision 1222-1224, v. in Faretta right self-representation recognized 562, S.Ct. (1975) 422 U.S. L.Ed.2d is not [45 2525] California limited trial, guilt to defense but extends to the during phase in a inter penalty Notwithstanding significant trial case. the state’s capital determination, fully est reliable a determination best in a made sentencer, a fundamental constitutional to con right informed defendant’s Bloom, defense 48 Cal.3d 1227- governs. (People supra, trol his v. at pp. has the defense take the 1228.) right present no and to stand and both death guilt request imposition confess penalty. (See Guzman 961-963 People 849-850 917]; 755 P.2d v. Grant Cal.3d Lucky (1988) 894]; People 616, 1, 628 34 Cal.3d 1052]; (1983) 753 P.2d v. McKenzie People Cal.Rptr. 739, 462, v. 28 Cal.3d 769]; (1981) Chadd Cal.Rptr. [194 798, Mosk, 621 Teron J.); People fn. 7 P.2d Cal.Rptr. (per [170 837] 633, 588 773].) 23 Cal.3d 108-115 P.2d It follows may ensuring that the state’s interest in a reliable determination penalty to right be as a basis for a defendant his fundamental urged denying capital by his defense himself at all of the trial.26 representing stages control Because defendant’s claim that him to reject permitting represent we complaining himself at the trial was he is foreclosed from penalty improper, may in the that have been doing that his so resulted admission of evidence inadmissible, object. any he did not Failure to waives object but to which claim v. Harris 1089 (People of error appeal and, himself, P.2d to 619]) having elected represent claim that he ineffective at may defendant not now received representation Bloom, in. objectionable trial because the evidence came possibly (People 1226.) supra, p. Attorney-client Privileges.

6. Psychotherapist-patient trial, ruled hearing After an camera at the first the trial court an disclo psychotherapist-patient privilege27permitted to exception kill, killed, sure of defendant’s threats to or to have Ms. Gawronski’s broth That er and the of defendant’s former employer wife. objection, attorney-client was reaffirmed and defendant’s ruling immediately nonetheless was overruled before admission privilege28 applied, necessarily holding reject argument In Faretta so we defendant’s invalidates section trial, 686.1, by stages capital representation which mandates counsel in all of a as to the limitation, guilt Nothing phase. implies in that decision such a and both the common law and history Supreme support constitutional on which the United States relied our conclu Court (See California, right supra, Faretta v. 821-834 sion that the is absolute. U.S. 562, 574-581].) L.Ed.2d seq., privilege, 27This defined in Evidence Code section 1010 et extends to “confidential “information, by including which are as information obtained an communications” defined patient, patient psychotherapist in the examination of the transmitted between and his by relationship course of that and in confidence a means which . . . discloses the information reasonably necessary persons to no third other than those ... to whom disclosure is for the accomplishment purpose psychotherapist . . . . . . .” of for which is consulted Code, (Evid. 1012.) § attorney-client privilege seq. encompas The established Evidence Code section 950 et lawyer” ses “confidential communication between client and defined as “information trans lawyer relationship mitted between a client and his in the course of that confidence which, aware, per a means so far as the client is discloses the information to no third Code, (Evid. 952.) sons. . . .” § counsel, Weinberger appointed request Dr. examine defendant at the of his Because to purpose obtaining diagnosis for counsel’s use in statements he made to her for the those had made to whom testimony Weinberger, Dn threats. Evi- exception privilege psychotherapist-patient

The applied court if the article under this no privilege 1024: “There is Code section dence is in such that the patient cause to believe reasonable has psychotherapist to the himself or as be dangerous mental emotional condition or the communication and that disclosure of of another person property did not judge explain danger.” the threatened necessary prevent claim, he did state that but attorney-client privilege overruling basis for privilege. either defendant had waived ruling was not privilege. a. Psychotherapist-patient confidential, and because were

Defendant contends that the statements to the time Dr. Weinber- they relationship prior made in a were confidential them, he not waived the to reveal had might told him she have ger need decide the waiver nature the We not confidential communication. claim, however, Dr. because at the time of trial to resolve this question were, therefore, already had revealed the communications Weinberger no confidential.29 longer by Evidence abrogated was not argument privilege

Defendant’s 1024, “only if is patient pres Code because the section the applies section necessary to ently testimony prevent and the is dangerous therapist’s A has a danger,” professional misses the point. psychotherapist to him to of communications made duty maintain the confidential character necessary it is his but when during relationship, course patient to danger therapist to disclose confidential information to avert others 17 Cal. 3d University (1976) must so. v. (Tarasoff Regents do of California 425, 334, 14, 1166].) The 551 P.2d A.L.3d Cal.Rptr. the use of Evidence Code section 1014 is to purpose underlying prevent It to pre a defendant’s statements him in exists against legal proceedings. made in confidence unnecessary vent the disclosure statements facili thereby course communication with a to privileged therapist been 440-442.) Cal. If the statements have (17 pp. tate treatment. 3d at attorney-client priv- subject preparing psychotherapist-patient a defense both were (See ileges, privileges permits Evid. exception unless defendant waived or an disclosure. those Code, 879, (a); Superior 60-61 subd. Jones Court 58 Cal.2d § 1213].) 372 P.2d 96 A.L.R.2d Dr., defendant, uncertainty regard Weinberger’s her Several months after interview ing attorney, arranged After her she for the defendant’s intent continued. consultation with attorney potential inform victims of defendant’s threats. that is not itself privileged, in a communication revealed to third persons however, Court (Cf. Superior Roberts they are no confidential. longer [psychotherapist 309] actively had after patient records with other physicians exchanged patient’s privilege].) disclosure did not waive asserted privilege; has privilege the psychotherapist-patient is not whether The question in a disclosure that would permit compelled or the exception been waived all may be claimed at but whether the privilege legal proceeding applies, Whether the psychother- is no confidential. longer once the communication Code, of the com- 1024) that revelation “reasonably (Evid. believes” apist § irrelevant once the communication necessary also becomes munication status. The reason for the privilege—protecting has lost its confidential relationship—and promoting therapeutic patient’s right privacy itself, is no longer once the communication thus the privilege disappear confidential. Attorney-client privilege/self-incrimination.

b. It serves a different however. attorney-client purpose, privilege informa frankly reveal confidential freely exists to a client to permit conduct, tion, or others attorney pur criminal to the whose including past attorney to ade thereby and to enable the attorney, is to assist the pose U.S._, (1989) United Zolin (See the client. States quately represent _ 469, 484, In a criminal case the 2619].) privilege 109 S.Ct. L.Ed.2d [105 self-incrimination against to the defendant’s preserve privilege also serves by his revelation of be deemed to have waived otherwise might been make adequate representation possible, information.30 To incriminating therefore, state criminal defendants that confidential these assure privileges These be attorney proceeding. ments to their will not admissible Dr. revelation of defendant’s Weinberger’s were unaffected purposes statements to his victims. potential in Evidence this distinction Legislature recognized purpose

The has “this is no under privilege section where it that there provides Code i.e., article,” priv- the psychotherapist-patient article which contains the communication. necessary to disclose if the believes it is ilege, therapist privi- of the psychotherapist-patient This section confirms that the purpose in a legal proceed- the defendant’s statements is not to use of lege preclude the therapeutic that the recognition purpose promoting and reflects ing, rely independent basis for right against self-incrimination as an Defendant seeks to on his eliciting compulsion in involvement or of his statements. Since there was no state exclusion statements, (Colorado v. against occurred. privilege of his self-incrimination his no violation 473, 482, 515].) Connelly (1986) 107 S.Ct. U.S. L.Ed.2d has revealed therapist once the be achieved no longer can relationship reflects provision No similar third parties. to communications confidential if a communication terminate attorney-client privilege that the an intent cli confidentiality by a waiver made without attorney public an also com were Weinberger Dr. defendant’s statements Since ent. Code, 952; (Evid. relationship attorney-client § in the made munications 757, 761 1035, 1060, fn. 11 v. Caro People 778, 50 Cal.App.3d Court Municipal Torres 680]; P.2d intend or did not privilege waived the unless defendant 553]), notwithstand to be they privileged continued be the statements confidential trial. the time of confidential longer were no they the fact that ing manifest or did the privilege, did waive that defendant argue The People Dr. Wein- when stateqients third parties, be revealed to that his an intent he ex- threats and to reveal his have might advised him that she berger worry. victims to the potential this would cause satisfaction that pressed advised Weinberger Dr. were made before Since the statements them, them, by making the privilege he did not waive that she reveal might response in defendant’s court did not find waiver and the trial in that the privilege no clear intent to waive Since there was warning. statement, was waived. privilege cannot conclude we future to threats of not extend alternatively that the does argue privilege conduct. criminal exists for threats of attorney-client privilege to the express exception

No however, criminal provides conduct. Evidence Code section future lawyer sought were “if the services of apply does privilege a crime or a to commit or to commit anyone plan obtained to enable or aid itself was adopted. in 1965 when the code fraud.” That section was enacted 981, Code section by in the code Evidence Similar were created exceptions not exist “if does privilege that the marital communication which provides made, anyone in to enable or aid in whole or part, the communication was fraud,” Code and in Evidence a crime or to commit or to commit plan and psy- the physician-patient provide sections 997 and which “were sought if services not exist the provider’s do chotherapist privileges a crime or to to commit anyone plan to enable or commit or obtained aid of a after the commission or apprehension a tort or to detection escape crime or tort.” Commission accompany- Law Revision

The comments of the California to to a apply was intended that no ing suggest exception these sections on Evidence alone. The comment of intent to commit a crime statement this recognizes exception. now section 956 states that “California Code Court, (1947). 177 P.2d 317 78 Cal.App.2d Abbott Superior Cf. 622 Court, (1963).” 21 v. Superior Cal.App.2d

Nowell 553.) The comment on (1966 ed.) West’s Ann. Evid. Code (29B p. § states, however, substantially regard Evidence Code section 981 by “. . . the exception provided It is to note that wording: important same disclosure of communica- Section 981 is limited. It does not quite permit to commit a crime or merely tions that reveal a to commit or plan plan or aid fraud; only of communications made to enable it disclosure permits Thus, unless the to commit a crime or fraud. anyone plan to commit or assistance the commission obtaining communication is for the purpose thereof, by it is not made admissible of the crime or fraud or in furtherance (Italics added.) section.” this exception provided by argument relied do not support authorities upon not extend to statements of intent attorney-client that the does privilege 1971) States v. Cir. F.2d (9th commit future crimes. United Friedman they character “when 1076 said that communications lose their privileged by concern unlawful acts the client. Calif.Evid.Code contemplated § (id. correctly . . .” in a held: 1085), at but more statement p. complete involved; it is attorney illegality “The need not himself be aware furthered, client to that the communication or was intended enough (Id. further, p. 1086.) at illegality.” 317], P.2d

