Filed 5/31/17 (Posted 6/19/17 due to inadvertent omission)




       IN THE SUPREME COURT OF CALIFORNIA


THE PEOPLE,                          )
                                     )
           Plaintiff and Respondent, )
                                     )                              S099274
           v.                        )
                                     )
DONALD LEWIS BROOKS,                 )
                                     )                         Los Angeles County
           Defendant and Appellant.  )                       Super. Ct. No. PA032918
____________________________________)


         ORDER MODIFYING OPINION AND DENYING REHEARING


         THE COURT:
         It is ordered that the opinion filed herein on March 20, 2017, and reported
in the Official Reports (2 Cal.5th 674), be modified as follows:


         1. The last sentence of the first paragraph on page 688, which states “For
the reasons that follow, we affirm the judgment,” is modified so that the sentence
reads:

         For the reasons that follow, we vacate the jury‟s finding that the murder
         was committed while defendant was engaged in the commission of
         kidnapping, but affirm the judgment in all other respects, including the
         sentence of death.



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      2. On page 788, after the third full paragraph, add the following new
subpart:

             E.     Petition for Rehearing

              In a petition for rehearing filed after we issued our opinion in this
      matter, defendant raised a single claim asserting, for the first time, that the
      true finding on the kidnapping-murder special-circumstance allegation must
      be reversed because the trial court failed to instruct the jury that it could
      find the allegation true only if it found defendant had committed the
      kidnapping for an independent felonious purpose.

                Ordinarily, this court will not consider an issue raised for the first
      time in a petition for rehearing. (Conservatorship of Susan T. (1994)
      8 Cal.4th 1005, 1013; County of Imperial v. McDougal (1977) 19 Cal.3d
      505, 513.) As the Attorney General acknowledges, however, we have
      departed from our usual practice in some circumstances, particularly when
      the untimely claim arises in a case involving the death penalty. (See, e.g.,
      People v. Malone (1928) 205 Cal. 29, 32-33; People v. Champion (1924)
      193 Cal. 441, 450.) For example, in People v. Easley (1983) 34 Cal.3d
      858, this court filed an initial opinion in a capital case affirming the
      judgment in its entirety. Before that opinion was final, however, we
      received an amicus curiae brief presenting issues that had not been raised
      by the parties or discussed in the opinion. We granted rehearing to consider
      the new issues. In our ensuing opinion, we explained that we took that
      unusual step because section 1239, subdivision (b) imposes on the court a
      duty “ „to make an examination of the complete record of the proceedings
      . . . to the end that it be ascertained whether defendant was given a fair
      trial.” ‟ ” (Easley, at p. 863.) In the circumstances presented here, in which
      a capital defendant has presented a meritorious claim that can be resolved
      solely on the basis of the appellate record, we find it appropriate to consider
      the new claim of instructional error raised in defendant‟s petition for
      rehearing. For the reasons that follow, we conclude that the trial court
      prejudicially erred by failing to instruct on the independent felonious
      purpose rule in connection with the kidnapping-murder special-
      circumstance allegation, and that the jury‟s true finding on that allegation
      must be vacated.

             As previously explained in this opinion (ante, at pp. 734-735), at the
      time of defendant‟s crimes in March 1999, a felony-murder special
      circumstance could apply only when it was shown “that the defendant had


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an independent purpose for the commission of the felony, that is, the
commission of the felony was not merely incidental to an intended
murder.” (People v. Mendoza, supra, 24 Cal.4th at p. 182; People v.
Green, supra, 27 Cal.3d at p. 61.) With regard to a kidnapping-murder
special-circumstance allegation specifically, a defendant had to have a
“purpose for the kidnapping apart from murder.” (People v. Raley, supra,
2 Cal.4th at p. 902; accord People v. Brents, supra, 53 Cal.4th at p. 609.)

        The court in this case instructed the jury that to find true the
kidnapping-murder special-circumstance allegation, the prosecution must
prove that “1. The murder was committed while the defendant was
engaged in the commission or attempted commission of kidnapping in
violation of section 207; and [¶] 2. The defendant had the specific intent to
kill.” (See CALJIC No. 8.81.17.1 (July 1999).) Neither party requested,
and the court did not give, further instruction informing the jury that the
allegation could not be found true if the kidnapping was merely incidental
to the commission of murder.13

        This court has recognized that the independent felonious purpose
rule is not an element of the special circumstance, on which a court must
instruct in every case in which a felony murder special circumstance has

