Opinion
F075272
03-04-2020
THE PEOPLE, Plaintiff and Respondent, v. JEROME SMITH, Defendant and Appellant.
Danalynn Pritz, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Daniel B. Silverstein, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Stanislaus Super. Ct. No. 1496810)
OPINION
APPEAL from a judgment of the Superior Court of Stanislaus County. Marie Sovey Silveira, Judge. Danalynn Pritz, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Daniel B. Silverstein, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Sometime around 6:00 a.m. on November 14, 2015, firefighters and law enforcement officers responded to the Arrow Inn in Modesto because of a fire in room No. 108. The motel's manager reported the room had been rented by Valerie Villegas and defendant. The motel's security cameras showed that defendant and Villegas entered room No. 108 together over one hour before the fire. The cameras showed Villegas never left the room. After the fire started, the security cameras showed defendant walk out of the room and stand in front of the door as smoke billowed out. Defendant was the only person who left the room.
After the fire was extinguished, Villegas's body was found in room No. 108's bathroom. She had been hit in the back of the head three separate times with a blunt object. The autopsy showed that she was still alive, both when she was hit in the head, and when the fire started in the room. The cause of death was smoke inhalation. When defendant was later interviewed, he claimed that he did not know Villegas; Villegas was never in his room; and another woman, Anastasia Lee, who had been staying in the next room, had somehow entered the room to alert him to the fire. Defendant's statements were refuted by the video from the motel's security cameras.
Defendant was convicted of count 1, first degree premeditated murder of Villegas, based on a felony-murder theory (Pen. Code, § 187, subd. (a)), with the special circumstance that the murder was committed while defendant was engaged in the arson of an inhabited structure (§ 190.2, subd. (a)(17)(H)), and an enhancement for personal use of a firearm (§ 12022.5, subd. (a)). Defendant was also convicted of count 2, arson of an inhabited structure (§ 451, subd. (b)); and count 3, unlawful possession of a firearm by a felon (§ 29800, subd (a)(1)). He was sentenced to life in prison without possibility of parole.
All further statutory citations are to the Penal Code unless otherwise indicated.
On appeal, defendant argues there is insufficient evidence of arson, which requires reversal of his convictions for arson and murder, and the jury's true finding for the arson-murder special circumstance. In making his substantial evidence argument, defendant asserts the fire investigator's testimony was limited and cannot be considered. He also argues the People failed to prove the corpus delicti of arson, and his pretrial statements cannot be considered to determine whether his convictions are supported by substantial evidence.
Defendant also challenges the arson-murder special circumstance and claims there is insufficient evidence of his specific intent to kill Villegas, and the jury could have relied on a legally invalid theory to find it true.
Defendant further asserts the prosecutor committed prejudicial misconduct by misstating the reasonable doubt standard in closing argument, and defense counsel was prejudicially ineffective for failing to object.
Finally, defendant contends the matter must be remanded for the court to exercise its discretion whether to strike the firearm enhancement, and for a hearing to determine whether he has the ability to pay the restitution fine and the fees.
We affirm.
FACTS
Villegas and Defendant Rent Room Number 108
Jayantilal Patel was the owner and manager of the Arrow Inn on South Ninth Street in Modesto. The motel is a one-story, U-shaped building with 40 rooms and a parking lot.
Patel knew defendant as "J-Rock" and had rented motel rooms to him a few times before November 2015.
Patel testified that "a couple of days" before the fire, defendant told Patel "he wanted a room and 'someone is going to get a room for me.' "
Patel testified that on November 12, 2015, a woman arrived at the motel's office to check in. The woman was alone and said, "[I]t was the room for J-Rock, and I'm going to be staying there with him." At trial, Patel reviewed a photograph of Valerie Villegas and identified her as the woman who said she was renting the room for J-Rock. When she checked in, however, Villegas said she was "Ruby Marquez" and showed a driver's license in that name with her photograph.
Patel testified the woman filled out a registration card for two people to rent the room, and he later gave the card to the sheriff's department. At trial, however, Detective Buck testified he spoke to the deputies and consulted the evidence log, and the registration card had never been booked into evidence.
Villegas paid for one night. Patel assigned her to room No. 108 and gave her one cardkey for that night. Patel saw her enter that room.
Mr. Patel testified room No. 108 was one of the smaller rooms on the property. It was a rectangular room that was about 10.5 feet by 16.5 feet. There was one door into the room that led from the parking lot, and a window next to the door that was covered with drapes. The room had a full size bed, a dresser, a television, a chair, and a lamp. There was a bathroom in the back of the room with a toilet, a sink, and a shower. There were no hooks or bars on the bathroom walls. The bathroom was 12 to 15 feet away from the motel room's entry door. There was no door between the bedroom area and the bathroom.
On November 13, 2015, Ms. Villegas returned to the office and paid for another night in room No. 108. Patel recharged her cardkey.
Also, on November 13, 2015, defendant arrived at the motel. Patel testified they spoke in the parking lot, and defendant paid to rent room No. 108 for another night. Defendant went into the office and Patel gave him a cardkey for room No. 108 for that night.
THE SURVEILLANCE VIDEO
There were eight security cameras on the property that recorded the office, outside the motel rooms, and the parking lot from different angles. One of the video cameras was directed at the doors and windows of room Nos. 108 and 109. There were outside lights above the doors for each room that illuminated the area.
During the investigation, Patel showed the videos to Detective Buck of the Stanislaus County Sheriff's Department and gave him the flash drive for 24-hour period prior to the fire that had been automatically saved. The prosecution introduced a two-hour video that showed the relevant activity at the office, and in front of room Nos. 108 and 109, before and during the fire.
The videos showed room No. 108 on the right side of the screen. There was a single, wide doorstep (or landing) in front of the door, and a window adjacent to the door. The front door and window were the only access points into room No. 108. An air conditioning unit was mounted below the window. A transformer box and the breaker for the entire motel was outside of room No. 108 and in front of the window. Room No. 109 was directly to the left of room No. 108, when looking at the screen. Room No. 109 had a two-step landing in front of the door, a window adjacent to the door, and the door and window were also the only access points into that room.
In the middle of the video screen, there was a driveway in front of room Nos. 108 and 109 and the adjacent rooms. On the left side of the screen, there were cars parked at an angle across from the driveway and the rooms.
Detective Buck testified the timestamps on the videos were 56 minutes faster than the actual time. At trial, the witnesses and the attorneys generally referred to the inaccurate timestamps on the video for reference, except for the actual time the fire appeared to begin.
Detective Buck testified the videos showed defendant and Villegas were the last two people who entered room No. 108 before the fire, Villegas never left the room, and defendant was the only person who left after the fire started. Defendant Gets the Cardkey
Detective Buck testified that he did not initially obtain the video of Villegas going into the office and checking into the motel. By the time he realized that was important, that video had been automatically recorded over.
The first video shown to the jury was for November 13, 2015, at 11:53:42 p.m. It showed defendant enter the motel's office. Defendant was by himself. He was wearing a grey hooded sweatshirt and obtained a cardkey. Defendant and Villegas Walk Out and Return to Room No. 108
The video camera aimed at room Nos. 108 and 109 showed that at 4:18:30 a.m. on November 14, 2015, the door opened to room No. 108. Defendant walked out of the room, crossed the driveway into the parking area, and went out of the screen to the left side. Defendant was wearing a grey hooded sweatshirt and appeared to be smoking a cigarette.
At 4:18:52 a.m., a woman walked out of room No. 108 and pulled a suitcase out of the room. She stood on the front step and smoked a cigarette. Detective Buck testified this woman was Villegas.
At 4:19:08 a.m., defendant returned from the parking area on the left side of the screen, crossed the driveway, and walked toward room No. 108. Villegas was still standing on the doorstep in front of room No. 108. She dragged her suitcase toward defendant in the driveway. Defendant walked past her, appeared to briefly speak to her, and continued into room No. 108. Villegas turned around and followed him into the room.
In his pretrial statement, given a week after the fire, defendant claimed he did not know Villegas, he never met her, she was never in room No. 108, and he had no idea why her body was found inside the room.
At 4:19:35 a.m., Villegas entered room No. 108 with her suitcase and the door closed. Detective Buck testified it did not appear that Villegas discarded the cigarette before she went into the room.
Detective Buck testified video never showed Villegas leave room No. 108. Lee Arrives and Talks with Defendant
At 4:21:50 a.m., a car arrived in the driveway and stopped in front of room Nos. 108 and 109. A woman got out of the passenger door and the car drove away. Detective Buck identified this woman as Anastasia Lee. Lee carried a large purse and a bag. Lee went directly to room No. 109, knocked on the door, and was let inside.
Lee was not charged in this case and did not testify at trial, but her appearance in the security video becomes an important issue. In his pretrial interview, defendant claimed he was asleep when the fire started, that Lee somehow gained entry into room No. 108 and woke him up because of the fire. At trial, defense counsel asserted in closing argument that Lee could have thrown a cigarette through room No. 108's window to start the fire. As will be explained, both claims are refuted by the security video.
At 4:24:07 a.m., Lee walked out of room No. 109 with her purse and the bag. Lee stood in front of the room's door and smoked a cigarette.
At 4:24:34 a.m., the same car returned and stopped next to Lee. Lee leaned into the passenger side and talked to someone inside the car. The car left, and Lee stayed outside of room No. 109.
At 4:26:39 a.m., the door opened to room No. 108. Defendant walked out and stood in front of the door. He talked to Lee, who was smoking in the driveway. The same car reappeared in the driveway and stopped in front of their location. Lee turned from defendant, opened the car's passenger door, leaned inside, and then closed the car's door. The car left the area. Defendant remained in front of room No. 108 and continued to talk with Lee, who stood in the driveway and kept smoking.
At 4:29:40 a.m., defendant walked away from room No. 108 and left the door partially ajar. Defendant walked past Lee, crossed the driveway, and disappeared on the left side of the screen. Lee remained in the driveway and did not go into room No. 108.
At 4:30:21 a.m., Lee threw her cigarette onto the driveway pavement and stood in the driveway in front of room Nos. 108 and 109.
At 4:30:49 a.m., defendant reappeared from the left side of the screen, crossed the driveway, and talked to Lee. Defendant stood on the doorstep in front of room No. 108 and appeared to have a heated conversation with Lee.
At 4:32:47 a.m., defendant walked into room No. 108 and closed the door. Lee remained outside. Lee Walks Between Room Nos. 108 and 109
At 4:37:17 a.m., Lee knocked on room No. 108's door and no one answered. Detective Buck testified Lee appeared to be smoking a cigarette.
At 5:24:05 a.m., the door opened to room No. 109 and Lee went inside.
At 5:35:20 a.m., Lee walked out of room No. 109, and knocked on the door to room No. 108. No one answered, and she went back into room No. 109.
At 5:39:10 a.m., Lee walked out of room No. 109, went to room No. 108, and placed her ear against the door. Lee again knocked on room No. 108's door, and no one answered. She went back to room No. 109 and stood on the doorstep.
At 5:48:35 a.m., Lee went back to room No. 108. She again put her ear against the door, and then she knocked on the window and the door. No one answered, and she stayed outside.
At 5:49:52 a.m., Lee went back to the landing of room No. 109, and then walked back and forth between room Nos. 108 and 109.
At 5:50:45 a.m., Lee put her purse down on the doorstep in front of room No. 109, walked back to room No. 108, and knocked several times on room No. 108's window. No one responded. She also tried to open or manipulate the window, but it does not appear that she opened it in any way. She did not appear to be smoking.
At 5:52:11 a.m., Lee walked back to room No. 109, picked up her purse, looked through it, again went to room No. 108, and knocked on the window. No one answered.
At 5:53:13 a.m., Lee walked across the driveway and disappeared on the left side of the screen.
At 5:54:30 a.m., Lee returned from the left side of the screen, crossed the driveway, walked to room No. 108, and kicked the door twice. No one answered.
Detective Buck testified that it did not appear that Lee opened room No. 108's window, and she never went inside the room. The First Evidence of the Fire
According to the timestamp on the video, at 5:54:46 a.m., Lee went back to room No. 109 and went inside. Since the time display was 56 minutes fast, the actual time Lee went into the room was approximately 4:58 a.m.
Also, according to the timestamp, at 6:08:35 a.m., the door to room No. 108 opened, and smoke immediately billowed out of the room through the doorway. Adjusting to the correct time, the first evidence of the fire was at approximately 5:12 a.m. Defendant Stands in Front of the Burning Room
Again, returning to the timestamp on the video, at 6:08:57 a.m., defendant walked out of room No. 108 through the smoke and stood on the doorstep in front of the room's open door. He looked toward the driveway and the parking lot. He was still wearing the grey, hooded sweatshirt. The hood was over his head, and both hands were in the pockets. Smoke poured out of room No. 108 as defendant stood in front of the open door. Defendant calmly stood on the doorstep and did not appear excited. He did not appear to call out to anyone for help, knock on any doors, or produce a cell phone to make a call.
At 6:09:02 a.m., defendant looked to his left. He appeared to look back into the room, removed his hands from his pockets, walked back into the room through the smoke, and left the door open. Smoke continued to pour out of the room.
At 6:09:42 a.m., defendant walked out of room No. 108. He was holding what appeared to be a blanket and it was on fire. He threw it onto the driveway, flipped it over, and stomped on it. He did not appear to act with any urgency.
At 6:09:55, defendant went back into room No. 108 as the smoke continued to pour out of the door.
At 6:10:00 a.m., defendant quickly backed out of room No. 108, as if he was being repelled by the heavy smoke and flames. He dragged out what appeared to be a sheet; it was on fire and he threw it on the driveway.
At 6:10:04 a.m., defendant ran into room No. 108 but immediately ran out, apparently because of heat and smoke. In the next few seconds, he tried to go inside again but could not get through the doorway as flames could be seen streaming out of the doorway and into the overhang above the room. Defendant ran back and forth across the driveway but was driven away by the flames. Defendant never went to other rooms to ask for help. Defendant and Lee Leave the Motel
At 6:10:50 a.m., defendant picked up the blanket, which was no longer on fire, and threw it around his back. He again tried to go into room No. 108 but stopped at the landing because of the smoke and flames coming out of the door.
At 6:10:56 a.m., defendant ran across the driveway toward the parked cars, and disappeared on the left side of the screen. Defendant did not return to room No. 108.
At the same time, several people appeared in the driveway in front of room No. 108. They tried to look in the room but backed away because of the intensity of the flames, which had now fully engulfed the overhang above the door.
At 6:11:22 a.m., Lee and another woman ran out of room No. 109. The woman stumbled to the ground. Lee left her behind, kept going across the driveway toward the parked cars, and disappeared onto the left side of the screen. One of the bystanders helped up the other woman.
Some of the bystanders moved the cars parked in front of room No. 108. Another person tried to get into the room but was repelled by the flames.
A different surveillance camera showed that at 6:11 a.m., defendant and Lee got into defendant's Crown Victoria and drove away from the motel. It is undisputed that defendant never returned to the motel that morning. Detective Buck's Testimony About the Video
Detective Buck testified that while the video showed Lee repeatedly knocking on room No. 108's door and window, the door never opened, and she never got inside the room. The video also showed Lee smoking outside the room and looking into room No. 108's window. Buck testified Lee never opened the window, reached through it, or threw anything into the room. Buck conceded the window could have been cracked open on the far side that was not visible from the security camera. However, the video never showed Lee reach for that side of the window.
Detective Buck testified that the video showed defendant walk out of room No. 108 as smoke came out of the room. He never knocked on the doors or windows of any other motel rooms or flagged down anyone for help.
THE INVESTIGATION
Discovery of Villegas's Body
At some point after defendant left the area, firefighters responded to the motel and put out the fire in room No. 108. Villegas's body was discovered inside the bathroom.
Detective Buck arrived at the motel shortly after the fire had been extinguished. He interviewed Patel and asked who had been staying in room No. 108. Patel said the occupants were J-Rock and a woman. Detective Buck recognized J-Rock as defendant's nickname. Patel showed the security videos to Detective Buck.