Abbott v. Court Superior Cal.App.2d by the California Law Revision Commission to its com- support relied on law, ment that Evidence Code section 956 states the also involved existing communications intended to further a client’s unlawful While the purpose. judicial court did state that continuous and unbroken stream of “[t]he and decision is to the effect that communications between attor- reasoning acts, or ney and client to do with the client’s criminal having contemplated thereof, cloak of this privilege” aid or furtherance are not covered did not (78 21), holding the actual was that the Cal.App.2d p. privilege defendant, counsel- attorney, cover communications which the an “was member of the in an to further its illegal fellow ing conspiracy attempt Thus, the the comment (Ibid.) “existing accompa- law” which purposes.” language Evidence Code section 956 refers is consistent with the nying section, between does not communications privilege encompass conduct.31 attorney and client that are intended to further future criminal of the Evidence Code recognize Cases decided since adoption created attorney-client limited nature of the to the exception privilege 31 21, 652, (1963) Cal.Rptr. 2 Superior Cal.App.2d In Nowell v. Court 223 657 [36 Abbott, broad, 853], again, quoting exception in alterna A.L.R.3d the court from states the “ contemplated language relating ‘having the client’s tive to communications to do with acts, again criminal or in or furtherance thereof. . .”’ but once the communications aid sought legal further his issue were asserted to be ones in which the client advice that would purpose. criminal

623 a client only when invoked exception “This 956: Code section Evidence or a crime one to commit or aid’ ‘to enable assistance legal or obtains seeks part an intention clearly requires language The quoted fraud. .” (Glade Superior . . relationship, attorney-client to abuse client also, BP 738, See Cal.Rptr. 746 119]. 76 (1978) Cal.App.3d Court [143 1240, Cal.App.3d 199 (1988) Court Inc. v. Superior Exploration,

Alaska the common 956 codifies Code section “Evidence Cal.Rptr. 1249 682]: [245 attorney-client communi confidential protecting rule that the privilege law a crime perpetrate or plan assistance legal if the client seeks cations is lost fraud.”) or admitted, however, contend, erroneously if that even finally

The People to Dr. statements We Defendant’s agree. evidence was not prejudicial. of aggravat evidence overwhelming of the were a minor Weinberger aspect That evidence of the crime itself. circumstances reflected ing factors crimes, in to commit serious willingness included evidence of defendant’s that murder, the evidence his beliefs. Whatever impact to vindicate cluding might of rectitude his sense also like to kill others who offended he would that he no believed testimony longer his that have had was tempered conclude, therefore, reasonably that it is not We was revenge appropriate. verdict had a different would have rendered jury that reasonable possible 432, Cal.3d (1988) excluded. Brown (People the evidence been 1135].) 758 P.2d Cal.Rptr. 7. Other Evidence. various items admitting the trial court erred in

Defendant complains evidence, object. he failed to to which body numerous photographs these items of evidence were Among suffered, he and of the extent of the burns depicting of David Gawronski of treatment and stages her at different injuries Ava Gawronski depicting testimony illustrate the were admitted to photographs rehabilitation. Defendant con and of Ms. Gawronski’s father. treating physician made at the admission of the was objection photographs cedes that no to the trial, unnecessary since the objection argues second but at the first penalty to the admission objection court had overruled counsel’s by defendant for that In of the authorities cited disagree. trial. We none may trial. While it had the been made an earlier objection proposition trial (see, overruled in the same necessary objection already to renew an be P.2d v. Antick Cal.3d e.g., People will be rulings objections absent a 43]), ruling stipulation v. Bell (see, e.g., People and made in a later trial deemed renewed object failure to 129]), 520-521 Code, 353, (a).) subd. (Evid. of the issue on appeal. bars consideration § trial a elect different might party for the rule is manifest. Not reason trial,32 must fully trial court more informed being tactics at a second but the may A the prior ruling. be the to reconsider given opportunity then excludable evidence and in the admission of acquiesce possibly not objection render made a appeal rulings prior proceeding claim on admitting no error in unnecessary. objection In the absence of an there was the of its propriety no issue as to cognizable appeal the evidence and admission. of evidence of his prior

Defendant also asserts that admission violence, criminal and of his activity that did not involve unadjudicated violence, He now that his argues to commit crimes of was error. threats excused because this court had object failure to to this evidence should be statutory irrelevant to a factor was yet aggravating held that evidence irrelevant and inadmissible. consideration of object we conclude that the failure to

Again precludes the trial of claim of error. It is true that the court held subsequent the 1, 700 P.2d Boyd 38 Cal.3d 762 this case People activity directed to activity that evidence of violent or threats of violent 782] so, however, We because section 190.3 “ex- was inadmissible. did property convictions, activity, felony criminal except excludes evidence of pressly the use or use of force or violence activity attempted which ‘did not involve threat to use force or implied or which did not involve the express ” (38 776.) violence.’ Cal.3d at p. in section 190.3 that evidence Our reference was to the admonition “[A]o which activity by other criminal the defendant regarding shall be admitted involve the use or use of force or violence or which did attempted did not 32Indeed, just change represent elected to himself such a occurred in this trial. Defendant addition, parties purpose limiting arguably mitigating evidence. In for the certain agreed The record affords no basis on that Ms. Gawronski would not be called as witness. object reviewing whether the failure to which a court could determine with assurance by jury punishment appropriate be determined tactical. Defendant’s insistence jury photographs argument jury support he to see the his to the an inference that wanted jurors enormity consequences closing In appreciate the of his actions. so that the would jurors forget jury “for a mo argument defendant twice told the that he did not want did, family. express photographs: “You saw that ment” what he and made reference to ‘great bodily injury’ I to Ava Gawronski What I did—the word ‘arson-murder’ and word may really I photographs I I think these indicate what did. don’t think indicated what did. you necessarily again, They pleasant. to look at them but I also are not I don’t think want you forget I think that for a moment should ever what did.” don’t trial, objection Equally important, been renewed at the second context had against possi- its weighed probative have value of the evidence which the court would bly prejudicial impact quite different. would have been

625 or (Italics force violence.” the threat to use express implied involve or not distinguish property violent the did not language To reader that added.) statutory express of an the In the face person. and crimes against crimes may admissibility complain of party evidence governing command held not be to anticipate because he could object that failure to is excused limits says, what it but just that the statute means holding decision judicial is an unreasonable burden a situation in which its This is not application. a statute him to meaning on a understand party by expecting placed would have been controlling objection because law an or in which of prior Cal.3d Ogunmola (1985) v. 39 (Cf. and is therefore excused.33 People futile 855, 62 120, v. Hillery (1965) 701 P.2d 1173]; People 123 Cal.Rptr. [215 692, 30, v. 401 Kitchens 382]; People (1956) 711 P.2d Cal.Rptr. Cal.2d [44 260, 262-263 P.2d 17].) 46 Cal.2d [294

In this we “undertake to determine the state reaching conclusion counsel at competent knowledgeable as it would have law appeared . Santiago trial case . . .” v. De (People the time of the of the instant 18, 809, 353].) 23 453 A defendant appearing P.2d in held to the same of law persona knowledge is standard propria 806, 422 834- California, as is an U.S. attorney. (Faretta supra, procedure Bloom, 46 48 at 581]; pp. fn. L.Ed.2d Cal.3d People supra, 1226-1227.)

Defendant on the same to excuse failure to reasoning relies his however, testimony. to the Dr. we object Again, admission of Hatcher’s object conclude that the of the issue on precludes failure consideration admissible We also case since conclude that evidence was appeal. it related to the circumstances of the offense. trial, objection

Dr. Hatcher had over the first but as a rebuttal testified witness, offer his counseling given expert opinion Ms. Gawronski At the retrial he penalty was professionally competent. authority suggests objection Defendant would futile because the that an have been admissibility statutory holding aggravating unrelated to a factor evidence was 446], P.2d v. Murtishaw that admis sion of evidence under the death law was “not limited to matters relevant to aggravating specified mitigating or factors.” argument speculative regard might ruling This to the that the court have made had think, and, objection, question an there been we unfounded. The evidence in Murtishaw expert opinion that would acts in the It not evi- the defendant commit violent future. was statutory express that came within included in former dence exclusion section 190.3 316, 11, (Stats. 1259) p. present prohibiting law section the 1977 ch. and in the 190.3 § activity attempted admission of evidence of criminal not involve the use or use other did Competent or violence or counsel under- of force threats to use force violence. would not opinion imply arguably fell stand our Murtishaw to that evidence that within that statuto- admissible, ry objection futile. exclusion was and that an would be that diagno- that led him to his and the factors regarding diagnosis

testified Dr. made to statements defendant While those factors did include sis. offense, relevant to the all were his regarding thoughts subsequent Hatcher circumstances of the relevant to the diagnosis to the and that was diagnosis, directly to testimony Dr. Hatcher’s went offense committed defendant. defendant’s motive. may well have object

We note also that the failure on Dr. of defendant since he relied a tactical decision on the part been only mitigating in fact as the mitigating, possibly Hatcher’s as diagnosis we need consider.34For this reason jury evidence he could that suggest claims Dr. Hatcher was not that because (1) not consider defendant’s state at the time of on defendant’s mental opinion to offer an appointed trial, self-incrimination when not waive his privilege against defendant did interview, the court should have (2) given he to the agreed statements to Dr. jury instruction that defendant’s limiting advising to the only diagnosis. (Evid. Hatcher be considered as factors relevant could 112, Code, 48 151 355; Cal.Rptr. v. Coleman (1989) [255 § 813, 768 P.2d 32].) Criminal Conduct and Threats

8. Instructions: Unadjudicated Violence. his automobile arson and contends that even if the evidence of

Defendant jury instructing admitted the court erred properly threats was criminal conduct could be considered this evidence and other evidence of aggravation. “Evidence has been introduced for jury:

The court instructed the defendant,. . . shot circumstances that showing aggravating purpose 1967; ice 1966; the arson of an automobile at in automobiles people Gawronski; Ava Gawronski; the attempted rape axe assault on Ava Brassell; the letters of Michael Lerner and Joe threats toward the lives Lerner, involve the or express Ava which George written to Gawronski jury The instruction also that the required use of force or violence.” implied testimony he did not receive ade Defendant’s claim that the was inadmissible because unavailing. (§ 190.3.) been advised that quate equally its Not had he notice of content witness, testimony the first trial. but he had heard the witness’s Dr. Hatcher would be a Further, opportunity prepare requirement is intended to afford the defendant the notice Miranda, 57, (People supra, v. 44 Cal. 3d People’s aggravating factors. meet the evidence of 576, 841].) 96; (1981) Cal.Rptr. If a de Superior Cal.App.3d Keenan Court [177 may object a continuance for given adequate he and seek fendant believes the notice not however, object, subsequent claim that the notice was purpose. waives The failure to 631, (1989) Cal.Rptr. P.2d 45-46 adequate. (People v. Robertson 48 Cal.3d 1109].) acts before consid- defendant did those doubt that beyond a reasonable find in aggravation. them as evidence ering any crime or the elements of given were requested

No instructions is no sua this conduct. There have committed may that defendant crimes crimes at the the elements of other to instruct on obligation sponte fn. 25 44 Cal.3d v. Howard however. phase, (People 29, 72, fn. 279]; People Phillips 749 P.2d Moreover, the instructions 423].) and with defend- with the prosecutor court intended to were discussed give ant, any if special are fine” when asked he wished stated that who “[t]hese defining those by the court were given instructions. the instructions Among Those had been convicted. of which defendant the elements of the crimes house) arson (of rape, advised the of the elements of jury instructions not define attempt. but did the that it jury

Defendant first that it was to instruct complains improper arson because could consider the evidence of his threats and his automobile criminal arson was not a the threats were not conduct and the automobile Therefore, he the evidence was argues, crime of violence toward persons. not v. statutory aggravating (People Philips, supra, relevant to factor. 29, 72; Boyd, 775.)

