Opinion
F070779
03-28-2017
THE PEOPLE, Plaintiff and Respondent, v. MANUEL CANEZ, Defendant and Appellant.
Sandra Gillies, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Gregory Wagner and Ian Whitney, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. F11900487)
OPINION
APPEAL from a judgment of the Superior Court of Fresno County. James Petrucelli, Judge. Sandra Gillies, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Gregory Wagner and Ian Whitney, Deputy Attorneys General, for Plaintiff and Respondent.
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Manuel Canez was convicted in a jury trial of all counts alleged in an 11-count information. In the instant appeal, he argues for reversal of his convictions on two counts of arson and one count of robbery. As to one of the counts of arson, he argues the court's admission of evidence related to "alerts" by an accelerant-sniffing dog at the site of the relevant fire was prejudicial error. As to the other arson count, Canez argues the court was required to dismiss it because certain "potentially useful" evidence was destroyed prior to trial, on account of fire officials' bad faith. Canez next challenges his robbery conviction for insufficiency of the evidence. Finally, he argues the robbery conviction must be reversed because the court failed sua sponte to instruct the jury on grand theft person, a lesser included offense of robbery. We reject each contention and affirm the judgment.
PROCEDURAL HISTORY
A first amended information (information) filed in the Fresno County Superior Court charged Canez with 11 criminal counts as follows: two counts of arson of an inhabited structure (counts 1, 10; Pen. Code, § 451, subd. (b)), second degree robbery (count 2; § 211), misdemeanor battery (count 3; § 243, subd. (e)(1)), three counts of corporal injury to a cohabitant (counts 4, 7, 11; § 273.5, subd. (a)), two counts of false imprisonment by violence (counts 5, 9; § 236), misdemeanor delaying a peace officer (count 6; § 148, subd. (a)(1)), and criminal threats (count 8; § 422). The information further alleged that Canez had suffered a prior strike and serious felony conviction, and had served three prior prison terms. (§§ 667, subds. (b)-(i) & 1170.12, subds. (a)-(d); 667, subd. (a)(1); 667.5, subd. (b).)
Subsequent statutory references are to the Penal Code.
In count 11, Canez was also charged with personal infliction of great bodily injury. (§ 12022.7, subd. (e).)
After jury trial, Canez was convicted of all charges. In a bifurcated proceeding, the trial court found the strike and prior prison term allegations to be true. Thereafter, the court sentenced Canez to a prison term of 39 years and four months.
FACTS
A. Gettysburg apartment fire
In early 2010, Canez was living with his ex-wife Sylvia Bernal in her apartment at Gettysburg and Chestnut Avenues in Fresno. The two were in a dating relationship at the time. On January 21, 2010, during an argument, Canez repeatedly threatened to kill Bernal, telling her, at one point, " I am going to kill all of you motherfuckers." Bernal also noticed a knife in the back of Canez's waistband. Bernal testified, "I knew I was going to die that day."
Bernal cried the whole night, telling herself she had to get out of the situation. Canez drove her to work the next morning. Bernal testified, "So as soon as I got in [to work], I felt a relief, thank God I made it out of there." She called her daughter, Irene Meza, to ask her to tell Canez she would not be returning to the apartment. Bernal also asked Meza to call the police.
Canez left several phone messages for Bernal over the course of the day. In the messages, he threatened that Bernal was "going to pay" for her actions. He accused her of sexual liaisons with ni**ers and said she had AIDS. He cursed her place of work, Pelco, stating, "Fuck Pelco." He also told Bernal he had "flushed her W-2 forms down the toilet like the piece of shit that she is."
The court, refusing to use this grossly inflammatory term yet insisting on accuracy of the record, substitutes asterisks out of a sense of decency.
Later in the day, Bernal was escorted to her apartment by two police officers and her daughter, Meza, to retrieve clothes for work. On arrival, they found the unit had been thoroughly vandalized. The TV was thrown against the wall and broken, the computer was thrown on the ground, family photographs were defaced with spray paint or smashed, the toilet was spray painted, and Bernal's W-2 forms were in the toilet, in pieces. Various phrases like "bitch," "fuck you," "Sylvia loves ni**ers," "ni**er, ni**er," "ni**er lover," and "Pelco, bitch, AIDS" had been spray-painted on the walls in Canez's writing. The entire place—couches, beds, walls, floors, ceiling, Bernal's Bible—was smeared with a transmission or gear oil that was kept in the closet. The place smelled of the oil too and the empty container of oil was left in the apartment.
While the group was in the apartment, Meza got a call from Canez and gave the phone to Officer Chris Taliaferro, one of the officers who had escorted Meza and Bernal to the apartment. Canez said he was calling to tell Bernal that their apartment had been trashed but he had nothing to do with it. Early the next morning, January 23, 2010, the apartment manager called Bernal to tell her that her apartment had "burned down."
On January 26, 2010, City of Fresno Deputy Fire Marshal and Investigations Supervisor Don MacAlpine, along with fire investigators Christine Wilson and Floyd Wilding, began an investigation into the cause of the fire, which was confined to Bernal's apartment. Investigator Wilson used a hydrocarbon detector to search for traces of accelerants like gasoline, kerosene, and flammable solvents. The detector signaled the presence of accelerant in three locations, one in the kitchen, one in the dining room, and one on the border between the dining and living rooms. Investigators took debris samples from these areas for purposes of chemical analysis. Chemical analysis could confirm the presence of an accelerant on the sample as well as identify the particular accelerant at issue. In this instance, laboratory testing apparently was not subsequently conducted on the samples collected by the investigators. However, Investigator Wilson estimated that she had utilized a hydrocarbon detector 600 times in fire investigations, and, in her experience, in only two cases had subsequent chemical analysis failed to confirm the presence of a specific accelerant.