13      The instructional omission appears attributable to an error in the Use
Note for the version of the standard instruction regarding the kidnapping-
murder special circumstance that was given in this case. The 1999 version
of CALJIC No. 8.81.17.1, which had been newly added to CALJIC at the
time, made no reference to the independent felonious purpose rule. The
Use Note stated, “This new instruction is based upon Penal Code section
190.2, subdivision (a)(17)(M) adopted in 1998. It would be applicable to
crimes committed on or after January 1, 1999.” The Comment to the
instruction likewise indicated, “Pen. Code, § 190.2, subd. (a)(17)(M). This
special circumstance can only be used for crimes committed on or after
January 1, 1999.” The information accompanying the 1999 version of
CALJIC No. 8.81.17.1 was erroneous because the effective date of section
190.2, subdivision (a)(17)(M), which eliminated the independent felonious
purpose requirement for the kidnapping-murder and arson-murder special
circumstances, was March 8, 2000. The CALJIC Committee corrected the
error in a Use Note for the instruction that appeared in the July 2000
edition. But the error in the 1999 version presumably led the court and the
parties to believe that because defendant‟s crimes occurred in March 1999,
the requirement of an independent felonious purpose did not apply.



                                   3
been alleged. (People v. Kimble (1988) 44 Cal.3d 480, 501.) The rule
“merely clarifies the scope of the requirement that the murder must have
taken place „during the commission‟ of a felony.” (People v. Harris, supra,
43 Cal.4th at p. 1299; Kimble, at p. 501.) From this we have concluded that
a trial court has no duty to instruct on the independent felonious purpose
rule “unless the evidence supports an inference that the defendant might
have intended to murder the victim without having an independent intent to
commit the specified felony.” (People v. Monterroso (2004) 34 Cal.4th
743, 767; accord People v. D’Arcy (2010) 48 Cal.4th 257, 297; Kimble, at
p. 503.) Put in affirmative terms, a court has a duty to instruct the jury, on
its own motion, that the felony cannot have been merely incidental to the
murder when there is evidence from which the jury could have inferred that
the defendant did not have an independent felonious purpose for
committing the felony. (People v. Riccardi (2012) 54 Cal.4th 758, 838.)
Although the requirement of an independent felonious purpose is not an
element of the felony-murder special circumstance (Kimble, at p. 501), we
believe the legal principle is not one with which jurors would be familiar in
the absence of an instruction. (See People v. Diaz, supra, 60 Cal.4th at p.
1191 [instructions that convey “rules of which the jurors would not be
aware without [such] instruction” implicate the court‟s duty to instruct on
its own motion].)

        We conclude that the court in this case had a duty to instruct on the
independent felonious purpose rule because there was evidence from which
the jury could have inferred that defendant placed Kerr in the back of her
car and drove off for the sole purpose of killing her. Significantly, there
was evidence suggesting that defendant killed Kerr by setting her and her
car on fire, without ever having moved her from the position in the car in
which defendant had originally placed her, or done anything else to her.
That defendant kidnapped Kerr by placing her in her car and then killed her
in that vehicle raised a reasonable inference that his sole purpose in placing
her in the car and driving off was to transport her to the location where he
would set the fatal fire. The evidence showed furthermore that defendant
had stated to his plumbing assistant shortly before the murder that he
wanted to get Kerr “off his mind” by blowing up her car or setting it on
fire. This evidence likewise created an inference that defendant kidnapped
Kerr solely to carry out that plan, and that his act of setting her car on fire
was not an afterthought following the kidnapping.

       The Attorney General argues that the court had no sua sponte duty to
instruct on the independent felonious purpose requirement because there
was no evidence suggesting defendant intended to murder Kerr without an
independent intent to commit kidnapping. He points out, for example, that


                                   4
evidence defendant placed Kerr in the backseat, instead of in the trunk
concealed from view, was consistent with an independent intent to kidnap
her in that it showed defendant knew Kerr was alive, and had not merely
put her corpse in the car to dispose of the body. The inference drawn by
the Attorney General is reasonable, as far as it goes. But he does not
explain why the evidence at trial was not also susceptible of the inference
that defendant kidnapped Kerr for the sole purpose of killing her, as
described above.

        For a similar reason, we are not persuaded by the Attorney General‟s
recitation of the evidence on which we relied to reject defendant‟s
challenge to the sufficiency of the evidence supporting the kidnapping-
murder special-circumstance finding. Under the applicable standard for
assessing a challenge to the sufficiency of the evidence supporting a verdict
or finding, we concluded that the record discloses “substantial evidence
from which a jury could reasonably infer that defendant had not yet decided
Kerr‟s fate after incapacitating her and moving her into the back of her own
car,” (ante, at p. 735) from which it could be further inferred that defendant
did not kidnap Kerr for the sole purpose of killing her. But our analysis did
not suggest that this was the only inference that could be drawn from the
evidence presented at trial. The question whether the court had a duty to
instruct on the independent felonious purpose rule in this case asks whether
there was evidence that could have led the jury to infer that defendant
kidnapped Kerr solely for the purpose of killing her. We conclude such
evidence was presented, and that the court should have instructed
accordingly.