Cal.3d Cal.3d People supra, We have is error to instruct a not heretofore considered whether it that is rele jury objection logically that evidence admitted without capital determination, vant to the but relevant because it is legally is not factor, statutory may not evidence related to a be considered as evidence of contexts, an factor. The has arisen other however. aggravating question 564 P.2d In Hannon 19 Cal.3d 588 People 1203], object the defendant not to evidence of alleged suppression did the attorney. showing evidence defendant’s Because there was no action, not defendant was aware of or authorized the the evidence would an the defendant’s con- inference that reflected support suppression i.e., sufficiently relevant to be guilt, sciousness the evidence was not admissible. The court instructed the of evidence and jury on suppression object consciousness of We held that the failure to to the admission of guilt. not, that time did any objection the evidence waived error. “Lack of however, to the right propriety waive defendant’s review of appellate jury court’s instruction on the issue of of evidence and con- suppression sciousness of the that an guilt Legislature provided because has specifically the objection affecting is not in order to instruction issues required preserve Code, substantial of a As the record contains rights (Pen. 1259.) defendant. § suggested inference, giving no evidence to the court erred in support ” also, v. Harris added. See (19 instruction. Cal.3d at italics p. 240].) 956-957 [171 Hannon, to the conduct was not relevant attorney’s In evidence of case, contrast, the evidence of defend- guilt. defendant’s In the instant is logically of violent conduct ant’s criminal conduct threats prior relevant jury to the to consider penalty. Permitting relevant appropriate conclude, We provision. evidence did not contravene constitutional therefore, jury that it not error for the trial court to instruct the may A not evidence could be considered evidence. aggravating in without and then objection relevant evidence to come permit aggravating it. jury that the court consider complain permitted we instruction not have been Even were to conclude should do reversal reference required. we not believe would be given, threats kill was not to during prosecutor’s argument defendant’s argue as an factor section 190.3. He the threats within did aggravating criminal for the threats of conduct or a potential that were evidence of conduct, “the terror simply jury future violent but asked consider feel, a man that that Joe Brassell and Michael Lerner must knowing before, that has threatened their bright enough, has committed murder is Peters, Mr. ‘if I make them feel lives. Tom the same. Clark has can thought, uneasy, that’s I And to the exactly respect what wanted to do.’” incidents, the told the prosecutor automobile arson and the 1966 shooting I jury really that “those aren’t circumstances. At least did aggravating circumstance, those to in the form of an but more present you aggravating 6, Mr. mind you January show Clark’s state of importantly ten was years Long existed some to fifteen earlier. before Ava Gawronski by even known the defendant.” The was thus on defendant’s emphasis rele- anguish, others to mental not on the penchant causing undergo conduct, vance of the as indicators of future violent or on defend- threats as factors. We no past aggravating possibility ant’s criminal conduct see may therefore that the invitation to consider evidence jury court’s to the impact have had an on the verdict. impermissible Victim 9. Evidence. Impact contends the murder

Defendant next that evidence impact admit erroneously of David Gawronski on the families of the victims was ted, and the its prosecutor was force. improperly permitted argue Lerner,

The evidence in is Ms. testimony question George father, included effect of Gawronski’s which a brief comment about the defendant’s on her to the parents daughter. Subsequent criminal acts Mary- held in Booth Court Supreme United States trial of this case the Eighth 107 S.Ct. 482 U.S. L.Ed.2d land (1987) 2529] [96 by evidence impact victim consideration some Amendment prohibits and reputa- character reasoned that the The court sentencing jury. capital victim’s death on effect of the offense and the victim of a capital tion of the of a particular the blameworthiness wholly be unrelated to family “may his away the sentencer’s attention divert the focus of and thus could defendant” and record background defendant’s from the relevant considerations—the (Id. L.Ed.2d at pp. 504-505 pp. circumstances of the crime. and the [96 449-450].) however, indicated, the defend- that evidence of the impact

The court victim be relevant might other than the homicide persons ant’s conduct on crime directly (482 if to the circumstances of the in a case related particular 451]), suggestion fn. 10 L.Ed.2d at and renewed p. U.S. at p. 490 U.S. its recent decision in South Carolina Gathers _ 876, 882-883, In v. Karis L.Ed.2d 109 S.Ct. 2207]. held that the 1189], impact we

of a defendant’s crimes on the victims of those crimes capital past cur- Certainly relevant to the decision. of a defendant’s penalty impact killed, injured, rent homicidal conduct on but not that conduct persons relevant to the decision. Since the victim evidence equally impact exclusively injuries in this case related almost to the that led to presented Gawronski, injuries the death of David and to the horrendous suffered aftermath, Ava evi- admitting Gawronski their error possible dence that these victims’ relatives suffered emotional distress must be ante, Lewis, beyond deemed harmless a reasonable doubt. v. (See People 284-285 892].) P.2d 10. Prosecutorial Misconduct.

Defendant asserts as misconduct the statement in opening prosecutor’s which, contends, theory which he restated the of the case the first jury rejected—that defendant had intended to kill all three members of the house, family Gawronski when he went to the and had first set the fire hallway the and room of the house to block their Defendant living escape. jury theory claims that this to have the the attempt accept prosecutor’s the case violated of collateral and double be- jeopardy principles estoppel cause the first evidence that have jury necessarily rejected had the would theory the when it returned verdicts of second supported attempted degree murder.

Whatever the merit of defendant’s deductive as to the reasoning verdicts, the basis for second murder defendant failed to attempted degree an admonition could to the statement at time object when prosecutor’s the thereby complain appeal He to right have cured harm. waived v. Walker 47 Cal.3d 629- the misconduct. alleged (People about Murtishaw, supra, 29 Cal.3d 70]; People Green, 733, 758; 34.) supra, he now Defendant failed to to the other instances what object also from one of characterizes defendant’s misconduct—reading as prosecutorial the know that thereby letting jury and during letters the statement opening retried, that retrial was being suggesting the was a statement penalty phase dismissal, were mandatory mitigating an assertion that there no after here, to not we object factors. conclude that the failure excused While we of was agree improper not that we that the conduct suggest complained do or prejudicial. he letters and testified that object

Defendant did not to admission the Ms. to a retrial provoke had written the letters to Gawronski her father in his jury. purpose argu- before a He referred to this penalty again Assuming ment to the that defendant’s own state- jury. reading therefore could caused any ment from the letters was it not have improper, prejudice. first mandatory jury to retrial of the if the is unable penalty reference form of after he testified agree put came to defendant question his was threaten harm or cause purpose writing that the letters not to sufficiently further and the that grief, anger recipients but prosecutor In retried. effort to they penalty would should be an agree phase defendant the asked him if he was aware that retrial impeach prosecutor 190.4, mandatory. (b), provides was Section subdivision expressly court jury phase the event cannot reach a verdict “the . . shall dismiss and shall a new . .’’Defend- jury jury impaneled order not this one argues provision compels ant that we should construe as which continue to the death We not decide prosecutor to seek need penalty. however, was to defendant question, question put recognize law, if It did no more than ask him he aware improper. Harris, 1047, 1083, 17.) v. 47 fn. was Cal.3d proper. (See People supra, claim, that the were Defendant’s stated that there prosecutor improperly factors, no single isolates a statement which context mitigating a estab clearly statement of the of what the evidence prosecutor’s opinion lished. as to the Argument prosecutor’s that states conclusions of v. evidence and conclusions to be drawn from it is weight proper. (People 208, 879, 1294]; 771 Allison 48 Cal.3d P.2d (1989) Cal.Rptr. People Rodriguez (1986) 789-790 [230 113].) P.2d

11. Instructional Error. (CALJIC 8.84.2) error.

a. Brown No. to the in the court’s instructions Defendant next claims inadequacy outweighed if that the circumstances jurors they aggravating concluded death,” which a sentence of “you impose circumstances shall mitigating and its discretion jury sentencing misled the as to the allegedly scope responsibility.35 been misunder

We that the could have agree question instructions stood. In v. Brown 538-544 v. Brown P.2d on other sub nom. (reversed grounds 440] California 837]), recognized 479 U.S. 538 L.Ed.2d 107 S.Ct. we mandatory of section given language instructions like those here consistently 190.3 were section 190.3 potentially misleading. Construing validity with the settled constitutional which the of a death principles law is to be under the Amendment to the United penalty Eighth assessed Constitution, than jury States we held that to do more capital required jury find facts that determine the decision. The must make simply they moral assessment of those facts as relate to death is appropri whether defendant, ate for the individual and must be free to death on the reject must, therefore, any basis of relevant constitutionally jurors evidence. The factors, and weigh aggravating mitigating whatever moral or assigning each, value sympathetic juror each deems appropriate upon comple tion of the if weighing process must decide death is the appropriate penalty. Cal.

