Opinion
G051706
12-21-2016
THE PEOPLE, Plaintiff and Respondent, v. JEFFREY SEAN TEAS, Defendant and Appellant.
Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Michael Pulos, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 14WF0851) OPINION Appeal from a judgment of the Superior Court of Orange County, John Conley, Judge. Affirmed and remanded with directions. Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Michael Pulos, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
INTRODUCTION
Defendant Jeffrey Sean Teas appeals from the judgment entered after a jury found him guilty of two counts of committing felony arson of an inhabited structure and one count of committing a misdemeanor battery on a peace officer. Teas argues one of his arson convictions must be dismissed because the evidence showed he set two fires in the same structure, which he contends constitutes a single count of arson of an inhabited structure as a matter of law.
We affirm the judgment and remand with directions. Substantial evidence showed Teas set two separate fires in the house where he had lived—one that burned the floor of the master bedroom and the other that burned the stairway. The jury therefore properly found him guilty of two counts of arson of an inhabited structure in violation of Penal Code section 451, subdivision (b). (All further statutory references are to the Penal Code.)
The trial court erroneously stayed execution of sentence as to the second arson conviction under section 654. Because the court's sentence constitutes an unauthorized sentence, we remand to the trial court with directions to remove the stay under section 654 and impose concurrent sentences with regard to Teas's arson convictions.
FACTS
In 2014, Cynthia Melson rented a two-story, four-bedroom house in Westminster (the house). Melson lived in the master bedroom of the house. Her daughter and two men each lived in one of the other three bedrooms. Melson allowed Teas to live in the garage. He did not pay rent, but he provided basic maintenance work around the house. Melson had known Teas for many years and they drank alcohol together.
At some point, Melson believed Teas was becoming violent and belligerent when he drank. Melson and Teas had two physical altercations. Melson became afraid for her safety and decided that Teas should no longer live in the garage.
On February 17, 2014, Melson posted copies of a "three day notice to evict" in various parts of the house, directing Teas to leave. She knocked on all the doors of the garage in an effort to personally serve him with the notice, but Teas would not answer any of the doors. She yelled to Teas that she had a three-day notice to evict. Melson heard Teas's voice yelling at her, but he did not open any of the garage doors.
At 4:48 p.m. on February 18, 2014, Teas called 911. The Westminster Police Department and Orange County Fire Authority were dispatched to the house. Upon his arrival, firefighter Peter Dacquisto saw Teas outside the house. Teas stated there was a fire inside, shouted obscenities, and pointed toward the front door of the house. Dacquisto asked Teas if anyone was in the house, where the fire was, and how it started. Teas, whom Dacquisto described as combative, did not answer the questions but responded with obscenities while also urging the firefighters to move faster.
Fire Captain Eric Dalton of the Orange County Fire Authority saw Teas at the threshold of the front door of the house and asked him if anyone was in the house. Teas was either unable or unwilling to answer. Teas appeared to be intoxicated.
Dalton asked Teas to leave the house for his and the fire crew's safety; Teas refused. Westminster Police Officer David Skube repeatedly asked Teas, who was then in the living room, to leave the house; Teas refused. Skube and one of his partners physically removed Teas from the house and took him to a grass area in front of the house.
Skube asked Teas if anyone was inside the house and Teas said that he did not believe so. Skube asked Teas how the fire had started. Teas at first responded, "I don't know." Skube told Teas that because, presumably, Teas had been the only person inside the house, he must have known how the fire had started. Teas responded, "guess what, dumbass, I started it, all right." Skube confirmed, "you started it?" and Teas responded, "[y]eah." While Skube was on his handheld radio contacting dispatch with Teas's information, Teas struck Skube twice in the abdomen. Teas was then taken into custody.
Inside the house, Dacquisto found part of the stairs on fire with "active flames." He was able to extinguish that fire with two gallons of water. Arson investigator Raymond Falcon of the Orange County Fire Authority testified that "the fire had actually penetrated the wood and started getting up underneath the stairs when the firefighters got there." A stair rail was burned away. The firefighters forced open the door to the master bedroom where a second fire was located and had burned carpet.
Dacquisto testified that based on his firefighting experience, the two fires "appeared to [have been] started separately." He stated, "[t]hey were isolated to spots on the carpet that were 20, 30 feet apart from each other." The two fires were not "in a direct line" and had had a closed door between them. Dacquisto further stated he did not see any way that a fire from either spot could have jumped to the other spot. He testified that the bedroom fire appeared to have been started first because it had "consumed more fuel" than the staircase fire. Dacquisto stated the bedroom fire had more flames spanning a broader area.
