PEOPLE v. GOOLSBY

Appellant’s Answer to Petition for Review

Cal.March 14, 2014

SUPREME COURT FILED $216648 yar 14 2014 Frank A. McGuire Clerk IN THE SUPREME COURT OF CALIFORNIA Deputy ) Court ofAppeal No. E052297 PEOPLE OF THE STATE OF ) ) San Bernardino County CALIFORNIA, ) Superior Court No. FSB905099 Plaintiff and Respondent, vs. 3 RICHARD GOOLSBY, ) Defendant and Appellant _) ) ANSWERTO PETITION FOR REVIEW Appeal from the Judgment ofthe Superior Court ofthe State of California for the County of San Bernardino HONORABLEBRYANF. FOSTER, JUDGE Steven S. Lubliner (State Bar No. 164143) P.O. Box 750639 Petaluma, CA 94975-0639 Phone: (707) 789-0516 Fax: (707) 789-0515 e-mail: sslubliner@comcast.net Attorney for Appellant By appointment ofthe Court ofAppeal Under Appellate DefendersInc.’s Independent Case System TABLE OF CONTENTS INTRODUCTION STATEMENTOF FACTS ARGUMENT L. I. THE PETITION FOR REVIEW SHOULD BE DENIED. THIS CASE DOES NOT MEET THIS COURT’S STANDARDSFOR REVIEW. THE COURT OF APPEAL CORRECTLY DECIDED THE QUESTION OF REMEDY. RETRIALIS ALSO BARRED BY DOUBLE JEOPARDY. A. B. C. Procedural Background This Case Does Not Meet the Tests for Review. A NewTrial May Not Be Granted After a Conviction is Reversed for Want of Substantial Evidence. The Court of Appeal Correctly Held that Retrial is Barred by Penal Code section 654 and Kellett. Because the Jury Was Discharged Without Reaching a Verdict on Arson of Property, Retrial is Also Barred by Double Jeopardy. Perceptions of Appellant’s Dangerousness or Lack Thereof Cannot Dictate the Outcome. ADDITIONAL ISSUE PRESENTED FOR REVIEW: APPELLANT’S ARSON CONVICTION VIOLATED THE DUE PROCESS CLAUSE OF THE UNITED STATES CONSTITUTION AND CALIFORNIA LAW BECAUSETHERE WAS NO SUBSTANTIAL EVIDENCE THAT HE ACTED WITH THE MALICE REQUIRED FOR ARSON. PAGE 10 1] 15 19 20 TABLE OF CONTENTS(cont.) PAGE A. Introduction 20 B. Standard of Review 21 C. Statement of Facts 22 D. The Merits 25 CONCLUSION 30 CERTIFICATION OPINION OF THE COURT OF APPEAL il TABLE OF AUTHORITIES Cases Burks v. United States (1978) 437 U.S. 1 .ccccsccssssssssssssecsscssessecsseseeenees 13,19 Downum v. United States (1963) 372 U.S. 734 .ceccccscssesssssseesscsseennes 15, 16 Evans v. Michigan (2013) 133 S.Ct. 1069.0.eescnesseecettetecsesessssesseees 17 Fong Foo v. United States (1962) 369 U.S. 141...ecceccestecestescesessesesenees 17 In re VV. (2011) 51 Cal. 4 1020 w.cecscscssssssesscsssescssscsssessseesseesseeses 2, 27, 28 In re Winship (1970) 397 U.S. 358...ccc eesssccecceeseeceseseeeeeeaeesaeeneeseseeesnees21 Jackson v. Virginia (1979) 443 U.S. 307... cccccsssscesesssesseseeseecesseeeessseeateaees 21 Kellett v. Superior Court (1966) 63 Cal. 2d 822 .....cceescesseesseeerseeespassim Orlina v. Superior Court (1999) 73 Cal. App. 4% 258 ....ccssscsssesesseees 8, 9, 10 People v. Atkins (2001) 25 Cal. 4% 76 w.ccesesscssssssssssssssessscstsssessessessesreseneenees 27 People v. Breverman (1998) 19 Cal.4th 142 .ocecccescssssssccseescesscnsestecesees 18 People v. Elize (1999) 71 Cal.App.4th 605 oc.eecesssesccesssesssecesssresseesses 18 People v. Hatch (2000) 22 Cal. 4" 260 v.ovcccecsssscsscessessescessssessrsssestesessesees 13 People v. Pierce (1979) 24 Cal. 3d 199...cccescssscssstscssscssssssssssssssneseees il People v. Rodriguez (1999) 20 Cab. 4° Lovcececsscsssssssssssscssesescecessssesesaeeaes22 People v. Sullivan (2013) 217 Cal. App. 47° 242 vucccesssscseeeeteeees 15, 16 People v. Toro (1989) 47 Cal. 3d 966 .....cceccescccsccseesesssereesseensens 7, 8, 10, 14 People v. Wickersham (1982) 32 Cal. 3d 307......c.cccsccccesssestessseseessssssseeees 18 Sanders v. Superior Court (1999) 76 Cal. App. 4° 609.......ccssssescessescesseeees 13 Stone v. Superior Court (1982) 31 Cal. 3d 503 vou. ecesceseseseees 8, 9, 15, 16 United States v Martin Linen Supply Co. (1977) 430 U.S. 564.....ccccceceee 15 United States v. Perez (1824) 22 U.S. 579 voccccsssscsscscscccssessecsssesssessseeesees 15 ill Statutes Penal Code § 7 ou... .cccescsscssscssseessccsssesssssscssesssseesteesesenecsaescescsesseessessaceseeaes26 Penal Code § 450 woosecsesceesseeseesecscsersseresetsecsensansaeeseseseeseesaessesesesanes26 Penal Code § 451 wou... cccsccsssscsessstessessecesssssssssscescssscsssscsssssessesssenseues 2, 5, 26 Pernal Code § 451.1 vei cccsscsssssssecseesscsceessseceesessseensneeessonsessesseseaeesneensenss 2, 6 Penal Code § 452 oo... cecescssscsssnscsssscsssacesssseeseeeseseeseteseeecseceseesesesesecssceeeens26 Penal Code § 654 oo... cesscsscssscssssessscsssresssesssscecssessssescessesesteseseeseespassim Penal Code § 667 .....ccececesscsscscsscesscecessencecacscensssessesnessssaeseeesseeeseeneeees 2, 3,6 Penal Code § 667.5 .......ccccescccssssssssccesscsssccsssccsssecssessesecsossstccaecsestscaccerenses2,7 Penal Code § 954 oo... ccsccssccssssesesscssssecsessesseessesesseessecsssssecssescsscensaes 11, 12 Penal Code § 1023 ooo... eesccssscccssccsssscssesscessesseeceseeeseesensessserssesceescsseeesssess 9 Penal Code § 1160 woo... ecsssecsssecesscccscesssrecsesssseesssseessssssesessscesasessseeers 9 Penal Code § 1180 wou... ccccccsssscsesseessecsssessessccseeceseeesssecscsessceesscessesesecsnees 11 Penal Code § 2933.1... ccsesscssssccesssscesesstsesseessessesescssscensescscesssescsesscesesseseeeas6 Rules California Rules of Court, Rule 8.500 o.oo...eeeeseccesceccccceceescececessens 7, 20 Constitutional Provisions United States Constitution, 5" AmeNdMeNt......c.ccscsecsesecesceseceseeseseeseess 10, 15 United States Constitution, 14Amendment.........ccccccccscccsssssssssscseseseeeceeee 21 iv INTRODUCTION The only permitted remedy when a conviction is reversed for wantof substantial evidence is dismissal. The Court ofAppealcorrectly held that any retrial or newtrial is barred by Penal Code section 654 as interpreted by this Court in Kellett v. Superior Court (1966) 63 Cal. 2d 822. Although the Court ofAppeal did not deem it necessary to reach the issue, retrial is also barred by Double Jeopardy principles because the jury was discharged without reaching a verdict on the lesser related offense of arson ofproperty; ignorance of the law bythetrial court and the prosecutor does not create the kind of “manifest necessity” necessary to permitretrial. Respondentinvites this Court to recognize a new legal concept: the “open charge”that, in a blunderthat is usually dismissed by reviewing courts as invited error, the prosecution failed to insist be decided. This Court should decline the invitation because neither Kellett nor Double Jeopardy brooks such a creation. This Court should also decline the broaderinvitation to rescue the prosecutor from her unwillingness, in a case involving a defendantin his fifties, to consider settling for any Three Strikes sentence short of the 48-to-life sentence that she believed could be had if she could prevail on her view that a motor homewasa building. Respondent’s petition for review should be denied. If review is granted this Court should also review appellant’s claim that his arson conviction fails for want of substantial evidence when properly analyzed underthis Court’s governing case, In re V.V. (2011) 51 Cal. 4" 1020. STATEMENT OF THE CASE Appellant was convicted by ajury of arson of an inhabited structure in violation of Penal Code section 451, subdivision (b). Thejury also found that appellant had caused multiple structures to burn within the meaning of Penal Code section 451.1, subdivision (a). The jury acquitted appellant of attempted murder. In a benchtrial, the trial court found that appellant had suffered three prior convictions that constituted “strikes” as well as serious felony priors within the meaning ofPenal Code section 667, subdivision (a). Thetrial court also found that appellant had suffered three different convictions that constituted prison priors within the meaning of Penal Code section 667.5, subdivision (b). With enhancements, appellant received a Three Strikes sentence of48 years to life. (2 RT 418-419; 2 CT 296-298, 311-314.)' He appealed. The case wasbriefed andarguedat the Court’s request. Pertinent here, in its unpublished opinion of February 14, 2013, the Court ofAppeal rejected appellant’s argument that appellant had at most committed the lesser crime ofunlawfulfire rather than arson. It held that two ofthe three five year enhancements under Penal Code section " RT=Reporter’s Transcript in two volumes. CT=Clerk’s Transcript in two volumes. Pet.=Respondent’s Petition for Review. 667(a) should not have been imposed because they were not brought and tried separately. It also held that because the motor homesthat burned in this case are not structures, appellant was improperly convicted of arson of an inhabited structure. It set aside the five-year enhancement imposed under Penal Code section 451.1 for burning multiple structures, andit reduced appellant’s conviction to arson of property. The effect of the first opinion was to reduce appellant’s sentence from 48tolife to 33 to life.’ Appellantfiled a timely petition for rehearing on fourissues, two of whichare relevant here: 1) the Court of Appeal’s holding that substantial evidence supported the arson conviction; and 2) the issue of whetherarson of property is a lesser included offense of arson of an inhabited structure so as to permit the reduction of appellant’s conviction to that offense. On March 8, 2013, the Court ofAppeal granted rehearing, vacated its opinion and requestedletter briefs on the issue of whether arson of property wasa lesser included offense to arson of an inhabited structure. In its briefing, respondent conceded that arson of property was not a lesser included offense of arson of an inhabited structure to which appellant’s conviction could be reduced. Respondent argued, however, that the Court ofAppeal should order a newtrial on arson of property. Appellant obtained leaveto file a response to this new argument and did so. On April * Appellant seeks review ofhis claim that there was no substantial evidence to support his arson conviction. The Court of Appeal’s most recent opinion, the only one currently in force, did not address this argument. 30, 2013, the Court of Appeal filed a published opinion holding that because arson ofproperty was not a lesser included offense to arson of an inhabited structure, appellant’s conviction could not be reducedto that offense. It held that a new trial was not a permitted remedy and ordered the case dismissed. Respondentthenfiled a timely petition for rehearing, which the Court granted on May 20, 2013, vacating its published opinion. The Court requested further letter briefing on 1) the lesser included offense issue, 2) whetherretrial would be barred by Penal Codesection 654 as construed in Kellett v. Superior Court (1966) 63 Cal. 2d 822, 3) whether retrial would be barred by Double Jeopardy principles, and 4) any other issue the parties deemedrelevant to the disposition of the case. In the briefs, respondent adhered toits position that arson ofproperty was not a lesser included offense of arson of an inhabited structure but that retrial was the proper remedy. Appellant argued thatretrial was barred by both Kellett and Double Jeopardy. Appellant also asked the Court to consider the arguments about his arson conviction from hispetition for rehearing. After the conclusion of briefing, oral argument was held at the Court’s request on November 5, 2013. On January 5, 2014, the Court filed the current published opinion. The Court continued to hold that appellant did not commit arson of an inhabited structure. (Opinion at 4-8.) Addressing remedy, it held that arson ofproperty was not a lesser included offense to which appellant’s conviction could be reducedandthatretrial was barred by Kellett. (Opinion at 8-10.) It did not address Double Jeopardy. It ordered the case dismissed. (Opinion at 11.) One justice dissented. ARGUMENT I. THE PETITION FOR REVIEW SHOULD BE DENIED. THIS CASE DOES NOT MEET THIS COURT’S STANDARDS FOR REVIEW. THE COURT OF APPEAL CORRECTLY DECIDED THE QUESTION OF REMEDY. RETRIALIS ALSO BARRED BY DOUBLE JEOPARDY. A. Procedural Background The prosecutorinitially charged appellantin the alternative under Penal Codesection 451, subdivision (b) with having committed arson of an inhabited structure or inhabited property. In subsequentfilings, the prosecutor abandonedthe alternative inhabited property charge. (Opinion at 7, fin. 8.) The prosecutor never chargedthelesser related offense of arson to property. During the conference on instructions, the court and counsel discussed the lesser included offense instructions that would be given. The prosecutor accededto thetrial court’s proposals but did not expressly requestlesser included offense instructions. (2 RT 284-288.) Defense counselstated that he had not anticipated someofthe proposedinstructions and would haveto revise his closing argument over lunch as he assumed the prosecutor would. (2 RT 285-286.) The prosecutorreplied, “I know what I’m going to argue for.” (2 RT 286.) Thetrial court instructed on the following lesser-included offenses: arson ofa structure, arson of property, unlawfulfire to an inhabited structure, unlawful fire to a structure, and unlawful fire to property. (2 RT 315-319; 2 CT 130-134.) Defense counsel arguedthat appellant was guilty of, at most, unlawfulfire to property. (2 RT 354-356, 367.) The prosecutor never even hinted, even during rebuttal, that ifthe jury disagreed with the premise that a motor home wasa building, it should at least convict appellant of arson of property. (2 RT 330-351; 369-375.) At the time she made her closing argument, the prosecutor presumably understood that convicting appellant of arson of an inhabited structure as opposed to arson of property would have affected appellant’s Three Strikes sentence in two ways. It would have increasedit from 43-to- life to 48-to-life because of the multiple structure enhancementset out in Penal Codesection 451.1(a).’ It also would have limited appellant’s good time presentence credit to 15 percent of actual time under Penal Code section 2933.1 because arson of an inhabited structureis a violent felony * Asnoted, the Court ofAppealstruck two ofthe three five-year priors under Penal Code section 667(a) that were charged and found true because all three convictions came out of the same case. They are factored in here because the prosecutor would have expected them to be imposed. while arson of property is not. (Pen. Code § 667.5, subd. (c)(10).) Appellant was in his fifties at the time of the incident in 2009. (2 CT 299.) B. This Case Does Not Meet the Tests for Review. California Rules of Court, Rule 8.500, subdivision (a) sets out four grounds for review in this Court. The question here is whether review is “necessary to secure uniformity of decision or to settle an important question of law[.]” (California Rules of Court, Rule 8.500, subd. (b)(1). It is not. This case does not create a conflict in published decisional law in the courts of appeal. Respondent cites no authority, published or unpublished, that reached a contrary result in the same procedural posture. The cases that respondenttries to link to this case do involve lesser related offenses. However, that is where the similarity ends. Respondent relies on People v. Toro (1989) 47 Cal. 3d 966, 975-975, disapproved on other grounds in People v. Guiuan (1998) 18 Cal. 4" 558, 568, fn.3, and similar cases, which hold or observe that where a defendant requests, agrees to, or does not object to instructions on lesser related offenses at his trial, he may not afterwards complain about lack of notice if he is convicted of one of those offenses. (Pet. at 7-9.) Appellant agrees that if he had been convicted of arson of property, he could not argue on appeal that he lacked notice of the charge or that the charge had not been put before the jury. That has nothing to do with this case. This case is about the prosecutor’s neglect. The Toro cases have nothing to say aboutit. The consent or acquiescence in the Toro casesis not global consent to be convicted of a lesser related offense in any manner in which the prosecution might elect now orin the future. Nothing in the Toro cases compels the logical leap that a prosecutor may ignorantly and indifferently refuse to request that the jury resolve a charge and then get a second chance on the theory that the neglected charge remains “open.” Respondentalso argues that the outcome here improperly deviates from that in Orlina v. Superior Court (1999) 73 Cal. App. 4" 258. (Pet. at 5, 7-8.) Orlina was, indeed, a case wherea retrial of a lesser related offense was permitted. The similarity ends there. In Orlina, the defendantat trial requested and received instructions on voluntary manslaughter, a crimethatall parties and thetrial court understoodto be a lesser related offense to the charged crime. (Id. at pp. 260-261.) The jury was urged to reach a verdicton it. It acquitted the defendant on the charged crime but deadlocked on the charge ofvoluntary manslaughter. The trial court declared a mistrial on that charge. (/d. at p. 260.) At issue in Orlina was whetherretrial of the lesser related offense was permitted underthe rationale of Stone v. Superior Court (1982) 31 Cal. 3d 503. Ud. at pp. 262-263.) Stone had held that whenthe jury acquits a defendant of a greater offense but deadlocks on lesser included offense on whichit had been instructed, resulting in a mistrial, retrial of the lesser included offense does not offend California law or Double Jeopardy principles. (Stone v. Superior Court, supra, 31 Cal. 3d at pp. 517, 522.) Orlina heldthatretrial of the lesser related offense was permitted. Though it had not beeninitially charged, the lesser related offense becamepart of the case, the jury had deadlockedonit, and a mistrial had been declared. Retrial was clearly permitted. (Orlina v. Superior Court, supra, 73 Cal. App. 4"at pp. 262-264.) The outcome in Orlina was unremarkable. Contrary to the Court’s suggestion, the result there was not an extension of