Opinion
F076382
11-09-2018
In re J.W., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. J.W., Defendant and Appellant.
Candice L. Christensen, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and Julie A. Hokans, Deputy Attorney General for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. JJD070808)
OPINION
APPEAL from an order of the Superior Court of Tulare County. Juliet L. Boccone, Judge. Candice L. Christensen, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and Julie A. Hokans, Deputy Attorney General for Plaintiff and Respondent.
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INTRODUCTION
In August 2017, a joint contested hearing was held for appellant J.W. and his codefendant, C.H. The evidence established that appellant and other juveniles vandalized a trucking company in Tulare County. These juveniles were also responsible for starting a fire on a neighboring lot. The fire burned an abandoned grape vineyard, along with weeds and grass. Following the hearing, the juvenile court found beyond a reasonable doubt that the following four counts had been proven as to both minors: (1) felony arson of a structure or forest land (Pen. Code, § 451, subd. (c); count 1); (2) felony vandalism over $400 (§ 594, subd. (a); count 2); (3) misdemeanor tampering with fire protection equipment (§ 148.4, subd. (a)(1); count 3); and (4) misdemeanor petty theft (§ 484, subd. (a); count 4). Appellant was declared a ward of the court and placed on probation under the supervision of the probation officer. Appellant was released to the custody of his parents. Various terms and conditions of probation were imposed, including restitution.
C.H. is not a party to this appeal.
All future statutory references are to the Penal Code unless otherwise noted.
At the disposition hearing, the juvenile court exercised its discretion and determined that count 2 was a felony.
On appeal, appellant contends the juvenile court misinterpreted the statutory definition of "forest land" necessary for the arson conviction under section 451, subdivision (c). He argues the evidence did not support the court's true finding. We agree. We reverse the court's true finding in count 1 and remand for resentencing. We otherwise affirm the court's order.
BACKGROUND
I. The Relevant Facts From The Juvenile Court Hearing.
A. The evidence.
On August 5, 2017, a trucking company located in Tulare County was vandalized. At least two trucks and a vending machine were damaged, and six fire extinguishers were discharged in the area. Tools were taken, which law enforcement eventually recovered and returned to the owner. In addition to the vandalism, a lot next to this trucking company was set on fire. A lieutenant with the fire department and three other firefighters responded. It took the four firefighters about 20 minutes to get the fire under control.
Law enforcement detained appellant and other juveniles. Appellant and his codefendant were separately interviewed. They both admitted their involvement in vandalizing the trucking company and starting this fire. In addition, law enforcement matched appellant's recovered shoes to shoe prints located at the crime scene.
At the hearing, a fire investigator confirmed that this fire was started away from buildings and structures. The juvenile court heard details about the burned lot from two witnesses, the responding lieutenant and the owner of the neighboring trucking company. According to the lieutenant, it was "an abandoned grape orchard" with dying grass. The vineyard appeared abandoned from a "lack of weed control" and the number of dead vines. When responding to this fire, the firefighters had contained an area about two and one-half acres in size. The abandoned vineyard was half of that area, and the other half "was stubble grass with no vineyard on it." When asked if the property was "brush covered" or "cutover" land, the lieutenant answered, "Brush covered." He also agreed this was agricultural land.
The lieutenant was not asked to explain why he believed the land was brush covered.
According to the owner of the trucking company, the lot had "grapes that were dying out with tall dead grass that the owners were neglecting." This vineyard last produced grapes around 2012. From 2012 to 2017 this was "just a rundown nonproducing vineyard[.]" Some of the vines were being removed and piled up in a burn pile.
B. The defense motion to dismiss the arson charge.
At the close of the People's case, appellant's counsel made a motion to dismiss the arson charged in count 1 (§ 451, subd. (c)). Defense counsel argued that neither a structure nor forest land were involved in this fire.
The juvenile court responded: "Okay. Counsel, what they said was there were weeds growing in there. And that's grassland. And grassland is included in the forest land description under [section] 450[, subdivision] (b). So that one is denied."
