Opinion
C082769
11-08-2017
THE PEOPLE, Plaintiff and Respondent, v. DAVID A. PETRASHISHEN, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 62139680)
A jury found defendant David A. Petrashishen guilty of unlawfully causing a fire that caused an inhabited structure to burn (Pen. Code, § 452, subd. (b)) and arson of forest land (§ 451, subd. (c)). The jury also found true the allegations he proximately caused multiple structures to burn. (§ 451.1, subd. (a)(4).) The trial court sentenced him to an aggregate term of five years in prison.
Undesignated statutory references are to the Penal Code.
On appeal, defendant contends the trial court abused its discretion in denying his request for probation. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
A. Facts
On July 27, 2015, minors Marshal G. and Chase B. were riding quads (four-wheeled All Terrain Vehicles) when Marshal noticed black smoke about 300 feet from his residence. They rode to the source of the smoke and saw a fire that was about the size of a campfire. They also saw defendant standing near the fire, fanning it with a white towel. When Marshal got off his quad, defendant ran towards the fire as it grew in size.
Within minutes, the fire grew significantly larger. After Marshal and Chase unsuccessfully attempted to put the fire out, Chase rode home and called 911.
Chase tried to stomp on the fire with his foot. He and Marshal also tried to spread dirt on the fire by spinning the wheels of their quads really fast.
Around 1:00 p.m., Nathan Ferguson of the Placer County Sheriff's Office was dispatched to the location of the fire. As he approached the area where the fire was burning, he made contact with defendant, who matched the description provided by Chase--a white male who appeared transient wearing a black jacket and carrying a white bag. Defendant was carrying cigarettes in one hand and matches in the other.
Defendant refused to identify himself or communicate directly with Deputy Ferguson. Instead, he made incoherent statements and appeared to be very fascinated and enamored by the fire. At one point, he lay on his back, watched the fire, and told Ferguson to look at the fire. He also told Ferguson that he had a methamphetamine pipe in his pocket. In a field show-up, Marshal identified defendant as the person he saw fanning the flames of the fire.
When defendant was booked into jail, a lighter was found inside one of his pockets. While his clothing was being collected, a match fell to the ground. Defendant picked it up and placed it in his mouth. He spit the match out after a correctional officer asked for it.
Around 4:00 p.m., Detective Daniel Meier of the Placer County Sheriff's Office interviewed defendant. The entire interview was played for the jury. During the interview, defendant admitted he used methamphetamine almost every day, and had used earlier that day. He also admitted that he started the fire, explaining that he used a cigarette to burn a "disgraced" flower. When he was told that two people had seen him start the fire, he responded: "All right. I started the fire. Whoop-de-do. End of story. Conversation is ended. You know?" When he was told that he had burn marks on his hands and asked why two people would accuse him of starting the fire, he said: "I started it? Then okay, I started it." Over the course of the interview, defendant made numerous statements that did not make sense.
At trial, Charles Barsdale, a supervising fire investigator with the Sacramento Metropolitan Fire District, testified as an expert in fire investigations. He testified that the fire burned 425 acres, destroyed one uninhabited structure, damaged the deck of an inhabited structure, and damaged several vehicles. He concluded that the fire was intentionally set by a cigarette manipulated to start a fire, a match, or a lighter. In reaching this conclusion, Barsdale explained that he found two cigarette butts near the origin of the fire, which appeared to have been ripped off from the cigarette paper containing the tobacco.
In the area near where defendant was initially detained, various items were found, including a pack of cigarettes with only three cigarettes remaining, a white towel, and a book of matches with some matches missing. Defendant possessed, among other things, a glass smoking pipe, three matches from a book of matches, and four matches from another book of matches.
B. Procedural Background
In September 2015, defendant was charged by felony information with arson of an inhabited structure or property (§ 451, subd. (b); count one), and arson of forest land (§ 451, subd. (c); count two). It was also alleged that defendant proximately caused multiple structures to burn. (§ 451.1, subd. (a)(4).)
