Opinion
A147033
04-18-2017
THE PEOPLE, Plaintiff and Respondent, v. CECIL LAMAR FORT, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. VCR216225)
INTRODUCTION
A jury convicted defendant Fort of arson and other charges. In this appeal, defendant argues the People's arson expert should not have been permitted to testify because he did not have sufficient training. Defendant also contends the prosecutor committed prejudicial misconduct during his final summation by repeatedly arguing a fact not in evidence. We affirm.
STATEMENT OF THE CASE
By amended information filed in 2013 in Solano County, defendant was charged with residential burglary, arson with use of an accelerating device, possession of a flammable material, and battery on two police officers, on October 23, 2012. (Pen. Code, §§ 459, 451, subd. (b), 451.1, subd. (a), 453, subd. (a), 243, subd. (b).) The information also charged defendant with four misdemeanors on October 22, 2012: false imprisonment, battery, vandalism, and resisting arrest. (§§ 17/236, 243, subd. (e)(1), 594, subd. (b)(2)(A), 148, subd. (a)(1).) In addition, the information alleged two prior convictions and prior prison terms for enhancement purposes. (§§ 1170.12/667, subd. (b), 667, subd. (a), 667.5, subd. (b).)
Unless otherwise indicated, all further statutory references are to the Penal Code.
A jury acquitted defendant of burglary, false imprisonment and resisting arrest, convicted him on the rest of the charges, and found true the accelerating device allegation. The court found true all but one of the charged prior convictions and prior prison term allegations. Defendant was sentenced to a term of 25 years to life for arson, and a consecutive four-year term for using an accelerating device. The court imposed two consecutive five-year terms for the prior convictions. The remaining terms were stayed or made concurrent. Defendant timely appeals.
STATEMENT OF FACTS
The Argument
On October 22, 2012, L.A. lived in a townhouse in Benicia's Sunset Circle complex with her daughter and her mother. Defendant was living there temporarily and had a key. That evening, defendant and L.A. argued. L.A. believed defendant was seeing L.C., who lived in a townhouse across the way. L.A. and defendant "were kind of pushing one another around" and fell over each other.
During the argument, L.A.'s mother called the police. The police arrived and told defendant to leave. L.A.'s mother testified she heard defendant say, as he was taken off the premises, "I know how to get back at you." She also testified it was a violation of L.A.'s Section 8 housing agreement for defendant to stay at the apartment, which L.A. also admitted.
About an hour later, L.A. heard something on her patio and went out to investigate. There was a rock on her patio, damage to one of the sticks of the wooden railing, and defendant was in the driveway. The police were called again and this time arrested defendant, who was hostile and aggressive. L.A. left to spend the night at her brother's house.
Defendant's Whereabouts on the Day of the Fire
The next day, October 23, 2012, L.A. spoke to defendant between noon and 3:00 p.m. A neighbor spoke to defendant about two hours before the fire. Defendant was looking for his dog, and yelling, "I'm tired of that bitch." Two other neighbors saw defendant in the vicinity about an hour before the fire.
E.C. testified she lived in a unit in the Sunset Circle complex. Defendant often "hanged out" with her and her kids, but she denied they had a romantic relationship. The night before the fire, defendant came to her place to wait for a ride, saying he and L.A. had "got into it." The day of the fire, she bought defendant a beer at the local convenience store. He usually drank 211 malt liquor and had been drinking that brand that day out of a brown paper bag. Around 3:00 or 3:30 p.m., they walked back to her unit. E.C. had taken some medicine and it was kicking in when they got back. Defendant stayed on the couch downstairs on the ground floor, which has a separate entrance. Around "4ish," she was doing dishes upstairs and talking on the phone with her sister when one of her sons told her that L.A.'s house was on fire. She went downstairs and saw defendant on the couch, but she could not say whether defendant had been on the couch the entire time since their return to the house.
The convenience store owner testified E.C. bought a can of cola and a can of beer "day in and day out." He produced a receipt showing he sold a can of cola and a can of Old English malt liquor at 1:17 p.m. on the day of the fire. He believed it was the only can of Old English malt liquor he sold that day.
The Fire and Defendant's Arrest
Sometime after 3:20 p.m., another neighbor's son saw smoke coming out of L.A.'s unit and alerted his father. This neighbor heard the smoke alarms going off and called 911, then he ran to L.A.'s unit to see if anyone needed help. He saw a big shoe print on the front door, which was slightly open. As the neighbor pushed open the door, he saw damage to the door jamb. Inside the living room, he saw flames and a bottle of lighter fluid in the middle of the living room. He called out L.A.'s name as he went halfway up the stairs, but was forced back down by the smoke. There was a can in a paper bag on top of a dog crate located outside the front door.
