Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Stanislaus County. Donald E. Shaver, Judge, Ct. No. 1101399
Jean M. Marinovich, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stan Cross and Susan Rankin Bunting, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HILL, J.
A jury convicted defendant Michael Dwain Weatherwax of arson (Pen. Code, § 451, subd. (d); count 1) and attempted arson (§ 455; count 2). The trial court found that defendant had a prior serious felony conviction within the meaning of section 667, subdivisions (a) and (d), and that he had served two prior prison terms within the meaning of section 667.5, subdivision (b). The court sentenced defendant to a total prison term of 10 years.
Further statutory references are to the Penal Code unless otherwise specified.
On appeal, defendant contends: (1) the trial court erred by failing to instruct sua sponte on attempted arson as a lesser included offense of arson; (2) the trial court erred in failing to instruct sua sponte regarding unanimity; (3) the trial court erred in giving a special instruction, based on a note to CALCRIM No. 1515, which told the jury that burning trash that does not belong to the defendant is arson, and that there is no requirement for arson that the property belong to anyone; (4) the trial court erred in staying rather than striking one of the prior prison term enhancements; and (5) the abstract of judgment contains clerical errors which must be corrected. We agree with defendant’s last two contentions, and order the abstract of judgment to be amended accordingly. In all other respects, the judgment is affirmed.
FACTS
Defendant’s arrest for the current offenses was a result of undercover surveillance by Modesto police and fire investigators on November 29, 2005. On that date, around 3:00 a.m., defendant left his residence and walked to the loading dock area behind a Longs Drug Store. Next to the loading dock was a pile of wood pallets and a shopping cart with debris in it. Defendant took a box from the shopping cart, placed it between the pallets, and then walked away, looking back at the pallets. The box appeared briefly to be on fire. A flame flickered for three to five seconds and then went out. Defendant hesitated for a moment, but when a truck pulled into the driveway, he continued walking and went inside the drugstore.
Defendant stayed inside the drugstore for approximately a half-hour. A drugstore cashier testified that defendant purchased soda and chocolate milk. Defendant was observed exiting the store carrying a plastic bag with items inside it. Defendant returned to the loading dock area, shoved something else inside the wood pallets, and walked away quickly. Another flame appeared which grew six to eight inches. Defendant was arrested at his residence shortly afterwards. Defendant dropped a lighter when he was handcuffed. Defendant initially denied any involvement in the incident but later admitted setting the fire. He claimed it was a warming fire.
After defendant was arrested, fire investigator Craig Davis went to the drugstore. There was still a small amount of active fire in the stack of pallets. Davis took photographs before the fire was extinguished. Davis described the stack of pallets as consisting of 13 pallets with the fire appearing to be on the ninth pallet from the bottom. Davis described a photograph depicting the fire in the pallets as follows: “It’s still the same stack of pallets. The fire, you can see, is getting smaller, but there’s some material that’s shoved inside that pallet. It is a box of like Little Debbies snack food, with some papers and wrappings, shrinkwrap material shoved in there, with like a little [tail] hanging down.…” One of the photographs showed a brown plastic bag burning. Davis also observed charring on the bottom side of the pallet which had been directly above the flame. Davis defined “charring” as “the carbonaceous material that’s left over after a burning of an item.”
Fire investigator Douglas Machado opined that the fire was an intentional fire. Machado examined the material that had been used to ignite the fire and described it as follows: “We had a rectangular box, I believe it was like a donut box, a Dolly Madison donut box. We had some cellophane that was burning, I believe there was a paper bag that was also there in the area.” Machado also observed charring of the wood pallet. Machado defined “charring” as “a carbonaceous material that has been burned and has a blackened appearance.”
DISCUSSION
I. Failure to instruct on lesser included offense
With respect to count 1, defendant contends the trial court erred in failing to instruct the jury sua sponte on attempted arson (§ 455) as a lesser included offense of arson (§ 451, subd. (d)). Defendant asserts that the evidence supported an instruction on attempted arson because the jury could have reasonably found that the wood pallets were merely “blackened” rather than “charred” (i.e., burned), and that the trash defendant burned was his own. Because arson requires burning property that does not belong to the defendant, defendant contends the jury could have found he merely attempted to burn the pallets during the second incident, which formed the basis of count 1. Assuming without deciding the court committed instructional error by failing to instruct on attempted arson, we conclude the error was harmless in this case in light of the strong, uncontradicted evidence defendant succeeded in burning the pallets during the second incident.
