                    FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

WILLIAM CLARK,                            
               Petitioner-Appellant,            No. 02-99007
                 v.
                                                 D.C. No.
                                              CV-95-00334-DOC
JILL BROWN, Warden, California
State Prison at San Quentin,*                    OPINION
              Respondent-Appellee.
                                          
         Appeal from the United States District Court
            for the Central District of California
          David O. Carter, District Judge, Presiding

                   Argued and Submitted
        February 17, 2005—San Francisco, California

                      Filed March 17, 2006

    Before: Dorothy W. Nelson, William A. Fletcher, and
             Raymond C. Fisher, Circuit Judges.

            Opinion by Judge William A. Fletcher




 *Jill Brown is substituted for Jeanne S. Woodford, her predecessor as
Warden of San Quentin State Prison. See Fed. R. App. P. 43(c)(2).

                                2775
                      CLARK v. BROWN                    2779


                        COUNSEL

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

Bill Lockyer, Robert R. Anderson, Pamela C. Hamanaka,
Keith H. Borjon and Scott A. Taryle, Office of the California
Attorney General, Los Angeles, California, for the
respondent-appellee.
2780                    CLARK v. BROWN
                             OPINION

W. FLETCHER, Circuit Judge:

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

                        I.   Background

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

  Clark surrendered to authorities and confessed the next day.
He contended that his plan had been to set the fires in order
                       CLARK v. BROWN                     2781
to drive the family out of the house, and then to kill David
Gawronski with a shotgun in front of Ava once the family
was outside. Ava Gawronski had been Clark’s therapist. A
short time before the fires, she had discontinued Clark’s coun-
seling sessions against his wishes. Clark’s stated purpose was
to cause her to suffer the same emotional pain that he claimed
to have suffered when she discontinued his therapy.

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

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

   By contrast, the prosecution theory of the case was that
Clark intended to kill the entire family in the house by means
of the fires. The prosecution presented evidence at trial that
Clark first set a fire in the dining room, thereby trapping
David and Ava Gawronski in their bedroom, and then set fire
to their bedroom.

   Clark’s defense counsel Charles English requested the
then-standard jury instruction on the felony-murder special
circumstance, California Jury Instruction (CALJIC) 8.81.17.
This instruction contained language based on the California
Supreme Court’s decision in People v. Green, 27 Cal. 3d 1
(1980). Green and CALJIC 8.81.17 provided a narrowing
construction of California’s felony-murder special circum-
stance statute. Under Green, the State had to show that the
2782                        CLARK v. BROWN
murder was “committed in order to carry out or advance the
commission of the crime” of arson, “or to facilitate the escape
therefrom or to avoid detection” of the arson. It was not
enough to show that the arson was “merely incidental” to the
murder.

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

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

   On automatic appeal, the California Supreme Court struck
the explosives special circumstance. People v. Clark, 50 Cal.
3d 583, 638-39 (1990). It affirmed Clark’s conviction for the
felony-murder circumstance, but only after substantially rein-
terpreting its earlier decision in Green. Id. at 606-09. It then
affirmed Clark’s death sentence. Id. at 638-39. The United
  1
   Clark was also convicted of the unrelated charge of rape of his ex-wife.
The rape conviction is not relevant to this appeal.
                        CLARK v. BROWN                       2783
States Supreme Court denied Clark’s petition for certiorari.
Clark v. California, 498 U.S. 973 (1990). The California
Supreme Court dismissed Clark’s first habeas petition for fail-
ure to state a claim and denied Clark’s second habeas petition
on procedural grounds. In re Clark, 5 Cal. 4th 750, 761, 799
(1993).

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

   We review de novo the district court’s decision to grant or
deny a 28 U.S.C. § 2254 habeas petition. Douglas v. Wood-
ford, 316 F.3d 1079, 1085 (9th Cir. 2003). Because Clark
filed his habeas petition before the effective date of the Anti-
terrorism and Effective Death Penalty Act of 1996
(“AEDPA”) of April 24, 1996, pre-AEDPA law applies. See
Woodford v. Garceau, 538 U.S. 202, 207 (2003). Under pre-
AEDPA law, the state court’s findings of fact are “entitled to
a presumption of correctness unless they are ‘not fairly sup-
ported by the record.’ ” Silva v. Woodford, 279 F.3d 825, 835
(9th Cir. 2002) (quoting former 28 U.S.C. § 2254(d)(8)). We
review questions of law de novo. Gratzer v. Mahoney, 397
F.3d 686, 690 (9th Cir. 2005). In pre-AEDPA cases, we also
review de novo the state court’s conclusion that a constitu-
tional error was harmless. Ghent v. Woodford, 279 F.3d 1121,
1126 (9th Cir. 2002).

                         II.   Analysis

   Because the California Supreme Court struck the explo-
sives special circumstance, the felony-murder special circum-
stance is all that makes Clark death-eligible. If the jury’s
2784                    CLARK v. BROWN
guilty verdict on the felony-murder special circumstance is
reversed, the death penalty must also be reversed.

   Clark contends that the felony-murder special circumstance
must be reversed for two interrelated reasons. First, he con-
tends that the trial court’s failure to give his requested jury
instruction under Green violated due process under California
v. Trombetta, 467 U.S. 479, 485 (1984), by unfairly depriving
him of “a meaningful opportunity to present a complete
defense.” Second, he argues that the California Supreme
Court’s expansion of Green and reinterpretation of the felony-
murder special circumstance statute was an unforeseeable
new interpretation of California law, and that the retroactive
application of this new interpretation on appeal violated due
process under Bouie v. City of Columbia, 378 U.S. 347, 362
(1964). We agree with both of Clark’s contentions. Because
we reverse the felony-murder special circumstance, we do not
reach other issues raised by Clark, including his competence
to waive counsel and represent himself during his second pen-
alty trial.