Aside from the video evidence, Detective Buck testified the investigators interviewed 12 people at the motel and could not find any witnesses who had seen defendant and Villegas together. There was no evidence of any telephone calls or text messages between the cell phones that belonged to defendant and Villegas, based on reviewing records obtained from a search warrant.
Detective Buck testified Villegas's body was lying face up in the small bathroom. Villegas's lower body, from the waist down, was in the shower stall. Villegas's head and the upper half of her body, from the waist up, were lying outside the shower stall. Her head was just to the right of the base of the toilet. There was a pool of blood under the back of Villegas's head.
Villegas was wearing jeans and a jacket, and her clothing was not burned. Her clothing was not bunched up or disturbed in such a manner consistent with someone trying to move her body or drag her in or out of the bathroom.
Detective Buck did not see blood on the toilet, sink, walls, or anywhere else in the bathroom. Buck testified the firefighters had already sprayed water into the bathroom which had diluted the blood under Villegas's head. The light switch inside the bathroom was in the "on" position, but there was no power into the room because of the fire. There were no handrails or racks on the bathroom walls, and no metal garbage cans on the floor. Evidence Found in the Bathroom
Detective Buck testified that on top of the toilet tank, there was a plastic bag that contained several items: an empty cigarette package of "L&M Filtered Cigarettes," a partial cigarette butt, a penny, a plastic spoon, and some food. The heat from the fire had melted the plastic bag and most of the contents.
A blue Bic lighter was on the bathroom floor to the left of Villegas's body. Detective Buck testified he did not find the lighter when he initially searched the bathroom, and it was found later. Buck did not tell the fire investigator that he found the lighter.
There was no drug paraphernalia in the bathroom or the rest of room No. 108. Detective Buck testified a metal spoon, and not a plastic spoon like the one found in the plastic bag, would have been used to ingest drugs. Evidence in the Bedroom Area
In the bedroom area of room No. 108, the bed's mattress and box spring had been against the wall. The top mattress had been partially pulled off the top of the box spring, so that it crossed the bottom of the box spring to form an L-shape.
A suitcase was near the front door. Several automobile tires with rims were stacked near the front door.
A purse was in the room located at the foot of the box spring and against the wall. There were documents in Villegas's name. There were no documents in the name of "Ruby Marquez." The Gun
A semiautomatic handgun was found at the foot of the box spring, in the same location as the purse. A magazine was loaded into the gun. The gun's slide could not move, and the shell cartridges had exploded inside the weapon because of the heat from the fire. A shell casing was inside the chamber and had not been ejected.
Detective Buck believed the gun was operable before it was damaged by the fire. He did not submit the gun for fingerprints or DNA tests because such evidence could not be found after exposure to extreme heat.
THE AUTOPSY
Dr. Sung-Ook Baik, the forensic pathologist, testified there was a lot of soot on Villegas's face, the outside of her nose, and inside both nostrils, which meant she was alive at the time of the fire because she had inhaled the soot. If she had already been dead, there would not have been soot in her nostrils.
There was also a lot of soot in Villegas's respiratory system, including the trachea, larynx, and the branches of both lungs, which again indicated she was alive at the time of the fire and breathed in the soot. The Lacerations on the Back of Villegas's Head
Dr. Baik testified there were three "linear" lacerations on the midline of the back of Villegas's head, two inches from the top of her head. He did not find any other injuries or bruises on her body.
Each laceration was between 1 inch and 1.5 inches in length and had been inflicted by a blunt object that caused a tissue breach. They were not inflicted by an object with a sharp end, such as a knife, since there were no clean-cut surfaces. The lacerations caused some bleeding, but they did not fracture her skull. The lacerations were inflicted at three separate times because they each had slightly different sizes and shapes.
Dr. Baik testified Villegas was alive when the lacerations were inflicted since there was a source of bleeding inside of the scalp. There would not have been any bleeding if she was hit after she was dead. There was some blood clotting which would have occurred within one or two minutes of the injury.
Dr. Baik could not determine the exact time the lacerations were inflicted, but believed they were fresh and around the time of her death, within minutes to hours, since there was no evidence of partial healing and the blood had not changed color. The tissue would have started to repair within four hours of the injury. Based on his gross inspection without microscopic analysis, there was no evidence of tissue repair.
Dr. Baik testified Detective Buck showed him photographs of the butt of the gun found in the motel room. Dr. Baik believed it was "possible" the three lacerations were caused by the butt since it was a blunt object with a linear shape, but there were no specific pattern injuries to distinguish the butt.
Detective Buck testified he measured the butt of the gun's handle, and it was 1 inch by 1.5 inches. He gave the photographs of the gun and the measurements to Dr. Baik to compare with the lacerations to Villegas's head. Detective Buck testified to his opinion that the dimensions of the gun's handle were consistent with the size of the lacerations on the back of Villegas's head.
Detective Buck did not find any bathroom fixtures or other objects in the motel room that looked like a blunt object or had the same dimensions that were consistent with the size of the lacerations on Villegas's head. Cause of Death
Dr. Baik determined the cause of Villegas's death was "acute soot and smoke inhalation." The blunt force lacerations to her head were a contributing factor because it was possible those injuries left her unconscious. Dr. Baik testified that "[i]f she did not have a blunt impact on the back of the head, she maybe survives. She has [the] ability to get out of the fire." The head injuries occurred within four hours of Villegas's death and could have rendered her unconscious.
Villegas's carbon monoxide level was 33 percent. Dr. Baik conceded the large amount of soot and the level of carbon monoxide also could have left her unconscious.
At the time of her death, Villegas had 1.1 milligrams per liter of methamphetamine in her bloodstream, a potentially toxic level, and was under the influence of methamphetamine at the time of death. However, Dr. Baik testified methamphetamine was not a cause of death since she could not breath as a result of the acute soot and smoke inhalation.
THE FIRE INVESTIGATOR'S TRIAL TESTIMONY
Paul Spani, a fire investigator for the Stanislaus Regional Fire Investigation Unit, testified for the prosecution. He explained a fire's "area of origin" is an area where the fire ignited. The "point of origin" is more specific and the actual spot within that area where the fire ignited. The investigation of a fire begins from the area of least damage to the area of most damage, based on the requirements of the National Fire Protection Association (NFPA). Spani testified he followed the NFPA's standard of care when he investigated the fire in this case.
In issue 1, post, we will address the stipulation reached by the court and the parties as to the nature and extent of Spani's testimony at defendant's trial.
Investigator Spani testified a person may intentionally start a fire for "crime concealment," where the person "does one crime and then will set something on fire to try and cover that initial crime up. Makes it harder to detect."
Investigator Spani arrived at the motel while firefighters were still actively fighting the fire in room No. 108. The fire had spread into the attic and the two motel rooms on either side of room No. 108.
Investigator Spani determined the fire emerged out of room No. 108's door and went up and under the aluminum awning above the entrance to the room. The awning had almost completely melted away from the heat of the fire. The doorjamb and window frame were charred and burned. Based on these burn patterns, Spani determined the fire came from inside room No. 108.
When Investigator Spani entered room No. 108, he inspected the bedroom/sleeping area and found a suitcase just inside the door. There was some charring on the suitcase's exterior, but the interior was intact.
Investigator Spani inspected the air conditioning unit that was mounted by the room's window, a lamp in the room, and two electrical outlets on the wall in the bedroom/sleeping area. The air conditioning unit and lamp had been plugged in. Spani determined the electricity for these items was not the source of the fire, and the electrical outlets had been in good condition before the fire. He did not find any evidence of an accidental fire, such as from candles or a short circuit in the electrical outlets. Spani determined there was no lightening in the atmosphere on the night of the fire, since lightening could also be an accidental cause.
Investigator Spani testified the bedroom/sleeping area also contained a stack of tires and rims, the bed, a dresser, and a large automobile speaker box. The tires and rims were burned and melted only on the sides that faced the bed. The front drawers on the dresser and the speaker box also had the most damage on the sides that were closest to the bed.
Investigator Spani testified a purse was located between the foot of the mattress and the speaker box. A gun was "partially in and partially out of the purse, next to the wall, and in between the mattress and the speaker box." He did not find any personal effects in the room that may have belonged to defendant.
Investigator Spani testified the material that covered the mattress and box spring was "almost completely burned clean from the springs" by the fire. There was little to no actual coverings left on the mattress springs, the frame was gone, and no sheets or blankets remained. Flashover and Area of Origin
Investigator Spani testified a "flashover" event occurs when "we have a room that has a fire inside, the fire will bank up, will progress, the heat and smoke will run up along the wall, eventually it will come across the ceiling and fill up the entire ceiling, come back down, and while all this is taking place, everything else in the room is getting hot enough to reach its ignition temperature. And when flashover occurs, everything in the room ignites at once." The smoke will "start to roll in the room, it will drop down and then all that smoke, the products of combustion that have not yet burned, all ignite at once." A large enough flashover "can make a 'whoom' noise."
The area of origin can still be determined if a room goes through a flashover, based on indicators like smoke stains on the walls, burned areas, and the depth of char on wooden components in the room.
Investigator Spani testified a flashover occurred inside the bedroom/sleeping area of room No. 108 because there was severe fire damage and "a pretty even burn through the whole room, from the ceiling level all the way down to the floor. The area of the two mattresses was the area most damaged in the sleeping part of room No. 108, since the sides of the tires and dresser that were closest to the bed were the most damaged by the fire.
Investigator Spani testified the most damaged area in a room meant that area burned the longest and was the area where the fire started. Spani determined the "mattresses themselves" (referring to the mattress and box spring) were the "area of origin" for the fire because they burned the longest, and the fire started in the mattresses. All the fire indicators and the smoke patterns led back to the mattresses. He further determined the area of origin "appeared to be in this area right where ... the two mattresses cross" into an "L" shape.
Investigator Spani was unable to determine the specific "point of origin" where the fire began. However, "[a]s long as you've got that area down, somewhere in that area should be your point of origin." Spani believed that knowing the specific point of origin in this case would not have been helpful. The Bathroom
Investigator Spani testified he looked into the bathroom located in the back of room No. 108 and saw Villegas's body on the floor. There was bubbling of the paint finish on the upper portions of the wall and part of the shower curtain had melted. There was only heat and smoke damage in the bathroom, but no fire damage. The fire damage stopped in the bedroom/sleeping area "where the entry to the restroom[] was."
"Q. ... How could you tell there was no fire or flames in the bathroom?
"A. There was heat damage in the form of bubbled paint in the upper portions of the [bathroom] where the highest temperatures were, smoke damages throughout, but as you get down lower toward the floor, that's where there was still paint that was intact, not bubbled. It had a little bit of soot but not the same amount as was up high.
"Q. And if there had been actual fire in the bathroom, what would that have looked like?
"A. The paint would have been burned off the walls."Source of the Fire
Investigator Spani testified the elements of the "fire triangle" are "fuel, heat, and oxygen" required for a fire to burn. The oxygen is in the room, the heat is the ignition source, and the fuel is whatever is in the room that could burn.
The material that covered the mattress and box springs, along with the bedding, would have been the easiest fuel to burn in No. 108. The fire would have ended in a smoldering state once all the oxygen in the room had been consumed but opening the door to room No. 108 would have introduced fresh oxygen into the room and violently reignited the fire.
Investigator Spani testified he sifted through and removed the debris in the sleeping area of room No. 108 to try to determine the cause of the fire or source of the ignition, such as matches, cigarette butts, or lighters. He found a bullet casing.
Investigator Spani explained a cigarette butt would have been an important clue since a lit cigarette dropped on a mattress would have smoldered and started a fire. "If it's a filtered cigarette, we should be able to find ... the filter itself" at the top of the cigarette because the filter would not burn, even in a flashover burn.
Investigator Spani testified he did not find any cigarette filters while sifting through the remains of the bed and the other debris in the sleeping area. An unfiltered or marijuana cigarette would have been completely consumed by the fire. The clip used to hold it, or a pipe used to smoke marijuana, would have survived but he did not find any drug paraphernalia in the debris.
Cross-examination
On cross-examination, Investigator Spani acknowledged that under the NFPA standards, the cause of the fire cannot be determined if the origin is not determined, and if the origin is not correctly identified, then the determination of cause will also be incorrect. Spani also acknowledged that a flashover can make it difficult to determine the fire's area and point of origin.
Investigator Spani conceded he was not able to determine the cause of the fire or the ignition source. A smoldering cigarette on a mattress could have started the fire, but he did not find any cigarette filters in the debris. Unfiltered cigarettes, such as marijuana joints, would have been consumed by the fire.
Investigator Spani testified he did not find any lighters, cigarettes, or cigarette butts in the debris from the sleeping area. He did not search the bathroom because the sheriff's department handled that area since the body was found there. Spani did not conduct an investigation for the fire's origin and cause in the bathroom because the fire did not start there. The mattresses were the area of origin and were approximately 13 feet from the area where Villegas's body was found on the bathroom floor.
Defense counsel asked Investigator Spani to look at photographs of the bathroom depicting the plastic bag on top of the toilet tank containing the package of filtered cigarettes and the Bic lighter on the bathroom floor near Villegas's hands. Spani acknowledged the lighter was a potential ignition source.
Investigator Spani testified he did not know the cigarette pack and lighter were in the bathroom when he conducted his investigation and wrote his report. He also did not know that Villegas had been seen entering room No. 108 with a lit cigarette before the fire, that a cigarette butt was found in the room (inside the plastic bag in the bathroom), or that a statement had been made that marijuana was being smoked in that room.
However, Investigator Spani again testified that if filtered cigarettes had been used to ignite the sheets or the bed, the filters would have been found when they sifted through the debris. Spani also testified that the lighter was a "portable" ignition source and could have been moved after being used to start the fire.
ADDITIONAL PROSECUTION EVIDENCE
Stengel's Trial Testimony
Joseph Stengel had lived at the motel for several months before the fire. Stengel met defendant in April or May 2015, and defendant was at the motel "with great frequency."
In November 2015, Stengel was staying in room No. 138, which was across the parking lot from room No. 108. Stengel could see room No. 108's door from his own doorway.
At trial, Stengel estimated the distance between the two rooms at about 36 feet. A defense investigator measured the distance at 87 feet 7 inches.
Stengel testified that about 45 minutes to an hour before the fire broke out, Stengel was standing in the open doorway of his room. It was early in the morning and still dark outside. Stengel heard the voices of a man and woman arguing. He recognized defendant's voice from their prior acquaintance.
Stengel believed the voices were coming from "J-Rock's room," and clarified that was the same room that later burned down. The room's door was closed when he heard the voices.
Stengel testified defendant's voice sounded "[a]gitated, annoyed, and angry." Stengel heard defendant say, " '[L]ying bitch' " and " 'you c**t.' "
Stengel admitted he did not tell anyone about hearing an argument 45 minutes before the fire when he was previously interviewed in this case.
About 45 minutes after he heard the argument, Stengel was in his room and heard a large pop and boom. He looked into the parking lot and noticed the circuit box next to room No. 108 was "billowing smoke," and smoke and flames were coming out of the room.
Stengel went outside and saw defendant "coming away from the door" of room No. 108, and he was with a woman. Defendant was "backlit" by the flames. Stengel "hollered out" to defendant, " 'What's going on?' " Defendant yelled "as he was retreating from the door, 'They're in there. They're in there' " or " 'Oh, my god, they're in there. Oh my god, they're in there.' "
Stengel did not know what defendant was talking about. Defendant did not try to go back into room No. 108. Defendant and the woman (later identified as Lee) got into a car "and sped out of the parking lot." The room was still on fire and the other residents were trying to see what was going on, but no one else left the motel. Stengel tried to approach room No. 108 and get inside, but "the flames were already to a point where the door was impassable." Stengel's Prior Statements
Detective Buck testified he interviewed Stengel a few hours after the fire. Stengel said he heard an argument, a boom, and then he walked out of his room and saw the fire. Stengel said he heard the argument between 4:30 a.m. and 4:45 a.m. Buck testified that would have been about 40 minutes before the first evidence of the fire on the security video. Stengel said he heard the words " 'you bitch' " during the argument, and recognized one of the voices. Stengel did not clarify where he was standing when he heard the argument. Stengel said he heard a "commotion" followed by a "boom," and went outside and people were yelling. After the fire started, Stengel said he heard defendant yelling, " 'Oh, [G]od. Oh, [G]od.' "
Detective Buck testified that the security video showed Stengel walked out of his room at 6:10:50 a.m., based on the incorrect timestamp. He walked toward room No. 108 as defendant was walking away from the room.
