GOLDMAN, J.

Trial Court: Napa County Superior Court, Trial Judge: Honorable Elia Ortiz (Napa County Super. Ct. No. 20CR001370)

Kevin J. Lindsley, Pleasanton, under appointment by the Court of Appeal, FIRST DISTRICT APPELLATE PROJECT, Stephanie Clarke, Berkeley, for Defendant and Appellant

Rob Bonta, Attorney General of California, Lance E. Winters, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Masha A. Dabiza, Deputy Attorney General, for Plaintiff and Respondent

GOLDMAN, J.

Defendant Jordan Buckner appeals a judgment convicting him of arson of an inhabited structure and sentencing him to three years in prison. He contends that: (1) there is no substantial evidence to support the jury’s finding that the house was inhabited because the evidence did not show that he intended to continue living in the house after the fire; (2) the court erred by admitting at trial statements he made during a police interview that he argues were taken in violation of his Miranda rights; and (3) the trial court improperly ordered him to pay restitution to his insurance company and the fire department.

We disagree with Buckner on the first two points but agree with him on the third. First, as we conclude in the published portion of the opinion, the law does not require the prosecution to prove that Buckner intended to continue living in the house after the fire, and since Buckner was living in the house at the time of the fire, substantial evidence supports the jury’s conclusion that the house was inhabited. Second, Buckner’s statements to the police were properly admitted at trial because, under the totality of the circumstances, the interview during which he made them was not custodial. Third, the restitution order must be reversed because, as the Attorney General acknowledges, the insurance company and the fire department are not victims of Buckner’s crime for purposes of restitution under Penal Code section 1202.4. Accordingly, we reverse the restitution order, remand for a new restitution hearing, and otherwise affirm the judgment.

BACKGROUND

Buckner was charged with a single count of arson of an inhabited structure. (§ 451, subd. (b).) Prior to trial, he moved to exclude statements he made during an interview with the arson investigator on the ground that the investigator violated his Miranda rights by continuing to question him after he invoked his right to counsel. The trial court denied his motion, finding that the interrogation was not custodial, and alternatively that his request for counsel was not clear and unambiguous.

The following evidence was presented at trial.

On November 30, 2019, at around 7:30 p.m., neighbors noticed a fire at Buckner’s home and called the fire department. After the fire was extinguished, a firefighter determined that the fire started on a bed in the northwest bedroom of the home and was caused by an unknown open flame source that ignited gasoline vapors. Subsequent, testing of cloth samples taken from the bed where the fire started confirmed the presence of gasoline residue,

Buckner lived alone at the time of the fire and no one was in the house when the firefighters arrived. Inside the home, arson investigators found a backpack containing several cellphones, a laptop computer, a vehicle pink slip, other financial documents, a resume, and two professional certificates. Buckner’s car was parked in the garage. The investigator reported seeing a couch in the living room, a mattress with blankets and miscellaneous items in one bedroom, and a kid’s bed, a mattress, chairs, and other furniture in the bedroom where the fire started.

Around 5:00 a.m. on the morning after the fire, Buckner returned to the house and identified himself as the owner. After fire personnel prohibited him from entering the house, he walked away. When he returned later that morning, he asked if he could collect some clothing from his house, but was told to stay outside for his safety and due to the ongoing investigation.

At that time, an arson investigator asked Buckner if he was willing to be interviewed at the police station. Buckner agreed, and once they arrived at the station, he told the investigator that his house was in foreclosure because he had recently lost his job. He claimed that he was out walking in a nearby nature reserve at the time of the fire and did not return to the property until after the fire department had arrived. Buckner testified at trial that he was living at the house on November 30. He denied setting the fire and claimed that he was not home when the fire started. He believed that someone broke into his house and set it on fire. He testified that he stopped paying his mortgage and was “waiting for it to foreclose” because he did not want to live in the area anymore. On cross-examination, Buckner clarified that he was “waiting to get evicted.”

