Opinion
A129362
01-18-2012
THE PEOPLE, Plaintiff and Respondent, v. JASEN FRANK MEYN, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Napa County Super. Ct. No. CR139301)
I. INTRODUCTION
After a several week jury trial, appellant was found guilty of three counts relating to a fire which burned his and his then-wife's home in Napa County. Those three counts were for arson of a structure (Pen. Code, § 451, subd. (c)), insurance fraud (§ 550, subd. (a)(5)), and defrauding an insurer (§ 548, subd. (a)). The trial court sentenced him to a total prison term of four (4) years. Appellant appeals alleging two evidentiary errors and that his conviction under section 548 was improper given the scope of that section. We (and also respondent) agree with this last contention, and hence that conviction is reversed. However, we reject appellant's claims that the trial court erred in two of its rulings relating to evidentiary issues, and hence affirm appellant's convictions on the first two counts noted above.
All subsequent statutory references are to the Penal Code.
II. FACTUAL AND PROCEDURAL BACKGROUND
Appellant and Cherise Petker married in November 2005. At the time, appellant, then age 23, was working for a financial mortgage firm in San Francisco, a job which ended a few months after their marriage, and was also involved with "some real estate transactions with his father." Cherise worked for a mortgage company in Marin County. At about the same time they married, they bought the house at issue in this case, a house at 116 Ridgecrest Drive, Napa, for about $615,000. All of the cost of the home was covered by a first and second mortgage.
We will hereafter refer to his wife (later ex-wife) as Cherise. No disrespect is intended; we do so to avoid confusion, because the record—to be summarized below— also includes testimony of her mother, also with the same last name.
Ridgecrest Drive is in a rural area of Napa County, northeast of the city of Napa and roughly midway between that city and Lake Berryessa.
Appellant and his wife placed the property on the market in "early 2006."
On the afternoon of July 28, 2006, at a time both appellant and his wife were absent from their home, it started burning and soon became "fully engulfed" by the flames.
The charges against appellant, noted above, derived from that fire and involved evidence occurring both before and after it. We will first outline the procedural history of the case, and then summarize, principally chronologically, the evidence presented at the trial.
On June 23, 2008, the Napa County District Attorney filed an information charging appellant with three counts, namely: (1) arson of an inhabited structure (§ 451, subd. (b)); (2) insurance fraud (§ 550, subd (a)(5)); and (3) defrauding an insurer (§ 548, subd. (a)). The information also alleged that appellant used a device intended to accelerate the fire. (§ 451.1, subd. (a).) After a jury trial lasting about a week, the jury found appellant guilty of the last two counts and also of a lesser-included offense of the first count, i.e., arson of a structure, and found the special allegation to be true. However, appellant then moved, and the trial court granted, a motion for a new trial brought on the ground of incompetence of trial counsel.
On April 12, 2010, an amended information was filed also charging appellant with three counts and alleging the same special allegation, albeit with one change: the first count charged a violation of section 451, subdivision (c), not subdivision (b), i.e., arson of a structure, not an inhabited structure.
Trial by jury commenced on April 12, 2010, and concluded on May 5, 2010. On May 11, 2010, after two plus days of deliberation, the jury returned its verdict convicting appellant of all three charged offenses, but could not reach a verdict on the special allegation.
On June 30, 2010, the court sentenced appellant to four years in state prison. A timely notice of appeal was filed on August 4, 2010.
Now as to the evidence presented at the second trial: Four neighbors of appellant's home on Ridgecrest Drive testified regarding what they saw before and during the fire. The first, David Courtney, lived very near appellant, at 110 Ridgecrest Drive. He knew that appellant had put the house on the market in March or April 2006, and that the furniture in the house at the time was "pretty scarce."
At about 1:00 a.m. on July 28, 2006, the day of the fire, Courtney saw most of the lights in appellant's house on and, the following morning, a truck parked in front of the house. "[T]here was activity most of [that] day," he testified, and he saw appellant going and coming from the house via the front door, and then leaving the house via the garage door and driving away shortly before 5 p.m. In so doing, appellant manually closed the garage door, and did not use the automatic door opener, according to Courtney. About an hour later, and after another neighbor told him appellant's house was on fire, Courtney again went out, and this time saw smoke bellowing from appellant's house. Being a photographer, Courtney took pictures of the scene before him.
A next-door neighbor of appellant, Cecelia Lee, who lived at 120 Ridgecrest Drive, heard a loud explosion at about 5:40 p.m. on that day. She went outside on her deck and saw large flames coming out of appellant's house. She later took pictures of the house burning.
Other neighbors, Lawrence Carr and his wife, Lisa Hirayama, also responded to the fire when another neighbor called out about it; Hirayama was also the one who called 911 when she was told what appeared to be happening. Both then went to the house and, again, Hirayama took pictures. Carr actually went into the house through a side door; he noted that it appeared to be vacant and that the fire was in the "entry area of the house." The latter fact appeared to Carr, a professional firefighter with the El Cerrito Fire Department, to be "an unusual feature of a fire."
Fire fighters from Cal Fire responded to the 911 call; they included an Assistant Chief, Gabrielle Avina, and others in her unit, including David Jebe, Captain Joseph Baldwin, and Donald Capaletti. They were able to put part of the fire out, and keep it from spreading to the hillside outside, but not until the center of the house was largely consumed by the fire.