C. Appellant's testimony.
Appellant testified on his own behalf at the hearing, and he denied any involvement in these crimes. He said other juveniles had borrowed his shoes, committed the crime, and then returned the shoes to him. He said he had lied to law enforcement during his interviews to protect the other juveniles. He claimed to have heard about the crime from them and he did not want to snitch. He denied that his codefendant was involved in this crime. He claimed the fire investigator had promised him he would "not go to juvey" if he signed a paper so he had signed it. He believed he would be free from trouble after signing it.
D. Closing arguments.
In closing argument, the prosecutor stated this fire occurred on land "overgrown with weeds and grasses." He asserted this qualified as "grassland," which met the definition of forest land under section 451, subdivision (c).
With defense counsel for C.H., the juvenile court had the following exchange:
"[DEFENSE COUNSEL]: Your Honor, my biggest concern is legal argument. I know the Court said grass fires are included under structure fire. I would request the opportunity to at least to do points and authorities on that issue.
"THE COURT: You can present them at the time of the disposition, but I read the Code and the Code Section 450B says 'grasses, land,' and they said 'weeds.' Weeds and grass are the same thing. And the witness testified, [the lieutenant], that there were weeds on the property and that it was agricultural. Agricultural deserted vineyard is going to have weeds and grass, so I don't see what the point is. But you can certainly do it."
E. The juvenile court's ruling.
The juvenile court did not find appellant's testimony credible "in any way, shape or form." The court determined that all four counts were proven well beyond a reasonable doubt as to both minors.
DISCUSSION
I. The Juvenile Court Misinterpreted The Relevant Statutes.
Appellant argues the juvenile court misinterpreted section 450, subdivision (b), and section 451, subdivision (c). He focuses on the dictionary definitions of "weeds" and "grasslands." According to appellant, grasslands are desirable while weeds "are to be eradicated." He asserts the Legislature did not intend to protect weeds under the arson statutes. He seeks reversal of the true finding in count 1.
A. Standard of review.
Because it involves statutory interpretation, we review the definition of "forest land" de novo. (People v. Costella (2017) 11 Cal.App.5th 1, 5 (Costella).) To the extent we must consider whether there was sufficient evidence of forest land, we consider whether substantial evidence exists in this record that is reasonable, credible and of solid value so that a reasonable fact finder could find the defendant guilty beyond a reasonable doubt. (Ibid.) In looking for substantial evidence, we presume every inference in support of the judgment that the finder of fact could reasonably have made. We do not reweigh the evidence or reevaluate witness credibility. We cannot reverse the judgment merely because the evidence could be reconciled with a contrary finding. (People v. D'Arcy (2010) 48 Cal.4th 257, 293.)
B. Analysis.
"Our primary task in interpreting the statute is to determine the lawmakers' intent. [Citation.] We begin with the words of the statute and their usual and ordinary meaning, which would typically be their dictionary definition. [Citations.] Their plain meaning controls, unless the words are ambiguous. [Citation.] 'If the statute is ambiguous, we may consider a variety of extrinsic aids, including legislative history, the statute's purpose, and public policy.' [Citation.]" (Costella, supra, 11 Cal.App.5th at pp. 5-6.) "Where the words of the statute are clear, we may not add to or alter them to accomplish a purpose that does not appear on the face of the statute or from its legislative history. [Citation.]" (Burden v. Snowden (1992) 2 Cal.4th 556, 562.)
Section 451 lists four types of felonious arson: (1) arson causing great bodily injury; (2) arson causing an inhabited structure or inhabited property to burn; (3) arson of a structure or forest land; and (4) arson of property, which includes everything except a structure or forest land. (§ 450, subd. (c); § 451, subds. (a)-(d).) Arson causing great bodily injury carries the harshest penalty of imprisonment "for five, seven, or nine years." (§ 451, subd. (a).) The remaining three types of arson carry progressively lower penalties. (§ 451, subds. (b)-(d).) Arson of an inhabited structure or property imposes punishment "for three, five, or eight years." (§ 451, subd. (b).) Arson of a structure or forest land imposes imprisonment "for two, four, or six years." (§ 451, subd. (c).) Arson of other property imposes imprisonment "for 16 months, two, or three years." (§ 451, subd. (d).)
