Opinion
A150762
07-25-2018
THE PEOPLE, Plaintiff and Respondent, v. THOMAS GRANT, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 51617786)
Defendant Thomas Grant appeals following his conviction of unlawfully causing a fire of property, a misdemeanor. Grant contends (1) there is insufficient evidence to sustain his conviction, and (2) the jury instruction defining "burn" was ambiguous. We affirm.
FACTUAL AND PROCEDURAL HISTORY
On the evening of October 6, 2016, witness Ernesto Madrid was on a break from his job at Costco in Antioch. He was sitting in his parked car in the Costco parking lot eating his dinner when he noticed a light. Then he saw a man walking slowly on the sidewalk no more than 15 feet from Madrid's car. The man was wearing a hat and pushing a baby stroller or a cart. At first Madrid thought the man was smoking a cigarette, but then he realized the light was brighter than a cigarette. Madrid observed the man use a lighter to light something on fire and throw the lit object toward some bushes close to Madrid's car. The bushes—which Madrid described as dry and green-brown—were growing in a border area separating the parking lot from the public sidewalk.
Madrid saw the man continue walking and light another object, perhaps paper, on fire. The man threw this object in the bushes a few feet from where he had thrown the first lit object. Madrid noticed then that the first bush the man had thrown a lit object at was smoking.
Madrid got out of his car and yelled, "What the hell are you doing?" at the man, who was now about 20 feet away. The man kept walking and did not respond to Madrid. Madrid went to a nearby tire shop to get water to put out the fire. The manager of the tire shop brought a fire extinguisher to extinguish the fire.
Antioch Police Officer Amel Sahnic arrived at the Costco parking lot around 7:30 p.m. that evening. He spoke with Madrid, who described the suspect as a White male in his early 40's, wearing a camouflage jacket, baseball cap and blue shorts, and walking northbound. Sahnic located Grant about a quarter mile from the fire, wearing clothes matching Madrid's description. Grant was walking and pushing a baby stroller that held his belongings. Sahnic found three lighters, a bundle of matches, and cigarettes on Grant's person.
Grant emphasizes that Sahnic testified that Madrid did not tell him that he saw the suspect throw an object in the bushes more than one time. Madrid testified that he believed he did tell the police he saw the man throw more than one lit object at the bushes.
Officer Sahnic took Madrid for an "infield show-up," and Madrid identified Grant based on his clothing and the stroller. The show-up occurred about 10 to 15 minutes after Madrid saw the man light the bushes on fire.
Grant was charged with arson of a structure or forest (Pen. Code, § 451, subd. (d); count 1) and recklessly causing a fire of a structure or forest (§ 452, subd. (c); count 2).
Further undesignated statutory references are to the Penal Code.
A jury trial began on January 23, 2017. After the prosecution presented its case-in-chief, the trial court granted the prosecution's motion to add a charge of unlawfully causing a fire of property, a misdemeanor (§ 452, subd. (d); count 3), and to dismiss count 2. The jury found Grant guilty of count 3, unlawfully causing a fire of property, and not guilty of count 1, arson.
The trial court sentenced Grant to time served (37 days in county jail with credit for 19 days actually served and 18 days conduct credit) and did not place him on probation.
DISCUSSION
A. Sufficiency of the Evidence
"A person is guilty of unlawfully causing a fire when he recklessly sets fire to or burns or causes to be burned, any structure, forest land or property." (§ 452.) Section 452, subdivision (d) provides, "Unlawfully causing a fire of property is a misdemeanor. For purposes of this paragraph, unlawfully causing a fire of property does not include one burning or causing to be burned his own personal property unless there is injury to another person or to another person's structure, forest land or property."
Grant contends no substantial evidence supports his conviction of violating section 452, subdivision (d), arguing there was insufficient evidence (1) that the bush was the personal property of another, (2) that Grant's conduct posed a substantial risk of fire, (3) that a reasonable person would appreciate such a risk, or (4) that Grant appreciated such a risk.
"To assess the evidence's sufficiency, we review the whole record to determine whether any rational trier of fact could have found the essential elements of the crime . . . beyond a reasonable doubt. [Citation.] The record must disclose substantial evidence to support the verdict—i.e., 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.] In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence. [Citation.] 'Conflicts and even testimony [that] is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence. [Citation.]' [Citation.] A reversal for insufficient evidence 'is unwarranted unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support" ' the jury's verdict." (People v. Zamudio (2008) 43 Cal.4th 327, 357 (Zamudio).)