During the following several days, other personnel from both Cal Fire and Napa County came to the scene, including "fire apparatus engineer" Tony Aston on July 29, and then (since retired) Certified Fire Investigator Scott Neely on July 30. Aston testified that, during his examination of the fire scene, he noticed that the house had come off its foundation. Neely also noted that the flexible lines (hereafter flex lines) running to both the HVAC (i.e., heating, venting, and air conditioning unit) and furnace were both loose at their fittings, loose enough so they could be turned "using only my bare fingers." More specifically, he testified that he had found a loose nut where a flex line connected to the shut off valve, and believed this to be the source of the leak.
Other fire investigators who came to the scene recovered various samples of wood and other debris from the burned house over the following days, intending to have that debris tested to determine the cause of the fire. The debris was selected by use of both a trained dog and a "hydrocarbon meter." The investigators also recovered two gas containers from the garage; one was empty and the second almost so. They also noted that the automatic garage door opener was disengaged. The investigators also found, in separate garbage cans on the premises, a box of blond hair dye and a loan statement regarding the mortgages on the property.
Sometimes referred to during the testimony as a "hydrocarbon detector."
About 12 items of the forensic evidence recovered from the fire scene were taken to a forensic laboratory for analysis.
David Brien, an expert in forensic analysis, particularly regarding flammable liquids, performed tests on some of the debris recovered by the various fire fighters and (later) fire investigators. He stated that "relatively high levels of gasoline" had been detected on some wood debris that had been recovered and on one carpet sample, and "trace levels" from other recovered material. Brien opined that the samples showing "trace levels" of gasoline had "definitely" come in contact with liquid gasoline. He testified that no propane had been detected on any portion of the debris, explaining that propane "dissipates."
O'Brien returned to the witness stand as a prosecution rebuttal witness and testified that, in his opinion, the debris he had tested had come in contact with "liquid gasoline," and not just "gasoline vapors."
Late on the evening of the day of the fire, July 28, 2006, Captain Chris Vallerga, then a "fire captain specialist with the California Department of Forestry in the Lake/Napa unit" arrived at the scene of the fire, and returned again the following morning, July 29 to perform an investigation of the fire. He testified as to his qualifications as a "fire scene reconstruction" expert, and was found to be so qualified.
Vallerga testified that, based on his experience investigating over 2,000 fires and 700 cases of suspected arson and his investigation of the scene of the fire, in his opinion the fire was caused by arson, specifically by ignition from the water heater, leakage from the propane tank in the house, and gasoline poured into the interior of the house. He based this opinion on several of his findings in his review of the interior of the house, a review he commenced on July 29, i.e., the day after the fire. Those findings included that (1) the water heater pilot had been tampered with, (2) so had the HVAC's propane system, i.e., the fittings on it had been loosened, as had the fittings on the supply side of the water heater, (3) such loosening could not be caused by a slippage of the house's foundation, (4) gasoline had apparently been poured into the interior of the house, specifically the living room, thus accelerating the fire that had started near the water heater and HVAC units, and (5) there was "nothing wrong with [the flex line leading to the HVAC unit], other than it's been manipulated."
On that same day, July 29, Vallerga spoke on the phone with appellant, then apparently at his parents' house in San Carlos. After Vallerga told him about the fire, appellant asked him about the condition of his propane tank (which was empty). Appellant did not ask Vallerga, however, if anyone had been hurt in the fire or "about any of his personal items in the house."
The following day, July 30, appellant returned to the house along with his father. He told Vallerga that "his grandfather's Navy Seal" watch was missing, and that such might be located in the bedroom. Vallerga and other investigators "made a great effort to try to locate that watch," but could not find it.
Vallerga also asked appellant for his opinion as to the cause of the fire. He replied that he thought the fire might have been caused by a propane leak, and that he had left the air conditioner on when he left the house two days earlier. Appellant further stated to Vallerga that he knew nothing about there being any gasoline in the house, that he had had no problems with either his water heater or furnace, and that he knew of no flammable items near the water heater.
Regarding his own actions on the day of the fire, appellant told Vallerga that he had had no problems with the garage door and had, on July 28, exited the garage "by use of the electric door button." He also specifically denied to Vallerga that he had started the fire.
On August 1, 2006, another witness, Lorrin Ferdinand, came to the property. He was a former employee of a propane gas supplier and, at trial, was qualified as an expert regarding "propane related fires and the installation of water heaters and propane tanks." Ferdinand testified that, when he came to the burned house, he found that the nuts connecting the gas line to both the heater and the furnace were "loose," and one was "quite loose." He also testified that he had never previously seen such connections loosen because of exposure to a fire, and that any "slide or foundation damage" to the house would not have caused those fittings to loosen, and neither could such have been caused by exposure to heat.