MacAlpine testified about other aspects of the investigation. He first determined the fire started inside Bernal's apartment. He then examined the fire damage patterns within the apartment to determine precisely where the fire had ignited. He explained, "[T]hat whole area, the living room, dining room, kitchen was heavily involved, full room involvement. And then as one goes more down the apartment, and right now specifically the hallway, it is lessening in fire involvement." Based on the damage patterns, MacAlpine concluded the fire started simultaneously in the living room, dining room, and kitchen, and, from there, spread down the hallway going to the back of the apartment.
MacAlpine then looked for possible sources of ignition, ruling out any electrical short as a source of the fire. He eliminated the subpanel located in the bedroom, the water heater, electrical appliances, lights, and electrical outlets, as potential causes of the fire. MacAlpine also ruled out other accidental causes such as a burning candle or an electric spark. Finally, MacAlpine determined that a natural cause such as a lightning strike or improperly stored oily rags also were not contributing factors.
MacAlpine concluded the fire was deliberately started by a person and that the ignition source was an open flame device, such as a match or lighter; in other words, he concluded the cause of the fire was arson. Specifically, he stated: "So when we have a scene like this where we've been able to rule out accidental causes, natural causes, and were left with a willful, malicious cause or arson cause, and we have clear data evidence of an ignitable liquid, such as we did in this case, then it's most reasonable to conclude that the ignition source was something as simple as an open flame device, such as a lighter or matches, whether left behind or taken with the person that's responsible when they left."
Following the onsite investigation, MacAlpine and the other investigators interviewed neighbors and other witnesses, and based on all the information gathered, concluded Canez was responsible for setting the apartment on fire. MacAlpine also noted, based on his experience as a fire investigator, that domestic violence was "one of [the] more common motives of arson."
Canez's son, Manuel Canez, Jr., testified that he had a discussion about the Gettysburg apartment fire with his father in February or March 2010. Regarding that discussion, Canez, Jr. testified:
"I didn't really ask him as far as like, did you do it. Like, I mean, it was just I knew in my heart he did it. So when I was telling him, it was kind of like we were talking about it, and I was like—I mean, because I haven't seen him since that fire had happened. And, I mean I didn't blame him or anything. But the way I was talking about it wasn't like, I know you did it. It was more like—kind of like, I mean, we lost everything."
Canez, Jr. testified that his dad did not make a particular statement about setting the fire, adding, "He didn't have to." When the prosecutor reminded Canez, Jr. of the latter's conversation with Fire Investigator Floyd Wilding in January 2011, Canez, Jr. recalled telling Wilding that Canez had told Canez, Jr., with respect to the Gettysburg apartment fire, "yeah, I did it, I can't believe I did that and I feel stupid." Canez, Jr. testified that, as he sat in the courtroom at that moment, he remembered his father making that precise statement to him. B. Robbery of Katherine Williams
In April 2010, Canez started dating Katherine Williams. The two lived together from April to July 2010 and again from October 2010 to January 2011. In November 2010, they were living at the La Quinta Inn in downtown Fresno. During their relationship, Canez would use alcohol and drugs virtually every day.
On the night of November 5, 2010, Williams and Canez got into a "verbal" and "physical" argument in their hotel room. Williams "bolted out" of the room after maneuvering around Canez, who was aggressively blocking her with his chest and trying to push her toward the back of the room. Canez had been physically abusive on prior occasions, so Williams wanted to get to the security guard at the hotel's "help desk." Canez, however, chased her down an external corridor, eventually grabbing her arm from behind, turning her around, and pushing her up against a wall.
Williams felt she could not get away but was yelling for help; she was afraid of Canez because of prior experiences with him. Canez was yelling and screaming "right in [Williams's] face," demanding the keys to her rental car. Looking for her keys or other property, Canez went through her pockets, grabbing, without her permission, her driver's license, ATM card, credit card, and medical insurance cards. Thereafter, Canez "stormed away," telling her to "stay the fuck away from [him] and [his] son." Williams immediately "headed for the security guard," who called the police. Fresno Police Officer Caleb Janca questioned Williams shortly after the incident. She told him Canez had pinned her against the wall and then reached into her pocket.
Canez subsequently used, without permission, Williams's credit card to stay at a different hotel. Eventually, after followup work by the police, Williams was able to retrieve her cards, except for the credit card, at the police station. As for her credit card, Williams subsequently retrieved it from the front desk of the hotel at which Canez had used it. C. Domestic violence incidents involving Canez and Williams
1. Events of December 9, 2010
By December 2010, Williams and Canez had moved into a house on East Kerckhoff Avenue in Fresno. On December 9, 2010, the two argued and Williams eventually had to go to the hospital "because of being hit ... by ... Canez." Canez had repeatedly hit her on her left leg knowing she had a bad knee from a previous fall. Thereafter, Canez made "threatening" and "violent" calls, and sent threatening texts, to Williams. He accused her of sleeping with other men and threatened to tell the police she was buying drugs.
2. Events of January 6-7, 2011
On January 6, 2011, Canez got agitated after having a beer, accused Williams in vulgar terms of infidelity, and slapped her in the face and head. When Williams attempted to get away, he hit her on the leg several times and also blocked the door. When Williams nonetheless managed to escape to the outside through a back door, Canez yanked her, by the hair, from a pole she was clinging to and then pushed her by the neck back into the house.