          A. Failure to Give the Green Instruction

   [1] The fact that a jury instruction violates state law is not,
by itself, a basis for federal habeas corpus relief. “[F]ederal
habeas corpus relief does not lie for errors of state law.” Lewis
v. Jeffers, 497 U.S. 764, 780 (1990). “Federal habeas courts
therefore do not grant relief, as might a state appellate court,
simply because the instruction may have been deficient in
comparison to the CALJIC model.” Estelle v. McGuire, 502
U.S. 62, 72 (1991). On federal habeas, the issue is “whether
the ailing instruction by itself so infected the entire trial that
the resulting conviction violates due process.” Id. (quoting
Cupp v. Naughten, 414 U.S. 141, 147 (1973)). The burden on
the habeas petitioner is “especially heavy” where, as here, the
alleged error involves the failure to give an instruction. Hen-
dricks v. Vasquez, 974 F.2d 1099, 1106 (9th Cir. 1992) (as
                          CLARK v. BROWN                         2785
amended) (quoting Henderson v. Kibbe, 431 U.S. 145, 155
(1997).

   [2] Due process requires that criminal prosecutions “com-
port with prevailing notions of fundamental fairness” and that
“criminal defendants be afforded a meaningful opportunity to
present a complete defense.” Trombetta, 467 U.S. at 485.
When habeas is sought under 28 U.S.C. § 2254, “[f]ailure to
instruct on the defense theory of the case is reversible error
if the theory is legally sound and evidence in the case makes
it applicable.” Beardslee v. Woodford, 358 F.3d 560, 577 (9th
Cir. 2004) (as amended); see also Bradley v. Duncan, 315
F.3d 1091, 1098 (9th Cir. 2002) (“[T]he right to present a
defense would be empty if it did not entail the further right to
an instruction that allowed the jury to consider the defense.”)
(internal quotation marks omitted); Conde v. Henry, 198 F.3d
734, 739 (9th Cir. 2000) (as amended) (“It is well established
that a criminal defendant is entitled to adequate instructions
on the defense theory of the case.”). A habeas petitioner must
show that the alleged instructional error “had substantial and
injurious effect or influence in determining the jury’s ver-
dict.” Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (cita-
tion omitted); see also Beardslee, 358 F.3d at 578.

   [3] Clark was charged with the felony-murder (arson) spe-
cial circumstance under former California Penal Code
§ 190.2(a)(17). This special circumstance provided for the
death penalty or life imprisonment without the possibility of
parole if “[t]he murder was committed while the defendant
was engaged in or was an accomplice in the commission of,
attempted commission of, or the immediate flight after com-
mitting or attempting to commit the following felonies: . . .
(viii) Arson in violation of Section 447.” Cal. Penal Code
§ 190.2(a)(17)(viii) (amended 1995).2 In People v. Green, 27
  2
   Both People v. Green, 27 Cal. 3d 1 (1980), and People v. Thompson,
27 Cal. 3d 303 (1980), construe an earlier version of the felony-murder
special circumstance that required the murder to have been “committed
2786                        CLARK v. BROWN
Cal. 3d 1, 61 (1980), the California Supreme Court narrowed
the felony-murder special circumstance statute in order to
comply with the requirement of Furman v. Georgia, 408 U.S.
238 (1972), and Gregg v. Georgia, 428 U.S. 153 (1976), that
“each special circumstance provide a rational basis for distin-
guishing between those murderers who deserve to be consid-
ered for the death penalty and those who do not.” See also
Williams v. Calderon, 52 F.3d 1465, 1476 (9th Cir. 1995)
(explaining that Green’s narrowing construction was added
“out of constitutional necessity, not mere state law nicety,”
for the special circumstance would otherwise “run afoul of the
requirements” of Furman and Gregg).

   [4] In Green, the California Supreme Court wrote that the
felony-murder special circumstance statute “expressed a legis-
lative belief that it was not unconstitutionally arbitrary to
expose to the death penalty those defendants who killed in
cold blood in order to advance an independent felonious pur-
pose[.]” 27 Cal. 3d at 61 (emphasis added). The California
Supreme Court explained that there is no “independent feloni-
ous purpose” within the meaning of the statute when the fel-
ony is “incidental” to the murder. Id. Green held that a felony
whose “sole object is to facilitate or conceal the primary
crime” of murder is “incidental,” and therefore does not qual-
ify a defendant for the death penalty under the special circum-
stance statute. Id. (emphasis added).

during the commission or attempted commission” of five enumerated
crimes. Cal. Penal Code § 190.2(c)(3) (1977) (emphasis added). By the
time of Clark’s trial, the statute had been amended to provide that the spe-
cial circumstance exists if “[t]he murder was committed while the defen-
dant was engaged in or was an accomplice in the commission of,
attempted commission of, or the immediate flight after committing or
attempting to commit” nine enumerated felonies. Cal. Penal Code
§ 190.2(a)(17)(viii) (amended 1995) (emphasis added). California case
law does not draw a substantive distinction between “during the commis-
sion” and “engaged in the commission of,” and we treat them as having
an identical meaning for purposes of this case.
                        CLARK v. BROWN                       2787
   In Green itself, a husband killed his wife and subsequently
took her clothes, rings and purse in order to conceal her iden-
tity. Id. at 62. The California Supreme Court held that this
felonious robbery of the wife’s belongings was insufficient to
support a felony-murder special circumstance conviction
because Green did not commit the robbery for a reason inde-
pendent of the murder, and then commit the murder to
advance the purpose of committing the robbery. Rather,
Green committed the robbery in order to facilitate or conceal
the murder. In other words, the robbery was “incidental” to
the murder. The California Supreme Court summarized its
rationale in Green: The felony-murder special circumstance
had not been proved because the crime “was not in fact a mur-
der in the commission of a robbery but the exact opposite, a
robbery in the commission of a murder.” Id. at 60.

