D060013 Super. Ct. No. RIF150424
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115 .
APPEAL from a judgment of the Superior Court of Riverside County, Richard J. Hanscom, Judge. (Retired judge of the San Diego Super Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed in part; reversed in part with directions.
A jury found Kevin Reed guilty of several offenses, including assault with a firearm, firearm possession by a felon, and arson. The issues on appeal involve only Reed's conviction for arson of an inhabited structure in violation of Penal Code section 451, subdivision (b). The court imposed a consecutive sentence of one year eight months for the arson conviction. Reed's total sentence was 19 years four months.
All statutory references are to the Penal Code unless otherwise specified. For readability, we omit the word subdivision from the statutory references.
In challenging the arson conviction, Reed contends: (1) the court failed to instruct the jury on an essential element of the section 451(b) arson offense; and (2) there was insufficient evidence showing the fire burned a structure. We conclude there was sufficient evidence in the record for the jury to find the fire burned a structure, but the court erred in failing to instruct the jury on this element. We further conclude the Attorney General did not meet its burden to show the instructional error was harmless beyond a reasonable doubt. Accordingly, we reverse and remand for further proceedings. We affirm the judgment in all other respects.
RELEVANT FACTS AND PROCEDURE
On the evening of May 1, 2009, Reed had a confrontation with the security guard of a nightclub. During the incident, Reed shot the security guard, who survived. Several days later, the security guard identified Reed from a photographic lineup.
Shortly after, police officers went to the apartment where Reed was living with his girlfriend, Melissa Davis. After Davis and Reed's daughter complied with the officers' orders to leave the apartment, Reed refused to exit the apartment. As officers were standing outside the apartment, a ball of fire came toward the door and exploded. Smoke came out of the apartment, and the apartment's fire alarm and sprinkler system were activated. Officers arrested Reed when he finally emerged from the apartment about 45 minutes later.
Later that day, Timothy Williams, an investigation supervisor for the California Department of Forestry and Fire Protection went to the apartment to investigate. He noticed the carpet was saturated with water from the sprinkler system. Based on his investigation, he concluded that Reed intentionally set eight to nine separate fires in the apartment. He indicated that each fire primarily burned a discrete property item without spreading to other areas. These items included a cushion on a dining room chair, a container of food, a paper towel roll, and an artificial plant or flower arrangement.
Williams also testified that two other items in the apartment sustained burn damage: (1) two areas of carpet; and (2) a bedroom door. With respect to the carpet, Williams said there was a small burned carpet area in front of the bathroom and a burned carpet area under a chair in the dining room. The burns went through to the carpet padding, but did not damage the floor underneath the carpet.
With respect to the bedroom door, Williams testified there was some exterior damage from burning or scorching, but the damage was "not enough to really penetrate the surface of the door, just to do exterior damage to the door finish." During cross-examination, Williams explained that: "The finish on the door [was] damaged, but the structure of the door itself [was] not." Williams agreed there was no damage to the "structural integrity" of the door.
When showed a photograph of the partially blackened door, Williams said: "That's scorching from either an undetermined ignitable that may have been splashed on it or, looking at the photograph, with the door partially open, you can see on the wall behind it in that position it also has scorching on the wall. It looks like either something was thrown against it that was burning or it was either — sloshed, but not enough to really penetrate the surface of the door, just to do exterior damage to the door finish."
With respect to the ownership of the property burned in the apartment, the prosecution presented the testimony of Davis (Reed's girlfriend). Davis said that she and Reed were living together in the apartment, but she was the sole named tenant on the lease. Davis testified that she purchased the chair and plant arrangement burned in the fire and that these items were owned by herself and Reed. Davis also said there was no damage to the apartment floor from the burned carpet areas and the fire did not cause any "structural damage" to the apartment. Davis testified that the landlord replaced the carpet, but her renter's insurance covered the cost of the new carpet. Davis said that the carpet was in the unit when she initially moved into the apartment.
Testifying in his own defense, Reed acknowledged he shot the security guard, but denied he intended to do so. He said he pulled out his gun because he believed the security guard was going to shoot him, and the gun fired when the security guard hit the gun with his fist. He also presented evidence that he was under the influence of PCP and was suffering from posttraumatic stress disorder on the night he shot the security guard. With respect to the arson count, Reed acknowledged he set the fires in his apartment.