         Here, when instructing on the kidnapping-murder special-
circumstance allegation, the court failed to inform the jury about the
independent felonious purpose rule, and nothing in the instructions as a
whole, or the argument of counsel, would have conveyed that requirement
to the jurors. Indeed, the prosecutor argued to the jury that if it found
defendant committed a first degree murder that occurred during the course
of a kidnapping, it could find true the special-circumstance allegation.
Under these circumstances, the jury had no reason to believe that the
purpose of the kidnapping was significant to its determination whether “the
murder was committed while the defendant was engaged in the commission
. . . of kidnapping.” (CALJIC No. 8.81.17.1.) We conclude that the court
erred by failing to instruct the jury on its own motion that, for purposes of
the kidnapping-murder special-circumstance allegation in the case, it must
be proved that the kidnapping was not incidental to the murder.




                                  5
              The court‟s error in failing to instruct on the independent felonious
      purpose rule is prejudicial unless we conclude beyond a reasonable doubt
      that the error did not affect the jury‟s true finding on the kidnapping-murder
      special-circumstance allegation. (People v. Riccardi, supra, 54 Cal.4th at
      pp. 838-839.) We cannot confidently draw that conclusion on this record.
      As described above, the evidence at trial raised a reasonable inference that
      defendant placed Kerr in her car and drove off for the sole purpose of
      killing her. Although there was substantial evidence from which a jury
      could reasonably infer to the contrary, that defendant did not kidnap Kerr
      for the sole purpose of killing her, the evidence did not establish this
      inference “ „so overwhelmingly‟ ” that it can be said the jurors “ „could not
      have had a reasonable doubt on the matter.‟ ” (Id. at p. 839.) The jury‟s
      true finding on the kidnapping-murder special-circumstance allegation must
      be vacated.

             Defendant argues that the court‟s error also requires reversal of the
      death judgment. We disagree. Although the kidnapping-murder special-
      circumstance finding must be vacated, there still remains a valid torture-
      murder special-circumstance finding. In addition, when making its penalty
      determination, the jury could properly consider the facts underlying the
      kidnapping-murder special-circumstance finding as “circumstances of the
      crime” under section 190.3, factor (a). (Brown v. Sanders (2006) 546 U.S.
      212, 220 [the invalidating of a special circumstance finding sentencing
      factor does not render the death sentence unconstitutional if one of the other
      sentencing factors enables the sentencer to give aggravating weight to the
      same facts and circumstances]; cf. People v. Bonilla (2007) 41 Cal.4th 313,
      334 [observing that a second special circumstance “was superfluous for
      purposes of death eligibility and did not alter the universe of facts and
      circumstances to which the jury could accord aggravating weight”].)
      Reversal of the death sentence is not required.


      3. On page 788, after having added new subpart E., revise the sentence in
the Conclusion from “The judgment is affirmed in its entirety” to the following:


              The kidnapping-murder special-circumstance finding is vacated. In
      all other respects, including the sentence of death, the judgment is affirmed.

             These modifications change the judgment.

             Defendant‟s petition for rehearing is denied.


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       4. On page 790, in Justice Liu‟s concurring and dissenting opinion, the
second full paragraph, beginning with “Further, the jury here was never
instructed” is modified to read as follows:

               Further, the jury here was never instructed that in order to find the
       special circumstance to be true, it must first determine that Brooks had an
       independent felonious purpose to commit the kidnapping. To be sure,
       Brooks‟s sufficiency claim requires us to consider only whether a
       reasonable jury could find the special circumstance true beyond a
       reasonable doubt. Nevertheless, in this case we cannot even say this jury
       found that Brooks had an independent felonious purpose for the
       kidnapping, depriving us of the positive inference that is usually implicit
       when considering a sufficiency challenge to a jury verdict. (Brooks raised
       this instructional error in his petition for rehearing, and I agree with the
       court‟s decision to vacate the kidnapping-murder special circumstance on
       that basis.)


       5. The paragraph commencing at the bottom of page 790 with “The
sufficiency standard” and ending on page 791 with “the court‟s opinion” is
modified to read as follows:

              The sufficiency standard is deferential but not toothless. Based on
       the evidence here, I do not see how a reasonable jury could find beyond a
       reasonable doubt that Brooks had an independent felonious purpose for the
       kidnapping. Today‟s opinion reaches a contrary conclusion by relying on
       characterizations of the evidence not urged by either the prosecution at trial
       or the Attorney General on appeal. I therefore respectfully dissent from the
       court‟s conclusion that sufficient evidence supports the kidnapping-murder
       special-circumstance finding. In all other respects, I join the court‟s
       opinion.




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