Williams contacted a staff member at the Marjaree Mason Center, a women's shelter and advocacy organization, the staff member in turn alerted the police. Fresno Police Officers Loren Kasten and Brent Willey went to the Kerckhoff residence on January 7, 2011, to conduct a welfare check. Upon arrival, they announced their presence but received no response. Eventually, Kasten, looking through a window, saw Canez peer "around the corner from the kitchen, look at [Kasten] and immediately go back into the kitchen." Kasten then kicked in the front door, the officers entered the house and arrested Canez.
3. Events of January 22-23, 2011
Canez and Williams had another altercation around midnight on January 22, 2011. Canez had ingested alcohol and drugs that night. Williams testified, "[Canez] was arguing, saying he had a lot of hoes that would want him out there and they're just waiting for him." Williams said she "just told him, go ahead and go." The argument continued to escalate with Canez saying that Williams "had been with other men, that if he was going to go back to prison, he's going for a reason, that he was going to kill [her], mess up [her] face," among other threats.
As the night progressed into the predawn hours of January 23, 2011, Canez grabbed Williams by the hair and tried, multiple times, to force her to perform oral sex, while shouting graphic vulgarities and obscenities at her. Williams testified that when she resisted, matters "started to really escalate." She explained: "he got on top of me and was—had me in a choke, like he was choking me and telling me he was going to kill me, spitting in my face." Williams was sitting on the bed, with her back up against a wall, and Canez was "straddling" her; she was "holding the hands trying to, you know, loosen it up." Williams testified that Canez "said many times, 'I'm going to kill you.'" He also punched her with his fist on her right cheek, which "just immediately ballooned out." When she had to go to the bathroom, Canez "grabbed [her] by the back of [her] neck and [her] hair and [her] shirt and walked [her] into the bathroom, and he hit [her] again in there, full-fisted, on [her] forehead." Williams said she "felt completely trapped."
Afterwards, Canez "got back on [Williams] and [placed her] in a choking position," saying, over and over again, that he was "going to kill [her]." At about 4:00 a.m., after Canez had passed out, Williams "got up very quietly, put on a pair of pants and ran to the neighbor's house" to call 911. She then went to the hospital for treatment of her injuries. Photographs taken at the hospital showed extensive bruising and swelling on her face. Despite feeling "very fearful," Williams returned to the Kerckhoff house after the hospital visit because she needed to sleep. Williams was feeling woozy from her injuries, as if she had suffered a concussion. Canez, Jr. came over a little later, intending to spend the night at the house.
Around midnight, Canez "broke into the house" through the front door, which was braced after the police had kicked it in. Williams and Canez, Jr. were in the living room, each on a different couch. Williams testified: "I was laying on the couch, and it was just a burst, and then [Canez was] hitting me saying, 'Where is he? Where did you put him? Where is he?' And I was able to jump up from the couch and go around the coffee table, and that's when he hit me and broke my nose." Canez continued to hit her all over her body, including her arms and chest.
Williams explained that Canez, Jr. then confronted his father, and she "ran for the opening in the door and ... ran out to the front of the house." She stopped on the sidewalk out front, "bleeding everywhere." Canez, Jr. and Canez came outside and tussled on the grass for about five minutes. Canez then "storm[ed] off" while Canez, Jr. tried to help Williams. Williams testified that as Canez walked away, "he was turning around, flipping us off and saying, 'I'm going to burn down the mother fucking house, you mother fuckers.' That's exactly what he said." When Canez made the threat to burn the house down, Williams was "watching [him] carefully," because she feared he would "get in the car and run [her and Canez, Jr.] over." Thereafter, Williams called 911 and returned to the hospital for treatment of her injuries.
Evidence at the preliminary hearing indicated that Canez, Jr. went to the hospital with Williams. He also told Investigator Floyd Wilding that when he left the hospital, he was wondering whether Canez might set the Kerckhoff house on fire, just as he had done, the previous year, to the apartment of Canez, Jr.'s mother, Sylvia Bernal.
Photographs of Williams's injuries, taken at the hospital, were introduced into evidence. The photographs showed injuries to her nose, significant facial bruising and swelling, and a black, swollen eye. Her nose needed stitches. Williams testified the swelling and bruises took weeks to subside. Her nose remained disjointed and a "ball" in her cheek persisted.
Along with Williams, Canez, Jr. testified about Canez's assault on Williams in the living room of the Kerckhoff home on January 23, 2011. Canez, Jr. corroborated Williams's account. He said that Canez "came barging" into the house and "just started hitting [Williams] like a gorilla kind of, just like hitting her real hard." Canez also swung at Canez, Jr. such that Canez, Jr. "was scared of him at that point." Canez, Jr. testified that Williams was "running out of the house," saying, "Manuel, help me," to Canez, Jr. Canez, Jr. further explained:
"She's coming out. [Canez] passes me up and he's going after her. And she's like, 'Manuel, help me.' So I ran. By then, I got enough courage to hit him. So I was going to hit him, and he saw me coming and he ran this
way, and I got in front of her, and pretty much I was like—he was like coming back at me, and I was, 'Come on, mother fucker.' And he was like, 'You know, you're not even worth it.' And he just kind of ... [¶] ... just kind of walk[ed] away, and then he [was] just yelling things as he [was] walking away."