   Clark took the stand at trial. He testified that he had set the
fires as a means to the end of killing David Gawronski in
front of Ava Gawronski, and that he had no intention of kill-
ing anyone else. Clark testified that his purpose when he
arrived at the house was to set two fires, one at the back of
the house and one in the dining room area, in order to force
the family out the front door. He testified that he first threw
a bucket of gasoline into what he thought was a back room of
the house. When he heard screaming from the room, he real-
ized it was in fact David and Ava Gawronski’s bedroom.
Even though his plan had now gone awry, he threw a flare
into the bedroom to ignite the gasoline. He testified that he
then went to the patio at the side of the house and threw a sec-
ond bucket of gasoline into the dining room, either through a
pane of glass or through a glass door. He then threw a second
flare into the house, igniting the gasoline in the dining room.

   Clark testified that when he threw the flare into the bed-
room, “I knew that they were in there; and it was apparent to
me that I was not going to — well, I’d realized at that point
that I was not going to do what I’d set out to do specifically.
I guess if I had a plan at that point, my plan was simply to
2788                   CLARK v. BROWN
carry out whatever other steps I had already preplanned and
that was it. It wasn’t working. I couldn’t take it back. I
couldn’t change it. So I simply played out what I had left.”
Clark testified that he then realized that his plan “was no lon-
ger operable” because David Gawronski “wasn’t going to
come out the front door.” Clark returned to his car, put his
shotgun in the trunk, and drove away.

   On direct examination, defense counsel English asked
Clark, “Was the fire incidental to your intent to murder David
Gawronski?” The prosecutor objected. The trial court sus-
tained the objection because in its view, the question called
for a “self-serving” answer regarding Clark’s intent, which
the court three times stated was “an ultimate fact” to be
decided by the jury. The court emphasized that this ultimate
fact was “to be decided by the jury based on the totality of the
evidence; whether or not his conduct was in fact primary or
incidental.”

   After the court’s ruling on the objection, English continued
his direct examination:

    Q: What was your primary goal in going to the
    [Gawronski house] that evening?

    A:   To shoot David in front of Ava.

    Q: And in relation to that primary objective, what
    relationship did the fire have?

    A: The fire was a tactic to achieve an overall stra-
    tegic goal, if you want to use those terms. It was a
    means to an end.

These questions (and answers) were designed to show that
Clark had no independent felonious intent within the meaning
of Green because the arson was incidental to his primary
intent to kill David Gawronski. That is, the arson was “inci-
                        CLARK v. BROWN                        2789
dental” because it was intended to “facilitate” the crime of
murder. See Green, 27 Cal. 3d at 61.

   In support of his theory that Clark intended to kill the entire
Gawronski family in the house by means of the fires, the pros-
ecutor sought to prove that Clark trapped David and Ava
Gawronski in the bedroom by first setting fire to the dining
room rather than the bedroom. Ava Gawronski testified to
intense heat emanating from the dining room before there was
a fire in the bedroom. Thomas Derby, a Los Angeles Fire
Department expert, testified that the fire in the dining room
was started first, and that, based on burn patterns and the
upright position of a bucket inside the dining room, gasoline
was distributed in the house by someone who had been inside
the house. Carl Rasmusson, another Los Angeles Fire Depart-
ment expert, also testified that the evidence tended to show
that the dining room fire was started first, and that someone
had been inside the house to set that fire.

   At the close of Clark’s trial, defense counsel English
requested a jury instruction based on CALJIC 8.81.17. The
second paragraph of the instruction had been added in light of
the Green decision. The entire requested instruction read as
follows:

       To find that the special circumstance, referred to
    in these instructions as murder in the commission of
    an arson is true, it must be proved:

       1. That the murder was committed while the
    defendant was engaged in the commission of an
    arson; and,

       2. That the murder was committed in order to
    carry out or advance the commission of the crime of
    arson or to facilitate the escape therefrom or to avoid
    detection. In other words, the special circumstance
    referred to in these instructions is not established if
2790                   CLARK v. BROWN
    the arson was merely incidental to the commission of
    the murder.

   The prosecutor argued that paragraph 2, the Green-based
instruction, was inappropriate “simply because the arson was
not incidental.” The trial court agreed with the prosecutor.
Reasoning that the Green instruction would be “confusing to
the jury,” the court declined to define “incidental” and gave
the CALJIC instruction without paragraph 2.

   English protested the trial court’s ruling, arguing that the
failure to give the Green instruction would critically under-
mine the defense theory of the case. He said:

    This case has been tried from day one about a Green
    instruction. We have talked about Green. There was
    an enormous amount of questioning about the intent
    and how the intent was to be done and what the
    arson had. [sic] We had days of testimony about that.
    And for the Court at this point to say there is not suf-
    ficient evidence to even let the jury consider it I sub-
    mit is completely erroneous . . . .

The transcript bears out English’s statement that Clark’s
defense had depended from the beginning on securing a
Green instruction. In his opening argument, English conceded
guilt on everything except the attempted murder and special
circumstances charges. English told the jury that “[t]he ques-
tion that you are really going to have to decide and that will
cause you the most time and the most effort, and the defense
will put most of their emphasis on, is the question of whether
the special circumstances apply.” He further explained that, in
the context of the felony-murder special circumstance, the
words “engaged in the commission of an arson” have “spe-
cific and limited application and the Court, of course, will be
instructing you on those.”

