Opinion
H043080
01-17-2018
THE PEOPLE, Plaintiff and Respondent, v. CHANNING PARKER VERDEN, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. CC940151)
The Summit Fire in May 2008 burned several thousand acres in the Santa Cruz Mountains and destroyed structures and outbuildings. Defendant Channing Parker Verden was arrested and charged with recklessly causing the wildfire based on preliminary hearing evidence it originated from a burn pile left by Verden after a brush removal operation. The district attorney later dismissed that charge, and Verden petitioned the trial court for a finding of factual innocence under Penal Code section 851.8. On appeal, Verden claims that the court erred in denying his petition and, specifically, failed to employ the burden-shifting analysis required under the statute. We shall affirm.
Unspecified statutory references are to the Penal Code.
I. BACKGROUND AND PROCEDURAL HISTORY
The summary of facts is derived from the preliminary hearing testimony and from the California Department of Forestry and Fire Protection (Cal Fire) "Investigation Report for the Summit Fire," dated April 23, 2009.
Brush Clearing and Burning: Late March through Early April 2008
In March 2008, property owner Andrew Napell hired Verden to clear brush, trees, and vegetation from Napell's unimproved mountain property along Summit Road in Santa Clara County. Napell and Verden agreed that Verden would have the area cleared and debris fully burned before the end of the 2008 burn season in late April. Napell told Verden to have a water truck onsite and someone present at all times, and not to start burning until Cal Fire inspected the site.
Verden hired Cheyenne Sun Hill and Carl Edwards to help clear the site. The men worked over a period of about two weeks starting around the last week of March. Hill and Edwards operated chainsaws while Verden operated the excavator. They cut trees, cleared brush, and stacked the debris into burn piles. According to Hill, they cut live trees and added them to the burn piles, even though it was common knowledge that green fuel would take longer to burn. Edwards said that the burn piles were about 10 feet tall and relatively wet. Hill thought that the burn piles looked "a little too big." The largest pile was 15 or 20 feet at the highest point and about 50 feet wide. There was no effort to extinguish the burn piles at the end of the days. Hill would "run out and kill" any sparks that got away from the burn piles and kept smoldering. He put out six to eight "little burns" that occurred approximately 100 yards away from the main burn pile and were caused by embers blown by the wind.
Sometime during the first week, the water truck rolled down a hill and became inoperable. Verden told Napell that the water truck was unavailable but he intended to continue burning the debris. The operation ended around April 4, when Verden called Napell to tell him that the excavator had burned after its operating arm broke loose and hydraulic fluid caught fire. They agreed that the clearing and burning job was over. Verden said that he would bring his backhoe to the property to finish cleaning up the site as a safety measure. Napell returned to the property one or two weeks later to pay Verden and retrieve the chainsaws. The burning appeared to be over; the burn piles were not hot.
Cal Fire Personnel Inspect the Site on March 25 and April 2, 2008
Cal Fire Deputy Chief Katherine Price visited the site on the morning of March 25, 2008, to investigate smoke. Price saw the clearing operation and two or three burn piles about 20- by 10-feet and more than 10-feet tall. One pile was burning. She did not see a water source. Price told Verden that he needed water onsite and somebody to monitor the piles, that the piles needed to be out at dark, and that the piles were too large to manage. She told him that the green material in the piles needed to be separated and cured for 60 days before it could be burned. Verden responded that he was familiar with how to conduct the burn operation and was working on getting a water source to the site but would not put the piles out overnight because they were too big. Price did not order Verden to put the fire out.
At the time, Price was Battalion Chief for the Santa Cruz unit.
A Cal Fire engineer, Jared Koos, visited the site later that afternoon after a member of the public reported seeing smoke. There was no one onsite. He noted three debris piles of average to large size, smoldering with some open flames. The wind was calm and Koos did not believe the burn was out of control or needed to be extinguished. However, he reported the unattended burn piles at dusk to Cal Fire.
On April 2, 2008, Cal Fire Captain Randy Castro and Battalion Chief Darrell Wolf inspected the site at Napell's request. Wolf noted "large piles" of "large-diameter trees and roots" measuring about 50 feet in diameter and up to 20- or 30-feet high. Castro told Verden that the piles were "way too big" and needed to be reduced to 10-feet by 10-feet so they could burn down within the required time, a half-hour before sunset. Wolf reiterated the size parameters for the piles and told Verden that he could not leave the burn unattended overnight and needed to have a water source and fire tools onsite. Neither Wolf nor Castro returned to the Napell property after signing the burn notification form to see how the burn was being conducted.
Napell had contacted Captain Castro several times for him to inspect the site and sign the notification for burning required by the Bay Area Air Quality Management District.
