Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Super. Ct. No. BA 270822. Ann I. Jones, Judge.
Courtney M. Selan, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Linda C. Johnson and Gary A. Lieberman, Deputy Attorneys General, for Plaintiff and Respondent.
ROTHSCHILD, J.
A jury convicted Francisco Venegas of attempting to burn the property of a gas station by setting fire to an underground gasoline storage tank and a gasoline pump. (Pen. Code, § 455.) He contends that his conviction should be reversed because the evidence was insufficient to prove beyond a reasonable doubt that he intended to set fire to the tank or the pump or that he had the ability to do so. He further contends that the prosecutor committed prejudicial misconduct during closing argument when she attempted to testify about a conversation that she had with her expert witness. We reject Venegas’s contentions and affirm the judgment.
“Any person who willfully and maliciously attempts to set fire to or attempts to burn . . . any structure, forest land or property, or who commits any act preliminary thereto, or in furtherance thereof, is punishable by imprisonment in the state prison for 16 months, two or three years.” All future section references are to the Penal Code.
FACTS AND PROCEEDINGS BELOW
The cashier at a gas station testified that he was working behind the counter when he saw the cover had been removed from one of the station’s underground gasoline storage tanks and saw Venegas stooped above the tank’s opening flicking a cigarette lighter. The lighter did not light. After about a minute, the cashier saw Venegas walk away from the storage tank. The cashier immediately called the police.
A customer testified that he was pumping gas when Venegas approached him and struck up a conversation. When police cars began arriving, Venegas grabbed the nozzle of the hose the customer was using, held a cigarette lighter next to it and began flicking it. When the lighter did not ignite Venegas ran toward the back of the station, discarding the lighter on the way.
The police apprehended Venegas and recovered the lighter. When the lighter was introduced as evidence at the trial two years later it contained no fuel.
An arson investigator testified that an open flame or even a spark from the lighter would have ignited vapors from the gas pump and vapors around a gasoline storage tank. The investigator also testified that although the lighter contained no fuel at the time of the trial it was “possible” that the fuel had evaporated in the two years following the incident.
In the prosecutor’s closing argument, she sought to minimize the evidence that the lighter then contained no fuel by referring to the arson investigator’s testimony that the fuel could have evaporated. When the prosecutor stated that she had “talked to the investigator” defense counsel interrupted and objected that the prosecutor was testifying. The trial court responded that the prosecutor “needs to focus on what the investigator indicated.” The prosecutor then summarized the investigator’s trial testimony.
The jury convicted Venegas of one count of an attempt to burn property and the court sentenced him to the midterm of two years. Venegas filed a timely appeal.
The information charged Venegas with one count of attempt to burn. The trial court instructed the jury it could convict Venegas if it found beyond a reasonable doubt he attempted to set fire to the storage tank or the gasoline pump and that they all had to agree on the same act but did not have to state the act in their verdict.
DISCUSSION
I. SUFFICIENCY OF EVIDENCE
In California, “[a]n attempt to commit a crime consists of two elements: a specific intent to commit the crime, and a direct but ineffectual act done toward its commission.” (§ 21a.)
Under the substantial evidence standard of review, an appellate court determines not whether a criminal defendant is guilty beyond a reasonable doubt, but whether substantial evidence supports the jury's findings, or in other words, whether a reasonable jury could have found the elements of the crime to have been proven beyond a reasonable doubt. (See People v. Cuevas (1995) 12 Cal.4th 252, 274; see also People v. Fairbank (1997) 16 Cal.4th 1223, 1254.) We must “view the record in the light most favorable to the verdict and uphold the verdict” if it is supported by evidence that is “reasonable, credible, and of solid value.” (People v. Marshall (1997) 15 Cal.4th 1, 31.) We also presume in support of the judgment all facts that the trier of fact reasonably could have deduced from the evidence. (See People v. Campbell (1976) 63 Cal.App.3d 599, 608.)
“Evidence of a defendant's state of mind is almost inevitably circumstantial[.]” (People v. Bloom (1989) 48 Cal.3d 1194, 1208.) A jury thus may infer a defendant's specific intent from the circumstances surrounding the defendant's act, and if such circumstantial evidence supports a reasonable inference that the defendant possessed the required intent, the jury's finding of that intent will not be disturbed on appeal. (See People v. Ferrell (1990) 218 Cal.App.3d 828, 834.)