(40 3d at pp. 540-541.) decisions, In recent the United States has Supreme Court confirmed our understanding command of the Amendment. Instructions Eighth must be adequate jury may to inform the that it consider effect give character, evidence mitigating regarding the defendant’s background or to the circumstances of the crime regardless statutory language be might jury’s understood to limit the discretion in determining appro- The priate punishment. jury give must understand that it is free to a “rea- soned moral to such response” (Penry evidence its decision. making evidence, jury having having was instructed: “After heard all and after heard counsel, consider, you arguments guided and considered the shall take into account and be applicable you aggravating mitigating upon factors of circumstances which have been instructed. you aggravating outweigh mitigating “If conclude that the circumstances circum- stances, However, you impose you mitigating shall a sentence of death. if determine circumstances, outweigh you aggravating impose circumstances the shall sentence of prison possibility parole.” confinement in the state life without the of

632 _ 279, 256, 2934]; S.Ct. 109 U.S. L.Ed.2d Lynaugh 492 (1989) [106 347, 1821].) 107 S.Ct. 481 U.S. L.Ed.2d Dugger (1987) v. 393 Hitchcock [95 here in the given such as those A instructions might understand juror to jury’s finding limit the function statutory of section 190.3 to language to if the number of mechanically the factors determine counting facts or factors, in mitigating number of greater was than the aggravating factors The jurors might was penalty compelled. which case of the death imposition if the penalty vote to death they impose also that were to required believe in mitiga- that they outweighed the aggravation concluded that evidence that was the they appropriate not conclude death though might tion even have been When such instructions under all of the circumstances. penalty therefore, clarification, on our must determine based without we given record, as and the the instructions a whole of the entire including review counsel, to may respect the have been misled with argument jury whether its and Edelbacher sentencing responsibilities. (People discretion v. Allen 1];People 766 P.2d Cal.3d Penry also See 115]. __, U.S. L.Ed.2d Lynaugh, supra, 278].) so, misled in this jury done we no that the was Having possibility see the judges case. The also instructed the “You are the sole jury: court to be the evidence and respective weight given aggravation mitigation you you to trial. The and presented during impact degree persuasion this only force.” Nei- guided by convincing accord such evidence is its relative to be ther the nor defendant reference to the decision made prosecutor made as the by jury by the one that was either mechanical or law.36 compelled Rather, jury each that the must the emphasized “appropriate” determine based on all of the evidence. Thus the penalty prosecutor emphasized test, “it a balancing aggravating weighed against mitigat- circumstances He it be ing might circumstances.” then addressed the evidence how characterized. His to the law mandatory aspect reference was misled, entirely claiming jurors questions put In were defendant relies almost on voir if to law to them on dire when each was asked he or she would be able follow the impose aggravating vote to if he or she circumstances out death found weighed argument during mitigating. His overlooks the care taken voir dire task, asking jurors prospective ensure that these understood the nature of their whether evidence, weighing process simply counting each understood that the was not a matter of relevant, weighing process qualita that the number of items of as is a evidence was “the process.” tive moreover, argument subsequent judge, It of counsel and instructions gave meaning jurors aggravating play determining to the role the fac- were whether the outweighed mitigating. put questions tors have voir dire that do We never considered jurors they no potential explicated more than ask if can which is to later a follow law be concluding jurors might given basis for that those selected as instructions not understand subsequently. We decline to do so now.

633 mitigating the evidence reflected the context of his assessment that no jury the should consider arguing factors. In his after that closing argument, his charac- self-analysis rather than his past present defendant’s conduct state, you any “He didn’t tell ter and mental the commented: prosecutor under the any, why because there aren’t and that’s circumstances mitigating California, death, State case shall be law the the this punishment and I that.” that if the would you responded jury ask return Defendant law, you you the evidence as best can and follow the and do what “weigh you.” think that anyone that’s all could ask of right, suggests jury this record did not understand that it Nothing task, was essentially what we have described as “an normative performing may moral acting community’s as the that it its own representative, apply the standards to evidence and that it aggravating mitigating presented, has ultimate if the responsibility determining death is appropriate penal- Edelbacher, ty for the v. offense and offender.” 47 particular (People supra, Indeed, 983, Cal.3d 1037.) testimony his and his argument asked repeatedly jury just do that. Consequences

b. verdict—CALJIC No. 1.00. jury

The was expected also instructed it was to “reach a just verdict regardless what of that verdict be.” We consequences may have that a stated penalty phase jury should not be instructed that it must “disregard of its v. consequences (See People decision.” Malone (1988) 1, 525, 47 43 Cal.3d 762 Cal.Rptr. 1249]; P.2d v. People Jennings [252 963, (1988) 46 Cal.3d 990 Our 475].) purpose was to ensure that jury understands whether defendant is to live decide, or die is the it is precise issue and that responsibility for the decision lies jury with the alone. is constitutionally It impermissible to instruct a in a jury manner that the jury leads to believe that ultimate responsibility for the determination of the punishment lies else appropriate (Caldwell where. Mississippi U.S. 328-329 L.Ed.2d 231, 239, 2633]; S.Ct. People Jennings, 991; supra, Cal.3d v. Milner 253-254 P.2d 669].) instruction was disapproved given here but it is clear the jiirors

could not have this understood to mean that must they not consider the nature they of the decision were called make. upon to The tenor of the argument and remaining instructions made it clear to jury that it and it alone to decide whether defendant should live or Although die. the instruction given, should not have been it was not prejudicial. disturbance.

c. Evidence mental emotional of of sec (d) factor language The the in the of jury court instructed 190.3, the consider jury should that in a determination making penalty tion the was under committed while or not the offense was “whether Defendant con of mental or disturbance.” the influence extreme emotional of consideration this restricted the impermissibly tends that instruction less than that was of mental or emotional disturbance mitigating evidence “extreme,” the Amendment thereby Eighth and violated his under right any background his character and jury aspect have the consider (1982) the v. Oklahoma appropriate (Eddings be relevant to might penalty. 104, 1, 8-10, v. Ohio 102 Lockett 869]; 455 U.S. 110-113 L.Ed.2d S.Ct. [71 989-990, 973, 586, 2954].) 438 604 98 S.Ct. U.S. L.Ed.2d (1978) [57 however, any this nor the argument prosecutor, Neither instruction be should extreme mental or emotional disturbance suggested only “any the that it should consider jury considered. Other instructions advised it though even gravity other circumstance which extenuates the crime crime the defendant’s legal aspect is not a excuse for the and other a less character or that the defendant offers as basis for a sentence record fully It in this case that all of the jury than death.” is clear the understood and mitigating evidence offered defendant could should be considered. Murtishaw, v. Morales 1033; 48 Cal.3d at v. (See People supra, p. People 527, 64, v. Ghent 48 567 (1989) 244]; People Cal.3d Cal.Rptr. 739 1250].) Cal.3d P.2d 12. Application Penalty. for Modification of 190.4, (e), Section subdivision that if a returns provides jury capital verdict of death have the defendant deemed to made an application verdict, the modification the and directs: “In on ruling application, the evidence, consider, account, guided shall take into and be judge review . . by the . make aggravating mitigating circumstances and shall jury’s aggra- determination as to whether the findings verdicts contrary to are vating outweigh mitigating circumstances circumstances law or the shall state the record the presented. judge evidence on for his reasons findings.”

Because the function of the the motion for judge ruling on modification is evidence independently reweigh aggravating whether, and then mitigating judge’s circumstances to determine independent weight of the evidence verdict judgment, supports jury Lang v. P.2d (People 627]), evidence the court is to review is that before which was ante, Lewis, 262, 287; jury. Jennings, (People supra, supra, 995.) Defendant that the trial considered evidence complains judge improperly motion, contained in a the section 190.4 probation ruling when report and that this evidence as well as the admitted victim improperly impact evidence influenced his decision to deny motion.

The record confirms that the court had read the and did probation report Lewis, Here, however, refer to its content his statement. unlike v. People ante, 262, 286-287, supra, the record confirms that the did not con- report tribute to the decision. Two of the to which the aspects report judge referred were ones favorable to defendant—that he had no formal criminal record and had admitted his voluntarily very involvement at a early stage the proceedings. by Another—that defendant’s own statement he “felt certain justification for his conduct because Ava Gawronski broke her promise and went back on her word”—was apparent from evidence that had been presented jury. Only to the statement that Ms. Gawronski considered defendant “dangerous, manipulative and as cunning reflected the probation may report” directly reflect evidence not considered jury. The trial had no judge rely need to on the opinion of Ms. Gawronski conclusion, to reach such a if in fact the judge agreed. The prosecutor had already argued to jury, based on evidence presented jury, to the defendant was dangerous and There manipulative. is no possibility had the judge not read the probation his on the report ruling modification motion would have differed.

13. Proportionality.

Defendant contends that imposition of the death in this penalty I, 1, case violates article section of the California Constitution. (See People 441, v. Dillon 34 390, Cal.3d 477-482 668 Cal.Rptr. 697]; P.2d 410, In re Lynch (1972) 921].) P.2d We disagree. The calculated nature conduct; of defendant’s his kill intent to victim, the murder and to cause grievous to the suffering victim’s surviving wife; his decision to with the proceed to plan ignite gasoline in the victims’ bedroom even after he became aware that the room was and his occupied; avowed intent to kill or cause to be killed other persons whose conduct him, offended fully justify the and refute any suggestion that the (See penalty is disproportionate. People Hamilton (1989) 48 Cal.3d 730]; Jennings, Cal.3d supra, Karis, 995; People v. supra, 649.) Attempted Verdicts Murder Evidence. Instructions./Sufficiency 14. murder attempted that his convictions contends

Defendant included on the lesser to instruct the court failed because must be reversed cause likely great force by means of and assault (§ 240) of assault offenses to support is insufficient the evidence and because bodily injury (§ 245), to kill Sara Gawronski. of intent finding defendant con- Evidence was presented was sufficient.

The evidence that he aware becoming the arson after proceed sidered whether infant’s parents, room occupied gasoline vapor ignite would go through hate and anger had sufficient do so because he and decided to from the to save herself young was too that the child his He knew plan. an inference to support was sufficient deliberately set. That evidence fire he family. entire he to kill the that intended Section 1159 autho- not required. instructions on assault were Sua sponte offense, the any guilty the defendant the trier of fact to “find rizes in which he is necessarily included that with of which is commission necessarily An the offense.” offense an to commit attempt or of charged, be committed statutory offense cannot in another if (1) greater included the lesser all of the elements of the lesser because committing without (2) charging or if the greater; in the elements of the are included offense it in such describing accusatory language include pleading of the allegations necessarily must in manner the lesser offense if committed way 517, 510, fn. 4 35 Cal.3d Geiger (1984) v. (People be committed. [199 1303, Martin 45, v. St. 1055]; People 50 A.L.R.4th 674 P.2d Cal.Rptr. 166, 524, 390].) 463 P.2d Cal.Rptr. 536 Cal.3d (1970) by means of force claim that either assault or assault Defendant does not with a necessarily included bodily harm is an offense likely great to cause instead, v. Marshall (1957) relying People of murder. He claims charge offenses were included within 456], P.2d that these 48 Cal.2d 394 [309 While both Not so. “as the information. charged” murder attempted in sepa- were made charged, charges and arson were murder attempted count to did not refer complaint The allegations rate counts. implicit authority proposition, is offered for the assaultive conduct. No conduct,37 claim, reasoning for his arson is assaultive defendant’s unlawfully aforethought willfully, malice alleged “did and with Count III that defendant Gawronski, inju being” inflict such a human and “with the intent to attempt to murder Ava bodily allegations of the ry, great injury upon Ava Gawronski. . . .” The personally inflicted the infor- that because both arson and murder were attempted charged allegations as included pleaded, mation the murder attempted charges, assaultive conduct.