An expert in the field of "forensic fire scene reconstruction," Dr. John DeHaan, went to the location of the house the following spring, i.e., April 2007. By this time, the entire center of the house had collapsed; DeHaan opined that, from his observations and based on his prior experience, the fire had originated in the utility closet which, in turn, was consistent with gas having leaked from the propane line and then being ignited. He testified that, in his view, the initial fuel for the fire was the propane from the tank, a tank the connections to which had been "deliberately loosened." But, he opined, propane was not the main fuel for the fire, only the initial fuel. The main fuel, he stated, was probably gasoline which had been poured into the center room of the house and that, in view of all these circumstances, in his opinion the fire had been intentionally set.
The next expert witness called by the prosecution was Robert Anderson, who was qualified "as an expert in the field of metals." He testified, consistently with several of the prior experts, that, in his view, the presence of heat in the house would not, in and of itself, be responsible for loosening the connections on the "flex lines" to the water heater, furnace, and air conditioner, nor would the exposure of those connections cause a propane leak. He opined that the connections on those fuel lines were loose before the fire started, and that if any movement of the house might have caused the nut to be pulled from its flex line fitting, there would be "stripping" inside either the nut or the fitting, and he saw neither.
Appellant's former wife, Cherise, then testified. As noted above, she confirmed that she and appellant purchased the home for $615,000 with 100 percent financing. She testified that their two mortgage payments totaled approximately $4,000 a month, and that, after the purchase, they invested another $70,000 in "home improvements." She testified that, as between the two of them, appellant took care of most the finances. She agreed that they had financial difficulties, the result of which was a "financial contract" between the couple in accordance with which appellant would "go out and get a nine-to-five job" if "you're not making X amount of money by [January] 1st."
This purchase price was confirmed by a stipulation read into the record, as was the 100 percent financing.
As a result, however, appellant found only an hourly-paid job at a winery "for a few weeks." Appellant then sold his sailboat and BMW and bought a truck, and the couple decided to put their house up for sale in February 2006. They lowered the price on the house twice, but never received any offers on it. The couple discussed possible foreclosure of their house, but Cherise testified that appellant was not at all happy with that idea but, rather, wanted to sell it instead. He advised his wife that he did in fact have adequate assets to pay the two mortgages but, in fact, never paid either after May 2006. Cherise confirmed to him that, because of the 90-day period required before foreclosure, the lender (Washington Mutual) could, effective August 1, 2006, opt to change the locks and take possession of the house.
At some point of time during the winter of 2005-2006, appellant advised Cherise that there appeared to be a problem with the foundation of their house, specifically that "the stilts had moved forward" which, she said, made him "concerned." It would, he told her, cost them "somewhere between about $60,000 and $80,000 to fix."
In May 2006, appellant had told a neighbor, John Gallaway, the husband of Cecilia Lee, that there were cracks in the foundation of the house, and showed those cracks to Gallaway.
Appellant and his wife went on a cruise in the Caribbean in June 2006. During the course of it, according to her testimony, appellant asked Cherise if she would "have an issue with" his "having different identifications."
After they returned from the cruise in mid-June 2006, Cherise moved out of the house and into her parents' home because of a severe personal illness. Also as a result of this illness, Cherise had to take a leave of absence from her job in March or April 2006, and then resigned from that job on June 1, 2006. At about this time, also, they dropped the price on their home for a third time.
Very early in the morning of July 1, 2006, i.e., around 5 a.m., appellant called Cherise and told her that he had packed her belongings. Cherise and her father and others went to the Napa house to secure those belongings; she left the appliances in the house, however, to help in selling it; she also took photographs of the interior of the house.
Over the Fourth of July holiday in 2006, appellant and Cherise went on a party on a sailing boat along with a friend of appellant's named Cole, who was a firefighter. During the course of that day, Cherise heard appellant and Cole, both then "drinking away [and] . . . exchanging with each other" ideas about starting fires, i.e., "how you do it."
Later that month, after the July 28 fire, Cherise and appellant prepared a list of their personal properties that had been lost in the fire; she told appellant that she would submit a claim to their insurance company. Appellant told her, however, that he did not want to speak with any representative of the insurance company.
Appellant also told Cherise that he had lost his grandfather's Navy watch in the fire, a watch he had always kept near the bed. In fact, however, he had not, and he never told her that he now had the watch (a watch he had told the police he had recovered from a kitchen drawer in the house after the fire). The fire department personnel who responded to the fire had, however, searched for that watch after the fire, but had not found it. It was subsequently found in a console of appellant's truck in 2007, during the service of a search warrant at appellant's (then) Long Beach apartment. The police officer who found it had been one of the officers who had searched for the watch in the burnt house in 2006, at appellant's request.
Finally, Cherise also testified that appellant was very familiar with computers, and used his laptop computer a lot.
On the day of the fire, July 28, appellant made two visits some distance away from the Napa property. Cherise's mother, Bonita Petker, testified that appellant came to her sales' office in Fairfield (Solano County) at between 3:10 and 3:20 in the afternoon, after having called her a couple of hours earlier and told her he was coming. He brought to her, and gave her, Cherise's Canadian birth certificate, passport, and her "US alien card." Cherise's mother testified that neither Cherise nor appellant had told her that Cherise was expecting appellant to deliver these items. She also testified that appellant's appearance had changed, in that his hair had been "shaved, very short . . . and it was a blondish orange color."