The Summit Fire Spreads on May 22, 2008
Holly Waddle lives on the property neighboring the Napell property. On May 10, she took her grandchildren on a short hike up the hill to the Napell property. They observed the burn piles. Waddle saw that one pile with a large tree stump still had hot embers and was smoking, and another pile was smoldering. She instructed her grandchildren to stay away because she was afraid they would get burned.
Frank Deto, who lives about one-quarter mile from the Napell property, reported a fire to Cal Fire around 4:40 a.m. on May 22, 2008. He observed a strong wind that morning, coming from the north, with the fire initially on the Santa Clara County side of Summit Road. The wind had been "above average" for a few days leading up to the fire. Deto had seen clearing operations, including a burned excavator, and Cal Fire vehicles at the property a few weeks before the fire.
Cal Fire Captain Greg Latronica responded to the Napell property around 5:00 a.m. Latronica saw seven or eight "really large" debris piles that had burned down but still had "a large amount of heat, embers, some burning material left." There was a strong east wind blowing at about 50 miles per hour. Latronica observed the fire was moving towards the west from the area where the burn piles were located on the Napell property. It appeared to have started on the Santa Clara County side of Summit Road and burned across into Santa Cruz County.
Latronica communicated his observations of the fire that morning to Chief Price, who arrived at the property around 1:30 p.m. Price observed one of the piles smoking with glowing embers. The temperature reading for that pile exceeded 900 degrees, and a second pile exceeded 1,000 degrees.
Cal Fire Deputy Chief Joshua White met Price later that afternoon to investigate the Summit Fire's origin and cause. White observed that the burn piles "were very large, substantially large from what I'm used to seeing in my career." They were composed of "a heavy soil mixture mixed in with the ash as well as woody debris spread throughout." One pile ranged from small embers up to large woody stumps. Two piles were burning "deep inside" with a significant amount of fuel covered by dirt, which depending on variables can insulate and extend the burn time.
White testified that a dirt-covered pile is "burning and burning slower . . . . [¶] As that happens you're having the heat build up and eventually the soil is going to open up. As the fuel moves underneath that soil you—and the release of the heat as well as some [of] the off gases, you have what we refer to as blow holes in the burn pile."
White and Price identified two specific origin areas on either side of Summit Road, considering factors such as fuel conditions and characteristics, moisture, topography, and wind. They determined that conditions were consistent with embers from one of the burn piles on the east side of the road crossing with the wind and igniting material to the west side of the road. There were "no other signs of ignition other than the burn pile to the east." They did not test for accelerants because there was no indication of accelerant usage.
Battalion Chief Eric Wood joined Price and White at the onsite investigation on the evening of May 22. He observed a large cleared area with evidence of heavy equipment use. Several piles on the west slope of the clearing had the remains of brush and partially burned vegetation on the edges, which indicated that "no maintenance or tending of the piles occurred as they burned." Wood observed smoke rising from the other two burn piles.
The Summit Fire was contained on May 28, 2008. It burned 4,270 acres and destroyed 132 structures and outbuildings.
Cal Fire Identifies Verden's Burn Pile as the Source of the Summit Fire
The findings from Cal Fire's origin and cause investigation are summarized in the Summit Fire Investigation Report, authored by Battalion Chief Wood. The report concludes: "After conducting a thorough origin and cause investigation, excluding all other potential ignition sources and interviewing several eye witnesses [sic], the cause of the Summit Fire was determined to be embers from an illegal burn operation located on property owned by" Napell. It indicates that the burning of debris on the Napell property was conducted in an "unsafe manner," with "over sized [sic] piles," that were "not properly extinguished." Investigators found that two of "six large burn piles" were "still burning" on the day the fire ignited; both "recorded temperatures in excess of 900 [degrees] Fahrenheit." The pile ultimately determined to be the cause of the fire was located 128 feet and 10 inches due east of the origin area; the wind, according to one of the first fire captains to arrive onsite that morning, was blowing from the east.
Deputy Chief White was the investigative officer for the Cal Fire report. He testified at the preliminary hearing as an expert in fire behavior and the investigation and determination of origin and cause of fires including wildland fires. White opined, consistent with the Cal Fire report, that the Summit Fire started when embers escaped from one of Verden's burn piles and were carried into a receptive fuel bed. Other potential sources of ignition such as a campfire, utilities, lightning, arson, or smoking were not corroborated by any evidence. The investigation did not yield any points of origin for the Summit Fire other than the burn piles on the Napell property. According to White, an ember from a burn pile could travel 100 feet with a five mile-per-hour wind "relatively easily" depending on the size of the ember and the amount of convective heat rising from the pile.