Buckner’s mortgage lender filed an insurance claim, but Buckner did not. The insurance adjuster determined that the damage would cost $151,757 to repair and that asbestos abetment would cost an additional $28,876. These amounts were paid jointly to Buckner and the lender.

The jury found Buckner guilty as charged.

[1] On March 16, 2021, the court sentenced Buckner to three years in state prison. The court ordered restitution to Buckner’s insurance company in the amount of $170,651.05 and to the mortgage lender and the fire department in amounts to be determined. On March 19, 2021, Buckner timely filed a notice of appeal.

DISCUSSION

I. Burning of an Inhabited Structure

[2,3] Section 451 punishes arson “that causes an inhabited structure or inhabited property to burn ….” (§ 451, subd. (b).) “Inhabited” is defined as “currently being used for dwelling purposes whether occupied or not.” (§ 450, subd. (d).) The statute “requires current inhabitation, i.e., that the structure be inhabited at. the present time,” which is “the time the fire is set.” (People v. Vang (2016) 1 Cal.App.5th 377, 386, 204 Cal.Rptr.3d 455; see also People v. Jones (1988) 199 Cal.App.3d 543, 549, 245 Cal.Rptr. 85 (Jones) [evidence must show that “someone had the present intent to use the house as a dwelling at the time of the fire”].) Buckner interprets this requirement to mean that the prosecution must prove that he intended to continue living in the house after the fire, “not just … prior to and at the time that the burning occurred.” We disagree.

Buckner relies on cases in which a structure has been vacated at some point before the fire is set. The question in those cases is whether an unoccupied house, is “inhabited”—i.e., whether it is “currently being used for dwelling purposes” notwithstanding that the residents previously left it. Courts have held that such a structure is “inhabited” if the residents, when they vacated it, intended to return and continue living there. So, for example, in Jones, supra, 199 Cal.App.3d 543, 245 Cal.Rptr. 85, the defendant and his roommates were evicted from a house after the landlord obtained an unlawful detainer judgment. (Id. at p. 545, 245 Cal.Rptr. 85.) The defendant came back the next day and burned the house down. (Ibid.) He was convicted of arson of an inhabited dwelling and argued on appeal that the house was not inhabited because the tenants had been evicted and neither new tenants nor the owner had moved in. (Ibid.) The court held that “the requirement the structure be ‘currently used’ for dwelling purposes requires the People to prove at least one of the evicted tenants intended to continue living in the house after the eviction.” (Id. at p. 548, 245 Cal.Rptr. 85, italics added.) The court had no occasion to consider whether the prosecution had to prove that one of the tenants intended to continue living in the house after the fire. [4] Buckner focuses on a sentence in the portion of the court’s opinion assessing the evidence: “Even if defendant did spend the night in the house, setting fire to a house contravenes an intent to use it for dwelling purposes.” (Jones, supra, 199 Cal. App.3d. at p. 549, 245 Cal.Rptr. 85.) That sentence, however, immediately followed observations that “there was no evidence anyone slept in the house after the eviction,” and that the fact the defendant and others “were seen leaving the house at 8:30 or 9:00 a.m. does not support an inference any of them spent the night there.”, (Ibid.) “‘ “It is axiomatic that language in a judicial opinion is to be understood in accordance with the facts and issues before the court.” ’ ” (People v. Knoller (2007) 41 Cal.4th 139, 154–155, 59 Cal.Rptr.3d 157, 158 P.3d 731.) In Jones, the issue was whether the eviction established that the house was not inhabited, and the court held it did not unless the evidence also showed that the defendant (and other tenants) did not intend to return after being evicted, (Jones, at pp. 545–546, 245 Cal. Rptr. 85.) In context, and as indicated by the sentences that precede it, the court’s statement meant that the defendant’s setting of the fire the next day was evidence that he did not intend to continue living in the house after he was evicted. It does not mean that arsonists who intend to destroy their current dwelling are not guilty Of burning an inhabited structure.