Another witness, a friend of appellant's named Lamar Jones, testified that appellant called him in the early evening of July 28 and said "he might stop by . . . if I'll be home." About 15 or 20 minutes later, appellant arrived at Jones's residence in Hercules (Contra Costa County) and had dinner with Jones and other friends.
Two contractors and one structural engineer testified that appellant had consulted them about the condition of the Napa house in early 2006. One contractor told him that fixing the major foundation problem the house had would cost about $250,000. Another contractor estimated the cost to be over $100,000. The structural engineer testified that he looked at the house and its foundation in May 2006, and told appellant that it would not be possible to "repair this house because the whole hillside was moving and there was no way to stop it from moving . . . [and] then the house would be subject to a lot of different movements which tend to break it up."
A sergeant in the Napa County Sheriff's Department, who was qualified as an expert in computer forensic science, had examined the hard drive of appellant's computer and retrieved various files from it. Among them was a publication entitled "Hitman" which included five-paragraphs concerning how to commit arson, and two separate parts regarding how to "totally change your appearance" to achieve "false identification." All of this material had been first placed on appellant's computer on January 3, 2006, and last accessed 10 days later. Over the objection of appellant, the court admitted portions of the document into evidence, but only the paragraphs relating to committing arson and changing one's identity.
The house was insured by Farmer's Insurance, but its policy did not cover earth movement. A Farmer's executive testified that appellant reported the claim for the fire to his home the day after the fire, i.e., on July 29, 2006. He later filed a written "proof of loss" form. The Farmer's executive scheduled a date for him to come into the Farmer's office and file a claim (which needed to be signed "under oath"), but appellant never came in to sign such a claim form. Cherise, on the other hand, filed and signed such a claim regarding her losses. Farmer's paid her claim, but did not remit any payment to appellant, except for $7,425 for living expenses after the fire. It also paid Washington Mutual, the mortgagee, $285,000 for the loss of the structure.
The Farmer's witness testified that its policy provided coverage of $380,000 for the house itself, plus $285,000 for personal property contents and $190,000 for additional living expenses.
For the defense, the first witness was appellant's neighbor, who reconfirmed his prior testimony that (1) he had seen appellant going and coming on July 28 via his front door, but then leaving via the garage door, which he pulled down manually, and (2) appellant left his home at about 4:50 p.m.
The defense's next witness, David Smith, was qualified as an expert "in the subject of the investigation of fire and specifically including residential fires." He testified that, after the July 28 fire, there could have been "cross contamination" of the evidence recovered from the fire scene because there had been inadequate safeguards by the fire's investigators to prevent such. He also opined that the prosecution's photographs of the burnt home were inadequate, and that there was insufficient evidence to show that there was or had been gasoline at the scene of the fire or that any such material had been placed inside the house. He testified that the fire probably started in the utility room of the house and that the heat from the fire could well have loosened the connectors in the various fuel lines, but that nothing in the prosecution's photographs demonstrated an intentional loosening of those connectors. After his review of the evidence and his consideration of the opinions of both Vallerga and Dr. DeHaan (the latter who he knew well), he opined that "this fire may not have been intentionally set."
Other witnesses for the defense testified regarding the time of the clean up of debris from the premises. Appellant's grandfather then testified concerning the Navy watch he had given appellant, and that appellant had told him he was going back into the burnt house to look for it, because he had probably left it on the nightstand.
Another defense expert, Devinder Grewal, was qualified as an expert in "material science and fire investigation and evidence handling." He testified that flex line connections can, in fact, come loose as a result of high temperatures, and that not all such connectors would have to come loose because of unevenness of heat transfer. He stated that he had, in fact, conducted an experiment with "different flex lines," then placed them in a furnace heated to 1300 degrees Fahrenheit for 40 minutes, and that when he removed the lines from the furnace, the fittings were loose.
The last witness to testify for the defense was appellant; he stated that he was then 27, and was 23 at the time of the fire. He testified that he entered his fire-damaged house several times after the fire to attempt to recover personal property; in the process, he found his grandfather's Navy watch in a kitchen drawer.
He said he took Cherise's passport, etc., to her mother because Cherise's sister had told him not to contact Cherise (a point supported by prior testimony of the sister), and that these items had been left in his truck when they had, the previous month, returned from their Caribbean cruise. He testified that he also kept many of his own personal documents in the same place.
He conceded that he had changed his appearance by coloring his hair blond and changing its style, but said he had not done so for purposes of effecting a disguise, but "just for fun, basically." He did not recall reading anything about disguises.
Appellant did concede, however, that he was behind in his mortgage payments, that he and Cherise had received no offers to buy their house, and that he planned to give the house back to the mortgagee via foreclosure. He conceded that Cherise did not want to do so because, among other things, of her banking profession, and that they had "technically separated" on the July Fourth weekend.
The day before the fire, appellant testified, he was at their Napa home. That day, in the process of cleaning the carburetor of his motorcycle, he poured some gas from its tank into some weeds in front of his house (hoping to kill the weeds) before refilling the machine's tank with new gas. The same day, July 27, he noticed that the flex line to the heater appeared to have been "pulled taught" due to the movement of the house. He thus decided to replace it with a longer one, did so, and then turned the propane back on. He conceded that he was not trained as to how to tighten or replace the flex lines. He both bought the new flex line and installed it in the afternoon of July 28, before leaving the house and going to his wife's mother's office. He also conceded he had not told Vallerga or any other investigator about his having changed the flex lines, or that there had been anything wrong with either his furnace or water heater.