Within two or three hours after Canez threatened to set the house on fire as he walked away, an active fire did in fact break out at the residence. After that day, Williams did not maintain any relationship with Canez. D. Kerckhoff house fire
Agapito Martinez, a fire investigator and firefighter for the City of Fresno, testified that he was dispatched to the Kerckhoff house at 3 a.m. on January 24, 2011, and found "fire crews actively inside the house doing some type of suppression activity." After the fire was extinguished, Martinez commenced an investigation into the cause of the fire. He described the process as "looking for the least amount of fire damage, working towards the most" and sweeping the entire house looking for evidence of possible ignition sources, such as " candles, incense, smoking materials, cigarette butts, discarded matches, lighters, any type of electrical instruments ..., light fixtures, electrical outlets, anything plugged into those electrical outlets." He testified that the "heavier smoke demarcation lines" would be found "near the actual origin or room origin of the fire" because the smoke is "more concentrated in those areas." Martinez stated that greater damage in a particular area generally reflects the fact that the fire has been burning in that area for a longer time.
Here, his investigation led him from the front of the house "into the kitchen." Although he found smoke damage or staining in the house's front rooms, it was "darker" in the kitchen, showing the fire's direction of travel was back to front. Martinez's investigation next led him past the kitchen to a bedroom in the back northwest corner of the house. Based on fire patterns on the doorjamb and the heavy fire damage within the room, he determined this bedroom was the room where the fire originated. Martinez explained, with reference to the specific fire pattern on the doorjamb:
"It just shows where, one, as the heat from the fire is exiting out the door, escaping out of the doorway, the way that heat escapes from the inside to the outside, it creates fire patterns as a result of actual direct flame contact. In this particular case, because of the charring, [it] will show the direction of travel where that fire came from [i.e., in this case, from within the bedroom]."
Martinez testified that once he had identified the room where the fire originated, he "look[ed] for [the] ignition source that caused that fire within that room." Eventually, based on concentrated fire damage, Martinez determined the fire had originated along the east wall of the back bedroom. He examined every potential ignition source within the bedroom but could not identify any ignition source in that area. He was able to rule out an oxygen canister, a cable modem, light fixtures, and electrical outlets present in the room as possible ignition sources. Although paint cans were found in the bedroom, there was no indication that they were contributing factors to the fire as they were sealed and not compromised in any way. Martinez also determined there were no significant weather concerns on the night in question that would have contributed to a fire; on the contrary the night "was cold and foggy."
Martinez decided to call for a dog trained to detect accelerants. Under the circumstances, and to the extent any accelerant was used to ignite the fire, he believed the dog could help identify an ignition source and point of origin for the fire. Martinez explained: "[I]f someone were to pour gasoline, kerosene, what have you, whatever ignitable liquid there would be, that stuff would saturate whatever it's put on. Well, remnants of that will remain that maybe the human nose couldn't smell. There's all other machines out there that we can utilize to pick up on those odors, but a dog specifically can pick up on stuff that would fall through the cracks or cracks embedded into the actual subfloor. So it would pick up on those things."
With reference to Callie, the "arson dog" utilized in this case, Martinez explained: "[W]ell, what the dog does once in this case she scents or picks up on an ignitable liquid, as she's trained to do, she will sit down, in which case the dog handler will reward her with a little bit of food, and he will throw a golf tee down to indicate where she hit on." Martinez testified that, in this instance, Callie alerted in four separate spots inside the back bedroom. Martinez marked the four spots in a diagram of the bedroom that he made, which was admitted into evidence. Martinez also collected debris samples from the areas where Callie alerted and forwarded them to the Department of Justice (DOJ) for chemical analysis. He had not yet received the results of any tests conducted by DOJ "to back up" the dog's alerts.
Martinez concluded, based on his investigation as a whole, that the fire at the Kerckhoff house was arson. He explained his opinion was "based on the fire patterns, what I have, the lack of a competent ignition source, and what I identified as the area of origin, the presence of ignitable liquids, as well as the [witness] statements that I received from Investigator Wilding." Martinez clarified, however, that had he relied only on the fire patterns and actual physical evidence that he saw at the scene, his opinion would remain that this was an incendiary or arson fire.
DISCUSSION
I. Evidence and jury instruction relating to accelerant-sniffing dog utilized in investigation of Kerckhoff house fire
Canez challenges, on several fronts, the admission of evidence related to the accelerant-sniffing dog, Callie, summoned by Martinez, along with her handler, to the Kerckhoff house. Canez argues the evidence of the dog's alerts was inadmissible because the foundation regarding the reliability of this evidence was inadequate. He also contends that Martinez's testimony to the effect that Callie's handler marked the sites of her alerts with golf tees was inadmissible hearsay because the handler's actions constituted assertive conduct. Canez further argues that evidence related to the dog's alerts was inadmissible under the Confrontation Clause of the Sixth Amendment to the federal Constitution. Finally, Canez contends that, since the trial court nonetheless admitted the evidence of the dog's alerts, it was required to instruct the jury to view this evidence with caution. He argues the trial court's failure to do so was prejudicial error. We need not resolve the merits of any of these claims because, even were we to assume the court erroneously admitted this evidence and failed to give a cautionary instruction as required, the error in admitting the evidence was harmless under any standard of prejudice.
It is not clear whether this claim encompasses simply the dog's alerts, the handler's actions in relation to the alerts, or both.
Here, the evidence supporting Canez's conviction for arson of the Kerckhoff house was extremely strong, both in terms of showing that the fire at the house was arson and in terms of showing that Canez was the perpetrator of the arson. Accordingly, as stated above, any error by the trial court in admitting evidence related to Callie's alerts, even in the absence of a cautionary instruction, was harmless under any standard of prejudice. (People v. Watson (1956) 46 Cal.2d 818, 836; Chapman v. California (1967) 386 U.S. 18, 24.) We will discuss the salient parts of the record below.