Detective Buck contacted Stengel again in October 2016, shortly before the trial, and asked him to review and confirm his prior statement. Stengel said his prior statement was accurate - that he heard an argument, a boom, and then saw the fire. Stengel also said that " 'when he heard the bang and the yelling, which he said he knew was [defendant] as he knows the sound of his voice, he came outside to see [defendant] with another female.' " Stengel did not say that he heard an argument that occurred 45 minutes before the fire started. Lee's Pretrial Statements
Detective Buck testified he interviewed Anastasia Lee at the sheriff's department shortly after the fire. Lee was wearing the same clothes as shown in the final portion of the motel's security video. Her clothes were not burned in any way.
Lee said she had previously been in a relationship with defendant. Lee said that in the early morning hours before the fire, she was mad at defendant and talking " 'hella shit' " to him outside room No. 108.
Prior to trial, the court issued a bench warrant for Lee because she had failed to appear as ordered. Lee never appeared and did not testify.
DEFENDANT'S PRETRIAL STATEMENTS
Detective Buck interviewed defendant at the Stanislaus County Sheriff's Department on November 20, 2015. The interview was recorded, and the video was played for the jury. Buck advised defendant of the Miranda warnings, and he agreed to answer questions.
Miranda v. Arizona (1966) 384 U.S. 436.
Detective Buck told defendant he was investigating the fire at the motel and wanted to get everyone's story; he hoped defendant would have appeared earlier for an interview. Defendant said he was "spooked" because he thought there was a warrant out for him.
Before Detective Buck asked any questions, defendant gave a lengthy narrative of what happened at the motel.
"The only thing I know is I got woke up and my room was on fire, like half of the bed and the back wall and that stuff was on fire so ... I grabbed a blanket off the bed, tried throwing it outside. I, I run back in, I grabbed the sheet, and tried throwin [sic] that out, then I tried to run back in got the mattress and throw that out, but it was too much, I couldn't do nothin [sic]. I was more like a victim ... like to me, I feel like someone set me on fire,
that's how I feel. Like I'm not for sure like who it was or what they was, like anybody who know me they tell you when I sleep, I sleep good, when I'm up I'm up. So you know like, when I sleep, like you know sometimes when I'm asleep and I be doin [sic], so then I open up the door, like cuz when I went to bed I went to bed by myself, wasn't nobody in the room with me. That's the part I don't understand, like how did you all find somebody in the room when I went to bed wasn't nobody in the room with me. And I know for a fact that it was Anastasia [Lee] was the one that woke me up."
Defendant continued:
"Anastasia [Lee was] the one woke up me. And she was tryin [sic] to act like she wasn't in the room an all that stuff when I ran out the door to ask for some assistance, I'm screaming, I'm everybody will tell you I'm screamin [sic] and yellin [sic] ... help me put out the fire, that's Anastasia there. That's the first thing I saw when I come out. And so ... I run to my cousin's room, knock on her door, and say, man you gotta call the fire department or something there's a fire over here. By this time I hear somebody call my name 'J-Rock' and I look around and Anastasia's standing right there, by her van, uh so when she was standing by the van ... she had on a green little coat like it ... was smoked up, burned up all to shit. So I see her, I hug her, and I'm like man you good?"
Defendant said he heard someone talk about moving the cars in the parking lot because of the fire, and defendant decided to move his car. Defendant said he decided to leave because "the person that ... I knew that was in the fire is out now and is with me so I'm cool."
Detective Buck asked how long he had been staying at the motel. Defendant said he had been there for a couple of weeks but had been in room No. 105. He had just moved into room No. 108 "a couple days before then."
Detective Buck asked defendant when he went to sleep that night. Defendant thought it was 1:00 a.m. or 2:00 a.m. Buck asked if anyone was in the room with me. Defendant said no one else was in the room when he went to sleep before the fire.
Defendant said he had been breaking up with Lee, and she had been in front of his door earlier to "mess with" and "irritate" him. He talked to her and gave her a cigarette, she kept bickering, and he shut the door. Defendant said he had been "waitin [sic] on somebody" but passed out while he was waiting and went to sleep.
Defendant again said Lee woke up him and he discovered the fire. Buck asked how Lee got into his room. Defendant said he did not know, but she might have stolen the room key or used a trick to get inside. Defendant also said someone could push open the window to get in.
Detective Buck asked defendant what had been in the room. Defendant said the bed was against the wall. Buck asked about the tires. Defendant said he had replaced his stock tires and kept three of them. Defendant said the bathroom was in the back, and he thought there was a wooden door that led into the bathroom.
Detective Buck again asked defendant how he woke up. Defendant said Lee touched him and said to wake up because there was a fire. Buck asked if the door had been left open or Lee kicked open the door. Defendant replied he was confused about how that happened but wondered if she had pushed open the door by twisting the handle.
Defendant said that when he woke up, he "started snatching blankets and sheets off the bed, I went straight out the door." Buck asked where the fire was. Defendant said "half the bed" was on fire by the wall.
Detective Buck asked defendant if he suffered any burn injuries. Defendant said no, but that he got a "little bit" singed on the hairs of his arm when he was trying to grab stuff and run out of the door. Defendant added: "And soon as I run out the door, I'm screaming for people, man somebody help me, y'all come an [sic] help me."
Defendant said after Lee woke him up, he ran out and there was too much smoke to see where she was. Defendant thought Lee was still in the room.
Detective Buck asked defendant why he did not stick around the motel. Defendant said he thought the manager was going to get on him because of the fire, and he wanted to "dodge" him. Lee, the person he was most concerned about and who he thought was in the fire, was with him. They hugged for a minute, and then he heard "Momma Lynn" say that she was going to move her car. Defendant decided to also move his car. Lee jumped in and they left.
Nicki Levan testified for the defense that at the time of the fire, she was staying in room No. 109 with a woman known as "Mama Lynn."
Detective Buck again asked defendant what took so long to contact him about the fire. Defendant said he was nervous and thought there were warrants out for him.
Detective Buck asked defendant who was the last person in the room he saw before he went to sleep. Defendant said no one was in the room.
Detective Buck asked how the fire started. Defendant said he did not know. Buck asked if he was smoking or had a heater on. Defendant said he was not smoking, the only heater was the window unit, and he did not have a lighter.
Detective Buck asked defendant who had it out for him. Defendant said he did not know.
Detective Buck asked defendant who was "Valerie Rose Villegas." Defendant said he did not know her and had never seen her. Buck said he had reports that tied them together. Defendant said that was impossible.
Detective Buck told defendant that he knew "a lot of the stuff you're telling me is bullshit and I can prove it." Defendant said he was the victim and did not do anything wrong. Buck said it did not look good because defendant had been avoiding him and then lied.
Defendant said, "All you gotta do is check the camera." Detective Buck said he already did and told defendant, "[Y]ou're full of shit."
Detective Buck left the room. When he returned, he showed defendant a photograph of Villegas and asked, "[R]ing a bell?" Defendant said no. Buck asked if there was anything he wanted to change about his story. Defendant said no. Buck asked him what happened in the room with Villegas. Defendant said Villegas was never in his room, and he did not know how she got there after he passed out.
Detective Buck testified he did not ask defendant if he knew "Ruby Marquez" because defendant said he did not know the woman who was in the photograph.
As explained above, the security video completely refuted defendant's claim that he did not know Villegas or that she was in No. 108.
Detective Buck asked defendant if he used drugs. Defendant said he snorted a little bit of "powder" and smoked marijuana "every now an [sic] then." Defendant said he smoked some weed, like four to five "blunts," throughout the day before the fire and drank three shots of Hennessey earlier in the day. Defendant said he was high and not drunk.
Defendant again said he was the victim, and someone was out to get him. Detective Buck asked who wanted to get him. Defendant said it was the Mexicans or the Northerners.
Detective Buck testified that in July 2015, defendant was standing in the parking lot at the same motel when he was shot by someone in a vehicle. Defendant's injuries were so severe that he was rushed to a hospital for surgery. In September 2015, the case was closed, and a suspect was never apprehended.
Defendant said he went into the room because he got tired of Lee "messin [sic] with me ... and I shut the door on her." He was waiting for someone but decided to go to bed. "I didn't even have a lighter." Defendant said the door lock was "wishy washy" and sometimes did not work because they used old parts and refused to replace them with new locks.
At the end of the interview, Detective Buck took photographs of defendant's arms, where he said he was burned. Buck testified he did not see any evidence of burns or singes.
Detective Buck testified the video did not correspond with defendant's story that the first thing he did after discovering the fire was to drag the blankets and bedding outside. Instead, the video showed defendant walk out of the room and stand in front of the doorway as smoke poured out.
DEFENSE EVIDENCE
Defendant did not testify.
Nikki Lavan testified that on the night of the fire, she was staying in room No. 109 with Anastasia Lee and a woman called "Mama Lynn." Lynn had died prior to trial. Lavan testified Lee was defendant's "girlfriend." Lee was pregnant at the time. Lavan knew defendant was staying in room No. 108 with "some other girl."
Lavan testified Lee was a prostitute. Lavan testified Lee came in and out of room No. 109 three times. When Lee first arrived, she was really mad and upset at defendant because he left her at an AM/PM store and she had to walk back. Lee was "hollering, screaming, banging on the door" of room No. 108 but no one answered. Lee knocked on room No. 109 and Lavan let her in. Lee later left.
Lavan testified Lee came back to room No. 109 a second time; she was with a "date" and wanted him to stay in room No. 109, so Lee could use his car. Lavan refused. Lee was still mad at defendant. Lee stood outside between the doors to room Nos. 108 and 109 and yelled, " 'I'm going to burn this motherf[**]ker down.' " Lavan was inside room No. 109, and the door was closed, but she could hear Lee yelling the threat to burn it down. Lavan testified Lee had a lighter that she used for her cigarettes.
After Lavan heard Lee shouting, and about 15 minutes before the fire started, Lee again went into room No. 109. Lee was out of breath and chewing on a cigarette. Lavan asked what was wrong with her. Lee said nothing was wrong. Lavan testified Lee also said, "[D]on't I see the smoke."
Lavan testified she heard a really loud "boom." Mama Lynn was going outside to smoke a cigarette and looked out the window to make sure the police were not around, "or [there] wasn't no fire like Anastasia said it was." Lynn did not see anything. She opened the door to room No. 109, and they saw the smoke and fire coming out of room No. 108. Lee and Lynn ran outside. Lynn fell down; Lavan believed Lee had pushed her. Lavan stayed in the room to get her dog and then ran out. Defense Expert
The fire investigator testified the flashover event would have made a "whooshing" sound.
Dr. Avak Howsepian, a psychiatrist, testified a person with 1.1 milligrams per liter of methamphetamine in their system (as found in Villegas) would likely suffer from methamphetamine intoxication, and possibly from a psychotic disorder or deliriums. Dr. Howsepian acknowledged that toxicity for methamphetamine ranges from 0.2 to 5.0 milligrams per liter, depending on the person's tolerance. He was not familiar with Villegas's health or medical history and could not say how specifically she was affected by the methamphetamine in her body.
PROCEDURAL HISTORY
Defendant's First Trial
Defendant was charged with count 1, first degree premeditated murder of Villegas, with the special circumstance that the murder was committed while defendant was engaged in the arson of an inhabited structure, and an enhancement for personal use of a firearm; count 2, arson of an inhabited structure; and count 3, unlawful possession of a firearm by a felon.
On April 12, 2016, defendant's first jury trial began. The jury was instructed on first degree murder based on the theory of premeditation, and not on felony murder. It was instructed on involuntary manslaughter as a lesser included offense.
On April 25, 2016, the jury found defendant guilty of count 3, unlawful possession of a firearm. The jury was unable to reach unanimous verdicts on count 1, first degree premeditated murder, and count 2, arson. The vote on each count was 11 guilty and one not guilty. The court declared a mistrial for those counts. Defendant's Second Trial
On November 1, 2016, defendant's second jury trial began for count 1, murder with the arson-murder special circumstance, and count 2, arson.
Prior to the start of the second trial, the prosecutor stated she was going to withdraw the premeditation theory relied upon in defendant's first trial and would only proceed on felony murder based on arson.
As to count 1, the jury was instructed on a felony-murder theory based on arson. The jury was again instructed on involuntary manslaughter as a lesser included offense, based on the negligent act of leaving a lit cigarette on the bed.
On November 10, 2016, after defendant's second trial, the jury found him guilty of count 1, first degree felony murder, and found true the arson special circumstance and the firearm enhancement; and guilty of count 2, arson of an inhabited structure. Sentence
On March 6, 2017, the court sentenced defendant to life without the possibility of parole for count 1, first degree murder with the arson-murder special circumstance, plus a consecutive upper term of 10 years for the firearm enhancement. The court also imposed the upper term of eight years for count 2, arson, and the middle term of two years for count 3, felon in possession of a firearm, and stayed the terms for counts 2 and 3 pursuant to section 654.
The court ordered defendant to pay a restitution fine of $10,000 (§ 1202.4, subd. (b)). It did not impose the parole revocation fine under section 1202.45 since defendant was sentenced to life without parole.
The court also ordered defendant to pay a court security fee of $120 (§ 1465.8), and a criminal conviction assessment of $90 (Gov. Code, § 70373). Defendant was ordered to pay victim restitution of $1,729.22 to the victim compensation board, based on compensation for the victim's funeral, with additional economic losses suffered by the victim's family to be determined.
While the court stayed the terms imposed for counts 2 and 3, it was not required to also stay the court operations assessment (§ 1465.8) and the court facilities assessment (Gov. Code, § 70373) because those apply to each count of which a defendant is convicted. (People v. Alford (2007) 42 Cal.4th 749, 755-759; People v. Sencion (2012) 211 Cal.App.4th 480, 483-484; People v. Sharret (2011) 191 Cal.App.4th 859, 867-869.)
On March 7, 2017, defendant filed a timely notice of appeal.
DISCUSSION
I. The Fire Investigator's Testimony
Defendant's first appellate issue is that his conviction in count 2 for arson must be reversed because there is insufficient evidence he intentionally set the fire. Defendant contends the cause of the fire in room No. 108 was undetermined, an accident could not be ruled out, and there was no evidence the fire was of an incendiary origin. Defendant further asserts that since there is insufficient evidence of arson, his conviction for first degree murder based on an arson theory of felony murder, and the jury's true finding on the arson-murder specific circumstance, must also be reversed.
In the course of challenging his arson conviction, defendant raises two preliminary evidentiary issues as to the determination of whether that conviction is supported by substantial evidence. Defendant asserts the trial testimony of Investigator Spani cannot be considered to determine whether his arson conviction is supported by substantial evidence because Spani did not qualify as an expert, his trial testimony was limited to the examination of physical evidence he found at the scene, he was not permitted to testify about his opinion on the cause of the fire, and his investigation did not comply with recognized standards. Defendant argues that based on the alleged limitations of Spani's testimony, the People failed to present any expert testimony that the fire was of an incendiary origin.
Defendant raises a second evidentiary issue, that his statements from the pretrial interview with Detective Buck cannot be considered to determine whether his arson conviction is supported by substantial evidence because the People failed to establish the corpus delicti for arson independent of these statements - that the fire was of an incendiary origin.
