Opinion
C084861
06-22-2018
THE PEOPLE, Plaintiff and Respondent, v. CHARLES HUI MCKENZIE, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. No. 13F04400)
After throwing incendiary devices at an adjacent apartment building, defendant Charles Hui McKenzie told an investigator he believed he was defending himself and his elderly mother from the residents in the other building. A jury convicted him of arson, attempted voluntary manslaughter, child endangerment, and assault with a deadly weapon. The trial court sentenced him to 14 years in state prison.
Defendant now contends (1) the trial court should have stayed the six attempted voluntary manslaughter counts pursuant to Penal Code section 654, because the crimes constituted a single act or indivisible course of conduct with the single objective to kill the neighbors, and (2) the trial court erred in imposing assessments. We will modify the judgment to vacate the sentences on the six counts of attempted voluntary manslaughter (counts 2 through 6 and 14), to impose a one-year sentence on each of those counts, to stay punishment on those counts, and to strike the assessments imposed on counts 11 and 12 and reduce the total assessments. We will affirm the judgment as modified.
Undesignated statutory references are to the Penal Code.
BACKGROUND
In July 2013, J.L. lived in Sacramento County with her boyfriend, her daughter, her son, her daughter-in-law, and three grandchildren. Her apartment was the end unit in a three-unit building. Defendant lived in a similar building across a courtyard; his apartment faced J.L.'s apartment. She and other members of her family had interacted with him numerous times before the night of the alleged crimes, always amicably.
On the evening of July 11, 2013, J.L. and her daughter were sitting in their upstairs bedroom with her infant grandson when J.L. heard a banging on the wall. Looking out the window, she saw a blue container in the courtyard, which turned out to be a gas canister, about three feet from her front door. As J.L. looked out the door through a closed security gate, she saw something come flying toward her feet, then heard glass break and smelled gasoline. She looked toward the rooftop of the adjacent building, from which the object had come, and saw defendant standing on the roof. She yelled at him and asked what he was doing. After yelling a reply she could not hear, he threw a second jar, which landed in the bushes.
J.L. rushed back inside to get everyone out and called 911. The occupants exited the front door, with J.L. last. As she emerged, defendant threw a third jar and yelled something like, "I don't care. I'll kill you before you get me." This jar, which was lit, landed in the bushes and set them on fire. The fire spread to the building. Defendant threw two more devices toward the general area of J.L.'s front door. J.L. and her family ran toward a nearby parking lot.
Steven Johnson, a Sacramento Metropolitan Fire District investigator, was one of the officers who responded to the 911 call. When he arrived, the scene was "total chaos," with 20-foot flames shooting from the building. As the firefighters worked, the sheriff's dispatch notified them that the suspect, reported as being on the rooftop, had retreated and his current whereabouts were unknown.
After the large fire was under control, a small fire in the courtyard kept burning and flared up in response to water; a dry chemical fire extinguisher was needed. The flare-up indicated that a flammable liquid or chemical was burning, and Johnson detected the smell of gasoline after the fire was put out. The blue container in the courtyard was labeled "kerosene."
Fire dispatch notified Johnson that someone in a unit across the courtyard had called 911, claiming he was being held hostage and he and his mother were having trouble breathing; dispatch thought he might be the suspect. Johnson told dispatch to have the caller come to the door.
Defendant came to the door and spoke to Johnson through closed blinds at a cracked window. He said the people inside were okay and did not need help any more. Johnson replied that because 911 had been called, he needed them to come out so he could check on them. Defendant came out.
Seeing that defendant matched dispatch's description of the fire bomber, Johnson handcuffed him and turned him over to sheriff's deputies, who placed him in a patrol car. Defendant's mother was found inside the apartment and taken to get first aid. The interior smelled strongly of gasoline.
While detained in the patrol car, defendant was read his Miranda rights and said he did not wish to talk to Johnson. But after Johnson said he was arresting defendant for arson and attempted murder, defendant said, "I did this in self-defense" and claimed the neighbors, who had threatened him with a shotgun the night before, were planning to kill him; he added that the officers should search the neighbors' apartment for evidence.