In August 2015, a psychologist, Deborah Schmidt, Ph.D., was appointed to conduct a psychological evaluation of defendant and provide her findings on, among other things, defendant's mental state and competency to stand trial. During the evaluation, defendant reported that he hears voices, was previously hospitalized for about a month due to psychiatric issues, and had been prescribed the psychiatric medication Risperdal. He also reported that he was homeless and smoked a lot of marijuana and methamphetamine. Dr. Schmidt concluded that defendant was likely suffering from a polysubstance dependence disorder. She also found that there was some evidence he was suffering from a thought disorder, and that it was possible he had an amphetamine-induced psychotic episode on the day of the fire. Dr. Schmidt noted that defendant displayed no remorse for his behavior and did not appear to be regretful that structures had burned during the fire. She also noted that defendant's statements regarding a fire in Lake County raised the possibility he was exhibiting characteristics of pyromania. Dr. Schmidt opined that defendant was competent to stand trial, finding, among other things, that there was nothing to indicate he was incapable of understanding the charges against him and the proceedings that would take place, and that he possessed the capability to work with his attorney to prepare a defense.
After a jury trial, defendant was found guilty of unlawfully causing a fire that caused an inhabited structure to burn (§ 452, subd. (b)), a lesser included offense of count one, and count two (§ 451, subd. (c)). The jury also found true the allegation he proximately caused multiple structures to burn. (§ 451.1, subd. (a)(4).)
The jury also found defendant guilty of unlawfully causing a fire of a structure (§ 452, subd. (c)), another lesser included offense of count one. In view of the guilty verdict on the other lesser included offense of count one, the trial court granted the parties' request to dismiss the verdict as to this offense.
In February 2016, the trial court appointed a psychologist, Sidney Nelson, Ph.D., to conduct a psychological evaluation of defendant and provide his findings on, among other things, defendant's mental state and amenability to treatment. Dr. Nelson concluded that defendant's most probable diagnosis is schizophrenia. He also concluded that defendant abused drugs and exhibited behavior suggestive of the impulse control disorder known as pyromania. He opined that defendant's "treatment amenability with regard to his problems with substance abuse and possible pyromania is probably marginal." He explained that defendant had limited insight into the nature and severity of his drug problems and did not desire any treatment or rehabilitation services. He further explained that defendant did not see any need for intervention with regard to intentional fire setting or fascination with fire.
In May 2016, the trial court continued the sentencing hearing so that defendant could be assessed by Adult Systems of Care (ASC) to determine the mental health treatment that would be available to him if he were placed on probation.
In June 2016, the trial court denied defendant's request for probation and sentenced him to an aggregate term of five years in prison. This timely appeal followed.
DISCUSSION
Defendant contends the trial court abused its discretion in denying his request for probation. We disagree.
" 'Probation is generally reserved for convicted criminals whose conditional release into society poses minimal risk to public safety and promotes rehabilitation. [Citations.] The sentencing court has broad discretion to determine whether an eligible defendant is suitable for probation and, if so, under what conditions. [Citations.]' " (People v. Olguin (2008) 45 Cal.4th 375, 379.) The defendant bears a heavy burden when attempting to show an abuse of discretion. (People v. Aubrey (1998) 65 Cal.App.4th 279, 282.)
"In reviewing [a trial court's determination whether to grant or deny probation,] it is not our function to substitute our judgment for that of the trial court. Our function is to determine whether the trial court's order granting [or denying] probation is arbitrary or capricious or exceeds the bounds of reason considering all the facts and circumstances." (People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 825 (Du).) The primary considerations in determining whether to grant probation are: " 'the nature of the offense; the interests of justice, including punishment, reintegration of the offender into the community, and enforcement of conditions of probation; the loss to the victim; and the needs of the defendant.' [Citation.]" (People v. Carbajal (1995) 10 Cal.4th 1114, 1120; see also Cal. Rules of Court, rule 4.414 [listing the criteria affecting the decision to grant or deny probation].)
