PEOPLE v. GOOLSBY

Respondent’s Petition for Review

Cal.February 21, 2014

$216648 In the Supreme Court of the State of California CALIFORNIA, V. RICHARD GOOLSBY, THE PEOPLE OF THE STATE OF Plaintiff& Respondent, Defendant & Appellant. Case No. E052297 SUPREME COURT FILED FEB 2 1 2014 Frank A. McGuire Clerk Fourth Appellate District, Division Two, Case No. E052297 San Bernardino County Superior Court, Case No. FSB905099 The Honorable BRYAN F. FOSTER, Judge Deputy PETITION FOR REVIEW KAMALAD. HARRIS Attorney General of California DANER. GILLETTE Chief Assistant Attorney General JULIE L. GARLAND Senior Assistant Attorney General STEVEN T. OETTING Deputy Solicitor General FELICITY SENOSKI Deputy Attorney General State Bar No. 195181 110 West A Street, Suite 1100 San Diego, CA 92101 P.O. Box 85266 San Diego, CA 92186-5266 Telephone: (619) 645-2607 Fax: (619) 645-2271 Email: Felicity.Senoski@doj.ca.gov Attorneysfor Respondent TABLE OF CONTENTS Page Petition for REVICW ........eecseccessseesseeseeecssetereeseteeeesseeeeneeenseeeeensseeseseeeeeereaesesens 1 Issue Presented ...........cccccccsseccsscecseesseeecesaceesseeseeeevsaeerseeesseeseeeseeseveseeeeeesearesengs 1 Statement of the Case 0... ecceeeseeeeteecerenceeeseeeesrseeesnseesesseseesseensesseeeaesnenes 2 ALQUIMEME 00... eeeeeeceeseneeeeeenneceenessseeessaeeseasscuscesuesersuecssseeesegsseeeseseeesusnereegeess 5 lL. Review should be granted to settle whether this Court’s decision in Kellett bars retrial when a defendant impliedly consents to add a lesser related offense to the original charge and by reason of instructionalerror, the jury does not return a verdict On the OFFENSE ...... cc eeeceseteesececeeeceaeesetteeersesesessseseseesseesnsetenees 5 A. Kellett does not apply to preventretrial of charges properly before the jury in the original 30)COSLs(0)66 I, A charge is effectively amended with a lesser related offense when the defendant consents to jury instruction and verdict form by tacit agreeMent........eee cess eeeeeeees 7 2. The principles articulated in Kellett do not support barringretrial of a lesser related offense addedto the original charge by amendmentbut mistakenly identified as a lesser included offense............ 10 CONCLUSION ....cccccccesecccccecccnsvecccccceccccceuseccscceececsuuecseucuseseecesevatecesecuecensuueetseages 13 TABLE OF AUTHORITIES Page CASES Kellett v. Superior Court (1966) 63 Cal.2d 822ieecccneeeecseeseeeeesenceeesteserseeseeeeenreeeeess 1 etpassim Orlina v. Superior Court (1999) 73 Cal.App.4th 258 occceseneceeerener reese seeesessssscsseeessenees 5,7, 8 People v. Birks (1998) 19 Cal. 4th 108 ooceeeenenenese ee rcsseessevssessessenerssseesssseseeees 7,8 People v. Guiuan (1998) 18 Cal.4th 558occeeneeeeeeeeesseeesesenensersseseneneseeeeeseneseneney 5 People v. Haskin (1992) 4 CalApp.4th 1434cecece eneeneesessnenersseneeenseneaees 8 People v. Ramirez (1987) 189 CalApp.3d 603 oiecesesseereteeeeseenetecenesesseenenenes 8,9 People v. Reed (2006) 38 Cal.4th 12240ccesesceeessseneesssesessssecseseserssessserenesseeents 7,8 People v. Russo | (2001) 25 Cal.4th 1124ceceseeereestessessesesnrcsesesssessqressseseeseegs 8 People v. Saunders (1993) 5 Cal4th S580 voce cceceeteseseesesesesescscsesessessesssesseneeevanseasesensneney 12 People v. Schwartz (1992) 2 Cal.App.4th 1319 v.ccccccscsscssssssssssvessssesesssssssssesesssssneeseccessnseseeseene 9 People v. Toro - (1989) 47 Cal.3d 966 onenesses eeseenecsesseenseseseeecseserenees 5,7, 8,9 Richardson v. United States (1984) 468 U.S. 317 [104 S.Ct. 3081, 82 L.Ed.2d 242]...ee 11 Sanders v. Superior Court (1999) 76 Cal.App.4th 609 ooncsccsecenenetesscseseeeensssesenenenssessesenees 10 il Stanley v. Superior Court (2012) 206 Cal.App.4th 265 occcccsccscseesesecesseeeeerectecneseeteeesaeeenens 11 Stone v. Superior Court (1982) 31 Cal.3d 503 oecccececsecscececenecsesceceaeeeeecseeetsesateasseeneeseesaeaeaees 11 STATUTES Penal Code § 87 ceccecscssssecsessevesessvecessessssuvecsssuvecssvecasavessuvecesuvessevecessussansssnecessesessssvesesssees 2 SALT oc ccccccccsccsessesscseesetececsecsnscsecsecesseaeesesateaeeessaenececsessecseeeeeecseneeesaceeeeeas 6 SASL ccccccccssssessessuvsssssesessuesessevecsssevsssessessuvessuvecssuvessvessssuiesssneessetsssesesasees 1,2,3 SASL. ccecsccssesssssecsessecssssseesssecesssseesssnsessuscessussssuesessuessssiesssnecsensesavesseseessee 2,9 § O54 ic ecceceessecsteeseeeeeeesneeecaeseeeneeeseeaeseeeesseeesneetnaseetatensesssaeeeeeaeer 1 et passim § 664 .ecccccccsscsscsseseesececccecsssesececsessessaecseecersesensasenesseeaesnesseensessaesseveesnesseneeaes 2 § G67 ooeccccccsccscssesssecescsecsenseecsecsvsenesaeceesaesesseeseceeeeesaeneeseneeatensecateecsaeegeeeateey 2,3 § COTS occccccccscsccssesessceecssesseesecseseuecaeseceseaesecarsaecsecseeesenecneeeaessenaeesaeseceeeevanse 3 § O54 ee ccecccscsectseseeeenecececesesecerseeecseeaeseeeeseeeeseesesaseessesiceasenecsessessesesessaessntes 6 § 1159icceccecseecsscneesecsceestecseaeeesseesesseseeseeeesneenecieeeeeetactaseaueseseesseseeaseeensnaes 7 S LSD iccccccsecccnscneeseeeenecsceeeceecseeseceesseeeceeseeaetesseciseaeeeucneesessesensaecas 3,4 § 12021 ceccecccseecssesecteeseeecseceesetesreecestecsetsesaesaeseesevateeesces teeeeteeseeeeenseeenees 6 COURT RULES California Rules of Court Rulle 8.500.......ccccccccecesesceseesesceeceesarccevesceravsrsessceceeeccecrecsstseecseusessceeasaueeseucsunes 