Opinion
D075508
08-06-2020
THE PEOPLE, Plaintiff and Respondent, v. CEDRIC LEROY BLACK, Defendant and Appellant.
Nancy J. King, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Allison V. Acosta, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCD274293) APPEAL from a judgment of the Superior Court of San Diego County, Laura W. Halgren, Judge. Affirmed with a remand for resentencing. Nancy J. King, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Allison V. Acosta, Deputy Attorneys General, for Plaintiff and Respondent.
Cedric Black broke into a home when the elderly resident was at a rehabilitation facility, stole various items including a checkbook, and then set fires in six different parts of the house in an attempt to conceal the crime. He then used the checkbook and other personal information to obtain goods and services.
After two jury trials, Black was found guilty of arson and burglary of an inhabited structure, and three counts of using the personal identifying information of another (identity theft). (Pen. Code, §§ 451, subd. (b), 459, 530.5, subd. (a).) Black admitted two serious prior felonies (§ 667), two strike priors (§ 667, subds. (b)-(i)), and that he had served a prior prison term (§ 667.5, subd. (b)). After striking one strike and one serious felony, the court imposed a sentence of 23 years 4 months that included one year for the prior prison term enhancement (§ 667.5, subd. (b)).
Unspecified statutory references are to the Penal Code. --------
Black contends (1) insufficient evidence supports the jury's finding the home was "inhabited" under the burglary and arson statutes; (2) the court abused its discretion in permitting the prosecution to present a 10-second video showing how an aerosol spray accelerates a fire; and (3) his prior prison term no longer qualifies for a one-year enhancement under new legislation amending section 667.5, subdivision (b). (Stats. 2019, ch. 590, § 1.)
The first two contentions are without merit. We agree with the third. As the Attorney General acknowledges, section 667.5, subdivision (b) now applies only when the prior prison term was "for a sexually violent offense" and this statutory element does not apply to Black's prior prison term. The legislative change is retroactive. Accordingly, we remand for the court to strike the one-year enhancement and resentence Black. The judgment is affirmed in all other respects.
FACTUAL AND PROCEDURAL SUMMARY
At about midnight in June 2017, there was a fire at a Mount Soledad residence owned by 97-year-old Kathryn Robinson. Robinson was not home that evening because she was at a rehabilitation facility after a hospital stay. Before going to the hospital, Robinson lived in the home alone but received daily assistance from her son and his family, who lived nearby. She owned several rental properties in the area, and the tenants would pay her by sending rental checks to her home.
Within 20 minutes after the fire began, neighbors called firefighters who put out the fire. The home suffered substantial fire damage. Some of Robinson's items were missing, including a checkbook and extra checks.
Later that evening, Black tried to open a bank credit line in Robinson's name. During the next several months, one of Robinson's tenants noticed unauthorized payments from his checking account. Black later admitted he was responsible for these unauthorized charges.
Fire investigators determined the fire was deliberately set. This conclusion was based primarily on evidence showing there were six different "uncommunicated" fires, meaning there were six different places in the house (several bedrooms, a stairwell, a coffee table, and kitchen) where a fire was started and the fires did not reach the other areas. Deliberate conduct was also established by evidence of fire-starting materials placed on the burned beds and on the heated electric stovetop. Additionally, firefighters found a can of brake cleaner spray on the kitchen dinette, and an expert fire investigator opined that in some areas it appeared an ignitable liquid or spray was used to start the fire.
Investigators also determined that someone had broken into the house shortly before the fire began. They found a broken window in the upstairs balcony with wet blood droplets near the window. Blood droplets were also found in other areas of the home and on items in and near the home.
Based on information in the credit applications submitted by Black in Robinson's name, police officers identified Black as a possible suspect. About five months after the fire, police officers went to his apartment, and Black attempted to exit through a back window. After finding evidence that Black's fingerprints and DNA were found in Robinson's home, the district attorney charged Black with first degree burglary, arson, and three counts of identity theft.
