Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County. Gerald F. Sevier, Judge., Super. Ct. No. VCF 152279.
Thea Greenhalgh, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Louis M. Vasquez, Brian Alvarez and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
Levy, Acting P.J.
INTRODUCTION
Appellant Jerald Ray Coronado was convicted after jury trial of two counts of arson of an inhabited structure; the jury found true two enhancement allegations that he proximately caused multiple structures to burn. It also found true allegations that he suffered a prior strike, a prior serious felony conviction and served a prior prison term. (Pen. Code, §§ 451, subd. (d); 451.1, subd. (a); 667, subds. (a)(1), (c)-(j); 1170.12, subds. (a)-(e); and 667.5, subd. (b).) Appellant was sentenced to an aggregate term of 19 years imprisonment. We will affirm.
Unless otherwise specified all statutory references are to the Penal Code.
FACTS
I. Prosecution evidence.
At approximately 5:00 a.m. on September 24, 2005, appellant set fire to rugs that were draped over a wooden fence separating two residences located at 506 and 508 Lenox Avenue in Exeter. The fire spread to the fence and then to the two residences, engulfing and destroying them both.
Crystal Lynch and her teenaged daughter, Kaitlin, lived at 506 Lenox (the Lynch house). Crystal was awakened around 5:15 a.m. She saw appellant standing in front of the burning fence, about a foot away from the fires. Crystal, Kaitlin, and a neighbor named Amanda Fuentes all heard a man screaming, “I hate you all, I want you all to die.” Kaitlin identified the voice as belonging to appellant. Crystal repeatedly yelled at appellant, “[W]hat have you done[?]” He looked at her but did not reply.
Martin and Kari Bradsteen lived at 508 Lenox (the Bradsteen house); appellant was staying with them when the fire occurred. Martin was awakened by the sound of screams. He saw appellant quickly walking through their house, carrying a can of gasoline.
Exeter Police Officer David Diaz arrived in response to an emergency call. He saw appellant running toward the fence and then westbound towards the flames behind the Bradsteen house. Appellant repeatedly yelled that he was going to kill himself.
Kari and Diaz grabbed appellant. Appellant struggled with them and Diaz pulled appellant to the ground. Appellant smelled like gasoline and was sweating profusely. Appellant’s clothes were wet and smelled strongly of gasoline.
Larry Harris, a fire captain specialist with the California Department of Forestry and the Tulare County Fire Department, arrived around 6:40 a.m. to investigate the fire. He identified four separate burn sites on the rugs. The burn site that was located furthest from the sidewalk spread to the fence and, from there, the fire spread to the residences.
Harris found three burnt wooden matches, a matchbox with one unused wooden match inside, a set of keys and a pocketknife at the scene. The first two burnt matches were located beneath the rugs, on the 508 Lenox side of the fence. The keys, pocketknife, matchbox and remaining burnt match were found by the burn site that was closest to the sidewalk.
Based on the existence of four separate burn sites, Harris concluded that the fire was intentionally set. He opined that the fire originated on the side of the Bradsteen house because two burnt matches were found on this side of the fence and it sustained greater charring than did the side of the fence facing the Lynch house.
Marvin Casey, a private individual hired by the insurer of the Bradsteen house to conduct a cause and origin examination, testified that Martin told him that appellant said that he set the fire using gasoline because he was mad at the next-door neighbor. Casey opined that the fire was intentionally set and that it originated on the side of the fence facing the Bradsteen house.
In a subsequent taped interview, Martin responded negatively to Casey’s query whether appellant said anything to him concerning the fire’s origin.
During appellant’s testimony, he admitted that the pocketknife and keys found near one of the burn sites belonged to him.
II. Defense evidence.
Appellant testified that between 2:00 a.m. and 3:00 a.m. he awoke to a sound outside, in front of the Bradsteen house, “like a kid laughing or something.” He remained awake, repairing a wicker basket. Some later point in time, he went outside and saw spots of flames on the fence. He ran back inside the house to look for Kari, screaming, “[T]here’s a fire.” He ran back outside and saw that the flames had spread to the roof of the Bradsteen house. He grabbed a water hose and started spraying water on the fire. He heard kids laughing. He yelled to Martin, “[T]hem kids.” He saw a gas can in the path of the fire. He grabbed it and ran into the Bradsteen house. He tripped over a piece of furniture and the gas spilled. The next thing he recalled was a police officer beating him and calling him names.
