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People v. Ashbey

COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (El Dorado)
Apr 28, 2020
48 Cal.App.5th 373 (Cal. Ct. App. 2020)

Opinion

C083291

04-28-2020

The PEOPLE, Plaintiff and Respondent, v. Angel Marie ASHBEY, Defendant and Appellant.

Valerie G. Wass, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Carlos A. Martinez, Darren K. Indermil, Supervising Deputy Attorneys General, Kari Ricci Mueller, Deputy Attorney General, for Plaintiff and Respondent.


Certified for Partial Publication.

Pursuant to California Rules of Court, rules 8.1105 and 8.1110, this opinion is certified for publication with the exception of parts II through VI of the Discussion and the concurring and dissenting opinion.

Valerie G. Wass, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Carlos A. Martinez, Darren K. Indermil, Supervising Deputy Attorneys General, Kari Ricci Mueller, Deputy Attorney General, for Plaintiff and Respondent.

BLEASE, Acting P. J. Defendant Angel Maria Ashbey briefly lived with two others in a secluded house in a forested area. Toward the end of her stay, Ashbey struck one of her roommates in the head with a pipe until he lost consciousness, poured gasoline over him, and threw several lit matches in his direction—though none caught fire. After her roommate managed to escape, she set several fires in the house and four more on the forested land around the house. A jury convicted Ashbey of attempted voluntary manslaughter, arson of a structure, and four arsons of forest land. The jury also found true several enhancements relating to these offenses. The trial court sentenced Ashbey to a total of 19 years in prison.

Ashbey raises various issues on appeal. She contends (1) she should have been convicted of only one arson of forest land, not four, because she set the several fires on only one parcel of land; (2) even if her four arson convictions were proper, she should have received concurrent, not consecutive, sentences for the four arsons of forest land; (3) the court wrongly instructed the jury about attempted voluntary manslaughter and the right to self-defense; (4) the court wrongly modified one of the jury’s verdict forms, which initially referred to the nonexistent crime of "attempted involuntary manslaughter," to refer to "attempted voluntary manslaughter"; (5) the abstract of judgment mistakenly refers to each of the four arsons of forest land as an arson of a structure; (6) the abstract of judgment mistakenly lists the relevant court assessments; and (7) the court violated her due process rights by ordering her to pay criminal fees and fines without first finding she had the ability to pay them.

We agree the abstract of judgment should be modified for the reasons Ashbey alleges. In all other respects, we affirm the judgment. We address whether Ashbey was properly convicted of four counts of arson of forest land in the published portion of our opinion, and we address the remaining issues in the unpublished portion of our opinion.

BACKGROUND

Factual Background

Ashbey is a former deputy sheriff and correctional officer who, for about a year, lived in the home of her former boyfriend, Doug Bennett, in El Dorado County.

In late July of 2013, Ashbey met Timothy Maston and Melissa DeLong, Maston’s caretaker, at a barbeque hosted by a mutual friend. Both Maston and DeLong were then looking for a new place to live and, at Ashbey’s suggestion, they considered joining Ashbey at Bennett’s home—a two-story house set on a large tract of over five acres in a grassy and forested area.

Maston at the time suffered from various complications from his diabetes, including kidney disease, poor eyesight, and according to DeLong, difficulty walking.

Maston and DeLong met Bennett a few days after about the home. Bennett, who was living in Redwood City at the time, showed Maston and DeLong the home and shortly after agreed the two could stay there. But he informed them that Ashbey could not, as the two had recently broken up. After he left, however, Ashbey returned to the house and told Maston and DeLong that she "didn’t care what he sa[id]"; she "had more right there than him." And so she continued to live at Bennett’s house, now with Maston, DeLong, and DeLong’s dog staying there too.

After a few days at the house, DeLong purchased a cake, gifts, and balloons on learning it was Ashbey’s birthday. She then went into her bedroom to set up what she had purchased to surprise Ashbey, but as she was doing so, Ashbey attempted to enter her bedroom. After DeLong managed to block her from entering, Ashbey began yelling that DeLong was trying to hide something from her. A few minutes later, DeLong opened the door to show her she was only trying to hide the birthday surprise. But Ashbey said nothing, walked out, and slammed the door on her way out.