Not was the under no instructions on assault obligation give court harm, likely bodily of force to do to have great assault means and/or (See done so would have been error of constitutional dimension. People 364, Geiger, 526; v. Lohbauer supra, (1981) Cal.3d 29 Cal.3d 368-369 183].) P.2d Sentencing Determinate 15. 654. Section

There is merit to claim trial defendant’s court erred in stay failing imposed term arson count to section 654. pursuant arson, murder, murders attempted were committed act of igniting the fires in the victims’ home. Accordingly, section 654 mandates that execution of the term imposed stayed for arson be not only pending murder, service of the term for the imposed but also the terms for attempted murder. (People Beamon 639-640 re 905]; Wright In 653-656 [56 110, 422 Cal.Rptr. 998].) P.2d

Because the commission of an arson is act of violence likely that is however, cause harm to more than one person, section does not prohibit punishment for each of the the attempted (Neal murders and murder. State 20-21 P.2d of California 839].)

16. Sentencing Rules. Courts,

Rule 421(a)(3) of Sentencing Rules for the Superior Court, California Rules of terms, which govern imposition of determinate identifies anas aggravating circumstance of permitting imposition the upper term the that fact victim was particularly vulnerable.” The trial court “[t]he relied on this aggravating circumstance for of imposition term upper of rape defendant’s former wife. same, charging attempted however, count of Sara omitting, murder Gawronski were the great-bodily-injury allegation. The alleged only arson count willfully unlawfully “did maliciously and and another, set fire Gawronski, burn property to and and be cause to burned the of to wit David and Ava located [address].” of the imposition factor supports vulnerable victim” “particularly to an degree, “in or unusual vulnerable a special if the victim is term upper defenseless, unguarded, unpro- cases than other greater extent [and is] accessible, defendant’s criminal tected, . . . to the susceptible assailable 502].) (1979) Cal.App.3d act.” Smith (People of defendant’s identify those aspects court did not the trial Although her this within brought circumstances or the victim’s rape conduct victim, conclusion that she the court’s the evidence supports category with her relationship his prior Defendant used vulnerable. particularly was her apart- her to admit him to thereby to persuade and knowledge gained mother, illness of his for the supposed He her concern exploited ment. trust, she to a location where thereby entrance gained her and manipulated inaccessible, herself from the alone, unable to protect unprotected, was therefore, was, permissible. term upper of the Imposition assault. in considering claim that the court erred reject We also defendant’s electing impose factors aggravating as premeditation planning While the jury of Ava Gawronski. term for the murder attempted upper the murder of Ms. did not may premeditate have determined that defendant Gawronski, advance planned he had indisputably premeditated itself, Rule her to suffer. causing and had done so for the purpose arson Court, Rules California Superior Rules for the 421(a)(8) Sentencing Court, the enumerated circumstances among aggravating includes sophistication term the may upper “planning, warrant imposition facts, out, crime carried or other with which the professionalism into the Since the arson escalated planned indicate premeditation.” [which] murder, upon circumstance was relied properly this attempted aggravating sentencing judge.38

Conclusion in count II charged committed the murder finding The that defendant 190.2, murder means of by explosives (§ under the circumstance of special that the term stricken. The is modified to direct (a)(6)) judgment subd. is V service of the terms stayed imposed on count imposed pending cruelty high degree and viciousness The court also noted that the offense involved a of Court, imposition upper the (Cal. 421(a)(1)), support alone Rules of rule which would inapplicable, planning premeditation the and factor was term. Even were we to conclude that might only appeared have im would be entitled to relief if it that the court not posed upper judge inapplicability. of its This is not such case. the term had the been aware III, II, IV, of those stay service permanent upon counts and the to become modified, judgment terms. As the is affirmed.

Lucas, J., Panelli, J., Kennard, J., C. and concurred. MOSK, J., of guilt, and concur in the Concurring Dissenting.—I judgment agree special but of Justice Broussard on the circumstance of views felony murder. I separately judgment penal- write to dissent from the ty phase. court trial committed error in the defendant to prejudicial permitting

represent himself in the of the trial. The bizarre of the penalty phase nature crime irrational reasons motivating the defendant to commit the offense inability should have alerted the court to the defend- mental of the ant to adequately evidence in present mitigation.

The mental and emotional of the defendant were inadequacies empha- crime, sized the facts of analytical the bizarre but testimony who examined him in experts connection with these pro- Yet, ceedings. strangely, the trial judge—and majority now of this court—ignored testimony and determined obviously mentally that this disturbed defendant competent present a rational a jury defense to contemplating whether he is to live die.

Following are brief from excerpts testimony the medical experts who reviewed the mental capabilities defendant: Hatcher,

Dr. Chris a clinical “Mr. psychologist: Clark’s behavior and history is most characteristic of an individual that would have a diagnosis borderline personality .... Borderline is a personality of individ- category uals fit in between neurosis psychosis.” Sharma,

Dr. Kaushal a psychiatrist: “Q. you And would describe Mr. Clark being as mentally A. impaired? Yes.”

Dr. John M. Stalberg, the court-appointed Clark psychiatrist: “Mr. suffers from a borderline . personality disorder. . . emotionally He is unsta- ble ... . These problems emotional significantly interfere with his inter- social personal, . occupational . . Mr. relationships Clark is a sig- nificantly .” disordered individual . . .

It is noteworthy particularly that in the first trial defendant repre- was sented counsel. The jury not convinced that defendant should re- retrial, ceive the death it penalty; was unable reach a verdict. In a counsel, permitted defendant to act as his jury own a returned a verdict of death. in acting inadequacy from defendant’s that this resulted

It is probable evidence of prior introduced example, prosecutor behalf. For his own This was not involve violence. activity that did criminal unadjudicated conclude that majority object. did not yet defendant clearly improper, this error. To hold of a claim of constituted a waiver object his failure to in connection attorney of an the standard defendant to mentally disturbed evidence, waiver of knowing a thereto and objections with admission unrealistic. error is patently instances several indulged

Similarly closing argument prosecutor defendant, majority, and contend by this objection misconduct. No waiver, on appeal. consideration a thus preventing therefore there was defendant mentally a impaired for requirement this is an unrealistic Again, counsel. without appearing acting propria persona cases hold a defendant

It is true that some treatment, held to the same standards that he is to be not to receive special However, prosecutor’s him. the fact that the for appearing as would counsel undoubtedly is unfamiliar and persona, is appearing propria opponent does procedures, of courtroom complexities with the techniques of defendant’s taking advantage the court either the or justify prosecutor ignorance. for the strategy penalty mind the did have a

In his tormented defendant He stipulated excuses for his actions. It is that he made no apparent phase. main- the victim therapist he received care from competent had other I to and for no “I committed the murder because wanted tained that reminded the he argument, repeatedly reason.” In his closing example, jury picture he did. He even showed the exactly to remember what jury fire, “In case there is infant taken before the daughter the victims and their . .” minimize it . . He admitted any tendency to what I did or to forget retrying into letters to threatening “provoke” prosecutor that he wrote decided penalty I to see this trial decided—this the case “because wanted die, but maintained that he did not wish to jury.” argued He repeatedly fear live the cost that life is “I want to particularly also don’t [of] [if] seem He that “it doesn’t anxiety suggested for Ava therapist].” [his I have a conclude that any to me that rational would person reasonable a life verdict.” imprisonment fear of either the death deal of great “very he cares much” about jury admonished the Finally, defendant is living if that Ava Gawronski “you really Ava and that believe Gawronski me, anxiety or causes her you my in fear of if believe that existence discomfort, Mr. Reid certainly prosecutor] then I concur with would [the essence, was not In that death is the appropriate penalty.” the jury to convince attempting the death but was arguing against penalty, that he cares about the victim and was somehow in his violent justified actions. rely on Faretta v. majority U.S. 806 [45 California

L.Ed.2d 2525], 95 S.Ct. to confirm the absolute to right represent himself at the of a trial. Their penalty phase capital reliance is First, for several misplaced case; Anthony reasons. Faretta was not a death merely Faretta was charged grand by theft and was found specifically “literate, (id. the court to be competent and understanding” p. [45 L.Ed.2d at He had criminal p. 582]). previously defended himself in another case and could handle a theft apparently case as from a distinguished Nevertheless, in which proceeding very his life be involved. might there were persuasive dissents Chief Justice Burger, Justices Blackmun and Rehnquist, who of “the spoke injury society” (id. at p. L.Ed.2d at from p. 590]) layman a mere allowing to conduct a criminal trial.

Second, Faretta was decided to and must be prior subject to Woodson v. North Carolina 944, 961, U.S. L.Ed.2d 96 S.Ct. 2978], in which the Supreme Court emphasized that “the penalty death is qualitatively different from a sentence of imprisonment, however long. Death, finality, in its differs more from life imprisonment than a 100-year prison term differs from one of only year or two. Because of that qualita- difference, tive there is a corresponding difference the need reliability in the determination that death is the appropriate punishment in a specific case.”

Third, the majority feel apparently bound v. Bloom (1989) 48 Cal.3d 1194 With due my respect 698]. colleagues, that case is judicial aberration that cannot be long supported defendant, law or logic. There himself, purporting represent put defense; no he actually aided the prosecutor the death seeking and thus made a mockery of adversary process. How that result serves the ends justice in a civilized society completely me. escapes short,

In I do not believe Faretta the trial court compelled to permit this mentally disturbed defendant to dismiss his lawyer and represent himself at the penalty phase the trial. Even if Faretta were to be deemed controlling, the trial court should have found this defendant incompetent to represent himself. And it himself, is clear that in purporting to defend defendant did not present mitigating evidence or in manner create a reliable adversary proceeding.

I would set aside the finding of the special felony circumstance of murder and would reverse the penalty judgment. court, I would direct the trial if there is to be a new penalty proceeding, to counsel for appoint defendant.

BROUSSARD, majority with the J., Dissenting.—I agree Concurring means of is by explosives circumstance of murder special that the opinion of conclusion that the circumstance special but dissent from its inapplicable, correctly that the majority recognize can be sustained. The felony murder v. Green failing jury, pursuant People trial court erred to instruct arson- 468], 61-62 (1980) the defendant has an circumstance is when special applicable murder arson. That special for the commission of the purpose felonious independent to, the arson is incidental simply circumstance is not when applicable facilitate, committed to the murder. conclude, however, They the error was not majority prejudicial. initial was to set fires to drive the to evidence that defendant’s

point plan house, their then to shoot David as he Gawronskis out of Gawronski by Defendant left buckets of various doors to emerged. gasoline compel door, and a by gasoline Gawronskis to flee the front and threw a bucket of flare into the Gawronskis’ bedroom. highway Although recognizing substantial that “when defend- supports jury’s implied finding evidence home, actually ant set fire to the in the Gawronski of the gasoline regardless torched, kill order in which the rooms were defendant intended to ante, family (maj. 609), majority members” at conclude that opn., p. “when he commenced the arson his intent was to start a fire that would . . . family drive the out of the home. His belated realization that the bedroom was and his resolution to his Gawronski occupied, proceed nonetheless, does not the evidence that he had a plan negate inde- purpose causing the death of David Gawronski his commission of pendent ante, (Maj. 609.) arson.” opn., p. First, analysis wrong,

This is on two counts. an essential element plainly Code, is burning building. (See crime of arson the of a of the Pen. part 451; Haggerty 355; 46 Cal. v. State Woolsey § 30 S.W. fire to a bed insufficient to constitute Tex.App. [setting 546] removed, a building extinguished, arson of when the bed was and the fire part building burned].) before Under the of the reasoning prose- cutor, words, jury, majority’s and the own when implied findings actually set fire in the gasoline to the Gawronski home—and thus when the commenced—his intent to kill the burning family members The fact burning. that defendant earlier entertained a different plan arson, actually irrelevant. When defendant committed the crime of he did kill intending so the victims and had no burning, independent purpose for his action.