Robinson and her adult son each died (of natural causes) before the first trial in October 2018.
At the first trial, the prosecution presented the evidence summarized above. Black testified in his own defense, acknowledging he was at Robinson's house, but denying he started a fire and describing instead an elaborate series of events to explain his presence in the home. The jury found Black guilty of the three counts of identity theft, but could not reach a verdict on the burglary and arson offenses. The court declared a mistrial on these latter counts.
A second trial was held on the arson and burglary counts in January 2019. As at the first trial, the prosecution presented the evidence summarized above, including the expert fire investigator's testimony about the six separate fires and other grounds for his conclusion that the fire was deliberately started. Also, as at the first trial, the prosecution presented a 10-second demonstration video of an aerosol can igniting a flame.
Black again testified in his own defense, asserting the same detailed version of the events that purportedly led him to be in Robinson's home. In summary, Black said that on one early evening in June 2017, he went to Robinson's home with a young woman ("Jennifer") who he had just met at a beach party. Jennifer drove him to the Robinson home and told him this was her home and she had forgotten the key. Jennifer then asked Black to go into the house through the upstairs back window. After having to break the window, he entered the house but started to bleed from the broken window. Jennifer "became frantic" and told him to leave. This woman did not testify at trial, and there was no evidence that any young woman was connected with Robinson or her family. Black said that Robinson's checkbook was (for unexplained reasons) in the back of Jennifer's car and he took the checkbook. As he did at the first trial, Black admitted using the checkbook and other personal information to obtain goods and services.
After deliberating for about two days, the second jury found him guilty of first degree burglary and arson.
DISCUSSION
I. Evidence Supported Jury's Finding Robinson's Home Was Inhabited
Black contends we must reverse the burglary and arson convictions because there was insufficient evidence showing Robinson's home was inhabited on the night of the fire.
A. Legal Principles
To prove first degree burglary and arson, the prosecution was required to prove Robinson's home was "inhabited." (§§ 451, subd. (b), 459, 460, subd. (a).) As the jury was instructed, the word "inhabited" for both crimes means the structure is "currently being used for dwelling purposes," whether or not the residence is occupied. (People v. Meredith (2009) 174 Cal.App.4th 1257, 1266 (Meredith); People v. Jones (1988) 199 Cal.App.3d 543, 548 (Jones) ["inhabited" has same meaning for arson and first degree burglary].)
Under this definition, a dwelling is inhabited even if the owner is temporarily absent. (Meredith, supra, 174 Cal.App.4th at p. 1266; People v. Marquez (1983) 143 Cal.App.3d 797, 801 (Marquez).) The "dispositive element is whether the person with the possessory right to the house views the house as his [or her] dwelling." (People v. Cardona (1983) 142 Cal.App.3d 481, 484; Marquez, at pp. 801-802.) Courts "look to the intent of the . . . person entitled to occupy the dwelling . . . ." (Marquez, at p. 801; accord Meredith, at p. 1266; People v. Hernandez (1992) 9 Cal.App.4th 438, 441-442; Jones, supra, 199 Cal.App.3d at pp. 548-549.)
Thus, a formerly inhabited dwelling becomes uninhabited only when its occupants have moved out permanently and do not intend to return to resume using the structure as a dwelling. (Meredith, supra, 174 Cal.App.4th at p. 1266; People v. Jackson (1992) 6 Cal.App.4th 1185, 1189.) Additionally, an owner's " 'possible intent to abandon the habitation in the future does not alter its character as an inhabited dwelling.' " (People v. Aguilar (2010) 181 Cal.App.4th 966, 970-971.)
Whether a residence was inhabited under the burglary and arson statutes is a factual question. (People v. Burkett (2013) 220 Cal.App.4th 572, 582.) When considering a challenge to a jury's factual finding, " 'we review the entire record in the light most favorable to the judgment to determine whether it contains' " evidence that is " 'reasonable, credible, and of solid value' " to support the conclusion. (People v. Covarrubias (2016) 1 Cal.5th 838, 890.) If the circumstances reasonably justify the finding, reversal " 'is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.] A reviewing court neither reweighs evidence nor reevaluates a witness's credibility.' " (Ibid.)