Because of Ashbey’s behavior, which made DeLong "feel really uncomfortable," DeLong prepared to leave the house the following day. To that end, she began packing Maston’s and her belongings into their car. But after talking with Bennett over the phone, who assured her that Ashbey would leave, DeLong decided to stay at the house a little longer.

Later that same day, Ashbey called DeLong and apologized for her earlier behavior. She then asked DeLong to pick her up. DeLong agreed, drove to Ashbey’s location, and then brought her back to the house. Shortly after, DeLong helped Maston into the bedroom to lay down because he was not feeling well, and then set out for the grocery store to pick up dinner for her, Ashbey, and Maston.

But on returning home no more than an hour later, DeLong found the house and surrounding area in flames. She asked a neighbor to call 911 and, after entering the home, found her dog inside a burning room. But she could find neither Maston nor Ashbey.

Emergency responders arrived shortly after and attempted to extinguish the house fire and several vegetation fires on the property. One of the responders later found Maston, his face bloodied "like he’d been hit," downhill from the house. Maston was afterward taken to the hospital where he remained for the next two weeks. According to hospital records, he suffered a frontal sinus fracture, a nasal fracture, a clavicle fracture, a small hemorrhage in part of his brain, and complex lacerations on his forehead and nose. He later received surgery for his injuries to close his wounds, remove small bone fragments, and repair a large bone fragment that had become dislodged.

According to the parties’ stipulation, Maston had amphetamine in his system at the time he was admitted to the hospital, and admitted using methamphetamine about twice a month.

At the hospital, Maston told a detective that Ashbey had caused his injuries. According to Maston, he had told Ashbey he planned to have a cigarette, and asked if she cared to smoke too. After she said no, he started heading outside. But before he made it outside, Ashbey struck him in the back of the head with a PVC pipe with a "big steel knuckle" attached at the end, causing him to fall to the floor. She then struck him again in the head while he was on the ground, causing Maston to, he believes, briefly lose consciousness. The next thing he remembered he was outside on the pavement. While he lay on the pavement struggling to move, woozy from the blows to his head, Ashbey poured gasoline on him and threw several lit matches in his direction. But none of the matches reached him. Maston eventually managed to escape Ashbey and hid behind a door in the house. After hiding there for a period of time, he headed back outside and saw Ashbey lighting a fire near the driveway to the house. He then headed toward the back of the house but, on his way over, fell and rolled down a slope away from the home. After he came to a stop, he hid behind a bush until DeLong returned from the grocery store.

The detective found a PVC pipe matching Maston’s description in the house, describing it as a PVC pipe with a metal valve screwed on the end.

Two other detectives later sought to speak with Ashbey about these events, but she proved difficult to locate. A few days after the fire, still having not found her, the detectives obtained a search warrant and traced her phone to the home of one of Ashbey’s friends in Grass Valley. But at the time the detectives arrived, the friend said Ashbey had left 30 minutes before, though he agreed to notify the detectives if he saw her again. Four days after, the detectives received an anonymous tip noting that Ashbey was again at the friend’s house in Grass Valley and would soon be leaving in a silver car. Following the tip, the detectives visited the area and shortly after found a car matching the description provided. In the driver’s seat of the car was the same friend who earlier agreed to notify the detectives the next time he saw Ashbey. After asking the driver whether anyone else was in the car and not receiving a response, the detectives searched the car and found Ashbey hiding under clothing in the backseat. They arrested her at that time.