Second, if even defendant set the fire to cause the Gawronskis to to a go David, where he could shoot and kill not constitute an place would Green, felonious under the independent purpose reasoning supra, case, 1. Cal. 3d In that defendant took the murder victim’s and cloth purse to hinder his his acts ing escape. Although identification thus facilitate robbery, robbery constituted the crime of we held that because the was murder, merely incidental the a felony-murder it could not support (P. circumstance. We that “the must have special 62.) explained Legislature intended that each circumstance a rational basis for distin special provide guishing between those murderers who deserve to be considered for the death . . . penalty [felony-murder] and those who do not. The provision thus a belief that it not expressed legislative unconstitutionally arbi trary to expose to the death those defendants killed in penalty who cold blood order to advance an . . . felonious independent purpose. [fl] achieved, however, Legislature’s is not goal when the defendant’s intent is not to steal robbery but to kill and the is merely incidental to the murder . . . because object its sole is to or conceal the crime primary facilitate if, here, . . . .” (P. italics added.) Thus as the defendant’s purpose setting fire is not to destroy but to drive the property, intended victim to him, a place where defendant can easily felony more kill lacks a purpose murder, independent from the felony-murder and cannot a support special circumstance.

Green (supra, 1) out the pointed absurdity that can result if a felony incidental to the murder can render the defendant eligible for case, death penalty. In the context of that we that it be explained would irrational to hold “that this defendant subjected can be to the death penalty because he took his victim’s clothing for the it purpose burning later to identification, prevent when another defendant who committed an identical first degree murder could not be subjected to the death if for the penalty same he purpose buried the fully victim clothed—or even if he doused the body clothed with gasoline and burned it at the scene instead.” (P. 61.) Similarly in this case it is irrational to hold this subject defendant is to the death penalty initially because he intended to set a fire to drive the victim him, from the house and then shoot when a defendant who from the begin ning intended to burn the victim to death in the would be conflagration subject to the death and penalty, neither would a defendant who planned to shoot the victim first and then burn down the house to conceal the murder.1 absurdity 1Justice Kaufman finds an application in the of the Green rule to this case: that if intending succeeded, defendant committed the arson kill the victim and he would not be eligible murder, death burning since the was done to facilitate the if while he committed the independent an purpose inadvertently arson for but occupant, subject killed an he would be (Conc, Kaufman, J.,* penalty. to the death opn. post, p. 655.) dis. agree I that it is absurd unintentionally for defendant subject who kills penalty to be to the death when a de ineligible fendant who intended to kill is punishment—regardless for that of whether death *Retired Associate Justice of Appeal sitting assignement the Court of under Chair- person of the Judicial Council. narrow, and insig technical on such a should not turn

The death majority opinion. as a basis for the that invoked nificant distinction as that to find jury have instructed that the trial court should I conclude determine that arson it must based on circumstance felony-murder special commission of for the purpose felonious had an independent Since neither error. prejudicial so instruct was The court’s failure to arson. that of nor murder means of explosives circumstance special sustained, circumstances findings special can be felony murder reversed, for a new the case remanded be should judgment the penalty trial. J.,

Mosk, concurred. * judgment in the J., concur KAUFMAN, Concurring Dissenting.—I arson conviction the sentence for the stayed ordering except portion for attempted and the sentences of the sentence for murder service pending my In view the Penal entirety. in its judgment I affirm the murder. would other and a number of erroneously determined Code section 6541issue is Further, one by majority. incorrectly analyzed and resolved issues are incorrectly, correctly or by majority, whether issue resolved significant is unneces- all in this case because its resolution should not be resolved at sary to this case. deciding majority I errors in the way start with several

To them out get if of this court were opinions that would be of little importance opinion published.

I. been instructions should have In defendant’s claim that assault rejecting court, that “to erroneously and states majority gratuitously given (Maj. dimension.” have done so would have been error of constitutional ante, in contention on how- appeal, defendant’s 637.) Implicit at opn., p. ever, would not have have desired such an instruction and is that he would error, have been no circumstances there would objected to it. Under those error, given. (SeePeople had such instructions been much less constitutional 811, I 577].) agree, 766 P.2d Cal.Rptr. v. Toro 47 Cal.3d 966 [254 however, such instructions sua sponte. the court was not required give knifing, misplaces Kaufman burning, shooting, other cause. But Justice results from Green, 1, absurdity. supra, in the People but the source of the It is found not felony-murder application killers. special and its to unintentional circumstances * assignment Acting Supreme sitting Retired Associate Justice of the Court under Chairperson the Judicial Council. 1 statutory indicated. All are to the Penal Code unless otherwise further references

645 II. stay 654 of the sentence majority’s conclusion section requires ante, based on (maj. 637) apparently

on the arson conviction opn., p. the notion that the arson consisted of a act rather than a course of single may conduct and that the evidence that defendant have had an intent or murder objective committing attempted the arson other than murder or is of no I agree. plainly do not The evidence shows consequence. acts, fact, arson conviction two acts of upon separate was based several so there of conduct” involved throwing igniting gasoline, was “course in the arson and the intent and of defendant must be considered purpose that course be under more determining whether of conduct can punished than one statute. penal

Whether a course of conduct is to be considered a act for single purposes of section depends upon whether the course of conduct was “indivisi- ble,” which in turn whether the depends upon defendant’s acts were per- formed with the same intent and for the same v. Beamon purpose. (People 625, (1973) Cal.3d 637-638 905]; see also v. Miller P.2d 552]; Neal State (1960) Cal.2d 19 Cal.Rptr. of California 357 P.2d 839].) That is a question question by of fact to be determined 34, trial court. v. Porter (People (1987) 194 Cal.App.3d Cal.Rptr. [239 269]; 129, v. Goodall People (1982) Cal.App.3d Cal.Rptr. 243]; [182 68, Ferguson v. People 74-75 Cal.App.3d 418]; Cal.Rptr. People v. Scott (1966) 247 375-376 Cal.App.2d 525].) Cal.Rptr. the trial Impliedly, court here determined the several acts involved in the arson were not committed with the same intent objective. clearly And there is substantial evidence to that determination. support The first act of committed, throwing gasoline may into the house have been as defendant testified, merely to drive the occupants out of the house. Having heard the occupants screaming and apparently concluded the having could occupants not be forced out as he the second act expected, of into throwing gasoline the house could well have been committed by defendant with the intent to kill all the This seems occupants. likely because after he threw the second quantity gasoline, defendant in put shotgun away the trunk of the Further, automobile he had rented and left the scene. he stated that he realized at that time he carry could not out the but plan “specifically” intended “to carry out whatever other had steps already preplanned.” [he] ante, (Maj. opn., p. 608.)

I conclude the trial court was not required stay sentence on the arson (Cf. conviction. v. Ramirez People (1979) 93 Cal.App.3d 728-729 [156 94]; Ferguson, supra, Cal.App.3d 75.) I matters greater import. now turn to

III. I the defendant’s claim of reversible error in the court’s restriction agree of the death voir dire is not meritorious. And I that is so qualification agree defendant, so, because the from did not though precluded doing attempt jury in the voir dire to general inquire whether severe burns suffered the victims would cause one or more to vote for the jurors automatically death But that reason to lack of it does not at penalty. goes prejudice; all answer the question whether the should have been questions permitted the death qualification Contrary majority voir dire. to the conclusion of the I believe they should have been.

The reason ais one. Under our the death simple practical practice, is, voir dire qualification is conducted the other sequestration; pro spective jurors are not and are not to the present exposed repetition unknown, inflammatory questions or the potentially prejudicial answers other prospective jurors. (Hovey Court 80-81 Superior view, my In 1301].) many of the reasons dire, given Hovey for for the sequestering jurors death voir qualification questions such as counsel wanted to ask here would be better asked be, sequestration. No one knows in advance what the might answers how emotion they they be or what effect packed might might have on the other jurors.

The majority seems concerned with the possibility length death qualification overly voir dire be might extended such questioning. But at the same time majority concedes the same questions could be fact, in general asked the voir dire. So where is the of time? In it savings to me appears by the the procedure suggested majority would be awkward and more time-consuming. majority The the apparently contemplates ask- of such ing questions general at voir dire unless and until an answer from some juror indicates a The court problem. and counsel would then be required to decide whether to air the matter all hearing within the other jurors or to back a prospective go into voir dire session each sequestered time a problem arises. What sense does that make?

