Opinion
E052297
02-14-2013
THE PEOPLE, Plaintiff and Respondent, v. RICHARD JAMES GOOLSBY, Defendant and Appellant.
Steven S. Lubliner, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton, and Felicity Senoski, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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(Super.Ct.No. FSB905099)
OPINION
APPEAL from the Superior Court of San Bernardino County. Bryan Foster, Judge. Modified and affirmed with directions.
Steven S. Lubliner, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton, and Felicity Senoski, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found Richard James Goolsby, defendant and appellant (hereafter defendant), guilty of arson of an inhabited structure in violation of Penal Code section 451, subdivision (b), and further found true the allegation that he caused more than one structure to burn within the meaning of section 451.1, subdivision (a)(4) based on evidence that defendant set a fire that caused two motor homes to burn. Because the felony conviction constituted defendant's third strike, the trial court sentenced him to the mandatory term of 25 years to life in state prison. The trial court also imposed three prior serious felony enhancements under section 667, subdivision (a) after first finding those allegations true, and a five-year sentence enhancement based on the jury's true finding on the section 451.1 allegation.
All further statutory references will be to the Penal Code unless otherwise indicated.
The jury found him not guilty of attempted murder.
Defendant contends, and the Attorney General correctly concedes, that the trial court should only have imposed one enhancement because the three prior offenses were not brought and tried separately as required by section 667, subdivision (a). Therefore, we will strike two of the five-year enhancements the trial court imposed in this case.
Defendant raises various challenges to the jury's verdict and to his sentence. We agree with his assertion that his motor home is not a structure. Therefore, the evidence that defendant set fire to his motor home does not support the jury's verdict finding defendant guilty of committing arson of an inhabited structure, and also does not support the jury's true finding on the multiple structure enhancement. Because the trial court instructed the jury on the necessarily included lesser offense of arson of property (§ 451, subd. (d)), we will reduce defendant's conviction to that crime and will strike the section 451.1, subdivision (a)(4) multiple structure enhancement. We also will strike all but one of the three section 667, subdivision (a) five-year enhancements.
For purposes of arson, "'Structure' means any building, or commercial or public tent, bridge, tunnel, or powerplant." (§ 450, subd. (a).)
FACTS
The facts are undisputed, and only a few are necessary for our resolution of the issues defendant raises on appeal. On November 28, 2009, defendant had a disagreement with Katherine Burley. He and Ms. Burley lived together in what was one of several motor homes defendant owned and had parked on a vacant lot. Sometime not long after the argument, in which defendant and Burley each called the police on the other, defendant used a vehicle to push an inoperable motor home next to the one in which he and Burley were living and where Burley then was sleeping. Defendant used gasoline to set the inoperable motor home on fire. After Burley got out with her dogs, the fire spread to the motor home in which she had been sleeping. The fire destroyed both motor homes.
Additional facts will be recounted below as pertinent to the issues defendant raises on appeal.
DISCUSSION
1.
SUFFICIENCY OF THE EVIDENCE TO SUPPORT THE JURY'S VERDICT
FINDING DEFENDANT GUILTY OF ARSON OF AN INHABITED
STRUCTURE
Defendant contends, and we agree, that the evidence was insufficient to show that the motor home in which he and Burley were then living was a structure. Therefore the evidence that he set fire to or caused that motor home to burn does not support the jury's verdict finding him guilty of arson of an inhabited structure in violation of section 451.
A. Inhabited Structure
Under section 451, "A person is guilty of arson when he or she willfully and maliciously sets fire to or burns or causes to be burned . . . any structure, forest land, or property." Section 451 sets out "different levels of punishment, depending on the subject matter of the arson. [Citation.] These statutory categories, in descending level of punishment, are: (1) arson resulting in great bodily injury (five, seven, or nine years); (2) arson to [sic]'an inhabited structure or inhabited property' (three, five, or eight years); (3) arson of a 'structure or forest land' (two, four, or six years); and (4) arson to other types of property (16 months, two, or three years). (§ 451, subds. (a), (b), (c) & (d).) By creating these different levels of punishment, the Legislature intended to impose punishment '"in proportion to the seriousness of the offense,"' and, in particular, 'according to the injury or potential injury to human life involved . . . .' [Citation.]" (People v. Labaer (2001) 88 Cal.App.4th 289, 292 (Labaer).)