1 ill PETITION FOR REVIEW TO THE HONORABLE TANI CANTIL-SAKAUYE,CHIEF JUSTICE, AND TO THE HONORABLE ASSOCIATE JUSTICES OF THE CALIFORNIA SUPREME COURT: Petitioner, the People of the State of California, respectfully petitions this Court to grant review, pursuantto rule 8.500 of the California Rules of Court, of the above-entitled matter, following the issuance of a published divided opinion on January 14, 2014, by the CourtofAppeal, Fourth Appellate District, Division Two, reversing the conviction of appellant Richard James Goolsby, for arson of an inhabited structure (Pen. Code,! § 451, subd. (b)). Asrelevant here, the majority found this Court’s opinion in Kellett v. Superior Court (1966) 63 Cal.2d 822 (Kellett) bars retrial of a lesser related offense for arson of property. Although the jury wasinstructed on this lesser related offense, it was also erroneously instructed not to reach a verdict on this charge if it found appellant guilty of arson of an inhabited structure. A copy of the Court of Appeal’s opinionis attached. ISSUE PRESENTED Doessection 654 and this Court’s rule in Ke//ett bar retrial when a defendant impliedly consents to instructing the jury with a lesser related offense, but the jury does not return a verdict on that charge based on erroneously-given instructions? ' All subsequent statutory references are to the Penal Code unless otherwise noted. STATEMENT OF THE CASE After several arguments with his girlfriend one night, appellant used a vehicle to push an inoperable motor homenextto the one in which he and his girlfriend were living, and wherehis girlfriend was then was sleeping. (1 RT 42, 48-54, 95-97.) Appellant doused the inoperable motor home with gasoline andset it on fire. His girlfriend, who was awakened by her dogs, smelled smoke and gasoline, and heard crackling sounds andglass popping. She looked out the window and saw flames coming from the inoperable motor home, about four feet away. (1 RT 55-56, 62, 202.) She saw appellant walking from the inoperable motor hometo the other side of the lot. (1 RT 58.) Fleeing the motor home,she got out with her dogs just before the fire spread and engulfed it. The fire destroyed both motor homes. (1 RT 63-64, 103, 105, 107-108, 126-129.) The San Bernardino County District Attorney charged appellant with attempted murder (§§ 664/187) and arson of an inhabited structure (§ 451, subd. (b)). (1 CT 69-73 [First Amended Petition].) Because the court and both parties believed that arson of property (§ 451, subd. (d)) was lesser included offense of arson of an inhabited structure, the trial court instructed the jury on the lesser offense, and instructed it not to reach a verdict on the lesser offense if it found appellant guilty of arson of an inhabited structure. The jury found appellant not guilty of attempted murder, but guilty of arson of an inhabited structure. In accordance with thetrial court’s instructions, the jury did not return a verdict on the lesser offense of arson of property. The jury also returned a true finding that appellant caused multiple structures to burn (§ 451.1, subd. (a)). (1 CT 126-127, 260.) Subsequently, the trial court found true that appellant had previously suffered a residential burglary and two robbery prior convictions in 1976, whichconstituted “strikes” and serious felony convictions (§§ 667, subd. (a)(1), (b)-(i), 1170.12, subd. (a)-(d)). It also found true prison prior allegations concerning appellant’s convictions in 1998 and 2001 for firearms violations, and in 2004 for grand theft (Pen. Code, § 667.5, subd. (b)). (1 CT 97, 262-265.) Thetrial court sentenced appellant under the Three Strikes law to a 25-year-to-life sentence plus a determinate term of 23 years. The determinate term was comprised of a five-year enhancementfor the burning of multiple structures, plus three consecutive five-year terms for each serious prior felony, and three consecutive one year terms for each prison prior. (2 CT 297-298, 311-314.) Appellant appealed. On February 14, 2013, the Court of Appeal filed an unpublished opinion that affirmed but modified the judgment. The court held that the evidence did not support the arson of an inhabited structure conviction, reasoning the motor homethat was burnedin this case was not a “structure” within the meaning of the arson law. Having rejected appellant’s argument he did not act with malice in burning the motor home,the court exercised its authority under section 1181, subdivision (6), modified the verdict and reduced appellant’s conviction to the lesser offense of arson of property (§ 451, subd. (d)). Because the court reduced appellant’s offense to arson of property, it struck the burning multiple structures enhancement. The court also struck two ofthe serious prior felony enhancements because the offenses were not brought andtried separately as required by section 667, subdivision (a). The court subsequently granted appellant’s petition for rehearing on the issue of whether arson of property is a lesser included offense of arson of an inhabited structure such that it could exercise its discretion under section 1181, subdivision (6), and reduce appellant’s conviction from the greater offense to the lesser offense. In an opinion filed April 30, 2013, the court found that arson of propertywasa lesser