Benicia police officer Mark Simonson and Benicia fire captain Gregory Petersen arrived at the scene around 4:10 p.m. Smoke was coming from the townhouse. Simonson also noticed a large decorative Halloween skeleton hanging on the door; at the height of the handle, there was a large shoe print. Inside the townhouse, Simonson saw a plastic Kingsford brand lighter fluid bottle on the carpet on the floor, with a small burned area around it. Simonson also saw there was a credenza on fire against the far wall.
Petersen extinguished the fire coming from the credenza, taking care not to disturb the bottle of lighter fluid on the floor. The wall behind the credenza was not yet on fire. The bottle had burnt paper located on top of it. The area around the bottle was also burnt, and it appeared to Petersen that fluid had spilled from the bottle onto the area that was burnt. That burnt area was separated from the credenza by an area of carpet that had not burned.
Benicia police evidence technician Laura Williams photographed the Halloween decoration with the shoe print, collected the beer can that was on top of the dog crate outside the front door of the townhouse, photographed the wave pattern on the sole of defendant's shoes, which was similar to the shoe print on the Halloween decoration, and took a swab from defendant for DNA testing.
Benicia police sergeant John Daley arrived at the scene while the credenza was fully engulfed in flames. About 15 to 30 minutes later, he saw defendant in the parking lot and contacted him. He noticed defendant's shoes had a zigzag pattern similar to the shoe print on the door and collected the shoes.
When defendant was arrested shortly after the fire was extinguished, he gave his address as E.C.'s townhouse, although DMV listed his residence as L.A.'s townhouse. Defendant appeared to have been drinking. A preliminary alcohol screening test administered about three hours after the fire yielded a reading of .198 percent, over twice the legal limit for driving.
Arson Investigation
Boyd Lasater, a senior criminalist with the California Department of Justice, testified as an expert in forensic fire debris analysis. He had been involved in the field of fire debris examination since 1998 and had examined fire debris in approximately 185 cases. He had testified as an expert 10 times.
Lasater received defendant's clothing after his arrest and tested a sample for fumes using a gas chromatograph and mass spectrometer. He concluded the sample contained a high concentration of medium petroleum distillates. Petroleum distillates are classified as light, medium, and heavy, and different consumer products are characterized by different petroleum distillates. Cigarette lighter fluid is classified as a light petroleum distillate. The three most common products characterized by medium petroleum distillates are charcoal lighter fluids such as Kingsford, some dry cleaning solvents, and paint thinner.
Each separate classification has a particular chemical signature or fingerprint that differentiates one classification from another. The chemical signatures of medium petroleum distillates are so different from gasoline they cannot be confused, although mixtures can be difficult to differentiate. There was no indication that chemical signatures were mixed in the sample tested.
Benicia firefighter engineer Scott Hansen testified, over objection, as an expert in incendiary fire investigation. He had never testified as an expert in incendiary fires or fire investigation before. He had been doing fire investigations for five years. The majority of his training had come from on-the-job experience. Mr. Hansen had been involved in over 100 fire investigations. Of these, 20 or 30 were fires he considered suspicious. He concluded that seven to 10 of those suspicious fires were incendiary, meaning arson.
Mr. Hansen was currently certified by the State of California as a fire investigator. In order to qualify as such, he had taken two classes in fire investigation and one on arrests, searches, and seizures. These classes were on how to determine the location, origin, and cause of car and residential structure fires, as well as fire pattern recognition, evidence collection, and wildfires. Specifically, he took a three-day class on the origins of fires two years after his investigation in this case. These classes were not mandated by the state for people in his field, but they were part of the continuing educational training required by his department.
Mr. Hansen was called in to investigate the fire at the Sunset Circle complex on October 23, 2012, at around 4:30 p.m. His report was written directly after his investigation. Mr. Hansen took photographs at the scene, in addition to the photographs taken by the evidence technician. Mr. Hansen referred to both sets of photographs throughout his testimony.