Stone; rather,it took Stone full circle. In Stone, the Court noted that Penal Code section 1160 provides that the jury may render verdicts on the counts on whichit agrees and that the counts on whichit is deadlocked mayberetried. (Stone v. Superior Court, supra, 31 Cal. 3d at p. 517.) The novelty in Stone was extendingthis rule to lesser included offenses on which the jury was deadlocked notwithstanding Penal Code section 1023, which providesthat an acquittal of a greater offense is a bar to a subsequent prosecution for a lesser included offense. (/d. at pp. 520-522.) By contrast, at the end ofthe day, Orlinais a straightforward application of Penal Code section 1160 because lesser related offenses are nothing more than non-included charges. Section 1160 does not apply in appellant’s case because there was no deadlock on arson of property. Respondent presumably cites Orlina for its focus on the defendant’s consent to be convicted ofthe lesser related offense. As with its discussion of the Toro cases, respondent mistakenly assumesthatthis is consent for any and all purposes. Nothing in Orlina or Stone suggests that the results apply other than where mistrials have been declared after a jury has deadlocked. Nothing in either case supports respondent’s view that there is such a thing as an “open charge,” lesser related or otherwise, that the prosecution gets a second chanceatafter failing to insist that the jury try to reach a verdict onit. Because the Court of Appeal’s opinion does not create a conflict in the law, this Court need not intervene to secure uniformity. There is also no question of law that this Court should grant review to settle. To the extent the unusual posture ofthis case is thoughtlikely to recur, the Court ofAppeal’s published opinion, which was correctly decided, provides all needed guidance. C. A New Trial May Not Be Granted After a Conviction is Reversed for Want of Substantial Evidence. The Double Jeopardy Clause of the Fifth Amendmentto the United States Constitution bars retrial of a criminal defendant after a reversal of his conviction for want of substantial evidence. (People v. 10 Pierce (1979) 24 Cal. 3d 199, 209-10.) Such a reversal is equivalent to an acquittal or a directed verdict of acquittal at trial. (Ibid., citing Burks v. United States (1978) 437 U.S. 1, 10-11, 16.) remedy: In California, the granting of a newtrial as an appellate “places the parties in the sameposition as ifno trial had been had. All the testimony must be produced anew,and the former verdict or finding cannotbe usedorreferred to, either in evidence or in argument, or be pleaded in bar of any conviction which might have been had underthe accusatory pleading.” (Pen. Code § 1180 [emphasis added].) Such a remedy would reopenthe entire case and offend Double Jeopardy principles. The Court ofAppeal wascorrect that this case must be dismissed. The next sections on Kellett and Double Jeopardy confirm that a new case may notbefiled. D. The Court of Appeal Correctly Held that Retrialis Barred by Penal Codesection 654 and Kellett. “An accusatory pleading may charge two or more different offenses connected togetherin their commission, or different statements of the same offense or two or more different offenses of the sameclass of crimes or offenses, under separate counts, and if two or more accusatory pleadingsare filed in such cases in the same court, the court may order them to be consolidated. ...“ (Pen. Code § 954.) “An act or omission that is punishable in different ways by different provisions of law shall be punished underthe provision that providesfor the longest potential term of 11 imprisonment, but in no case shall the act or omission be punished under more than one provision. An acquittal or conviction and sentence under any one bars a prosecutionfor the same act or omission under any other.” (Pen. Code § 654, subd. (a). [emphasis added]) The secondsentence of section 654, read in light of the liberal joinder rule of section 954, bars successive prosecutions oftransactionally related charges of which the prosecution was or should have been aware during the prior case. (Kellett v. Superior Court (1966) 63 Cal. 2d 822, 827.) “When,as here, the prosecution is or should be aware of more than one offense in which the same act or course ofconduct plays a significantpart, all such offenses must be prosecuted in a single proceeding unless joinder is prohibited or severance permitted for good cause. Failure to unite all such offenses will result in a bar to subsequent prosecution of any offense omitted if the initial proceedings culminate in either acquittal or conviction and sentence.” (lbid.) For purposes of determining whether a new prosecutionis barred, it does not matter if multiple punishments would have been permitted under section 654 if the charges hadinitially been joined. (/d. at p. 825.) “The rule against multiple prosecutions is a procedural safeguard against harassmentandis not necessarily related to the punishmentto be imposed[.] (/bid.) Through section 654 andthe liberal joinder provisions of section 954, “the Legislature has demonstrated its purpose to require joinderofrelated offenses in a single prosecution.” (/d. at p. 826.) 12 The Kellett rule was applied in Sanders v. Superior Court (1999) 76 Cal. App. 4" 609 under circumstances similar to those here. In Sanders, the defendant’s original convictions for ten counts of grandtheft werereversed for want of substantial evidence. (/d. at pp. 613, 616.) The prosecution then filed multiple new charges of forgery and presenting false documents. (/d. at p. 612.) The evidence underlying these charges had figured prominently in the grand theft case. (Jd. at p. 613.) Thus, the prosecution clearly was aware ofthe basis for the new charges. (id. at p. 616.) The Court ofAppeal issued a writ barring the new prosecution and ordering the information dismissed. (/d. at p. 617.) A similar result is required here. The reversal for want of substantial evidence is functionally equivalent to an acquittal. (Burks v. United States (1978) 437 U.S.1, 16-17; People v. Hatch (2000) 22 Cal. 4 260, 272.) Thus, as in Sanders, the reversal of the conviction for arson of an inhabited structure triggers the application of section 654 and Kellett. Respondent has never argued that a prosecution for arson of the property of another was nottransactionally related to the crime of arson of an inhabited structure that the prosecutor did charge. The charge simply involves slightly different consequencesofthe fire that the defendant was charged with setting. Thus, after this case is reversed and dismissed, the prosecution may notfile a new case charging arson of property. 13 Respondentis upset about the consequencesofan acquittal and the loss of the opportunity to convict appellant ofsomething. This cannot be the sole focus of the case. If respondent’s argument about Kellett and the “open charge” is correct, it would be correct even if appellant’s conviction had been affirmed. The prosecutor, now understanding the law, would be able to file a new case to charge arson of property, with the goal ofhaving a secondtrial so that a concurrent Three Strikes sentence might be imposed. That would not be countenanced under Kellett. Neither should the result respondent seeks. This disposition is perfectly consistent with Kellett. It does not matter if under the Toro cases, the charge was technically part of the trial so as to permit a conviction had one occurred. Because there is no such thing as an “open charge,” the analysis is different now. Ona policy level, Toro actually supports the disposition. One lesson of Torois that if the defendant wants to minimize his exposure to conviction, he must know the law,pay attention and protecthis interests. That is also Kellett’s lesson to prosecutors whose goalis often maximizing a defendant’s exposure to conviction. The prosecutor must know her case and have her ducks in a row. The prosecutor here did not. The Court of Appeal correctly laid responsibility for what occurred at her feet. (Opinion at 9-10.) Under Kellett, she does not get a newtrial orthe rightto file a new caseto cure her mistakes. 