In order to address defendant's substantial evidence arguments about his arson conviction, we first address defendant's objections to Investigator Spani's trial testimony and the parties' agreement about the nature and extent of his testimony.
In issue II, post, we will address defendant's additional evidentiary assertions about whether the People established the corpus delicti of arson so that defendant's pretrial statements may be considered. In issue III, post, we will then address defendant's substantial evidence challenges to his conviction for arson.
A. Defendant's Objections to the Fire Investigator's Testimony
Prior to defendant's first trial, defense counsel filed a motion in limine to exclude the testimony of Paul Spani, the fire investigator. Defendant argued Spani failed to follow the scientific principles for fire investigations as required by the NFPA.
Defendant's motion was based on Investigator Spani's preliminary hearing testimony, where he opined that the cause of the fire was an open flame. Defendant's motion argued that Spani's methodology and opinions at the preliminary hearing were inconsistent with NFPA's investigative standards because he failed to determine the specific point of origin, such conclusions cannot be reached without finding the point of origin, and he gave his opinion without eliminating all possible electrical or accidental causes.
In the alternative, defendant argued Investigator Spani's testimony should be limited to certain topics and he could not testify to his opinion about the actual cause of the fire.
At a hearing prior to the first trial, the court denied defendant's motion to completely exclude Investigator Spani's testimony. However, the court considered defendant's alternative motion to limit Spani's testimony on matters that were not supported by the evidence.
During the pretrial proceedings, the prosecutor advised the court that defense counsel had agreed to stipulate that Investigator Spani could testify at trial as follows:
"Investigator Spani could opine as to the area of origin, would not offer an opinion as to the cause of the fire, but could answer hypotheticals regarding if the fire was consistent with something like an open-flame device, things like a match or a lighter being applied and removed from the scene, that he would offer or answer a hypothetical by [defense counsel]. That, or if possible that a smoldering cigaret[te], either mechanical or hand-rolled type cigaret[te] could have started this fire ... he could talk about the things he examined and didn't find as causes.
"He examined the electrical and didn't find that, other things and didn't find other sources, but would not offer an opinion as to the cause or nature in terms of being incendiary and using phrases like that, so limited to the area of origin and one or two hypotheticals." (Italics added.)
The court asked if the stipulation allowed Investigator Spani to testify about inspecting room No. 108, the walls, the bed frame, and "other things so that the jury would hear the observations that he made in going through the scene." The prosecutor said yes.
Defense counsel agreed with the prosecutor's recitation of their stipulation about the nature and extent of Investigator Spani's trial testimony, and that the cause of the fire would remain undetermined except for hypothetical examples.
At the first trial, Investigator Spani testified consistent with the stipulation, and the jury received CALCRIM No. 332 on the testimony of expert witnesses. As explained above, the jury was unable to reach verdicts on both arson and murder.
B. Defendant's Renewed Objections at the Second Trial
Prior to the second trial, defendant filed the same motion in limine to either exclude or limit Investigator Spani's trial testimony.
Defendant's second trial began on November 1, 2016, before the same judge. According to the minute order for November 2, 2016, the court issued an order that Investigator Spani could testify about the physical evidence found at the motel, and both attorneys agreed that Spani would not give an expert opinion or conclusions about the cause of the fire. The court's ruling on Spani's testimony was only contained in the minute order, and there was no discussion about it in the reporter's transcript.
Investigator Spani testified at the second trial as set forth in the factual statement. The court instructed the jury with CALCRIM No. 332 on the testimony of an expert witness, using the same language as given in the first trial, without defense objection.
"Witnesses were allowed to testify as experts and to give opinions. You must consider the opinions, but you are not required to accept them as true or correct. The meaning and importance of any opinion are for you to decide. In evaluating the believability of an expert witness, follow the instructions about the believability of witnesses generally. In addition, consider the expert's knowledge, skill, experience, training and education, the reasons the expert gave for any opinion, and the facts or information on which the expert relied in reaching that opinion.
"You must decide whether information on which ... the expert relied was ... true and accurate. You may disregard any opinion that you find unbelievable, unreasonable, or unsupported by the evidence.
"An expert witness may be asked a hypothetical question. A hypothetical question asks the expert to assume certain facts are true and to give an opinion based on the assumed facts. It is up to you to decide whether an assumed fact has been proved. If you conclude that an assumed fact is not true, consider the effect of the expert's reliance on that fact in evaluating the expert's opinion."
C. Analysis
Contrary to defendant's appellate assertions, the court did not limit Investigator Spani's trial appearance so that his testimony and opinions as an expert were irrelevant or inadmissible.
As set forth above, the court considered defense counsel's objections to Investigator Spani's proposed testimony prior to the first trial. The parties eventually stipulated that Spani could testify to his opinions about the area of origin, his inspection and examination of the room, and answer hypothetical questions about possible incendiary causes of the fire. The parties also stipulated that Spani would not offer an opinion on the cause of the fire, "or nature in terms of being incendiary and using phrases like that, so limited to the area of origin and one or two hypotheticals."
Defense counsel renewed his objections to Investigator Spani's testimony prior to the second trial based on the same motion; he did not expand the motion based on anything that happened at the first trial. While the reporter's transcript does not contain any discussion about the motion, the clerk's transcript states the court issued an order that Spani could testify about physical evidence found at the motel, and both attorneys agreed that Spani would not give an expert opinion or conclusions about the cause of the fire.
As set forth in the factual statement, Investigator Spani testified at the second trial consistent with the court's orders and the parties' stipulations about his inspection and examination of the room and its contents, that he determined the area of origin was the bed, that he could not determine the specific point of origin, that he described what he found when he examined the burned room, and that he ruled out certain other causes. He answered numerous hypothetical questions from both the prosecutor and defense counsel, and he never testified to his opinion that the fire was of an incendiary origin. While Spani did not testify about the cause of the fire in room No. 108, his testimony at the second trial was admissible on the subjects that he addressed, and the jury was entitled to rely on Spani's testimony to that extent as instructed by CALCRIM No. 332.
II. The Corpus Delicti of Arson
As explained in issue I, ante, defendant also raises a preliminary evidentiary contention that the People failed to establish the corpus delicti for arson and, as a result, his pretrial statements cannot be relied on to find his conviction for arson is supported by substantial evidence. Defendant further argues that given his objections to Investigator Spani's testimony, the fire investigator's testimony also cannot be relied upon to find the People met the burden to prove the corpus delicti.
We review the corpus delicti rule and the evidence required to satisfy that rule when a defendant is charged with arson.
A. Corpus Delicti
"In every criminal trial, the prosecution must prove the corpus delicti, or the body of the crime itself - i.e., the fact of injury, loss, or harm, and the existence of a criminal agency as its cause. In California, it has traditionally been held, the prosecution cannot satisfy this burden by relying exclusively upon the extrajudicial statements, confessions, or admissions of the defendant. [Citations.]" (People v. Alvarez (2002) 27 Cal.4th 1161, 1168-1169 (Alvarez).) The rule is intended "to ensure that one will not be falsely convicted, by his or her untested words alone, of a crime that never happened. [Citations.]" (Id. at p. 1169.)
After the adoption of section 28, subdivision (d) to Article I of the California Constitution, through the enactment of Proposition 8, "there no longer exists a trial objection to the admission in evidence of the defendant's out-of-court statements on grounds that independent proof of the corpus delicti is lacking. If otherwise admissible, the defendant's extrajudicial utterances may be introduced in his or her trial without regard to whether the prosecution has already provided, or promises to provide, independent prima facie proof that a criminal act was committed." (Alvarez, supra, 27 Cal.4th at p. 1180.) However, section 28(d) "did not eliminate the independent-proof rule insofar as that rule prohibits conviction where the only evidence that the crime was committed is the defendant's own statements outside of court. (Ibid.) The jury must be instructed "that no person may be convicted absent evidence of the crime independent of his or her out-of-court statements." (Ibid.) On appeal, the defendant may "directly ... attack the sufficiency of the prosecution's independent showing" without objecting at trial. (Ibid.)
"[T]he modicum of necessary independent evidence of the corpus delicti, and thus the jury's duty to find such independent proof, is not great. The independent evidence may be circumstantial, and need only be 'a slight or prima facie showing' permitting an inference of injury, loss, or harm from a criminal agency, after which the defendant's statements may be considered to strengthen the case on all issues. [Citations.]" (Alvarez, supra, 27 Cal.4th at p. 1181.)
" '[T]he prosecution need not eliminate all inferences tending to show a noncriminal cause of [the harm]. Rather, the foundation may be laid by the introduction of evidence which creates a reasonable inference that the [harm] could have been caused by a criminal agency [citation], even in the presence of an equally plausible noncriminal explanation of the event.' [Citation.]" (People v. Ochoa (1998) 19 Cal.4th 353, 405.)
B. Arson
Defendant was charged and convicted in count 2 of arson of an inhabited structure in violation of section 451, subdivision (b). "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.)
When a defendant is charged with arson, "[a]ll that is needed to establish the corpus delicti, in addition to the actual burning, is that the fire was intentional or of incendiary origin." (People v. Clagg (1961) 197 Cal.App.2d 209, 212.) In this context, incendiary origin means the fire was deliberate and intentional, not accidental or unintentional. (People v. Andrews (1965) 234 Cal.App.2d 69, 75.)
The prosecution need not "rule out all possible or imaginary causes of the fire[]." (People v. Andrews, supra, 234 Cal.App.2d at p. 74.) There is "no requirement that the whole gamut of speculative possibility as to the cause of the fire[] be run, and then each, in turn, be ruled out." (Id. at p. 76.) "Were the rule otherwise it would, as a practical matter, in the absence of a plea of guilty, be necessary to strike arson from the list of prosecutable crimes. Incendiarism is rarely carried on in the presence of eyewitnesses." (People v. Andrews (1963) 222 Cal.App.2d 242, 244.)
To established that a fire was of incendiary origin for purposes of satisfying the corpus delicti rule, only slight corroborating facts are required, and circumstantial evidence may be relied upon. (Alvarez, supra, 27 Cal.4th at p. 1181; People v. Clagg, supra, 197 Cal.App.2d at p. 212.) While an expert opinion may establish the corpus delicti (People v. Powers-Monachello (2010) 189 Cal.App.4th 400, 412-413), it is not required and the corpus delicti may also be established by circumstantial evidence such as the defendant's proximity to the fire, the time and method of the fire, and other "circumstances snapping the long arm of coincidence." (People v. Andrews, supra, 222 Cal.App.2d at p. 245.)
C. Analysis
Defendant asserts that since "the People could not establish the corpus delicti of arson - that the fire was of incendiary origin - the People could not use [defendant's] statements to prove this was arson, nor did [defendant's] statements establish the corpus delicti of arson."
We first note the jury was correctly instructed with CALCRIM No. 359 about the corpus delicti rule.
"The defendant may not be convicted of any crime based on his out-of-court statements alone. You may rely on the defendant's out-of-court statements to convict him only if you first conclude that other evidence shows that the charged crime or a lesser included offense was committed.
"That other evidence may be slight and need only be enough to support a reasonable inference that a crime was committed.
"This requirement of other evidence does not apply to proving the identity of the person who committed the crime. If other evidence shows that the charged crime or a lesser included offense was committed, the identity of the person who committed it may be proved by the defendant's statements alone.
"You may not convict the defendant unless the People have proved his guilt beyond a reasonable doubt."
We have already found the fire investigator's testimony was properly admitted. While the fire inspector did not testify to the precise cause of the fire or pinpoint the specific point of origin, that omission does not mean the People failed to meet the burden of establishing the corpus delicti. The record shows the prosecution established the requisite "slight or minimal evidence" to establish the corpus delicti of arson, that an intentional fire was set in room No. 108. The fire inspector testified that based upon his examination of the small room, the area of origin was the bed. He ruled out numerous possible accidental causes such as electrical sockets and/or appliances, and he explained that cigarette filters were not found at the scene and would have survived the fire if a burning cigarette had been the source of the blaze.
The video showed without contradiction that defendant and Villegas entered room No. 108 together. Villegas was never again seen alive. Defendant walked out of the door and briefly interacted with Lee, but then went back into the room and closed the door. Lee repeatedly knocked and kicked on the door and window to room No. 108. Lee never gained entry, and the video showed that she never opened the window or pushed anything inside the room that could have ignited a fire.
The video also showed that when defendant later opened the door to room No. 108, the fire had already started inside the room because of the heavy amount of smoke that billowed out of the door. Villegas's body was found in the bathroom. She had three separate blows on the top of her head. The pathologist testified, without contradiction, that Villegas could have been left unconscious from the three blows to her head, she was still alive when the fire started, and she died from smoke inhalation.
To the extent that any of defendant's conduct on the videotape constituted nonverbal assertive conduct and thus a statement, we only consider those portions of the videotape that involve nonassertive conduct to determine whether the evidence established the corpus delicti of arson. (See, e.g., Evid. Code, §§ 225, 1200; In re Dorinda A. (1992) 10 Cal.App.4th 1657, 1663; People v. Clark (1970) 6 Cal.App.3d 658, 668.)
We reject defendant's argument that the People failed to prove the corpus delicti because the fire investigator did not determine the specific point of origin of the fire, failed to rule out all possible accidental causes such as a fire started by a cigarette without a filter, and was prohibited from testifying to his opinion about the cause of the fire. As already explained, " 'the prosecution need not eliminate all inferences tending to show a noncriminal cause of [the harm]. Rather, the foundation may be laid by the introduction of evidence which creates a reasonable inference that the [harm] could have been caused by a criminal agency [citation], even in the presence of an equally plausible noncriminal explanation of the event.' [Citation.]" (People v. Ochoa, supra, 19 Cal.4th at p. 405.) In People v. Andrews, supra, 234 Cal.App.2d 69, the defendant argued that while there was evidence to eliminate some accidental causes for the fires, the People failed to prove the corpus delicti of multiple arson charges by failing to negate "all possible ways in which the fires could have been started other than by incendiary means," because "there could have been other possible causes of the fires, such as mice igniting matches, a carelessly dropped cigarette, sparks from automobiles (exhaust), etc." (Id. at p. 74.) Andrews held that while the People were required to produce evidence "that the fires were of incendiary origin" (id. at p. 76), "[t]he proposition that it was incumbent on the prosecution to rule out all possible or imaginary causes of the fires cannot be upheld." (Id. at p. 74.) Andrews held that reasonable inferences based on circumstantial evidence were adequate to prove that the human cause of the fire was intentional and not accidental. (Id. at pp. 74-76.)
In this case, as in Andrews, the People's evidence may not have eliminated all possible inferences tending to show a noncriminal cause of the fire, but the People still satisfied its minimal burden by introducing evidence from which a reasonable inference could be drawn that the fire was intentionally set and not accidental.
III. Substantial Evidence of Arson
We turn now to defendant's contention that there is insufficient evidence as a matter of law to support his conviction in count 2 for arson. Defendant further argues that since there is insufficient evidence for count 2, there is also insufficient evidence to support his conviction in count 1 for felony murder based on arson, and the jury's true finding on the arson-murder special circumstance.
A. Substantial Evidence
"In addressing a challenge to the sufficiency of the evidence supporting a conviction, the reviewing court must examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence - evidence that is reasonable, credible and of solid value - such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] The appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citations.]" (People v. Kraft (2000) 23 Cal.4th 978, 1053.)
" 'Conflicts and even testimony [that] is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence. [Citation.]' [Citation.] A reversal for insufficient evidence 'is unwarranted unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support" ' the jury's verdict. [Citation.]" (People v. Zamudio (2008) 43 Cal.4th 327, 357.)
"The same standard applies when the conviction rests primarily on circumstantial evidence. [Citation.] Although it is the jury's duty to acquit a defendant if it finds the circumstantial evidence susceptible of two reasonable interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court that must be convinced of the defendant's guilt beyond a reasonable doubt. [Citation.]" (People v. Kraft, supra, 23 Cal.4th at pp. 1053-1054.) We "must accept logical inferences that the jury might have drawn from the circumstantial evidence. [Citation.]" (People v. Maury (2003) 30 Cal.4th 342, 396.)