The Bradsteens testified that during the past year they had problems with vandalism and trespassing. Kaitlin and her friends played pranks on them such as climbing over the fence and moving things around in their backyard. Another neighbor, Marc Unger, wore camouflage gear and crawled around in their backyard. Someone damaged the evaporative cooler on the roof. Someone sprayed water around their electrical box. Rocks and bottles were thrown over the fence. Neighborhood children harassed them by hiding behind a tree across the street and spying on them.
The Bradsteens installed a surveillance camera to identify the offenders. Kari recognized a neighborhood boy on the surveillance photos. The camera and photos burned in the fire.
Kari testified that she grabbed appellant on the morning of the fire and screamed, “Jay, why the fuck did you set my house on fire?” Appellant replied, “I didn’t, Kay, I didn’t.”
DISCUSSION
I. Counsel’s failure to request a pinpoint instruction concerning the burden of proof relative to the third party culpability defense theory does not constitute prejudicial ineffective assistance of counsel.
A party claiming ineffective assistance of counsel bears the burden of showing both deficient performance under an objective standard of professional reasonableness and prejudice under a test of a reasonable probability of a different outcome. (People v. Gurule (2002) 28 Cal.4th 557, 610-611.) When an ineffective assistance claim can be resolved solely on the basis of lack of prejudice, it is unnecessary to determine whether counsel’s performance was objectively deficient. (In re Jackson (1992) 3 Cal.4th 578, 604.)
Appellant argues that his defense counsel was prejudicially ineffective because he failed to request a pinpoint instruction “relating [his] third party culpability defense theory to the prosecution’s burden of proof, and [stating] that his defense could be sufficient to raise a reasonable doubt as to [his] guilt.” We reject this argument because appellant has not established prejudice. Appellant has not shown that it is reasonably probable that the jury would have acquitted him if it had been instructed on the relationship between his third party culpability defense and the People’s burden of proof.
The third party culpability defense lacks significant evidentiary support. Appellant did not present any evidence directly linking a third person to the actual setting of the fire. Appellant is the only person who provided any testimony even vaguely connecting an unspecified “kid” or “kids” to the setting of the fires. Appellant testified that he was awakened by the sound of a kid laughing. Some time later, the fire started and when he attempted to extinguish it, he heard kids laughing. No evidence supports this self-serving testimony; no other percipient witness saw or heard kids near the Bradsteen and Lynch houses around the time of the fire. While appellant presented testimonial evidence that the Bradsteens were subjected to acts of vandalism, harassment and trespass by various neighbors and by Kaitlin’s friends during the year prior to the fire, there is no evidence of any prior incidents of fire-related pranks or vandalism.
Also, there is overwhelming circumstantial evidence proving that appellant started the fire. Appellant’s pocketknife and keys were found near one of the four burn sites. Witnesses heard appellant yell, “I hate you all, I want you all to die.” Crystal Lynch testified that appellant did not deny setting the fire when she screamed at him, “[W]hat have you done[?]” Diaz saw appellant running in the direction of the flame yelling that he was going to kill himself. Appellant was sweating profusely and smelled like gasoline. Casey testified that Martin told him that appellant admitting setting the fire because he was mad at the next door neighbor.
Finally, the jury was correctly instructed on the evaluation of witness testimony and on the prosecution’s burden of proof and reasonable doubt. There is nothing suggesting that the jury misunderstood or applied its instructions.
For these reasons, the absence of a pinpoint instruction focusing the jury’s attention on the third party culpability theory and its relationship to the burden of proof does not undermine our confidence in the outcome of the case. It is not reasonably likely that appellant would have received a more favorable outcome if such an instruction had been given. Therefore, the ineffective assistance claim fails.
II. The court did not have a sua sponte duty to instruct on the lesser included offense of unlawfully causing a fire.
Appellant contends the court had a sua sponte duty to instruct on the lesser included offense of unlawfully causing a fire. We disagree.
Arson requires proof that the accused willfully and maliciously set a fire; the setting of the fire must be a deliberate and intentional act. The accused must have possessed the general intent to willfully commit the act of setting a fire under such circumstances that the direct and highly probable consequences would be the burning of a structure or property. (People v. Atkins (2001) 25 Cal.4th 76, 88 (Atkins).)
The offense of unlawfully causing a fire is a lesser included offense to the crime of arson and it requires proof that the accused acted recklessly. (People v. Lopez (1993) 13 Cal.App.4th 1840, 1846 (Lopez).) This crime “is committed by a person who is ‘aware of and consciously disregards a substantial and unjustifiable risk that his or her act will set fire to, burn, or cause to burn a structure, forest land, or property.’ [Citation.]” (Atkins, supra, 25 Cal.4th at p. 89.)