Ashbey afterward denied setting the fires and gave conflicting explanations about Maston’s injuries. At first, she claimed she never hit Maston with a PVC pipe and never poured gasoline on him. She asserted instead that Maston had pushed her to the floor following an argument, and that they then physically fought—but not with a PVC pipe. But later on, she conceded she hit Maston in the head with the PVC pipe with the metal valve attached at its end, though she maintained that Maston had pushed her first. She added that she hit him in the head again with the pipe only after he kept coming after her. After hitting him this second time, she further alleged, she threw a rock at Maston as he continued to chase her, Maston hit her below the knee with the same PVC pipe she had used, and she then threw a cup of gasoline and unlit matches at Maston to prevent him from chasing her further. She also discussed the fires but denied setting them. In her account, she ran to a trail near the house after the fight with Maston, fell asleep on the ground shortly after, and then awoke surrounded by smoke.

In support of Ashbey’s version of the events, one of Ashbey’s friends said she had seen Ashbey’s injuries and taken photographs of them two days after the fires. But the alleged photographs were never offered in evidence.

Two firefighter investigators later attempted to determine the cause of the fires. One focused on the house. He found the fire had been started in two areas—the front door and the master bedroom—and had been deliberately started and accelerated by the use of gasoline. Another investigator inspected the outdoor fires. He ultimately identified four separate outdoor fires that, in his opinion, were not caused by one another but rather were started separately by arson. All four of the outdoor fires were adjacent to the home’s driveway. Three of the fires were on the downhill side of the driveway and were contained to small areas, with two burning one-tenth of an acre and one burning one-hundredth of an acre. The fourth fire, which was on the uphill side of the driveway, burned 9.6 acres before being put out.

Procedural Background

Ashbey was charged with attempted first degree murder of Maston (Pen. Code, § 664/187, subd. (a)—count 1), arson of an inhabited structure (§ 451, subd. (b)—count 2), and four arsons of "a structure or forest" (§ 451, subd. (c)—counts 3-6) for the four fires set around Bennett’s house. She was also charged with several enhancements. The information alleged, for count 1, that her attempted murder of Maston involved the use of a deadly weapon (§ 12022, subd. (b)(1)) and personal infliction of great bodily injury (§ 12022.7, subd. (a)). It alleged, for count 2, that Ashbey set fire to the house using "a device designed to accelerate the fire or delay ignition." (§ 451.1, subd. (a)(5).) And it alleged, for the remaining arson counts, that her attempt to set fire to "a structure or forest" resulted in a firefighter suffering great bodily injury. (§ 451.1, subd. (a)(2).)

Undesignated statutory references are to the Penal Code.

In the course of fighting the fires, one firefighter was struck in the head by a falling branch and suffered concussion-like symptoms as a result.

A jury afterward found Ashbey not guilty of attempted murder. But it found her guilty of the lesser-included offense of attempted voluntary manslaughter and of the five arson counts. It also found true the allegations that Ashbey used a deadly weapon, personally inflicted great bodily injury, and caused a firefighter to suffer great bodily injury.

The verdict form initially referred to "attempted involuntary manslaughter," but the trial court, after conferring with counsel, changed the form to refer instead to "attempted voluntary manslaughter."

The trial court sentenced Ashbey to state prison for a total of 19 years, consisting of six years for the first of the four arsons of a forest, five years for the enhancement based on the firefighter’s injury, one year for the attempted voluntary manslaughter, four months for the deadly-weapon enhancement on the attempted manslaughter count, one year for the great bodily injury enhancement on the attempted manslaughter count, one year eight months for the house arson, and one year four months each for the remaining three arson counts.

Ashbey timely appealed.

DISCUSSION

I

Ashbey’s Four Arson Convictions for the Four Forest Land Fires

Ashbey first contends she "was improperly convicted of three of the four counts of arson of a forest because setting fire to four areas of the same parcel of forest land at the same time constitutes only a single arson offense." We disagree.

A. Background Law

To address Ashbey’s contentions, we must determine " ‘[t]he proper unit of prosecution’ " for section 451. ( People v. Wilson (2015) 234 Cal.App.4th 193, 199, 183 Cal.Rptr.3d 541 ( Wilson ).) In particular, we must determine whether an arsonist who, in quick succession, sets several distinct fires to a "forest land" has committed one or several offenses under section 451.

