Opinion
F077793
02-24-2020
THE PEOPLE, Plaintiff and Respondent, v. TODD CHRISTOPHER HUNTER, Defendant and Appellant.
Michelle T. Livecchi-Raufi, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Stephanie A. Mitchell, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. 4006221, 4002599)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Stanislaus County. Joseph R. Distaso, Judge. Michelle T. Livecchi-Raufi, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Stephanie A. Mitchell, Deputy Attorneys General, for Plaintiff and Respondent.
Before Peña, Acting P.J., Meehan, J. and Snauffer, J.
-ooOoo-
Defendant Todd Christopher Hunter contends on appeal (1) we should remand for the trial court to exercise its newly granted discretion to determine whether to grant him mental health diversion, (2) insufficient evidence supported his conviction for arson of forest land, and (3) we should strike a restitution fine that the court did not orally pronounce. The People concede the evidence was insufficient to support the arson conviction, and thus we must reverse. We accept the concession, reverse the conviction, and remand for resentencing.
PROCEDURAL SUMMARY
On February 24, 2017, in case No. 4002599 (the assault case), the Stanislaus County District Attorney charged defendant with assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1); count 1) and misdemeanor vandalism (§ 594, subd. (b)(1); count 2). Defendant pled no contest to assault with force likely to produce great bodily injury (§ 245, subd. (a)(4)), a lesser related offense to count 1, in exchange for three years' probation with 365 days in jail and dismissal of count 2.
All statutory references are to the Penal Code.
On January 17, 2018, in case No. 4006221 (the arson case), the Stanislaus County District Attorney charged defendant with arson of forest land (§ 451, subd. (c)).
On April 23, 2018, the trial court found defendant had violated his probation by failing to obey all laws (by committing the arson charged in the arson case).
At the beginning of the hearing, the prosecutor stated the alleged violations of probation included both the failure to report to probation and the failure to obey all laws (a new law violation). But at the end of the hearing, the court stated: "The Court will make a final ruling on the failure to keep in contact with probation at the next hearing."
On June 6, 2018, in the arson case, a jury found defendant guilty of arson of forest land. The probation officer filed a report, recommending a prison commitment. In the assault case, the probation officer also filed a report, noting two violations of probation, one for failure to report and one for failure to obey all laws. The report noted that until defendant was convicted in the arson case, the officer was recommending 60 days in custody, but in light of the new conviction, he was now recommending a prison commitment.
On July 2, 2018, the trial court sentenced defendant in both cases to a total of five years in prison: four years on the arson of forest land count, and one consecutive year (one-third the midterm of three years) on the assault with force likely to produce great bodily injury count.
On July 11, 2018, defendant filed a notice of appeal in the arson case. We granted defendant's request to construe the notice of appeal as an appeal from both cases.
FACTS
The following facts describe the evidence introduced in the arson case. On the morning of January 14, 2018, a witness noticed a fire in a "dirt lot" in Ceres as he was driving home from the liquor store across the street from the lot. The witness lived three houses from the lot. He also described the lot as a "dirt field." He saw defendant "[s]toking the fire, putting stuff in the fire," such as trash and a tire. Then the witness saw defendant "[j]ust messing with the fire. Just walking around going up to the people's houses." The witness called 911 and pulled over. He saw defendant stay near the fire for about five minutes, then walk away. The witness followed defendant and stayed until the fire department arrived.
At about 8:21 a.m., the fire department received the call and a crew responded within five minutes. The fire captain observed black smoke and flames coming from the vacant lot at the intersection, and he saw a man walking away from the area of the fire. The vacant lot consisted of vegetation and trash blown by the wind. About half of the lot was empty and "pretty well barren," but the other half contained vegetation, such as trees, bushes, and dead grass. The closest house was about 50 yards away. The fire, which covered an area about five feet by five feet, "appeared to be a roadside, rubbish and vegetation fire." The crew put the fire out within a minute.
A police officer arrived after the fire department had extinguished the fire. The officer found defendant, who had been described by the witness, standing in front of a house about one-half city block from the fire. Defendant appeared to have ashes on himself and he smelled of smoke. He was holding a pair of shorts that appeared to have been burned or charred. He had a butane lighter in his shirt pocket. When the officer asked defendant about the fire, defendant said, "Uh, man, I was just burning some trash, just, just phone books man." The officer told him it was against the law to light things on fire. Defendant answered, "Well, it's just a phone book, I was just trying to get warm and eat tortillas." The officer told him he smelled, and defendant said, "The bitch ass tire. [¶] ... Hell, burn a little fucking trash." When the officer asked why he was burning things, he said, "Eat a tortilla." The officer told him he was wasting resources because he left the scene and the fire department had to be called. He said, "I, I could have put it out in a second. [¶] ... [¶] It's barely blazing, I mean, the fucking telephone books." When the officer noted that a tire caught fire too, defendant apologized. He agreed his shorts "[m]ight have been torched." He said he "swatted the tree when the tree tried to catch. [¶] ... Starting all kinds of crazy shit."