"Where the circumstances reasonably justify the trier of fact's findings, a reviewing court's conclusion the circumstances might also reasonably be reconciled with a contrary finding does not warrant the judgment's reversal. [Citation.]" (People v. Zamudio, supra, 43 Cal.4th at p. 358.)
B. Section 451
As set forth above, "[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.)
"Arson's malice requirement ensures that the act is 'done with a design to do an intentional wrongful act ... without any legal justification, excuse or claim of right.' [Citation.] Its 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; ' "in short, a fire of incendiary origin." ' [Citations.] 'Because the offensive or dangerous character of the defendant's conduct, by virtue of its nature, contemplates such injury, a general criminal intent to commit the act suffices to establish the requisite mental state.' [Citation.] Thus, there must be a general intent to willfully commit the act of setting on fire under such circumstances that the direct, natural, and highly probable consequences would be the burning of the relevant structure or property. [Citations.]" (People v. Atkins (2001) 25 Cal.4th 76, 88-89; In re V.V. (2011) 51 Cal.4th 1020, 1029.)
The lack of direct or eyewitness evidence to establish a defendant's guilt does not render a jury's guilty verdict for arson deficient. (People v. Maler (1972) 23 Cal.App.3d 973, 982-983.) Arson is generally "committed in stealth, without warning and often under the cloak of darkness," so that "perpetrators of such clandestine acts frequently escape detection by human eye." (People v. Andrews, supra, 234 Cal.App.2d at p. 75.) " 'The very nature of the crime of arson ordinarily dictates that the evidence will be circumstantial. [Citation.]' [Citation.] Consequently, the lack of an eyewitness placing defendant at the scene or other direct evidence to establish his guilt does not render the jury's verdict of guilty of arson constitutionally deficient. [Citation.]" (People v. Solis (2001) 90 Cal.App.4th 1002, 1010.) "Circumstantial evidence may be relied upon to establish culpability for arson. [Citation.]" (People v. Belton (1980) 105 Cal.App.3d 376, 379-380 (Belton).)
"[R]evenge and vindictiveness are principal motives for arson [citation]." (People v. Atkins, supra, 25 Cal.4th at p. 92.) "A typical arson is almost never the product of pyromania [citations]. Instead, 'it often is an angry impulsive act, requiring no tools other than a match or lighter, and possibly a container of gasoline.' [Citation.] 'Arson is one of the easiest crimes to commit on the spur of the moment ... it takes only seconds to light a match to a pile of clothes or a curtain.' [Citation.]" (Id. at pp. 91-92.)
C. Analysis
Defendant asserts his arson conviction must be reversed because there is insufficient evidence he intentionally and deliberately set the fire since the cause was undetermined, an accident could not be ruled out, and there was no evidence the fire was of an incendiary origin. As explained in issues I and II, ante, the People established the corpus delicti of arson and defendant's pretrial statements were admissible, the court did not exclude fire investigator's testimony about his investigation and the fire's area of origin, the expert's testimony about the investigation and various hypotheticals was properly admitted, and both the fire investigator's testimony and defendant's pretrial statements may be considered to determine whether his arson conviction is supported by substantial evidence.
At trial, the People relied on the felony-murder theory of arson arguing defendant hit Villegas in the head with the gun, leaving her unconscious, and starting the fire with the specific intent to kill her because he knew she could identify him.
In the defense closing argument, counsel argued the evidence presented three reasonable possibilities about what happened inside room No. 108, and defendant relies on these same theories on appeal: (1) Lee had a motive to set the fire because she was mad at defendant and repeatedly kicked the door to room No. 108; and Lee started the fire by throwing a lit cigarette through room No. 108's window; the window was only a few feet from the bed, and it ignited the bed while defendant was asleep; (2) the fire accidentally started if defendant was smoking a marijuana cigarette and fell asleep, since the unfiltered cigarette would have been consumed by the flames. Defendant admitted he used marijuana, and the fire investigator did not know about the lighter found in the room; or (3) Villegas started the fire because there was more physical evidence that tied her to that room instead of defendant; the lighter and the package of cigarettes were found near her body; she ignited the bed while defendant was asleep because she was upset with him; Villegas likely opened room No. 108's door when the fire started even though she was not shown on the security video; she had a potentially toxic level of methamphetamine in her system that could have made her disoriented; she was too confused to run out and instead went back into the bathroom, fell down, hit her head on one of the surfaces, and was left unconscious while the fire consumed the room. Counsel discounted the argument that defendant used the gun to hit Villegas on the head, since defendant would have likely put the gun in his pocket, the gun was found in Villegas's purse, and there were no unique marks to connect the gun to the head injuries.
There is strong and, indeed, overwhelming evidence, albeit of a circumstantial nature, that defendant intentionally set the fire inside room No. 108. The small room measured approximately 10.5 feet by 16.5 feet. There was one door and one window that were under constant video surveillance for the relevant time. There were only two people inside the room when the fire started - defendant and Villegas. Defendant was the only person who emerged from the room after the fire started and he initially acted without any sense of urgency.
Defendant repeatedly claimed in his pretrial statement that he did not know Villegas and had no idea she was in the room. The motel manager refuted this assertion, and testified defendant told him someone was going to rent a room for him. The manager identified Villegas as the woman who later arrived at the motel and said she was getting a room for J-Rock, using defendant's nickname. While the manager said Villegas used another name, he positively identified Villegas from her photograph. The manager gave her the cardkey to room No. 108, and she paid for a second night. A few hours before the fire, defendant arrived at the motel, paid for yet another night for that same room, and the manager gave him a cardkey to room No. 108.
Defendant asserts his actions as seen on the motel's security video are insufficient to support his conviction, even considering his conduct after he opened the door and the heavy smoke came out of room No. 108. To the contrary, the most compelling evidence against defendant was the security video, which we have extensively addressed in the factual statement. It shows defendant and Villegas knew each other, they talked, they walked into room No. 108 together, they were in the room when the fire started, and Villegas never left the room.
The video also showed that after Villegas went into room No. 108, and prior to the fire, defendant came out of the room and talked with Lee in the driveway. Defendant and Lee clearly knew each other and had what appeared to be a heated conversation. Defendant went into room No. 108, closed the door, and did not emerge again until after the fire started. Lee went in and out of room No. 109, stood in front of both rooms, knocked and kicked on room No. 108's door, knocked on the window, and tried to look into the window and open it. While defendant argued at trial, and on appeal, that Lee may have started the fire by throwing something into room No. 108, the video showed Lee never went inside the room; she never opened the room's door or window; and she did not appear to push or throw anything through the window.
Neither Lee nor anyone else was standing outside room No. 108 when defendant ultimately opened the door, smoke poured out of the room, and he walked onto the doorstep. Defendant calmly stood in front of the open door with his hands in his pockets as smoke continued to billow out. He did not knock on the doors of any adjacent rooms, use a phone to call for help, or appear to shout or yell for assistance. Instead, he just stood there as the smoke poured out of the room and surrounded him. At some point, defendant turned, looked inside, went back into the room, and emerged with a burning blanket, and then went back and dragged out a burning sheet. He shook both items and stamped out the flames on the driveway pavement. Defendant did not appear to act with any urgency, and he still did not go to any of the motel rooms to ask for help or appear to call out in any way.
Defendant made another attempt to go into the room but was apparently pushed back by the flames and smoke. At that point, he left room No. 108 and disappeared from the video, just as other people arrived at burning room as flames shot out of the doorway. After defendant left, Lee and the other occupants of room No. 109 ran out of their room, and Lee also disappeared from the video. Another security camera showed defendant and Lee driving away from the motel. Defendant did not talk to the police or firefighters or notify them that another person was in the room.
The fire investigator determined the fire's area of origin was the bed. The bed had been pulled away from the wall, the mattress had been moved so that it was at an angle on top of the box spring, and the gun and Villegas's purse were found at the base of the box spring near the wall. It was entirely reasonable for the jury to conclude that defendant suddenly went back into the room in an effort to retrieve the gun, that he moved the mattress and box spring and dragged the burning sheet and blanket outside to look for the weapon. The gun and perhaps the purse could have fallen off the burning bed when he did so.
Defendant argues the People improperly relied on a speculative argument that he set the fire, based on the allegedly false premise that Villegas was rendered unconscious from the blows to her head before the fire started. Defendant asserts the pathologist could not determine "with any degree of reasonable medical certainty" that Villegas was unconscious when the fire started, and it was possible she could have started the fire. The evidence belies these assertions. Villegas's body was found in the small bathroom in the back of room No. 108. There was no evidence that the fire started in the bathroom, or that it even burned there. Villegas's clothing had not been burned or singed, and there was no evidence she had been dragged in or out of the bathroom. Villegas had suffered three separate blows to the back of her head that were inflicted by a blunt object. The pathologist testified that she was alive when she was assaulted based on the bleeding from the back of her head, and opined it was possible these blows left her unconscious. The pathologist further testified that while there were no specific patterns on the back of her head, it was "possible" the three blows were inflicted with the butt of the gun found in the room, since the butt was a blunt object with a linear shape.
Detective Buck testified the dimensions of the gun's handle were consistent with the size of each laceration on the back of Villegas's head, and he did not find anything else in the bathroom that looked consistent with having inflicted those injuries. Again, defendant and Villegas were the only people in that room, and the circumstantial evidence points to defendant as the perpetrator of both the assault and the fire.
Defendant asserts the potentially toxic level of methamphetamine in Villegas's system was a possible cause of death. The defense expert testified Villegas could have been left unconscious because of her methamphetamine use, but the pathologist testified she was still alive when she was hit on the head and also when the fire started. He testified that she died from smoke inhalation based on the soot in her respiratory system, and further testified, without contradiction, there would not have been any soot in her respiratory system if she was dead before the fire started.
Defendant makes much of the fire inspector's failure to determine the fire's specific point of origin, and the court's agreement - pursuant to the stipulation of the parties - to limit his testimony so that he could not testify to an opinion as to whether the cause was incendiary. As explained in issue I, ante, the fire inspector was properly allowed to testify about his inspection of the room and the investigation of the burned contents, and the jury was properly instructed on the consideration of his testimony. He determined the fire's area of origin was the bed, a flashover event occurred, and the flashover would have been exacerbated when the door was opened because of the additional oxygen. The material covering the mattress and box spring was almost completely consumed by fire, and they were burned down to the springs. The other items in the sleeping area - the tires and rims, the dresser, and the speaker box - showed the most fire damage on the sides that faced the bed. The fire investigator ruled out an accidental cause from the electrical appliances and outlets. He found no evidence of cigarette butts in the sleeping area and explained that a cigarette butt would not have been completely destroyed, even in a flashover event.
Defendant complains the fire investigator's testimony was unreliable because he did not know about the Bic lighter, the pack of cigarettes, and the cigarette butt found in the bathroom. Defendant further argues that evidence leads to the reasonable inference the fire was accidental, and was started by a smoldering, unfiltered cigarette that he left on the bed when he fell asleep. Defendant asserts this theory is consistent with the fire investigator's failure to rule out an accidental fire; a marijuana unfiltered cigarette would have been consumed by the fire; and defendant said in his pretrial statement that he was "smoking marijuana."
Defendant's arguments are refuted by the evidence. The fire investigator acknowledged that in contrast to a filtered cigarette, an unfiltered or marijuana cigarette would have been completely consumed by the fire. He did not know a lighter and a cigarette butt had been found anywhere in room No. 108. However, the evidence is undisputed that the package of filtered cigarettes and the only cigarette butt were found inside a plastic bag that was recovered from the top of the toilet in the bathroom, and there was no evidence that the fire started or even burned in the bathroom.
Moreover, the fire investigator's admission that he did not know about the cigarette butt and the lighter is far outweighed by the importance of defendant's own statements during his pretrial interview with Detective Buck. In contrast to defendant's appellate arguments, there was no evidence defendant was smoking marijuana or anything else in the room before the fire started, and he repeatedly denied engaging in any activities that could have accidentally started the fire.
During the pretrial interview, Detective Buck asked defendant about his drug use. Defendant said he used cocaine and smoked marijuana "every now and then," and the following exchange ensued:
"Buck: On Saturday, before you went to bed, before all this happened, did you use?
"[Defendant]: No sir.
"Buck: No weed?
"[Defendant]: Yea I smoked some weed.
"Buck: How much did you smoke?
"[Defendant]: Um bout normal?
"Buck: Normal? I mean.
"[Defendant]: Normal like 4-5 blunts.
"Buck: 4-5 blunts? That's normal for you?
"[Defendant]: Not yeah not like back to back to back like.
"Buck: Throughout the night?
"[Defendant]: Through the day." (Italics added, capitalization omitted.)
Defendant further said that he did not smoke in the room, and he "didn't even have a lighter." (Capitalization omitted.) Defendant claimed he "passed out" and fell asleep in room No. 108 while waiting for someone and had no idea how the fire started. Defendant's own statements thus undermine any claim that he used a lighter or smoked a marijuana cigarette when he was in room No. 108 before the fire started.
Defendant argues the People failed to prove beyond a reasonable doubt that he was the perpetrator. Defendant asserts "it is equally reasonable, and more consistent with the evidence," to infer Villegas started the fire in retaliation for being hit in the head by defendant, that she used the Bic lighter to ignite the bedding, that she retreated to the bathroom with the lighter and became unconscious either because of her methamphetamine use or from smoke inhalation. Defendant asserts this theory is more reasonable since it is consistent with the discovery of the Bic lighter near Villegas's body and his "uncontradicted statements" during the pretrial interview "that he was sleeping on the bed when the fire started." Defendant further argues the motel's security video "confirmed much" of what he said during the pretrial interview - that he ran out of the door and began asking for help.
As set forth above, defendant's statements during the pretrial interview, particularly his repeated claim that he did not know Villegas or how she got into his room, are inculpatory and are completely undermined by the contrary visual evidence from the security video and by the motel manager's testimony that Villegas said she was renting a room for defendant, and defendant later arrived and was given the key to room No. 108. The video clearly showed Lee never got into the room or warned him about the fire.
Finally, defendant argues that even if his own pretrial statements are considered, they are still insufficient to support his arson conviction:
"There could be a variety of reasons why [defendant] would not want to implicate someone else in this crime. However, his failure to implicate someone else does not implicate him. In other words, the fact that [defendant] did not tell police that someone else set the fire does not prove he set the fire. Simply pointing to an absence of evidence is not proof of absence. This reasoning ... is known as an ... argument from ignorance, in which the prosecution used an absence of evidence for an asserted premise as proof of the opposite premise; i.e., [defendant] must have started the fire because he didn't say, and we couldn't prove, anyone else did it. This is not proof beyond a reasonable doubt."
In making these arguments, defendant acknowledges this court cannot reweigh the evidence, but still asserts there was "at most" a "coin flip" or "50 percent probability" that he started the fire and it was of an incendiary origin, which is insufficient to support a conviction.
However, "[w]here, as here, the jury's findings rest to some degree upon circumstantial evidence, we must decide whether the circumstances reasonably justify those findings, 'but our opinion that the circumstances also might reasonably be reconciled with a contrary finding' does not render the evidence insubstantial. [Citation.]" (People v. Earp (1999) 20 Cal.4th 826, 887-888.) Defendant's appellate assertions are "arguments to be made to a jury, not to an appellate court. Defendant in effect requests us to reweigh and reinterpret the evidence in a manner consistent with innocence of the crime.... But such a determination is the function of the trier of fact; at this stage the test is not whether the evidence may be reconciled with innocence, but whether there is substantial evidence in the record on appeal to warrant the inference of guilt drawn by the trier below. [Citation.]" (People v. Saterfield (1967) 65 Cal.2d 752, 759; People v. Gaulden (1974) 36 Cal.App.3d 942, 962-963.) " 'If such substantial evidence [is] found, it is of no consequence that the [trier of fact] believing other evidence, or drawing other reasonable inferences, might have reached a contrary conclusion.' [Citation.]" (People v. Ortiz (2012) 208 Cal.App.4th 1354, 1363.)