The district attorney in this case charged defendant with arson of an "inhabited structure" in violation of section 451, subdivision (b). Defendant pointed out in the trial court that according to section 450, which defines the terms used in the arson chapter, "'Structure' means any building, or commercial or public tent, bridge, tunnel, or powerplant." (§ 450, subd. (a).) Although the motor home in this case does not come within the definition of the term "structure," the trial court, at the district attorney's urging, focused on whether the motor home was a dwelling, i.e., a place in which defendant and Ms. Burley intended to live more or less permanently. Based on that focus, the trial court permitted the jury to determine whether in this case a motor home is a structure for purposes of the arson statute.
Whether the crime is arson of a structure in violation of section 451 does not turn on whether a dwelling is involved, as clearly evidenced by the statutory definition of the term "structure." In this case the motor home was not a building, commercial or public tent, bridge, tunnel or powerplant. In this case, for purposes of the arson statute, the motor home is property, which by statutory definition "means real property or personal property, other than a structure or forest land." (§ 450, subd. (c).) The district attorney incorrectly charged defendant with arson of an inhabited structure under section 451, subdivision (b), even though that section also applies to arson of "inhabited property."
The original felony complaint and original information as well as an amended felony complaint alleged arson of an inhabited structure or property, but then the district attorney filed an amended information that only alleged arson of an inhabited structure.
We need look no further than the noted statutory provisions to conclude that the district attorney incorrectly charged and prosecuted this case—the motor home in this case is not a building and therefore is not a "structure" as that term is defined in section 450, subdivision (a). Labaer, supra, on which the trial court relied, and which the Attorney General cites in this appeal, is inapposite.
In Labaer, which involves a mobilehome, not a motor home, the defendant argued the mobilehome that he had partially dismantled before he set it on fire, was "property" not a building, and therefore not subject to the increased punishment for arson of a structure. In rejecting that claim, Division One of this court first noted that, "The Penal Code does not define 'building' for purposes of arson; we therefore apply the plain meaning of the word. [Citation.]" (Labaer, supra, 88 Cal.App.4th at p. 292.) The court then observed, "Labaer does not dispute that the mobilehome—as it existed during the months before the fire—constituted a 'building' [and therefore a structure] under the arson statutes. The evidence established the [mobile]home was fixed to a particular location, could not be readily moved, and had been used as Labaer's residence for several months. Labaer argues instead that the dilapidated condition of the home on the day of the fire—caused primarily by his illegal dismantling activities the previous day— converted the mobilehome from a 'structure' under section 451, subdivision (c) to generic 'property' subject to lesser punishment under section 451, subdivision (d). [¶] The easy answer to this contention is that the Legislature could not have intended that a criminal defendant benefit from his or her unlawful activities to obtain a lesser punishment merely by attempting to take apart a building shortly before setting it on fire. The more lengthy—but equally correct—response to Labaer's contention is that despite his dismantling activities, the mobilehome remained a 'building' within the meaning of the arson statute because the dismantling was never completed. Although the mobilehome was in a substantially substandard condition, there was ample evidence showing it remained a standing and constructed structure that had four sides and a partial roof." (Labaer, at pp. 292-293.)
As defendant argued in the trial court in this case, the prosecutor did not present evidence to show that the motor home in question was fixed to a particular location and therefore had the attributes of a building. The common feature of the things included in the statutory definition of structure is that they are all affixed to the ground and either cannot be moved at all or cannot be moved without first being dismantled and detached from the ground. A motor home is a vehicle the very purpose of which is to move from location to location. Absent evidence to show the motor home was somehow fixed in place, such a vehicle cannot be a structure within the meaning of the arson statute. More importantly, and as defendant also pointed out in the trial court, the punishment for arson of an inhabited structure and the punishment for arson of inhabited property is exactly the same, unlike in Labaer, in which arson of a structure that is not inhabited carries a greater punishment than arson of property that is not inhabited.