14 Respondenttakes a “what’s the harm approach”to the case, observing that new trials happenall the time, often “at the defendant’s behest.” (Pet. at 12.) Defendants can sometimesget new trials because the statutory and decisional law authorizes them if certain conditions are met. In this case, the statutory and decisional law forbids the newtrial that respondent wants to have. That law must be followed. E. Because the Jury Was Discharged Without Reaching a Verdict on Arson of Property, Retrial is Also Barred by Double Jeopardy. Generally speaking, for purposes of the Double Jeopardy Clause of the Fifth Amendmentto the United States Constitution, jeopardy attaches in a case whenthe jury is sworn. (United States v Martin Linen Supply Co. (1977) 430 U.S. 564, 569; Downum v. United States (1963) 372 U.S. 734, 737.) Whenjeopardy has attached, and the jury is discharged without reaching a verdict, retrial is barred by the Double Jeopardy clause unless there is a “manifest necessity”or “legal necessity” for the discharge. (United States v. Perez (1824) 22 U.S. 579, 580; Stone v. Superior Court (1982) 31 Cal.3d 503, 516; People v. Sullivan (2013) 217 Cal. App. 4" 242, 246.) Thetypical scenario constituting a manifest necessity is the mistrial situation where the jury has been unable to agree on a verdict. (Downum v. United States, supra, 372 U.S.at p. 736.) The existence of a mistrial or other legal necessity is critical. If the trial court simply fails to 15 receive a verdict on certain charges after deliberations are complete,retrial is barred. (Stone v. Superior Court, supra, 321 Cal. 3d at p. 517; People v. Sullivan, supra, 217 Cal. App. 4" at p. 246.) In Downum,discharge of the jury because the prosecution had been unable to proceed and had not sought a continuancebarredretrial. (Downum v. United States, supra, 372 U.S. at pp. 737-738.) In Sullivan, the trial court had refused to accept a verdict on a robbery charge because the jury had declared itself hopelessly deadlocked on a great bodily injury enhancement. (People v. Sullivan, supra, 217 Cal. App. 4" at pp. 244-245.) In addressing arguments of ineffective assistance of counsel, the Court held that the subsequent robbery prosecution should have been barred by Double Jeopardy. Becausethe trial court should have accepted the verdict on the robbery charge and declared a mistrial on the enhancement, there was no legal necessity for the mistrial. (/d. at pp. 246-247.) Here, although arson of property wasnot part of the case when the jury was sworn, once the charge was added and submitted to the jury, jeopardy attached on that charge. The jury was instructed on the charge, did not return a verdict on it, and did not declare a mistrialonit. The prosecutor never argued for a conviction on that charge in addition to a conviction on the charge of arson to an inhabited structure. Thus, no manifest or legal necessity permits retrial of that charge. 16 Respondentbelieves this outcomeis unfair because the jury was instructed that it could not convict appellant of arson ofproperty ifit convicted him of arson to an inhabited structure. It does not matter. In the context of acquittals, it is well settled that the Double Jeopardy clause bars retrial even where the trial court directed a verdict because it made a clear mistake of law. (See, e.g., Evans v. Michigan (2013) 133 S.Ct. 1069, 1075- 1076; Fong Foov. United States (1962) 369 U.S. 141, 143.) Thus,the trial court’s failure to inform the jury that it had the powerto convict appellant of the lesser related offense of arson of property in addition to arson of an inhabited structure does not defeat the finding of a Double Jeopardybar. This wasnot a case involving a “properly granted mistrial.” (Evansv. Michigan, supra, 133 S.Ct. at p. 1075.) It is closer to Downum in which the government lost the chance to convict after jeopardy had attached because the prosecutor was not ready to proceed. Respondent suggests there is no Double Jeopardy problem because appellant consented to the outcomeas in a mistrial situation. (Pet. 11.) The argumentis meritless. In Evans, Fong Foo, Downum and, presumably, every other case where acquittals are entered, charges are dismissed or overlookedby the jury, etc., the defendant presumably does not oppose the outcome. That does not alter the fact that the charges may not beretried. 17 Respondent’s consent argument also misapprehendsthe law on the giving oflesser included offenses. Thetrial court must instruct sua sponte on lesser-included offenses when the evidenceraises a question whetherall ofthe elements of the charged offense are present (People v. Breverman (1998) 19 Cal.4th 142, 154). The court mustso instruct even if it is inconsistent with the defendant's theory of the case. (/d. at p. 159 ["'[t]he trial court must instruct on lesser included offenses... [supported by the evidence] ... , regardless of the theories of the case proffered by the parties'"]; (People v. Elize (1999) 71 Cal.App.4th 605, 615 ["a lesser included instruction is required even though the factual premise underlying the instruction is contrary to the defendant's owntestimony, so long as there is substantial evidence in the entire record to support that premise"].) Requiring instructions on lesser-included offenses “avoid[s] an unwarranted all-or-nothing choice for the jury and will ensure that the verdict is no harsher or more lenient than the evidence merits.” (People v. Wickersham (1982) 32 Cal. 3d 307, 324, overruled on other grounds, People v. Barton (1985) 12 Cal. 4" 186, 201.) Here, the trial court proposedlesser included offense instructions that both defense counsel and the prosecutor neither requested nor opposed, though defense counsel expressed somesurprise. Had defense counsel objected to that arson of property was not a lesser included offense but been overruled, this case would have woundup inthe exact 18 same posture, primarily due to the ignorance andindifference ofthe prosecutor, and respondent would still be blamingthetrial court and arguing “open charge.” Clearly, however, nothing would be different from the standpoint ofDouble Jeopardy. Respondent’s “consent” argument should berejected. Respondent’s “what’s the harm” approachis even less appropriate here. (Pet. at 12.) There is no harmlesserror test under the Double Jeopardy clause. Whereit applies, “its sweep is absolute. There are no ‘equities’ to be balanced, for the Clause has declared a constitutional policy, based on grounds whichare not opento judicial examination.” (Burks v. United States (1978) 437 U.S.1, 11, fn. 6.) F. Perceptions of Appellant’s Dangerousness or Lack Thereof Cannot Dictate the Outcome. Respondent urges this Court to reverse the Court of Appeal so that a dangerousarsonist will not escape justice. (Pet. at 6, 12.) Appellant has been in custody since 2009. Only someone whodoesnot haveto serve such time can dismissit as a trivial loss ofliberty. As explainedin the next section, appellant believes he is guilty of, at most, the misdemeanorcrime of unlawful fire to property. Therefore, any appealto passionorto the equities of the case is, at best, a wash. Further, because one cannot be convicted of arson of property unless the property of another is burned, if Burley’s personal effects had not apparently burnedinthefire, 19 there could be notalk of a possible conviction for arson of property, even though reasonable people could still think that appellant was a reckless man based onhis actions in burning his own property. All this is to say that the law must be followed. The Court of Appealcorrectly applied the law andreachedthe right result. Respondent’s petition for review should be denied. II. ADDITIONAL ISSUE PRESENTED FOR REVIEW: APPELLANT’S ARSON CONVICTION VIOLATED THE DUE PROCESS CLAUSE OF THE UNITED STATES CONSTITUTION AND CALIFORNIA LAW BECAUSE THERE WAS NO SUBSTANTIAL EVIDENCE THAT HE ACTED WITH THE MALICE REQUIRED FOR ARSON. A. Introduction A party filing an answerto a petition for review “may ask the court to address additionalissues if it grants review.” (California Rules of Court, Rule 8.500, subd. (a)(2).) Although it rejected it in its first unpublished opinion, the Court of Appeal’s final opinion does not address appellant’s argument that the prosecution failed to introduce substantial evidence that he committed arson as opposed to unlawfulfire. If this Court grants review of respondent’s issue, it should review this issue as a corollary to that one. Because neither arson to property nor unlawful fire to property is a lesser included offense to arson of an inhabited structure, this Court could not reduce appellant’s conviction to the misdemeanorofunlawfulfire to property if his arson conviction was 20 not supported by substantial evidence. However, should this Court grant review and holdthatretrial is not barred, the retrial would have to be limited to the charge of unlawful fire to property if the arson conviction was not supported by substantial evidence. B. Standard of Review Due process requires the prosecution to prove each element of a charged crime beyond a reasonable doubt. (Jn re Winship (1970) 397 U.S. 358, 364.) “The reasonable doubt standard playsa vital role in the American schemeofcriminal procedure. It is a prime instrumentfor reducing the risk of convictions resting on factual error. . . . [U]se of the reasonable doubt standard is indispensable to commandthe respect and confidence of the community in applications of the criminal law. It is critical that the moral force of the criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned.” (Id. at p. 363-64.) A defendantis denied due process under the Fourteenth Amendmentto the United States Constitution if he is convicted of a crime without substantial evidence having been introduced to support the