Under the Penal Code, "forest land" is defined as "any brush covered land, cut-over land, forest, grasslands, or woods." (§ 450, subd. (b).) The Penal Code does not further define these terms. (See Costella, supra, 11 Cal.App.5th at p. 6 [noting no further definitions exist for "brush" or "brush covered land"].) We turn to various dictionary definitions, focusing on the terms "brush covered land" and "grassland."
Because the term is unusual, we note that "cutover" refers to land wherein saleable timber was removed, felled or cleared. (See Merriam-Webster.com <https://www.merriam-webster.com/dictionary/cutover> [as of Nov. 8, 2018]; Oxford Dictionaries <https://en.oxforddictionaries.com/definition/cutover> [as of Nov. 8, 2018]; Dictionary.com <https://www.dictionary.com/browse/cutover> [as of Nov. 8, 2018].)
1. The dictionary meaning of brush covered land.
According to Merriam-Webster, the meaning of "brush" is "scrub vegetation" or "land covered with scrub vegetation[.]" (Merriam-Webster.com <https://www.merriam-webster.com/dictionary/brush> [as of Nov. 8, 2018].) "Scrub" is "a stunted tree or shrub[.]" (Merriam-Webster.com <https://www.merriam-webster.com/dictionary/scrub> [as of Nov. 8, 2018].)
The Oxford dictionary states that "brush" is "[u]ndergrowth, small trees, and shrubs." (Oxford Dictionaries <https://en.oxforddictionaries.com/definition/brush> [as of Nov. 8, 2018].)
Dictionary.com defines "brush" as "a dense growth of bushes, shrubs, etc.; scrub; thicket." (Dictionary.com <https://www.dictionary.com/browse/brush> [as of Nov. 8, 2018].)
2. The dictionary meaning of grasslands.
Merriam-Webster states "grassland" is "farmland occupied chiefly by forage plants and especially grasses[.]" This word is also defined as "land on which the natural dominant plant forms are grasses and forbs" and "an ecological community in which the characteristic plants are grasses[.]" (Merriam-Webster.com <https://www.merriam-webster.com/dictionary/grassland> [as of Nov. 8, 2018].)
The term "forage" is defined as "food for animals especially when taken by browsing or grazing[.]" (Merriam-Webster.com <https://www.merriam-webster.com/dictionary/forage> [as of Nov. 8, 2018].)
The word "forbs" refers to "an herb other than grass[.]" (Merriam-Webster.com <https://www.merriam-webster.com/dictionary/forbs> [as of Nov. 8, 2018].)
According to the Oxford dictionary, "grassland" is "[a] large open area of country covered with grass, especially one used for grazing." (Oxford Dictionaries <https://en.oxforddictionaries.com/definition/grassland> [as of Nov. 8, 2018].)
Dictionary.com defines "grassland" as (1) "an area, as a prairie, in which the natural vegetation consists largely of perennial grasses, characteristic of subhumid and semiarid climates[;]" and (2) "land with grass growing on it, especially farmland used for grazing or pasture." (Dictionary.com <https://www.dictionary.com/browse/grassland> [as of Nov. 8, 2018].)
3. Costella , supra , 11 Cal.App.5th 1.
Only one published opinion, Costella, supra, 11 Cal.App.5th 1, analyzes in depth the statutory definition of forest land. In that opinion, the defendant killed a man and dumped the body in an undeveloped area next to a highway. The body was set on fire. A jury convicted the defendant of second degree murder and arson of forest land. (Id. at p. 3.) On appeal, he argued there was insufficient evidence that he burned forest land within the meaning of section 451, subdivision (c). The appellate court disagreed. (Id. at p. 5.)