We find defendant's conviction for arson is supported by substantial evidence. As a result, we similarly reject his related arguments that his conviction for felony murder based on arson and the jury's true finding on the arson-murder special circumstance must be reversed.
IV. Specific Intent to Kill to Support the Arson-murder Special Circumstance
As a separate matter, defendant contends the arson-murder special circumstance must be reversed for a different reason - even if he intentionally set an incendiary fire, there is still insufficient evidence that he had the specific intent to kill Villegas when he did so.
A. Arson-murder Special Circumstance
The arson-murder special circumstance applies when "[t]he murder was committed while the defendant was engaged in, or was an accomplice in, the commission of, attempted commission of, or the immediate flight after committing, or attempting to commit" arson of an inhabited structure, in violation of section 451, subdivision (b). (§ 190.2, subd. (a)(17)(H).)
There was previously an "independent felonious intent" requirement for the felony-murder special circumstance based on arson, that required the murder to occur during the commission of the felony, not when the felony occurred during the commission of a murder. (People v. Mendoza (2000) 24 Cal.4th 130, 183.) "Thus, to prove a felony-murder special-circumstance allegation, the prosecution must show that the defendant had an independent purpose for the commission of the felony, that is, the commission of the felony was not merely incidental to an intended murder. [Citation.]" (Id. at p. 183; People v. Odom (2016) 244 Cal.App.4th 237, 253-254.) "In other words, if the felony is merely incidental to achieving the murder - the murder being the defendant's primary purpose - then the special circumstance is not present, but if the defendant has an 'independent felonious purpose' (such as burglary or robbery) and commits the murder to advance that independent purpose, the special circumstance is present. [Citations.]" (People v. Navarette (2003) 30 Cal.4th 458, 505.)
As of 2000, however, section 190.2, subdivision (a)(17)(M) was enacted to eliminate the "independent felonious purpose" rule for both the arson and kidnapping special circumstance, and states:
"To prove the special circumstances of kidnapping in subparagraph (B), or arson in subparagraph (H), if there is specific intent to kill, it is only required that there be proof of the elements of those felonies. If so established, those two special circumstances are proven even if the felony
of kidnapping or arson is committed primarily or solely for the purpose of facilitating the murder." (Italics added.)
After the enactment of subparagraph (M), even if a kidnapping or arson is committed primarily for the purpose of facilitating a murder, the special circumstance based on kidnapping or arson may be found true if there is specific intent to kill. However, the independent felonious purpose rule still applies for other felonies not excluded by subparagraph (M). (People v. Odom, supra, 244 Cal.App.4th at p. 254.)
"The rules governing sufficiency of the evidence are as applicable to challenges aimed at special circumstance findings as they are to claims of alleged deficiencies in proof of any other element of the prosecution's case. [Citation.]" (People v. Morris (1988) 46 Cal.3d 1, 19.)
B. Analysis
Defendant's substantial evidence challenge to the specific intent element of the arson-murder special circumstance is based on Belton, supra, 105 Cal.App.3d 376, where the defendant was convicted of attempted murder and arson based on two fires that he started in the morning at an apartment building owned and lived in by his former wife. One fire was set under an exterior porch, and the other fire was ignited on grass outside her bedroom window and spread to the interior of her bedroom wall. The evidence showed the fire had an incendiary origin, the defendant was lying on the grass outside the building when it started, and he suffered burns on his hands and face. (Id. at pp. 378-379.)
Belton affirmed the defendant's conviction for arson but reversed his conviction for attempted murder and found insufficient evidence of his specific intent to kill. Belton rejected the prosecutor's trial argument that the defendant acted with intent to kill simply because he hit his former wife during an argument that occurred three months before the fires. (Belton, supra, 105 Cal.App.3d at p. 380.)
While Belton did not involve the arson-murder special circumstance, the prosecution must similarly prove that a defendant acted with the specific intent to kill for a conviction of attempted murder. (People v. Smith (2005) 37 Cal.4th 733, 739.)
"We think any deduction of murderous intent from a quarrel three months earlier is entirely speculative and conjectural. On the night of the fires the parties spent the day drinking together in reasonable tranquility. No threats or talk of arson had been advanced, then or earlier. Nothing in the evidence supports an inference that in starting these fires defendant wanted to murder anyone. It would be equally plausible to speculate that he started the fires to impoverish his ex-wife by destroying her property, or, as suggested by some of the evidence, that he wanted the apartment building modernized and rebuilt at the insurance company's expense (which in fact happened)." (Ibid.)
Belton held that "proof of arson of an inhabited building does not itself provide the basis for an inference of attempted murder. More is needed to establish murderous intent, which cannot be presumed solely from the commission of some other crime, but which must be affirmatively proved by direct evidence or by solid inference. [Citations.]" (Belton, supra, 105 Cal.App.3d at p. 381.)
"At bench, there is a dearth of evidence to establish that defendant set the fires with an intent to murder Mrs. Belton. There were neither threats of personal injury, vows of vengeance, conversations about contemplated personal violence, or earlier attempts at murder. As noted above, specific intent to murder cannot be presumed merely from the defendant's setting fire to an inhabited building. Because the record discloses no proof of defendant's specific intent to murder and because that intent cannot reasonably be inferred from the evidence, defendant's conviction for attempted murder cannot stand." (Ibid.)
Defendant argues that as in Belton, there is insufficient evidence of his specific intent to kill Villegas because People failed to present evidence that defendant and Villegas had any type of relationship, the nature of that relationship, or that they argued or there was a struggle before the fire, to raise any reasonable inference of a motive. Defendant cites Detective Buck's testimony that he was unable to find anyone at the motel who could connect defendant with Villegas, and that a search warrant for their respective cell phones showed no communications between them. In his pretrial statement, defendant repeatedly insisted he did not know Villegas either by her name or her photograph. Defendant also insisted no one else was in room No. 108 when he fell asleep, and he had no idea how or why Villegas was in his room.
In contrast to Belton, there is substantial evidence that defendant had the specific intent to kill Villegas when he ignited the fire in room No. 108. First, defendant's repeated claims that he did not know or have any relationship with Villegas were completely undermined by the security video, as explained above. Defendant's claim was also refuted by the motel manager, who testified defendant told him that someone was going to rent a room for him, identified Villegas as the person who arrived at the motel and said she was renting the room for defendant and was assigned room No. 108, and defendant arrived a few hours before the fire and paid for another night for that room. Indeed, Nicky Lavan, the defense witness who was in room No. 109 with Lee that night, testified that she knew defendant was staying in room No. 108 with another woman.
More importantly, the entirety of the circumstantial evidence shows that defendant calmly stood outside the open door to the small motel room as heavy smoke poured out while Villegas was lying unconscious in the bathroom, and he never made any attempts to go back and drag her out. Instead, the circumstantial evidence supports the inference that he started the fire with the specific intent to kill her. Based on the pathologist's testimony, Villegas was still alive and unconscious after she was hit in the head. Even if she became unconscious because of her methamphetamine levels, the pathologist testified she was still alive when she collapsed because of the bleeding from the back of her head. There was no evidence that she had been moved or dragged into the very small bathroom, which did not even have a door.
The video evidence thus established defendant and Villegas were the only people in that small motel room that measured 10.5 feet by 16.5 feet, and she was still alive when she was hit in the head and the fire started. Defendant's appellate claim that the fire could have accidentally started because he was smoking marijuana is refuted by his own pretrial statements, when he said he was not smoking in the room, he did not have a lighter, and he used marijuana during the day and not at night.
The reasonable inference from this evidence is that defendant hit Villegas in the head with a blunt object, likely the gun, and had the specific intent to kill Villegas when he ignited the fire somewhere on the mattress while she was lying unconscious in the bathroom. The evidence also supports the reasonable inference that defendant only went back inside the room as the smoke billowed out when he realized he left the gun inside - which may have been knocked to the floor as he flipped the burning mattress and the sheets to look for it.
As for his arguments based on Belton, defendant concedes that Stengel, the motel resident who was staying in a room across the parking lot from room No. 108, testified he heard defendant's voice arguing with a female, and the voices came from behind the closed door of the room that later burned down. Defendant argues Stengel's testimony was inconsistent and unreliable, and he did not hear defendant make any threats of violence, revenge, or death, or that he was going to set the room on fire.
While some of the details of Stengel's testimony were inconsistent with his prior statements, he repeatedly said that he heard an argument and recognized defendant's voice, he heard a boom, he walked out of his own room, and saw the fire from room No. 108. The fire investigator testified that a large enough flashover "can make a 'whoom' noise," which could explain the sound Stengel heard before he saw the fire.
V. The Jury's Finding on the Arson-murder Special Circumstance
In issue IV, ante, we addressed defendant's arguments that there was insufficient evidence of his specific intent to kill to support the arson-murder special circumstance. The People addressed defendant's substantial evidence argument about his specific intent to kill, and made the following argument in its responsive brief:
"[T]he jury could have reasonably concluded that [defendant] knocked Villegas unconscious by bashing her in the head in the bathroom, and then decided to conceal his crime by setting fire to the room. The jury also
could have concluded that [defendant] knew Villegas was still alive when he set the fire, and that he intended to kill her from either the flames or the smoke so that her injuries could not be traced back to him. Alternatively, the jury could have concluded that [defendant] attempted to kill Villegas when he struck her repeatedly with the gun, and, thinking that she was already dead, set the fire to destroy the evidence that she had been severely beaten. Either way, there was sufficient evidence to support the special circumstance." (Italics added, fn. omitted.)
In response to this passage in the People's brief, defendant filed a supplemental brief and argued the arson-murder special circumstance must be reversed because it is reasonably likely the jury relied on an illegal theory to find it true. Defendant correctly notes that he could not have had the specific intent to kill someone who was already dead. Defendant asserts the jury could have reached the same conclusion as stated in the People's brief: that he killed Villegas, or believed he killed her, and then started the fire, so that he lacked the specific intent to kill, and this court must reverse the true finding on the special circumstance.
Defendant's argument is based on the well-recognized holding that "[w]hen one of the theories presented to a jury is legally inadequate, such as a theory which ' "fails to come within the statutory definition of the crime" ' [citations], the jury cannot reasonably be expected to divine its legal inadequacy. The jury may render a verdict on the basis of the legally invalid theory without realizing that, as a matter of law, its factual findings are insufficient to constitute the charged crime. In such circumstances, reversal generally is required unless 'it is possible to determine from other portions of the verdict that the jury necessarily found the defendant guilty on a proper theory.' [Citation.]" (People v. Perez (2005) 35 Cal.4th 1219, 1233.)
As we will explain, however, it is not reasonably likely the jury relied on a legally incorrect theory because there was no evidence that defendant killed Villegas or believed he did so before he started the fire, the prosecutor never raised these arguments to the jury, and it is beyond speculative to conclude the jury relied on such a theory to find the special circumstance true.
A. The Trial Evidence
There was no evidence introduced at trial to show Villegas was dead before defendant started the fire. The pathologist testified without contradiction that she was alive when she was hit in the back of the head based on the nature of the wound and the bleeding that resulted. The pathologist further testified Villegas was alive when the fire started because of the soot in her nostrils and evidence of smoke inhalation in her respiratory system. The pathologist explained that if Villegas was already dead when the fire started, she would not have been able to inhale the smoke that he found in her respiratory system during the autopsy. While the defense expert testified Villegas may have become unconscious because of the level of methamphetamine in her system, the pathologist explained she could have survived the fire if she had been conscious and able to get out of the room. Thus, there was no evidence before the jury that Villegas was already dead when the fire was started.
B. The Prosecutor's Closing Argument
In addition to the undisputed evidence on this issue, the prosecutor never argued defendant had already killed Villegas and she was dead before he started the fire; or that he set the fire because he believed she was already dead. Instead, the prosecutor argued defendant started the fire because he knew she was still alive after he hit her in the head.
In closing argument, the prosecutor's theory was that defendant knocked Villegas unconscious with the butt of the handgun, he "left her body on the bathroom floor, and set the bed on fire and stood outside the door of the room while the fire grew and while [she] was breathing in the smoke, breathing in the soot and then died from it." (Italics added.)
The prosecutor argued Villegas was "bashed" in the head when she was in the bathroom, and defendant was the only other person in the small motel room. The pathologist said the blows could have left her unconscious, and that explained "why she lay crumpled on the floor through a fire and didn't get up to save herself," even though she was alive when the fire started. As a result, she died from acute soot and smoke inhalation. The prosecutor suggested defendant used the lighter to ignite the bedding and started the fire to burn down the room and kill Villegas.
"Fires conceal crimes. The defendant, in an upset state of mind, bashed [Villegas] on the back of the head and now she was a problem. She can ID him. And a fire solves his problem. [¶] He let the fire grow. He stood with his back to it, not calling anyone for help .... [¶] The only excitement he shows is trying to grab at the area where the gun is." (Italics added.)
The prosecutor explained the jury had to find that defendant "wanted" to kill Villegas to find the special circumstance true and find defendant "intended that she be killed. [F]or this special circumstance, for you to find this true, you have to find that he intended for her to be killed."
In support of the special circumstance, the prosecutor relied on evidence to support the theory that defendant argued with Villegas, he was angry and upset, and he bashed Villegas on the back of her head while she was in the bathroom. "She's unconscious on the bathroom floor, what's he to do? He can get rid of her. He knows she's there. And people think fires destroy everything, but we, after this trial, we know better." (Italics added.)
"You know what you're doing when you set the bed on fire and there's a woman just ten feet away unconscious, breathing on the bathroom floor. That's just common sense again. And what I mean is, you know what's going to happen if you don't try to get her out. And when you purposely don't try to get her out, you're intending for her to die. He intended for her to die in that fire so she wouldn't be a problem." (Italics added.)
As noted in issue III, ante, defense counsel raised three possible theories for the fire in closing argment: (1) Lee started the fire by throwing a lit cigarette through the window; (2) Villegas started the fire, became confused, and was trapped in the bathroom; or (3) defendant accidentally started the fire by falling asleep while smoking a marijuana cigarette on the bed.
In rebuttal argument, the prosecutor responded to defense counsel's assertion that Villegas could have started the fire and became trapped in the bathroom. The prosecutor argued that such a theory was not supported by the evidence because there were no burns on Villegas's body or clothing, and she could not have started the fire and died from smoke inhalation since the pathologist testified she was alive when she suffered the three separate blows on her head from a blunt object.
Based on the evidence and argument before the jury, we thus find there is no reasonable possibility that the jury found the arson-murder special circumstance true by relying on the erroneous legal theory that Villegas was already dead when he started the fire, or defendant believed she was dead.
VI. Prosecutorial Misconduct/Ineffective Assistance
Defendant contends the prosecutor misstated the People's burden of proof in closing argument by comparing it to whether defendant gave a reasonable explanation for his actions. Defendant concedes defense counsel did not object to the prosecutor's argument, and asserts counsel was prejudicially ineffective for failing to do so.
We review the well-settled standards for prosecutorial misconduct, and the portions of the prosecutor's argument relied upon by defendant.
A. Prosecutorial Misconduct
"A prosecutor's misconduct violates the Fourteenth Amendment to the federal Constitution when it 'infects the trial with such unfairness as to make the conviction a denial of due process.' [Citations.] In other words, the misconduct must be 'of sufficient significance to result in the denial of the defendant's right to a fair trial.' [Citation.] A prosecutor's misconduct 'that does not render a criminal trial fundamentally unfair' violates California law 'only if it involves " 'the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.' " ' [Citations.]" (People v. Harrison (2005) 35 Cal.4th 208, 242.)