charge. (Jacksonv. Virginia (1979) 443 U.S. 307, 319.) Under Jackson, the reviewing court must ask, “after viewing the evidencein the light most favorable to the prosecution, [whether] any rational trier of fact could have found the 21 essential elements of the crime beyond a reasonable doubt.” (/d., emphasis in original.) The standard is the same under California law. A verdictwill be upheldif it is supported by substantial evidence. (People v. Rodriguez (1999) 20 Cal. 4" 1, 11.) Substantial evidence is “evidencethatis reasonable, credible, and of solid value-such that a reasonabletrier of fact could find the defendant guilty beyond a reasonable doubt.” (/bid.) In conducting substantial evidence review, the reviewing court analyzes the evidencein the recordin the light most favorable to the judgment. (/bid.) C. Statement of Facts Katherine Burley was having a dating relationship with appellant in November 2009. (1 RT 41.) She was living with appellantin his motor homelocated on a vacantlot located at 5'" and Lankershim. (1 RT 41-42.) The lot had seven motor homes, two cars, two trucks, one travel trailer, one boat and one flatbed trailer. (1 RT 42, 91.) At approximately 3:00 a.m., Burley and appellant had a disagreement that resulted in appellant and then Burleycalling the police. (1 RT 46, 48 67, 91.) It was agreed that appellant would leave for the night. He got in a pickuptruck andleft, and Burley wentbackto sleep. (1 RT 48-49, 94, 96.) Burley woke up when something bumpedinto the motor home. She heard a crash and motors going. (1 RT 49.) She looked out a 22 windowontheleft side of the motor home and saw appellant driving one of the other motor homesonthe lot and using it to push yet another motor homeonthe lot next to the motor homethat she was in. (1 RT 49-50.) The motor homethat appellant drove had the word “Flair” written on the side. (1 RT 52.) The motor homethatappellant pushed with the Flair was inoperable. (1 RT 54.) After appellant finished pushing the motor home, Burley smelled gasoline. She saw appellant walkingto the flatbedtrailer with a Spic and Span bottle in his hand that she described as looking like a Windexbottle. (1 RT 56-57, 60.) He threw the bottle on the ground and kicked it a couple of times. (1 RT 58.) Appellant kept a number of containers on thetrailer, some of which contained gasoline, including the Spic and Span bottle. (1 RT 58-61.) After watching this, Burley lay back down and wentto sleep but waslater awakened by her dog. She smelled gasoline and smoke and heard crackling like glass popping. (1 RT 54-55.) She looked out the windowonthe left side and did not see anythingat first. Then she looked out the front window and saw smoke and flames. (1 RT 56.) The flames were coming from the motor homethat was next to the driver’s side of the motor homethat she was in. Her motor home was notyet on fire. (1 RT 63.) Burley grabbed her dogs and her purse and ran out the passengerside door. (1 RT 63-64.) There were no flames on that side. (1 RT 84.) 23 Burley went around the back of the motor home and saw appellant standing at the other end ofthe lot by the Flair. (1 RT 64, 88.) Oneofher dogs had run away, but she saw the lot manager, Randy Jauregui, who said he had her dog and then took her over to his house. (1 RT 65.) She did not see both motor homesonfire until she was at Jauregui’s house. (1 RT 80.) Jauregui’s testimony on when the second motor home caughtfire was consistent with Burley’s. (1 RT 111-112.) At 6:38 a.m., both motor homes were engulfed in flames, and fire fighters were trying to put them out. (1 RT 126.) The motor homes were approximately four to five feet apart. (2 RT 260.) After the fire was out, an officer walked around the scene. He saw several empty containers lying on the ground betweentheflatbed trailer and the two burned motor homes. The containers all smelled of gasoline. (1 RT 128-129.) He also gathered the clothes appellant had been wearing for examination by an arson dog. Any piece of clothing that the dog alerted on was collected as evidence. (1 RT 135-139.) Anotherofficer found a Bic lighterin appellant’s pants pocket. (1 RT 152-153.) Diesel, an arson dog, was brought to the scene and deployed. (1 RT 155-156, 159-160.) Diesel made four alerts on the interior of the first motor homethat was set on fire. (1 RT 163.) He alerted on the exterior front of that motor home and on a numberofthe empty containers on and aroundthe flatbedtrailer, including the empty Spic and Span bottle. 24 (1 RT 166-171.) He also alerted on appellant’s sports jacket, shoes and work pants. (1 RT 171-174.) Most ofthese items were subsequently tested and confirmed to contain gasoline residue. (2 RT 250-256.) Diesel did not alert on the area between the two motor homes. (1 RT 189.) Diesel was not taken on a thorough search of the second motor homebecausehe did not pick up any odors from it. If he had, he would havestarted to track them. (1 RT 189.) The prosecution’s arson expert opinedthatthefire to thefirst motor homestarted in the front areas that had sustained the most damage and it appeared to have been purposely set with a flammable, ignitable liquid. (1 RT 204.) The second motor home caught on fire due to the “intense heat,” “extreme heat” and “radiant heat” coming from the other motor home. (1 RT 205, 211, 215.) The right passenger side of the second motor homehad sustained less damage becauseit was notas close to the intense heat coming from the first motor home. (1 RT 207.)' D. The Merits “A person is guilty of arson whenheor she willfully and maliciously sets fire to or burns or causes to be burned or whoaids, * The prosecution introduced appellant’s statements to police in which he explained howthe first motor home caughtfire accidentally when he was trying to wire the two motor homestogether to share electricity. The arson expert then explained why this was implausible. As appellant’s discredited explanation does not bear on the substantial evidence argument, it will not be summarized. 25 counsels, or procures the burning of, any structure, forest land, or property.” (Pen. Code § 451.) Burning one’s own “personal property”is not a crime “unless there is an intent to defraud or there is injury to another person or another person's structure, forest land, or property.” (Pen. Code § 451, subd. (d).” “A person is guilty of unlawfully causing a fire when he recklessly sets fire to or burns or causes to be burned, any structure, forest land or property.” (Pen. Code § 452.) Unlawful fire is punished less severely than arson, though as with arson, the punishmentvaries depending on the harm thatresults. Section 450 defines the culpable mental states under the two statutes. “Willfully” “when applied to the intent with which an act is done or omitted, implies simply a purposeor willingness to committhe act, or make the omissionreferred to. It does not require any intent to violate law, or to injure another, or to acquire any advantage.” (Pen. Code § 7(1).) “Maliciously” “imports a wish to vex, defraud, annoy, or injure another person, or an intent to do a wrongful act, established either by proof or presumption of law.” (Pen. Code § 450, subd. (e).) “Recklessly” “means a person is aware of and consciously disregards a substantial and unjustifiable risk that his or her act will set fire to, burn, or cause to burn a structure, forest land, or property. Therisk shall be of such nature and degree that disregard thereof constitutes a gross deviation from the standard 26 of conductthat a reasonable person would observein the situation.” (Pen. Code § 450, subd.(f).) Arsonis a generalintent crime. (V.V., supra, 51 Cal. 4" atp. 1027; People v. Atkins (2001) 25 Cal. 4" 76, 85.) The prosecution need not prove that the defendant had the specific intent to burn the structure, forest land or property whose burningresults in liability. (Zbid.) All thatis required is the general intent to do the act that causes the fire with the further culpable mental state of malice. (/bid.) V.V. dispensed with inquiries into malice in fact and the subjective good or bad intentions of people charged with settingfires. (V.V., supra, 51 Cal. 4" at p. 1030.) It did so over dissenting opinions to the contrary. (/d. at p. 1034 [Kennard,J., dissenting]; id. at p. 1036 {Werdegar, J., dissenting].) The inquiry is malice in law, and the Court set out several principles to guide the inquiry. “[F]or arson, malice will be presumed or implied from the deliberate and intentional ignition or act of setting a fire without a legal justification, excuse, or claim of right.” (/d. at p. 1028,citing Atkins, supra, 25 Cal. 4" at pp. 88-89.) “[A]rson's ‘willful and malice requirement ensuresthat the setting of the fire must be a deliberate and intentional act, as distinguished from an accidental or unintentionalignition oract ofsetting a fire.” (V.V., supra, 51 Cal. 4™ at p. 1029, quoting Atkins, supra, 25 Cal. 4" at pp. 88-89.) Malice may be found where there is “a general intent to