Further, I am far from the persuaded law the conclusion that supports such questions are outside the the proper purview death voir qualification dire. dire, the

During death voir qualification sought to inquire jurors whether prospective automatically would vote for the death if penalty

647 of the by kind suffered one of the injuries serious burn a victim suffered objection, ruling the People’s in case. The court sustained victims this if vic- the jurors to ask the prospective not be permitted defendant would con- majority verdict. their injuries penalty tim’s would determine to the death qualification “was not relevant cludes that the proposed inquiry of the only the views “seeks to determine because that process” process in abstract.” (Maj. opn., the jurors punishment about prospective capital ante, restricts unduly improperly In that conclusion 597.) my view p. dire. of the death voir qualification the scope 412, 424 U.S. L.Ed.2d Wainwright (1985) Under Witt 469 851-852, a determining pro- standard for when 844], 105 S.Ct. the proper juror’s views on juror may be excluded for cause because spective or substan- juror’s ‘prevent is “whether the views would capital punishment in his juror of his duties as a accordance with tially impair performance ” This standard was as a matter of state adopted instructions and his oath.’ 739 law Ghent People Penalty jurors determining P.2d are instructed that phase penalty 1250]. consider, they “shall take and be guided aggravating into account they circumstances” as defined in the instructions and that mitigating if, if, shall circumstances impose only aggravating the death penalty If a certain factual cir- outweigh mitigating (§ 190.3.) circumstances. cumstance itself a vote juror automatically would cause prospective either for or the death of other or against penalty, regardless aggravating circumstances, then that a view mitigating juror holds capital punishment ability duty juror. his or her of a impairing perform penalty phase standard, Under the Witt cause. juror subject challenge such for juror automatically For vote the death if the example, might penalty once, defendant had than if if killed more the murder was or premeditated, juror automatically against the victim was a child. Another vote might old, death if the defendant if penalty years was less than the defendant abettor, victim, merely was an aider and if there if victim was indicate, a drug (As dealer. these this issue affects examples prosecution voir dire as well as defense voir dire. See v. Coleman P.2d ruling on a chal- [“the 1260] lenge for cause when a prospective juror biased appears favor of death be light should examined of the same With- [italics added] standard”].) they Because hold fixed that interfere erspoon[-Witt\ views duty their to consider all circumstances relevant to are penalty, jurors such standard, subject to for cause under the Witt challenge voir appropriate dire should be to uncover such death views. permitted penalty

The roots the majority’s contrary may view be traced to apparently 776, v. Illinois U.S. 510 88 S.Ct. Witherspoon 1770], 391 L.Ed.2d 648 “substantially in

Before the standard announced Witherspoon Witt, Ghent, 739, 767) by modified” it was (People supra, ground sometimes viewed as for cause on the of bias permitting challenge if a made it against only juror’s the death penalty prospective responses in case unmistakably always every clear that he or she would vote of the death If this were now the stan against imposition penalty. proper dard, then the be correct: death voir dire majority might could qualification jurors be limited to the views of the about properly prospective capital abstract, in the the facts of the case punishment questions regarding could be excluded. properly

But this court has never viewed even the standard as Witherspoon being so restrictive. For in v. Fields 35 Cal.3d example, People 329 [197 803, 680], may 673 P.2d we concluded “that a Cal.Rptr. court properly juror automatically excuse who vote prospective against would [for cause] him, the death in the case of his penalty regardless willingness before 357-358, consider the death penalty (Id. added; other cases.” at italics pp. accord, v. Hamilton (1989) Cal.3d [maj. opn. may A footnote in Fields be Eagleson, J.].) 730]

construed as restricting by this conclusion suggesting during death voir qualification jurors dire should be informed prospective case, involved in the charges and not of the evidence to be introduced. Fields, fn. (People supra, 13.) But this limitation p. makes little sense since the of voir dire would then be scope dependent upon and, the level of detail document charging more as importantly, above, explained many because it would allow objectionable penalty death views to remain undiscovered. Our Witt decisions have not post- limited death qualification voir dire to the on the prospective jurors’ views death either in the abstract or in the by circumstances shown the charges.

For v. Rich example, People (1988) Cal.3d 960], P.2d the defense objected to limitations the trial court imposed on counsel’s “‘use of the facts of case to determine death penalty [the] attitudes’” but then reached agreement with the to ask the prosecution “ ‘If following the facts in this question: case disclose that [defendant] guilty four murders and separate multiple including the murder of rapes, eleven-year-old an girl sexually who was abused and was killed being thrown off a high bridge, would those facts trigger emotional responses you that would make it hard to consider life without imprisonment possibil ity of or would parole, you under those circumstances vote for the death penalty?”’ (Id. at pp. 1104-1105.) “fully We stated that this com question ports with the law at the existing time the voir dire examination was held” (id. at 1105) and we did not p. suggest there was in the anything improper inclusion of factual detail. specific Coleman, challenge held that a 46 Cal. 3d we supra,

And People juror the unequivocally where prospective for cause was denied improperly (Id. murder. in a case of always premeditated he vote for death stated would were alleged circumstances felony-murder special Two 766-768.) pp. ex information that the true; opinion from the it does not appear found pressly charged premeditation. dire include exposing of death voir permissible qualification

The purposes cause, but for exercise only challenges grounds for for also grounds not v. Johnson (1989) As we challenges. explained People peremptory counsel be 1047], “should in the reasonably intelligent to to assist designed allowed ask questions or are also questions exercise of whether not such peremptory challenges We also likely challenge explained to for a cause.” grounds uncover to death dire is the same as its the trial court’s discretion limit voir brief, not to may to voir dire. In dire be used general limit the voir power or and the court has discretion to contain jury” “educate indoctrinate Rich, also, (Ibid.-, voir dire within these limits. see supra, We noted that the court 1104-1105.) Johnson trial approvingly a jurors’ attitudes “permitted range questions regarding wide prospective (Johnson, 1225.) about the death penalty.” supra, at p. suggestion jurors’ toward facts of prospective attitudes case only general clearly should be voir dire seems explored during

erroneous.

IV. I not is Although agree majority’s gasoline do conclusion V, true, an if explosive unnecessary even that is it is both (see part post), incorrect to conclude that the was not “delivered” defend- gasoline First, ant in this if an it gasoline explosive case. is not what difference does make it was whether or not “delivered”?

Second, overly “deliver” majority’s characterization the word unduly restrictive kills “true” pejorative. Presuming with a majority really say does the mean to be explosive, eligible he would death directly if he walked sidewalk and into either up put explosive (See the mailbox or the hands? I think not. New recipient’s Webster’s Internat. (2d 1957) give Diet. ed. 693: “deliver” means “To or forth p. put as, exercise; blow; in action or discharge; deliver a deliver a broad- forth, “Delivery” side or ball.” means “Act or dis- sending manner . . . charging, throwing .”) unnecessary will come incorrect and dictum majority’s

Predictably, special-circumstance “true deciding explosives” haunt this court back to And to what end? cases.

V. sustained, cannot be finding special-circumstance agree “explosives” of Health meaning within the is not an gasoline explosive but not because 190.2, subdivision 12000 and Penal Code section Safety and Code section is that comes My gasoline conclusion (hereafter, 190.2(a)(6)). section (a)(6) but because section statutory definition of literally “explosive,” that or should have known only if the defendant knew 190.2(a)(6) applies risk of death and because no great of an created a his use “explosive” character of knowledge explosive intent or of the instruction on defendant’s cannot be finding given, explosives special-circumstance gasoline affirmed. gasoline the combination of

The that defendant’s use of People argue of the victims’ bedroom meets the criteria and air within the confines vapor an 12000 and is therefore use of Safety explo- of Health and Code section Safety that of Health and Code section They rely portion sive. part of broadly an as a substance or combination explosive that defines or or common of which is detonation purpose substances “the primary relatively is of a instantaneous or rapid combustion and which rapid capable . . . .”2 release of and heat gas for use as motor

The concede that is intended People gasoline principally and, fuel; an when uncon- necessarily is not in and of itself “explosive”; nonetheless, tained, They than explode. argue, is to burn rather designed Safety broadly “explosives” spe both defines Section 12000 of the Health and Code part: provided In it particular cifies substances that fall within its definition: “[T]he substance, substances, any primary or ‘explosives’ term shall mean or combination rapid capable of a rela purpose is detonation or combustion and which common of which substance, heat, any primary purpose tively rapid gas instantaneous or release others, which, relatively capable a substance of a instanta when combined with is to form gas rapid neous or release of and heat.” suggest gasoline explosive within the definition of Health also is an statutory by Safety by incorporation reference of schedules Code section 12000 virtue of the Thus, may explosive by agencies therein. it be an under adopted the administrative named Alcohol, Treasury, and Firearms’ Department Bureau of Tobacco the United States Materials, may (51 liquid explode. Explosives Notice List of which includes Fed.Reg. (Dec. 1986).) 46979-46980 However, statutory my gasoline express conclusion that falls within the in view of the electorate intended that section explosive, definition of an I do not consider whether only by 190.2(a)(6) virtue of their occasional inclusion apply to substances identifiable agencies for other explosives adopted federal as well as state administrative schedules purposes. defendant, as used that gasoline testimony establishes the expert from is released Vapor an explosive: definition of statutory meets the the combina- proportion in the proper ignited to air. When exposed gasoline gas heat rapidly, of producing and air is capable vapor of gasoline tion This dioxide. and carbon carbon monoxide in of the form is also produced Safety in Health and established explosive of an literal definition meets the instanta- relatively a . . . of capable 12000 as a “substance section Code course, And, evidence as the and heat.” gas release of rapid neous or occurs. an confirms, space explosion in a confined occurs when this reaction term is therefore, as that satisfied, can be an explosive that gasoline I am However, section 12000. Safety Code section in Health defined that his use should know knows or only if the defendant 190.2(a)(6) applies Therefore, the defendant’s a risk of death. great an creates “explosive” reasonably has or he knowledge and thus the cause an explosion, intent to may cause a use of gasoline in which have about the circumstances should applies. circumstance whether this deadly special must determine explosion, vapor a manner that a diffuse is used in such When uncontained gasoline or outside the control several variables ignition, is possible explosion of the may strength explosion if the of the user determine anticipation on the depends concentration of which itself vapor lethal—the potentially the area in and the size of has been gasoline present, of time length by a fire is every gasoline generated preceded occurs. Not ignition which may igniting vapor The harmful effects of life-threatening explosion. of a structure burning “flash burn” or sufficient range from and/or quick afire, an that causes struc- to set them concussion explosive its contents death, all but not may injury effects result in or damage. Any tural of these an or intend that to start a fire would using gasoline anticipate persons occur. explosion in an “explosive” its terms to use of 190.2(a)(6)

Since section is limited know reasonably should the defendant knows circumstances which death, felony- risk but the great creates a that his use “explosive” limitation, it appears murder-arson circumstance has no special comparable fall that all deaths within the electorate did not intend arson-related was used solely gasoline for the reason that circumstance explosives special an and an occurred explosion commission of arson as an accelerant when the was lit. vapor within statutory and the scheme 190.2(a)(6),

Both the of section language my that a murder which it thus conclusion operates, support which fire is a gasoline generated suffered injuries dies as a result of victim used if the defendant means of an explosive murder committed and the concussive nature explosive its exploit the intent to gasoline recog- should have injury, or cause death or vapor explosion force of the explosion lethal potentially intend that a He must nized that potential. that he should gasoline manner in his use of act in such a occur or must an enough It is not such an explosion. potential know of acts. of the defendant’s fire as a result occur explosion arson, gasoline the defendant uses when in the commission Murder be, reason to arson, or have intend that there but does not commit the therefore, be, is deadly a explosion, that there will the recognize probability that an possibility not the preclude This does 190.2(a)(6). not within section Uncon- circumstance. for a may special be the predicate arson-related death arson, in commission of an accelerant the is often used as tained gasoline circumstance special arson is itself in commission of and murder the in a structure. burning an accelerant use of as directly gasoline related to law, it is 190.2, death penalty In the 1978 construing subd. (§ (a)(17)(viii).) create overlap- did not intend to electorate Legislature presumed and/or circum- construe special court should circumstances. special ping “[T]he in circumstances multiple minimize those cases which to provisions stance conduct, multiple the risk that thereby reducing same will to the apply (People the defendant.” prejudice circumstances will findings special 994, 64 P.2d 691 Cal.Rptr. 37 Cal.3d Bigelow (1984) 39 Cal.3d also v. Montiel 723], People A.L.R.4th See 1248].) circumstance of that the special was not instructed jury Because knowledge, such intent or 190.2(a)(6)) (§ required murder explosives the requisite that defendant had not a conclusion compel the evidence does by murder was committed knowledge, finding intent or must be stricken.3 delivery of an explosive

