Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of San Bernardino County No. FSB056686, Arthur Harrison, Judge.
Joanna Rehm, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Jeffrey J. Koch, Marissa Bejarano, and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ, P. J.
INTRODUCTION
Defendant Brian Bass (defendant) argues that his conviction for arson was based on insufficient evidence. We affirm.
FACTS AND PROCEDURAL HISTORY
A few minutes after midnight on June 24, 2006, defendant threatened to kill his sister Theresa Gonzales. Shortly thereafter, he set fire to the carpet in her apartment while singing “Burn. Burn.” When Theresa saw what defendant was doing, she woke up her husband, Anthony Gonzales, who ran downstairs and put the fire out. The fire burned a 10-inch hole in the carpet. A towel found on the carpet was also partially burned.
Defendant was charged, among other things, with arson of an inhabited structure. (Pen. Code, § 451, subd. (b).) At trial, Theresa testified that the carpet was not a throw rug; Theresa and Anthony both testified that the carpet was attached to the floor of the apartment. Arson investigator Patricia Fea testified that in her opinion the fire had been intentionally set. When asked how the carpet was attached, Fea said, “I believe that it was stapled onto padding, which . . . was attached to a concrete slab.”
All further statutory references are to the Penal Code unless otherwise indicated.
On August 16, 2007, the day the case was submitted to the jury, the court instructed jurors on the crime of arson of an inhabited structure and on the relationship of a fixture to a structure. “A structure is any building. [¶] A fixture is a thing affixed or permanently attached to a building [that] becomes an integral part of the structure for purposes of arson. [¶] . . . [¶] A structure is inhabited if someone lives there.” In response to a motion by defense counsel, the court also instructed the jury on the lesser included crimes of attempted arson and of unlawfully causing a fire that burned an inhabited structure. (§§ 452, 455.) On August 17, 2007, the jury convicted defendant of arson of an inhabited structure. (§ 451, subd. (b).) On September 13, 2007, the trial court sentenced him to the midterm of five years in state prison.
DISCUSSION
The sole issue on appeal is whether the carpet in question was a “fixture” such that it was part of the “structure” within the meaning of the statute. Defendant argues that without credible evidence as to whether, or by what means, the carpet was permanently attached to the floor, his conviction must be reversed. We are not persuaded.
Standard of Review
When the sufficiency of the evidence to support a criminal conviction is challenged, an appellate court reviews the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, such that a rational trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Wallace (2008) 44 Cal.4th 1032, 1077.)
Arson
“A person is guilty of arson when he . . . willfully and maliciously . . . burns . . . any structure.” (Pen. Code, § 451.) “Arson that causes an inhabited structure . . . to burn is a felony punishable by imprisonment in the state prison for three, five, or eight years.” (Pen. Code, § 451, subd. (b).) “‘[T]he burning of any part, however small, completes the offense.’” (People v. Haggerty (1873) 46 Cal. 354, 355.) “[A] fixture, i.e., personal property affixed to the realty so that it becomes an integral part of the structure, becomes part of the structure to the extent that a burning or charring or destruction by fire is all that is required to constitute a burning sufficient to support a conviction of arson under section 451.” (In re Jesse L. (1990) 221 Cal.App.3d 161, 168.) A thing is deemed affixed to a building when it is permanently attached “as by means of cement, plaster, nails, bolts, or screws.” (Civ. Code, § 660.) To qualify as a fixture, an item of personal property must be annexed to the structure and must “become essential to the ordinary and convenient use of the property to which it was annexed.” (M.P. Moller, Inc. v. Wilson (1936) 8 Cal.2d 31, 38.) Whether an item in a given case has lost its character as personal property and has become a fixture is primarily a question of fact to be determined by the evidence. (Ibid.)
Here, there was substantial, credible evidence to support the jury’s conclusion that the wall-to-wall carpet in the victims’ apartment was affixed to the floor so as to have become a “fixture” and thus a part of the structure within the meaning of section 451. Theresa and Anthony Gonzales, who lived in the apartment, both testified that the carpet was attached to the floor. Investigator Fea testified specifically that it was attached by staples to the padding and to the concrete slab. It is not hard to see how the jury would reasonably conclude that the carpet and padding were not only permanently attached to the structure, but were essential to the “ordinary and convenient use” of a home built on a concrete slab. (M.P. Moller, Inc. v. Wilson, supra, 8 Cal.2d at p. 38.)
In People v. Lee (1994) 24 Cal.App.4th 1773, the defendant threw a firebomb into her aunt’s house, burning the carpet; the jury found her guilty of arson. (Id. at pp. 1775-1776.) The appellate court pointed out that in reaching its verdict, the jury had necessarily considered the question of whether the wall-to-wall carpeting had become an integral part of the structure and its determination could not be said to be contrary to the evidence. The court also noted that the jury had the option of convicting the defendant of the lesser crime of attempted arson but had not done so. (Id. at pp. 1776-1778.) Similarly here, the jury not only found that the carpeting was part of the structure, but also rejected the two alternative lesser included crimes on which it had been instructed: attempted arson and unlawfully causing a fire of an uninhabited structure.
DISPOSITION
The judgment is affirmed.
We concur: RICHLI, J. MILLER, J.