Section 451 provides in relevant part: “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.… [¶] (d) … For purposes of this paragraph, arson of property does not include one burning or causing to be burned his or her own personal property unless there is an intent to defraud or there is injury to another person or another person’s structure, forest land, or property.” (Italics added.)
“The erroneous failure to instruct on a lesser included offense generally is subject to harmless error review under the standard of People v. Watson (1956) 46 Cal.2d 818, at pages 836–837. Reversal is required only if it is reasonably probable the jury would have returned a different verdict absent the error or errors complained of. [Citations.]” (People v. Rogers (2006) 39 Cal.4th 826, 867-868, fn. omitted.)
“In determining whether a failure to instruct on a lesser included offense was prejudicial, an appellate court may consider ‘whether the evidence supporting the existing judgment is so relatively strong, and the evidence supporting a different outcome is so comparatively weak, that there is no reasonable probability the error of which the defendant complains affected the result.’ [Citations.]” (People v. Rogers, supra, 39 Cal.4th at p. 870.)
Our review of the record reveals no reasonable probability the jury would have returned a different verdict had it been instructed that attempted arson was a lesser included offense of arson. The evidence supporting defendant’s conviction of arson was relatively strong. The prosecution presented uncontroverted testimony from fire investigators establishing that one of the wood pallets was charred as a result of defendant’s ignition of the trash he placed inside the pallets. The fire investigators, who testified as experts in their field, described “charring” as the carbonaceous material left over as a result of the wood being burned.
By contrast, evidence suggesting that defendant attempted but failed to burn one of the wood pallets was comparatively weak, if nonexistent. The defense did not dispute the investigators’ definition of “charring” or offer any evidence to refute the investigators’ opinions that the second fire resulted in charring of one of the pallets. Instead, defense counsel suggested in closing argument that the investigators’ opinions were insufficient because they were based on visual observation alone, and because the pallets were not physically tested or collected as evidence. Defense counsel invited the jury to draw an inference that the blackening depicted in the photographs was “basically soot” caused, not by the burning of the wood itself, but by the burning of the plastic bag defendant obtained when he purchased items from the drugstore and argued that because the bag belonged to defendant, his act of burning it did not constitute arson. Alternatively, defense counsel argued that “…if you believe that based on these photos and the opinion of the fire marshal that the wood itself was consumed by the flame, then I would submit to you that this is merely a reckless conduct and not of a willful and malicious nature.”
The jury was properly instructed that unlawfully causing a fire was a lesser included offense of arson. (See e.g., People v. Schwartz (1992) 2 Cal.App.4th 1319, 1324-1325.)
Given the relative strength of the evidence that defendant succeeded in burning one of the wood pallets and the relative weakness of evidence to the contrary, we do not find it reasonably probable that the jury would have returned a different verdict if the court had instructed on attempted arson as a lesser included offense of arson in count 1. Accordingly, we reject defendant’s claim that prejudicial error occurred.
II. Failure to give unanimity instruction
Defendant contends the prosecution relied on two separate acts or events during the second incident to prove the offense of arson charged in count 1: setting fire to the trash and burning one of the wood pallets. Defendant argues that the trial court erred by failing to instruct sua sponte on unanimity because jurors may have not agreed as to which of the two acts constituted the offense. We conclude that no unanimity instruction was required because the prosecution relied on, and the evidence showed, a continuous course of conduct that began when defendant ignited the trash and ended when one of the wood pallets was burned.
“When a defendant is charged with a single criminal act but the evidence reveals more than one such act, the prosecution must either select the particular act upon which it relies to prove the charge or the jury must be instructed that it must unanimously agree beyond a reasonable doubt that defendant committed the same specific criminal act. [Citations.] The unanimity requirement is constitutionally rooted in the principle that a criminal defendant is entitled to a verdict in which all 12 jurors concur, beyond a reasonable doubt, as to each count charged. [Citations.]” (People v. Brown (1996) 42 Cal.App.4th 1493, 1499-1500.) “Even absent a request, the court should give the instruction ‘where the circumstances of the case so dictate.’ [Citation.]” (People v. Riel (2000) 22 Cal.4th 1153, 1199.)