Buckner also cites Mason v. Superior Court (2015) 242 Cal.App.4th 773, 195 Cal. Rptr.3d 527, in which the defendant challenged the sufficiency of the evidence because the fire captain testified to the grand jury that the owner of the destroyed home had said only that he “had been , to the house within the last couple of years.” (Id. at p. 789, 195 Cal.Rptr.8d 527.) Citing Jones, the court found sufficient evidence “that, the Owner intended to return” because the owner himself testified, “‘We had every intention of continuing to use it in the same way that we have been using it since it was built in 1976, which was every couple of weekends.’ ” (Ibid.) As in Jones, the question in Mason was whether the residents intended to return to the house notwithstanding having previously vacated it.

Buckner’s opening brief additionally relies on two cases in which the resident of the house died before the defendant set fire to it. (See People v. Vang, supra, 1 Cal.App.5th 377, 382, 204 Cal.Rptr.3d 455; People v. Ramos (1997) 52 Cal.App.4th 300, 302, 60 Cal.Rptr.2d 523.) In both cases, the courts held that the deceased was not currently using the structure for dwelling purposes when the fire was set, and they ”cited Jones in observing that a person who has died cannot intend to return or to continue living in the house. (Vang, at p. 386, 204 Cal.Rptr.3d 455; Ramos, at p. 302, 60 Cal.Rptr.2d 523.) But the point in both cases was that the house ceased to be inhabited at the time of the resident’s death. Neither case considered whether the prosecution must prove the resident’s intent to continue to use the house for dwelling purposes after the fire.

In his reply brief, Buckner invokes People v. Villalobos (2006) 145 Cal.App.4th 810, 315–316, 51 Cal.Rptr.3d 678, which involved charges of burglary and robbery that rely on an identically-worded definition of “inhabited” in section 459. Unlike the other cases Buckner cites, the court did consider whether the prosecution must prove that the resident intended to continue using the structure for dwelling purposes after the crime. But it concluded there is no such requirement. The defendants there argued that a motel room is not “inhabited” when it is rented for only one night, because the occupant does not intend to return. (Id. at p, 316, 51 Cal. Rptr.3d 678.) In disagreeing with the defendants’ argument, the court explained that the phrase “‘intending to continue doing so in the future,’ ” which appeared in an earlier opinion on which the defendants relied, had been taken out of context, and originated in cases in which “the issue is when a dwelling that was once inhabited becomes uninhabited for the purposes of the burglary and robbery statutes.” (Id. at pp. 319–320, 51 Cal.Rptr.3d 678.) The resident’s intent to return matters if the resident has previously moved out, but where the victim “had not moved out of the motel room, temporarily or otherwise, her intent to continue using the room simply has no bearing on whether the room was inhabited at the time of the robbery.” (Id. at p. 320, 51 Cal.Rptr.3d 678.) Thus, the court concluded, “[i]f the person is using the structure as a habitation when the burglary or robbery occurs, his possible intent to abandon the habitation in the future does not alter its character as an inhabited dwelling.” (Ibid.)

[5] Buckner does not argue that the word “inhabited” has a different meaning in the context of the arson statute, and under Villalobos, whether he intended to continue living at the house in the future is immaterial. The relevant question is whether he was living there when the fire was set. Buckner himself testified that he was living at the house on the day of the fire. The physical evidence was consistent with this testimony. His furniture, clothing, cell phones, a laptop computer, important documents, and car were in the home. Substantial evidence therefore supports the jury’s conclusion that the house was inhabited at the time of the fire.

II.-III.

DISPOSITION

The restitution order is reversed insofar as it orders restitution to the fire department and Buckner’s insurance company and the matter is remanded for a new restitution hearing. The judgment is otherwise affirmed.

WE CONCUR:

BROWN, P. J.

STREETER, J.