Falcon testified that in his expert opinion, each fire was intentionally set. He further testified that an ember from either fire could not have "somehow floated under the doorway in the master bedroom" and caused the other fire.
PROCEDURAL HISTORY
Teas was charged in an information with two felony counts of committing arson of an inhabited structure in violation of section 451, subdivision (b) (counts 1 and 2), and one misdemeanor count of committing a battery on a peace officer in violation of section 243, subdivision (b) (count 3). The jury found Teas guilty as charged on all three counts.
The trial court sentenced Teas to a total prison term of three years by imposing the low term of three years on count 1 and a concurrent three-year sentence on count 2. The court stayed execution of the sentence on count 2 pursuant to section 654. The court also sentenced Teas to one year in jail on count 3; the court stayed that sentence pending Teas's completion of serving his sentence on count 1, at which time that sentence would become permanently stayed. Teas appealed.
DISCUSSION
I.
Teas Was Properly Convicted of Two Counts of Arson of an Inhabited Structure.
Teas argues his conviction for committing arson of an inhabited structure in violation of section 451, subdivision (b), charged as count 2, must be dismissed because "setting two simultaneous fires in the same structure constitutes only one crime of arson." (Capitalization & boldface omitted.) Teas's argument is without merit.
"The fundamental task of statutory construction is to 'ascertain the intent of the lawmakers so as to effectuate the purpose of the law. [Citations.] In order to determine this intent, we begin by examining the language of the statute.'" (People v. Cruz (1996) 13 Cal.4th 764, 774-775.) Section 451 provides in relevant part: "A person is guilty of arson when he or she willfully and maliciously sets fire to or burns or causes to be burned or who aids, counsels, or procures the burning of, any structure, forest land, or property. [¶] . . . [¶] (b) Arson that causes an inhabited structure or inhabited property to burn is a felony punishable by imprisonment in the state prison for three, five, or eight years." (Italics added.)
Here, substantial evidence showed Teas set two separate fires—one on the floor in Melson's master bedroom and another on the staircase of the house. Expert testimony established that the two fires were of separate origins. The evidence showed that given the distance and the closed door between the fires, one did not cause the other to start; they were separately set. One fire burned carpet and the other burned the staircase.
It is well established that arson is completed upon the burning of a part of a structure. In People v. Haggerty (1873) 46 Cal. 354, 354-355, a fire was "set in old rags, saturated with coal oil, and lying upon the floor of the house, but was quickly discovered, and put out." The California Supreme Court rejected the defendant's argument that there was insufficient burning of a house to constitute arson, stating: "Upon the question of what is a sufficient burning to constitute the crime, [a criminal law treatise] states the rule thus: 'The word "burn" enters into the definition of arson at common law; and it occurs in many statutes. It means to consume by fire. If the wood is blackened, but no fibers are wasted, there is no burning; yet the wood need not be in a blaze. And the burning of any part, however small, completes the offense, the same as of the whole. Thus, if the floor of the house is charred in a single place, so as to destroy any of the fibers of the wood, this is a sufficient burning in a case of arson.' [Citation.] There was evidence tending to show that a spot on the floor was charred, so as to destroy the fibers of the wood by the fire set by the defendant; and there was no evidence directly contradicting that fact. To some of the witnesses, it is true, the spot only appeared to be blackened, and not charred. But we cannot say that the verdict was so contrary to the evidence as to justify us in reversing the judgment on that account." (Id. at p. 355; see People v. Simpson (1875) 50 Cal. 304, 306 [evidence that a wooden partition inside a building, and annexed to it, was charred by fire and burned through in one place was sufficient evidence of burning to constitute arson]; see also In re Jesse L. (1990) 221 Cal.App.3d 161, 167 [sufficient evidence supported arson of a structure conviction because "testimony of 'burn patterns' on the floor of the building and the bottom edge of the counter and on the face of the doors was sufficient to establish that an area on the floor and a door were charred so as to destroy the fibers of the wood by the fire set by the appellant"].)
CALCRIM No. 1502, which is based on section 451, subdivision (b) and the California Supreme Court precedent discussed ante, was given to the jury, modified as follows:
"The defendant is charged [in Count 1 & 2] with arson that burned an inhabited structure [in violation of Penal Code section 451(b)].