related offense of arson an inhabited structure and, therefore, outside the scopeofits authority to modify the conviction under section 1181, subdivision (6). In reversing and remanding the case with directions to dismiss, the court concluded that permitting a newtrial on the lesser related offense “would violate the constitutional prohibition against placing a person twice in jeopardy for the same offense.” Respondentpetitioned for rehearing, arguing that double jeopardy did not preventa retrial of the lesser related offense. The Court of Appeal granted rehearing and issued a third (now divided) opinion that reversed and remandedto thetrial court with directions to dismiss the case. (Appendix, People v. Goolsby, Fourth App. Dist., Div. Two, Case No. E052297, Slip Opinion, pub. Jan. 14, 2014 (hereinafter, “Opn.’’).) Writing for the majority, Justice McKinster first held the motor home wasnota structure and, therefore, could not support a charge of arson of an inhabited structure. The majority further concluded that retrial on the lesser related offense of arson of property is barred under section 654’s prohibition against multiple prosecutions for the same act following an acquittal or conviction. The majority no longerrelied upon principles of double jeopardy. Instead, the majority looked to Kellett and concludedretrial constituted a new and separate prosecution of the same act. (Opn. at p. 9.) The Court of Appeal acknowledgedthat the offense wasbefore the jury in the trial court’s instructions, however, it reasoned: Had the prosecutor charged the 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 remandthis matter to the trial court. (Opn.at p. 10.) In dissent, Justice Richli disagreed with the majority’s holding to dismiss the case and provide appellant with a “get out ofjail free” card. (Dis. Opn. at p. 1.) The dissent focused its analysis on the implicitly amended charges. Relying on authority from this Court and the Fourth District, the dissent concluded that “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.” (Dis. Opn.at p. 2; People v. Toro (1989) 47 Cal.3d 966, 976 (Toro), disapproved on another ground in People v. Guiuan (1998) 18 Cal.4th 558, 568, fn. 3; Orlinav. Superior Court (1999) 73 Cal.App.4th 258, 263-264.) The dissent found that because the jury did not return a verdict on the offense of arson of property, the charge is unresolved andstill pending; the instructionalerror mischaracterizing the lesser related offense as a lesser included one did not implicate the concernsarticulated in Kellett. (Dis. Opn. at pp. 2-3.) ARGUMENT I. REVIEW SHOULD BE GRANTED TO SETTLE WHETHER THIS COURT’S DECISION IN KELLETTBARS RETRIAL WHEN A DEFENDANT IMPLIEDLY CONSENTS TO ADD A LESSER RELATED OFFENSE TO THE ORIGINAL CHARGE AND BY REASON OF INSTRUCTIONAL ERROR, THE JURY DOES NOT RETURN A VERDICT ON THE OFFENSE Relying on this Court’s opinion in Kellett, supra, 63 Cal.2d 822, the Court of Appeal majority held that retrial of the lesser related offense of arson of property is barred by section 654’s prohibition against multiple prosecutions. (Opn.at p. 10.) However, section 654 is not implicated where chargesare properly joined in the original prosecution. Because appellant impliedly consented to add the lesser related offense to the original charge by agreeing to the jury instructions and verdict form,the concernsrelated to successive prosecutions articulated by this Court in Kellett are not involved. Thelesser related offense of arson of property was never decided based on a simple instructional error. The instruction erroneously told the jury not to reach a verdict if it found appellant guilty of arson of an inhabited structure, which is whatit did. Consequently, arson ofproperty remains an open charge and the Kellett rule does not apply to this case. Review is appropriate because this Court is uniquely situated to speak to the meaningofits prior decision in Kellett. As important, the Court of Appeal’s published decision results in a windfall for appellant, whois a dangerousarsonist and who will otherwise escape justice based on a mereinstructionalerror. A. Kellett Does Not Apply to Prevent Retrial of Charges Properly Before the Jury in the Original Prosecution This Court’s opinion in Kellett is concerned with new and Separate prosecutions of offenses that were never before considered by a jury, but are based on the sameact or conduct for which an earlier prosecution failed. (Kellett, supra, 63 Cal.2d 822.) In that case, Kellett was charged with misdemeanor brandishing ofa firearm (§ 417), and in a.second case based on the samefacts, with possessing a concealable weaponbya felon (§ 12021). After pleading guilty to the misdemeanor, Kellett sought to dismiss the second case against him. In holding the section 12021 charge should have been dismissed undersection 654, this Court reasoned that where joinder of offenses is proper, closely related crimes based on the same act or conduct “must be prosecuted in a single proceeding” andifthey are not broughtin “the initial proceedings” subsequent prosecutionis barred. (/d. at 827; see § 954 [requiring joinder of related offenses in a single prosecution].) The purposeofthis rule is to prevent needless harassmentand the waste ofpublic funds. (/bid.) But as this Court emphasized, “our holding herein