Appellant left his home on July 28 to have dinner with his friend Jones in Hercules. He testified that the two of them had had dinners many times before, and that they had exchanged text messages about doing so "the day previously." He said he had to close the garage door manually because the automatic garage door opener did not work. Such a malfunction, he testified, had happened before.
After his visit to Bonita Petker's office and having dinner with his friend Jones, appellant testified that, at about 10:30 p.m., he went to his parents' San Carlos residence and spent the night there. He learned of the fire at his Napa house via a voicemail message, and subsequently called and talked to Captain Vallerga.
Appellant specifically denied that he had set the fire. He said he did not tell Vallerga or the other investigators that he had worked on the propane flex line and connector because he was worried that those efforts might have contributed to the start of the fire, and he was thus worried about "legal trouble" including "possible criminal charges against me for it."
Appellant filled out insurance claim forms after the fire, but did not include his grandfather's watch in the second claim, because he had in fact recovered it in the interim. He never received any compensation for the property he lost in the fire, and told the insurance investigators he did not want to respond to their questions until the criminal investigation was complete. But the company denied his claim in any event.
Appellant did not recall receiving any estimate to fix the foundation of the home (the problems with which he conceded he knew about) in the range of $250,000. He admitted he minimized that problem in his conversations with Cherise (telling her it would cost about $60,000 to $80,000), because he did not want her to worry about such a problem. Appellant also admitted that he had told Cherise he had adequate funds to pay the mortgages, but in fact did not. He also agreed that he had told Cherise, after she had moved out of their house in early July, that he "wanted to reconcile our marriage" and that "moving to Canada, I thought, would help aid in that."
Via stipulation, the parties agreed (along with some other matters already noted) that: (1) the flex line connected to the furnace had a code stamp on it showing the date of its manufacture, which was July 2006; (2) on March 16, 2006, a propane company delivered 150 gallons of propane, thus filling appellant's tank to 64 percent of its capacity; (3) appellant paid with a check which was rejected for insufficient funds, after which the propane supplier would only accept cash or a money order; and (4) on May 19, that company delivered 100 gallons of propane, which filled the tank to 40 percent of capacity, and there was no propane in the tank when that delivery was made, and it made no further deliveries to appellant's house.
III. DISCUSSION
A. Our Standard of Review
As noted above, appellant makes three claims of error by the trial court, one of which is conceded by the Attorney General (i.e., that it was error to charge appellant with a violation of section 548, subdivision (a), because that section does not apply where, as here, the "casualty" was only fire casualty).
His other two claims are evidentiary in nature, i.e., that the trial court erred in (1) allowing the prosecution to present evidence of appellant's query to his wife, during their Caribbean cruise, about her reaction to his possible change of identity and in admitting the material downloaded onto his computer in January 2006 relating to the planning of arson and (2) not allowing evidence and then advice to the jury that appellant's investigators did not view the substantially demolished home prior to its demolition in 2007, because he was not charged with any offenses until June 2008.
Appellant also argues that, considered cumulatively, these two alleged errors are a basis for reversal.
As appellant's appellate counsel concedes, both of the alleged evidentiary errors are reviewed under the abuse of discretion standard of review mandated by Evidence Code section 352 (section 352.)
The law regarding an appellate court's review of rulings by a trial court excluding certain evidence under section 352 is very well settled: shortly stated, there must be a clear showing of a clear abuse of discretion by the trial court in either admitting or excluding the evidence that was offered. Our Supreme Court has articulated this standard many times in criminal cases. Thus, in People v. Williams (2008) 43 Cal.4th 584, 634-635, Chief Justice George wrote for a unanimous court: "Under [section 352], the trial court retains broad discretion to assess whether the probative value of certain evidence 'is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create danger of undue prejudice, of confusing the issues, or of misleading the jury.' [Citations.] A trial court's discretionary ruling under this statute ' "must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.]" ' [Citation.]"
And in People v. Doolin (2009) 45 Cal.4th 390, 439, the court explained the concept of "prejudice" as the term is used in section 352 thusly: " ' " 'The "prejudice" referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. In applying section 352, "prejudicial" is not synonymous with "damaging." ' [Citation.]" [Citation.] [¶] The prejudice that section 352 " 'is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence.' [Citations.] 'Rather, the statute uses the word in its etymological sense of "prejudging" a person or cause on the basis of extraneous factors. [Citation.]' [Citation.]" [Citation.] In other words, evidence should be excluded as unduly prejudicial when it is of such nature as to inflame the emotions of the jury, motivating them to use the information, not to logically evaluate the point upon which it is relevant, but to reward or punish one side because of the jurors' emotional reaction. In such a circumstance, the evidence is unduly prejudicial because of the substantial likelihood the jury will use it for an illegitimate purpose.' [Citation.]" (See also People v. Jablonski (2006) 37 Cal.4th 774, 805; People v. Waidla (2000) 22 Cal.4th 690, 717-718; People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)
This court has also written on this subject. In People v. Houston (2005) 130 Cal.App.4th 279, 304, we said: "A trial court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will, among other things, 'create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.' [§ 352.] 'Under [section 352], the court must strike a balance between the probative value of the evidence and the danger of prejudice. The court must consider " 'the relationship between the evidence and the relevant inferences to be drawn from it, whether the evidence is relative to the main or only a collateral issue, and the necessity of the evidence to the proponent's case as well as the reasons recited in section 352 for exclusion.' [Citation.]" ' [Citation.] A trial court's discretionary ruling under section 352 will not be disturbed on appeal absent an abuse of discretion. [Citation.]" B. There Was No Abuse of Discretion in Admitting the Evidence of Appellant's "Change of Identity" Query to His Wife or the "Arson" Material Found on His Computer.
