Opinion
C083447
08-28-2018
THE PEOPLE, Plaintiff and Respondent, v. CHRIS CRAWFORD CASTO, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 62-137196)
In November 2015, a jury found defendant Chris Crawford Casto guilty of arson of an inhabited structure and misdemeanor theft of utility services. A year later, the trial court sentenced him to state prison. A year later, his briefing on appeal was completed. We granted his motion for calendar preference and expedited review premised on his scheduled release date of September 2018.
On appeal, defendant contends the prosecutor prejudicially failed to correct false testimony regarding a pungent smell detected in the remains of the home, violated a ruling in limine in questioning a witness, and committed misconduct in characterizing a defense expert's testimony in closing argument. He asserts defense counsel was ineffective in failing to present evidence of a non-accelerant source for the pungent odor. Finally, he claims the trial court erred in failing to instruct sua sponte on the lesser offense of recklessly causing a fire to an inhabited structure. We shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
We are not called upon to assess the sufficiency of the evidence or prejudice from any error, and the facts underlying the convictions are accordingly of limited relevance. We therefore provide an account of the evidence at trial far more abridged than those of the parties—primarily for context—in the process limiting it to the evidence and inferences in favor of the judgment. (People v. Mack (1992) 11 Cal.App.4th 1466, 1468.) As the parties agree on these facts, we accept their statement of facts as accurate. (Meddock v. County of Yolo (2013) 220 Cal.App.4th 170, 175, fn. 3.)
Defendant lived in his late father's home, which was in foreclosure. It was a wooden structure dating to the early 1900's. When he asked his half sister (their father's sole legal heir) if she would help him in assuming the mortgage, she declined because the mortgage and liens far exceeded the value of the home. She assented to his living in the home rent-free until the bank took title.
Defendant's suspicious behavior of itself would provide sufficient circumstantial evidence of his guilt even without the expert testimony. In April 2015, a neighbor saw defendant return home in the early evening, take two gas cans out of his trunk, and bring them into the house. Early the next morning, before dawn, another neighbor heard a car alarm sound. Looking out the window, she saw defendant carrying something out of the house and set it by his car, which was parked near the rear door, and then go back into the house. At about the same time, another neighbor who was outside watching a lunar eclipse saw defendant load items from the house into the car (now parked out front). About 7:30 a.m., this neighbor saw defendant sitting in his car down the street on the opposite side from the house with his dog.
This neighbor's wife heard screams outside at about 8:00 a.m. Looking through the window, she saw flames coming out of defendant's home. She also saw him still sitting in his car with his dog. He sat there while the neighbors made efforts to extinguish the flames while waiting for the firefighters to arrive. Two neighbors noted that while defendant normally parked his motorcycle on the walkway behind his home, they now saw it parked in front of the neighboring home. Defendant then slowly drove off around the corner.
As the firefighters struggled to contain the blaze, a deputy arrived. He assisted with crowd control, and then located defendant's car a short distance away. Defendant was standing outside speaking with someone. He was wearing more than one layer of clothes. His forehead and eyes were soiled with what appeared to be soot; the hair on his arms appeared to be singed. In searching his car, a detective found a white towel on the front seat that had a strong chemical smell. Tests detected the residue of a heavy petroleum distillate in the towel, which would be an ignitable fluid.
To the extent we need to discuss the bases for the opinions of the prosecution experts, we will incorporate them in the Discussion. Both concluded from the totality of the circumstances (including defendant's behavior and the manner in which the fire responded to efforts to suppress it) that the fire was at least suspicious if not intentionally set with an accelerant. However, samples taken from the scene did not have any traces of accelerant in them, which came as a surprise to one of the investigators (while the other said this was not unusual, for various reasons). We note that there was a defense expert, who believed that the fire progressed normally, did not find evidence of the presence of an accelerant, and thus concluded the fire was not intentionally set.
DISCUSSION
1.0 The Prosecution Did Not Fail to Remedy False Testimony
Before trial, the prosecution engaged the services of Dave Hall to educate him "about fire and arson investigation[s]." Hall told the prosecutor not to use the term "pour patterns" because there is no scientific consensus that of themselves burn patterns can prove the use of ignitable liquids to start a fire. Hall also noted the pungent smell in the remains of the living room may have been caused by the burnt projection television, which can contain a liquid coolant that is "flammable and an irritant to the eyes and nose." The prosecutor forwarded this information to defense counsel before trial, along with the information that one of the fire investigators said that the pungent smell was not like any he had ever encountered previously.
A prosecution expert (a fire investigator for the fire district) testified that the strong pungent smell in the living room (also detectable in the bedroom) was from an ignitable liquid other than gasoline, but he could not identify it. He believed the source of the fire was near the melted television. He noted that projection televisions could contain a liquid but did not know whether the television destroyed in the fire had any particular type of chemical fluid in it. He later acknowledged the chemical in these televisions could be flammable, and could have a smell (although he did not elaborate). In response to a jury question about whether such liquids "have any odors," he testified that he did not know. However, during an earlier hearing in limine, he had testified that when ignited, the coolant in projection televisions "has an interesting odor," although he had rejected the television as a source based on unspecified "other factors."