A unanimity instruction is not required, however, if the case falls within the continuous course of conduct exception. This exception arises in two contexts. The first occurs when the acts so closely connect that they form part of one and the same transaction, and thus, one offense. (E.g., People v. Mota (1981) 115 Cal.App.3d 227, 231-234 [repeated acts of rape during one hour].) The second occurs when the statute contemplates a continuous course of conduct of a series of acts over a period of time. (People v. Thompson (1995) 36 Cal.App.4th 843, 851.)
Defendant selectively quotes from the prosecutor’s closing and rebuttal arguments to support his assertion that the prosecution relied on two separate acts to support the arson count. However, our review of all the evidence and argument in this case reveals that defendant’s setting fire to the trash to burn the pallets was part of a continuous course of conduct; and the prosecutor characterized defendant’s actions as such. The prosecutor never argued that the jury could find defendant guilty of arson based on the burning of the trash alone but discussed the events of setting the fire and burning the wood to emphasize the strength of the evidence against defendant. The prosecutor noted, for example, that in arson cases there are often no witnesses to the actual setting of a fire, as when fire fighters arrive at the scene of a fire after it had already been set. In contrast, here, there was eyewitness testimony regarding both the setting of the fire and the resulting damage to the wood. However, contrary to defendant’s assertions, the prosecutor did not treat these as distinct criminal acts but addressed them as part of a continuous course of conduct. Moreover, the evidence presented indicates the acts occurred sufficiently “close in time” to form a single transaction. (People v. Haynes (1998) 61 Cal.App.4th 1282 [two encounters minutes apart amounted to one robbery].) Under these circumstances, a unanimity instruction was not necessary.
III. Special instruction
Next, defendant contends the trial court erred in giving a special instruction, requested by the prosecution. The special instruction was taken verbatim from one of the notes to CALCRIM No. 1515, the instruction defining the crime of arson. The special instruction stated: “Burning trash that does not belong to the defendant is arson. [¶] There is no requirement for arson that the property belong to anyone.”
The CALCRIM note on which the instruction was based refers to In re L.T. (2002) 103 Cal.App.4th 262, review denied January 15, 2003. In that case, the juvenile defendant burned cardboard inside a trash can located at her school. (In re L.T., supra, 103 Cal.App.4th at p. 263.) The court of appeal rejected the defendant’s argument that she did not commit arson because “she merely burned trash, and that trash is not ‘property’ that belongs to anyone.” (Id. at p. 264.) The court held:
“The trash burned does constitute ‘property’ referred to in the arson statute (§ 451). The Penal Code defines ‘property’ to include ‘personal property, ’ which, in turn, includes ‘money, goods, chattels, things in action, and evidences of debt.’ [Citations.] Trash fits within this definition. ‘Goods’ and ‘chattels’ are things that are ‘visible, tangible, movable’ and are ‘objects of the senses.’ [Citations.]
“Whatever might be the definition of ‘property’ in other contexts, the Penal Code definition is applicable to the arson statute. Other definitions of ‘property, ’ however, are consistent with the Penal Code provision. ‘“The word ‘property’ has been subjected to innumerable and various definitions. Courts have said that the word ‘property’ is ‘all-embracing so as to include every intangible benefit and prerogative susceptible of possession or disposition.’ [Citations.] [¶] . . . [¶] [T]he construction of the word ‘property’ depends on the context with which it is used and signifies ‘any valuable right or interest protected by law.’”’ [Citations.] Property thus has been broadly defined to include anything subject to ownership. [Citations.] Trash is a ‘thing of which there may be ownership.’ (Civ. Code, § 654.)
“In addition, ‘it is appropriate to note that the word “property” is commonly used in two different senses. First, it is applied to those external things which are the objects of rights or estates, to those things which, in the language of Blackstone, are objects of dominion or property. [Citation.] It is also applied to the rights or estates which a man may acquire in and to things.’ [Citations.] Here, we use the term ‘property’ as referring to an object rather than to rights. In contrast, in theft-based offenses, the term ‘property’ includes the ‘right to use or possess a thing or the exclusive ownership of a thing’ [citation], because theft is the taking or stealing of ‘personal property of another.’ (§ 484.) Thus, rights utilized for such offenses are not applicable to the definition of property in the arson statute. The Penal Code definition of property that is applicable to the arson statute contains no requirement that the object belong to anyone. Accordingly, the ‘trash’ L.T. burned is ‘property’ covered by the arson statute.” (In re L. T., supra, 103 Cal.App.4th at pp. 264-266.)