At trial, a fire captain "described the area of the fire variously as 'a vacant lot' close to the highway 'with some grass and weeds growing,' an area with 'some vegetation,' and terrain with '[j]ust some grass, weeds, [and] small vegetation.' " (Costella, supra, 11 Cal.App.5th at p. 4.) Small bits of grass were beside the burned body, and the captain's report described " 'bare dirt' " in the area surrounding the body. (Ibid.) At trial, when reviewing photographs, the captain noted " 'grass, land, and other vegetation.' The firefighter who extinguished the fire described 'bare dirt' around the body and a 'mix of bare dirt and grass and small brush' around the area." (Ibid.) Photographs of aerial views of the scene showed "mostly bare dirt outside the area immediately surrounding the body." (Id. at p. 5.) Much more green vegetation, however, covered the plot of land outside the immediate location of the fire. (Ibid.)
Using CALCRIM No. 1515, the trial court had instructed the jury that " '[f]orest land means brush-covered land, cut-over land, forest, grasslands, or woods.' " (Costella, supra, 11 Cal.App.5th at p. 5.) During deliberations, the jury sent a note to the court asking about the definition of brush-covered land. The court said no legal definition existed, and the jurors should use "commonsense" and their "normal everyday understanding" of what that term would mean. (Ibid.) As noted before, the jury convicted the defendant of arson of forest land. (Ibid.)
According to the Costella court, the jury had ample evidence to determine that this fire occurred on brush covered land based on the photographs and the firefighters' descriptions. (Costella, supra, 11 Cal.App.5th at pp. 6-7.) Bare dirt, grass and small brush was described immediately around the body. In the photos, shrubs appeared throughout the area, and green vegetation "densely" covered part of it. (Ibid.) The appellate court disagreed that the land must be "continuously covered with brush" to qualify as forest land. (Id. at p. 7.) Criminal liability should not be excused if a defendant starts a fire where the brush is comparatively sparse. "There is no requirement of continuous coverage in the statute or legislative history." (Ibid.) A fire can quickly spread to nearby brush and "become a conflagration." (Ibid.)
4. The legislative history of the relevant arson statutes.
Even if the statutory language is clear, a court may consider "legislative history in determining whether the literal meaning is consistent with the purpose of the statute. [Citations.]" (Fireman's Fund Ins. Co. v. Workers' Comp. Appeals Bd. (2010) 189 Cal.App.4th 101, 110.) We summarize the relevant legislative history of the arson statutes.
Sections 450 and 451 were enacted in 1979. The Legislature made it a crime to willfully and maliciously burn "any structure, forest land or property." (See Stats. 1979, ch. 145, § 8, p. 338.) These terms were defined in 1979 in the same manner as they currently appear in section 450, subdivisions (a) through (c).
The previous version of the arson statute was notably different from the amendments that occurred in 1979. Instead of punishing arson of forest land, the former statute prohibited the willful and malicious burning of any "growing or standing grain, grass or tree, or any grass, forest, woods, timber, brush-covered land, or slashing, cutover land[.]" (Former § 449c; Stats. 1976, ch. 1139, § 203, p. 5119.) The former arson statutes also prohibited the willful and malicious burning of certain agriculture products. This included "hay, corn, wheat, oats, barley or other grain or vegetable product of any kind[.]" (Former § 449a; Stats. 1976, ch. 1139, § 200, p. 5119.) In addition, a person could not willfully and maliciously burn "produce, or fruit of any kind, whether sacked, boxed, crated, or not[.]" (Former § 449b; Stats. 1976, ch. 1139, § 201, p. 5119.)
In making the changes to the arson statutes, the Legislature sought to make the statutes more consistent, more understandable, and easier to prosecute. (See David A. Roberti, Chairman, Joint Com. for Revision of the Pen. Code, letter to Governor Edmund G. Brown, Jr., June 25, 1979, Sen. Bill No. 116, Ch. 145 (Roberti letter).) The Legislature also made the penalties for different types of arson more commensurate with the harms they caused. (See Roberti letter.)