The officer described the lot as "approximately, one acre, possibly," the majority of which was a "vacant dirt lot." But around the area the fire was started, there was a tree, some weeds, and other vegetation. He saw what he thought were remnants of a burned telephone book. There was also a power pole with a power line not far from where the tree was burned. The tree was 40 to 50 yards from the nearest house.
A fire investigator responded to the battalion chief's request to investigate "the scene of a trash grass fire that [a]ffected a tree also." The investigator described the lot on the corner of an intersection as "[p]retty much a dirt-grass lot with some taller grass and a tree in it." The satellite image of the lot showed a total of about six or seven trees on the entire lot; the remainder of the lot was brown. The investigator believed the satellite image was taken during the summer when the grass was dead, whereas on the day of the fire, there was some green due to the rain and winter season. The lot was on a corner, bounded on the east and south by roadways, and on the west by residential property. The north boundary was not visible in the image. The lot had previously been a residential lot. It contained a power pole that once had a power drop going to it, and trees standing 10 to 20 feet from the roadway. In one area, there was "just dirt and grass ... with taller grass running in [the] area that led to the backyard[] of the residence ...." Part of the vacant lot was an "open vegetation area" with some trees and short grass and also "juniper trees that go along the backyard of [a] residence ...." And there were "a lot of different trees." The investigator thought the grass was "low-growth weed," not cut grass. The investigator's photographs of the scene showed burned matter and black charring on the ground near the tree. The fire had also charred the base of the tree and had browned some of its leaves. The area in front of the tree was mostly dirt with very little grass. Beyond the tree was short green grass on one side of the lot—with some trees and very few shrubs or bushes—and dirt on the other side. The investigator concluded the fire had originated at the base of the tree. The hard dirt showed soot stains and "popping," as seen in burned concrete, and some burned grass. There were pieces of wood and plastic, a tire, and burned pages of a telephone book. The investigator concluded the telephone book was the material initially ignited by an intentional act. He summarized: "The fire originated at the base of the tree and was caused when pieces of torn phone book were ignited by a portable ignition device."
DISCUSSION
Defendant contends the evidence failed to adequately support the conviction for arson of forest land because the Legislature did not intend for the statute to apply to a vacant city lot. He argues we should modify the judgment of conviction to the lesser included offense of arson of property.
The People concede the evidence did not support the conviction for arson of forest land. However, they maintain arson of property is not a lesser included offense of arson of forest land and consequently the conviction must simply be reversed.
I. Arson of Forest Land
"Arson of ... forest land is a felony punishable by imprisonment in the state prison for two, four, or six years." (§ 451, subd. (c).) Section 451 defines arson, and its subdivisions define the specific harm and the attached penalty: (a) arson that causes great bodily injury, (b) arson that causes an inhabited structure or inhabited property to burn, (c) arson of a structure or forest land, and (d) arson of property. (§ 451, subds. (a)-(d); see People v. Shiga (2019) 34 Cal.App.5th 466, 477-480 (Shiga).) Relevant to this case, " '[f]orest land' means any brush covered land, cut-over land, forest, grasslands, or woods." (§ 450, subd. (b).)
Section 451 provides: "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. [¶] (a) Arson that causes great bodily injury is a felony punishable by imprisonment in the state prison for five, seven, or nine years. [¶] (b) Arson that causes an inhabited structure or inhabited property to burn is a felony punishable by imprisonment in the state prison for three, five, or eight years. [¶] (c) Arson of a structure or forest land is a felony punishable by imprisonment in the state prison for two, four, or six years. [¶] (d) Arson of property is a felony punishable by imprisonment in the state prison for 16 months, two, or three years. For purposes of this paragraph, arson of property does not include one burning or causing to be burned his or her own personal property unless there is an intent to defraud or there is injury to another person or another person's structure, forest land, or property. [¶] (e) In the case of any person convicted of violating this section while confined in a state prison, prison road camp, prison forestry camp, or other prison camp or prison farm, or while confined in a county jail while serving a term of imprisonment for a felony or misdemeanor conviction, any sentence imposed shall be consecutive to the sentence for which the person was then confined."