B. Relevant Facts
The prosecution presented evidence that 97-year-old Robinson had lived in her home for about 32 years. Although she had some health issues, she was mentally healthy and alert and continued to engage in activities such as gardening. Fifteen years earlier she had been diagnosed with a "very slow . . . moving" metastatic breast cancer, and she had suffered broken hips at various times.
About one month before the fire, Robinson was admitted to the hospital for breathing problems. After about one week, she was temporarily placed in a rehabilitation facility until she had recovered sufficiently to return home or be released to a long-term facility. While at the hospital and rehabilitation facility, she strongly desired to return home as soon as she could be released.
When asked about his discussions with Robinson during this time, her grandson (who was a primary caregiver) testified that "all she wanted to do" was to "go back to the house" and not live in a retirement home or another facility. Her daughter-in-law (Tamara) also said that the plan was that she was "going to come home." Tamara testified that the family had honored Robinson's wishes about allowing her to stay in her home: "That's what she wanted to do and we were happy to do that. We had somebody there pretty much every single day of the week, whether [her grandson] or us." Tamara said the family had started to have discussions during the latest hospital stay about finding a placement with a higher level of care, but no decision had been reached before the fire occurred.
Tamara testified that shortly after the fire, the rehabilitation facility notified the family that Robinson was being released, but "she had no home to go to" so the family had to "scramble[ ]" to check out "a whole bunch of different places." When asked, "Had it not been for the fire when she was released, where would she have gone?," Tamara responded: "Home. . . . [W]e didn't have a [different] place yet for her to go."
C. Analysis
The foregoing facts provide ample evidence to support the jury's inhabited finding. Although Robinson was temporarily away from home, she intended to return and had not moved out of her home. Under these circumstances, a home remains occupied for purposes of the burglary and arson statutes. (See Meredith, supra, 174 Cal.App.4th at pp. 1259-1260, 1264-1269 [93-year-old homeowner was critically ill in a skilled nursing facility after being hospitalized for months, and died several days after burglary; court found home inhabited because homeowner had expressed desire to return home and had not yet moved out, and home was being maintained by friend/accountant]; Marquez, supra, 143 Cal.App.3d at pp. 800-802 [house "inhabited" where owner was under a conservatorship and was staying in a board-and-care residence, but she had expectation she would return home and conservators were maintaining house].)
Black's appellate challenges to the jury's conclusion are without merit.
First, Black argues that Robinson's "time of living alone at the house was nearing an end." (Italics added.) Although this may be true, this fact does not show Robinson's occupancy had ended. The critical point is that Robinson still considered her house as her residence, and she had not moved out temporarily or permanently. All of her items were still in her home, and the family was taking care of the house as if she still lived there. Under these circumstances, the home remained occupied. (See Meredith, supra, 174 Cal.App.4th at pp. 1264-1269.)
Additionally, the fact that Robinson's family was starting to look for alternate living arrangements and/or thinking about renting the home in the future does not negate an occupancy finding. First, it is Robinson's intent and not her family's desires that is most relevant. Second, the undisputed fact is that although the family had started considering alternate living arrangements, they had not yet made that decision or persuaded Robinson to live somewhere other than her home. Robinson's items were still in the home, and her grandson was going to the home on a regular basis to check her mail, do her laundry, and bring her clothing and other items.
Further, Black's assertion that "[a]t the time of the fire her house was being renovated to get it ready for rental" is factually unsupported. The evidence showed Robinson had always maintained the house in a good condition, and in the past several years had refinished the wood floors, improved the backyard landscaping, and installed a new irrigation system. Contrary to Black's arguments, the evidence did not support that these past improvements reflected a present intent to abandon the house.
We also find unhelpful Black's reliance on testimony by neighbors that they had not seen her for several years. The fact that a woman in her late 90's (who had daily visits from family) did not spend time outside her house or in the neighborhood does not preclude an "inhabited" determination.
