Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. NA077625. Richard E. Romero, Judge.
Pamela J. Voich, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson, Supervising Deputy Attorney General, Gary A. Lieberman, Deputy Attorneys General, for Plaintiff and Respondent.
MALLANO, P. J.
Defendant Rico Cordova appeals from the judgment entered following a jury trial in which he was convicted of arson. Defendant contends that insufficient evidence supports his conviction, the trial court erred by failing to instruct upon the lesser included offense of unlawfully causing a fire, and he is entitled to one extra day of presentence custody credit. We agree with respect to the extra day of credit but otherwise affirm.
BACKGROUND
Defendant’s sister, Jamie Cordova, owned a 2004 Nissan Altima with mechanical problems. She could not afford the repairs and no longer wanted to make the monthly payments on her car loan. So she decided to “get rid of” the car by burning it. She enlisted defendant’s help. The plan called for Jamie to find an out-of-the-way place to burn the car and purchase gasoline. On the night of March 8, 2008, Jamie purchased gasoline and poured it into two gallon-size orange juice bottles which she placed on the passenger side of the backseat. She then drove the car to meet defendant at the place she had chosen: a poorly lighted, desolate industrial area in Wilmington. At the chosen location, Jamie got out of her car and walked toward her brother’s car. Defendant stood beside the front passenger door of Jamie’s car with a cigarette in his hand. When Jamie turned around to look again, she saw an explosion and saw defendant in flames and running. Jamie pleaded guilty to arson.
Long Beach Police Officer Gregory Jensen was patrolling the area and saw the car fire. He drove toward it and saw defendant running away from the car in a “random pattern” and Jamie sitting in a different car. Defendant had burns on his face. Jamie did not attempt to attract Jensen’s attention.
Arson investigator Carey Steiner testified that a sample of “fire debris” from the floor in front of the driver’s seat tested positive for gasoline and the passenger compartment smelled strongly of gasoline. Jamie told Steiner that the gasoline spilled as she drove and the odor was very strong. The fire originated inside the passenger compartment, but it burned the car so thoroughly that Steiner could not determine the exact point of origin. The gas tank cap was closed when firefighters arrived to extinguish the fire. Jamie told Steiner that defendant stood outside the open driver’s side door, lit a cigarette, and the car and defendant ignited. Steiner could not determine the source of ignition. Based upon the physical evidence, Jamie’s statements, and the location of the car, Steiner opined that the fire was of incendiary origin, that is, intentionally set. Steiner testified it would have been “extremely difficult” for the fire to ignite just from a cigarette lighted by someone outside the car. The ignition source would have to have been very close to the gasoline vapors to ignite them—probably within a couple of feet. The vapors had to be very strong to ignite. Steiner had seen individuals whose faces and hands had been burned in a flash from a gasoline fire. She had also investigated fires in which she knew a lighter or match was used to ignite the fire, but the lighter or match was not recovered.
The jury convicted defendant of arson. The court sentenced him to two years in prison.
DISCUSSION
1. Sufficiency of evidence
Defendant contends the evidence was insufficient to support his arson conviction because there was no evidence that he knew the car contained bottles filled with gasoline or that he performed any intentional act that ignited the fire.
To resolve this issue, we review the whole record in the light most favorable to the judgment to decide whether substantial evidence supports the conviction, so that a reasonable jury could find guilt beyond a reasonable doubt. (People v. Ceja (1993) 4 Cal.4th 1134, 1138.)
“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.” (Pen. Code, § 451.) Arson is a general intent crime. (People v. Atkins (2001) 25 Cal.4th 76, 84.) “The statute does not require an additional specific intent to burn a ‘structure, forest land, or property,’ but rather requires only an intent to do the act that causes the harm.” (Id. at p. 86.)
Abundant evidence supports defendant’s arson conviction. Jamie’s testimony established that she and defendant had a plan to burn her car and that they were operating pursuant to that plan at the time the car burned. Jamie and defendant met at the out-of-the-way location she chose as the site for burning the car. Jamie had already purchased gasoline and poured it into juice bottles which she placed on the back seat. Jamie walked away from her car and defendant walked up to it. This behavior was consistent with the plan to burn the car but not with a chance meeting or a meeting for a social purpose. Defendant held a cigarette in his hand, then the fire erupted. This strongly supported an inference that defendant either lit the cigarette and threw it into the car or threw a match or lighter into it to ignite the fire. The inference was further strengthened by Steiner’s testimony to the effect that it would have been extremely difficult to ignite the car fire merely by lighting a cigarette while standing outside of the car. The burns defendant suffered do not indicate that he ignited the fire accidentally, but only that he was too close to the car or was surprised by a quick flare-up of the fire and accidentally was set on fire in the process. Jamie’s failure to attempt to attract the attention of the police officer to obtain assistance for her burned brother provides additional evidence that Jamie and defendant were acting pursuant to the plan to burn the car when it in fact burned. In contrast, no evidence, just speculation, supports defendant’s claim that the ignition was accidental.
Defendant also argues he could not be convicted of arson because there was no evidence he intended to defraud anyone, as is required when the property burned belongs to the defendant. But defendant did not burn his own car: he burned his sister’s car.
2. Failure to instruct sua sponte on lesser included offense
Defendant contends that the trial court erred by failing to instruct sua sponte on unlawfully causing a fire as a lesser included offense of arson.
A trial court must instruct sua sponte on a lesser included offense if 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. Blair (2005) 36 Cal.4th 686, 745.) Substantial evidence in this context is “evidence from which a jury composed of reasonable persons could conclude that the facts underlying the particular instruction exist.” (Ibid.)
Here there was no evidence that the offense was anything less than arson. Given the plan to burn the car, the behavior of defendant and Jamie in accordance with the plan, and the absence of any evidence showing that the ignition of the fire was an accident, the trial court was not required to instruct upon unlawfully causing a fire as a lesser included offense.
3. Presentence custody credit and correction of abstract of judgment
Defendant contends, and the Attorney General concedes, that the trial court’s award of presentence credit was short by one day. We award defendant the missing day.
The Attorney General also notes that the abstract of judgment fails to reflect the $20 court security fee imposed by the trial court. We direct the trial court to issue an amended abstract of judgment correcting this oversight.
DISPOSITION
Defendant is awarded one additional day of presentence custody credit. In all other respects, the judgment is affirmed. On remand, the trial court is directed to issue an amended abstract of judgment reflecting 181 days of presentence custody credit and the imposition of a $20 court security fee pursuant to Penal Code section 1465.8.
We concur: CHANEY, J., JOHNSON, J.