  The jury returned a verdict finding Clark guilty of first-
degree murder of David Gawronski, attempted second-degree
                       CLARK v. BROWN                        2791
murders of Ava and Sara Gawronski, and arson. It also found
Clark guilty of the felony-murder special circumstance.

   On automatic appeal, the California Supreme Court sub-
stantially reinterpreted Green, as we describe more fully
below. Under the Court’s new interpretation of Green, Clark
was not guilty of the felony-murder special circumstance if he
intended to kill David Gawronski by committing arson to kill
him inside the house. But Clark was guilty of the special cir-
cumstance if he had “independent, albeit concurrent, goals” of
committing arson and killing David Gawronski. Clark, 50
Cal. 3d at 609. Surprisingly, under this new view of Green,
Clark was not guilty of the felony-murder special circum-
stance if the prosecutor’s version of the facts were believed.
Clark could be guilty of the special circumstance only if his
own version of the facts were believed — under which he
might have had, in the California Supreme Court’s words, the
“independent, albeit concurrent, goals” of committing arson
and killing David Gawronski. Id.

   Because evidence had been presented — by the prosecutor
— under which Clark could have been found not guilty of the
special circumstance under the California Supreme Court’s
new interpretation of Green, the Court held that it had been
“error” not to give an “instruction based on Green” at trial.
But the Court held, under its new view of Green, that the error
had been harmless. Clark, 50 Cal. 3d at 609. The error was
harmless, in the Court’s view, because there was “overwhelm-
ing” evidence supporting Clark’s contention that he had origi-
nally intended that the fires drive the family out of the house.
Id. The Court wrote:

    [D]efendant’s own testimony, his extrajudicial state-
    ments made before and after the offense, and the
    shotgun and ammunition found in the trunk of his
    rental car after the offense, afford overwhelming evi-
    dence that when he commenced the arson his intent
    was to start a fire that would drive the family out of
2792                    CLARK v. BROWN
      the home. At that time his purpose was not to kill
      David Gawronski.

Id.

   [5] We hold that under California’s felony-murder special
circumstance statute, as interpreted in Green, both at the time
of his crime and at the time of his trial, Clark was entitled to
an instruction that told the jury he was not guilty of the spe-
cial circumstance if the arson was a felony whose “sole object
[was] to facilitate . . . the primary crime” of murder. Green,
27 Cal. 3d at 61. Clark conceded that he had set the fires at
the Gawronski house, and he conceded that he intended to kill
David Gawronski. Under Clark’s theory of the case, he did
not have an “independent felonious purpose” in committing
arson. Id. Rather, he set the fires only for the purpose of driv-
ing David Gawronski out of the house so that he could shoot
him. He was therefore entitled, both on his own and on the
prosecutor’s theories of the case, to the Green instruction con-
tained in paragraph 2 of CALJIC 8.81.1.

  The next question is whether Clark was entitled, under the
due process clause, to that instruction. We now turn to that
question.

                 B.   Retroactive Application

   On appeal of Clark’s conviction and sentence, the Califor-
nia Supreme Court abandoned its earlier interpretation of the
California felony-murder special circumstance statute in
Green. Under its new interpretation of Green, the Court held
that the trial court erred in not giving the instruction Clark had
requested, but on a different ground than that argued by Clark.
The Court then held the error harmless based on its new inter-
pretation of the statute. Clark contends that the California
Supreme Court’s new interpretation violated due process by
retroactively changing the felony-murder special circum-
stance statute to reach his conduct. We agree.
                        CLARK v. BROWN                          2793
  On appeal in Clark’s case, the California Supreme Court
wrote:

       In People v. Green, . . . , 27 Cal.3d 1, a case in
    which the “felony murder” special circumstance of
    the 1977 death penalty law was construed, this court
    held that the special circumstance was inapplicable
    to cases in which the defendant intended to commit
    murder and only incidentally committed one of the
    specified felonies while doing so. We explained in
    People v. Robertson (1982) 33 Cal.3d 21, however,
    that when the defendant has an independent purpose
    for the commission of the felony, and it is not simply
    incidental to the intended murder, Green is inappli-
    cable.

       Setting a fire to drive the occupants out of a home
    would establish an independent purpose since the
    fire is not intended to kill. Thus, if defendant’s testi-
    mony and statements are believed, the death of
    David Gawronski fell squarely within the purpose of
    the felony-murder-arson special circumstance. The
    victim died in an arson fire set by defendant for a
    purpose other than causing his death. As in People
    v. Robertson, . . . 33 Cal.3d 21, the underlying fel-
    ony, here arson, was not simply incidental to the
    intended murder of David Gawronski, which was to
    be committed by another means independent of the
    arson. The relation between defendant’s intent to
    murder David Gawronski, and his intent to burn the
    Gawronski home, would not invoke the Green rule
    since defendant had independent, albeit concurrent,
    goals.

       There was also circumstantial evidence, however,
    to support a conclusion, and indeed the prosecutor
    argued and the jury apparently agreed, that when
    defendant actually set fire to the gasoline in the
2794                   CLARK v. BROWN
    Gawronski home, regardless of the order in which
    the rooms were torched, defendant intended to kill
    the family members. The trial court erred, therefore,
    in refusing to give defendant’s requested instruction
    based on Green that the arson special circumstance
    could not be found true unless defendant had a pur-
    pose for commission of the arson independent of
    causing the death of David Gawronski.

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

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

Clark, 50 Cal. 3d at 608-09 (footnote omitted).