B. FINDINGS AFTER PRELIMINARY HEARING
The trial court judge, sitting as magistrate, made several findings. The court found that Cheyenne Sun Hill was "very credible" in testifying that he believed the burn operation was not conducted safely. The court also found that several different Cal Fire personnel informed Verden that his burn was not in compliance with safety standards. Even though these authorities did not order Verden to stop the clear-and-burn operation, the court found that Verden remained responsible for maintaining a proper course of action throughout the time he worked at the site. The court concluded that there was sufficient evidence to hold Verden to answer on the felony charge alleged in the complaint of unlawfully causing a fire that causes an inhabited structure or property to burn, in violation of section 452, subdivision (b), as well as on the allegation that Verden proximately caused multiple structures to burn, within the meaning of section 452.1, subdivision (a)(4).
"A person is guilty of unlawfully causing a fire when he recklessly sets fire to or burns or causes to be burned, any structure, forest land or property. [¶] . . . [¶] (b) Unlawfully causing a fire that causes an inhabited structure or inhabited property to burn is a felony punishable by imprisonment in the state prison for two, three or four years, or by imprisonment in the county jail for not more than one year, or by a fine, or by both such imprisonment and fine." (§ 452, subd. (b).)
The district attorney subsequently filed a two-count information, alleging that Verden (1) unlawfully caused a fire that causes an inhabited structure or property to burn, a felony (§ 452, subd. (b); count 1), with the aggravating circumstance that Verden proximately caused multiple structures to burn (§ 452.1, subd. (a)(4)); and (2) negligently caused a fire, a misdemeanor (Health & Saf. Code, § 13000; count 2).
The case remained pending for trial over the course of the next two years. In January and May 2013, the People moved to dismiss the felony and misdemeanor charges, respectively, under section 1385. The trial court granted the dismissals.
C. PETITION FOR DETERMINATION OF FACTUAL INNOCENCE
After the charges against him were dismissed, Verden petitioned for a determination of factual innocence under section 851.8, subdivision (b).
The petition asserted that factors including weather and fuel conditions, and distance from the burn piles to the fire point of origin, disproved Cal Fire's hypothesis that an ember from Verden's burn piles started the Summit Fire. In support, Verden submitted a summary of an expert opinion stating that the known facts disproved "to a reasonable degree of scientific certainty" the Cal Fire hypothesis that the Summit Fire was caused by a windblown ember from one of his burn piles. Furthermore, the petition challenged the credibility and integrity of Deputy Chief White and Cal Fire, based on findings in another wildfire case that White had falsified evidence and misled the investigation, as well as his purported failure to follow proper investigation procedure in this case and improper financial interest in a potential cost recovery settlement. The petition also asserted that Verden could not be found reckless because he had taken reasonable and proper precautions in the burn operation.
The Third District Court of Appeal recently filed its decision following the appeal of the case referenced in Verden's petition, which involved the Moonlight Fire that occurred in September 2007 in Plumas County. (See Department of Forestry & Fire Protection v. Howell (2017) 18 Cal.App.5th 154 (Department of Forestry).) We discuss the relevance of the Moonlight Fire case in the Analysis, post, section II.C.1.
The People opposed the petition, arguing that it was untimely under the statute and failed to meet the initial burden of showing no reasonable cause to believe that Verden had committed the crime for which he was arrested.
The timeliness of the petition, which was filed more than two years after dismissal of the charges, is not at issue on appeal.
The trial court denied the petition after a hearing and rejected Verden's request to allow the defense expert to testify. The court stated that it did not need to hear testimony because it was giving "full credit" to the expert's declaration and theory: "[T]he burden on these motions is very, very high. And even crediting your expert and even discrediting the prosecution's theory, . . . I still think that it doesn't amount to satisfaction of the burden; i.e., that state of facts as would lead a [sic] man of ordinary care and prudence to believe and consciously entertain the honest and strong suspicion that the person is guilty of a crime."
The court indicated that while the defense's approach probably "would have carried the day at trial" by establishing reasonable doubt, "achieving that is [not] the same as showing no reasonable cause. And so that is what I am going to conclude, and deny the motion on that basis."
II. DISCUSSION
Verden contends that his petition for a finding of factual innocence satisfied the initial burden under section 851.8 to show that no reasonable cause exists to believe he recklessly caused the Summit Fire, thus shifting to the prosecution the burden of proving reasonable cause. Our independent review of the record confirms that while Verden's petition adeptly challenges Cal Fire's causation findings and the prosecution's ability to prove recklessness beyond a reasonable doubt, it does not overcome the demanding standard imposed on a defendant seeking to establish factual innocence under section 851.8.
A. STATUTORY FRAMEWORK
Section 851.8, subdivision (c) provides in relevant part, "In any case where a person has been arrested, and an accusatory pleading has been filed, but where no conviction has occurred, the defendant may, at any time after dismissal of the action, petition the court that dismissed the action for a finding that the defendant is factually innocent of the charges for which the arrest was made. . . . The hearing shall be conducted as provided in subdivision (b)."