A second fire investigator attested to the pungency of the smell in the living room, and that when such a smell is irritating to the nose and lungs it is likely to be from a flammable liquid. He was certain this was a flammable liquid as opposed to another type of chemical with a pungent smell. He was not familiar with the type of coolants that might be contained in projection televisions, and did not investigate whether the television found at the site had any particular coolant in it, as it was completely melted and unrecognizable to him as any type of television.
Defendant contends the prosecution allowed the false impression to be presented that the pungent smell must have been an accelerant, when it was aware before trial of information that projection televisions could have a flammable liquid in them that generates an irritating smell. He also contends the response to the jury question was false, because the first investigator did in fact know that when lit the liquid in the televisions have an interesting odor.
The first investigator did not present any false evidence or impression. He in fact acknowledged generally that projection coolant is flammable and can have an odor, but did not have any knowledge about the presence of any particular coolant in the television in the present case. Again, the information from the pretrial expert Hall was about projection coolant in general, not the television in this particular case. The first investigator's response to the literal wording of the jury question was also not false, as the question is phrased in general and did not specifically ask about the smell when ignited. Therefore, the prosecutor did not commit any misconduct. (People v. Morrison (2004) 34 Cal.4th 698, 716-717.) Although we consequently do not need to assess prejudice, we disagree with defendant's assessment of the importance of this subject. In light of the other evidence, the projection coolant evidence as a possible alternate source of the odor is a relative molehill.
2.0 Any Prejudice from Disregarding the Ruling in Limine Was Cured
As noted, the prosecution's own pretrial expert explained that there was not a scientific basis for discerning "pour patterns" from burn marks alone in determining whether accelerants were involved in a fire. In this vein, defense counsel moved in limine to exclude any reference to pour patterns. The trial court granted the motion, precluding the use of the phrase but allowing experts otherwise to describe "irregular" or "unusual" burn patterns.
During redirect examination of one of the fire investigators, who had already testified that the nature of burn patterns on the floor in connection with his belief that the strong odor of an ignitable liquid was present led him to believe that an ignitable liquid had been poured onto the floor, the prosecutor made use of the forbidden phrase in the midst of a rather convoluted question: "So if you—without knowing anything like defense counsel was asking you to do, if you—just looking at those pour patterns, you can't say—." Defense counsel objected without elaboration; the trial court sustained the objection and directed the prosecutor to rephrase. Starting again, the prosecutor asked, "Just looking at the pour—at the—unusual burn patterns alone, there's no way that you can determine if they were caused by an accelerant being poured on it, correct?'' The witness agreed, and explained it was the heavy smell of an ignitable liquid in more than one location in the house in conjunction with the unusual patterns that led to his opinion.
Shortly afterward, defense counsel moved for a mistrial out of the presence of the jury. The court agreed the objectionable question was in violation of the ruling in limine. However, the reference was brief, it was contained in a question rather than testimony, the pattern instruction would be included regarding questions of counsel not being evidence, and defense counsel could fashion a more direct admonition if desired, so any prejudice would be cured. At defense counsel's request, the court read the pattern instruction to the jury before court recessed for the day, including "Their questions are not evidence" and where an objection is sustained "[y]ou must ignore the question." The instruction was repeated in the charge to the jury.
Defendant cites other instances where the prosecutor used the verb "pour" together with "accelerant" in questions. That was not prohibited under the trial court's ruling in limine and therefore was not misconduct. We do not consider these instances further.
Other than a cursory and conclusory assertion that the use of the prohibited phrase in a withdrawn question was prejudicial, defendant does not even begin to establish that the presumption that juries heed admonitions is overcome in this case. It is an essential premise of the system of trial by jury; otherwise there would not be any point in giving instructions. (Francis v. Franklin (1985) 471 U.S. 307, 324, fn. 9 ; Marshall v. Lonberger (1983) 459 U.S. 422, 438, fn. 6 ; People v. Ervine (2009) 47 Cal.4th 745, 776.) The trial court specifically admonished the jury twice that questions are not evidence and should be disregarded if an objection is sustained. Any possibility of prejudice from this single transitory use of the forbidden phrase was therefore cured, and we reject this argument.
3.0 The Prosecutor Did Not Commit Misconduct in Closing Argument
Defendant's brief adverts to 10 instances in which the prosecutor referred to the defense expert either as a hired gun or a paid expert, or in one instance referencing "[r]easonable doubt for a reasonable fee." Notably, defendant fails to identify any objection to this argument. He does, however, refer to his motion for new trial in which the failure to object was identified as ineffective assistance of counsel, because this argument allowed defense counsel to be portrayed as a participant in the presentation of false evidence through the expert. The trial court concluded, however, that the characterizations were well within the latitude allowed the prosecution for harsh and colorful attacks on a defense expert without impugning defense counsel, citing People v. Arias (1996) 13 Cal.4th 92, 161-162 (asserting defense expert bent principle for money) and People v. Sandoval (1992) 4 Cal.4th 155, 180 (calling defense expert a liar), 184 (attacking defense counsel's character directly) as examples. Even if this argument did amount to misconduct, the trial court could not discern any resulting prejudice.
