Opinion
B225861
12-07-2011
THE PEOPLE, Plaintiff and Respondent, v. ANDRE BUTLER, Defendant and Appellant.
Edward J. Horowitz, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr. and Nima Razfar, Deputy Attorneys 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. PA063497)
APPEAL from a judgment of the Superior Court of Los Angeles County. Jose I. Sandoval, Judge. Affirmed.
Edward J. Horowitz, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr. and Nima Razfar, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found defendant Andre Butler guilty of two counts of arson of property of another. (Pen. Code, § 451, subd. (d).) Appellant subsequently admitted suffering a prior conviction. On one count, the trial court sentenced appellant to a total of nine years in prison, consisting of four years for the count, plus a five-year term for the prior prison term enhancement. The court stayed the similar sentence on the other count.
Unless otherwise noted, all statutory references are to the Penal Code.
Appellant contends that as a matter of law, he could only be convicted of a single count of arson and that the trial court abused its discretion by restricting cross-examination of a witness. As we shall explain below, his conviction of multiple arson counts was proper, and the court did not abuse its discretion. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
I. Prosecution Case
A. The Fire
On January 11, 2009, Neuman Habana returned from county jail after serving time for violating his drug program. Habana lived in a homeless camp next to a freeway off-ramp. The homeless camp included makeshift shelters with other homeless people living in the area, including appellant. When Habana returned to the camp, he noticed appellant was staying at his shelter. Reluctantly, Habana gave appellant a few days to gather his belongings and move out of the shelter.
On January 17, at around 3 p.m., Habana began to move appellant's belongings out of the shelter. Appellant became enraged and threatened to hit Habana. Appellant threatened to set Habana's shelter on fire. Habana testified that he warned appellant that he would report appellant to the police if appellant set Habana's shelter on fire. About 10 minutes later, appellant returned with a container, pouring an unidentifiable liquid over a tree next to Habana's shelter.
Habana went to call the police and noticed that appellant was following him close behind. At this time, Habana ran into Miguel Huerta, and they exchanged a few words before appellant arrived. Habana returned to his shelter, and Miguel and appellant discussed the situation. Miguel testified that appellant appeared very angry and threatened to burn down the shelter; Miguel warned appellant not to do anything foolish. Appellant insisted he was going to burn down every off-ramp and on-ramp in the area.
Shortly thereafter, appellant returned to the shelter and exchanged a few heated words with Habana before pulling out a lighter and setting some pine needles on fire near the shelter. Sue Huerta, who was standing next to them, attempted to put out the fire a couple of times. The third time, appellant succeeded in setting a fire, and Sue ran to get more water, but by now, the fire was spreading too fast to put out. The fire burned an area approximately 50 feet by 25 feet including Habana's shelter and belongings along with several trees belong to Caltrans.
B. Arson Investigation
During the trial, Michael Camello, a fire arson investigator with the Los Angeles Fire Department testified that he investigated the fire shortly after firefighters extinguished the fire. Camello determined that the origin of the fire was in the area of a tree attached to the shelter and caused by an open flame, such as that from a lighter. A lighter was subsequently recovered from appellant's pocket after his arrest.
II. Defense
Appellant testified on his own behalf and disputed the facts surrounding the fire. Appellant asserted that he took ownership of the shelter after Habana went to jail, and after Habana returned from jail, the ownership of the shelter was never an issue. Further, appellant claimed that moments before the start of the fire, he saw people gathered by his shelter smoking cocaine, including Sue, who was using a pan and a candle to heat heroin. Moments later, as Habana was getting up from a futon near the shelter, appellant pulled it from under him. Appellant suggested the futon must have hit the pan and started the fire. Appellant attempted to put out the fire, but it had quickly spread. Appellant went to a nearby fast food restaurant and asked the manager to call 9-1-1. Appellant also denied ever arguing or threatening Habana and denied that any of the burned property belonged to Habana.
On rebuttal, investigator Camello testified that the wax from the candle would not have caused the fire.
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Appellant filed a timely notice of appeal from the judgment.
DISCUSSION
Appellant contends that as a matter of law and statutory interpretation, he could only be convicted of a single arson count. Appellant asserts that under the arson statute, section 451, subdivision (d), a single act of burning property cannot be charged as two separate offenses based on different ownership of the properties.
I. Defendant was properly convicted of two separate counts of arson.
"The fundamental task of statutory construction is to 'ascertain the intent of the lawmakers so as to effectuate the purpose of the law. In order to determine this intent, we begin by examining the language of the statute.'" (Citations omitted.) (People v. Cruz (1996) 13 Cal.4th 764, 774-775.)
In general, a person may be convicted of, although not punished for, more than one crime arising out of the same act or course of conduct. "In California, a single act or course of conduct by a defendant can lead to convictions 'of any number of the offenses charged." (Original italics.) (People v. Montoya (2004) 33 Cal.4th 1031, 1034; see also § 954; People v. Ortega (1998) 19 Cal.4th 686, 692.) Section 954 generally permits multiple convictions. Section 654 is its counterpart concerning punishment; it prohibits multiple punishments for the same "act or omission." When section 954 permits multiple convictions, but section 654 prohibits multiple punishments, the trial court must stay execution of sentence on the convictions for which multiple punishment is prohibited. (Ortega, at p. 692; People v. Pearson (1986) 42 Cal.3d 351, 359-360.)