Here, the prosecutor conceded the vacant lot did not qualify as either forest or woods, but she argued it constituted forest land because it qualified as cut-over land, grasslands, and brush covered land. She argued: "There was grass. There was shrubbery. There was vegetation and trees. This qualifies as any of those things—brush-covered, cutover, or grassland."
Because the definition of "forest land" involves statutory interpretation, we review the definition de novo. (People v. Costella (2017) 11 Cal.App.5th 1, 5 (Costella).) As to whether there was sufficient evidence of forest land, we consider whether substantial evidence exists in the record that is reasonable, credible, and of solid value so that a reasonable fact finder could find the defendant guilty beyond a reasonable doubt. (Ibid.) In looking for substantial evidence, we presume every inference in support of the judgment that the finder of fact could reasonably have made. We do not reweigh the evidence or reevaluate witness credibility, and we cannot reverse the judgment merely because the evidence could be reconciled with a contrary finding (People v. D'Arcy (2010) 48 Cal.4th 257, 293), but we may reject inherently improbable evidence that is either physically impossible or apparently false (People v. Mayberry (1975) 15 Cal.3d 143, 150; People v. Ontiveros (1975) 46 Cal.App.3d 110, 117).
"The ' "goal of statutory construction is to ascertain and effectuate the intent of the Legislature." ' [Citation.] In approaching this task, we must first look at the plain and commonsense meaning of the statute because it is generally the most reliable indicator of legislative intent and purpose. [Citation.] If there is no ambiguity or uncertainty in the language, the Legislature is presumed to have meant what it said, and we need not resort to legislative history to determine the statute's true meaning." (People v. Cochran (2002) 28 Cal.4th 396, 400-401.) In other words, the plain meaning controls unless the words are ambiguous. (Costella, supra, 11 Cal.App.5th at p. 6.) " 'If the statute is ambiguous, we may consider a variety of extrinsic aids, including legislative history, the statute's purpose, and public policy.' " (Ibid.) We may " 'examin[e] the context in which the language appears and adopt[] the construction which best serves to harmonize the statute internally and with related statutes.' " (People v. Gonzalez (2008) 43 Cal.4th 1118, 1126.)
Accordingly, we begin with the plain, ordinary, and commonsense meanings of cut-over land, grasslands, and brush covered land (forest and woods having been eliminated by the prosecutor) and determine whether they applied to the evidence in this case. The parties both agree they did not.
Cut-over Land
We first address "cut-over land" because we can readily determine it did not apply here.
According to Merriam-Webster, the meaning of "cutover" land is land "having most of the salable timber cut down." (<https://www.merriam-webster.com/dictionary/cutover> [as of Feb. 14, 2020].)
The Oxford dictionary defines "cutover" land as land "having had its saleable timber felled and removed." (<https://www.lexico.com/en/definition/cutover> [as of Feb. 14, 2020].)
Dictionary.com states "cutover" land is "land, especially timberland, cleared of trees." (<https://www.dictionary.com/browse/cutover> [as of Feb. 14, 2020].)
Based on these definitions, we agree the lot did not qualify as "cut-over land." The lot was located at a city intersection, across the street from a liquor store and abutting a residential area. The now vacant lot was formerly residential and was approximately one acre in size. The lot contained some standing trees, but there was no evidence any trees had been cleared from the lot for any reason, commercial or otherwise. Additionally, the lot's city location and former residential nature suggested it had not been used to grow commercial timber.
Grasslands
We also agree the lot did not qualify as "grasslands."
Merriam-Webster defines a "grassland" as "farmland occupied chiefly by forage plants and especially grasses," or "land on which the natural dominant plant forms are grasses and forbs," or "an ecological community in which the characteristic plants are grasses." (<https://www.merriam-webster.com/dictionary/grassland> [as of Feb. 14, 2020].)
A "forb" is described as "an herb other than grass." (<https://www.merriam-webster.com/dictionary/forb> [as of Feb. 14, 2020].)
The Oxford dictionary states a "grassland" is "[a] large open area of country covered with grass, especially one used for grazing." (<https://www.lexico.com/en/definition/grassland> [as of Feb. 14, 2020].)
Dictionary.com defines a "grassland" as "an area, as a prairie, in which the natural vegetation consists largely of perennial grasses, characteristic of subhumid and semiarid climates," or "land with grass growing on it, especially farmland used for grazing or pasture." (<https://www.dictionary.com/browse/grassland> [as of Feb. 14, 2020].)