Instruction on the offense of unlawfully causing a fire must be given sua sponte when there is evidence worthy of jury consideration of both arson and of the crime of unlawfully causing a fire. However, the court does not have a sua sponte duty to instruct on the lesser offense when there is no evidence that the crime was less than that charged. (Lopez, supra, 13 Cal.App.4th at p. 1846.) “The essential point is that instructions, whether sua sponte or otherwise, are instructions only on the evidence received at trial, rather than instructions on all possible theories which might have been, but were not, presented by the evidence submitted to the jury’s consideration.” (Id. at p. 1847.)
Appellant’s claim that the evidence supports the theory that he recklessly set fire to the rugs on the fence but the resultant burning of the homes was an unintended consequence is inconsistent with his testimony and his defense at trial. The prosecution presented evidence demonstrating that appellant maliciously set fire to the rugs on the fence with the intention of setting fire to the homes. Witnesses heard him yell that he wanted everyone to die. In stark contrast, appellant unequivocally denied setting fire to the rugs. He testified that he was inside the Bradsteen house repairing a basket when the fire started. He attempted to warn others and extinguish the flames.
Defense counsel only vigorously advanced one theory in his closing argument: an unnamed third party intentionally set fire to the rugs as a prank or an act of vandalism. Defense counsel argued “[T]his is a case of a prank or an attack against the Bradsteens’ home and the misinterpretation of conduct surrounding a behavior and a fire of a person’s home.” Later, defense counsel argued, “Is it proven that [appellant] set this fire? Somebody did, but I submit it wasn’t [appellant].” Defense counsel did briefly state in the midst of his closing argument that “there’s a theory that … I was trying to burn the Lynch house down, and all of a sudden it got so big, I thought [about] what I did … and I better put it out. Regretted starting this little fire. It got out of hand. That’s sort of a logical interpretation, I guess.” However, defense counsel neither expanded on this argument nor urged the jury to reach this conclusion. Defense counsel focused his closing argument on the alleged lack of proof beyond a reasonable doubt that appellant set fire to the rugs.
Thus, the evidence and arguments of counsel presented the jury with two possible scenarios to choose between: either appellant maliciously set fire to the rugs with the intention of destroying the homes or the fire was started by an unknown vandal.
Lopez, supra, 13 Cal.App.4th 1840 is instructive. Defendant was convicted of arson of an inhabited structure (a trailer). On appeal, he argued that the trial court erred by failing to instruct on the lesser offense of unlawfully causing a fire. The appellate court rejected this argument, explaining:
“Here, there was never any contention by any party that there had been merely a reckless causing of a fire to an inhabited structure. The prosecution’s case was that Lopez had intentionally set fire to the trailer. Lopez claimed primarily that someone else had intentionally set fire to his trailer, and as a subsidiary theme suggested that the fire which destroyed the trailer might not have been ‘set’ at all, but instead might have been the result only of a wholly noncriminal accident.” (Lopez, supra, 13 Cal.App.4th at p. 1847, fn. omitted.)
The court continued:
“Assertions that this evidence also supported a finding of ‘recklessness’ are untenable. Lopez denied setting any fire, and an accidental ignition, of course, would preclude any criminal liability. There was no evidentiary basis for finding mere ‘recklessness’ by Lopez in starting the fire.” (Lopez, supra, 13 Cal.App.4th at p. 1848.)
Lopez is factually distinguishable from this matter in that the defendant directly set fire to the trailer and, here, appellant set fire to the rugs on the fence that resulted in the burning of the residences. However, the reasoning of the appellate court in Lopez is applicable. The court analyzed the evidence presented and the arguments of counsel to determine whether instruction on the lesser included offense was supported by the evidence or the contentions of the parties during trial. The court concluded that because the theory advanced by defendant on appeal was speculative and had not been argued at trial, instruction on the lesser offense was not required. (Lopez, supra, 13 Cal.App.4th at p. 1848.)