Section 954 provides, in pertinent part, "An accusatory pleading may charge two or more different offenses connected together in their commission, or different statements of the same offense . . . under separate counts. . . . The prosecution is not required to elect between the different offenses or counts set forth in the accusatory pleading, but the defendant may be convicted of any number of the offenses charged." (Italics added.) "Thus multiple charges and multiple convictions can be based on a single criminal act, if the charges allege separate offenses." (People v. Muhammad (2007) 157 Cal.App.4th 484, 490.) The only exception to the general rule permitting multiple convictions prohibits multiple convictions based on necessarily included offense. (People v. Reed (2006) 38 Cal.4th 1224, 1227.)
Additionally, section 451, provides in pertinent 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. . . . [¶] (d) . . . For purposes of this paragraph, arson of property does not include one burning or causing to be burned his or her own personal property unless there is an intent to defraud or there is injury to another person or another person's structure, forest land, or property." Thus, arson is committed when the "property" burned does not belong to the person causing the fire.
We reject appellant's contention that section 451.5, another arson statute, is instructive here. "In 1994, the Legislature enacted section 451.5 (the aggravated arson statute) out of concern that the existing penalties for arson did not take into account 'the extent of damage inflicted.'" (People v. Muszynski (2002) 100 Cal.App.4th 672, 681.) "The enactment was designed to 'increase the penalties for the worst arsonists who . . . inflict serious damage.'" (Ibid.) A single offense of aggravated arson occurs when one or more structures or inhabited dwellings are burned. However, in this case, appellant was convicted of two counts of simple arson under section 451, which involves the willful and malicious burning of any structure of another.
In the present matter, the arson convictions were appropriate under the arson statute since the information charged appellant with two separate counts of the same offense, one fire which burned Habana's shelter and Caltrans property. Appellant erroneously suggests that since the statute does not include the precise phrase "the property of another person" similar to previous arson statutes, there was a clear legislative intent to permit only a single conviction for a single offense. However, as defined therein, the statute (§ 451, subd. (d)) clearly states "property does not include one burning or causing to be burned his or her own personal property," which is another way of stating "property of another." The prosecution appropriately charged appellant with two separate counts of arson where ownership of the shelter might be disputed. By burning property not belonging to him, appellant committed arson as defined in section 451, and the trial court properly sentenced appellant for one count of arson.
II. The trial court's limitation on the defense cross-examination of Habana was proper.
Appellant contends that the trial court erred in refusing to permit him to recall and cross-examine prosecution witness Habana regarding the drug activity of other people at the homeless camp. Appellant also contends the court erred in denying his motion to strike Habana's testimony or declare a mistrial.
A. Background
During cross-examination, defense counsel asked Habana about the drug activity of other people at the homeless encampment, including Sue and Miguel. Habana refused to answer such questions stating, "I can't tell you what I saw because it doesn't affect anyone else." The court instructed Habana to answer questions regarding Sue's drug activity, but he refused. Habana did eventually admit he smoked rock cocaine by himself at the time of the fire.
Subsequently, defense counsel moved for a mistrial and to strike Habana's entire testimony based on his refusal to answer questions regarding other witnesses' drug activity and their ability to perceive the circumstances surrounding the fire. The court maintained its position that it would delay any decision pending the testimony of Sue and Miguel.
During cross-examination of Sue, she testified that people used drugs frequently at the encampment. However, Sue denied using any drugs the day of the fire, but she admitted to using heroin until about two weeks before the fire when she switched to methadone, a substance to help her with heroin withdrawal. Miguel also testified and admitted using heroin on a daily basis and with Sue on the day of the fire.
Subsequently, before resting, appellant asked to recall Habana; the court denied it on the grounds that such information had been admitted from other witnesses and that the probative value of this information was outweighed by the time it would consume. (See Evid. Code, § 352.)
B. The Law
A trial court retains wide latitude to restrict cross-examination of an adverse witness on Evidence Code section 352 grounds without running afoul of the confrontation clause. (People v. Harris (1989) 47 Cal.3d 1047, 1090-1091.) That latitude is consistent with the trial court's statutory duty to "exercise reasonable control over the mode of interrogation of a witness so as to make interrogation as rapid, as distinct, and as effective for the ascertainment of the truth" as possible. (Evid. Code, § 765, subd. (a).)
The law entrusts the trial court with the general responsibility to exercise reasonable control over the proceedings: "It shall be the duty of the judge to control all proceedings during the trial, and to limit the introduction of evidence and the argument of counsel to relevant and material matters, with a view to the expeditious and effective ascertainment of the truth regarding the matters involved." (§ 1044.)