First, there was compelling evidence, aside from Callie's alerts, that the Kerckhoff house fire was caused by arson. Fire Investigator Martinez arrived at the Kerckhoff house while fire crews were still working to extinguish the fire. He determined the fire originated in a back bedroom. He ruled out an accidental cause for the fire based on the absence of a competent ignition source in the bedroom. He similarly ruled out a natural cause for the fire, noting that the "cold and foggy" weather that night was not a contributing factor. As Martinez explained, with other possibilities eliminated, the only reasonable conclusion regarding the cause of the fire was that it was arson.
Martinez backed up his conclusion that the fire was arson with compelling evidence, aside from Callie's alerts. Indeed, the "presence of ignitable liquids," as revealed by Callie's alerts, was only one of many factors Martinez relied on in reaching this conclusion. He also relied on the "fire patterns," "the area of origin," "the lack of a competent ignition source," and Williams's statements to investigators regarding events immediately preceding the fire (i.e., Canez's assaults on Williams and his explicit threat to burn down the house). Furthermore, Martinez clarified that had he relied only on the fire patterns and actual physical evidence that he saw at the scene, his opinion would remain that this was an incendiary or arson fire.
In short, Martinez conducted a thorough and broad ranging investigation that persuasively demonstrated that the cause of the fire at the Kerckhoff house was arson. Although the evidence of Callie's alerts was certainly relevant to this determination, there was an abundance of evidence, separate and apart from the alerts, which independently and convincingly revealed that the fire was caused by arson.
Next, there was also compelling evidence that Canez was the person responsible for the arson of the Kerckhoff house. The night before the fire broke out, Canez had terrorized and viciously attacked Williams, requiring her to seek emergency medical treatment for the injuries she sustained in the attack. Canez returned to the house the following night around midnight. He again brutally assaulted Williams, stopping only when Canez, Jr. physically intervened to ward him off. Canez briefly tussled with Canez, Jr. in the front yard of the house, then walked away, down the street. As he walked away, he explicitly threatened he would burn down the Kerckhoff house. Williams testified that Canez kept "turning around, flipping us off and saying, 'I'm going to burn down the mother fucking house, you mother fuckers.' That's exactly what he said." After Canez left, Williams again went to the hospital for treatment of additional injuries Canez had inflicted in the latest attack. The fire broke out at the Kerckhoff house while she was away, barely two to three hours after Canez had expressly threatened to burn the house down.
Finally, the jury also heard evidence that, the previous year, Canez had burned down the apartment of his ex-wife, Sylvia Bernal, after similarly subjecting her to a night of vicious domestic abuse. (See People v. Robinson (1995) 31 Cal.App.4th 494, 503 [evidence of two separate arsons that bore similar marks was properly admitted to show "identity"].) Canez, Jr. testified that Canez actually admitted to him that he intentionally burned down Bernal's apartment. The jury, in the instant case, convicted Canez of the arson of Bernal's apartment.
Leaving aside evidence of Callie's alerts, the record compellingly demonstrates that the fire at the Kerckhoff house was arson and that Canez was responsible for the arson. Accordingly, given the strength of the case against Canez, any error on the part of the trial court in admitting evidence related to Callie's alerts, even without a cautionary instruction, was harmless under any standard of prejudice. Since Canez was not prejudiced by admission of this evidence, irrespective of whether the court gave a cautionary instruction, we need not address the merits of his claims challenging the admissibility of this evidence or the court's failure to give a cautionary instruction with regard to this evidence. II. Defendants's Trombetta/Youngblood motion regarding evidence related to the Gettysburg apartment fire
Canez argues his conviction for arson of the Gettysburg apartment must be dismissed because debris samples collected from spots where the hydrocarbon detector detected the presence of accelerant were destroyed before laboratory tests could be performed on them. We reject this contention because Canez has not shown that fire investigators acted in bad faith in connection with the destruction of the samples.
A. Background
At the preliminary hearing on September 8-9, 2011, Fresno Fire Department Investigator Floyd Wilding described the investigation into the Gettysburg apartment fire. He said his team collected fire debris samples to test for the presence of accelerants. Typically, the department submitted samples to the DOJ for testing but sometimes, in the interest of faster processing and testing, provided samples to the insurance company involved in the investigation. In this instance, the samples were turned over to the relevant insurance company because the company's investigator was present during the investigation and investigators believed the company would analyze the samples faster than would the DOJ. However, unbeknownst to the fire department, the insurance company decided to settle the case and discarded the samples. Wilding became aware of the destruction of evidence after the fact, when he called the insurance company seeking test results.
Specifically, Wilding testified as follows:
"Typically, when we process evidence, we process it through the [DOJ]. It takes them a very long time to process evidence. We're still waiting on the evidence from the fire that happened on January 24th of 2011 [i.e., the Kerckhoff house fire].
"If we have a private fire investigator on scene, they are working for the insurance companies and they have funding to get evidence analyzed much sooner. So at that time we [looked to] the insurance company—or the insurance company fire investigator [who] was on scene ... to have the evidence processed and he stated he would.
"When we packaged the evidence, he took it to be analyzed. And we assumed it was going to be analyzed. At a later date I called him to find out if they had found any accelerants in the sample, and he told me that the insurance company decided they didn't want to pay any more money out on that incident and they were going to settle, and they didn't have any need for the evidence any longer and to discard it. The fire investigator failed to
notify the Fire Department. And so we had no knowledge that the evidence was destroyed."