We believe these definitions suggest a "grassland" is open country land, occupied largely by grasses, possibly used for grazing—rather than any grassy land. Furthermore, the arson statutes distinguish between arson of forest land and arson of other types of uninhabited property, suggesting the Legislature intended "forest land" to include something other than any land containing grass. Had the Legislature intended to specifically punish grass fires of any kind, it is reasonable to conclude it would have drafted the statute differently. The legislative history supports the narrower interpretation of "grasslands." The previous version of the arson statute prohibited, in part, the willful and malicious burning of "any grass, forest, woods, timber, brush-covered land, or slashing, cutover land." (Former § 449c; Stats. 1976, ch. 1139, § 203, p. 5119, italics added.) "In 1979 Senate Bill No. 116 reorganized and consolidated multiple Penal Code sections relating to different forms of arson into section 451." (Shiga, supra, 34 Cal.App.5th at p. 478; see Stats. 1979, ch. 145, §§ 6, 8, p. 338.) The Legislature amended the arson statutes and enacted versions of sections 450 and 451 substantially similar to the current versions. The amendment from "any grass" to "grasslands" suggests the Legislature intended to narrow the types of grassy areas that qualify under this statute.
These considerations lead us to conclude the mere presence of grass does not make a "grassland" for the purposes of sections 450 and 451. Here, the vacant city lot contained grass, but none of the other features suggestive of a "grassland" described by these definitions and supported by context and history. Thus, the evidence was insufficient to conclude the grassy, vacant city lot constituted "grasslands."
Brush Covered Land
The remaining possibility for the lot to qualify as "forest land" was as "brush covered land."
According to Merriam-Webster, the meaning of "brush" is "scrub vegetation" or "land covered with scrub vegetation." (<https://www.merriam-webster.com/dictionary/brush> [as of Feb. 14, 2020].) "Scrub" is "a stunted tree or shrub." (<https://www.merriam-webster.com/dictionary/scrub> [as of Feb. 14, 2020].)
The Oxford dictionary states that "brush" is "[u]ndergrowth, small trees, and shrubs." (<https://lexico.com/en/definition/brush> [as of Feb. 14, 2020].)
Dictionary.com defines "brush" as "a dense growth of bushes, shrubs, etc.; scrub; thicket." (<https://www.dictionary.com/browse/brush> [as of Feb. 14, 2020].)
In Costella, the court also considered the definition of "brush covered land." There, the defendant dumped and burned the victim's body on land that was "alongside the highway." (Costella, supra, 11 Cal.App.5th at p. 4.) The land was described as " 'a vacant lot' close to the highway 'with some grass and weeds growing,' an area with 'some vegetation,' and terrain with '[j]ust some grass, weeds, [and] small vegetation.' Besides the victim's body, 'small bits of grass around the body' burned. In his contemporaneous report, the captain described the area surrounding the body as 'bare dirt,' but based on his review of the photographs in evidence, he noted 'grass, land, and other vegetation.' The firefighter who extinguished the fire described 'bare dirt' around the body and a 'mix of bare dirt and grass and small brush' around the area. [¶] Several trial exhibits were photographs depicting the area of the fire.... The immediately surrounding area is a mixture of bare dirt, grass, and weeds.... [A]erial views of the scene ... depict substantially more of the area. They show mostly bare dirt outside the area immediately surrounding the body.... [T]he undeveloped plot of land is adjacent to the freeway, and a residential neighborhood borders it on at least one side. This exhibit also shows much more green vegetation covering the plot of land farther outside the immediate location of the fire." (Id. at pp. 4-5.) The jury convicted defendant of arson of forest land. (Id. at p. 5.)
The appellate court concluded the land qualified as "brush covered land," stating: "The evidence in this case shows the land at issue falls within the plain meaning of 'brush covered.' (§ 450, subd. (b).) The responding firefighter described the area immediately around the body as a combination of bare dirt, grass, and small brush, a description that is borne out by the photographic evidence. Shrubs appear scattered throughout the area. But this was only the immediate area around the body. The aerial photograph of the scene (exhibit 1) shows green vegetation densely covered—and in many places entirely covered—most of the undeveloped plot of land. Thus, the record belies defendant's description of the land as 'a few weeds in [a] dirt lot.' Far from a dirt lot, exhibit 1 reveals this area was filled with vegetation. Between the photographs of the scene and the firefighters' description, the jury had ample evidence from which it could conclude this land was brush covered and therefore forest land." (Costella, supra, 11 Cal.App.5th at pp. 6-7.) Costella expressly rejected the argument that "the land must be continuously covered with brush to be considered forest land." (Id. at p. 7 ["We see no requirement that every inch of the subject land be covered by brush."].)