Under section 851.8, subdivision (b), "[a] finding of factual innocence . . . shall not be made unless the court finds that no reasonable cause exists to believe that the arrestee committed the offense for which the arrest was made. In any court hearing to determine the factual innocence of a party, the initial burden of proof shall rest with the petitioner to show that no reasonable cause exists to believe that the arrestee committed the offense for which the arrest was made. If the court finds that this showing of no reasonable cause has been made by the petitioner, then the burden of proof shall shift to the respondent to show that a reasonable cause exists to believe that the petitioner committed the offense for which the arrest was made. If the court finds the arrestee to be factually innocent of the charges for which the arrest was made, then the court shall order [the sealing and subsequent destruction of all records of the arrest]." (Italics added.)
"Reasonable cause" for purposes of this determination is " ' "defined as that state of facts as would lead a man of ordinary care and prudence to believe and conscientiously entertain an honest and strong suspicion that the person is guilty of a crime." ' " (People v. Laiwala (2006) 143 Cal.App.4th 1065, 1069 (Laiwala); People v. Adair (2003) 29 Cal.4th 895, 904 (Adair).) Accordingly, a defendant seeking relief under section 851.8, " 'must establish that facts exist which would lead no person of ordinary care and prudence to believe or conscientiously entertain any honest and strong suspicion that the person arrested [or acquitted] is guilty of the crimes charged.' " (Adair, supra, at p. 904.) Determining whether reasonable cause exists is not limited to the evidence that was available when the arrest and prosecution occurred, but may draw on evidence that is currently available. (Laiwala, supra, at p. 1068, fn. 3; Adair, supra, at p. 905, fn. 4 ["facts subsequently disclosed may establish the defendant's innocence"].)
The defendant's burden is undeniably high: " ' "[F]actually innocent" as used in [section 851.8, subdivision (b)] does not mean a lack of proof of guilt beyond a reasonable doubt or even by "a preponderance of evidence." [Citation.]' [Citation.] Defendants must 'show that the state should never have subjected them to the compulsion of the criminal law—because no objective factors justified official action [Citation.] In sum, the record must exonerate, not merely raise a substantial question as to guilt." (Adair, supra, 29 Cal.4th at p. 909; see People v. Esmaili (2013) 213 Cal.App.4th 1449, 1459 (Esmaili).)
B. STANDARD OF REVIEW
"In an appeal from a trial court's order on a petition for a determination of factual innocence under section 851.8, we defer to the trial court's factual findings to the extent they are supported by substantial evidence, but independently review the record to determine whether the defendant sustained his burden of showing that no reasonable cause exists to believe he or she committed the charged offense." (Esmaili, supra, 213 Cal.App.4th at pp. 1457-1458, citing Adair, supra, 29 Cal.4th at p. 906; People v. Bleich (2009) 178 Cal.App.4th 292, 300 (Bleich).)
C. ANALYSIS
Verden contends that any of the three bases cited in his petition for factual innocence satisfied the defense's initial burden under section 851.8 and required the trial court to shift the burden of proof to the prosecution. He asserts that the petition made a prima facie showing that (1) Cal Fire's conclusions about the source of the Summit Fire were counterfactual and not supported by the evidence in the record, (2) Verden's burn operation and failure to extinguish the piles with water was consistent with Cal Fire's own practices and could not be deemed "reckless" by any reasonable person, and (3) the prosecution's case was discredited insofar as it depended on the investigatory work of Cal Fire and Deputy Chief White, who were subjected to monetary and terminating sanctions for serious misconduct in the Moonlight Fire case. The People respond that the evidence in the petition might have raised questions about Verden's guilt at trial but did not meet the exceedingly high threshold of proving factual innocence.
The trial court in the Moonlight Fire case determined in postjudgment proceedings that Cal Fire had engaged "in pervasive discovery abuses." (Department of Forestry, supra, 18 Cal.App.5th at p. 166.) These included "Cal Fire's failure to produce responsive documents in violation of court orders, false deposition testimony by Cal Fire's lead investigator, falsification of interview statements incorporated into Cal Fire's discovery responses, spoliation of Cal Fire's investigator's notes, and inclusion of false reports in Cal Fire's discovery responses." (Ibid.) The Court of Appeal reversed the postjudgment order imposing monetary discovery sanctions against Cal Fire for discovery abuses, and remanded for further proceedings, but affirmed the order imposing terminating sanctions against Cal Fire in relation to the same conduct. (Id. at pp. 165, 183.) The appellate court's analysis of the misconduct and resulting sanctions, however, appears only in the nonpublished portion of the recently-filed opinion. (See id. at pp. 163-164.)
Verden was arrested and charged with a violation of section 452, subdivision (b), defined as "[u]nlawfully causing a fire" by "recklessly set[ting] fire to or burn[ing] or caus[ing] to be burned" (§ 452, subd. (a)) an inhabited structure or inhabited property. The statute defines "recklessly" in relevant part to mean that "a person 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. The risk shall be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation." (§ 450, subd. (f).)