After holding trash constituted property within the meaning of the arson statute, the court concluded:
“The trash did not belong to L.T. The trash was in a container on school property. There is no evidence that L.T. did any act causing the trash to become her property before she set fire to it. L.T.’s theory that by burning the trash, it became her property, is meritless. Whether the trash L.T. burned belonged to the school, the city, or the city trash collectors or was abandoned property does not alter the fact that the trash did not belong to L.T. [¶] By burning property not belonging to her, L.T. committed arson as defined in section 451.” (In re L.T., supra, 103 Cal.App.4th at pp. 266-267.)
In the instant case, the defense initially agreed to the special instruction being given and never argued that it was an incorrect statement of law. However, the day after it was proposed by the prosecution, the defense raised the following objection:
“[DEFENSE COUNSEL]: Well, Your Honor, I would object. In that since this case is really about the pallets and not about the mechanism that he used to try to ignite the pallets, I mean, he’s not being charged with burning trash here, realistically he’s being charged with trying to burn these pallets behind Longs Drug Store, and they were used there as a mechanism to try and burn the pallets.
“THE COURT: Yeah, I think it’s – it’s clear that the jury could not find – could not base a finding of arson on burning of the Little Debbie box only. But I think I can leave that up to the attorneys to make clear to the jury. If the jury were to think well, just burning pallets couldn’t possibly be arson, they might consider it that way. So on that issue, I think the instruction is appropriate.”
Defendant now contends the special instruction was impermissibly ambiguous, misleading, and confusing. He argues that it was not clear whether the “trash” referred to in the instruction applied to the pallets, the trash, or both, and that the instruction failed to provide any guidance to the jury as to how to determine whether or not trash belonged to defendant. Defendant argues that unlike In re L.T., here, the jury could have found that he did acts causing items of trash to become his own, and points out that no one ever referred to the wood pallets as trash. Thus, defendant argues “it is highly likely that the instruction actually encouraged the jury to convict [defendant] of arson based on the burning of the trash [defendant] brought with him, which the judge indicated could not support a conviction.” We find defendant’s contentions unpersuasive.
Initially, we reject defendant’s suggestion on appeal that In re L.T., supra, 103 Cal.App.4th 262 was wrongly decided. Defendant argues that we should instead find that trash by its very nature is abandoned property, and that a person who acquires or makes use of trash converts it to his or her own personal property for purposes of the arson statute. The court in In re L.T. rejected a similar argument. (Id. at pp. 266-267.) We find the court’s analysis persuasive, and conclude the special instruction was a correct statement of the law.
Turning to defendant’s main contention, even if defendant has not forfeited his claim by failing to request clarifying instructions, we disagree that the special instruction was ambiguous or misleading because it did not distinguish between pallets and trash, or tell the jury how to determine whether or not trash belonged to him. These were issues that the court rightly left up to counsel to argue. The special instruction was correct in law and was responsive to the evidence presented because there was evidence defendant burned trash in the second incident on which the arson count was based. The jury could have also reasonably viewed the pallets as trash that had been discarded based on testimony of a drugstore cashier that broken pallets were sometimes left outside the store, while undamaged pallets were returned to the warehouse. The special instruction correctly informed the jury that it could convict defendant of arson based on the burning of trash that did not belong to him, and that the property did not have to belong to anyone.
As defendant acknowledges, the evidence was inconclusive as to where the trash burned and the second incident originated. The plastic bag found burning inside the pallets may or may not have been the bag that defendant was seen carrying out of the store. The special instruction did not preclude the defense from arguing that the jury should infer the bag belonged to defendant because the circumstances suggested it was likely the one defendant was given when he purchased merchandise from the drugstore. We do not agree that the question of whether or not trash belonged to defendant was so technical that the jury required further clarification, or that it was likely the jury convicted defendant of arson based on burning property belonging to him, even though it was specifically instructed otherwise. On this record, “[t]here is no reasonable likelihood the jury was confused and misconstrued or misapplied the instruction[s] [citation], and defendant’s argument to the contrary is speculation.” (People v. Harrison (2005) 35 Cal.4th 208, 252; see People v. Smithey (1999) 20 Cal.4th 936, 964 [no reasonable likelihood instruction could have been understood in manner suggested by defendant].) Accordingly, we find no cause for reversal.