Miranda v. Arizona (1966) 384 U.S. 436 . --------
After verifying that defendant now wished to waive his rights, Johnson took a statement from him, as follows:
J.L. and her family had thrown a loud party the night before. As defendant walked by, they made fun of him. Defendant had to take his mother to Sutter Hospital in Roseville because the noise made her sick. While his mother was at the hospital, defendant went to Walmart and bought the materials to make incendiary devices, intending to use them that night. But the hospital called and said she was ready to be discharged, so he had to go get her instead. After picking her up and taking her home, he went to a gas station and bought $10.20 worth of gasoline, which he put in the blue container. J.L.'s family also made fun of defendant the next day, which "really pissed him off." Having "had enough," he assembled the incendiary devices.
Defendant went up on the roof, tied a sock to the blue container, lit the sock on fire, and threw the container at J.L.'s front door. When the door opened, he threw two devices, which did not work. He heard someone yell, "What are you doing, asshole? We have kids in here." While people were running out, he threw two more devices. Then, seeing the fire department and police, he got off the roof, went inside, and watched them through his windows. He left two devices on the roof, along with a red bag containing two expensive knives he wanted returned to him. (A firefighter later found these items on the roof.)
Defendant was sure that if he had not acted, the neighbors would have killed him first. He did not feel bad about his conduct, because "[i]t was either them or him" and he needed to protect himself and his mother.
Defendant testified at trial that while living at the complex he had gotten to know J.L.'s boyfriend well and had interacted with her son a few times. However, one night about three weeks before the fire, he woke up and heard a conversation from across the way, in which it sounded like someone was saying they should kidnap defendant's mother and bring her back for a reward. He believed J.L.'s son wanted to "pop" him immediately and would have done so if J.L. had not come along and quelled the impulse. The night before the fire, defendant said it appeared to him that J.L.'s son was holding a shotgun concealed by a T-shirt.
Defendant said that on the day of the fire, he saw J.L.'s son looking at him, "really eyeballing him," as though "looks could kill." Feeling frightened, defendant went upstairs to his room. He heard a bang and glass breaking. Looking out, defendant saw the son walking away toward J.L.'s residence. Downstairs, defendant found a broken window and realized all the locks in his unit could be reached through it. Scared and "freaking out," defendant thought "it's on." Defendant picked up two chef's knives in the kitchen to use as defensive weapons. Then he saw jars, gasoline, and other materials outside on the back patio. Because he thought knives would be insufficient against guns, he decided to try to make incendiary devices. He intended only to create a "barrier" of fire between his building and J.L.'s building, so as to keep her family away from him and his mother; he did not intend to kill anyone or to commit arson. On cross-examination, he admitted that he knew the devices could have killed J.L. and her family, but insisted he had thrown them only at the grass.
Defendant went up on the roof, tied a sock on the handle of the gas canister, lit the sock on fire, and threw the canister onto the grass between the buildings. The gas burned slowly, but did not start a fire.
Defendant saw J.L. come outside with her family and head for the parking lot. J.L. yelled that they had kids with them. Defendant yelled, "Why did you try to have me killed last night?"
Seeing that the family was all outside, defendant threw two unlit jars at J.L.'s front door to keep them from going back in and getting weapons. He then threw another unlit jar at the gas canister, hoping to make another barrier or at least increase the amount of fire in that area; the jar bounced up and landed near the front of J.L.'s building and the adjacent bushes. Defendant then threw a lit jar, which hit the canister, then headed into bushes near another unit in the building; the bushes burst into flame. He went inside and called 911, giving his name and address and saying he had caused a fire.
Defendant admitted telling investigator Johnson that he acted in self-defense because the J.L. family would have killed him first if he had not acted. But he denied telling Johnson that he had planned the crime and acquired the supplies the night before, or that he did it because the neighbors threw loud parties and kept his mother awake, or that they had made fun of him all day and angered him.
The jury convicted defendant of arson (§ 451, subd. (b) -- count 10), attempted voluntary manslaughter (§ 664/192, subd. (a) -- counts 2-6, 14), felony child endangerment (§ 273a, subd. (a) -- counts 8-9), and assault with a deadly weapon (a Molotov cocktail) (§ 245, subd. (a)(1) -- count 13).