Under section 851.8, Verden thus bore the initial burden of proving that no reasonable person would " 'believe or conscientiously entertain any honest and strong suspicion' " (Adair, supra, 29 Cal.4th at p. 904) that he (1) caused the Summit Fire, (2) by consciously disregarding a substantial and unjustifiable risk that his burn piles would cause the property or forest land to burn.
1. The Record Establishes Reasonable Cause to Believe Verden's Burn Pile Started the Summit Fire
Verden relies primarily on the opinion of the proffered defense expert, Bernard R. Cuzzillo, Ph.D., to support his contention that no reasonable cause exists to believe that one of his burn piles caused the Summit Fire. He also claims the petition discredited the prosecution's case insofar as it depended on the investigatory work of Cal Fire and Deputy Chief White as the investigating officer.
Dr. Cuzzillo's opinion was summarized in a one-page synopsis attached to Verden's petition. The synopsis identified several flaws with Cal Fire's hypothesis that the Summit Fire began as a holdover from Verden's burn piles. The flaws related to (1) wind and weather data at the time of and in the days preceding the fire, (2) the distance that a burning ember would have had to travel over unheated bare ground, (3) the location of the burn piles in relation to the point of origin of the fire, (4) the characteristics of the viable fuel bed, and (5) Cal Fire's reliance "on the discredited use of 'negative corpus,' or the supposed exclusion of all other causes." Specifically, Cuzzillo indicated that cooler weather, 57 percent humidity, and wind direction on the morning of the fire were inconsistent with the conditions necessary for a burning ember to escape from the pile, stay aloft for the required time and distance, and land in a viable fuel bed. Cuzzillo noted Cal Fire's conclusion in its report that the " 'weather pattern [was] not conducive to smoking as an ignition' " based on the weather pattern and relative humidity. Yet, according to Cuzzillo, a "glowing brand from a burn pile is burning in smoldering combustion" like a cigarette and thus has "the same requirements for an ignitable fuel bed." Cuzzillo also challenged Cal Fire's methodology in excluding other causes for the fire, like arson, as inconsistent with current standards for fire investigations.
Cuzzillo concluded that in light of these flaws, Cal Fire's hypothesis that the Summit Fire began as a holdover from Verden's burn pile "is not supported by the evidence." He opined "to a reasonable degree of scientific certainty" that the hypothesis based on Verden's burn piles "is disproved."
The trial court indicated it would credit the expert opinion in full. On appeal, Verden contends that once the court credited Cuzzillo's opinion that the Summit Fire did not start as a holdover from one of his burn piles, the burden should have shifted to the prosecution "to show that a reasonable cause exists to believe that" he caused the fire.
The People dispute that Cuzzillo's opinion made the prima facie case required to shift the burden under section 851.8, because both lay witnesses and Cal Fire personnel testified that an ember from Verden's burn piles was capable of igniting brush 125 to 150 feet away. For example, they argue that when Captain Latronica responded to the Napell property around 5:00 a.m. on the morning of the Summit Fire, his observations of wind direction and speed, and location and direction of the brush fires, as well as the temperature readings of the burn piles taken several hours later, were consistent with Cal Fire's hypothesis that an ember escaped from one of Verden's burn piles and blew west. They also point to Cheyenne Sun Hill's testimony that he put out six to eight spot fires up to 100 yards away from the main burn piles while assisting Verden at the Napell property. Finally, citing the proposition that "[a]n expert may not base his opinion on conjecture [citation] but may identify a causative force by a process of eliminating other causes" (People v. Sundlee (1977) 70 Cal.App.3d 477, 484), the People reiterate that Cal Fire investigators did not identify any plausible, alternative causes for the fire other than Verden's burn piles.
Verden responds that none of these factors disprove Cuzzillo's opinion that the atmospheric conditions preceding the fire would not have enabled an ember to escape the pile, remain burning aloft for the necessary distance, and ignite a brush fire, nor does Cal Fire's failure to identify alternative causes for the fire comport with its stated methodology of adhering to wildfire investigation guidelines established by the National Wildlife Coordinating Group.
We find the defense expert's opinion insufficient to demonstrate the absence of reasonable cause as to the element of causation. (Laiwala, supra, 143 Cal.App.4th at p. 1070 [defendant can establish factual innocence by demonstrating the absence of reasonable cause to support a single element of the crime charged].) The testimony of Captain Latronica, Chief Price, and Deputy Chief White, separately and together, provide reasonable cause to believe that the heat of the burn piles, wind speed, and wind direction blew hot embers from one of the piles to the origin sites west and southwest of the Napell property. The testimony of eye witnesses about wind conditions on the night and early morning of the fire, and Holly Waddle's testimony that one burn pile had hot embers and was smoking in mid-May when she visited the site, further support a finding that a person of ordinary care and prudence could " 'conscientiously entertain [an] honest and strong suspicion' " (Adair, supra, 29 Cal.4th at p. 904) that an ember from one of the piles started the Summit Fire.