The Attorney General argues that the ability to move is not the determining factor because a commercial or public tent can be dismantled and transported in a truck. But when dismantled, a commercial or public tent is not a structure; it is property.
Imprisonment in state prison for three, five, or eight years. (§ 451, subd. (b).) Because section 451, subdivision (b) includes both inhabited structures and inhabited property, we must reject defendant's claim that arson of inhabited property is a lesser included offense on which the trial court should have instructed the jury.
Arson of a structure is punishable by two, four, or six years in state prison (§ 451, subd. (c)); arson of property is punishable by 16 months, two, or three years in state prison (§ 451, subd. (d)).
In short and simply stated, the motor home at issue in this case is not a structure, as that term is defined in the arson statutes and as the trial court instructed the jury. Therefore, the prosecutor's evidence that defendant set fire to a motor home that caused a second inhabited motor home to catch fire does not support the jury's verdict finding him guilty of arson of an inhabited structure. Nor does that evidence support the jury's true finding on the enhancement that defendant "caused multiple structures to burn during the commission of the arson." The next issue we must address is the appropriate remedy.
The trial court instructed the jury according to the statutory definition that a structure is any building, bridge, tunnel, powerplant, or commercial or public tent.
Although the Attorney General insists the jury's verdict is supported by substantial evidence, and therefore does not address the issue of remedy, defendant correctly notes that we must strike the section 451.1 sentence enhancement but that we may exercise discretion under section 1181, subdivision 6 to reduce defendant's conviction to a lesser included offense. The trial court instructed the jury on the lesser included offense of arson of property in violation of section 451, subdivision (d). Defendant challenges the sufficiency of the evidence to show that he harbored malice, and thus committed arson, as opposed to recklessly setting a fire in violation of section 452. Before we exercise our discretion to reduce defendant's conviction to a lesser included offense, we must address this claim.
The Attorney General argues, as the district attorney did in the trial court, that "[b]uildings commonly have walls and a roof. In general, their function is to hold people and property. Although a motor home has wheels and is not fixed to the ground, it is functionally a building, as it serves all the normal purposes of a building, and shares critical design features, such as walls and a roof, and even interior rooms. It is manifestly intended to hold people." The definition of the term "structure" set out in section 450 does not turn on purpose or function, it turns on permanence or immobility, the very attribute of a motor home the Attorney General would have us disregard. Moreover, section 451, the arson statute in question, does not focus on protecting people in buildings as the Attorney General contends. The statute applies to inhabited structures which the Legislature stated means not only buildings but bridges, tunnels, and powerplants. In addition, the severe punishment the Attorney General cites as evidence of the Legislature's intent applies not only to inhabited structures but also to inhabited property, which by definition is everything other than structures, i.e., a motor home. The only reason the severe punishment for arson of inhabited property does not apply in this case is that the district attorney inexplicably failed to charge it.
B. Malice
"In addressing a challenge to the sufficiency of the evidence supporting a conviction, the reviewing court must examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence— evidence that is reasonable, credible and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] The appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citations.] The same standard applies when the conviction rests primarily on circumstantial evidence. [Citation.]" (People v. Kraft (2000) 23 Cal.4th 978, 1053.)
As set out above, in order to commit arson the evidence must show that the defendant acted "willfully and maliciously" in setting fire to, or burning or causing to burn, any structure, property or forest land. (§ 451.) "[W]hen applied to the intent with which an act is done," the term "willfully" "implies simply a purpose or willingness to commit the act." (§ 7, subd. 1.) "'Maliciously' imports a wish to vex, defraud, annoy, or injure another person, or an intent to do a wrongful act, established either by proof or presumption of law." (§ 450, subd. (e).)