Before sentencing, defendant argued that because he intended to kill only two of the family members, the remaining attempted voluntary manslaughter counts (alleged on a theory of concurrent intent) should be stayed pursuant to section 654, and that sentencing on the arson counts could not run consecutively. Defendant did not argue that all the attempted voluntary manslaughter counts should be stayed under section 654 because they had the same intent and objective as the arson count.
At sentencing, the trial court dismissed arson counts that did not involve the victims' unit pursuant to section 1385. It chose the count 10 arson conviction as the principal term and imposed the upper term of eight years on that count. It also imposed a consecutive three-year midterm on each attempted voluntary manslaughter conviction (counts 2 through 6 and 14) and stayed all but one-third, apparently intending to impose one year, or one-third the midterm, on each of those counts, as the abstract of judgment indicates. The trial court imposed but stayed sentence under section 654 on the other convictions. Accordingly, defendant was sentenced to an aggregate state prison term of 14 years.
DISCUSSION
I
Defendant contends the trial court should have stayed sentence on the attempted voluntary manslaughter convictions because they were based on the same conduct as the arson conviction and had the same objective. The Attorney General responds that defendant's course of conduct was divisible and entailed separate intents and objectives. Defendant has the better argument.
Section 654, subdivision (a) provides: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision."
"Whether a defendant may be subjected to multiple punishment under section 654 requires a two-step inquiry, because the statutory reference to an 'act or omission' may include not only a discrete physical act but also a course of conduct encompassing several acts pursued with a single objective. [Citations.] We first consider if the different crimes were completed by a 'single physical act.' [Citations.] If so, the defendant may not be punished more than once for that act. Only if we conclude that the case involves more than a single act -- i.e., a course of conduct -- do we then consider whether that course of conduct reflects a single ' "intent and objective" ' or multiple intents and objectives. [Citations.] At step one, courts examine the facts of the case to determine whether multiple convictions are based upon a single physical act. [Citation.] When those facts are undisputed . . . the application of section 654 raises a question of law we review de novo. [Citations.]" (People v. Corpening (2016) 2 Cal.5th 307, 311-312 (Corpening).)
It can be difficult to determine what constitutes a "single physical act," because "[n]either the text nor the structure of section 654 resolves when exactly a single act begins or ends, . . . , or how to take account of the fact that virtually any given physical action may, in principle, be divided into multiple subsets that each fit the colloquial definition of an 'act.' " (Corpening, supra, 2 Cal.5th at p. 312.) For purposes of section 654, however, if "some action the defendant is charged with having taken separately completes the actus reus for each of the relevant criminal offenses," that action, even if theoretically divisible into multiple subsets, will constitute a single physical act. (Corpening, at p. 313.)
In Corpening, the defendant pleaded guilty to robbery and carjacking based on the forceful taking of a vehicle that contained valuable coins. (Corpening, supra, 2 Cal.5th at pp. 309-310.) The trial court sentenced him consecutively for both crimes. (Id. at p. 310.) The Court of Appeal rejected a section 654 challenge on the ground that there were " 'several discrete physical acts' " necessary to complete the crimes: " 'forcing the victim out of the car, struggling with him as he attempted to resist, then again struggling with the victim, [and] then driving off with the van' " -- and that those discrete physical acts evinced the separate intents to steal the coins and to take the van in order to escape. (Corpening, at p. 311.) The California Supreme Court reversed, holding that the forceful taking of the vehicle was a single physical act under section 654 because it simultaneously accomplished the actus reus requirements for both charged crimes, which none of the separate acts leading up to the taking had done. (Corpening, at p. 315.) The Court therefore did not proceed to the "multiple intents and objectives" test, which applies only where the defendant's actions form a course of conduct rather than a single physical act. (Id. at p. 316.)
As in Corpening, defendant's criminal conduct consisted of discrete physical acts: obtaining the materials to produce incendiary devices (including the gas canister and the gasoline), assembling them, then throwing them one after another toward the victims' residence. But it was the act of throwing the first lit device, for which all the previous acts served as preparation, that completed the actus reus of the crime of arson of an inhabited structure. That act also completed the actus reus of the crime of attempted voluntary manslaughter as to all the victims, who were all similarly situated. Thus, under the analysis of Corpening, defendant's conduct, even though divisible into substeps, constituted a "single physical act" for purposes of section 654, and the question of "multiple intents and objectives" does not arise. (Corpening, supra, 2 Cal.5th at p. 316.)