will not open the doorto the escape of defendants from punishmentfor serious crimes because of convictions or acquittals of closely related minor crimes.” (/d. at p. 828.) In the present case, the majority applied Kellett in a wholly new context. The majority concluded Kellett foreclosed retrial even where the trial court instructed the jury on a lesser related offense, but the jury did not return a verdict as to that offense. The majority stated that the only reason the jury was instructed on the offense of arson of property was becausethe trial court and both parties believed that it was a lesser included offense of arson of an inhabited structure. According to the majority, if the prosecutor had charged appellant with the lesser related offense, the jury would have been instructed to render verdicts as to both counts. (Opn.at pp. 9-10; Kellett, supra, 63 Cal.2d at p. 827.) But as Justice Richli pointed out in dissent, the majority failed to recognize that the jury instructions and verdict form on arson ofproperty, to which the defense consented by tacit agreement, effectively amended the chargesto include the lesser related offense of arson of property. (Peoplev. Birks (1998) 19 Cal.4th 108, 136, fn. 19; Toro, supra, 47 Cal.3d at p. 976; Orlina v. Superior Court, supra, 73 Cal.App.4th at pp. 263-264.) The amendedchargeis the very fact that distinguishes the error described in Kellett. Review is necessary to settle the dichotomy in the law created by the Court of Appeal’s published opinion. 1. A ChargeIs Effectively Amended With a Lesser Related Offense When the Defendant Consents to Jury Instruction and Verdict Form by Tacit Agreement Generally, a defendant may be convicted of an uncharged crime only if it is a lesser included offense of a charged crime. (People v. Reed (2006) 38 Cal.4th 1224, 1227; see § 1159.) The rule limiting convictions of uncharged crimesto lesser included offenses of charged crimessatisfies the due process requirementthat an accused be given adequate notice of the charges so as to have a reasonable opportunity to prepare and present a defense. (People v. Reed, supra, 38 Cal.4th at p. 1227.) Whena lesser offense is not necessarily includedin the original charge, the parties may nevertheless agree that the defendant may be convicted of such offense. (People v. Birks, supra, 19 Cal.4th at p. 136 fn. 19.) A defendant’s agreement may be express or he may impliedly consent or acquiesce to havethetrier of fact consider an uncharged offense. (Toro, supra, 47 Cal.3d at p. 973; Orlina v. Superior Court, supra, 73 Cal.App.4th at pp. 263-264; People v. Haskin (1992) 4 Cal.App.4th 1434, 1438.) Consent to conviction of a lesser charge has been found when a defendant requests an instruction on the lesser offense or urges conviction on the lesser. (People v. Ramirez (1987) 189 Cal.App.3d 603, 623 (Ramirez), disapproved on another point in People v. Russo (2001) 25 Cal.4th 1124, 1137.) Additionally, a defendant is considered to have acquiescedin the jury’s consideration of a lesser related offense when he fails to object to the jury instructions or verdict form relating to that offense. (Toro, supra, 47 Cal.3d at pp. 976-977.) In this case, appellant impliedly agreed to have the jury consider the arson of property offense. During the instructional conference, thetrial court described a “decision tree” that the jury might utilize to eliminate the greater crime before finding guilt on a lesser crime. The prosecutor explicitly agreed to the lesser offense instructions and verdict options proposedbythetrial court, which included arson of property and identified the lesser offenses as lesser included offenses. (2 RT 284-287.) The defense spoke on the matter also. In responseto the trial court inquiry concerning the proposedinstructions and verdict forms, appellant’s attorney stated he “understood where[the trial court was] going.” (2 RT 285.) Thetrial court identified the lesser offenses as lesser included offenses of arson of an inhabited structure. Appellant had ample opportunity to object to the instructions but did not. Reasonably construed, appellant’s statement that he “understood” combined with his failure to object demonstrates implied consent to the lesser offense instructions. (Toro, supra, 47 Cal.3d at pp. 973, 976-977.) Appellant’s implied consent to the lesser offenses is further supported by his urging the jury to convict him of burning property. (2 RT 354-356, 358, 368-369; Ramirez, supra, 189 Cal.App.3d at p. 623.) Appellant’s counsel focused the jury’s attention on the crimes of arson of property and unlawful burning of property. (2 RT 354-356.) Appellant’s counsel conceded that appellant was guilty of unlawfully causing a fire and urged the jury to “{c]onvict him of what he did[.]” (2 RT 369. In sum, because appellant’s statement and conduct reasonably implied his consentto the additional count, and because “adding a new offenseat trial by amending the information”is the functional equivalent of “adding the same charge by verdict formsandjury instructions[].” (Toro, supra, 47 Cal.3d at p. 976, fn. omitted), the charge was properly amended with the lesser offense of arson of property. * It is worth noting that appellant had tactical reasons for agreeing to the additional instructions and arguing accordingly. Appellant benefitted from the addition of the arson of property count because if the jury found it wastrue, the multiple structure enhancementallegation would not apply. (§ 451.1, subd. (a).) Even moresignificant, instruction on the arson of property gaverise to an additional lesser offense that would otherwise not have been available to the defense. Namely, as a result of adding the arson of property, the jury was also instructed on the lesser included offense of misdemeanor unlawful burning of property. (People v. Schwartz (1992) 2 Cal.App.4th 1319, 1325 [“Unlawfully causing fire is a lesser included offense of arson.”