When he arrived the fire was already out but Benicia police officers and firefighters were still on scene. Prior to starting his physical examination of the residence, Detective Criado of the Benicia Police Department and Captain Petersen briefed him on their observations. He observed smoke staining above the front door and damage to the right-hand side of the front door. He noted a plastic bottle lying on its side right in front of the foyer and adjacent to the stairs. There was a piece of furniture along the north-side-facing wall. In addition, the piece of furniture had sustained major damage; it was deeply charred and almost completely destroyed. There was damage to the wall directly behind the piece of furniture and to the ceiling directly above it. There was also damage to the right-hand side of the piece of furniture and adjacent damage to the stairway. From the amount of damage on the wall, and the degree of severity of the burnt carpet, Mr. Hansen could tell that the fire started at or against the wall on top of the furniture, worked its way to the front, left, and right, and was stopped by the sheetrock wall that the piece of furniture was placed against. The carpet between the piece of furniture and the bottle was not damaged. However, the carpet around the bottle was burnt, and burnt pieces of paper were on top of and directly in front of the bottle.
Mr. Hansen concluded there were two different areas of origin for the fire. One was the piece of furniture against the wall. His conclusion was based on the level of calcination on the wall. Calcination is generated by heat. There was more calcination along the top rear behind the piece of furniture, and less calcination as the wall went up and out to the sides. Also, there was a V-shaped imprint against the wall showing where part of the wall was protected by the piece of furniture. There was also a debris pile containing the burnt remains of a doll set which, he concluded, had been on top of the piece of burned furniture. He did not know what started the fire on the piece of furniture. It did not appear that the bottle was the origin of the furniture fire.
The second area of origin was the plastic bottle. It looked like there were pour patterns, meaning it looked as though the liquid had been poured or splashed on the carpet prior to the fire starting. However, he could not tell how much liquid was poured on the carpet. His training with regard to pour patterns included his investigations of other fires involving liquid accelerants and classes he had taken in which they took swaths of carpet and poured different ignitable fluids on them. However, he had "never observed anything like that" before.
The lighter fluid bottle had some staining marks along the neck. The red cap was partly melted. The location of the staining and the deformity of the cap meant that the heat source was coming from below the bottle. From the level of melting, it seemed as if the hotter fire was towards the front. The fact that the under part of that piece of evidence was clean and had no smoke staining told him the bottle was lying down prior to the fire starting.
In addition, "there [was] also some paper material right in front of that cap laying on the ground which is partly burned." It struck him as odd that there would be paper and it appeared to him to be "a trailer or what they sometimes refer to as an accelerant." "Trailer means, in other words, a delay device, which means material was set on fire subsequently to igniting fluid in this case in order to get away from the scene prior to the buildup of heat in order to get the ignitable fluid burning." In his opinion, the paper was a possible delay device, meaning maybe it was and maybe it was not. The paper could have been used as a delay device to create "a delay in the process. It gives the person the opportunity to advance or to leave the area." However, he had never come across such a thing before in his fire investigations, although he had seen other possible delay devices at the scenes of other fire investigations. He always had some measure of doubt about them.
Mr. Hansen looked for other sources of possible accidental ignition, such as candles, incense, and smoking materials, and other heat sources, such as electrical outlets and extension cords, but found none. The gas had been turned off before he arrived, and he did not detect any gas leaks. Nor were any gas leaks or natural potential causes of fire reported in the area at the time. He therefore ruled out all possible natural accidental causes for this fire.
In his opinion, the fire was incendiary in nature, meaning it was intentionally set. His conclusion was based on a combination of factors: paper was found near or on top of the open Kingsford lighter fluid container; the contents of the bottle appeared to have been intentionally spilled in the area where the bottle was lying; the lighter fluid bottle was found on its side in the living room; two separate fires were found in the same residence; no explainable ignition sources were found; and there was forcible entry to the door. He could not determine which fire started first.
DNA Evidence
A single source profile was developed from DNA on the beer can. The profile was compared against a known reference sample taken from defendant by buccal swabs. The 15 markers were consistent between the DNA on the can and the reference sample from defendant. The criminalist calculated that only one person in 92 quadrillion African Americans, 3.4 quintillion Caucasians, and 10 quintillion Hispanics would match the DNA profile on the beer can.
DISCUSSION
Expert Testimony
Defendant argues the court abused its discretion in permitting firefighter engineer Hansen to testify as an expert in incendiary fire investigation because Mr. Hansen's formal course work on the origins of fire occurred after he investigated the scene of the fire in this case and wrote his report. We disagree.