We agree with Verden that Cheyenne Sun Hill's testimony about spot fires that occurred while the crew was actively adding fuel to the burn piles, many weeks before the Summit Fire started, is not relevant to the causation element as must be determined based on conditions when the fire started. We therefore do not count this aspect of Hill's testimony among the objective factors that support a finding of reasonable cause.
Hence, even accepting the trial court's determination to credit "in full" Cuzzillo's opinion as supported by substantial evidence, the court nevertheless is faced with conflicting evidence on the likelihood that the Summit Fire originated with Verden's burn pile. Such conflicting evidence does not amount to a showing " 'that there was no reasonable cause to arrest him in the first place.' " (Adair, supra, 29 Cal.4th at p. 905, quoting People v. Matthews (1992) 7 Cal.App.4th 1052, 1056.) Put differently, while Cuzzillo's opinion challenges Cal Fire's methodology and conclusion about the source of the fire, it does not eliminate the objective factors that the prosecution relied on to justify official action. (Adair, supra, at p. 905 [petitioners must show " 'no objective factors justified official action' "]; Bleich, supra, 178 Cal.App.4th at p. 300 [inquiry into factual innocence asks "whether the evidence shows appellant was actually innocent and under no set of circumstances could be subjected to the criminal process or whether the evidence on the record, while inadequate for a [conviction], still leaves a person of ordinary care and prudence believing there is an honest and strong suspicion appellant was guilty"].) Two cases that illustrate this point are Laiwala and People v. Medlin (2009) 178 Cal.App.4th 1092, 1104 (Medlin).
In Laiwala, the defendant's conviction for grand theft of a trade secret was reversed due to insufficient evidence that the information the defendant took qualified as a trade secret. (Laiwala, supra, 143 Cal.App.4th at p. 1067.) After the superior court denied the defendant's petition for a finding of factual innocence, the appellate court reversed, finding the defendant had established, and the prosecution failed to refute, that there was no evidence that the source code taken by the defendant, or the master key that it contained qualified as a trade secret. (Id. at pp. 1070-1072.) The court explained that "no reasonable person could conscientiously believe that the master key was a trade secret in the absence of any evidence to that effect." (Id. at p. 1071, italics added.)
In Medlin, a jury acquitted two nurses of charges of dependent adult abuse likely to produce great bodily harm or death, and the trial court granted their petitions for a finding of factual innocence. (Medlin, supra, 178 Cal.App.4th at p. 1094.) The appellate court reversed, noting that a mistake by the prosecution's expert regarding a key fact in the deceased patient's health record "substantially undermined [the expert's] credibility, but it did not negate all legal cause to suspect criminal negligence" on the part of the defendants. (Id. at p. 1104.) Rather, several instances in the record showed that the nurses failed to properly treat the patient's declining condition and respond to his distress, providing reasonable cause to believe that each was criminally negligent. (Ibid.)
The same principle that informed the outcomes in Medlin and Laiwala guides our analysis here. Cuzzillo's expert opinion raises substantial questions about the reliability of Cal Fire's methodology, including its purported exclusion of other possible causes, its coherence with established guidelines for fire investigations, and the strength of its conclusion about the likely source of the fire. But like in Medlin, Verden's submission of expert opinion evidence to discredit the prosecution's evidence and disprove its theory of liability "does not negate all legal cause to suspect" criminal culpability. (Medlin, supra, 178 Cal.App.4th at p. 1104.)
Nor does the evidence that Deputy Chief White and Cal Fire engaged in egregious misconduct in a different fire investigation equate to a showing that no evidence supports a finding of reasonable cause in this case. (Cf. Laiwala, supra, 143 Cal.App.4th at p. 1071.) Verden contends that White cherrypicked witness statements for the origin and cause investigation in this case and ignored evidence that contradicted Cal Fire's hypothesis, such as conflicting witness statements about the wind direction when the fire started. Yet these witness statements, including those citing north/northeast wind directions as well as easterly wind direction, are contained in the Summit Fire investigation report and may be weighed against the evidence that supports Cal Fire's investigation findings. Verden does not suggest that censurable misconduct like that in the Moonlight Fire case, e.g., false testimony by White or falsification of interview statements (see Department of Forestry, supra, 18 Cal.App.5th at p. 166) occurred here. Absent such direct evidence, any argument based on documented misconduct from an unrelated case, including Cal Fire's alleged improper financial interest in cost recovery, appears limited to its impeachment value and does not eliminate the fact that other " 'objective factors justified official action . . . .' " (Adair, supra, 29 Cal.4th at p. 909.)