Based on our review of the definitions of "brush" and the discussion in Costella, we believe the definition of "brush covered land" requires that at least some portion of the land in question be densely populated with brush, even if the land is not "continuously covered with brush." (Costella, supra, 11 Cal.App.5th at p. 7.) Here, about half the lot was just dirt and the other half contained vegetation. According to the fire captain, the vegetation consisted of trees, bushes, and dead grass. According to the officer, it consisted of a tree, some weeds, and other vegetation. According to the fire inspector, who described the land in the greatest detail, it consisted of short grass, which was low-growth weeds, some taller grass, and some trees. The photographic and satellite exhibits show the vegetation was mostly grass with some trees, but very few bushes or shrubs. No part of the lot appears to be densely filled with bushes or shrubs. In light of all the evidence, we conclude the fire captain's mention of bushes does not constitute substantial evidence that some portion of the land was densely populated with brush. Thus, we agree with the parties that the evidence was not sufficient to demonstrate the land qualified as "brush covered land."
As a result, the evidence failed to demonstrate defendant burned "forest land" and thus insufficient evidence supported the conviction under section 451, subdivision (c). We agree with defendant and accept the People's concession that the conviction cannot stand.
II. Modification of Judgment
We therefore turn to defendant's request that we modify his judgment to a conviction for the lesser included offense of arson of property under section 451, subdivision (d).
"[The Supreme Court has] 'long recognized that under Penal Code sections 1181, subdivision 6, and 1260, an appellate court that finds that insufficient evidence supports the conviction for a greater offense may, in lieu of granting a new trial, modify the judgment of conviction to reflect a conviction for a lesser included offense.' " (People v. Bailey (2012) 54 Cal.4th 740, 748, fn. omitted, quoting People v. Navarro (2007) 40 Cal.4th 668, 671.)
"To determine if an offense is lesser and necessarily included in another offense ... we apply either the elements test or the accusatory pleading test. 'Under the elements test, if the statutory elements of the greater offense include all of the statutory elements of the lesser offense, the latter is necessarily included in the former. Under the accusatory pleading test, if the facts actually alleged in the accusatory pleading include all of the elements of the lesser offense, the latter is necessarily included in the former.' " (People v. Shockley (2013) 58 Cal.4th 400, 404.)
As previously mentioned, section 451 defines a single crime of arson, and then its subdivisions specify the various penalties depending on the severity of the harm. (Shiga, supra, 34 Cal.App.5th at pp. 477-480.) In the context of another subdivision of section 451, it has been held that arson of property under subdivision (d) is merely a lesser related offense of arson of an inhabited structure or inhabited property under subdivision (b). (People v. Goolsby (2015) 62 Cal.4th 360, 362-364; People v. Goolsby (2016) 244 Cal.App.4th 1220, 1226 (Goolsby).) This is because the statutory definitions of "property" and "structure" are mutually exclusive: "property" is defined as "real property or personal property, other than a structure or forest land" (§ 450, subd. (c), italics added). (Goolsby, supra, 244 Cal.App.4th at p. 1227.) The distinction is further reflected in the wording of sections 451 and 455, both of which prohibit the unlawful burning of, or an attempt to burn, "any structure, forest land, or property." (Italics added.) Thus, the burning of "property" is not necessarily included in the burning of an "inhabited structure." (Goolsby, supra, 244 Cal.App.4th at p. 1227.)
Likewise, for the same reasons, the same statutes establish that the statutory definitions of "property" and "forest land" are also mutually exclusive because "property" is defined as "real property or personal property, other than a structure or forest land." (§ 450, subd. (c), italics added.) Again, it follows that the burning of "property" is not necessarily included in the burning of "forest land." Thus, we agree with the People that arson of property under section 451, subdivision (d) is not a lesser included offense of arson of forest land under section 451, subdivision (c). Consequently, we cannot modify the judgment to a conviction for arson of property.
Our reversal of the arson of forest land conviction and remand for resentencing provides defendant an opportunity to address mental health diversion at resentencing and renders moot the contention that the trial court failed to orally pronounce a restitution fine. We note, however, that because the prison commitment in the assault case was recommended as a result of the arson conviction, sentencing in that case must be reconsidered after reversal of the arson conviction.
We do not reverse the trial court's finding that defendant violated probation, as defendant requested at oral argument, because we believe the record supports the conclusion the finding was based on both the failure to report to probation and the failure to obey all laws. --------
DISPOSITION
The judgment of conviction for arson of forest land (§ 451, subd. (c)) in case No. 4006221 is reversed. The matter is remanded for resentencing in case No. 4002599. At resentencing, defendant will have the opportunity to raise the issue of mental health diversion, if he so wishes. In all other respects, the judgment is affirmed.