These types of "unit of prosecution" questions, though not common, can arise in a variety of contexts. Suppose, for example, a defendant fires two shots at a rival. Two attempted murders? Or suppose a defendant punches another three times in one fight. Three batteries? Should we count the offenses by each individual act (three punches) or the course of conduct (one fight)? The resolution of these and similar questions turns on the particular statute and facts at issue. Some statutes, for example, authorize multiple convictions for similar acts committed during a single course of conduct. ( Wilson , supra , 234 Cal.App.4th at p. 200, 183 Cal.Rptr.3d 541.) Other statutes do not, allowing only a single conviction for a wrongful course of conduct. ( Id. at pp. 200-201, 183 Cal.Rptr.3d 541.) Our task here is to determine which of these two approaches best fits section 451. To that end, we consider first the California Supreme Court’s decisions that have touched on "unit of prosecution" questions. We start with those decisions that have treated several unlawful acts committed on a single occasion as only one offense. Take People v. Ortega (1998) 19 Cal.4th 686, 80 Cal.Rptr.2d 489, 968 P.2d 48 ( Ortega ), overruled on another ground in People v. Reed (2006) 38 Cal.4th 1224, 45 Cal.Rptr.3d 353, 137 P.3d 184. The court there found a defendant who steals multiple items during the course of an " ‘indivisible transaction’ " involving a single victim has " ‘commit[ed] only one robbery or theft notwithstanding the number of items he steals.’ [Citation.]" ( Id. at p. 699, 80 Cal.Rptr.2d 489, 968 P.2d 48.) Similarly, in People v. Bailey (1961) 55 Cal.2d 514, 11 Cal.Rptr. 543, 360 P.2d 39, the court found a defendant who commits "a series of wrongful acts [of theft] ... pursuant to one intention, one general impulse, and one plan" may be convicted of only one offense. ( Id. at p. 519, 11 Cal.Rptr. 543, 360 P.2d 39 ; but see People v. Whitmer (2014) 59 Cal.4th 733, 741, 174 Cal.Rptr.3d 594, 329 P.3d 154 [if a defendant’s wrongful acts are sufficiently "separate and distinct," they may still be treated as separate offenses "even if committed pursuant to a single overarching scheme"].)

In other contexts, however, the court has reached the opposite conclusion—holding that several identical unlawful acts committed on a single occasion may warrant a separate conviction for each act. Consider, for example, the court’s decision in People v. Harrison (1989) 48 Cal.3d 321, 256 Cal.Rptr. 401, 768 P.2d 1078 ( Harrison ). The defendant there broke into a woman’s apartment and then forcibly inserted his finger into her vagina three separate times during a brief sexual assault. ( Id. at pp. 325-326, 256 Cal.Rptr. 401, 768 P.2d 1078.) After each of the first two penetrations, the woman was able to pull away. ( Id. at p. 325, 256 Cal.Rptr. 401, 768 P.2d 1078.) But each time the defendant overpowered her and reinserted his finger. ( Ibid. ) After he did so for a third time, the woman managed to trick the defendant into releasing her—at which point, "she scrambled into the bathroom" and locked the door. ( Ibid. ) Based on these three forced penetrations, the defendant was charged with and convicted of three counts of violating section 289, subdivision (a), which "proscribe[s] certain ‘penetration[s], however slight, of the genital or anal openings of another person’ by ‘any foreign object, substance, instrument, or device.’ " ( Harrison , at p. 324, 256 Cal.Rptr. 401, 768 P.2d 1078.)

On appeal, the defendant contended that multiple digital penetrations during a brief continuous assault constitute only a single violation of section 289. ( Harrison, supra , 48 Cal.3d at pp. 326-327, 256 Cal.Rptr. 401, 768 P.2d 1078.) But the Court of Appeal disagreed, and the California Supreme Court later affirmed in a decision that counted offenses in terms of acts, not intentions or courses of conduct. According to the court, because the defendant caused a proscribed penetration three separate times, with all elements of the offense satisfied each time, that was enough to find three separate "completed" violations of section 289. ( Harrison , at p. 329, 256 Cal.Rptr. 401, 768 P.2d 1078.) And the court found that true even though these acts were committed against the same person during a single brief encounter. ( Id. at p. 324, 256 Cal.Rptr. 401, 768 P.2d 1078.)