   Justice Broussard, joined by Justice Mosk, dissented from
the Court’s reinterpretation of Green. Id. at 642-44. Justices
                       CLARK v. BROWN                        2795
Broussard and Mosk agreed with the Court that under the
prosecutor’s theory of the case — in which Clark intended
that the fires kill the entire family in the house — Green
required the jury to acquit Clark of the felony-murder special
circumstance. But they disagreed with the Court’s conclusion
that under Clark’s theory of the case — in which Clark
intended that the arson drive the family out of the house so
that he could kill David Gawronski — Green allowed a con-
viction. After quoting from Green, Justice Broussard wrote:

    Thus if, as here, the defendant’s purpose in setting
    the fire is not to destroy property, but to drive the
    intended victim to a place where the defendant can
    more easily kill him, the felony lacks a purpose inde-
    pendent from the murder, and cannot support a
    felony-murder special circumstance.

Id. at 643 (Broussard, J., dissenting) (emphasis in original).

   [6] As indicated by Justice Broussard’s dissent, the Califor-
nia Supreme Court substantially reinterpreted Green in
Clark’s appeal. Under Green, if the sole purpose of the felony
was to “facilitate” the commission of the murder, the felony
was “incidental.” An incidental felony did not qualify a defen-
dant for the death penalty under the felony-murder special cir-
cumstances statute. Rather under Green, a felony qualified
under the special circumstance statute only if two require-
ments were satisfied: (1) the felony, such as robbery or arson,
must have been committed for a purpose “independent” of the
murder, and (2) the murder must have been committed in
order to advance that “independent felonious purpose.” 27
Cal. 3d at 61. The example given by the Court in Green of a
felony murder qualifying as a special circumstance was the
murder of a witness to, or victim of, a holdup, kidnaping or
rape. Id. In the Court’s example, the holdup, kidnaping or
rape was the “independent” felony (requirement one). The
murder of the witness or victim was committed in order to
2796                    CLARK v. BROWN
advance the independent felonious purpose of the holdup, kid-
naping or rape (requirement two).

   [7] On appeal in Clark, the California Supreme Court sig-
nificantly changed the first requirement and entirely dis-
pensed with the second. The Court changed the first
requirement by expanding the definition of an “independent”
purpose to include a concurrent purpose that was not — in
any ordinary sense of the term, and, more important, in the
sense used in Green — a purpose “independent” of the mur-
der. On the prosecutor’s theory of the case, Clark intended to
kill the entire family, including David Gawronski, directly by
means of the fire. On Clark’s theory of the case, he intended
to kill David Gawronski indirectly by means of the fire, driv-
ing him out of the house so he could shoot him. On either the-
ory, the arson was not “independent” of the murder; rather,
under both theories, the arson was a means to kill David
Gawronski.

   The Court dispensed entirely with the second requirement
that the murder have the purpose of advancing the “indepen-
dent felonious purpose” of the arson. There was never any
contention — by either the prosecutor or Clark — that Clark
murdered David Gawronski in order to advance his purpose
of committing arson.

   [8] Thus, in holding that Clark’s arson was not “incidental”
to the murder of David Gawronski, the California Supreme
Court dramatically altered the interpretation of the special cir-
cumstance statute that it had previously provided in Green.
Under the California Supreme Court’s new interpretation of
the felony-murder special circumstance statute, the Green
instruction should have been given, but not for the reason
advocated by Clark. Rather, according to the Court in Clark,
the Green instruction should have been given to allow the jury
to acquit on the special circumstance charge if it agreed with
the prosecutor’s theory of the case — that is, if it agreed that
the fires had been set in order to kill the entire family in the
                       CLARK v. BROWN                      2797
house. If those had been the facts, the Court wrote, the arson
would not have qualified as a special circumstance. But the
Court held that the failure to give the Green instruction had
been harmless because there was “overwhelming” evidence
that Clark intended that the fires drive the family out of the
house. 50 Cal. 3d at 609. Under the Court’s new interpretation
of the statute, Clark’s purpose of driving the family out of the
house now qualified as an “independent, albeit concurrent”
purpose. Id.

   [9] An unforeseeable judicial enlargement of a criminal
statute, applied retroactively, violates the federal due process
right to fair warning of what constitutes criminal conduct. See
Bouie v. City of Columbia, 378 U.S. 347, 353 (1964); see also
Rogers v. Tennessee, 532 U.S. 451, 459 (2001) (Bouie articu-
lated a “basic and general principle of fair warning”); LaG-
rand v. Stewart, 133 F.3d 1253, 1260 (9th Cir. 1998) (“[T]he
Due Process Clause . . . protects criminal defendants against
novel developments in judicial doctrine.”). A judicial con-
struction of a statute may violate due process if the defendant
was “unfairly surprised in a way that affected his legal
defense.” Darnell v. Swinney, 823 F.2d 299, 301 (9th Cir.
1987). The “crucial test” is “whether the construction actually
given the statute was foreseeable.” McSherry v. Block, 880
F.2d 1049, 1053 (9th Cir. 1989) (citation omitted); see also
Oxborrow v. Eikenberry, 877 F.2d 1395, 1399 (9th Cir. 1989)
(“An unforeseeable, albeit legitimate, construction of a state
law by the courts may not be retroactively applied to a defen-
dant.”). A new judicial interpretation of a special circum-
stance provision can be challenged under Bouie because
“[s]pecial circumstances that make a criminal defendant eligi-
ble for the death penalty operate as ‘the functional equivalent
of an element of a greater offense.’ ” Webster v. Woodford,
369 F.3d 1062, 1068 (9th Cir. 2004) (as amended) (quoting
Ring v. Arizona, 536 U.S. 584, 609 (2002)).