|.) Had the jury been persuadedby appellant’s arguments that he burned mere property, and did so recklessly, he would have been convicted of a misdemeanor, and therefore outside the reach of Three Strikes sentencing despite his violent and lengthy criminal record. (See, e.g., 2 CT 300 [appellant’s prior criminal record detailed in Probation Officer’s report], 419-420 [appellant’s out-of-state prior convictions for arson, burglary, grand larceny, and escape from Nevadastate prison].) 2. The Principles Articulated in Kellett Do Not Support Barring Retrial of a Lesser Related Offense Addedto the Original Charge by Amendment But Mistakenly Identified as a Lesser Included Offense In cases where a defendant is charged with and convicted of an offense, and that offense is reversed on appeal, an issue arises as to whether section 654 posesa bar to the defendant being charged with a related offense for the sameact. Therule set out in Kellett, supra, 63 Cal.2d 822, generally stands for the proposition that when the prosecution is or should be aware of multiple offenses arising out of the same course of conduct, “(flailure 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.” (/d. at p. 827; see also Sanders v. Superior Court (1999) 76 Cal.App.4th 609, 614, 616-617 [after reversal of conviction on ten counts of grand theft of real property, prosecution cannotfile new case charging forgery andfiling false documents when based on the sameacts].) The provision of section 654 prohibiting multiple prosecutions“is a procedural safeguard against harassment.” (Kellett, supra, 63 Cal.2d at p. 825.) This Court explainedin Kellett, “It would constitute wholly unreasonable harassment in such circumstancesto permit trials seriatim until the prosecutoris satisfied with the punishment imposed.” (/d. at pp. 825-826.) Under Kellett, a defendant should not be allowed to claim retrial of a lesser related offense amounts to unreasonable harassmentby the prosecution when the defendant has agreed to be placed in jeopardy for that offense and, by reason ofinstructionalerror, the jury does not return a verdict for that offense so that neither acquittal nor conviction and sentence exist. That is what occurred here. Thetrial court instructed the jury on the offense of arson of property as a lesser included offense so that when the 10 jury returned its verdict on the greater offense,it did not return a verdict on the lesser. As the Court of Appeal majority concluded,the trial court as well as both parties shared the mistaken belief the arson of property offense qualified as a lesser included offense, whenit is actually a lesser related offense of arson of an inhabited structure. (Opn.at pp. 9-10.) But that mistake does not warrant application of Kellett to bar retrial. As the dissenting justice concluded, Kellett is not concerned with the mistake that occurred here, but rather is implicated only “when the prosecution has failed to charge {an] offense in a previous proceeding.” (Dis. Opn.at p. 3, emphasisin original.) Because the charge here was effectively amended, there was nofailure in this regard. Finally, retrial of the lesser related offense does not offend state and federal constitutional principles of double jeopardy. (Richardson v. United States (1984) 468 U.S. 317, 325 [104 S.Ct. 3081, 82 L.Ed.2d 242] [double jeopardy protection applies only if there has been an event, such as acquittal, that terminates the original jeopardy].) The discharge of the jury before a verdict is reached is tantamount to an acquittal unless the jury was discharged with the defendant’s consent. (Stone v. Superior Court (1982) 31 Cal.3d 503, 516.) In this context, consent can be implied from defense counsel’s conduct. (Stanley v. Superior Court (2012) 206 Cal.App.4th 265, 288.) Appellant’s counsel stated he “understood”the instructions and verdict forms that detailed the process by which the jury would return its verdict. (2 RT 285.) The defense did not lodge any objection to the process, which included instructing the jury not to reach a verdict on the lesser charge. Rather, appellant’s counsel argued that the jury should convict him of a lesser offense. (2 RT 354-356, 369.) He thereby consentedto the jury being discharged without declaring a verdict on the lesser count if the jury found guilt on the greater. It cannot be said that retrial would subject such a defendantto the hazards the doctrine of double il jeopardy was designedto protect against. (People v. Saunders (1993) 5 Cal.4th 580, 593.) Notably, although the Court of Appeal relied on principles of double jeopardy as compelling reversal in its second opinion, the majority no longer mentioned double jeopardy in reachingits third decision. In