1. Proving Ownership of Burned Property is Not an Element of the Offense
Grant first argues that no evidence was presented in this case proving that anyone owned the burned bushes. Proving a violation of section 452, subdivision (d), however, does not require identification of the owner of the property that has been unlawfully burned. Instead, causing a fire of one's own property is not included in the offense ("unless there is injury to another person or to another person's structure, forest land or property"). (§ 452, subd. (d).) Here, the jury could reasonably infer from the circumstances that the bushes bordering the Costco parking lot were not Grant's property. The prosecution was not required to prove that the bushes were owned by anyone in particular. Grant's first argument is without merit.
"Property," for purposes of section 452, "means real property or personal property, other than a structure or forest land." (§ 450, subd. (c).) Grant appears to argue for the first time in his reply brief not only that the prosecution failed to prove that the burned bushes purposes were the personal property "of another," but that the prosecution failed to prove the burned bushes qualify as "property" under the statute at all. We need not address an argument raised for the first time in a reply brief. (In re Karla C. (2010) 186 Cal.App.4th 1236, 1269-1270.)
2. Substantial Evidence Supports the Jury's Finding of Recklessness
"Recklessly," for purposes of section 452, "means a person is aware of and consciously disregards a substantial and unjustifiable risk that his or her act will set fire to, burn, or cause to burn a structure, forest land, or property. The risk shall be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation. A person who creates such a risk but is unaware thereof solely by reason of voluntary intoxication also acts recklessly with respect thereto." (§ 450, subd. (f).)
Our high court has recognized that "the offense of unlawfully causing a fire covers reckless accidents or unintentional fires, which, by definition, is committed by a person who is 'aware of and consciously disregards a substantial and unjustifiable risk that his or her act will set fire to, burn, or cause to burn a structure, forest land, or property.' (§§ 450, subd. (f), 452.) For example, such reckless accidents or unintentional fires may include those caused by a person who recklessly lights a match near highly combustible materials." (People v. Atkins (2001) 25 Cal.4th 76, 89.)
As we have mentioned, Grant claims there was insufficient evidence that his conduct posed a substantial risk of fire, that a reasonable person would appreciate such a risk, or that Grant appreciated such a risk. He takes the position that he discarded a cigarette in front of Costco, and it caused a bush to burn. But Grant concedes that "if there was substantial evidence to support the prosecution's theory that Mr. Grant threw one or more flaming objects at the bush, there would be substantial evidence that Mr. Grant acted recklessly."
We agree with Grant that substantial evidence that he threw one or more flaming objects at the bushes bordering the Costco parking lot (which were described as dry and green-brown) would support a finding of recklessness. And the record here contains substantial evidence of exactly that. Madrid testified that he observed Grant use a lighter to light an object on fire; he then watched Grant toss the lit object toward the bushes. Madrid testified the light he saw was brighter than a burning cigarette and explained, "you can see the fire." Further, Madrid saw Grant use a lighter to light another object, which he could tell was not a cigarette, and throw it at the bushes. This was substantial evidence from which the jury could infer that Grant threw at least one burning object at the bushes, and the burning object was not a discarded cigarette.
Grant spends a good deal of his opening brief attacking the testimony of the prosecution's expert, who testified about fire origin and cause. But even putting aside the expert's testimony, there was substantial evidence that Grant acted recklessly based on Madrid's testimony. Grant also claims Madrid's testimony was "too incredible for a reasonable jury to believe," but Madrid did not describe events that were physically impossible or patently false. (See People v. Thompson (2010) 49 Cal.4th 79, 124 [rejecting a witness's statement as "inherently incredible" requires either physical impossibility or falsity that is apparent without resort to inferences or deductions].) Madrid's credibility was for the jury to decide; "[w]e resolve neither credibility issues nor evidentiary conflicts." (Zamudio, supra, 43 Cal.4th at p. 357.)
Because Madrid's testimony provides sufficient evidence to support the verdict without considering the expert's testimony in this case, People v. Bassett (1968) 69 Cal.2d 122, cited by Grant is inapposite. In Bassett, the California Supreme Court concluded there was insufficient evidence that the defendant had the requisite mental capacity for first degree murder where the only testimony supporting such a finding was from two doctors who never examined the defendant in person and who "provided essentially no 'reasons' whatever for their conclusions." (Id. at pp. 141-142, 144, 146.)