Finally, the fact that the jurors in the prior trial could not agree on a verdict does not support Black's challenge to the evidence on the inhabited element. There is no suggestion the jurors in the prior trial did not agree on this issue. In any event, in reviewing a sufficiency-of-the-evidence challenge, our focus is on the evidence presented at the second trial, and this evidence was more than sufficient to establish this element.
II. Demonstration Video
Black contends the court abused its discretion when it admitted a brief video of a fire investigator igniting the same type of brake cleaner spray found near the origin of at least one fire.
A. Background
Before the first trial, Black moved to exclude videos of experiments conducted by the fire investigator, arguing the videos were not relevant and unduly prejudicial. At the hearing on the motion, the prosecutor showed two videos: (1) a 10-second video in which an investigator lit the spray from a brake cleaner aerosol can and a large flame was produced; and (2) a 28-second video in which the investigator used the can of brake cleaner fluid to ignite a piece of wood.
The prosecutor made an offer of proof that the brake cleaner can in the videos was identical to the can found on Robinson's dinette table immediately after the fire, and the videos would assist in explaining his expert's testimony that the aerosol in the can is flammable and "is capable of sustaining a fire on an object." Defense counsel objected on the grounds of relevancy and Evidence Code section 352, arguing the laboratory analysis had not shown that a brake cleaner was used in conjunction with the fire, and the videos are "shocking" and "sensationalized."
In response to the first point, the prosecutor said his expert would testify that the fact the laboratory could not detect an accelerant did not change his opinion that one was used in this fire, particularly because accelerants are not always found in a laboratory analysis.
After viewing the videos and considering the arguments, the court said it was inclined to admit the first (but not the second) video. The court explained: "[W]hen we were talking in chambers and you were describing to me what the purpose of [the can] was, I couldn't really visualize how you would even have a fire caused by spraying a fluid . . . . [¶] Even if someone described it, I don't know that I would understand because I just haven't been around those kinds of things . . . . I think it would be helpful to the jury to understand what [the witnesses] are talking about."
During the first trial, the first video was played during the fire investigator's testimony. The jury did not reach a verdict on the arson and burglary counts.
At the outset of the second trial, the court ruled it would again permit the first video to be shown. During trial, the prosecution showed the video during the testimony of the prosecutor's fire investigator expert, Wayne Whitney, who was responsible for determining the origin and cause of the Robinson house fire.
Whitney testified he found six independent places where fires were deliberately started in Robinson's home, and explained in detail how each fire likely started. Of relevance here, he said one of the fires began on a coffee table in the living room, close to where the brake cleaner can was found. He testified that "[t]he burn patterns [on the table] were consistent with an accelerant being sprayed onto the exterior and igniting the top portion of the table. The table didn't sustain burning, as evidenced by it's still [being] intact. . . . But there is smoke staining and thermal changes." He further testified that when he first inspected the house, he found the brake cleaner can on the kitchen dinette table near the living room with the coffee table. He opined that because of the burn pattern on the coffee table, it is likely the brake cleaner can was used as a torch to accelerate the fire in that area. Whitney said to test this theory, he purchased the same brand of brake cleaner and conducted burn tests with this item on the apparatus floor of the fire station.
The prosecutor then played the brief video for the jury, which shows a fire official spraying the brake cleaner can on the flame of a small disposable lighter, resulting in a large flame. When Whitney was asked about the "significance" of the video to the burn damage on the table, Whitney testified: "[T]he significance is a scenario where the brake cleaner was used as an accelerant, as a torch to ignite items that could occur, one. And, two, the fire damage and patterns that were present on the coffee table as well as on the carpeted stairs were consistent with use of an ignitable liquid or spray."
Whitney acknowledged that a laboratory tested various burned materials from the Robinson home and did not detect any ignitable liquid in these samples. But Whitney testified the wood from the coffee table was not submitted to be tested, and he continued to believe the brake cleaner can was likely used to accelerate the fire on this table based on the burn patterns on the tabletop, and the fact there were unburned papers in the middle of the table. He opined the "fire was a result of the accelerant or spray being applied in an attempt to set the coffee table on fire."