On appeal, an Evidence Code section 352 ruling is subject to the deferential abuse of discretion standard of review. (People v. Kipp (2001) 26 Cal.4th 1100, 1121.) Only if the record shows an exercise of discretion in an arbitrary, capricious, or patently absurd manner that caused a manifest miscarriage of justice will an Evidence Code section 352 ruling be overturned. (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)
Appellant argues restricting the cross-examination of Habana about other people's drug activity violated his right under the state and federal Constitutions to confront witnesses against him (U.S. Const. 6th & 14th Amends.; Cal. Const., art. I, § 15) and was an abuse of the trial court's discretion under Evidence Code section 352.
Although the right of confrontation includes the right to cross-examine adverse witnesses on matters reflecting on their credibility, "trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination." (Delaware v. Van Arsdall (1986) 475 U.S. 673, 679.) In particular, notwithstanding the Confrontation Clause, a trial court may restrict cross-examination of an adverse witness on the grounds stated in Evidence Code section 352. (See People v. Harris, supra, 47 Cal.3d at pp. 1090-1091.) A trial court's limitation on cross-examination pertaining to the credibility of a witness does not violate the Confrontation Clause unless a reasonable jury might have received a significantly different impression of the witness's credibility had the excluded cross-examination been permitted. (Delaware v. Van Arsdall, supra, 475 U.S. at p. 680; People v. Belmontes (1988) 45 Cal.3d 744, 780 disapproved on another point in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
It does not follow, of course, that the Confrontation Clause prevents a trial judge from imposing any limits on defense counsel's inquiry into the potential bias of a prosecution witness. On the contrary, trial judges retain wide latitude to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness's safety, or interrogation that is repetitive or only marginally relevant. (People v. Harris, supra, 47 Cal.3d at p. 1091.) "[T]he Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish." (Original italics.) (Delaware v. Fensterer (1985) 474 U.S. 15, 20.)
Further, in deciding whether to strike a witness's testimony based on his or her refusal to answer one or more questions, the trial court should examine "'the motive of the witness and the materiality of the answer.'" (Citation omitted; original italics.) (People v. Reynolds (1984) 152 Cal.App.3d 42, 47.) The court should also consider if less severe remedies are available before employing the "drastic solution" of striking the witness's entire testimony. (Id. at pp. 47-48.) These include striking part of the testimony or allowing the trier of fact to consider the witness's failure to answer in evaluating his credibility. (Id. at p. 48; People v. Hecker (1990) 219 Cal.App.3d 1238, 1248 disapproved on another point in People v. Soto (2011) 51 Cal.4th 229, 248, fn. 12.) The decision whether to strike the direct examination is left to the discretion of the trial court, and the refusal to answer only one or two questions need not lead to the striking of the testimony. (People v. Robinson (1961) 196 Cal.App.2d 384, 390.)
The trial court acted properly when it denied defense counsel's request to further cross-examine Habana on the drug use of Sue. The record clearly demonstrates, the trial court thoroughly examined the issue, heard arguments, and waited to decide whether other witnesses would disclose the information sought by defense counsel. After the testimony of Sue and Miguel, defense counsel asked to recall Habana to cross-examine him on the issue of drug use. Defense counsel acknowledge that Miguel had impeached Sue during his testimony, and trial court found that there was sufficient impeachment information from Sue and Miguel and that recalling Habana would be an undue consumption of time. The only question Habana did not answer during his testimony was regarding Sue's drug use, a fact established by both Sue and Miguel during their testimony.
Moreover, the appellant cites no authority for the principle that it is abuse of discretion for a trial judge to limit cross-examination in light of the foregoing circumstances. Appellant only cites to a general principle of the Confrontation Clause and its requirements in People v. Smith (2007) 40 Cal.4th 483, 513. Indeed that case held that limiting a capital murder defendant's cross-examination of a prosecution witness's juvenile record to his petty theft adjudication, but not other matters in his juvenile record, did not violate defendant's right under Confrontation Clause; defendant was allowed to cross-examine the witness about a threatening letter he had sent to his girlfriend, and the jury received unfavorable information about the witness through the witness's testimony concerning his participation in defendant's charged crimes. (Id. at pp. 512-514.)
Similarly here, appellant has failed to show that the cross-examination of Habana sought by defense counsel would have produced a significantly different impression of Habana's credibility. Given the evidence introduced at trial that tended to show drug activity in the encampment, appellant has not shown that introduction of conduct underlying additional drug use would have produced a significantly different impression of Habana's credibility.
Appellant's contention that the restriction imposed by the trial court created bias is unpersuasive as the recall of Habana would have been insignificant or cumulative. Sue admitted to using heroin and switching to methadone a couple of weeks before the fire, and Miguel corroborated much of Sue's testimony. Miguel did impeach Sue in his testimony by asserting that Sue had used heroin during the day of the fire. It is clear that such impeachment had greater value than any incidental impeachment Habana could offer if he were to be recalled.
Accordingly, the trial court neither deprived appellant of his confrontation right or abused its discretion when it did not permit defense counsel to further cross-examine Habana to further impeach him. Moreover, the court did not err in denying appellant's motions for a mistrial or to strike Habana's testimony.
DISPOSITION
The judgment is affirmed.
WOODS , Acting P. J.
We concur:
ZELON, J.
JACKSON, J.