Further rule references are to the California Rules of Court.
At the outset of the sentencing hearing, the trial court indicated that it had read and considered the probation report, defendant's statement of mitigation, the letter written by defendant, and the reports written by Dr. Schmidt and Dr. Nelson. The court also noted that it had continued the matter for an assessment by ASC to determine the health treatment that would be available to defendant if he were placed on probation. Defense counsel informed the trial court that "Ms. Rubel . . . did not feel that [defendant] was an appropriate candidate to go to Mental Health Court."
The probation report recommended that probation be denied based on the following factors: (1) the nature, seriousness, and circumstances of the offense as compared to other instances of the same crime (rule 4.414(a)(1)); (2) the degree of monetary loss to the victim (rule 4.414(a)(5)); (3) whether the defendant was an active or passive participant (rule 4.414(a)(6)); (4) prior record of criminal conduct, and whether the prior record indicates a pattern of regular or increasingly serious criminal conduct (rule 4.414(b)(1)); (5) willingness to comply with the terms of probation (rule 4.414(b)(3)); (6) ability to comply with reasonable terms of probation (rule 4.414(b)(4)); (7) the likely effect of imprisonment on the defendant and his or her dependents (rule 4.414(b)(5)); (8) the adverse collateral consequences on the defendant's life resulting from the felony conviction (rule 4.414(b)(6)); (9) whether the defendant is remorseful (rule 4.414(b)(7)); and (10) the likelihood that if not imprisoned the defendant will be a danger to others (rule 4.414(b)(8)).
In recommending a prison sentence, the probation officer reasoned as follows: Defendant was transient, unemployed, using drugs and alcohol, and had no positive support system in place. He did not express remorse for his actions and did not feel he could benefit from probation services because he was homeless with no money. He indicated that he was probably "better off doing time" because he would have a place to stay. In addition, defendant appeared to be "enamored" with the fire and had exhibited characteristics of pyromania. In light of these circumstances, combined with the aggravating characteristics, the probation officer concluded that defendant was a serious danger to the community and was not suitable or amenable to probation services.
The probation report identified two circumstances in aggravation: (1) the crime involved an attempted or actual taking or damage of great monetary value (rule 4.421(a)(9)); and (2) the defendant's prior convictions are numerous or of increasing seriousness (rule 4.421(b)(2)).
After hearing the parties' arguments, the trial court denied defendant's request for probation, citing the following factors: (1) the nature, seriousness, and circumstances of the offense as compared to other instances of the same crime (rule 4.414(a)(1)); (2) the degree of monetary loss to the victim (rule 4.414(a)(5)); (3) willingness to comply with the terms of probation (rule 4.414(b)(3)); (4) ability to comply with reasonable terms of probation (rule 4.414(b)(4)); (5) whether the defendant is remorseful (rule 4.414(b)(7)); and (6) the likelihood defendant would be a danger to others if he was not imprisoned (rule 4.414(b)(8)). The trial court also rejected defendant's contention the crimes were committed because of an unusual circumstance that was unlikely to reoccur. (Rule 4.414(a)(5).)
On this record, we conclude the trial court did not abuse its discretion in denying defendant's request for probation. The record reflects the trial court gave careful consideration to valid criteria in determining that defendant was not suitable for probation. We do not reweigh the evidence. Defendant has failed to meet his heavy burden to show that the trial court's decision was an abuse of its considerable discretion under the circumstances of this case. (See Du, supra, 5 Cal.App.4th at p. 825.)
Because we have rejected defendant's claim on the merits, we will not address the People's forfeiture argument. --------
DISPOSITION
The judgment is affirmed.
/s/_________
Duarte, J. We concur: /s/_________
Mauro, Acting P. J. /s/_________
Murray, J.