IV. Failure to strike one of the prior prison term enhancements
The trial court found defendant suffered a prior serious felony conviction within the meaning of section 667, subdivision (a), as well as a prior prison term within the meaning of section 667.5, subdivision (b), based on a July 8, 1997, conviction for violating section 288, subdivision (a). The trial court imposed a five-year enhancement under the former section and stayed the one-year prior prison term enhancement under the latter section.
The court also imposed a one-year prior prison term enhancement based on a March 14, 2000, conviction for violating section 666.
Relying upon the authority of People v. Jones (1993) 5 Cal.4th 1142 (Jones), defendant contends the trial court erred in staying the one-year prison term enhancement. Defendant argues that it should have been stricken because “two enhancements, one under section 667, subdivision (a), and another under section 667.5, subdivision (b), may not be imposed for the same prior conviction.” The People counter that it is unclear under Jones whether the unused enhancement must be stricken or merely stayed, and under California Rules of Court, rule 4.447, the proper procedure is to stay it.
Enhancements for the same prior conviction cannot be imposed under both section 667.5, and 667. (Jones, supra, 5 Cal.4th at p. 1153.) While the Supreme Court in Jones did not specifically discuss whether this limitation should be effectuated by staying or striking the section 667.5 subdivision (b) enhancement (the lesser penalty), it explicitly instructed the trial court to strike the section 667.5 enhancement. Although the Supreme Court did not discuss this instruction, we do not assume that it was given without consideration of the proper manner of handling such matters. Therefore, we follow its lead.
The People rely on the language in People v. Lopez (2004) 119 Cal.App.4th 355. We find the discussion in that case to be inapposite, as it involved whether the multiple victim special circumstance under the habitual sexual offender law (§ 667.71) must be stricken when the trial court has decided to sentence the defendant under the alternative sentencing scheme of the one strike law (§ 667.61). It did not involve whether section 667, subdivision (a) and section 667.5, subdivision (b) could both be imposed for the same underlying offense. Further, Lopez concluded that the multiple victim special circumstance could not be stricken because to do so would violate the express language of section 667.61, which states in relevant part, “ (g) Notwithstanding Section 1385 or any other provision of law, the court shall not strike any allegation, admission, or finding of any of the circumstances specified in subdivision (d) or (e) for any person who is subject to punishment under this section.” (See People v. Lopez, supra, 119 Cal.App.4th at p. 361.) There is not equivalent language in section 667.5, subdivision (b).
V. Correction of abstract of judgment
Defendant contends, and the People concede, that the abstract of judgment contains a number of clerical errors, which must be corrected to show the actual sentence imposed by the trial court.
The abstract of judgment currently reflects that defendant received a two-year, middle term sentence on count 1, but does not reflect that the court ordered the term doubled as a second strike. The abstract of judgment also erroneously reflects that the court imposed two, one-year terms for a total of two years under section 667.5, subdivision (b), a five-year term under section 667, subdivision (d), and a one-year term under section 667, subdivision (a).
We will therefore order that the abstract of judgment be corrected to reflect the total sentence of 10 years was calculated as follows: on count 1, the middle term of two years, doubled to four years as a second strike, plus a five-year term for the prior serious felony conviction (§ 667, subd. (a)), and one one-year term for the prior prison term enhancement (§ 667.5, subd. (b)) (for reasons discussed above, the other prior prison term enhancement must be stricken). The abstract of judgment correctly reflects that defendant’s middle term sentence on count 2 for attempted arson was stayed under section 654.
DISPOSITION
The judgment is affirmed. The superior court is directed to prepare an amended abstract of judgment, consistent with the views expressed in this opinion, and to forward it to the Department of Corrections and Rehabilitation.
WE CONCUR: WISEMAN, Acting P.J., GOMES, J.