A rational jury could have concluded that Venegas intended to ignite the gasoline in the tank and the vapors around the nozzle and that by flicking the lighting mechanism on the lighter he took a direct act toward the commission of that crime. The cashier saw Venegas stooping over the opening of a gasoline storage tank attempting to trigger a flame or a spark from a cigarette lighter. The customer testified that Venegas held a lighter up to the nozzle of a gasoline pump and attempted to light it.
We do not agree with Venegas’s argument that in order to prove he attempted to burn something using a cigarette lighter the People had to prove that the lighter contained fuel. The arson investigator testified that a spark alone would have ignited the vapors. In any case, the factual possibility of committing the crime is not an element of an attempt. As our Supreme Court explained in People v. Toledo (2001) 26 Cal.4th 221, 230, “When a defendant acts with the requisite specific intent, that is, with the intent to engage in the conduct and/or bring about the consequences proscribed by the attempted crime [citation] and performs an act that ‘go[es] beyond mere preparation . . . and . . . show[s] that the perpetrator is putting his or her plan into action’ [citation] the defendant may be convicted of criminal attempt.” (Fn. omitted.)
Numerous opinions uphold convictions for attempts to commit crimes where the crimes failed because the instruments used to commit the crimes failed. (See cases cited in 1 Witkin & Epstein, California Criminal Law (3d ed. 2000) Elements, § 62, pp. 271-272; 4 Wharton’s Criminal Law (15th ed. 1996) Attempt, § 697, pp. 631-632.) In People v. Van Buskirk (1952) 113 Cal.App.2d 789 the defendant attempted to shoot his intended victim “only failing to do so by reason of the defective recocking mechanism and the approach of the officers which left him no time to manually cock the gun and fire.” (Id. at p. 793.) In the current case, the jury could have rationally concluded that defendant attempted to set fire to the storage tank and the pump only failing to succeed because the lighter was out of fluid or defective.
II. THE PROSECUTORIAL MISCONDUCT
In her closing argument, defense counsel emphasized that Venegas attempted several times to light the lighter without success. In rebuttal the prosecutor attempted to de-emphasize this fact. The following dialogue occurred between the prosecutor, defense counsel and the court.
Prosecutor: “This lighter has been sitting in a warehouse for two years . . . and the expert has testified there was time gone by, [the fluid] could have evaporated. . . . [¶] Since I knew this [lighter] had been away for quite a while and had talked to the investigator who determined---”
Defense counsel: “Objection, your honor, counsel is testifying.”
The court: “She needs to focus on what the investigator indicated.”
Prosecutor: “The investigator indicated [the fluid] could have easily . . . evaporated.” (Italics added.)
It is misconduct for a prosecutor to relate to the jury a conversation that she had with a witness. This turns the prosecutor into an unsworn witness offering evidence who is not subject to cross-examination. (People v. Hill (1998) 17 Cal.4th 800, 827-828.) It is also improper for the prosecutor to tell the jury that she has had a conversation with a witness even if she does not relate its substance. Doing so implies that the prosecutor is vouching for the witness or has some special knowledge about the case. (See People v. Huggins (2006) 38 Cal.4th 175, 206-207.)
We conclude, however, that the prosecutor’s mistake did not prejudice Venegas. The error was trivial. The prosecutor never stated what the investigator told her in their conversation. The jury had already heard the investigator testify that if there had been fluid in the lighter at the time of the incident it may have evaporated in the interim. It is not reasonably probable Venegas would have attained a more favorable result had the prosecutor refrained from referring to her conversation with the investigator. (People v. Watson (1956) 46 Cal.2d 818, 836.) Furthermore, the error was cured by the court’s admonition to the prosecutor “to focus on what the investigator indicated [at trial]” and its instructions to the jury that it “must determine what facts have been proved from the evidence received in the trial and not from any other source” and that “statements made by the attorneys during the trial are not evidence.”
DISPOSITION
The judgment is affirmed.
We concur: VOGEL, Acting P.J., JACKSON, J.
(Judge of the L. A. S.Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)