B. Legal Analysis
Demonstrative evidence is admissible to illustrate and clarify a witness's testimony if it would be helpful to a jury and a proper foundation is laid. (People v. Roldan (2005) 35 Cal.4th 646, 708; see People v. Duenas (2012) 55 Cal.4th 1, 20-25.) Even if relevant and helpful, a court may exclude the evidence under Evidence Code section 352 if it is unduly prejudicial and has only a slight probative value. (See People v. Caro (2019) 7 Cal.5th 463, 509.) In this context, "prejudicial" means that it would "uniquely . . . evoke an emotional bias against a party . . . ." (People v. Scheid (1997) 16 Cal.4th 1, 19.) A court has broad discretion in deciding whether to admit demonstrative evidence under these standards. (Caro, at p. 508; Duenas, at pp. 20-21; People v. Tran (2020) 50 Cal.App.5th 171, 187.)
The trial court did not abuse its discretion. Based on our review of the video and Whitney's testimony, the trial court had a reasonable basis to find the video would be useful in explaining Whitney's opinion that an accelerant could have been used in at least one place with respect to starting the fire (the fire on the coffee table). The video was helpful to show jurors how aerosol spray would have caused the fire to ignite in a much more aggressive fashion than merely using a match or lighter. The video allowed the jury to see what that ignition process looked like, and thus helped the jury understand Whitney's opinion.
Black contends the video should have been excluded because there was no "forensic evidence showing an accelerant had been used." (Italics added.) However, Whitney opined that even though the laboratory did not detect aerosol spray, he continued to believe an accelerant had been used. The fact that there were no forensic results to support the expert's opinion goes to the weight of the expert's testimony and the accompanying video evidence, and not the admissibility.
Black also argues the video was unduly prejudicial because the video "encouraged the jury to engage in rampant speculation about how the fire[s] were started." The argument is not factually supported. Whitney explained in great detail the grounds for his conclusions that six fires were deliberately started, and described the sites and probable triggers for each fire. The video properly illustrated the investigator's testimony about his theory about how at least one of the fires was deliberately set. Based on our review of the video, we found nothing in the video that would invoke an emotional reaction untethered to the facts of the case. The video helped the jury understand Whitney's testimony, and there is no reasonable basis to conclude it would have encouraged the jury to engage in speculation.
III. One-Year Enhancement
The information alleged Black had served one prior prison term for coercion and enticement (18 U.S.C. § 2422(B)) under the one-year enhancement statute (§§ 667.5, subd. (b), 668). Black admitted the truth of this allegation.
At the time of sentencing, section 667.5, subdivision (b) provided for a one-year enhancement for each prior prison term served for "any felony" with an exception not applicable here. Effective January 1, 2020, Senate Bill No. 136 amended this statute by providing for the one-year enhancement only for prior prison terms served for a conviction of a "sexually violent offense." (Stats. 2019, ch. 590, § 1.) The parties agree this amendment is retroactive and applies to all cases not yet final as of its effective date. (See In re Estrada (1965) 63 Cal.2d 740, 742; People v. Keene (2019) 43 Cal.App.5th 861, 865 (Keene).)
Because Black did not serve the prior prison term for a "sexually violent offense" as defined in the current statutory version (§ 667.5, subd. (b)), the enhancement must be stricken and the case remanded for resentencing. (See Keene, supra, 43 Cal.App.4th at p. 865.)
DISPOSITION
The sentence is vacated. The trial court is ordered to strike the one-year enhancement under section 667.5, subdivision (b) and resentence Black. Following resentencing, the court shall amend the abstract of judgment, and forward the amended abstract to the Department of Corrections and Rehabilitation. The judgment is affirmed in all other respects.
HALLER, J. WE CONCUR: McCONNELL, P. J. O'ROURKE, J.