The controlling consideration in determining the admissibility of expert testimony on any subject is whether the subject matter is "sufficiently beyond common experience" such that the testimony of an expert would be of some assistance to the jury. (Evid. Code, § 801, subd. (a); People v. McDonald (1984) 37 Cal.3d 352, 373 (McDonald), overruled on another ground in People v. Mendoza (2000) 23 Cal.4th 896, 914; People v. Valdez (1997) 58 Cal.App.4th 494, 506.) "[T]he admissibility of expert opinion is a question of degree. The jury need not be wholly ignorant of the subject matter of the opinion in order to justify its admission; if that were the test, little expert opinion testimony would ever be heard. Instead, the statute declares that even if the jury has some knowledge of the matter, expert opinion may be admitted whenever it would 'assist' the jury. It will be excluded only when it would add nothing at all to the jury's common fund of information, i.e., when 'the subject of inquiry is one of such common knowledge that men of ordinary education could reach a conclusion as intelligently as the witness' (People v. Cole (1956) 47 Cal.2d 99, 103)." (McDonald, at p. 367; see People v. McAlpin (1991) 53 Cal.3d 1289, 1300.)
Evidence Code section 720, subdivision (a) provides: "A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates. Against the objection of a party, such special knowledge, skill, experience, training, or education must be shown before the witness may testify as an expert." The trial court has wide discretion to determine whether an opinion passes this test, and its exercise of that discretion will not be disturbed on appeal absent a manifest abuse. (People v. Bolin (1998) 18 Cal.4th 297, 321-322.) "Error regarding a witness's qualifications as an expert will be found only if the evidence shows that the witness ' " 'clearly lacks qualification as an expert.' " ' " (People v. Farnam (2002) 28 Cal.4th 107, 162.) In fact, "[a] trial court 'will be deemed to have abused its discretion if the witness has disclosed sufficient knowledge of the subject to entitle his opinion to go to the jury.' " (Borrayo v. Avery (2016) 2 Cal.App.5th 304, 314.) " ' "Where a witness has disclosed sufficient knowledge of the subject to entitle his opinion to go to the jury, the question of the degree of his knowledge goes more to the weight of the evidence than its admissibility." ' " (People v. Bolin, at p. 322.)
"Whether a person qualifies as an expert in a particular case . . . depends upon the facts of the case and the witness's qualifications." (People v. Bloyd (1987) 43 Cal.3d 333, 357.) Applying these principles to the facts of this case and Mr. Hansen's qualifications, we conclude the court did not err in permitting him to testify. He had been a fire investigator for five years and had investigated over 100 fires. He candidly admitted that most of his training had been gained on the job. In our view, this level of training, by itself, rendered Mr. Hansen's observations of the scene he investigated, and his opinions about the number of fires set, the cause of at least one of those fires, and the possible purpose served by the paper on top of the bottle of lighter fluid, of some assistance to the jury. Knowledge of arson investigation is not so common that ordinary jurors could reach a conclusion as intelligently as the witness. In addition, since investigating the fire in this case, Mr. Hansen had enhanced his training by doing formal coursework that qualified him for state certification as a fire investigator. We do not see how gaining additional experience disqualified him from testifying as an expert in his field. It is a reasonable inference to be drawn from this record that the additional training Mr. Hansen received between his original investigation and his testimony only served to reinforce his confidence in the correctness of his original conclusions, or he would not have testified the way he did. No abuse of discretion appears.
Prosecutorial Misconduct
Defendant argues the prosecutor committed reversible misconduct during his final summation by repeatedly misstating criminalist Boyd Lasater's testimony about medium petroleum distillates and lighter fluid. We find that the prosecutor did overstate Mr. Lasater's testimony, but any possible harm was cured by the court's remedy. We therefore reject the claim of prejudicial prosecutorial misconduct.
Factual Background
The prosecutor stated five times, erroneously, that defendant's clothes bore the particular "chemical signature" of charcoal lighter fluid. Once, the prosecutor correctly argued that "the signature he detected was consistent with only a few products, lighter fluid being one of them." Defense counsel objected after each of the first three misstatements, but each time, the trial court overruled the objection. After the last occurrence, the prosecutor finished his argument and the proceedings were adjourned for the day. The next day, defense counsel restated his objections and moved for a mistrial. Alternatively, counsel asked for a curative instruction. Lastly, if the court was not going to grant that request, counsel asked that argument be reopened for him to have "two minutes to rebut those improvident comments." The court denied the mistrial motion and declined to give a curative instruction based on People v. Bolton (1979) 23 Cal.3d 208. The court stated it was not finding prosecutorial misconduct, although "it's close." It viewed the prosecutor's argument as "fall[ing] within the realm of arguing what inferences you can draw from the evidence, but the use of the word chemical signature lighter fluid, there is these other things it could have been. I think maybe the remedy would be to allow the lawyers to have a brief opportunity to reargue that point. That's not a bad idea. The question is then I would give both of you that opportunity to respond, and the people would have the final opportunity to rebut that. And we'll keep it to no more than five minutes." Neither attorney was happy with the court's decision. The prosecutor did not want to reopen at all, and defense counsel did not want the prosecutor to rebut. The court instructed defense counsel to refrain from arguing prosecutorial misconduct or making personal comments. Defense counsel agreed, stating, "[A]t no point did I call it prosecutorial misconduct." Defense counsel expressly stated he did not waive his previous request for mistrial or instruction.