The author of the 1979 amendments confirmed the Legislature intended to narrow the scope of undeveloped property associated with heightened punishment for arson. The author stated: "In the reorganization [of the arson statutes,] grasslands and forest fires are more narrowly defined and are treated the same as arson fires of buildings ...." (Roberti letter.) The former California Department of Forestry (now the California Department of Forestry and Fire Protection) stated the revisions "would put wildland arson on the same basis penalty wise as arson of an unoccupied structure. This recognizes the fact that in many instances a person who sets fire to a wildland area creates a greater threat to life and property than many of the single building unoccupied structures that are the subject of arson." (Cal. Dept. of Forestry, Analysis of Sen. Bill No. 116 (1979 Gen. Sess.) June 26, 1979.)
5. The evidence from this record.
The juvenile court determined that this fire occurred on forest land. The court reached that conclusion by finding this was grassland. Based on the plain language of the relevant statutes and the legislative history, we agree with appellant that substantial evidence does not support the court's finding.
This fire burned an abandoned grape vineyard, weeds and dying grass. The statutory definition of "forest land" does not include vineyards or weeds. (§ 450, subd. (b).) Moreover, the testimony did not establish the type of "grassland" that is defined in the dictionaries. This was not "farmland occupied chiefly by forage plants and especially grasses[.]" This was also neither "land on which the natural dominant plant forms are grasses and forbs" nor "an ecological community in which the characteristic plants are grasses[.]" (Merriam-Webster.com <https://www.merriam-webster.com/dictionary/grassland> [as of Nov. 8, 2018].) This was not "[a] large open area of country covered with grass, especially one used for grazing." (Oxford Dictionaries <https://en.oxforddictionaries.com/definition/grassland> [as of Nov. 8, 2018].) This was neither prairie land nor "farmland used for grazing or pasture." (Dictionary.com <https://www.dictionary.com/browse/grassland> [as of Nov. 8, 2018].)
At the hearing, the prosecutor asked the lieutenant if this property was "brush covered" or "cutover" land. The lieutenant answered, "Brush covered." Nobody asked the lieutenant to clarify what he meant.
Although it is not our role on appeal to reweigh evidence or judge witness credibility (People v. D'Arcy, supra, 48 Cal.4th at p. 293), inherently improbable testimony may be rejected on appeal. (People v. Mayberry (1975) 15 Cal.3d 143, 150; People v. Ontiveros (1975) 46 Cal.App.3d 110, 117.) To reject on appeal a witness who was believed by the trier of fact, either the witness's statements must be physically impossible that they are true or " ' "their falsity must be apparent without resorting to inferences or deductions." ' " (People v. Mayberry, supra, 15 Cal.3d at p. 150.)
At the hearing, when asked if the property was "brush covered" or "cutover" land, the lieutenant answered, "Brush covered." The lieutenant, however, was not asked to explain why he believed this land was brush covered and he was not asked to define that term. Based on the totality of this record, the lieutenant's sparse answer does not represent substantial evidence supporting the juvenile court's finding.
As an initial matter, the juvenile court never stated that it based its true finding on the lieutenant's response to this question. To the extent the court did believe this testimony, we reject it on appeal because it is unsupported by the record. (See People v. Mayberry, supra, 15 Cal.3d at p. 150 [testimony may be rejected if it is physically impossible or its falsity is apparent].) According to the various dictionaries, "brush" is generally defined as stunted trees, shrubs or scrub thickets. (See Merriam-Webster.com <https://www.merriam-webster.com/dictionary/brush> [as of Nov. 8, 2018]; Oxford Dictionaries.com <https://en.oxforddictionaries.com/definition/brush> [as of Nov. 8, 2018]; Dictionary.com <https://www.dictionary.com/browse/brush> [as of Nov. 8, 2018].)
In contrast to the fire in Costella, small brush and shrubs were not present on this lot. (Costella, supra, 11 Cal.App.5th at pp. 6-7.) In addition, neither trees nor scrub thickets were burned. Instead, this fire burned an abandoned grape vineyard, weeds and dying grass. Based on the various dictionary definitions, this lot did not qualify as brush covered land. The lieutenant's brief answer does not represent substantial evidence that forest land (i.e., brush covered land) was burned in this fire.