Several years later, in People v. Scott (1994) 9 Cal.4th 331, 36 Cal.Rptr.2d 627, 885 P.2d 1040 ( Scott ), the court again found several unlawful sexual acts committed on a single occasion warranted several convictions. Scott involved a defendant who was convicted of 14 counts of committing lewd acts against a minor—all in violation of one statute, section 288. ( Scott , at p. 339, 36 Cal.Rptr.2d 627, 885 P.2d 1040.) Two of these convictions related to two types of lewd acts committed during a single encounter. ( Id. at p. 340, 36 Cal.Rptr.2d 627, 885 P.2d 1040.) Two more convictions concerned two additional lewd acts from another encounter. ( Ibid. ) On appeal, the defendant contended the four convictions for these two encounters should be reduced to two, reasoning that the two separate lewd acts committed on those occasions were part of one "indivisible" course of conduct. ( Ibid. ) The Court of Appeal agreed ( ibid. ), but the California Supreme Court later reversed. It found the defendant’s contention that all lewd acts committed in each "indivisible" encounter were one violation was "inconsistent with the general manner in which statutory violations are calculated under the scheme." ( Id. at pp. 344-345, 36 Cal.Rptr.2d 627, 885 P.2d 1040.) "The relevant analysis," the court wrote, "appears in Harrison ." ( Id. at p. 345, 36 Cal.Rptr.2d 627, 885 P.2d 1040.) The court then, relying on Harrison , concluded that "[e]ach individual act that meets the requirements of section 288 can result in a ‘new and separate’ statutory violation." ( Id. at pp. 346-347, 36 Cal.Rptr.2d 627, 885 P.2d 1040.) "[A] more lenient rule of conviction," the court added, "should not apply simply because more than one lewd act occurs on a single occasion." ( Id. at p. 347, 36 Cal.Rptr.2d 627, 885 P.2d 1040.)

As a final example, in People v. Gayle (1927) 202 Cal. 159, 259 P. 750 ( Gayle ), the court once more found that several unlawful acts—this time, several acts of forgery—committed on a single occasion warranted several convictions. The defendant there was a real estate agent who falsified the sale of three properties. ( Id. at pp. 161-162, 259 P. 750.) For each of the properties, the defendant falsified a sales contract and a check from the purported buyer. ( Ibid. ) He was afterward charged and convicted of six counts of forgery—one count for each contract and check. ( Id. at p. 162, 259 P. 750.) On appeal, the defendant contended he could "at most ... be charged with three offenses and not with six," because he had only falsified materials for the sale of three properties. ( Ibid. ) But the California Supreme Court disagreed, reasoning that "the false making and forging of ... separate instruments, although done at the same time, are separate and distinct offenses." ( Id. at pp. 162-163, 259 P. 750.) Thus, although the defendant may only have intended to falsify the sale of three separate properties, his six acts to facilitate those three objectives, even though "done at the same time," determined the appropriate number of offenses. ( Ibid . ; see also Wilkoff v. Superior Court (1985) 38 Cal.3d 345, 349, 211 Cal.Rptr. 742, 696 P.2d 134 ["a charge of multiple counts of violating a statute is appropriate only where the actus reus prohibited by the statute—the gravamen of the offense—has been committed more than once"], superseded by statute on other grounds as stated in People v. Arndt (1999) 76 Cal.App.4th 387, 393-394, 90 Cal.Rptr.2d 415 ; 1 Witkin, Cal. Crim. Law (4th ed. 2012) Elements, § 30, p. 304 ["Normally each separate act, whether violating one or more than one statute, will give rise to a separate offense. And if the necessary separateness is found, it makes no difference that the identical statute is violated with the same victim."].)