Fire Investigator Christine Wilson also testified at trial that debris samples collected from the Gettysburg apartment were given to the insurance company for testing because the company's investigator was present during the fire department's investigation of the fire. She said the fire department would occasionally turn over debris samples to insurance companies when feasible and that this procedure was not out of the ordinary.
Regarding the importance of the testing, Wilding said testing was "not necessary to determine the cause of the fire to be intentional." He explained that "debris may or may not have anything in it, but that in itself does not prove that the cause of the fire was arson or not arson."
Defense counsel filed a Trombetta/Youngblood motion to exclude evidence prior to trial. (California v. Trombetta (1984) 467 U.S. 479, 841 (Trombetta); Arizona v. Youngblood (1988) 488 U.S. 51, 52 (Youngblood).) Counsel argued the fire debris samples constituted material exculpatory evidence that the defense was precluded from testing because the samples were destroyed. The court noted, "I am aware that the Trombetta standard is clearly exculpatory prior to the time it was destroyed." The court then denied the motion, reasoning:
"I thought about it a lot and I am troubled, first of all, I guess by the fact that the chain of evidence would have been destroyed almost, anyway. I don't know why they decided to send it to an insurance company other than a [DOJ] laboratory.
"But I'm struggling with the fact that it's exculpatory because since there were no tests made on it, we don't know if it's exculpatory or not. I think the investigation, as represented by counsel, was that there was some type of fluid.
"Now, again, that is a dangerous area in that it is open for cross-examination. I have no anticipation that the investigator will misrepresent or testify improperly in court. So he will be open for cross-examination, and that is certainly a valid point for the defense to work on.
"But I just am not comfortable with the fact that it falls under Trombetta; so I will allow the investigation to be brought into evidence, and any opinion formed by that investigation, that it certainly can be attacked by the defense."
B. Analysis
In Trombetta, supra, 467 U.S. 479, the United States Supreme Court considered whether law enforcement must, in affording requisite due process to a defendant, preserve potentially exculpatory evidence on behalf of defendants. Trombetta held that the duty to preserve evidence is "limited to evidence that might be expected to play a significant role in the suspect's defense." (Id. at p. 488.) The high court applied a standard of "constitutional materiality" to define the type of evidence that triggers a constitutional duty to preserve evidence. (Id. at p. 489.) "To meet this standard of constitutional materiality, [citation], evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means." (Ibid.) The Trombetta court also noted that the fact that authorities acted in good faith, and that the "record contain[ed] no allegation of official animus towards [the defendants] or of a conscious effort to suppress exculpatory evidence," militated against finding a due process violation in that case. (Id. at p. 488.)
In Youngblood, supra, 488 U.S. 51, the high court considered whether due process required law enforcement "to preserve evidentiary material that might be useful to a criminal defendant." (Id. at. p. 52, italics added.) The court held that "unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law." (Id. at p. 58, italics added; Illinois v. Fisher (2004) 540 U.S. 544, 549 [Youngblood's bad faith requirement is based on the "distinction between 'material exculpatory' evidence and 'potentially useful' evidence"].) Evidence is "potentially useful" when "it could have been subjected to tests, the results of which might have exonerated the defendant." (Youngblood, supra, at p. 57.)
Youngblood explained that "requiring a defendant to show bad faith on the part of the police both limits the extent of the police's obligation to preserve evidence to reasonable bounds and confines it to that class of cases where the interests of justice most clearly require it, i.e., those cases in which the police themselves by their conduct indicate that the evidence could form a basis for exonerating the defendant." (Youngblood, supra, 488 U.S. at p. 57.) Bad faith on the part of authorities involves "'malice'" or a "'design to seek an unconscionable advantage over the defendant.'" (People v. Coles (2005) 134 Cal.App.4th 1049, 1055.) Youngblood clarified, moreover, that "the police do not have a constitutional duty to perform any particular tests." (Youngblood, supra, at p. 59.)
In reviewing the denial of a Trombetta/Youngblood motion, we "must determine whether, viewing the evidence in the light most favorable to the superior court's finding, there was substantial evidence to support its ruling." (People v. Roybal (1998) 19 Cal.4th 481, 510.)
Canez argues the trial court's determination is erroneous under Youngblood, which is controlling. Specifically, he contends the trial court "erred in refusing to dismiss count one," i.e., the charge of arson of the Gettysburg apartment, because "the fire investigators' bad faith actions led to the loss or destruction of potentially useful evidence." Assuming the evidence at issue was "potentially useful" as defendant contends, the record reveals no evidence of bad faith on the part of the fire investigators. Accordingly, there was no error under Youngblood and we affirm Canez's conviction on this count.
Investigator Wilding testified that when a private investigator from the relevant insurance company was present at a fire investigation, City of Fresno investigators would sometimes entrust debris samples to the insurance company for testing, in the interest of faster and more efficient analysis. He explained he gave the debris samples from the Gettysburg apartment to the insurance company so as to more speedily obtain results of relevant tests. Wilding duly followed up with the insurance investigator regarding potential results, only to be informed the company had discarded the evidence without analyzing it or informing the fire department. Investigator Christine Wilson confirmed that the debris samples were given to the insurance company, evidently for quick analysis, and that the fire department would sometimes avail this option when the opportunity presented itself.
There is no indication the fire investigators turned the debris samples over to the insurance company because they believed the samples would exonerate Canez and consequently wanted them destroyed. On the contrary, the hydrocarbon detector had already positively detected accelerant on the samples and investigators had every reason to believe that chemical analysis would confirm the detector's findings. Investigator Wilson testified that in only two of 600 cases in which the hydrocarbon detector had signaled the presence of accelerant, had subsequent chemical analysis failed to confirm the presence of a specific accelerant.