The prosecutor argued: (1) "[S]o what about the clothes? Well, traces of charcoal lighter fluid, the chemical signature, was still on the defendant's clothes"; (2) "[A] chemical signature for this exact same product, charcoal lighter fluid"; (3) This chemical signature ended up on the clothing that the defendant is arrested in. . . . It's a chemical signature for which Mr. Lasater . . . said he would not mistake for gasoline"; (4) "[N]obody else [was] shown to have traces of the chemical signature for the same accelerant used in this fire on their clothes"; (5) "You have the chemical analysis done of his clothes showing traces of lighter fluid chemical signature." --------
General Principles
" 'The applicable federal and state standards regarding prosecutorial misconduct are well established. " 'A prosecutor's . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct "so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process." ' " [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves " ' "the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury." ' " ' " (People v. Smithey (1999) 20 Cal.4th 936, 960 (Smithey); accord, People v. Lopez (2013) 56 Cal.4th 1028, 1072, overruled on another point in People v. Rangel (2016) 62 Cal.4th 1192, 1216.) " '[W]hen the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.' " (Smithey, at p. 960; accord, People v. Dykes (2009) 46 Cal.4th 731, 772 (Dykes).) Our review of that question is deferential, insofar as "we 'do not lightly infer' that the jury drew the most damaging rather than the least damaging meaning from the prosecutor's statements." (People v. Frye (1998) 18 Cal.4th 894, 970, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22; Dykes, at p. 772.)
Lasater testified that defendant's clothes bore the chemical signature of a medium petroleum distillate, a classification that included charcoal lighter fluid, dry cleaning solvent, and paint thinner. Assuming the prosecutor's misstatements of Lasater's testimony constituted misconduct, we agree with the trial court it was remediable. Critical to our analysis is that the prosecutor's overstatements fell well within the range of inferences that could be drawn from the testimony in this case. There was no evidence that dry cleaning solvents or paint thinners were used to start these fires, but there was undisputed evidence that a bottle of lighter fluid was found at the scene of the crime. Under these circumstances, the prosecutor's comments at worst suggested that lighter fluid was the only common product containing medium petroleum distillates, and at best conflated the two parts of the permissible inference that the petroleum distillate found on defendant's clothing came from lighter fluid, and not from either cleaning solvent or paint thinner, since only lighter fluid was found at the scene of the fires. As noted above, we draw the least damaging inference rather than the most damaging inference from the prosecutor's comments during argument. Here, the prosecutor did not draw an inference that was wholly outside the evidence adduced at trial. This fact distinguishes the case under review from People v. Bolton, supra, 23 Cal.3d 208. In Bolton, the prosecutor insinuated that the defendant had a record of prior convictions and a propensity for wrongful acts, a fact, if it was one, on which no evidence had been adduced at trial. (Id. at pp. 211-212.)
As egregious as the misconduct was in Bolton, that court did not reverse. "Reversal of judgment is designed not so much to punish prosecutors as to protect the fair trial rights of defendants. Hence, in the absence of prejudice to the fairness of a trial, prosecutor misconduct will not trigger reversal." (People v. Bolton, supra, 23 Cal.3d at p. 214.) Here, the trial court could have given an admonition, but its chosen remedy cured the harm from the prosecutor's overstatement of the evidence. In their reopened arguments, the attorneys did not misstate the evidence, focused the jury's attention on the actual testimony at issue, and corrected the misimpression left by the prosecutor's prior comments. Under these circumstances, there is no reasonable probability that a result more favorable to defendant would have occurred had the prosecutor refrained from overstating his case before argument was reopened. (People v. Bolton, at p. 214.)
DISPOSITION
The judgment is affirmed.
/s/_________
Dondero, J. We concur: /s/_________
Humes, P. J. /s/_________
Banke, J.