We conclude that by attacking Cal Fire's investigation methods and findings, Verden raises reasonable doubt as to the causation element of the crime charged. However, he falls short of his burden to establish that no person of ordinary care and prudence could maintain an honest and strong suspicion that an ember from his burn pile ignited the Summit Fire.
2. The Record Establishes Reasonable Cause to Believe Verden's Conduct Was Reckless
Verden next contends that he met his initial burden of showing no reasonable cause as to the element of recklessness. He relies on an investigation report prepared by Cal Fire following the Loma Fire, which took place in October 2009 in the same area as the Summit Fire. According to Verden, the Loma Fire report negates the prosecution's theory that extinguishing the burn piles with dirt constituted "a gross deviation from the standard of conduct that a reasonable person would observe in the situation" (§ 450, subd. (f)), since that report shows that Cal Fire crews utilize similar measures to manage their burn operations. Verden also cites People v. Budish (1982) 131 Cal.App.3d 1043 (Budish) as support for the proposition that failing to take reasonable precautions or follow posted restrictions does not amount to criminal recklessness.
Like the Summit Fire, the Loma Fire occurred along Summit Road at the boundary between Santa Cruz and Santa Clara counties. On October 16, 2009, Cal Fire Captain Gomez supervised the burning of several piles in the area as part of a maintenance operation. Gomez burned dry brush until about 1:45 p.m. and directed the crew to fully extinguish, stir up the burned material, and pile dirt on top of the pile. He checked the pile and found no hot material before leaving the area. Gomez stated that he returned to the same location on October 21 and found the piles from October 16 " 'colder than cold.' " On October 25, fire suppression units responded to a brush fire that consumed over 400 acres and destroyed outbuildings and vehicles.
The Loma Fire report, attached to Verden's petition for a finding of factual innocence, identified embers from Gomez's burn pile, which had been extinguished with dirt, as the cause of the fire. Cal Fire hypothesized that loose dirt placed over the pile "probably 'crusted' over with the onset of moisture during the evening hours" and "insulated the hot material and kept it from cooling off." Hot embers from the pile blew into the duff and ground litter even though the burn pile complied with clearance requirements and the area had received about 13 inches of rainfall prior to October 16.
Verden contends in his appellate briefing that the " 'colder than cold' " piles from Gomez's October 16, 2009 burn were not the piles that ignited the Loma Fire, arguing that the record from the Loma Fire report "does not support Division Chief Engel's conclusion that 'the subject burn pile was burned by Cal Fire on October 16, 2009.' "
We disregard Verden's effort to challenge or contradict the stated findings of the Loma Fire report—evidence that he introduced in support of his petition and which is not the subject of any findings in this case. According to the Loma Fire report, Gomez returned to the location of the October 16 burn on October 21 intending to conduct burning operations at the same site but was directed to another site (the "repeater site") further up Loma Prieta Peak, where he burned "the largest [piles that] he had ever burned" and requested an engine to help mop up. Gomez and other fire captains at the repeater site only used some engine water on those burn piles, because the available engine was needed elsewhere. Since the burn pile from Gomez's October 16 operation is identified multiple times in the Loma Fire report as the origin of the Loma Fire, not the burn piles from the repeater site we disregard Verden's references to Cal Fire's findings regarding the contents of the actively smoking, 20by60 foot burn pile at the repeater site.
Cal Fire concluded in the Loma Fire report that Gomez had been negligent under Health and Safety Code section 13000 but did not cite a violation of section 452 based on recklessness. The report includes several fire captains' descriptions of Cal Fire burn practices. Gomez stated that he typically would establish a 10-by-10-foot or 10-by-20-foot pile of dry brush to burn, and the crew would not receive support from engines or carry water during the burning. Gomez explained that when he leaves a burn pile for the day he ensures there is no smoke and there is a line constructed around the pile. In windy conditions, he has his crew stir the pile using hand tools to mix the burned material and ash with dirt to cool off. Other Cal Fire captains in the Loma Fire investigation described similar practices based on scraping a line around a burn pile and turning it over, sometimes covering the pile with dirt. Covering the burned material with dirt can help keep hot material from blowing away with the wind. Captain Harris stated that "occasionally" an engine would be onsite and they would use water to help mop up.