B. Analysis

With that background, we now turn to the case before us, beginning with the relevant statutory text. Under section 451, as relevant here, "[a] person is guilty of arson when he or she willfully and maliciously sets fire to or burns or causes to be burned ... any ... forest land," which includes "any brush covered land, cut-over land, forest, grasslands, or woods." (§ 450, subd. (b) [defining "Forest land"].) According to a longstanding interpretation of arson, " ‘the burning of any part, however small, completes the offense.’ " ( People v. Haggerty (1873) 46 Cal. 354, 355 ; People v. Lee (1994) 24 Cal.App.4th 1773, 1776, 30 Cal.Rptr.2d 224.)

However, the statute also makes clear, by enhancing the penalty for an arson pursuant to section 451, that the Legislature has decided that the "proximate[ ] caus[ing] [of] multiple structures to burn [is but a] single violation of Section 451." (§ 451.1, subd. (a)(4).)

The crime of arson, in this last respect, is similar to the statute considered in Harrison . The court there considered a statute, section 289, that is violated "simply by causing a proscribed ‘penetration, however slight .’ " ( Harrison , supra , 48 Cal.3d at p. 328, 256 Cal.Rptr. 401, 768 P.2d 1078.) And here we have a statute that, similarly, is violated simply by causing " ‘the burning of any part, however small .’ " ( People v. Haggerty , supra , 46 Cal. at p. 355, italics added.)

Because Harrison ’s holding turned largely on section 289’s "however slight" language, we find this similarity significant. Harrison ’s reasoning, again, was based on the "plain meaning" of the statute before it. ( Harrison , supra , 48 Cal.3d at p. 327, 256 Cal.Rptr. 401, 768 P.2d 1078.) The court there considered a statute, section 289, that "made clear that the crime [of forcible sexual penetration] is committed simply by causing a proscribed ‘penetration, however slight .’ " ( Harrison , at p. 328, 256 Cal.Rptr. 401, 768 P.2d 1078.) From this language, the court "conclude[d] that, assuming all other elements of the offense are present, a violation is complete the moment such ‘penetration’ occurs." ( Ibid . ) And from that conclusion, the court then found "[i]t follows logically that a new and separate violation of section 289 is ‘completed’ each time a new and separate ‘penetration, however slight’ occurs"—even when one proscribed penetration occurs immediately after another. ( Harrison , at p. 329, 256 Cal.Rptr. 401, 768 P.2d 1078.) Considering the parallels between arson’s "however small" language and section 289’s "however slight" language, we find Harrison ’s reasoning dictates the result here, leaving our task only to replace the word "penetration" with the word "burning." Adopting Harrison ’s words, the crime of arson "is committed simply by causing a proscribed ‘[burning], however slight .’ " ( Harrison , supra , 48 Cal.3d at p. 328, 256 Cal.Rptr. 401, 768 P.2d 1078.) "From this language, we can only conclude that, assuming all other elements of the offense are present, a violation is complete the moment such ‘[burning]’ occurs." ( Ibid. , but see fn. 8, ante .) And from that conclusion, "[i]t follows logically that a new and separate violation of section [451] is ‘completed’ each time a new and separate ‘[burning], however slight’ occurs." ( Harrison , at p. 329, 256 Cal.Rptr. 401, 768 P.2d 1078.) Turning then to the facts here, because Ashbey set fire to and burned forest land four separate times—each time meeting the elements of section 451, which she does not deny—we conclude that she "completed" four separate violations of section 451.

In an attempt to overcome Harrison and similar cases, Ashbey advances several arguments. But we find none persuasive.