As noted above, appellant argues that the trial court committed reversible error by admitting into evidence, over his objections: (1) Cherise's testimony about a conversation the couple had while on their June 2006 Caribbean cruise about whether she would mind if he had different identities and (2) three excerpts from a publication entitled "Hitman" found on appellant's computer, specifically the excerpts dealing with both arson (one excerpt consisting of five paragraphs) and changing one's identity or achieving false identification (two excerpts consisting, together, of four paragraphs).
Appellant makes the same arguments here that he did to the trial court, i.e., that both of these items of evidence (1) were "irrelevant," "inflammatory," (2) amounted to "speculation," (3) were inconsistent with the prosecution's theory at the trial, and (4) were "unduly prejudicial."
Appellant concedes that shortly before the fire started, he did "cut his hair and dye it blond. However, he made no attempt to conceal this fact, change his identity, or disguise himself. . . . [¶] . . . There was no attempt to disguise or conceal himself, there was no evidence of flight in this case. . . . The cruise statement and the 'false identity' evidence was contrary to the prosecutor's theory of the case. [That] theory was appellant burned down his house to obtain the insurance proceeds. However, one cannot obtain insurance by changing one's identity and fleeing the scene."
Appellant's opening brief to us concludes on this subject: "Such irrelevant, inflammatory evidence would likely tip the scales for a jury struggling mightily with appellant's culpability based on expert testimony. Without that evidence, a different outcome on all counts was reasonably probable."
Several times in his briefs to us, appellant stresses the "closeness" of the case by noting that the jury deliberated for "almost four days . . . before finally reaching a verdict." Actually, the jury deliberated for a little over two days. It met for less than two hours on May 5, but all day on May 6 and 10; it returned its verdict at about 11 a.m. on May 11. It did not meet on Friday, May 7, nor over the May 8-9 weekend.
We disagree that the admission of either the evidence of the conversation between appellant and Cherise about his changing his identity or the excerpts from the "Hitman" publication regarding both arson and "false identification" was erroneous under section 352.
Perhaps the easiest of these several items of evidence to address is the five-paragraph excerpt relating to arson secured by the prosecution's experts from appellant's computer. Those paragraphs read as follows:
"Fire investigation has become a science in recent years, and authorities and professional fire fighters can learn a great deal about the fire and its origin by a study of the scene.
"Before you try to fake a fire, know how to do it properly. For instance, lots of the new carpeting on the market is now fire retardant, as there are many other sympathetic materials. So rather than start a fire in the middle of the room, start it under an electrical appliance or from a stove burner that has 'carelessly' been left on, or some other likely spot.
"Don't ever use gasoline or other traceable materials to start your fire. Woodgrain alcohol is your best starter because it burns away all traces.
"One good fire in an area that will create a lot of smoke from burning materials is preferred. Fire investigators can trace the origin of the fire, and two flames started simultaneously will immediately arouse suspicion.
"Never hang around to watch the fire you set. Police have been known to photograph the crowd; that's how a lot of pyromaniacs get caught. Don't let your curiosity get the better of you!"
Bearing in mind that the first count of the information charging appellant was for the commission of arson in violation of section 451, subdivision (c), it was surely appropriate for the jury to be told, and to be able to see and hear, a portion of a publication that had been downloaded onto his computer in January 2006 (and revisited 10 days later), and a portion which dealt very specifically with how to commit arson and get away with it. That is exactly what the five-paragraph excerpt from the "Hitman" publication addressed. And, although not addressed by appellant in his briefs to us, it was also the subject apparently discussed between appellant and his friend Cole on their Fourth of July sailing boat cruise, i.e., "how to start a fire and not get caught."
In the trial court, counsel and the court discussed at some length how much of the excerpts from the "Hitman" publication offered by the prosecution should be admitted. And the court was quite strict in limiting its admission to just the five paragraphs quoted above. In so doing, it ruled that "the name hit man is not coming in [and] the subject of how to do a contract killing is not coming in." The court repeated this a few moments later, when it ruled that anything relating to a "professional killer" should not "be in there" and when it precluded the parties from referring to either the title or "the nature of this booklet."
Further, appellant's trial counsel never argued that there was any substantial prejudice regarding the five "arson" paragraphs quoted above. His colloquy with the trial court on this subject was as follows:
"MR. HALLEY: Judge, it's hard to see how any of this material, other than the identification or this information, is anything other than common knowledge. The only advice in here that is a little out of the ordinary is the advice about gasoline, seems to me. And that advice is don't use it, which would indicate that the defendant didn't read this material or follow it.