"When attacking the prosecutor's remarks to the jury, the defendant must show that, '[i]n the context of the whole argument and the instructions' [citation], there was 'a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner. [Citations.] In conducting this inquiry, we "do not lightly infer" that the jury drew the most damaging rather than the least damaging meaning from the prosecutor's statements. [Citation.]' [Citations.]" (People v. Centeno (2014) 60 Cal.4th 659, 667 (Centeno).) The court must consider the challenged statements in the context of the argument as a whole to make its determination. (People v. Cowan (2017) 8 Cal.App.5th 1152, 1159.)
B. Failure to Object
"[I]t is improper for the prosecutor to misstate the law generally [citation], and particularly to attempt to absolve the prosecution from its prima facie obligation to overcome reasonable doubt on all elements [citation]." (People v. Marshall (1996) 13 Cal.4th 799, 831; Centeno, supra, 60 Cal.4th at pp. 665-667.)
"A prosecutor's misstatements of law are generally curable by an admonition from the court. [Citation.]" (Centeno, supra, 60 Cal.4th at p. 674.) "As a general rule, ' "[a] defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion, and on the same ground, the defendant objected to the action and also requested that the jury be admonished to disregard the perceived impropriety." ' [Citations.] The defendant's failure to object will be excused if an objection would have been futile or if an admonition would not have cured the harm caused by the misconduct. [Citation.]" (Ibid.)
Defendant concedes his attorney did not object to any portion of the prosecutor's closing argument. As a result, he has forfeited his direct challenge based on prosecutorial misconduct.
C. Ineffective Assistance
In the alternative, defendant asserts counsel was prejudicially ineffective for failing to do so. " 'A defendant whose counsel did not object at trial to alleged prosecutorial misconduct can argue on appeal that counsel's inaction violated the defendant's constitutional right to the effective assistance of counsel.' [Citation.] ... [Defendants] bear[] the burden of showing by a preponderance of the evidence that (1) counsel's performance was deficient because it fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel's deficiencies resulted in prejudice. [Citations.]" (Centeno, supra, 60 Cal.4th at p. 674, quoting Strickland v. Washington (1984) 466 U.S. 668, 688, 694.)
D. The Prosecutor's Closing Argument
In issue V, ante, we set forth the prosecutor's arguments in support of arson, felony murder, and the special circumstance. We now turn to the prosecutor's discussion of reasonable doubt, which is the basis for defendant's misconduct claim.
In her initial closing argument, the prosecutor went through the details of defendant's pretrial claims about how he discovered the room was on fire, argued the security video and the other evidence refuted his story, and then addressed reasonable doubt:
"There is not a reasonable doubt as to who started the fire. And ultimately, that's what we care about in a criminal case, reasonable doubt. [The court] told you, and you have to accept this, anything in life is possible or subject to imaginary doubt. You can imagine any kind of way that this fire started, but we only care about, in a criminal case, a reasonable explanation.
"There's no reasonable explanation for this fire. And if there's no reasonable explanation, you have no reasonable doubt as to how the fire started. Remember that. It's about reasonableness.
"There's not a reasonable explanation, but for this man had to get rid of a problem and he set a fire, watched it grow, and then took off and then lied about it, and it killed [Villegas]." (Italics added.)
Later in the initial closing argument, the prosecutor addressed the evidence in support of felony murder and arson-murder special circumstance. The prosecutor concluded her argument by again addressing reasonable doubt:
"Now, I want to tell you one more time, in a criminal case, we're only talking about reasonable doubt. You've probably heard maybe on TV or, you know, talking to your friends, you've probably heard phrases like 'beyond a shadow of a doubt,' 'without any possible doubt,' '100 percent certainty.' Those are not things we care about in a criminal case. The Judge told you, you have to accept as true everything in life is subject to imaginary doubt. So that's why we only care about what's reasonable. And that's where you get to use your collective common sense, your collective minds. Think about what's reasonable.
"If there's no reasonable explanation for this fire, other than this man set the fire to get rid of his problem, and [Villegas] died in that fire, there's no reasonable doubt. So when you're deliberating together ... keep that in mind. Say to yourselves ... [w]e care about what's reasonable. Not about what's imaginary or what's possible. We don't care about what's possible. If it's not reasonable, you have no reasonable doubt in the case." (Italics added.)
The prosecutor referred the jury to the court's instruction on reasonable doubt and added, "the evidence need not eliminate all possible doubt. There's no reasonable explanation."
In the course of the defense argument, defense counsel argued the People failed to meet their burden of proving the charges beyond a reasonable doubt, it was a very high burden, extensively addressed the definitions of the presumption of innocence and reasonable doubt in the jury instructions, and argued the jury had to find he was not guilty. Defense counsel argued the People were relying on assumptions and not evidence about what happened, there was no physical or direct evidence that defendant intentionally set the fire and cautioned the jury against relying on circumstantial evidence to reach unsupported conclusions.
In rebuttal, the prosecutor again reviewed the evidence and argued only defendant could have hit Villegas in the head and started the fire. While defense counsel suggested "possible" scenarios of what happened, "[w]e don't care about what's possible. We care about what's reasonable. That's why the Judge read you the reasonable doubt instruction more than one time. It's not reasonable that [Villegas] bashed herself in the head three times and lay on the bathroom floor. That's not reasonable. It's not reasonable, after watching the video of [Lee], to think that she managed to get a cigarette in there. It's not reasonable to think that this was an accidental fire based on the fact that there was nothing left that would have started the fire. No cigarette filter. Those survive.... [¶] None of those are reasonable. That means you have no reasonable doubt in this case."
E. Centeno and Cortez
Defendant argues that in the italicized excerpts quoted above, the prosecutor misstated the reasonable doubt standard by equating it to whether there was a reasonable explanation for what happened in the case, and that such argument erroneously diluted the People's burden of proof.
Defendant's arguments are based on Centeno, supra, 60 Cal.4th 659, where the California Supreme Court reversed the defendant's convictions after finding the prosecutor misstated the burden of proof in rebuttal argument. In that case, the defendant was convicted of multiple offenses for sexually assaulting a seven-year-old child, who gave inconsistent testimony and refused to answer many questions at trial. (Id. at pp. 662-664.) On appeal, the defendant argued the prosecutor committed prejudicial misconduct by misstating the burden of proof in rebuttal argument. The defendant conceded that his attorney failed to object and raised ineffective assistance as an alternative argument. (Id. at p. 674.)
Centeno held the prosecutor misstated the burden of proof in two separate instances in rebuttal argument.
1. Visual Display
Centeno held the prosecutor first misstated the burden of proof when she used a visual display to show the outline of the state of California, then put forth hypothetical testimony from hypothetical witnesses in a "criminal" trial, who purportedly described various cities and landmarks. The prosecutor argued there was no reasonable doubt that the hypothetical witnesses were describing California, based on the "incomplete information" in the diagram she had presented to the jury. (Centeno, supra, 60 Cal.4th at pp. 665-667.)
Centeno held the use of the visual image constituted misconduct and misstated the burden of proof. "The use of an iconic image like the shape of California or the Statue of Liberty, unrelated to the facts of the case, is a flawed way to demonstrate the process of proving guilt beyond a reasonable doubt. These types of images necessarily draw on the jurors' own knowledge rather than evidence presented at trial. They are immediately recognizable and irrefutable. Additionally, such demonstrations trivialize the deliberative process, essentially turning it into a game that encourages the jurors to guess or jump to a conclusion." (Centeno, supra, 60 Cal.4th at p. 669.) It was "misleading to analogize a jury's task to solving a picture puzzle depicting an actual and familiar object unrelated to the evidence." (Id. at p. 670.) It was also misleading because it did not accurately depict the state of the evidence, which was "far from definitive" and "involve[d] starkly conflicting evidence and required assessments of witness credibility." (Ibid.)
2. Whether the Prosecution's Theory was "Reasonable"
Centeno separately held the prosecutor misstated the burden of proof in another section of rebuttal argument when she "strongly implied that the People's burden was met if its theory was 'reasonable' in light of the facts supporting it." (Centeno, supra, 60 Cal.4th at p. 671.)
"The prosecutor told the jury that in reaching its decision it must reject impossible and unreasonable inferences, and only consider reasonable possibilities. She stated that 'your decision has to be in the middle. It has to be based on reason. It has to be a reasonable account. [Y]ou need to look at the entire picture, not one piece of evidence, not one witness ... to determine if the case has been proven beyond a reasonable doubt.'
"[The prosecutor] then asked the jury to consider the following: 'Is it reasonable to believe that a shy, scared child who can't even name the body parts made up an embarrassing, humiliating sexual abuse, came and testified to this in a room full of strangers or the defendant abused [the minor]. That is what is reasonable, that he abused her. [¶] Is it reasonable to believe that [the minor] is lying to set-up the defendant for no reason or is the defendant guilty?' " (Id. at pp. 671-672, italics added in original.)
The prosecutor continued that it was "not reasonable" to believe there was an innocent explanation for the defendant's sexual conduct toward the child. "Is it reasonable to believe that the defendant is being set-up in what is really a very unsophisticated conspiracy led by an officer who has never met the defendant or he['s] good for it? That is what is reasonable. He's good for it." (Centeno, supra, 60 Cal.4th at pp. 671-672, italics added in original.)
Centeno held that it was permissible for the prosecutor "to argue that the jury may reject impossible or unreasonable interpretations of the evidence and to so characterize a defense theory. [Citation.] It is permissible to urge that a jury may be convinced beyond a reasonable doubt even in the face of conflicting, incomplete, or partially inaccurate accounts. [Citation.] It is certainly proper to urge that the jury consider all the evidence before it. [Citations.]" (Centeno, supra, 60 Cal.4th at p. 672.)
However, Centeno held the prosecutor improperly argued about "what the jury could consider: reasonably possible interpretations to be drawn from the evidence." (Centeno, supra, 60 Cal.4th at p. 672.)
"While this is an acceptable explanation of the jury's starting point, it is only the beginning. Setting aside the incredible and unreasonable, the jury evaluates the evidence it deems worthy of consideration. It determines just what that evidence establishes and how much confidence it has in that determination. The standard of proof is a measure of the jury's level of confidence. It is not sufficient that the jury simply believe that a conclusion is reasonable. It must be convinced that all necessary facts have been proven beyond a reasonable doubt. [Citation.] The prosecutor, however, left the jury with the impression that so long as her interpretation of the evidence was reasonable, the People had met their burden. The failure of the prosecutor's reasoning is manifest." (Id. at p. 672, italics added.)
Centeno noted that it previously held in People v. Romero (2008) 44 Cal.4th 386, that it was appropriate for the prosecutor to argue that the jury must " ' "decide what is reasonable to believe versus unreasonable to believe" and to "accept the reasonable and reject the unreasonable." ' [Citation.]" (Centeno, supra, 60 Cal.4th at p. 672, quoting Romero, supra, 44 Cal.4th at p. 416.) In contrast to Romero, it was error for the prosecutor in Centeno "to suggest that a 'reasonable' account of the evidence satisfies the prosecutor's burden of proof." (Centeno, supra, at pp. 672-673.)
"Here, the prosecutor did not simply urge the jury to ' "accept the reasonable and reject the unreasonable" ' in evaluating the evidence before it. [Citation.] Rather, she confounded the concept of rejecting unreasonable inference, with the standard of proof beyond a reasonable doubt. She repeatedly suggested that the jury could find defendant guilty based on a 'reasonable' account of the evidence. These remarks clearly diluted the People's burden." (Id. at p. 673.)
3. Prejudice
Centeno held defense counsel was ineffective for failing to object to both the prosecutor's use of the diagram and the hypothetical, and also her argument about a reasonable interpretation of the evidence, because both "problems with the prosecutor's argument were not difficult to discern," and counsel required "no authority ... to conclude that the prosecutor's argument urging the jury to convict based on a reasonable account of the evidence misstated the burden of proof." (Centeno, supra, 60 Cal.4th at p. 675.)
Centeno held the defense counsel's failure to object was prejudicial because it was "reasonably likely" that the jury was misled by both the prosecutor's visual image in the diagram and accompanying hypotheticals, and her argument about a reasonable interpretation of the evidence, particularly since the errors occurred during rebuttal and prevented defense counsel from countering the argument. (Centeno, supra, 60 Cal.4th at pp. 674-676.)
"There was no reason for the jury to reject the prosecutor's hypothetical [with the diagram]. It did not directly contradict the trial court's instruction on proof beyond a reasonable doubt, but instead purported to illustrate that standard. The prosecutor introduced further confusion by suggesting that it was 'reasonable' to believe that defendant was guilty. Because there was no timely objection, the trial court did not admonish the jury to disregard the prosecutor's argument. Thereafter the court gave additional instructions focusing on lesser included offenses and explaining the verdict forms. It repeated, in that context, that any verdict of guilt required proof beyond a reasonable doubt. It did not, however, reinstruct on that concept. As a result, the prosecutor's argument was the last word on the subject. [Citations.]" (Id. at pp. 676-677, italics added.)
Centeno found the error was not harmless given the minor's inconsistent statements, the father's recantation, and lack of corroborating evidence. (Centeno, supra, 60 Cal.4th at p. 677.)
"The prosecution depended almost entirely on [the minor's] credibility, which was called into question in several respects. [The minor] did not voluntarily report the alleged touching. It came to light through an anonymous informant of unknown motive or veracity. [The minor's] initial statement to police was not introduced into evidence. In her forensic interview, although she claimed that defendant had lain on top of her four times, she provided very few corroborating details. At trial, she repeatedly and emphatically claimed no touching had occurred. After a series of leading questions from the prosecutor, she changed her testimony and affirmed that defendant had lain on top of her, but only twice. She refused to answer many of the prosecutor's questions and admitted that she found them confusing. She answered none of defense counsel's questions about the alleged touching on cross-examination. The trial court observed that 'this was an extraordinarily difficult examination of this witness, both with respect to direct and cross-examination.' Initially, [the minor's] father told deputies that he had seen defendant lying on top of [her]. At trial, however, he recanted his statement in material respects, testifying that defendant and the two children were reaching for a toy and that he was unalarmed by the conduct. Defendant also took the stand and denied that any inappropriate touching had occurred." (Ibid., fn. omitted.)
4. Cortez
In People v. Cortez (2016) 63 Cal.4th 101 (Cortez), the defendant was convicted of murder and attempted murder for shooting victims from a car. In rebuttal argument, the prosecutor said: " 'The court told you that beyond a reasonable doubt is not proof beyond all doubt or imaginary doubt. Basically, I submit to you what it means is you look at the evidence and you say, "I believe I know what happened, and my belief is not imaginary. It's based in the evidence in front of me." ' " Defense counsel objected and, before the court responded, the prosecutor added, " 'That's proof beyond a reasonable doubt.' " The court then overruled the objection. (Id. at p. 130.)
In Cortez, a majority of the California Supreme Court rejected the defendant's argument that the prosecutor diluted the burden of proof. Cortez held "the challenged remarks, viewed in isolation, were incomplete at best," (Cortez, supra, 63 Cal.4th at p. 131) and when the remarks were viewed in context, there was no reasonable likelihood the jury would misunderstand the burden of proof. The majority found it significant that defense counsel emphasized the People's burden of proof in closing argument, the jury was properly instructed on reasonable doubt prior to closing argument, and the court submitted the written instruction to the jury for deliberations. (Cortez, supra, 63 Cal.4th at pp. 131-133.) "As we have explained, '[w]e presume that jurors treat the court's instructions as a statement of the law by a judge, and the prosecutor's comments as words spoken by an advocate in an attempt to persuade.' [Citation.]" (Id. at p. 131.) In reaching these conclusions, the majority opinion did not address Centeno. (Cortez, at pp. 130-133.)