Defendant contends the issue in this appeal is whether the evidence is sufficient to establish he had the intent to do a wrongful act. This type of malice, referred to as malice in law, as opposed to malice in fact, which is "defined as 'a wish to vex, annoy, or injure' [citation] - consists of actual ill will or intent to injure." (In re V.V. (2011) 51 Cal.4th 1020, 1028.) "In determining whether [malice in law] ('intent to do a wrongful act') is established for arson, malice will be presumed or implied from the deliberate and intentional ignition or act of setting a fire without a legal justification, excuse, or claim of right." (Ibid.)
Defendant contends he only intended to burn the first motor home, and because that motor home is his own property, that act is not unlawful. Therefore, defendant argues, the resulting fire to the second motor home in which Burley was sleeping was not arson as a matter of law. Instead, defendant contends the jury could find him guilty only of violating section 452, unlawfully causing a fire as a result of recklessly setting a fire that burns or causes to be burned any property.
Although defendant also owned the second motor home, because Burley was sleeping in that vehicle, and it also contained her personal property, he could not lawfully set fire to that second motor home.
Had defendant not moved the first motor home before he set it on fire, we would have to agree with him. But the fact that before setting it on fire, defendant pushed the inoperable motor home next to the one in which Burley was sleeping is sufficient to support an implied finding that defendant intended to use what defendant refers to as the "privileged burning" as the incendiary device to set the other motor home on fire. In short, a jury could reasonably infer that defendant intended to commit the wrongful and unjustified act of setting the second motor home on fire from the fact that he pushed the first motor home over next to it before setting that first motor home on fire.
To the extent defendant challenges the sufficiency of the evidence to prove malice in fact, we also must reject that claim. The evidence in this case shows defendant and Ms. Burley had an argument during which they each separately called the police. The first time a police officer responded, he suggested defendant leave for the night and sleep somewhere else. Defendant left but then almost immediately returned and apparently entered the motor home where he then annoyed Ms. Burley by trying to pull a blanket off her while she slept. This prompted Ms. Burley's call to the police. The same officer responded and again urged defendant to leave.
The responding police officer was in his patrol car, parked across the street from the motor home, filling out the paper work on the first call when he got the second call to respond to the motor home.
Although defendant left the motor home, he did not leave the property. Instead, defendant used a vehicle to push the inoperable motor home over near the one in which Burley was sleeping. Although no one saw defendant start the fire that ignited the inoperable motor home, defendant does not deny doing so. Moreover, the subsequent arson investigation disclosed evidence of accelerant, in particular gasoline, at various locations around the burned motor homes, as well as on defendant's clothing. When she smelled smoke and looked out the window to see what was going on, Burley also saw defendant holding a container that the investigation determined had contained gasoline.
Defendant's contrary claim notwithstanding, the noted evidence is sufficient to support the jury's implied finding that defendant acted willfully, i.e., with a purpose to do what he did, namely set fire to the inoperable motor home, and maliciously, i.e., with a wish to vex and annoy Burley.
Because we conclude the evidence is sufficient to support the noted implied findings and thus supports an arson conviction, we will exercise discretion under section 1181, subdivision 6 to modify the judgment by reducing defendant's conviction from a violation of section 451, subdivision (b) to the lesser included offense of arson of property in violation of section 451, subdivision (d).
DISPOSITION
The judgment is modified by (1) reducing defendant's conviction from a violation of section 451, subdivision (b) to a violation of section 451, subdivision (d); (2) striking the five-year sentence enhancement the trial court imposed under section 451.1; and (3) striking all but one of the section 667, subdivision (a) five-year prior serious felony sentence enhancements. As modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment that reflects defendant's modified sentence and to forward copies of that amended abstract to the appropriate agencies and entities.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MCKINSTER
Acting P. J.
We concur: RICHLI
J.
CODRINGTON
J.