"THE COURT: I know.
"MR. HALLEY: I'm saying this thing cuts both ways, I think. But that's something for the jury to
"THE COURT: I understand." (Emphasis supplied.)
Just after that exchange, the prosecutor requested that the excerpt to be admitted "start with the heading arson and arson is a good method." The trial court denied this request.
We similarly find no abuse of discretion in the trial court's admission of (1) the testimony of Cherise about their June 2006 cruise conversation as to whether she would have an issue with his having different identifications and (2) the two portions of the writing found on appellant's computer (four paragraphs in all) dealing with false identifications. As to these matters, in his briefs to us appellant adds the argument that these matters were "irrelevant" in addition to being unduly prejudicial under section 352.
First of all those two matters, i.e., his "different identifications" query to Cherise and the four paragraphs on his computer's hard drive relating to false identifications clearly pertain to the same question: did appellant ever contemplate that, in order to get away with arson, he might have to try to disguise himself? And, in support of the admissibility of this evidence, there was one other item of evidence clearly related to this theory: appellant's dying of his hair shortly before the fire started.
As noted above, in his briefs to us appellant argues that it is illogical for someone to try to disguise himself while still around the house he is trying to set afire and is thus visible to his neighbors, to then go first to his mother-in-law's place of business and then to a friend's house for dinner, and then to his parents' home, all shortly after changing his hair color and just after, allegedly, starting a fire in his and his absent wife's house.
There is some merit to the "illogical" argument. If appellant was trying to commit arson as another person, he clearly failed by, as his briefs point out, exhibiting his new hair style and color to neighbors and others before the fire was started. But this assumes that appellant was doing what he was doing before July 28, 2006, in a perfectly logical manner. We submit there is little basis for such an assumption. At the time, appellant was a 23-year old unemployed former winery worker, mortgage company staffer, etc., co-owner of a $615,000 house complete with $70,000 in improvements, a house which was starting to slide down a hill and with no insurance regarding that problem, a wife who had apparently decided they should separate, and his recent checks regularly bouncing. That a young man under such multiple strains would be strictly logical about his appearance to friends and neighbors just prior to allegedly trying to burn down his own home to recover its insurance seems unlikely.
As the prosecutor noted in his closing argument to the jury: "The hair dye, that just goes to his state of mind. It shows he was a desperate person in desperate times. And you may be able to discount one fact when it sits by itself, but when you look at all the evidence together, how quickly the house burned down, the gasoline found in his house, his blond hair, the files of arson on his computer, his unexpected visit to Mr. Jones, his desire to go to Canada to start a new life, his finding his Navy watch with his knife, and his hard drive, that's what you have to consider: Everything."
Further, the law under section 352 clearly permits the introduction of possible evidence of flight. As our Supreme Court has stated: "[I]t was within the trial court's discretion to conclude that any danger of undue prejudice associated with the evidence of flight did not outweigh the evidence's probative value. (See [ § 352].)" (People v. Mason (1991) 52 Cal.3d 909, 942; cf. also People v. Kipp (2001) 26 Cal.4th 1100, 1125-1126.) Logic suggests the same rule applies to evidence of "possible consideration of flight."
In his briefs to us, appellant argues that both the evidence of his downloading of the publication regarding arson and his consideration of and action regarding changing his appearance was not "relevant," and then cites authority stating that "a trial court has no discretion to admit irrelevant evidence." Of course this is a correct statement of the law, but the argument that this evidence was irrelevant to the prosecution's case is simply incorrect.
In summary on the altered appearance issue, the combination of appellant's "different identifications" conversation with Cherise on the cruise and the downloaded information about false identifications were clearly relevant to an effort by the prosecution to show that appellant was attempting (even if arguably ineptly) to disguise his appearance at or around the time he was attempting to commit arson. C. There Was No abuse of Discretion in Not Allowing the Jury to be Told Why Appellant's Defense Team Could Not View the Burnt House.
Appellant's second claim of evidentiary error is that the trial court improperly denied its request that the jury be advised that appellant's house had been demolished before any complaint against him had been filed, thus providing the jury with an explanation as to why his experts had not been—unlike the prosecution's experts—able to examine the post-fire remains of the house.
At trial, defense counsel made a formal motion that the court "take judicial notice of the Complaint being filed in 2008" so as to enable it "to show to the jury that the defendant and the Defense never had any opportunity to examine the house because of the timing of the events in this case," i.e., that the house had been torn down in November 2007, before the complaint was filed against appellant.
The motion was argued to the court by both counsel, with defense counsel contending that the jury should understand the relative timing of the demolition of the house and the filing of charges against appellant so as to understand why their experts, especially Smith, could not examine the remains and debris of the house itself (as the prosecution's experts could and had), but only the photographs, drawings, debris reports, etc.
The prosecutor opposed this motion on two grounds. The first was that "this should have been brought in [an] in limine motion and addressed about two and a half weeks ago. The defendant can't sit back and all of a sudden create issues and request new evidence as we're going through trial." He also argued that the same issue had been considered, and rejected, by the judge in the first trial of the case, and it would be "opening up the door to the People to try to justify why we filed this case in 2008 when this occurred in 2006. . . . So does that mean the People are [going] to be allowed to argue or show that the defendant was tried and convicted and there was a motion that took a year to put on and then another period of time when we set new trial?"