However, even if we were to view defendant's acts as constituting a course of conduct, that course of conduct would be indivisible for purposes of section 654. There was no evidence that defendant had a different intent and objective in throwing the second device, or the third, or the fourth, than in throwing the first. There was also no evidence that defendant tried to kill any victim by any means other than setting fire to their residence. And the prosecutor made clear in closing argument that the same conduct formed the basis for the relevant counts: "Now, I'm going to pound on common sense over and over and over again, but . . . you need to ask yourself, what other purpose could a person have other than attempting to harm or kill someone, throwing a lit explosive device at a house they know to be occupied?"
Whether a defendant's course of conduct entailed separate intents and objectives is a question of fact, and we review the trial court's finding (express or implied) for substantial evidence. (People v. Kwok (1998) 63 Cal.App.4th 1236, 1252-1253.) Here, the trial court made no express finding, and its implied finding is not supported by substantial evidence for the reasons we have already stated. If the jury disbelieved defendant's "barrier" story, it was bound to conclude that defendant's intent and objective in throwing the incendiary devices was to kill the victims by burning their residence. Where arson is the means of attempting to commit homicide, section 654 precludes punishment for both offenses. (People v. Clark (1990) 50 Cal.3d 583, 637; Neal v. State of California (1960) 55 Cal.2d 11, 20, disapproved on other grounds by People v. Correa (2012) 54 Cal.4th 331.)
The Attorney General asserts that defendant's desires to commit arson and to kill the victims were separate intents and objectives, but cites no evidence (aside from defendant's rejected barrier story) to establish that defendant had any objective for the arson other than the objective of killing the victims.
Under section 654, the trial court must impose sentence on the offense with the longest potential term of imprisonment and stay sentence on the others. Arson of an inhabited structure has a maximum sentence of eight years. (§ 451, subd. (b).) The upper term sentence for voluntary manslaughter is 11 years, but the maximum punishment for attempted voluntary manslaughter is one-half the term for the completed crime, or a maximum of five and one-half years. (§§ 192, subd. (a), 193, subd. (a), 664.) Therefore, the trial court should have imposed sentence on the arson count and imposed but stayed sentence on the attempted voluntary manslaughter counts. Although the trial court imposed the three-year midterm on each attempted voluntary manslaughter count and then stayed all but one-third, that was incorrect. (§ 1170.1, subd. (a); People v. Felix (2000) 22 Cal.4th 651, 655.) We will modify the judgment to vacate the sentences on the six counts of attempted voluntary manslaughter (counts 2 through 6 and 14), impose a one-year sentence on each of those counts, and stay punishment on those counts pursuant to section 654.
II
Defendant also contends the trial court erred in imposing assessments under section 1465.8 ($40 per count) and Government Code section 70373 ($30 per count), because the total amounts imposed ($480 and $360 respectively) included assessments as to two counts (counts 11 & 12) that the trial court dismissed under section 1385. (People v. Superior Court (Sanchez-Flores) (2015) 242 Cal.App.4th 692, 706.) The Attorney General agrees. Because those assessments were unauthorized, we may correct them in the first instance. (People v. Smith (2001) 24 Cal.4th 849, 853.) We will strike the assessments imposed on counts 11 and 12, and reduce the total assessments to $400 as to section 1465.8 and $300 as to Government Code section 70373.
DISPOSITION
The judgment is modified to vacate the sentences on the six counts of attempted voluntary manslaughter (counts 2 through 6 and 14), to impose a one-year sentence on each of those counts, to stay punishment on those counts pursuant to section 654, and to strike the assessments imposed on counts 11 and 12. The total assessments are reduced to $400 as to section 1465.8 and $300 as to Government Code section 70373. The judgment is affirmed as modified. The trial court is directed to prepare an amended abstract of judgment reflecting the judgment as modified, and to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.
/S/_________
MAURO, J. We concur: /S/_________
BLEASE, Acting P. J. /S/_________
BUTZ, J.