"To prove that the defendant is guilty of this crime, the People must prove that:
"1. The defendant set fire to or burned . . . [or] caused . . . the burning of . . . a structure . . . ;
"2. . . . He . . . acted willfully and maliciously;
"AND
"3. The fire burned an inhabited structure.
"To set fire to or burn means to damage or destroy with fire either all or part of something, no matter how small the part.
"Someone commits an act willfully when he does it willingly or on purpose.
"Someone acts maliciously when he intentionally does a wrongful act or when he acts with the unlawful intent to defraud, annoy, or injure someone else.
"A structure is any . . . building . . . [.]
"A structure is inhabited if someone lives there and either is present or has left but intends to return.
"Count 1 refers to the bedroom. Count 2 refers to the stairs." (First brackets in original, second brackets added, & italics added.) Teas does not argue that the jury was erroneously instructed.
In his opening brief, Teas acknowledges that he "has not found a published decision in which the Court of Appeal held that the defendant was improperly convicted of two counts of arson for setting two simultaneous fires in the same structure." Substantial evidence showed each fire resulted in the burning of the house, which indisputably qualifies as an inhabited structure within the meaning of section 451, subdivision (b). Therefore, Teas was properly convicted of two counts of arson under that statute.
II.
The Trial Court Record and the Abstract of Judgment Must Be Corrected to Reflect
No Section 654 Stay on the Execution of the Sentence on Count 2, Which Runs
Concurrently with the Sentence Imposed on Count 1.
In the respondent's brief, the Attorney General states, "because the trial court was unauthorized to stay [Teas]'s second arson conviction under Penal Code section 654, this court should remove the stay and effect the court's alternative order to sentence [Teas] concurrently." (Boldface & some capitalization omitted.) "[I]t is well established that the appellate court can correct a legal error resulting in an unauthorized sentence (including a misapplication of § 654) at any time." (People v. Sanders (2012) 55 Cal.4th 731, 743, fn. 13.)
At the sentencing hearing, the trial court sentenced Teas to the low term of three years for each of counts 1 and 2, but stayed execution of sentence as to count 2 under section 654. The court stated, "another argument would be for concurrent time, and I would be comfortable with that as well under [California Rules of Court,] rule 4.425. If somehow it's determined on appeal that the court is wrong about 654, I'm quite comfortable with making it concurrent."
The California Supreme Court has held that "'[b]y its plain language section 654 does not bar multiple punishment for multiple violations of the same criminal statute.' [Citation.] Section 654 expressly applies only to '[a]n act or omission that is punishable in different ways by different provisions of law . . . .' (§ 654, subd. (a), italics added.)" (People v. Sanders, supra, 55 Cal.4th at p. 742, citing People v. Correa (2012) 54 Cal.4th 331.)
As discussed ante, substantial evidence supported Teas's two separate convictions for violating section 451, subdivision (b), based on his separate acts of setting a fire in the house. Section 654 did not apply to Teas's violations of section 451, subdivision (b), and the trial court should not have stayed execution of sentence on count 2 based on section 654.
In his reply brief, Teas agrees with the Attorney General that "if [Teas] was properly convicted of two counts of arson . . . , then the Superior Court improperly stayed the sentence for count 2 under Penal Code section 654. [The Attorney General] is correct that the Supreme Court's decision in People v. Correa (2012) 54 Cal.4th 331, makes clear that Penal Code section 654 does not apply to 'multiple violations of the same statute.' [Citation.] [Teas] also agrees with [the Attorney General] that, if [Teas] was properly convicted of two counts of arson, then this Court should simply order the stay vacated and a two-year [sic] concurrent sentence for count 2 imposed—as the Superior Court already stated that this would be its sentence if the stay was improper."
We therefore remand with directions that the trial court correct Teas's sentence. Consistent with the alternative sentence that the trial court announced at the sentencing hearing, on remand, the court shall remove the section 654 stay on execution of sentence on count 2 and instead provide for the three-year sentence imposed on count 2 to run concurrently with the three-year sentence imposed on count 1.
DISPOSITION
The judgment is affirmed. We remand and direct the trial court to correct the trial court record to reflect that for count 2, Teas was sentenced to a three-year term to run concurrently to the sentence imposed on count 1 and that execution of sentence on count 2 is not stayed. We further direct the trial court to amend the abstract of judgment to reflect this correction, and forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
FYBEL, J. WE CONCUR: BEDSWORTH, ACTING P. J. MOORE, J.