short, this case wastried under a legal misunderstanding apparently commonto all parties. It does not follow that retrial should be barred on a ground put in issue by the defendant and as to which the jury did not render a verdict because ofa shared legal misunderstanding. Underthese circumstances,retrial is not unfair to the defendant, any more than it would be after routine mistrial or after reversal, at the defendant’s behest, based on any othertrial error. Conversely, barring retrial is unfair to the public, without effectively serving any countervailing interest in discouraging future prosecutorial overreaching or harassment. Review is warranted so that this Court may speak to the Court of Appeal majority’s unprecedented extension of this Court’s decision in Kellett and avoid an unmerited windfall to a dangerous arsonist. 12 CONCLUSION Respondentrespectfully requests that this petition for review be granted. Dated: February 20, 2014 FS:swm $D2011700511 70827225.doc Respectfully submitted, KAMALAD. HARRIS Attorney General of California DANER. GILLETTE Chief Assistant Attorney General JULIE L. GARLAND Senior Assistant Attorney General STEVEN T. OETTING Deputy Solicitor General FELICITY SENOSKI Deputy Attorney General Attorneysfor Respondent 13 CERTIFICATE OF COMPLIANCE I certify that the attached RESPONDENT’S BRIEFuses a 13-point Times New Roman font and contains 3,695 words. Dated: February 20, 2014 KAMALAD. HARRIS Attorney General of California FELICITY SENOSKI Deputy Attorney General Attorneysfor Respondent APPENDIX See Concurring and Dissenting Opinion HL, JAN 14 2014 CERTIFIED FOR PUBLICATION COURT OFAPPEAL FOURTH DISTRICT 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. APPEALfrom 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 found true the allegation that he caused more than one structure to burn within the meaningofsection 451.1, subdivision (a)(4), based on evidence that defendantset a fire that caused two motor homes to burn.? Becausethe felony conviction constituted defendant’sthird strike, the trial court sentenced him to the mandatory term of 25 yearsto life in state prison, and also imposed various enhancementsafter first finding those allegationstrue. 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 defendant set fire to his motor home does not support the jury’s verdict finding 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,1.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 Forpurposesof arson, “‘Structure’ means any building, or commercial or public tent, bridge, tunnel, or powerplant.” (§ 450, subd.(a).) b o becauseit is a lesser related crime, we also cannot remand the matterto thetrial 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 on insufficiency 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 ofthe issues defendantraises 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 November 28, 2009, defendant and Burley got into an argument. Sometime not long after the argument, in which defendant and Burley each called the police on the other, defendant used a vehicle to push an inoperable motor home next to the one in which he and Burley wereliving and where Burley then was sleeping. Defendant used gasoline to set the inoperable motor home onfire. After Burley got out with her dogs,the fire spread to the motor homein which she had been sleeping. Thefire destroyed both motor homes. Additional facts will be recounted below as pertinent to the issues defendantraises on appeal. DISCUSSION 1. THE EVIDENCEIS INSUFFICIENT TO SUPPORT THE JURY’S VERDICT FINDING DEFENDANT GUILTY OF ARSON OFAN 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 evidencethathesetfire to or caused that motor home to bum doesnot support the jury’s verdict finding him guilty of arson of an inhabited structurein violation of section 451. Undersection 451, “A person is guilty of arson when heor 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 jJevels 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 ofa ‘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 seriousness of the offense,”’ and, in particular, ‘according to the injury or potential injury to human life involved... .’ [Citation.]” (People v. Labaer (2001) 88 Cal.App.4th 289, 292 (Labaer).) Thedistrict attorney in this case charged defendant with arson of an “inhabited structure” in violation of section 451, subdivision (b). Defendant pointed outin thetrial court that according to section 450, which defines the terms used inthe arson chapter, ‘Structure’ means any 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 homewas a dwelling,i.e., a place in which defendant and Burley intended to live more or less permanently. Based on that focus, thetrial court permitted the jury to determine whether, in this case, a motor homeis a structure for purposesof the arsonstatute. Whetherthe crimeis arson of a 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.” Of the several types of structures includedin the statutory definition, only a building is relevant here. As Division One ofthis court observed in Labaer, “The Penal Code does not define ‘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 punishment for 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 evidence established the [mobile]homewasfixed to a particular location, could not be readily moved, and had been used as Labaer’s residence for several months, (/bid.) The prosecutor did notpresent evidence to show that the motor home in which he and Burley then lived was fixed to a particular location and,therefore, had the attributes of a building. The commonfeature ofthe things included in the statutory definition of structureis that they are affixed to the ground andeither cannot be movedatall or cannot be moved withoutfirst 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 meaningofthe arson statute.