  Based on our decision in McSherry v. Block, the State
argues that Bouie is inapplicable because Clark had fair warn-
2798                   CLARK v. BROWN
ing that his conduct was criminal. In McSherry, we distin-
guished Bouie on the ground that “there was no danger that
a person pursuing what would otherwise be purely innocent
behavior could be ensnared by the statute with no warning
whatsoever.” 880 F.2d at 1056. We wrote, “[I]t simply cannot
be said that appellant had no fair warning that the particular
conduct in which he was engaged was punishable.” Id.; see
also Darnell, 823 F.2d at 301 (holding that there was no
Bouie violation where defendant “clearly had fair warning
that his contemplated conduct — attempting to possess stolen
property — was criminal”). We disagree with the State’s
argument, for applying McSherry’s rationale to the retroactive
application of an unforeseeable modification of a special cir-
cumstance statute would be both unworkable and contrary to
Bouie.

   Because a felony-murder special circumstance necessarily
involves conduct that is criminal, acceptance of the State’s
argument would mean that no judicial expansion of a death-
qualifying special circumstance could ever be challenged
under Bouie on retroactivity grounds. But Bouie itself states
that a prohibited ex post facto law either “makes an action
done before the passing of the law, and which was innocent
when done, criminal” or “aggravates a crime, or makes it
greater than it was, when committed.” 378 U.S. at 353
(emphasis added) (citation omitted). “If a state legislature is
barred by the Ex Post Facto Clause from passing such a law,
it must follow that a State Supreme Court is barred by the Due
Process Clause from achieving precisely the same result by
judicial construction.” Id. at 353-54. In Webster, we implicitly
— but clearly — rejected the State’s suggested application of
McSherry to special circumstance statutes. Without once sug-
gesting that Bouie was inapplicable because the behavior in
question was inherently criminal, we conducted a thorough
Bouie analysis of a death-qualifying special circumstance stat-
ute to determine whether it had been improperly expanded
and retroactively applied. 369 F.3d at 1073-75.
                        CLARK v. BROWN                       2799
   “The beginning point for a Bouie analysis is the statutory
language at issue, its legislative history, and judicial construc-
tions of the statute.” Id. at 1069. The statute under which
Clark was sentenced provided simply that the murder must be
committed “while the defendant was engaged in or . . . in the
commission of, attempted commission of, or the immediate
flight after committing or attempting to commit” arson. Cal.
Penal Code § 190.2(a)(17)(viii) (amended 1995). Broad statu-
tory language generally precludes a Bouie challenge. See
McSherry, 880 F.2d at 1052 (“[T]he very ambiguity that
exists in this statute is, in part, what saves appellant’s convic-
tion.”). If the California Supreme Court’s decision in Clark
interpreting the felony-murder special circumstance statute
had been written on a clean slate, it would not constitute a due
process violation, or indeed anything close to it. In that event,
there could have been no federal constitutional objection to
the Court’s interpretation of the statute, for the California
Supreme Court is the final arbiter of the meaning of its state’s
statutes. But the Court was not writing on a clean slate, for it
had previously narrowed the felony-murder special circum-
stance statute in Green.

   An established part of our foreseeability inquiry under
Bouie is whether prior judicial interpretations have “narrowed
the clear terms of the statute[ ] to [a defendant’s] benefit”
before the commission of the crime. LaGrand, 133 F.3d at
1260. In examining judicial interpretations of California’s
special circumstance statute, we give “primacy to controlling
decisions of the California Supreme Court, but must also con-
sider intermediate appellate court rulings to the extent they
offer predictive value in determining whether a particular con-
struction was unexpected or unforeseen.” Webster, 369 F.3d
at 1070 (“lying in wait” special circumstance is a “specific
California statute[ ], with a long history of California judicial
construction”). Because the Bouie analysis focuses on notice
to the defendant, we look only to cases decided before the
crime was committed. See LaGrand, 133 F.3d at 1261 n.2.
2800                    CLARK v. BROWN
   The decisions of the California appellate courts indicate
that, at the time Clark committed his crimes, Green’s interpre-
tation of the felony-murder special circumstance statute was
well-established, and that the California Supreme Court’s new
interpretation of that statute in Clark was unforeseeable. None
of the three relevant, or possibly relevant, cases decided
between the date of the Court’s decision in Green (April 24,
1980) and the date of Clark’s crime (January 6, 1982) under-
mined Green’s holding. Two were felony-murder special cir-
cumstance cases that clearly followed Green. The third, upon
which the State relies, was a simple felony-murder case that
had no bearing on a special circumstance case.

   In People v. Thompson, 27 Cal. 3d 303, 325 (1980), the
California Supreme Court held that there was insufficient evi-
dence to support robbery and burglary special circumstances.
The defendant in Thompson had broken into a house and had
held a male and a female occupant at gunpoint. He purported
to be seeking money and valuables, but when they were
offered he did not take them. After forcing the two occupants
to the living room, he stated, “You know why I’m here and
you know who sent me.” He then fired three shots into each
of them, killing the man and wounding the woman. He left the
house with the keys to the man’s car. Id. at 310-11. He took
no other property. Id. at 323.

   The Court spent three paragraphs describing its then-recent
decision in Green. Id. at 321-22. It held that there was insuffi-
cient evidence to support a conviction for theft, or intended
theft, of anything but the car keys. See id. at 323-24. The
Court held that the theft of the keys was not an independent
felony within the meaning of Green because it was most rea-
sonably seen as a means of facilitating the defendant’s escape.
Noting that the defendant had arrived at the house on foot, the
Court wrote, “[H]e had a motive to take a car simply to effect
his getaway from the shootings he intended; and the fact that
his first demand for the car was made just prior to the shoot-
ings suggests that this was indeed his reason for demanding
                        CLARK v. BROWN                       2801
the car keys.” Id. at 324. The Court therefore concluded that
the evidence was “insufficient to establish that the crime . . .
was ‘in fact a murder in the commission of a robbery [rather
than] the exact opposite, a robbery in the commission of a
murder.’ ” Id. at 325 (quoting Green, 27 Cal. 3d at 60) (brack-
eted language in original) (footnote omitted). There was no
discussion in Thompson of concurrent purposes.