First, she notes several courts have found a defendant guilty of only one count of arson, even though the defendant set more than one fire. But that only reflects the prosecutors’ charging decisions in those several cases. In each of her cited cases, the prosecution appears to have charged the defendant with only one count of arson. ( People v. Hole (1983) 139 Cal.App.3d 431, 433, 188 Cal.Rptr. 693 ; People v. Boyd (1978) 86 Cal.App.3d 54, 59, 150 Cal.Rptr. 34 ; People v. Adams (1953) 119 Cal.App.2d 445, 446, 259 P.2d 56 ; People v. Burrows (1953) 119 Cal.App.2d 766, 766, 260 P.2d 137 ; People v. Hays (1950) 101 Cal.App.2d 305, 306, 225 P.2d 600 ( Hays ).) None of these courts thus considered the question before us. We also find it significant that none of Ashbey’s cited cases concerned forest land; instead, they all concerned the burning of specific objects, either buildings or cars. ( Hole , at p. 433, 188 Cal.Rptr. 693 ; Boyd , at p. 57, 150 Cal.Rptr. 34 ; Adams , at p. 446, 259 P.2d 56 ; Burrows , at p. 766, 260 P.2d 137 ; Hays , at p. 307, 225 P.2d 600.)

Ashbey also cites People v. Lee , supra , 24 Cal.App.4th 1773, 30 Cal.Rptr.2d 224, but the defendant there did not even set multiple fires through successive acts. She instead committed only one act: she threw a firebomb into a house. (Id. at p. 1775, 30 Cal.Rptr.2d 224.) That one act then resulted in several small fires on a carpet and a curtain. (Ibid. ) For this one act, the prosecution in Lee charged the defendant with one act of arson. (Ibid. )

Second, Ashbey contends "[a] single crime cannot be fragmented into more than one offense." That is true. ( People v. Rouser (1997) 59 Cal.App.4th 1065, 1073, 69 Cal.Rptr.2d 563 ( Rouser ).) But she never persuasively explains why her setting of several distinct fires involves only a single crime. In her effort to do so, she argues there "is only one crime of arson for each ... forest land set ablaze," "[r]egardless of the number of points of origin." But that logic cannot be squared with Harrison . On similar logic, the defendant in Harrison should only have been convicted of one offense, for, to use Ashbey’s reasoning, there "is only one crime of [forcible sexual penetration] for each [victim]," "[r]egardless of the number of [penetrations]." But that type of reasoning did not carry the day in Harrison , supra , 48 Cal.3d at page 334, 256 Cal.Rptr. 401, 768 P.2d 1078, and we see no reason to treat this case differently.

Rather than discuss Harrison in any meaningful way, Ashbey instead cites as counterpoints Rouser , supra , 59 Cal.App.4th 1065, 69 Cal.Rptr.2d 563, People v. Coyle (2009) 178 Cal.App.4th 209, 100 Cal.Rptr.3d 245, People v. Ryan (2006) 138 Cal.App.4th 360, 41 Cal.Rptr.3d 277 ( Ryan ), and Ortega , supra , 19 Cal.4th 686, 80 Cal.Rptr.2d 489, 968 P.2d 48. But each of these cases is readily distinguishable.

To begin, two of these cases concerned defendants who were charged with multiple crimes for one act. The defendant in Rouser was convicted of three drug offenses for possessing, at one time, three different controlled substances. ( Rouser , supra , 59 Cal.App.4th at pp. 1067, 1073, 69 Cal.Rptr.2d 563.) And the defendant in Coyle was convicted of three counts of murder for killing one person. ( Coyle , 178 Cal.App.4th at p. 211, 100 Cal.Rptr.3d 245.) We would appreciate the relevance of these cases had Ashbey similarly suffered multiple convictions for one illegal act—for example, if she had set one fire that burned multiple buildings and had then been convicted of one count of arson for each building burned. (See fn. 8, ante ; see also People v. Shiga (2019) 34 Cal.App.5th 466, 481, 246 Cal.Rptr.3d 198 [arsonist who set fire to one structure could not be convicted of two counts of arson merely because the fire spread to another structure].) But that is not the case before us. Ashbey did not set one outdoor fire; she set four distinct outdoor fires.