We find respondent's various additional arguments unpersuasive. Respondent contends that "weeds" should be included in the dictionary definition of grasslands. Respondent also asserts that excluding weeds from the definition of grasslands would go against the legislative purpose behind the arson statutes. These contentions, however, contradict the basic rule of statutory interpretation. Moreover, the legislative history suggests a more limited interpretation of grasslands. The previous version of the arson statute prohibited, in part, the willful and malicious burning of "any grass, forest, woods, timber, brush-covered land, or slashing, cutover land[.]" (Former § 449c; Stats. 1976, ch. 1139, § 203, p. 5119, emphasis added.) The amendment, i.e., going from "any grass" to "grassland," establishes that this fire did not burn "forest land" as that term is now defined.
The term "weed" generally means a plant that is not valued or wanted. (See Merriam-Webster.com <https://www.merriam-webster.com/dictionary/weed> [as of Nov. 8, 2018]; Oxford Dictionaries <https://en.oxforddictionaries.com/definition/weed> [as of Nov. 8, 2018]; Dictionary.com <https://www.dictionary.com/browse/weed> [as of Nov. 8, 2018].)
In any event, respondent misses the point. We have no doubt that "weeds" can and do appear in grasslands. The location of this fire, however, did not occur on "grasslands" as that term is defined.
Finally, citing Costella, supra, 11 Cal.App.5th 1, respondent contends that the legislative purpose of the arson statute is to deter "vegetation fires." We disagree with that overbroad conclusion. The Legislature chose what to include in the Penal Code definition of forest land. We presume that the Legislature meant what it said. (Bonnell v. Medical Board (2003) 31 Cal.4th 1255, 1261.) Had the Legislature intended for all vegetation to fall under the definition of forest land, it would have drafted the statute accordingly. Further, the prior arson statutes protected certain crops, including various oats, grains, produce, "or fruit of any kind, whether sacked, boxed, crated, or not[.]" (Former §§ 449a & 449b; Stats. 1976, ch. 1139, §§ 200, 201, p. 5119.) In marked contrast, arson now involves "any structure, forest land, or property." (§ 451.) As such, we decline to hold that the vegetation which burned in this matter falls within the definition of forest land. We will not add to or alter the words of the arson statutes to accomplish a purpose that does not appear on the face of the statutes or from its legislative history. (Burden v. Snowden, supra, 2 Cal.4th at p. 562.) The legislative history supports the conclusion that appellant's arson conviction must be reversed.
The legislative history strongly suggests that the legislative intent was to protect "wildland" when the current definition of "forest land" was promulgated. (Cal. Dept. of Forestry, Analysis of Sen. Bill No. 116 (1979 Gen. Sess.) June 26, 1979.)
We disagree with respondent's suggestion that "dying grape vines" constitute a shrub. A "shrub" is "a low usually several-stemmed woody plant." (Merriam-Webster.com <https://www.merriam-webster.com/dictionary/shrub> [as of Nov. 8, 2018].) In contrast, a "grapevine" is a climbing plant. (Merriam-Webster.com <https://www.merriam-webster.com/dictionary/grapevine> [as of Nov. 8, 2018].) Nothing in this record demonstrates that a grape vineyard or individual grape vines should be considered a shrub. In any event, the legislative history contradicts respondent's position that grape vines should be included in the definition of forest land. --------
Based on this record, substantial evidence does not support a finding that "forest land" was burned as that term is defined in section 450, subdivision (b). Accordingly, we reverse the juvenile court's true finding on count 1 (§ 451, subd. (c)).
DISPOSITION
The juvenile court's true finding as to count 1 is reversed. We remand the matter for resentencing. In all other respects, the order appealed from is affirmed.
/s/_________
LEVY, Acting P.J. WE CONCUR: /s/_________
DETJEN, J. /s/_________
SNAUFFER, J.