   In Ario v. Superior Court, 124 Cal. App. 3d 285, 287
(1981), a California Court of Appeal granted a writ preventing
the trial court from proceeding on allegations of a kidnaping-
murder special circumstance. The defendant had transported
the victims from their home to another site in order to murder
them. See id. at 289. The court held that a felony-murder spe-
cial circumstance could not be sought where the kidnaping
was “for the purpose of accomplishing the murders” and
hence “incidental” to the murders. Id. at 289-90. As in
Thompson, the crucial question was whether the defendant
had a “separate purpose” for committing the felony “other
than merely to facilitate the primary crime of murder.” Id. at
289. There was no discussion in Ario of concurrent purposes.

   Finally, the state relies on the California Supreme Court’s
decision in People v. Murtishaw, 29 Cal. 3d 733 (1981).
Murtishaw involved the felony-murder rule rather than the
felony-murder special circumstance statute. The difference
between the two is significant. The felony-murder rule broad-
ens criminal liability, imposing a kind of vicarious liability for
murders that occur during the commission of a felony. A
defendant may be convicted of murder under the felony-
murder rule if he is involved in the commission of a felony
during which a murder occurs, even if he does not do the kill-
ing. The Court in Murtishaw invoked this definition of felony
murder when it wrote: “[T]he prosecution may seek to prove
[the charge of felony murder] by showing that the homicide
occurred during the commission of an enumerated felony.” Id.
at 751. The felony-murder special circumstance statute, by
contrast, narrows criminal liability, allowing capital punish-
2802                   CLARK v. BROWN
ment only for a certain restricted class of murders. Under the
felony-murder special circumstance statute, as defined in
Green, a defendant is not death-eligible for ordinary felony
murder. Rather, he is death-eligible only if the murder
advances an independent felonious purpose, such as the mur-
der of a witness to a felony in order to avoid identification.

   In Murtishaw, the Court held that there was sufficient evi-
dence to support a felony-murder conviction because the jury
could have concluded that the defendant acted with the “con-
current goals of killing the victims and taking their car.” Id.
at 752. In a footnote, the Court in Murtishaw distinguished
Green by explaining that “the theft here was not ancillary to
the murder, but if [the witness’s] testimony is believed, a con-
current objective.” Id. at 752 n.13. The Court had been careful
to state that the issue in Murtishaw was first-degree felony
murder, not felony-murder special circumstance. Id. at 750-
51. Footnote 13, just quoted, insured that the reader under-
stood that the two were different.

   Felony murder, without more, does not make a defendant
eligible for the death penalty. California’s felony-murder rule
is significantly broader than its felony-murder special circum-
stance statute. Because the death penalty is not at stake in a
simple felony-murder case, the requirements of Furman and
Gregg (which were responsible for the California Supreme
Court’s narrowing of the felony-murder special circumstance
statute in Green, see 27 Cal. 3d at 61-62) are not in play. The
Court’s holding in Murtishaw that the defendant’s concurrent
objectives to murder the victims and steal their car was suffi-
cient to support a verdict of felony murder thus has no bearing
on Green.

   Footnote 13 in Murtishaw was not a fair warning that the
California Supreme Court would expand Green’s definition of
felony-murder special circumstance in deciding Clark’s case.
Not only was Murtishaw a non-capital felony-murder case in
which the Court was careful to distinguish Green, as just
                       CLARK v. BROWN                       2803
noted. In addition, the Court did not cite Murtishaw in People
v. Robertson, 33 Cal. 3d 21 (1982), a case decided a year after
Murtishaw, in which it applied Green. Nor did the Court cite
Murtishaw in Clark itself.

   The only case cited by the California Supreme Court in
Clark in support of its new interpretation was the Robertson
case, just mentioned. Clark committed his crime in January of
1982. Robertson was decided in December of that year. The
Court’s very citation of Robertson in Clark helps show that
Clark was an unforeseeable departure from Green. The Court
in Clark wrote:

    We explained in People v. Robertson (1982) 33
    Cal.3d 21, however, that when the defendant has an
    independent purpose for the commission of the fel-
    ony, and it is not simply incidental to the intended
    murder, Green is inapplicable.

50 Cal.3d at 608.

   Robertson was a capital case in which the defendant raped
and killed two women, and stole their underwear for his “col-
lection.” 33 Cal. 3d at 33. When the defendant was arrested,
the underwear of several women (not limited to that of the
two victims) was found concealed under his bed. Id. at 32.
The Court wrote:

    [T]he jury could reasonably have concluded . . . that
    from the outset of both incidents defendant harbored
    the intent to steal some of the victims’ underwear or
    other personal property as well as the intent to
    assault them sexually. Unlike in Green, such an
    intent to steal was entirely independent of the mur-
    ders and was not planned simply as a means of con-
    cealing the killings. Because the jury could . . .
    reasonably have found that defendant killed both
    victims when he became afraid that they would
2804                    CLARK v. BROWN
    report his intended crimes, this case appears to fall
    within the class of cases as to which — under
    Green’s analysis — the “felony-murder” special cir-
    cumstance of the 1977 statute may properly apply.