We do not need to develop the factual premise for this argument any further, because we agree with the trial court's evaluation of the claim. The disparagement in the present case is both common and garden-variety. It is certainly well within the bounds of what the cited cases tolerate on the part of a prosecutor. Thus, even assuming the issue is cognizable on appeal in the absence of a timely objection and request for admonition at the time of the challenged argument (which would have forestalled any need for a new trial), the prosecutor did not commit misconduct. Shorn of its premise, defendant's argument fails.
4.0 Trial Counsel Was Not Ineffective in Failing to Call Dave Hall
In response to defendant's motion for new trial, defense counsel responded in a declaration to claimed instances of incompetence identified in the motion. She also generally described her trial strategy as focusing on the "fire science" and her expert's belief that the prosecution experts did not follow protocols in developing their opinion of an incendiary source. "I chose not to adopt a strategy of focusing on tangential evidence that would require extended explanations thereby detracting from our focus, which was on the lack of forensic evidence to support arson as the cause of the fire." At the hearing, substituted counsel added a new claim: the failure to call Dave Hall, of whom trial counsel was aware from the communication from the prosecutor before trial (and who had in fact been called as her witness in a foundational hearing). The prosecutor responded that the defense expert was equally qualified to give any testimony that Hall could have provided. The trial court ultimately concluded that the quality of defense counsel's representation overall was not deficient enough to fall below professional standards.
Somewhat shifting focus again on appeal, defendant contends it is not the failure to call Hall as an expert witness generally, it is the failure to follow up at trial on his opinion about the projection coolant being flammable with a pungent odor. We conclude this does not represent ineffective assistance of counsel.
A defendant must first demonstrate that trial counsel's action or omission fell below an objective standard of reasonableness according to prevailing professional norms. (People v. Ledesma (1987) 43 Cal.3d 171, 215.) In the rare situation where we have the reasoning of defendant counsel on the record, the question is whether this was an informed choice within the range of reasonable competence. If so, then we reject the claims. (People v. Pope (1979) 23 Cal.3d 412, 425.)
The failure to use Hall is in keeping with the overall tactics of defense counsel. The possibility of the projection coolant being a source of the unidentifiable pungent odor is collateral to attacking the basis for the opinions of the prosecution experts, particularly where neither expert took the television into consideration and thus did not conduct any investigation related to it. It did not assist with the thesis that the absence of any samples of accelerant undermined their conclusions that an incendiary liquid was present or that the unusual burn patterns had a genesis other than a poured accelerant. There is nothing that is unreasonable about choosing to focus a case rather than take a "kitchen-sink" approach, where this omitted evidence still would not account for the pungent smell in the bedroom getting stronger as layers of debris were removed. Therefore, ineffective assistance of counsel cannot be premised on this omission.
5.0 Evidence Did Not Support an Instruction on the Lesser Offense
During instruction-setting, neither the trial court nor defense counsel believed the state of the evidence warranted an instruction on the lesser offense of recklessly causing a fire. Defendant contends this was reversible error.
As substantial evidence to support the lesser verdict, defendant cites his expert's testimony that tea candles are capable of causing a fire; as the remains of three expended tea candles were found in the rubble near the melted television, which was in the area of the point of origin of the fire, the expert could not exclude them as a cause for the fire (though neither could he identify them as a cause affirmatively). However, there was also testimony that it is impossible to determine if they had even been lit at the time of the fire, or simply burned off as a result of the fire. And while the probation report notes that defendant had made statements to investigators that he had fallen asleep after laying a fire in the fireplace and lighting some candles, awaking to the house being ablaze, these hearsay statements were not introduced into evidence, and neither defendant nor anyone else testified to this effect.
A defendant is entitled to an instruction on a lesser offense only where there is substantial evidence to support a conviction for the lesser offense. (People v. Wolfe (2018) 20 Cal.App.5th 673, 687.) Although inferences may constitute substantial evidence, they must be the probable outcome of logic applied to direct evidence; mere speculative possibilities or conjecture are infirm. (People v. Herrera (2006) 136 Cal.App.4th 1191, 1205; Kuhn v. Department of General Services (1994) 22 Cal.App.4th 1627, 1633; People v. Berti (1960) 178 Cal.App.2d 872, 876.) It is mere speculation on the state of the record that defendant lit and negligently oversaw the burning of the tea candles, let alone that they were the cause of the fire. Thus, defense counsel and the trial court were correct in concluding that an instruction on reckless burning was not warranted on the evidence in the present case.
DISPOSITION
The judgment is affirmed.
BUTZ, J. We concur: BLEASE, Acting P. J. MAURO, J.