> More importantly, and as defendant also pointed outin the trial court, the punishmentfor arson of an inhabited structure and the punishmentfor arson of inhabited property is exactly the 4 The Attorney General arguesthat the ability to moveis not the determining factor because a commercial or public tent can be dismantled and transported in a truck. The obvious response is that when dismantled, a commercial or public tent is not a structure;it is property. 5 The Attorney General argues,as the district attorney did in the trial court, that “(b]uildings commonly have walls and a roof. In general, their function is to hold people and property. Although a motor home has wheels andis not fixed to the ground,it is functionally a building, as it serves all the normal purposes ofa building, and shares critical design features, such as walls and a roof, and even interior rooms. It is manifestly intended to hold people.” The definition of the term “structure” set out in section 450 does not turn on purpose or function, it turns on permanence or immobility, the very attribute of a motor home the Attorney Gencral would have us disregard. Moreover, section 451, the arson statute in question, does not focus on protecting people in buildings as the Attorney Genera! contends. Thestatute applies to inhabited structures which the Legislature stated means not 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 but also to inhabited property, which by definition is everything other than a structure, i.e., a motor home. The only reason the severe punishment for arson of inhabited property does not apply in this case is that the district attorney inexplicably failed to chargeit. same,° unlike in Labaer, in which arsonofa structurethat is not inhabited carries a greater punishment than arson of property that is not inhabited.’ For purposesofthe arsonstatute, defendant’s motor homeis property, which by statutory definition “meansreal 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 thoughthat section also applies to arson of“inhabited property.”8 In short and simply stated, the motor homeatissuein this appealis not a structure, as that term is defined in the arson statutes and asthetria] court instructed the jury.? Therefore, the prosecutor’s evidence that defendantset fire to a motor homethat caused a second inhabited motor hometo catch fire wasinsufficient 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 for three, five, or eight years. (§ 451, subd. (b).) Because section 451, subdivision (b), includes both inhabited structures and inhabited property, we must reject defendant’s claim that arson of inhabited property is a lesser included offense on whichthetrial court should have instructed the jury. 7 Arson ofa 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 The original felony complaint and original information, as well as an amended felony complaint charged defendant with arson of an inhabited structure or property, but then the district attorney filed an amended informationthat only alleged arson of an inhabited structure. 9 Thetrial court instructed the jury according to 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 enhancementthat defendant“caused multiple structures to burn during the commission of the arson.” The next issue we must address is 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 doesnot 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 becauseall of the elements of the lesser offense are included in the elements of the greater’”].) ‘‘In other words, when the preater crime ‘cannot be committed without also committing another offense, the latter is necessarily included within the former.’ [Citation.]” (Ud. 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 defendant points out, arson of property requires proof the property either did not belong to the defendant(becauseit is not unlawful to burn one’s own personal property), 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 ofa structure is unlawful regardless of whether the defendant ownsthe structure. (§ 451, subd. (c).) Becauseit is possible to commit arson ofa 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 of arson ofa structure, we cannot exercise our authority under section 1181, subdivision 6, to reduce defendant’s conviction from the greaterto that offense. Norcan we remand this matter to the trial court for a newtrial on the lesserrelated offense of arson of property. Multiple prosecutions for the same act 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 otshould 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 crimeof arson of property, 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 under the 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 sameact 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 onlyif 