There was also other significant evidence to support a reasonable expectation, on the part of the investigators, that chemical analysis would only confirm the hydrocarbon detector's findings. Canez had threatened to kill Bernal shortly before the fire broke out; the apartment was horribly vandalized after the domestic dispute between Bernal and Canez; transmission or gear oil was smeared all over the apartment; fire investigators ruled out any accidental or natural causes for the fire; Canez, Jr. told Investigator Wilding that Canez had admitted to him that he had set the fire; and Don MacAlpine, the deputy fire marshal supervising the investigation, believed, on the basis of his experience, that arson was often associated with domestic violence. Under these circumstances, fire investigators would reasonably have expected that the debris samples would yield additional inculpatory, rather than exculpatory, evidence and had no reason to wish them destroyed.
Furthermore, the fire investigators' reasoning that the insurance company would more efficiently process the evidence is validated by the record. At the time in question, it apparently did take a long time for DOJ to provide test results to the Fresno Fire Department in fire investigations. For example, Wilding testified at the preliminary hearing that he was still awaiting results from DOJ for any tests on samples from the Kerckhoff fire, which had happened nine months earlier. Nor did it appear that test results for samples from the Kerckhoff fire were forthcoming at the time of trial, another three years after the preliminary hearing.
In sum, the trial court properly denied Canez's Trombetta/Youngblood motion to dismiss count 1, i.e., the charge of arson of the Gettysburg apartment. There was no reason to anticipate the debris samples would exculpate Canez and, more importantly, there was no evidence of bad faith on the part of fire investigators.
III. Robbery of Katherine Williams
Canez next contends there was insufficient evidence to support his robbery conviction for stealing Williams's credit card, driver's license, and medical insurance cards from her person, during the altercation at the La Quinta Inn in Fresno. We disagree.
The standard of review for a challenge to the sufficiency of the evidence supporting a conviction is well established:
"'When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.... We presume in support of the judgment the existence of every
fact the trier of fact reasonably could infer from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment 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.'" (People v. D'Arcy (2010) 48 Cal.4th 257, 293.)
In California, the offense of robbery under section 211 is the "felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear." (§ 211; People v. Gomez (2008) 43 Cal.4th 249, 254-255.) A "felonious taking" means a taking with "the intent to steal," People v. Bacon (2010) 50 Cal.4th 1082, 1117, i.e., a taking with the intent to permanently deprive an owner of his property. (People v. Torres (1995) 33 Cal.App.4th 37, 50 [specific intent to steal, i.e., to permanently deprive an owner of his property, is required for robbery]; People v. Ford (1964) 60 Cal.2d 772, 792, overruled on other grounds by People v. Satchell (1971) 60 Cal.2d 772.) In sum, robbery entails a taking—motivated by an intent to steal—that is accomplished by means of force or fear. (People v. Anderson (2011) 51 Cal.4th 989, 994 ["'the act of force or intimidation by which the taking is accomplished in robbery must be motivated by the intent to steal'"].) Accordingly, robbery has the following elements: the defendant (1) took possession of property not his own, (2) from another, (3) against that person's will, (4) using force or fear to effect the taking or to prevent resistance to it, and (5) with the specific intent to permanently deprive the owner of his property. (People v. Lewis (2008) 43 Cal.4th 415, 464, rejected on another ground by People v. Black (2014) 58 Cal.4th 912; People v. Marshall (1997) 15 Cal.4th 1, 34.)
Canez argues:
"The record in this case does not show the taking was motivated by the intent to deprive Williams permanently, or even temporarily, of the various cards in her pocket. The incident grew out of one of the couple's not-infrequent arguments: Williams left the motel room, with Canez following, demanding the keys to the rental car. When he reached into
Williams' pocket, he was looking for the keys, not for Williams' other personal property.
To the extent Canez argues there is insufficient evidence of robbery because his use of force or fear was motivated by his intent to steal Williams's car keys rather than her credit card and driver's license, this argument is foreclosed by People v. Brito (1991) 232 Cal.App.3d 316 (Brito). Brito rejected the defendant's claim that there was insufficient evidence of robbery of the victim's car where the defendant had intended only to steal the victim's personal property, but, after the victim fled, took his car as well. Brito held there was "no rationale for limiting the scope of the robbery only to the specific items on which the defendant has focused at the time he initially applies the force" as opposed to other "items he identifies during the same transaction." (Id. at pp 325-326 & p. 326, fn. 8.) In light of Brito's holding, cited in the People's brief, Canez abandoned this argument in his reply brief.
To the extent Canez argues there was no felonious taking in this case because "his intent in accosting Williams was to take whatever she had temporarily," this argument is also unavailing. Although the requirement of a felonious taking is "'often summarized as the intent to deprive another of the property permanently,'" this requirement is also "satisfied by the intent to deprive temporarily but for an unreasonable time so as to deprive the person of a major portion of [the property's] value or enjoyment.'" (People v. Aguilera (2016) 244 Cal.App.4th 489, 500 (Aguilera), quoting People v. Avery (2002) 27 Cal.4th 49, 58.) In Aguilera, the defendant took his wife's cell phone, in the midst of his violent assault on her, to prevent her from calling the police for assistance. (Aguilera, supra, at pp. 501-502.) The court affirmed the defendant's conviction for robbery, holding that the evidence was sufficient to prove that in taking the phone, the defendant intended to deprive his wife of it temporarily but for an unreasonable period of time, so as to deprive her of a major portion of its value or enjoyment. Similarly, here the evidence was sufficient to show that Canez deprived Williams of her driver's license and credit card at a time when she was vulnerable and effectively shut out of the hotel room that was her home, thereby unreasonably depriving her of a major portion of the property's value or enjoyment.