willfully commit the act ofsetting 27 on fire under such circumstancesthat the direct, natural, and highly probable consequences would be the burning ofthe relevant structure or property.” (/bid.) “[A] willful act that causes a fire without further evidenceofthe underlying circumstances[is] insufficient to establish malice.” (/d. at p. 1031, fn. 6.) V.V. emphasized that the language about natural and probable consequencesis the essence of the malice inquiry as opposedto the willfulness inquiry. (/d. at p. 1031, fn. 6.) This test is particularly necessary and properin cases such as V.V. and appellant’s case where the initial setting on fire after the striking of the match was lawful. In V.V., that lawfulinitial setting on fire was the boys’ lighting of a firecracker that they ultimately threw into field that caught fire. (/d. at pp. 1023-1024.) Here,it is appellant’s burning ofthe first motor home, an act that was lawful because it was his own personal property. A focus on willfulness is most appropriate to cases wheretheinitial setting on fire is unlawful, as in a cited case wherea girl set a school’s paper towels on fire andthefire eventually spread. (/d. at p. 1034 [Kennard,J., dissenting].) The prosecution failed to prove that the burning of the second motor home was the natural and probable consequenceofappellant’s actions towardsthe first motor home as opposedto a foreseeable consequence of reckless behavior. It is undisputed that appellant did not set the second motor homeonfire directly. No remnants of gasoline were 28 foundonit or in it. No gasoline was found in the space between the motor homes. The arson expert made clear that the fire did not start in the second motor home. It caught fire from the radiant heat emanating from thefirst motor home. The expert offered no testimony that this phenomenon was the inevitable consequenceofthe fire that appellant set. There was no other evidence from which the jury could rationally draw this conclusion. There was no evidence ofhow much gasoline appellantusedto start the fire, and there was no evidence that any gasoline left in the tank of the first motor home explodedandfacilitated the fire. Needless to say, appellant did not set the Flair or some other motor home with gas in the tank on fire. Had he doneso,the first motor home would have goneup like a bomb,and there would benoissuehere. Anytime onesets a fire, there is the risk that it will spread. Therisk thatthe fire appellant set would spread to the second motor home was very real, and appellant clearly disregarded it. That, however,is all that the prosecution proved. 29 CONCLUSION Respondent’s petition for review should be denied. Ifit is granted, appellant’s additional issue should be reviewed as well. Dated: March 13, 2014 Af Steven S. Lubliner P.O. Box 750639 Petaluma, CA 94975 Phone: (707) 789-0516 Fax: (707) 789-0515 e-mail: sslubliner@comcast.net 30 CERTIFICATION Pursuant to Rule 8.504(d)(1) of the California Rules of Court, I hereby certify that the foregoing answer to a petition for review is producedin a proportional font (Times New Roman)of 13 point type and utilizes double line spacing, except in footnotes and extended quotations which are single-spaced. I further certify that, according to the word count of the word processing system usedto preparethe brief, the brief includes 7,108 words (exclusive of the table of contents, the table of authorities, the proofofservice andthis certificate). Dated: March 13, 2014 SALZ STEVENS. LUBLINER Attorney for Appellant Richard James Goolsby Filed 1/14/14 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO THE PEOPLE, Plaintiff and Respondent, E052297 V. (Super.Ct.No. FSB905099) RICHARD JAMES GOOLSBY, OPINION Defendant and Appellant. APPEAL from the Superior Court of San Bernardino County. Bryan Foster, Judge. Reversed and remanded with directions to dismiss. Steven S. Lubliner, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Lilia E. Garcia, Barry Carlton and Felicity Senoski, Deputy Attorneys General, for Plaintiff and Respondent. A jury found Richard James Goolsby, defendant and appellant (hereafter defendant), guilty of arson of an inhabited structure in violation of Penal Code section 451, subdivision (b),! and further foundtrue the allegation that he caused more than one structure to burn within the meaning of section 451.1, subdivision (a)(4), based on evidence that defendantseta fire that caused two motor homesto burn.? Because the felony conviction constituted defendant’sthird strike, the trial court sentenced him to the mandatory term of 25 years tolife in state prison, and also imposed various enhancementsafter first finding those allegations true. Defendantraises various challenges to the jury’s verdict and to his sentence. We agree with his assertion that his motor homeis not a structure. Therefore, the evidence that defendantset fire to his motor home does not support the jury’s verdictfinding defendant guilty of committing arson of an inhabited structure, and also does not support the jury’s true finding on the multiple structure enhancement. Moreover, arson of property (§ 451, subd. (d)), the only other crime on whichthetrial court instructed the jury, is a lesser related, not a lesser included, offense to the charged crime. Therefore, we cannot exercise our authority under section 1181, subdivision 6, to modify the judgment by reducing defendant’s conviction to a lesser included crime. For that same reason,i.e., 1 All further statutory references will be to the Penal Code unless otherwise indicated. 2 The jury found him notguilty of attempted murder. 3 For purposes ofarson,“‘Structure’ meansany building, or commercial or public tent, bridge, tunnel, or powerplant.” (§ 450, subd.(a).) becauseit is a lesser related crime, we also cannot remand the matterto the trial court for a newtrial on the arson of property charge. Our only option, under the circumstances of this case, is to reverse the judgment based oninsufficiency of the evidence and direct the trial court to dismiss the charge. FACTS The facts are undisputed, and only a few are necessary for our resolution of the issues defendant raises on appeal. Defendant and Kathleen Burley lived together in what was one of several motor homes defendant owned and had parked on a vacant lot. On November28, 2009, defendant and Burley got into an argument. Sometimenot long after the argument, in which defendant and Burley each called the police onthe other, defendant used a vehicle to push an inoperable motor homenextto the one in which he and Burley were living and where Burley then was sleeping. Defendant used gasoline to set the inoperable motor homeonfire. After Burley got out with her dogs, the fire spread to the motor home in which she had been sleeping. The fire destroyed both motor homes. Additional facts will be recounted belowaspertinent to the issues defendantraises on appeal. DISCUSSION 1. THE EVIDENCEIS INSUFFICIENT TO SUPPORT THE JURY’S VERDICT FINDING DEFENDANT GUILTY OF ARSON OF AN INHABITED STRUCTURE Defendant contends, and we agree, that the evidence wasinsufficient to show that the motor home in which he and Burley were then living was a structure. Therefore, the evidencethat heset fire to or caused that motor hometo burn does not support the jury’s verdict finding him guilty of arson of an inhabited structure in violation of section 451. Undersection 451, “A person is guilty of arson whenheor she willfully and maliciously sets fire to or burns or causes to be burned . . . any structure, forest land, or property.” Section 451 sets out “different levels of punishment, depending on the subject matter of the arson. [Citation.] These statutory categories, in descending level of punishment, are: (1) arson resulting in great bodily injury (five, seven, or nine years); (2) arson to [sic] ‘an inhabited structure or inhabited property’ (three, five, or eight years); (3) arson of a ‘structure or forest land’ (two, four, or six years); and (4) arson to other types of property (16 months, two,or three years). (§ 451, subds.(a), (b), (c) & (d).) By creating these different levels of punishment, the Legislature intended to impose punishment ‘“in proportion to the seriousnessofthe offense,” and, in particular, ‘according to the injury or potential injury to humanlife involved... .’ [Citation.]” (People v. Labaer (2001) 88 Cal.App.4th 289, 292 (Labaer).) The district attorney in this case charged defendant with arson of an “inhabited structure”in violation of section 451, subdivision (b). Defendant pointed out in thetrial court that according to section 450, which defines the terms used in the arson chapter, ““Structure’ meansany building, or commercial or public tent, bridge, tunnel, or powerplant.” (§ 450, subd. (a).) Thetrial court, at the district attorney’s urging, focused on whether defendant’s motor home was a dwelling, i.e., a place in which defendant and Burley intended to live more or less permanently. Based onthat focus,thetrial court permitted the jury to determine whether,in this case, a motor homeis a structure for purposesofthe arsonstatute. Whetherthe crimeis arson ofa structure in violation of section 451 does not turn on whether a dwelling is involved, as clearly evidenced by the statutory definition of the term “structure.” Ofthe several types of structures included in the statutory definition, only a building is relevant here. As Division Oneofthis court observed in Labaer, “The Penal Code doesnotdefine ‘building’ for purposes of arson; we therefore apply the plain meaning of the word. [Citation.]” (Labaer, supra, 88 Cal.App.4th at p. 292.) In Labaer, the defendant argued the mobilehomehe hadpartially dismantled and then set on fire was “property” not a building and, therefore, not subject to the increased punishmentfor arson ofa structure. In rejecting that claim, the court observed, “Labaer does not dispute that the mobilehome-asit existed during the months before the fire-constituted a ‘building’ [and therefore a structure] under the arson statutes. The evidenceestablished the [mobile]homewasfixed to a particular location, could not be readily moved, and had been used as Labaer’s residence for several months. (Ibid.) The prosecutor did not present evidence to show that the motor home in which he and Burley then lived wasfixed to a particular location and, therefore, had the attributes ofa building. The commonfeature ofthe things includedin the statutory definition of structure is that they are affixed to the ground and either cannot be movedatall or cannot be moved without first being dismantled and detached from the ground.4 A motor home is a vehicle, the very purpose of which is to move from location to location. Absent evidence to show the motor home was somehowfixed in place, such a vehicle cannot, as a matter of law, be a structure within the meaning of the arson statute.5 More importantly, and as defendant also pointed out in the trial court, the punishment for arson of an inhabited structure and the punishment for arson of inhabited property is exactly the 4 The Attorney General arguesthat the ability to moveis not the determining factor because a commercialor public tent can be dismantled and transported in a truck. The obvious responseis that when dismantled, a commercialor public tent is not a structure; it is property. 5 The Attorney General argues,as the district attorney did in thetrial court, that “[bJuildings commonly have walls and a roof. In general, their functionis to hold people and property. Although a motor homehas wheels andis notfixed to the ground,it is functionally a building,as it serves all the normal purposesofa building, and shares critical design features, such as walls and a roof, and even interior rooms. It is manifestly intendedto hold people.” The definition of the term “structure” set out in section 450 does not turn on purposeor function, it turns on permanence or immobility, the very attribute of a motor home the Attorney General would have us disregard. Moreover, section 451, the arson statute in question, does not focus on protecting people in buildings as the Attorney General contends. The statute applies to inhabited structures which the Legislature stated meansnot only buildings but bridges, tunnels, and powerplants. In addition, the severe punishment the Attorney General cites as evidence ofthe Legislature’s intent applies not only to inhabited structures butalso to inhabited property, which by definition is everything other than structure, i.e., a motor home. The only reason the severe punishmentfor arson of inhabited property does notapply in this case is that the district attorney inexplicably failed to chargeit. same,® unlike in Labaer, in which arson ofa structure that is not inhabited carries a greater punishment than arsonofproperty that is not inhabited.’ For purposesofthe arson statute, defendant’s motor homeis property, which by statutory definition “means real property or personal property, other than a structure or forest land.” (§ 450, subd. (c).) The district attorney only charged defendant with arson of an inhabited structure under section 451, subdivision (b), even though that section also applies to arson of “inhabited property.”8 In short and simply stated, the motor homeat issue in this appealis not a structure, as that term is defined in the arson statutes and asthetrial court instructed the jury.? Therefore, the prosecutor’s evidence that defendant set fire to a motor home that caused a second inhabited motor hometo catch fire was insufficient as a matter of law to support the jury’s verdict finding defendant guilty of arson of an inhabited structure. Nor does 6 Imprisonmentin state prison forthree, five, or eight years. (§ 451, subd.(b).) Because section 451, subdivision (b), includes both inhabited structures and inhabited property, we mustreject defendant’s claim that arson of inhabited property is a lesser included offense on whichthe trial court should have instructed the jury. 7 Arsonofa structure is punishable by two, four, or six years in state prison (§ 451, subd. (c)); arson of property is punishable by 16 months, two, or three years in state prison (§ 451, subd.(d)). 8 Theoriginal felony complaint and original information, as well as an amended felony complaint charged defendant with arson of an inhabited structure or property, but thenthe district attorney filed an amendedinformation that only alleged arson of an inhabited structure. 9 Thetrial court instructed the jury accordingto the statutory definition that a structure is any building, bridge, tunnel, powerplant, or commercial or publictent. the evidence support the jury’s true finding on the enhancement that defendant “caused multiple structures to burn during the commission of the arson.” The next issue we must addressis the appropriate remedy. 2. REVERSAL WITH DIRECTIONS TO DISMISS IS THE PROPER REMEDY The prosecutor, as previously noted, elected to charge defendant only with arson of an inhabited structure. Thetrial court instructed the jury on the lesser offense of arson of property in violation of section 451, subdivision (d). Arson of property is a lesser related, but not a lesser included, offense to the charged crime of arson of an inhabited structure because, as the Attorney General concedes, the charged crime does not include all the elements of the lesser. (People v. Hughes (2002) 27 Cal.4th 287, 365-366 [“‘An offense is necessarily included in anotherif... the greater statutory offense cannot be committed without committing the lesser because all of the elements of the lesser offense are included in the elements of the greater’”].) “In other words, when the greater crime ‘cannot be committed without also committing another offense, the latter is necessarily included within the former.’ [Citation.]” (/d. at p. 366.) Arson of property as defined in section 450, subdivision (d), includes arson of everything except a structure or forest land. Moreover, as defendantpoints out, arson of property requires proof the property either did not belong to the defendant (becauseit is not unlawful to burn one’s own personalproperty), or in burning or causing one’s own property to burn, “there is an intent to defraud or there is injury to another person or another person’s structure, forest land, or property.” (§ 451, subd. (d).) Arson of a structure is unlawful regardless of whether the defendant ownsthe structure. (§ 451, subd.(c).) Becauseit is possible to commit arson of a structure without also committing arson of property, the latter is not a lesser necessarily included offense of the charged crime in this case. Because arson of property is not a lesser necessarily included offense of the charged crime ofarson ofa structure, we cannot exercise our authority under section 1181, subdivision 6, to reduce defendant’s conviction from the greaterto that offense. Nor can we remandthis matter to thetrial court for a newtrial on the lesser related offense of arson of property. Multiple prosecutions for the sameact are prohibited under section 654;!