Opinion
A164605
09-20-2023
THE PEOPLE, Plaintiff and Respondent, v. ALEJANDRO MARIN, Defendant and Appellant.
NOT TO BE PUBLISHED
(Napa County Super. Ct. No. 21CR001329)
SIMONS, J.,
Appellant Alejandro Marin appeals from his convictions, following a jury trial, for arson of a forest or structure (Pen. Code, § 451, subd. (c)), and possession of a controlled substance (Health &Saf. Code, § 11377, subd. (a)). We affirm.
All undesignated statutory references are to the Penal Code.
BACKGROUND
On June 9, 2021, about 10:30 a.m., Elaine P. was walking along a river trail in Napa. It was a sunny, windy day, around 70 degrees. As she was walking, she saw appellant biking towards the trail in an erratic manner. He was heading for her location on the trail, but did not seem aware of her. He stopped by the trail and began rummaging through his bag. Elaine P. kept walking, away from appellant. After two or three minutes, she looked back and saw appellant crouched down in dry grass, moving his hands in a fanning motion, next to a rapidly growing amount of smoke. There had been no smoke in the area before. Elaine P. could not tell if appellant was trying to fan or extinguish the fire. Elaine P. called 911 and firefighters quickly responded. As she was walking away from the fire, appellant biked by her with a "smirk on his face, like he was happy."
Napa Firefighter Jeff Squibb was on the first fire engine at the scene. When Squibb arrived, the fire was 10 feet by 15 feet and growing. Appellant was standing in the middle of the smoke pounding the ground or fire with a handful of green weeds. Squibb initially thought appellant was trying to put out the fire and told him to leave for his own safety, but later thought appellant might have been trying to fan the flames. Firefighters investigating the scene after the fire was extinguished did not find cigarettes or any other source of ignition and were unable to determine how the fire started.
Police detained appellant and found a lighter and a small amount of methamphetamine in his pocket. In an interview with police, appellant said he had been smoking a cigarette, put it out on a road, fell asleep by a tree, and woke up choking on smoke. He tried to use branches to put out the fire. Police told appellant they had video footage showing otherwise, an investigative ruse. Appellant then said he thought he threw the cigarette in the dry grass and, though he stepped on it, "maybe" that was what started the fire.
A recording of the interview, which was conducted predominantly in Spanish, was played for the jury and a transcript with an English translation was provided.
Napa Police Officer Kevin Skillings testified about a prior, uncharged offense involving appellant. On August 5, 2014, around 11:20 p.m. he saw appellant standing next to a fire at the base of a tree. The flames were about four feet high and, while the fire was immediately surrounded by dirt, dry grass leading to a field was only about five feet away from the fire. Appellant told Skillings he started the fire because he was cold and planned to sleep there. When Skillings asked if he thought it was a good idea to start a fire so close to dried grass, appellant relied," 'No, it was stupid.'" Appellant pled to the infraction of unlawful camping in connection with the incident. The jury was instructed it could consider this evidence "for the limited purpose of deciding whether the defendant acted willfully and maliciously or recklessly in this case, or that the defendant's alleged actions were not the result of a mistake or accident."
DISCUSSION
Appellant argues the trial court abused its discretion in admitting the evidence of the 2014 incident pursuant to Evidence Code section 1101, subdivision (b), which allows "evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact" other than propensity, including, as relevant here, "intent" or "absence of mistake or accident." When seeking to admit such evidence," 'the People, as the proponent of the evidence, bear the burden of persuading the judge that the potential prejudice from the jury becoming aware of the uncharged offense is outweighed by the probative value of the evidence.'" (People v. Soper (2009) 45 Cal.4th 759, 772.) "We review the trial court's ruling on the admissibility of other crimes evidence for abuse of discretion." (People v. Scully (2021) 11 Cal.5th 542, 587 (Scully).)
"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." (§ 451.) The statute's "willful and malice requirement ensures that the setting of the fire must be a deliberate and intentional act, as distinguished from an accidental or unintentional ignition or act of setting a fire." (People v. Atkins (2001) 25 Cal.4th 76, 88.) The jury was also instructed with the lesser included offense of unlawfully causing a fire, which requires a reckless mental state. (§ 452.)
Appellant argues the 2014 incident had minimal probative value and was highly prejudicial. We find no abuse of discretion. First, the 2014 incident was probative of appellant's awareness of the substantial risk of causing a fire in a dry, grassy area, as relevant to the lesser included offense. The incident was also probative of whether appellant would be likely to be careless with a lit object such as a cigarette in a dry, grassy area, or whether any fire started by him was likely to be intentional. Appellant argues the 2014 incident was too dissimilar from the charged offense to be probative because he set the fire in 2014 to stay warm while he slept, while the charged event took place on a mild morning. "In order to be relevant, the 'least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent.'" (People v. Molano (2019) 7 Cal.5th 620, 665.) In both incidents, appellant started a fire in a dry, grassy area; this similarity is sufficient for purposes of intent. Appellant also contends the evidence was cumulative because it is common knowledge that lighting things on fire leads to fire. Given that appellant claimed he threw a lit cigarette in dry grass, evidence that appellant was aware of the dangers of lit objects near dry grass was relevant.
Second, the 2014 incident was not unduly prejudicial. Appellant argues it was likely to be used by the jury as evidence that appellant had a propensity for starting "stupid" fires, but "prejudice of this sort is inherent whenever other crimes evidence is admitted." (People v. Kipp (1998) 18 Cal.4th 349, 372.) "[T]he risk of such prejudice was not unusually grave here" (ibid.) because there was no evidence the 2014 incident caused any harm to persons or property. Moreover, appellant pled to an infraction, so this is not a case where "the uncharged acts did not result in a criminal conviction" thereby creating the risk that the jury will "punish the defendant for the uncharged acts regardless of whether it considers the defendant guilty of the charged offense." (People v. Tran (2011) 51 Cal.4th 1040, 1047.) The 2014 incident was "not significantly more inflammatory than the" charged offense. (See Kipp, at p. 372; see also Scully, supra, 11 Cal.5th at p. 587 [no abuse of discretion where "[n]one of the prior crime evidence was particularly inflammatory or likely to invoke an emotional bias against defendant"].)
DISPOSITION
The judgment is affirmed.
WE CONCUR: JACKSON, P. J., CHOU, J.