People v. Schwartz (1992) 2 Cal.App.4th 1319, which is relied upon by appellant, is factually distinguishable. There, the evidence showed that Schwartz intentionally set fire to numerous car frames inside a repair business because he was angry that work had not been completed on his car chassis. A flame from a vehicle burned the ceiling of the structure, damaging the loft and roof. Schwartz testified he did not set any cars on fire and had been misidentified by employees. (Id. at pp. 1322-1323.) The appellate court reversed Schwartz’s arson conviction due to a failure to instruct on the offense of unlawfully causing a fire. It determined that instruction on this offense was required because reasonable inferences drawn from the evidence supported a conclusion that Schwartz only intended to set fire to the cars and the jury specifically queried whether malice had been established if there had been an intentional setting but the resultant fire burns another unintended object. The court explained: “We believe the jury was prompted to ask this question because of their apparent concern that the fire to the building had been unintentional, an unanticipated result of the fire to the cars. Accordingly[,] the court should have instructed the jury on the lesser included offense of unlawfully causing fire to a structure.” (Id. at p. 1325.) This omission was deemed prejudicial. (Ibid.)
Here, there is no evidence that the jury thought that appellant set fire to the rugs but did not intend for the fire to spread to the fence or the houses. No question from the jury indicated confusion or concern that appellant may have intended only to set fire to the rugs and not the houses. Also, in Schwartz the record clearly established a reason why he could have intended only to burn the cars -- anger that his vehicle had not been timely repaired. Here, if the prosecution’s evidence is accepted, then appellant wanted everyone “to die.” Therefore, burning the rugs would have been a means to start a fire engulfing the homes and not an end unto itself. If the defense evidence is accepted, appellant was innocently repairing a basket when unidentified vandals set the fire.
In any event, even if we were to have concluded that the jury should have been instructed on the offense of intentionally setting a fire, the omission is harmless. Failure to instruct on a lesser included offense is assessed under the Watson standard of a reasonable probability of a more favorable outcome. (People v. Ledesma (2006) 39 Cal.4th 641, 716.) It is not reasonably probable that the jury would have found appellant guilty of the lesser included offense of intentionally setting a fire if it had been instructed thereon. Evidence supporting the theory that appellant intentionally set the rugs on fire but did not mean for the fire to spread to the fence and the homes is insignificant; this is a weak defense theory that is inconsistent with appellant’s testimony. Defense counsel reasonably decided to focus on a line of defense that is consistent with appellant’s testimony -- that the Bradsteens frequently were targeted by pranksters and appellant had nothing to do with setting the fire. Also, the instructional omission did not preclude the jury from determining whether appellant possessed the mental state of malice. The omission did not limit the jury’s ability to weigh the evidence fairly or preclude it from determining whether appellant acted maliciously and willfully.
III. Appellant must be resentenced because the court erroneously stayed the section 667.5 enhancement.
On count 1, the court imposed an aggregate term of 19 years, calculated as follows: five years for the arson, doubled because of the strike, plus four years for the multiple structures enhancement plus five years for the section 667 prior serious felony enhancement. It imposed and stayed the one-year section 667.5 prior prison term enhancement arising from a 1997 conviction for possessing a controlled substance.
Respondent contends that the court erred by staying the section 667.5 enhancement. We agree. As explained in People v. Haykel (2002) 96 Cal.App.4th 146, “‘Unless a statute says otherwise, an enhancement may be imposed or stricken, but … may not be stayed; to do so is an illegal sentence. [Citation.]’ [Citation.]” (Id. at p. 151.) This error is subject to correction for the first time on appeal. (People v. Bradley (1998) 64 Cal.App.4th 386, 391.)
The court did not state any reasons for its decision to stay the section 667.5 enhancement. It did not find any mitigating factors. Thus, the court’s intention with respect to this enhancement is unclear. Accordingly, the proper remedy is to remand the matter for resentencing and exercise of judicial discretion.
IV. Erroneous double imposition of the section 667 enhancement is to be corrected when appellant is resentenced.
On count 2, the court imposed a concurrent term of 19 years, calculated as follows: five years for the arson, doubled because of the strike, plus four years for the multiple structures enhancement plus five years for the section 667 prior serious felony enhancement.
Appellant argues that imposition of the section 667 enhancement on count 2 was erroneous because this enhancement had already been imposed on count 1. Respondent concedes the error and we accept this concession as properly made. The prior serious conviction enhancement arose from a 1985 conviction for first degree burglary. Having suffered a single prior serious felony conviction, the enhancement should only have been imposed one time. “[E]nhancements for prior convictions do not attach to particular counts but instead are added just once as the final step in computing the total sentence.” (People v. Tassell (1984) 36 Cal.3d 77, 90, fn. omitted.)
When appellant is resentenced, the section 667 enhancement is to be imposed once.
DISPOSITION
The judgment of conviction is affirmed. The sentence is vacated and the matter is remanded for resentencing only.
WE CONCUR: Hill, J., Kane, J.