"Every person is guilty of a misdemeanor who allows a fire kindled or attended by him to escape from his control or to spread to the lands of any person other than the builder of the fire without using every reasonable and proper precaution to prevent the fire from escaping." (Health & Saf. Code, § 13000.) --------
Verden argues that given the practices described in the Loma Fire report and Cal Fire's finding of negligence in that instance, he cannot be held more culpable under the circumstances of this case. Verden employs similar reasoning in comparing his conduct to that of the defendant in Budish. Budish was hired to clear brush and keep trespassers off unimproved mountain property. (Budish, supra, 131 Cal.App.3d at p. 1045.) The landowner cautioned Budish against lighting fires, and a county sign prohibiting fires was posted on a road adjoining the property. Even so, Budish used a small stone fire ring to heat water because the landowner failed to provide fuel for the propane stove. (Ibid.) On a clear and calm morning, he lit a fire in the stone ring and extinguished it with sand. Extreme winds arose and a blaze quickly spread, damaging thousands of acres and destroying homes. (Id. at p. 1046.) Budish was charged with a felony violation of section 452 for unlawfully causing the blaze, but the trial court dismissed the information for lack of reasonable cause that he had acted recklessly. (Budish, supra, at p. 1046.)
The appellate court affirmed the dismissal. (Budish, supra, 131 Cal.App.3d at p. 1046.) The court distinguished "conscious disregard of the risk by the reckless actor" from "failure to perceive the risk by the negligent actor." (Id. at p. 1048.) It found that having been deprived of a stove, Budish used the only means available to obtain hot water and did so "for many days out of sheer necessity, without incident and apparently with due care . . . ." (Ibid.) The court also characterized the wind force that day as an "unprecedented . . . factor" that Budish could not have "reasonably anticipated" since he made his fire during the early morning calm of the day. (Ibid.) It concluded based on these factors that there was "no evidence that [Budish] was aware of the risk of widespread conflagration and that he consciously disregarded that risk." (Ibid.)
We cannot agree that the record in this case supports the outcome Verden seeks. The record shows that Verden received several directives to reduce the size of the burn piles, to separate the fresh cut material and cure it, to extinguish the piles with water, and not to leave the piles burning unattended overnight. The prosecution's emphasis on Verden's "failure to close the site adequately" did not merely describe the fact that Verden used dirt to extinguish the burn piles. At a minimum, the interactions with Cal Fire personnel Price, Castro, and Wolf placed Verden on notice of the required safety measures, each of which he apparently disregarded while trying to complete the clearing operation before the end of the fire season. Although Verden contends that the prosecution fails to connect these warnings and risks to the allegedly reckless cause of the Summit Fire, evidence in the record suggests that the size of the piles, fuel mix (including the presence of large and fresh wood debris), lack of water, and use of dirt to cover the piles, enabled the piles to remain hot and smoldering even after weeks had passed.
This differentiates the evidence supporting reasonable cause for recklessness under section 452 from the evidence presented in the Loma Fire report and from the defendant's conduct in Budish. While the Loma Fire report cited Captain Gomez's burn pile, which he had covered with dirt, as the source of the embers that started the fire, it otherwise noted that the burn pile complied with the requirements set by the burn permit, had appropriate clearance, and was burned within a week of the area receiving approximately 13 inches of rainfall. The report contains no indication that Gomez flouted protocol or ignored stated risks. Cal Fire's practices of using dirt to extinguish burn piles certainly casts doubt on whether Verden's conduct in covering the burn piles with dirt—without more—grossly deviated from the standard of conduct sufficient for a conviction based on recklessness. But it does not negate the evidence presented to the trial court in this case that Verden was directed to adjust several aspects of his operation to comply with safety measures but nevertheless continued unhindered.
Nor can Verden's actions be characterized as a mere failure to perceive the risk posed by noncompliance with the rules expressed to him. (Cf. Budish, supra, 131 Cal.App.3d at p. 1048.) The magnitude of the operation on the Napell property, with its attendant fire risks and admonitions from Cal Fire personnel who visited the site, dwarfs comparison to Budish, in which the defendant's decision to make "a small contained campfire during the early morning calm of that day" followed "many days" of taking the same action "out of sheer necessity, without incident and apparently with due care . . . ." (Ibid.)
We find that evidence of Verden's apparent disregard for the guidance and directives given by Cal Fire during the burn operation was sufficient to support an objective observer's reasonable belief or " 'honest and strong suspicion' " (Adair, supra, 29 Cal.4th at p. 904) that Verden consciously disregarded a substantial and unjustifiable fire risk posed by his burn piles. (§§ 452, 450, subd. (f).) Neither the holding of Budish nor the information and findings in the Loma Fire report serves to "negate all legal cause to suspect" recklessness on Verden's part. (Medlin, supra, 178 Cal.App.4th at p. 1104.) Because Verden is unable to make a prima facie showing of no reasonable cause for the charge of recklessly causing the Summit Fire, we conclude that the trial court did not err in denying Verden's petition for a finding of factual innocence.
III. DISPOSITION
The order denying the petition for a finding of factual innocence is affirmed.
/s/_________
Premo, J. WE CONCUR: /s/_________
Elia, Acting P.J. /s/_________
Grover, J.