In sum, Grant's substantial-evidence challenge to his conviction fails because Madrid's testimony provides substantial evidence supporting the jury's finding that Grant recklessly caused the fire of bushes bordering the Costco parking lot. B. Instruction on "Burn"
The trial court gave CALCRIM No. 1532 on violation of section 452, subdivision (d). After explaining that the People had to prove Grant recklessly "set fire to or burned property or caused to be burned," the instruction provided, "To set fire to or burn means to damage or destroy with fire either all or part of something, no matter how small the part."
Grant argues this portion of the jury instruction is ambiguous because one could damage property by "blacken[ing]" it through fire, even if the property is not burned. He relies on In re Jesse L. (1990) 221 Cal.App.3d 161, 166 (Jesse L.), which, in turn, quoted an 1873 case by our high court, People v. Haggerty (1873) 46 Cal. 354, 355, as follows: " 'Upon the question of what is a sufficient burning to constitute the crime, Mr. Bishop states the rule thus: "The word 'burn' enters into the definition of arson at common law; and it occurs in many statutes. It means to consume by fire. If the wood is blackened, but no fibers are wasted, there is no burning; yet the wood need not be in a blaze. And the burning of any part, however small, completes the offense, the same as of the whole. Thus, if the floor of the house is charred in a single place, so as to destroy any of the fibers of the wood, this is a sufficient burning in a case of arson." ' " (Jesse L., supra, at p. 166.)
In his opening brief, Grant challenges the jury instruction on arson, CALCRIM No. 1515, but he was acquitted of the arson charge. As the Attorney General did in the respondent's brief, we assume Grant intended to challenge CALCRIM No. 1532 on section 452, subdivision (d).
The Haggerty court went on to affirm an arson conviction, noting there was evidence that "a spot on the floor was charred, so as to destroy the fibers of the wood by the fire set by the defendant." (People v. Haggerty, supra, 46 Cal. at p. 355.) --------
In Jesse L., the court found sufficient evidence of burning to support an arson conviction because the fire investigator's "uncontradicted testimony of 'burn patterns' on the floor of the building and the bottom edge of the counter and on the face of the doors was sufficient to establish that an area on the floor and a door were charred so as to destroy the fibers of the wood by the fire set by the appellant." (Jesse L., supra, 221 Cal.App.3d at p. 167.)
In essence, Grant argues that the jury could have understood the phrase "damage or destroy with fire" (CALCRIM No. 1532) to mean something other than a fire "destroy[s] the fibers" (Jesse L., supra, 221 Cal.App.3d at p. 167) of the property at issue. "A defendant challenging an instruction as being subject to erroneous interpretation by the jury must demonstrate a reasonable likelihood that the jury understood the instruction in the way asserted by the defendant." (People v. Cross (2008) 45 Cal.4th 58, 67-68.) We assume the jurors were intelligent and capable of understanding the instructions given (People v. Covarrubias (2016) 1 Cal.5th 838, 915), and we doubt they would have understood from CALCRIM No. 1532 that Grant could commit the offense without a showing that fire destroyed at least some fibers of the bushes.
In any event, Grant has not shown prejudice. Assuming for the sake of argument that the instruction given amounted to an omission of the element "burn," such an "error is harmless 'where a reviewing court concludes beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence.' [Citations.] Our task, then, is to determine 'whether the record contains evidence that could rationally lead to a contrary finding with respect to the omitted element.' " (People v. Mil (2012) 53 Cal.4th 400, 417.)
In this case, Madrid testified the bushes "were engulfed in flames." Officer Sahnic testified that when he arrived at the scene, he saw "a fire engine there and them putting out a small brush fire that was adjacent to the Costco property." In closing, defense counsel argued the most logical explanation was that Grant tried to light a cigarette and cast it aside, and "[a]ll this is is an accident." He acknowledged that the photographic evidence "indicate[s] a fire in one small, enclosed area," but he did not argue that no bush was burned. And even in his opening brief, Grant asserts he "discarded a cigarette in front of Costco, and it caused a bush to burn." (Italics added.) On this record, we conclude beyond a reasonable doubt that the element of burning was uncontested and supported by overwhelming evidence. Accordingly, even if we assume instructional error, there was no prejudice.
DISPOSITION
The judgment is affirmed.
/s/_________
Miller, J. We concur: /s/_________
Richman, Acting P.J. /s/_________
Stewart, J.