VI. ante, at majority (maj. pp. opn., the conclusion of I do not agree on the basis declining in to instruct the trial court erred 608-609), that (Green), P.2d Green 468] murder the course circumstance special find the arson] [of “[t]o true, carry to out was committed order be that the murder it must proved to facilitate the escape of the crime of arson or advance the commission words, circumstance In the special detection. other therefrom or to avoid er unnecessary claim that the trial court to address defendant’s This conclusion makes it gasoline vapor “ex in which roneously of the manner admitted demonstrative evidence tube, rele ignited a steel evidence that was oxygen and within plodes” when enriched with allegation. only special establishing the truth of this circumstance vant merely if the was is arson in these not established referred instructions ante, 607, fn. maj. (See opn., p. of murder.” to the commission incidental 14.) view, respects, vital instruction was incorrect two my requested

In hold 8.81.17. did not CALJIC No. Green it based on notwithstanding advancing indepen for only a murder the purpose or even state robbery special in the could murder commission felony dent be a unconstitutionally “it was not stated purposes; circumstance it killed cold those defendants who arbitrary to the death expose (Green, . . . .” independent purpose in order to advance an felonious blood 61.)4 27 Cal.3d at p. supra, circumstance could robbery-murder special did Green that no

Nor hold merely to kill rather than to steal. be found because the defendant intended a robbery-murder special inappropriate stated that circumstance is It robbery to kill “when the defendant’s intent is to steal but object . . . or incidental to murder because its sole is to facilitate merely the 61, at add the 27 Cal.3d italics primary (Green, p. conceal crime.” supra, facts, in In its the in its the court ed.) stating holding, rule to applying Attorney in that case: quoted Green the concession of the General expressly “ robbery that the was prime ‘It is true this murder was crime murder, robbery to that since the motive the was underlying incidental for Karen’s could to leave bereft of whatsoever which she corpse anything stated, as a be identified.’ For the reasons we hold this evidence insufficient robbery of law to the truth of jury’s special matter the the support finding (Id. 62.) circumstance in I.” alleged count at p. Green, after in

Shortly four members of this court People Thompson relying 27 Cal.3d 303 611 P.2d (Thompson), 883] Green, “A authority holding: misread Green as no other than completely murder is not a the of the statute during robbery meaning committed within in unless the accused has ‘killed cold blood in order advance an indepen added, . . . .’” italics omitted. (Italics original dent felonious purpose did correctly 27 Cal.3d at state Thompson, supra, p. 322.) Thompson . . . the intent to perpetrator’s “the issue under Green is whether or not ‘merely to his to kill” supra, steal was incidental’ intent (Thompson, express provision The Green court this statement reliance on in the made 190.2, (former felony-murder (c)(6)) penalty special death act subd. circumstances § “willful, only premeditated.” (Green, su could be made when the murder was deliberate and, pra, p. 61.) requirement Cal.3d was in the 1978 death in the That deleted act killer, felony-murder longer prerequisite special-circumstance case of an actual a to a is no finding. (People 1138-1147 Anderson 1306].) therefore holding in Green and 323), but it misstated p. be overruled. Accordingly, the Green rule. it should incorrectly applied merely case to facilitate majority finds the arson this was not Since the murder, As I incorrectly required. it holds that a Green instruction was law, was, discuss, not agree I do not that the arson here as a matter post, However, I do murder. appear, to facilitate the as will committed the mur- felony was to facilitate the fact the committed underlying believe felony-murder “incidental” or a underlying felony precludes der renders the finding. special-circumstance clearly murder concluding its facts the Green decision was correct in

On robbery, a if indeed robbery proved. only in the course of had not been robbery, was victim to disrobe and ordering there the defendant’s was in his a secluded area her clothes vehicle before her to placing transporting killed her. It was from the evidence where he sodomized and clear raped, “robbery” argument purpose and the prosecution i.e., victim, The Green to hinder identification of the to conceal the murder. robbery correctly these facts that had been a court concluded on there quite of a than a commission of a in the commission murder rather murder Cal. 3d at robbery. (27 62.) pp. robbery during the Green an defining court “incidental”

Although object murder stated it could be one the sole “is to which facilitate added), (Green, crime” Cal. 3d at italics primary supra, p. conceal facilitating actually the the crime was not before the Green court question “facilitating with the its the robbery, in connection so statement about binding. crime” should the Green primary Significantly, not be considered did not the “facilitation” to invalidate the apply kidnap-murder court rule Clearly, jury the Green had returned. the special-circumstance finding also death-eligi of the to facilitate the and if a kidnapping was murder purpose if may not be a its bility felony special finding the basis of circumstance murder, easy facilitate that would been an and was to the have purpose the finding obvious answer to in kidnap-murder special-circumstance court, however, of the necessary sufficiency Green. The felt it to discuss the and con kidnapping length evidence of considerable great complexity, ultimately the evidence was insufficient in view of instructional cluding 62-73.) (Id. error. at pp. event, I do not rise felony give

In that a cannot agree death-eligibility merely circumstance because it to facili- finding to a committed special was First, a as felony accurately tate the murder. such cannot be characterized only the the was “incidental” to murder the sense in Green robbery because it was periph- “incidental” robbery was The Green “incidental.”5 towas murder; its purpose the nothing to do with had little or eral—it statutorily one of the victim. When of the delay or identification conceal the murder or make facilitate the is committed to felonies enumerated invariably murder and do with the everything it has murder possible, in the will- and greater culpability a scheme predetermined demonstrates carry that scheme. out multiple to commit felonies ingness “facili- Second, felony which statutory death-eligibility the rule that a leads finding circumstance special cannot rise to give tates” the murder nonsensical, would case at bench it absurd results. In the incomprehensibly intent to the express if committed the arson with mean that the defendant one, house, arson- killing no the of the and succeeded kill all occupants and the defendant could be finding upheld murder special-circumstance the without if he arson not be death committed eligible, would whereas accidentally inadvertently intending anyone to kill but an occupant fire, in the circumstance would be special proper killed an arson-murder relation- the be The eligible. culpability-penalty defendant would death thus is turned down.6 ship upside the by considering

The is made vivid point equally burglary-murder intent If the the with the burglary circumstance. defendant commits special accidentally kills to steal the resident at home personal property, finds resident in ensuing burglary-murder special-circumstance the an struggle, If is finding eligible. burglary and the defendant is death appropriate resident, kill the no entry based on defendant’s intent to be because burglary circumstance can burglary-murder special upheld eligible. facilitated murder and defendant is not death testimony he the arson majority concludes from defendant’s intended David only to force the so he could shoot occupants out house Gawronski, an inde- Gawronski Ava that defendant had presence ” felonious that no “Green instruction7 was pendent purpose required. felony 5Perhaps 6Contrary Green-type underlying “peripheral.” a more useful term for would be conc, Broussard, J., (see suggestion opn. to dis. the of Justice Broussard and 643, unintentional, 1), eligibility p. legislative fn. killers prescription at the of death actual absurd, kill in the of certain felonies is itself irrational or un who course enumerated not Anderson, 1104, constitutionally arbitrary. (See People 1138-1147.) supra, v. The unintentional, actual, felony-murder though application special to killers is circumstances legislative culpability disregard. Accepting a the courts are not free to assessment which must, determining premise, given eligibility as at principle we issue in death felony- culpability, fictions is a determination of individual the use of court-created to render special inapplicable engaging in murder circumstances to intentional killers otherwise the legisla absurdity usurpation conduct as an same an unintentional killer is both power. tive appropriate Thompson 7It would be far more call the “Green” the instruc to instruction Green, (See Thompson's misreading ante.) tion. discussion of 656

However, intended testimony establish that the arson was that same would Gawronski, and as facilitate the murder of David to that the arson the I cannot with its conclusion analyzed by majority agree was, law, the murder. In the matter of not intended to “facilitate” as a case, kill the necessary it to into the residence to get burglary-murder believed, here, was to drive victim; the arson’s if defendant is to be purpose, house so could be killed. What is the difference? the victim out of the he The the “facilitation” rule is It is based on wrong. answer is that accepted misunderstood dictum in Green and has been improvidently The decision in this case should little or discussion later cases. reasoning an end to this mischievous misunderstanding. put

VII. I to extend the Ireland8 -Wilson9-Sears10 agree majority’s with the refusal ante, 609, fn. (maj. fiction law “merger” special opn., p. circumstance I but not with the reason for its refusal. The reasons would 15) given First, are two-fold. extension of the fiction to “merger” extend fiction felony-murder very law would same non- special-circumstance produce sensical, absurd results the “facilitation” rule found in the produced (See, Green dictum and Green's v. Farmer e.g., People (1989) progeny. 888, 508, v. 940]; Cal.3d 765 P.2d Garrison Cal.Rptr. discus- 419].) (See Cal.3d sion, ante.)

Second, even if Ireland of fiction was adoption “merger” felony-murder the context of the court-created second appropriate degree rule, statutorily and even if the extension of the fiction to merger prescribed Wilson, doubt, I first murder was which its further degree appropriate wholly be special improvident. extension to circumstance law would 190.2, felony-murder enumerated in section subdivi- special circumstances (a)(17) during sion constitute a determination that a legislative killing sufficiently commission of one of the enumerated felonies is culpable killing render the actual killer death whether the was intentional eligible Anderson, Ab- 1138-1147.) unintentional. (People supra, sent are fictions to unconstitutionality liberty apply legal courts not at indeed, I circumvent assessments of as have legislative culpability shown, the result of disallowing statutorily prescribed special-circum- felony stance when the was a means of finding underlying facilitating 8People 70 Cal.2d 522 40 A.L.R.3d Ireland P.2d 1323], 9People v. Wilson 1 Cal.3d 431 462 P.2d 22]. 10People 847], v. Sears 2 Cal.3d 180 head, on its relationship culpability-penalty murder stands legislative less and the penalty for the death making ineligible the more culpable fiction to “merger” eligible. If this court were extend culpable death its collective question irrational it would not put achieve this result the constitution- rationality and thus but also judgment put question death law. ality felony-murder state’s portion VIII. entirety. in its

I conclude the should be affirmed judgment and the for a was denied June Appellant’s petition rehearing was modified to read as above. opinion printed

Case Details

Case Name: People v. Clark

Court Name: California Supreme Court

Date Published: Apr 5, 1990

Citation: 789 P.2d 127

Docket Number: S004662. Crim. 24342

Court Abbreviation: Cal.