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 onlesser 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 matter to the trial court. (/bid.) Any new or subsequenttrial in this matter would constitute a newprosecution of defendant based on the sameevidence usedto 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. Underthe 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 thetrial court with directions to dismiss the charge andall enhancements based on insufficiency of the prosecution’s evidence to prove the charged crime. CERTIFIED FOR PUBLICATION McKINSTER Acting P. J. I concur: CODRINGTON 11 [People v. Goolsby, E052297] RICHLI,J., Concurring and dissenting. I concur with the majority’s holding that. on the facts of this case, defendant’s motor homes were not “structures” within the meaning of the arson statutes. | 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 be retried for arson of property. UnderPenal 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 i 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 makearson analogous to murder (see People v. McKinzie (2012) 54 Cal.4th 1302, 1354) and theft (see People v. 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 degrec. (Pen. Code, § 1181, subd. 6.) People v. Capps (1984) 159 Cal.App.3d 546 held that a court has this modification power even when the lesser degree of the offense has an elementthat 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 madeanyfinding of malice. (/d. at pp. 551-553.) Underthis reasoning, we could reduce defendant’s conviction from arson of an inhabited structure to arson of property, even though the latter has elements that the former does not. | have somereservations, however, about whether Cappsisstill good law in the wake ofApprendi v. New Jersey (2000) 530 U.S. 466 and its progeny. Hence, | choose not to rely onit. prosecuted in a single proceeding,if the prosecution is or should be aware ofthem. Cd. 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 at trial by amending the information and adding the same charge by verdict forms and jury instructions.” (/d. at p. 976.) The defendant forfeits 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 under eight, resulting in death. (Pen. Code, § 273ab.)} At the defendant’s request, the jury was also instructed on involuntary manslaughter (Pen. Code, § 192, subd. (b)) as a lesser related-offenss. Thejury, acquitted the defendant on the greater but deadlocked on the lesser. (Orlina, supra, at p. 260.) The appellate court held that the defendant could be retried on the lesser: “By requesting the jury be instructed on the lesser offense, be it an included or related one, a defendant asks to be tried on a crime not chargedin theaccusatory 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.” (/d. at pp. 263-264.) The majority attempts to distinguish Orlina on the ground that 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 thelesser, andso it did not. However, this is a distinction without a difference. Kellett is the controlling authority, and under the rationale of Kellett, whether the jury deadlocked on thelesseris 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 ofproperty. Moreover, because the jury never returned a verdict on the lesser (for whatever reason), this chargeis still “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 saving] the state and the defendant time and money”(Kellett v. Superior Court, supra, 63 Cal.2d at p. 826) simply are not implicated. RICHLI SS:OLHY LE NYE 4102 1, NvS WHEREMINGOLIV DECLARATION OF SERVICE BY U.S. MAIL Case Name: People v. Richard James Goolsby No.: E052297 I declare: I am employedin the Office of the Attorney General, whichis the office of a memberofthe California State Bar, at which member's direction this service is made. I am 18 years of age or older and not a party to this matter. I am familiar with the business practice at the Office of the Attorney General for collection and processing of correspondence for mailing with the United States Postal Service. In accordance with that practice, correspondenceplaced in the internal mail collection system at the Office of the Attorney General is deposited with the United States Postal Service with postage thereon fully prepaid that same day in the ordinary course of business. On February 20, 2014, I served the attached PETITION FOR REVIEWbyplacing a true copy thereof enclosed in a sealed envelopein theinternal mail collection system at the Office of the Attorney General at 110 West A Street, Suite 1100, P.O. Box 85266, San Diego, CA 92186- 5266, addressed as follows: STEVEN S LUBLINER CLERK OF THE COURT ATTORNEY AT LAW FOR HON BRYAN F FOSTER PO BOX 750639 SAN BERNARDINO CO SUPER COURT PETALUMA CA 94975-0639 401 N ARROWHEAD AVE Attorneyfor Appellant SAN BERNARDINO CA 92415-0063 Richard James Goolsby (2 Copies) APPELLATE SERVICES UNIT OFFICE OF THE DISTRICT ATTORNEY 412 WHOSPITALITY LN 1ST FLR SAN BERNARDINO CA 92415-0042 KEVINJLANE CLERK DIV TWO FOURTH APP DIST CALIFORNIA COURT OF APPEAL 3389 TWELFTH ST RIVERSIDE CA 92501 I declare under penalty of perjury underthe laws of the State of California the foregoingis true and correct and that this declaration was executed on February 20, 2014, at San Diego, California. STEPHEN MCGEE / Declarant »Righature \-™~ $D2011700511 70827227.doc