A concurring opinion was filed in Cortez, wherein Justice Werdegar (joined by Justices Liu and Cuellar) relied on Centeno and wrote that the prosecutor similarly misstated the burden of proof by saying that reasonable doubt meant that " '... you look at the evidence and you say, "I believe I know what happened, and my belief is not imaginary. It's based in the evidence in front of me." ... That's proof beyond a reasonable doubt.' " (Cortez, supra, 63 Cal.4th at p. 134 (conc. opn. of Werdegar, J.), italics added in original.) Justice Werdegar compared the prosecutor's argument in Cortez to the same language disapproved in Centeno about a reasonable account of evidence, because it "reversed the standard of proof beyond a reasonable doubt, telling the jury that their belief in guilt need only be nonimaginary, rather than that the evidence must exclude all reasonable doubts." (Cortez, at p. 134 (conc. opn. of Werdegar, J.).)
However, Justice Werdegar agreed with the majority's conclusion that any error was not prejudicial. (Cortez, supra, 63 Cal.4th at p. 136 (conc. opn. of Werdegar, J.).)
"The contextual factors the majority brings forward are, however, persuasive as to the lack of prejudice from this prosecutor's misstatement of the law. The prosecutor's isolated misstatement clearly was not so extensive and egregious as to render the trial fundamentally unfair, infringing on defendant's federal due process rights. The misstatement violated only California law against the use of deceptive methods in jury argument, making it subject only to the prejudice standard generally applicable to state law trial errors, whether a reasonable probability exists the error affected the jury's verdict. [Citations.] Consequently, for the same reasons the majority finds no reasonable likelihood 'the jury construed or applied the prosecution's challenged remarks in an objectionable fashion' [citation], I would find no reasonable probability the prosecutor's misstatement of the law affected the jury's verdict." (Id. at pp. 135-136 (conc. opn. of Werdegar, J.).)
F. Analysis
Based on Centeno, we are compelled to find the prosecutor misstated the reasonable doubt standard in the portions of closing and rebuttal argument quoted above, by improperly equating whether there was a reasonable explanation for the fire with the People's burden of proof beyond a reasonable doubt: "If there's no reasonable explanation for this fire, other than this man set the fire to get rid of his problem, and [Villegas] died in that fire, there's no reasonable doubt. So when you're deliberating together ... keep that in mind. Say to yourselves ... [w]e care about what's reasonable. Not about what's imaginary or what's possible. We don't care about what's possible. If it's not reasonable, you have no reasonable doubt in the case." (Italics added.)
As explained in Centeno, "it is error for the prosecutor to suggest that a 'reasonable' account of the evidence satisfies the prosecutor's burden of proof." (Centeno, supra, 60 Cal.4th at p. 672.) In doing so, the prosecutor improperly "confounded the concept of rejecting unreasonable inference, with the standard of proof beyond a reasonable doubt [and] repeatedly suggested that the jury could find defendant guilty based on a 'reasonable' account of the evidence. These remarks clearly diluted the People's burden." (Id. at p. 673.)
In contrast to Centeno, however, the prosecutor's misstatement was harmless beyond a reasonable doubt and there is no reasonable probability that defense counsel's failure to object impacted the verdict. (Centeno, supra, 60 Cal.4th at pp. 674-677.) Centeno's assignments of error were based on the prosecutor's misconduct both by using the improper diagram and hypotheticals and misstating the burden of proof. In contrast, the prosecutor in this case did not project an objectionable diagram or hypotheticals that were critical to the decision in Centeno.
As in Cortez, the court properly instructed the jury about the People's burden of proof, and defense counsel extensively argued the People failed to meet that burden in this closing argument. In addition, both the prosecutor and defense counsel referred the jury to the reasonable doubt instruction which the court had already read to them.
More importantly, as we have already explained above, this case is not similar to the "very close case" that existed in Centeno where there was no physical evidence, the minor denied the event at trial, the minor's father corroborated the defendant's denials, and the prosecutor "depended almost entirely on [the victim's] credibility, which was called into question in several respects." (Centeno, supra, at p. 677.) Instead, the motel's security camera clearly showed defendant and Villegas knew each other; only defendant and Villegas were in the room together when Villegas was hit in the head, likely left unconscious, and the fire started; defendant, contrary to his pretrial claims, did not attempt to save her in any way from the conflagration that consumed the small motel room; and the pathologist testified without contradiction that Villegas was still alive when she was hit in the head and when the fire started. While there was no eyewitness who saw defendant hit Villegas and start the fire, the circumstantial evidence was undisputed and extremely strong. This case is further distinguished from Centeno since the various defense theories of the case lacked virtually any supporting factual basis, the cause of Villegas's death was also undisputed, and the direct evidence presented on the security video was also undisputed - that defendant and Villegas knew each other, they were the only two people in the room, and Lee never got inside the room or threw anything into the window.
VII. The Firearm Enhancement
The jury found true the allegation as to count 1, murder, that defendant personally used a firearm pursuant to section 12022.5, subdivision (a), and imposed a consecutive term of 10 years for the enhancement.
Defendant asserts the matter must be remanded for the court to consider whether it would strike the sentence for the firearm enhancement based on the enactment and effective date of Senate Bill No. 620 (2017-2018 Reg. Sess.) (SB 620).
The People concede the sentencing provisions of SB 620 are retroactive since defendant's case is not yet final. However, the People argue remand is not appropriate because there is no reason to believe the court would have stricken the enhancement based on its comments at the sentencing hearing.
A. SB 620
Sections 12022.5 and 12022.53 previously mandated the court to impose a term for a firearm enhancement found true and prohibited the court from striking such a term in the interest of justice pursuant to section 1385 or any other provision of law. (People v. Thomas (1992) 4 Cal.4th 206, 213-214; People v. Kim (2011) 193 Cal.App.4th 1355; People v. Sinclair (2008) 166 Cal.App.4th 848, 852-853; People v. Felix (2003) 108 Cal.App.4th 994, 999.)
On October 11, 2017, Governor Brown signed SB 620, that became effective January 1, 2018. SB 620 amended sections 12022.5 and 12022.53 to give discretion to the trial court to strike firearm enhancements in the interest of justice. Both these statutes now state:
"The court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law." (§ 12022.5, subd. (c); § 12022.53, subd. (h).)
B. Remand
The sentencing hearing in this case was held on March 6, 2017, before SB 620 was signed into law.
Defendant and the People agree that SB 620's amendments apply retroactively to cases not yet final on appeal but disagree whether remand is appropriate in this case. (People v. Brown (2012) 54 Cal.4th 314, 323; People v. Francis (1969) 71 Cal.2d 66, 75-76; In re Estrada (1965) 63 Cal.2d 740, 746.)
Remand is necessary when the record shows the trial court proceeded with sentencing on the erroneous assumption it lacked sentencing discretion. (People v. Brown (2007) 147 Cal.App.4th 1213, 1228.) If, however, the record shows the sentencing court " ' "would not have exercised its discretion even if it believed it could do so, then remand would be an idle act and is not required." ' [Citation.]" (People v. McDaniels (2018) 22 Cal.App.5th 420, 425.)
In McDaniels, the issue was whether remand for the exercise of discretion imparted by SB 620 was proper. In order to resolve this issue, McDaniels cited to People v. Gutierrez (1996) 48 Cal.App.4th 1894, which had addressed when reconsideration of sentencing was required under People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
"Gutierrez concluded that '[r]econsideration of sentencing is required under Romero where the trial court believed it did not have discretion to strike a three strikes prior conviction, unless the record shows that the sentencing court clearly indicated that it would not, in any event, have exercised its discretion to strike the allegations. [Citation] [¶] We see no reason why this same standard would not apply in assessing whether to remand a case for resentencing in light of Senate Bill 620.' " (McDaniels, supra, 22 Cal.App.5th at p. 425; see also People v. Jones (2019) 32 Cal.App.5th 267, 272-275, 243 [applying similar standard to decline remand after enactment of Senate Bill No. 1393 regarding § 667, subd. (a)(1) enhancement.)
In this case, defendant argues remand is required because the sentencing court lacked discretion at the time of the hearing, and he is entitled to the court's exercise of its informed discretion. However, we find this matter need not be remanded. At the sentencing hearing, the court made the following findings about the convictions.
"[T]here's video evidence that shows what [defendant] was doing, shows those two people going into the motel room and shows hours later that the room has smoke coming out of it; that [defendant] is standing there, that he's watching, he looks like he's guarded, he looks like he's watching for observers. He's looking to see if anybody is going to find out whether the room is on fire. I'm not sure if he appreciated that he was on video during that entire time, but he was. [¶] And then when it became too grave and people became aware of the fire, [defendant] fled the scene and later on denied knowing Ms. Villegas and denied having anything [to] do with this fire. All [of] which was a complete contrast to what we got to see on the video recording of the crime."
The court addressed defense counsel's argument that it should only impose the midterm of four years for the firearm enhancement and that the aggravated term was not appropriate. The court rejected the defense request, imposed the aggravated term for the firearm enhancement, and explained its reasons:
"And in particular on the enhancement, which is the firearm enhancement, the [section] 12022.5(a) enhancement, which is related to the crime of murder, the Court is prepared to sentence [defendant] to the aggravated term for that because the firearm in this case was used as the weapon that caused Ms. Villegas to become unconscious, which is what caused her to be in the vulnerable position that the fire in the room caused her death." (Italics added.)
The court's statements and imposition of the aggravated term show that it would have not ordered the firearm enhancement stricken if it had such discretion at the time of the sentencing hearing, and remand is not required in this case.
VIII. The Court's Imposition of Fines and Fees
At the sentencing hearing, the court imposed the statutory maximum restitution fine of $10,000 (§ 1202.4), the court security fee of $120 (§ 1465.8), and a criminal conviction assessment of $90 (Gov. Code, § 70373). Defendant was also ordered to pay victim restitution of $1,729.22 to the victim compensation board, based on compensation already given to the victim's family for the funeral, with additional economic losses suffered by the victim's family to be determined. Defendant did not object to these amounts.
Defendant contends the court improperly imposed these fines and fees without determining whether he had the ability to pay those amounts in violation of his due process rights, and the matter must be remanded for the court to conduct a hearing on his ability to pay. Defendant's due process argument is based on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), which was decided after his sentencing hearing and while this appeal was pending. (2d Supp. AOB 7-8) Dueñas held that "due process of law requires the trial court to conduct an ability to pay hearing and ascertain a defendant's present ability to pay" before it imposes any fines or fees. (Id. at pp. 1164, 1167.)
We disagree and find the matter need not be remanded on this issue.
As we recently explained in People v. Aviles (2019) 39 Cal.App.5th 1055 (Aviles), Dueñas was wrongly decided and an Eighth Amendment analysis is more appropriate to determine whether restitution fines, fees, and assessments in a particular case are grossly disproportionate and thus excessive. (Aviles, supra, 39 Cal.App.5th at pp. 1068-1072.) Under that standard, the fines and fees imposed in this case are not grossly disproportionate to defendant's level of culpability and the harm he inflicted, and thus not excessive under the Eighth Amendment. (Id. at p. 1072.)
More importantly, even if Dueñas applied to this case, defendant has forfeited any challenge to his alleged inability to pay the fines, fees, and assessments. The court ordered him to pay a statutory maximum restitution fine of $10,000 under section 1202.4, subdivision (b). When the court imposes a restitution fine greater than the $300 statutory minimum amount of $300, "[s]ection 1202.4 expressly contemplates an objection based on inability to pay." (People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153 (Frandsen); Aviles, supra, 39 Cal.App.5th at p. 1073.)
While Dueñas had not been decided at the time of defendant's sentencing hearing, defendant had the statutory right to object to the $10,000 restitution fine and demonstrate his inability to pay, and such an objection "would not have been futile under governing law at the time of his sentencing hearing. [Citations.]" (Frandsen, supra, 33 Cal.App.5th at p. 1154; Aviles, supra, 39 Cal.App.5th at pp. 1073-1074.) In addition, any objections to the assessments imposed under section 1465.8 and Government Code section 70373 would not have been futile. "Although both statutory provisions mandate the assessments be imposed, nothing in the record of the sentencing hearing indicates that [the defendant] was foreclosed from making the same request that the defendant in Dueñas made in the face of those same mandatory assessments. [The defendant] plainly could have made a record had his ability to pay actually been an issue. Indeed, [he] was obligated to create a record showing his inability to pay the ... restitution fine, which would have served to also address his ability to pay the assessments." (Frandsen, supra, 33 Cal.App.5th at p. 1154; Aviles, supra, 39 Cal.App.5th at p. 1074.)
In addition, we note that the court also ordered defendant to pay victim restitution of $1,729.22 to the victim compensation board, which had already reimbursed the victim's family for funeral expenses. The court ordered additional victim restitution subject to further claims in an amount to be determined. As part of his argument based on Dueñas, defendant includes the amount ordered for victim restitution as part of the total burden imposed upon him by the court, in further support of his assertion that the court violated his due process rights by failing to find he had the ability to pay these amounts.
Dueñas did not address direct victim restitution, which compensates crime victims and their families for economic losses they have suffered because of defendant's crime. (§ 1202.4, subd. (f); Dueñas, supra, 30 Cal.App.5th at p. 1169; People v. Giordano (2007) 42 Cal.4th 644, 652.) Even if Dueñas applied in this case, an attempt to extend it to victim restitution has been disapproved. (People v. Evans (2019) 39 Cal.App.5th 771, 775-777.)
As with the imposition of a restitution fine above the statutory minimum, section 1202.4, subdivision (f)(1) provides that a defendant has the right to request a hearing to dispute the determination of the amount of victim restitution. At the sentencing hearing in this case, defendant did not object to the court's victim restitution order. Indeed, defense counsel submitted the victim restitution issue based on the documents submitted to the court about the victim's funeral expenses. In doing so, defense counsel advised the court that he would request a hearing if the victim's family requested additional direct restitution. The court agreed. Defendant thus forfeited any possible objection to the court's order for victim restitution.
Finally, even if defendant did not forfeit the issue, any error under Dueñas is necessarily harmless since defendant has the ability to pay the fines, fees, and assessments over the course of his long prison sentence. (Aviles, supra, 39 Cal.App.5th at pp. 1075-1077.)
DISPOSITION
The judgment is affirmed.
/s/_________
POOCHIGIAN, Acting P.J. I CONCUR: /s/_________
DETJEN, J. PEÑA, J., Concurring.
I concur in the disposition and all parts of the majority opinion except for its critique of People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). For the reasons stated in my concurring opinion in People v. Aviles (2019) 39 Cal.App.5th 1055, 1077-1079 (Aviles), I view the question of whether Dueñas was wrongly decided as outside the scope of this appeal. Defendant Jerome Smith's failure to object to the fines and assessments imposed at the time of sentencing resulted in a forfeiture of any claims based on that aspect of the judgment. (People v. Lowery (2020) 43 Cal.App.5th 1046, 1052-1054; People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153-1155 (Frandsen).)
"In this case, as in Frandsen, the trial court imposed the statutory maximum restitution fine. And as Frandsen correctly notes, even before Dueñas a defendant had every incentive to object to imposition of a maximum restitution fine based on inability to pay because governing law as reflected in the statute ([Pen. Code,] § 1202.4, subd. (c)) expressly permitted such a challenge." (People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1033, citing Frandsen, supra, 33 Cal.App.5th at p. 1154.)Further, unlike Velia Dueñas, this defendant presented no evidence of inadequate financial means. (See Dueñas, supra, 30 Cal.App.5th at p. 1164.) Since Dueñas is neither factually nor procedurally analogous to the present matter, exploring the merits of the former is a purely academic exercise. (Aviles, supra, 39 Cal.App.5th at pp. 1078-1079 (conc. opn. of Peña, J.).)
The California Supreme Court is now considering (1) whether trial courts must consider a defendant's ability to pay before imposing or executing fines, fees, and assessments, and (2) if so, which party bears the applicable burden of proof. (See People v. Kopp (2019) 38 Cal.App.5th 47, 94-98, rev. granted Nov. 13, 2019, S257844.) I will reserve my own consideration of those issues for a case in which they are properly presented to this court.
/s/_________
PEÑA, J.