33 Cal. 3d at 52. That is, in accordance with the standard
Green analysis, the jury could have concluded in Robertson
that the defendant killed his victims in order to further his
independent felonious purpose of stealing their underwear or
other personal belongings. Thus, far from giving fair warning
of a substantial modification of Green, Robertson cited Green
and applied it in an entirely predictable way.

   [10] To evaluate foreseeability, we may also look to the
CALJIC instruction in place at the time of trial. In Webster,
we held that the fact that the challenged jury instruction in
that case tracked the standard CALJIC instruction was “one
of the strongest indications” of foreseeability. 369 F.3d at
1075. We wrote, “Given the existence and wide publication
of this standard instruction, it was foreseeable that it would be
applied.” Id. As described above, paragraph 2 of CALJIC
8.81.17 had specifically incorporated Green’s holding. CAL-
JIC 8.81.17 has since been amended to include a comment
stating that “[c]oncurrent intent to kill and commit an inde-
pendent felony will support a felony-murder special circum-
stance.” But the two cases cited in support of this comment
are Clark and People v. Raley, 2 Cal. 4th 870, 903 (1992), a
case relying on Clark. No pre-Clark case is cited. There is
thus no indication whatsoever in CALJIC 8.81.17, as it
existed at the time of Clark’s trial, that the concept of “con-
current” purposes in the context of special circumstance pre-
dated the California Supreme Court’s decision in Clark. And
there is a strong indication from the later-adopted version of
CALJIC 8.81.17, as evidenced by its citation to Clark and
Raley in the accompanying comment, that the concept of
“concurrent” purposes did not exist prior to Clark.

   That the California Supreme Court’s new interpretation of
the arson-murder special circumstance statute was unforesee-
                          CLARK v. BROWN                   2805
able is demonstrated by the deeply ironic result it produced.
Clark’s trial strategy had been to prove precisely what the
Court now held was a special circumstance making him eligi-
ble for the death penalty. The prosecutor had tried to show
that Clark had tried to kill the entire family, including David
Gawronski, in the house by means of the fires. By contrast,
Clark’s experienced and skilled trial counsel, Charles English,
had tried to show that Clark set the fires in order to drive the
family out of the house. Now, under the Court’s new interpre-
tation of Green, what Clark had been at pains to show at trial
was precisely what defeated his appeal.

   [11] We conclude from the foregoing that the California
Supreme Court’s new interpretation of the felony-murder spe-
cial circumstance in Clark’s case was a substantial change
from its prior interpretation of that statute in Green. This new
interpretation and its retroactive application were “unexpected
and indefensible by reference to the law which had been
expressed prior to the conduct in issue.” Rogers, 532 U.S. at
461 (quoting Bouie, 378 U.S. at 354). We therefore hold that
the California Supreme Court’s retroactive application of its
new interpretation of the felony-murder special circumstance
statute in Clark’s case violated due process.

                     C.     Harmless Error

   We have now concluded that the failure to give the instruc-
tion in paragraph 2 of CALJIC 8.81.17 violated due process
under Trombetta and Bouie. The final question is whether
these violations were harmless. Under Brecht v. Abrahamson,
507 U.S. 619, 637 (1993), habeas corpus relief may be
granted only if the failure to give the Green instruction “had
a substantial and injurious effect or influence in determining
the jury’s verdict.”

   The instruction given to the jury simply echoed the words
of the felony-murder special circumstance statute. The
instruction provided, without elaboration or narrowing, that
2806                     CLARK v. BROWN
“it must be proved . . . [t]hat the murder was committed while
the defendant was engaged in the commission or attempted
commission of an arson.” (Emphasis added.) The jury was
not told that the arson must not have been “incidental” to the
murder within the meaning of Green.

   [12] If the jury had been properly instructed under Green,
there is a reasonable probability that it would have concluded
that the arson was “incidental” and that the felony-murder
special circumstance therefore was not true. See Belmontes v.
Brown, 414 F.3d 1094, 1139 (9th Cir. 2005) (construing
Brecht to require “a reasonable probability” that the jury
would have reached a different verdict). Clark presented sub-
stantial evidence from which the jury could have concluded
that he intended to set fire to the house to drive the family
outside so that he could shoot David Gawronski in front of
Ava Gawronski. It is fairly clear that the jury accepted Clark’s
version of the facts, for it found him guilty of attempted
second-degree murders of Ava and Sara Gawronski. If the
jury had believed the prosecutor’s version of the facts — that
Clark set the fires in order to kill the entire family in the
house — it would have returned a verdict of attempted first-
degree murders of Ava and Sara Gawronski. We are rein-
forced in this view of the evidence by the California Supreme
Court’s statement that the evidence supporting Clark’s con-
tention that when he set the fires he intended to drive the fam-
ily out of the house — was “overwhelming.” Clark, 50 Cal.
3d at 609.

  [13] We therefore hold that the failure to give the Green-
based instruction contained in paragraph 2 of CALJIC 8.81.17
“had a substantial and injurious effect or influence in deter-
mining the jury’s verdict.” Brecht, 507 U.S. at 637.

                            Conclusion

  [14] We hold that there were two interrelated due process
violations in this case: first, the trial court’s refusal to give the
                        CLARK v. BROWN                      2807
Green-based instruction, and, second, the California Supreme
Court’s retroactive application of its unforeseeable new inter-
pretation of Green. We further hold that these violations were
not harmless. We therefore reverse the district court’s denial
of Clark’s petition for habeas corpus. We remand to the dis-
trict court with instructions to grant relief with respect to his
death sentence.

   Clark’s convictions for the first-degree murder of David
Gawronski, for the attempted second-degree murders of Ava
and Sara Gawronski, and for arson are unaffected by our deci-
sion.

  REVERSED and REMANDED.