In any event, Canez never voluntarily returned any of the property to Williams, nor was there any indication that he intended to, and a reasonable juror could also properly find, in light of these facts as well as Canez's actions reflected in the record as a whole, that he intended to permanently deprive Williams of her property at the time he took it. IV. Necessity of instruction on grand theft person
In a further challenge to his conviction for robbery for taking property from Williams's person by use of force or fear, Canez argues the trial court committed prejudicial error in failing sua sponte to instruct the jury on grand theft person, a lesser included offense of robbery.
A. Background
The trial court instructed the jury on the elements of robbery pursuant to CALCRIM No. 1600. It subsequently instructed the jury with CALCRIM No. 3517 as to lesser included offenses, stating, in part:
"If all of you find that the defendant is not guilty of a greater charged crime, you may find him guilty of a lesser crime if you are convinced beyond a reasonable doubt that the defendant is guilty of that lesser crime. A defendant may not be convicted of both a greater and lesser crime for the same conduct.
"Now I will explain to you which charges are affected by this instruction: California Penal Code § 487(c), grand theft person, is a lesser crime of Penal Code § 211, as charged in Count 2."
The court, however, did not instruct on the elements of a violation of section 487, subdivision (c).
CALCRIM No. 1800 is the standard jury instruction on grand and petty theft. CALCRIM No. 1801 clarifies that theft from the person is always grand theft, whatever the value of the property taken. --------
B. Analysis
The trial court must sua sponte instruct the jury on a lesser included offense when there is substantial evidence "that, if accepted by the trier of fact, would absolve the defendant of guilt of the greater offense but not of the lesser." (People v. Whalen (2013) 56 Cal.4th 1, 68, disapproved of on other grounds by People v. Romero (2015) 62 Cal.4th 1, 44, fn. 17.) Stated otherwise, the court must instruct on a lesser included offense "whenever evidence that the defendant is guilty only of the lesser offense is 'substantial enough to merit consideration' by the jury." (People v. Breverman (1998) 19 Cal.4th 142, 162.) However, the court is "not obliged to instruct on theories that have no evidentiary support." (Ibid.)
Theft is a lesser included offense of robbery, as robbery includes all of the elements of theft along with an additional element of the use of force or fear to steal the property at issue. (People v. Davis (2005) 36 Cal.4th 510, 562; People v. Cooksey (2002) 95 Cal.App.4th 1407, 1410-1411.) For a robbery to occur, "[t]he intent to steal must be formed either before or during the commission of the act of force." (People v. Letner and Tobin (2010) 50 Cal.4th 99, 166; People v. Yeoman (2003) 31 Cal.4th 93, 129; People v. Green (1980) 27 Cal.3d 1, 53, abrogated on another ground by People v. Martinez (1999) 20 Cal.4th 225 [the wrongful intent and the act of force "must concur in the sense that the act must be motivated by the intent"].) If the evidence shows the intent to steal first arose after the use of force, the taking will only constitute a theft. (People v. Burney (2009) 47 Cal.4th 203, 253; People v. Lindberg (2008) 45 Cal.4th 1, 28.) Furthermore, "proof of the existence of a state of mind incompatible with an intent to steal precludes a finding of either theft or robbery." (People v. Butler (1967) 65 Cal.2d 569, 573, overruled on other grounds by People v. Tufunga (1999) 21 Cal.4th 935, 956.)
The record here precludes a reasonable juror from finding that Canez was guilty not of robbery but of theft. The record indicates that Canez intended to take Williams's car keys when he shoved her against the wall and went through her pockets. During the same attack, while Williams was pinned against the wall, Canez grabbed her credit card and driver's license from her pocket, forcibly and against her will. As explained above, even if Canez initially applied force or fear to steal the keys but ultimately took the cards, he nonetheless robbed Williams of the cards. (Brito, supra, 232 Cal.App.3d at pp. 325-326.) Furthermore, even if Canez "conceive[d] the intent to steal [the cards] after he ... finished applying the force to [Williams], he is [still] guilty of robbery, not grand theft of the [the cards]." (See id. at p. 326, fn. 8.)
The instant facts preclude a finding of grand theft person, which, in contrast, would apply under circumstances where the larcenous purpose did not arise until after force was used, for other reasons, against the victim (for example, to rape or kill the victim). (See, e.g., People v. Green, supra, 27 Cal.3d at p. 54 [no robbery where the defendant raped victim and then stole personal belongings]; People v. Turner (1990) 50 Cal.3d 668, 690 [sua sponte instruction on theft was warranted where defendant killed victim on account of latter's sexual advances and only thereafter decided to take property].) Accordingly, the trial court was not required sua sponte to instruct the jury on the elements of grand theft person.
Furthermore, even were we to assume the court erred in this regard, any error would be harmless as there was no reasonable probability of a more favorable outcome for Canez had the jury been instructed on grand theft person. (See People v. Breverman, supra, 19 Cal.4th at p. 165 [applying Watson standard of prejudice to court's failure sua sponte to instruct on lesser included offense]; People v. Watson, supra, 46 Cal.2d at p. 836.)
DISPOSITION
The judgment is affirmed.
/s/_________
SMITH, J. WE CONCUR: /s/_________
DETJEN, Acting P.J. /s/_________
PEÑA, J.