After considerable further argument on the matter, the court took the issue under submission, and then ruled in favor of the prosecution the following day, thusly: "The matter having been submitted, my ruling is that, Mr. Halley, your motion is denied and it's denied under 352. I think the probative value is clearly outweighed by the undue consumption of time and the likely confusion to the jury. This opens a door that we get into issues that are very likely not only time consuming but very likely confusing and the relevance of this is very speculatory: The DA delayed in filing because he really didn't think the defendant was guilty or his own investigators looked at the scene and then if the defendant could have his investigators the results would be different. To me, that's pure speculation.
"Then we get into poverty; he can't do this because he couldn't afford his own investigators and the inferences that you're mentioning aren't compelling evidence of much of anything, in my view, so under 352 I'm keeping it out.
"But I also do agree this should have been a subject of a motion in limine and I'm also considering that as a ground for rejection. But it is a 352 matter that compels me to deny the motion."
We find no abuse of discretion in this ruling. First of all, several days before this issue was brought up before the court, the jury had been made aware of the fact, from defense counsel's redirect examination of his expert witness Smith and the brief testimony of another engineer, that the house had been demolished in November 2007 and that, therefore, Smith had not been able to personally examine the remains or the debris in 2008.
In his opening brief to us, appellant argues that it would not have been a "time consuming task" for the trial court to have told the jury that the complaint against the defendant was filed in February 2008. However, as the trial court noted in its ruling, such would necessarily have provoked thoughts or queries as to what had happened between the prosecution's investigations in 2006 and the filing of the complaint in 2008 (i.e., the first trial). As the trial court stated in its ruling, these issues could likely be "very likely confusing" and their relevance "very speculatory." It is also likely that any such advice to the jury could well have triggered supplementary explanations from the trial court regarding appellant's first trial, its result, what happened to that result, etc.
We thus agree with the trial court's ruling, and also with the observations of both the prosecutor and the trial court that the complicated timing issue should have been brought up via a pre-trial motion in limine. Further, it is also noteworthy that, the day before this motion was brought up and argued to the trial court, trial defense counsel put on his main expert witness, David Smith, and proceeded to examine him thoroughly on his opinions regarding the causes of the fire. Those opinions were based on "all of the reports by the fire departments as well as the Sheriff's Department. Hundreds and hundreds of photographs, of course. Any prior court proceedings testimony and exhibits. I have looked at reports authored by experts that have been retained by the DA's office, specifically John DeHaan and Robert Anderson and follow-up reports that they made. A great deal of records I have looked at. . . . [¶] And laboratory reports that have been provided and diagrams and photographic reports."
It is, we believe, pertinent that: (1) defense counsel did not make his motion asking the jury to be advised concerning the timing issue until after the completion of Smith's testimony; (2) in its cross-examination of Smith, the prosecution did not suggest that he had deliberately postponed or delayed his examination of the scene of the fire; and (3) in his testimony for the defense, Smith nowhere suggested that he could have had a better basis for the opinions he was offering if he had seen the remains of the house and the debris, rather than the photographs, etc., that he reviewed. He did not even do so when, under cross-examination by the prosecution, he had to reiterate that he was basing his opinions on his "review of the reports and photographs of the case" and had not "spoken to anybody who was at the scene on the day of the fire."
As far as the record before us discloses, it was the day after Smith was on the stand that defense counsel moved the trial court to take judicial notice, and advise the jury, that the complaint against his client had not been filed until the year after the house had been demolished.
Nothing in appellant's briefs to us suggests that this issue was raised before the trial court earlier, nor have we found anything in the record so indicating.
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In his briefs to us appellant offers no legal authority in support of his argument that this ruling of the trial court was an abuse of discretion. Indeed, the only authority cited in either of his briefs (and cited in almost exactly the same words) in support of this portion of its argument are United States Supreme Court cases holding that provisions of the United States Constitution "guarantee a state criminal defendant a meaningful opportunity to present a complete defense" (citing Crane v. Kentucky (1986) 476 U.S. 683, 690-691 & Chambers v. Mississippi (1973) 410 U.S. 284, 302) and that, in this case, the trial court prevented appellant from presenting such a "complete defense."
We disagree; the trial court's ruling denying the defense's belated request for judicial notice and advice to the jury regarding the timing of the defense experts' examination of the premises was not an abuse of discretion under section 352. This is so both for the reasons stated by that court, and for the additional reason that this evidentiary issue should have been raised by the defense much earlier via a motion in limine. D. There was No Cumulative Error.
Because, under our standard of review under section 352, we find no abuse of discretion in either of these two evidentiary rulings by the trial court, we also find there was no cumulative error.
IV. DISPOSITION
The judgment is affirmed as to the convictions of appellant under sections 451, subdivision (c), and 550, subdivision (a)(5), but reversed as to his conviction under section 548, subdivision (a).
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Haerle, J.
We concur:
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Lambden, J.
I concur in the judgment:
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Kline, P.J.