Ashbey’s next cited case, Ryan , is similarly unhelpful. The court in Ryan found a defendant could not sustain multiple forgery convictions for one check that she fraudulently signed and then attempted to use on one occasion. ( Ryan , supra , 138 Cal.App.4th at pp. 363-364, 371, 41 Cal.Rptr.3d 277.) But notably, courts have long found a defendant could suffer multiple forgery convictions for fraudulently signing multiple checks, even if the defendant signed those checks at the same time. ( Gayle , supra , 202 Cal. at pp. 162-163, 259 P. 750 ; People v. Neder (1971) 16 Cal.App.3d 846, 852, 94 Cal.Rptr. 364.) And as Gayle shows, that is true even when the defendant fraudulently signs multiple documents, at the same time, in furtherance of a single objective. ( Gayle , at pp. 162-163, 259 P. 750.)

Ashbey’s last cited case, Ortega , also offers her no support. The defendant there had stolen another’s wallet, pager, and car in one " ‘indivisible transaction.’ " ( Ortega , supra , 19 Cal.4th at pp. 690, 699, 80 Cal.Rptr.2d 489, 968 P.2d 48.) The prosecution then charged these takings as two separate offenses—grand theft for the taking of the car, and robbery for the taking of the wallet and pager. ( Ibid. ) The defendant was later convicted on both counts. ( Id. at p. 691, 80 Cal.Rptr.2d 489, 968 P.2d 48.) The California Supreme Court, however, reversed, concluding the defendant should only have been convicted of one theft or one robbery, notwithstanding the number of stolen items. ( Id. at p. 699, 80 Cal.Rptr.2d 489, 968 P.2d 48.) That conclusion, of course, was fully consistent with the court’s other theft cases. (See People v. Bailey , supra , 55 Cal.2d at p. 519, 11 Cal.Rptr. 543, 360 P.2d 39 [a defendant who commits "a series of wrongful acts [of theft] ... pursuant to one intention, one general impulse, and one plan" may only be convicted of one offense].) But again, we find Harrison , Scott , and similar cases, not the high court’s theft cases, supply the relevant standard for considering whether Ashbey committed one or several arsons of a forest.

Finally, Ashbey contends affirmance would result in absurd results. In particular, she contends a defendant who lights four fires that burn separately could be convicted of four arsons, but a defendant who lights four fires that merge could be convicted of only a single arson. But we fail to see the logic in her argument. A defendant who sets four fires that merge into one very well could be convicted of four arsons. Suppose, for example, a defendant sets four houses on fire and these separate fires ultimately merge into one. That defendant could not claim she at most committed one arson simply because the four separate fires eventually merged. Ashbey provides no explanation for her contrary view.

Accepting Ashbey’s view, moreover, would threaten absurd results of its own. Taking her position would mean that once an arsonist has set one fire in a forest, she may then, without further consequence, set as many additional fires as she likes to the same forest. This potential result is particularly troubling considering section 450’s broad definition of "Forest land." "Forest land" includes, for example, "woods" and a "forest." (§ 450, subd. (b).) And so, under Ashbey’s reading of section 451, a defendant who successively sets multiple fires miles apart across a vast forest could be convicted of only one arson. We cannot accept that narrow reading of section 451. To do so, in our view, would inappropriately reward those defendants with the " ‘greater criminal ambition.’ " ( Harrison , supra , 48 Cal.3d at pp. 335-336, 256 Cal.Rptr. 401, 768 P.2d 1078 [discussing sentencing].)

Although we find Ashbey was properly convicted of these four arsons, our holding is limited to the circumstances of this case.

II-VI DISPOSITION

See footnote *, ante .

We remand with directions to the trial court to prepare an amended abstract of judgment in accordance with part V of this opinion. After doing so, the trial court must forward a certified copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.

I concur:

HOCH, J.

Mauro, J., Concurring and Dissenting.

See footnote *, ante.
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Summaries of

People v. Ashbey

COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (El Dorado)
Apr 28, 2020
48 Cal.App.5th 373 (Cal. Ct. App. 2020)
Case details for

People v. Ashbey

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. ANGEL MARIE ASHBEY, Defendant and…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (El Dorado)

Date published: Apr 28, 2020

Citations

48 Cal.App.5th 373 (Cal. Ct. App. 2020)
262 Cal. Rptr. 3d 39