° or as the Supreme Court putit in Kellett v. Superior Court (1966) 63 Cal.2d 822, “When,as here, the prosecution is or should be aware of more than one offense in which the sameact or course of conduct plays a significantpart, all such offenses must be prosecuted in a single proceeding unless joinder is prohibited or severance permitted for good cause. Failure to unite all such offenses will result in a bar to subsequent prosecution for any offense omitted if the initial proceedings culminate in either acquittal or conviction and sentence.” (/d. at p. 827.) Althoughthetrial court instructed the jury on the crime of arson ofproperty, it did so only because the court and both attorneys believed it was a lesser necessarily included offense to the charged crime 10 Section 654, subdivision (a), states, “An act or omission that is punishable in different ways by different provisions of law shall be punished underthe provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. An acquittal or conviction and sentence under any onebars prosecution for the same act or omission under any other.” of arson of an inhabited structure. Consequently, the jury did not render or attempt to render a verdict on that crime because they had beeninstructed to do so only if they acquitted defendant on the charged greater offense. (Cf. Orlina v. Superior Court (1999) 73 Cal.App.4th 258, 263-264 [retrial not barred under section 654 where jury acquitted on charged offense and deadlocked on lesser related offense].) Had the prosecutor charged defendant with the lesser related offense in this case, the jury would have been instructed to render verdicts on both the greater and lesser charges. Because the prosecutor did not do so, there is no unresolved or pending charge on which to remand this matterto the trial court. (/bid.) Any new or subsequenttrial in this matter would constitute a new prosecution of defendant based on the same evidenceused to prosecute the original charge. Such a prosecution would violate section 654, subdivision (a). (See Sanders v. Superior Court (1999) 76 Cal.App.4th 609, 616.) Weconclude the prosecution, as a matter of law, failed to prove its case against defendant. Under the circumstancesofthis case,retrial is prohibited. We have no alternative but to reverse defendant’s conviction with directions to the trial court to dismiss the charges. 10 DISPOSITION The judgmentis reversed, and the matter is remandedto the trial court with directions to dismiss the charge and all enhancements based on insufficiency ofthe prosecution’s evidence to prove the charged crime. CERTIFIED FOR PUBLICATION McKINSTER Acting P. J. I concur: CODRINGTON 11 RICHLI, J., Concurring and dissenting. I concur with the majority’s holding that, on the facts of this case, defendant’s _ motor homeswerenot “structures” within the meaning ofthe arsonstatutes. I respectfully dissent, however, from the majority’s conclusion that defendant is now entitled to a “get out ofjail free” card. I am willing to assume, without deciding, that we cannot simply reduce the offense from arson of an inhabited structure (Pen. Code, § 451, subd. (b)) to arson of property.'! But even if so, defendant could lawfully beretried for arson ofproperty. Under Penal Code section 654, as construed in Kellett v. Superior Court (1966) 63 Cal.2d 822, all offenses arising out of a single act or course of conduct must be 11 This proposition is by no meansclear. Arguably, arson of an inhabited structure and arson of property are simply different degrees ofarson, a single statutory offense. That would make arson analogous to murder (see People v. McKinzie (2012) 54 Cal.4th 1302, 1354) andtheft (see Peoplev. Ortega (1993) 19 Cal.4th 686, 693-699). We have the powerto reduce a conviction for a higher degree of an offense to a lesser degree. (Pen. Code, § 1181, subd. 6.) People v. Capps (1984) 159 Cal.App.3d 546 held that a court has this modification power even whenthe lesser degree of the offense has an element that the higher degree does not; specifically, it held that a court could modify a conviction from first degree murder to second degree murder, even though the jury may haverelied on a felony murder theory and thus may never have madeany finding of malice. (/d. at pp. 551-553.) Underthis reasoning, we could reduce defendant’s conviction from arson ofan inhabited structure to arson of property, even thoughthelatter has elements that the former doesnot. I have somereservations, however, about whether Cappsis still good law in the wake ofApprendi v. New Jersey (2000) 530 U.S. 466 and its progeny. Hence, I choose not to rely onit. prosecuted in a single proceeding, if the prosecution is or should be aware of them. (/d. at p. 827.) “Failure to unite all such offenses will result in a bar to subsequent prosecution of any offense omitted if the initial proceedings culminate in either acquittal or conviction and sentence.” (/bid., fn. omitted.) The protection of Kellett has been held to apply, not only whentheinitial proceedings culminate in acquittal or conviction, but also when they culminate in a reversal on appeal based on insufficient evidence; in that event, too, the prosecution is barred from trying the defendant on newordifferent charges arising out of the sameact or course of conduct. (Sanders v. Superior Court (1999) 76 Cal.App.4th 609, 616-617; People v. Tatem (1976) 62 Cal.App.3d 655, 658-659.) Here, however, the prosecution did effectively charge defendant with arson of property, because the jury was instructed on this offense, and because defense counsel did not object. As the Supreme Court stated in People v. Toro (1989) 47 Cal.3d 966, disapproved on another ground by People v. Guiuan (1998) 18 Cal.4th 558, 568, fn.3: “There is no difference in principle between adding a new offense attrial by amending the information and adding the same charge by verdict forms and jury instructions.” (Jd. at p. 976.) The defendantforfeits any lack of notice by failing to object. (/d. at p. 978.) Orlina v. Superior Court (1999) 73 Cal.App.4th 258 is on point. There, the defendant was charged with assault on a child undereight, resulting in death. (Pen. Code, § 273ab.) At the defendant’s request, the jury wasalso instructed on involuntary manslaughter (Pen. Code, § 192, subd. (b)) as a lesser related offense. The jury acquitted the defendant on the greater but deadlocked on the lesser. (Orlina, supra, at p. 260.) The appellate court held that the defendant could beretried on the lesser: “By requesting the jury be instructed on the lesser offense, be it an includedorrelated one, a defendant asks to be tried on a crime not charged in the accusatory pleading. By doing so, the defendant implicitly waives any objection based on lack of notice. ... [A] defendant who requests the jury be instructed on an uncharged offense consents to be treated as if the offense had been charged.” (id. at pp. 263-264.) The majority attempts to distinguish Orlina on the groundthat here, the jury did not deadlock on the lesser; rather, it was instructed that, if it convicted defendant on the greater, it should not return a verdict on the lesser, and so it did not. However, this is a distinction without a difference. Kellett is the controlling authority, and under the rationale ofKellett, whether the jury deadlockedonthelesseris irrelevant. Kellett precludesa trial on an offense only when the prosecution hasfailed to charge that offense in a previous proceeding. Here, defendant was charged with arson of property. Moreover, because the jury never returned a verdict on the lesser (for whatever reason), this chargeisstill “unresolved” and “pending.” (Cf. maj. opn. at p. 10.) Under these circumstances, Kellett’s concerns about “preventing harassment, . . . avoid[ing] needless repetition of evidence and sav[ing] the state and the defendant time and money”(Kellett v. Superior Court, supra, 63 Cal.2d at p. 826) simply are not implicated. RICHLI PROOF OF SERVICE BY MAIL (Cal. Rules of Court, rules 1.21, 8.50) Re: People v. Richard Goolsby, Case No. S216648 I, the undersigned, declare that I am over 18 years of age and am not a party to the within cause. My business address is P.O. Box 750639, Petaluma, CA 94975. I served a true copy ofthe attached ANSWERTO PETITION FOR REVIEW on each ofthe following, by placing same in an envelope(s) addressed as follows: Hon. Bryan F, Foster Richard Goolsby San Bernardino Cty. Sup. Ct. [appellant] 351 N. Arrowhead Drive San Bernardino, CA 92415 Karen Khim, Esq. Richard L. Farquhar, Esq. Office of the District Attorney Suite 101B 316 N. Mountain View Avenue 1200 NevadaStreet San Bernardino, CA 92415 Redlands, CA 92374 I then sealed each envelope and, with the postage thereon fully prepaid, I placed each for deposit in the United States Postal Service this same day at my business address shownabove,following ordinary businesspractices. PROOFOF SERVICE BY ELECTRONIC SERVICE (Cal. Rules of Court, rules 2.251(i)(1)(A)-(D) & 8.71(f(1)(A)-(D) Furthermore, I, Steven S. Lubliner, declare I electronically served from myelectronic service address of sslubliner@comcast.net the same referenced above document(s) on March 13, 2014 at 1:00 p.m.to the following entities: Felicity Senoski, Esq., Office of the Attorney General (Respondent) ADIEService@doj.ca.gov Howard C. Cohen, Esq., Appellate Defenders, Inc. eservice-criminal@adi-sandiego.com I further declare that I have filed an electronic submission of this documentin this Court at the web address of ww.courts.ca.gov/24590.htm. I further declare that I have electronically served a copy of this documentto the California Court of Appeal, Fourth Appellate District, Division Two,at the web address of www.courts.ca.gov/1738 1.htm. I declare under penalty of perjury under the lawsofthe State of California that the foregoing is true and correct. Executed on March 13, 2013 at Petaluma, California. ShoMe