The jury was unable to reach a verdict on the attempted murder count, and the court declared a mistrial on that count and later dismissed the count. But the jury found Reed guilty on the remaining three counts: assault with a firearm, being a felon in possession of a firearm, and arson of an inhabited structure in violation of section 451(b) (Count 4).
The court sentenced Reed to 19 years four months. The sentence consisted of: a four-year upper term on the assault count; a total consecutive 13 years for two enhancement findings on the assault count; a consecutive eight-month term for the firearm possession count; and a consecutive one-year eight-month term on the section 451(b) arson count (one-third the midterm).
I. Applicable Arson Law Principles
Section 451, the arson statute, provides: "A person is guilty of arson when he or she willfully and maliciously sets fire to or burns or causes to be burned . . . any structure, forest land, or property." This statute "provide[s] different levels of punishment, depending on the subject matter of the arson." (People v. Labaer (2001) 88 Cal.App.4th 289, 292.) These statutory categories, in descending level of punishment, are: (a) arson resulting in great bodily injury (five, seven, or nine years); (b) arson to "an inhabited structure or inhabited property" (three, five, or eight years); (c) arson of a "structure or forest land" (two, four, or six years); and (d) arson to other types of property (16 months, two, or three years). (§ 451(a), (b), (c) & (d); People v. Labaer, supra, 88 Cal.App.4th at p. 292.) The latter subdivision (§ 451(d)), pertaining to burning of personal property, provides that "For purposes of this [subdivision], arson of property does not include the burning or causing to be burned his or her own personal property unless there is an intent to defraud or there is injury to another person or another person's structure, forest land, or property."
Section 451 states: A person is guilty of arson when he or she willfully and maliciously sets fire to or burns or causes to be burned or who aids, counsels, or procures the burning of, any structure, forest land, or property. [¶] ] (a) Arson that causes great bodily injury is a felony punishable by imprisonment in the state prison for five, seven, or nine years. [¶] (b) Arson that causes an inhabited structure or inhabited property to burn is a felony punishable by imprisonment in the state prison for three, five, or eight years. [¶] (c) Arson of a structure or forest land is a felony punishable by imprisonment in the state prison for two, four, or six years. [¶] (d) Arson of property is a felony punishable by imprisonment in the state prison for 16 months, two, or three years. For purposes of this paragraph, arson of property does not include one burning or causing to be burned his or her own personal property unless there is an intent to defraud or there is injury to another person or another person's structure, forest land, or property. . . ."
In this case, Reed was charged with the second type of arson, section 451(b), which requires the burning of "an inhabited structure or inhabited property." (§ 451(b).) To convict a defendant under this subdivision, the prosecution must prove the defendant caused the burning of an "inhabited structure" or other type of inhabited property, as opposed to the burning of "personal property." (See § 451(b), (d), italics added; People v. Lee (1994) 24 Cal.App.4th 1773, 1776-1778 (Lee).) There is no dispute that Reed's apartment was inhabited, and thus we do not further discuss this element.
To prove arson of a structure, it is not necessary that the entire building was consumed by the fire. Instead, the prosecution must show at least a portion of the building was burned. (Lee, supra, 24 Cal.App.4th at p. 1776; In re Jesse L. (1990) 221 Cal.App.3d 161, 166-167.) The "burning of any part [of the structure], however small, completes the offense . . . ." (People v. Haggerty (1873) 46 Cal. 354, 355 (Haggerty);accord, Lee, supra, 24 Cal.App.4th at p. 1776.) Additionally, as discussed in more detail below, the actual building or building material must be burned or charred; it is not enough that there is merely a discoloration or damage to the building surface. (Ibid.)
For purposes of the arson statutes, a fixture is considered part of the "structure." (See Lee, supra, 24 Cal.App.4th at pp. 1776-1778; In re Jesse L., supra, 221 Cal.App.3d at p. 168.) To qualify as a fixture, the property item must be annexed to the structure and must have "become essential to the ordinary and convenient use of the property to which it was annexed." (M. P. Moller, Inc. v. Wilson (1936) 8 Cal.2d 31, 38 (Moller).)A thing is deemed affixed to a building when it is permanently attached "as by means of cement, plaster, nails, bolts, or screws." (Civ. Code, § 660; see Lee, supra, 24 Cal.App.4th at p. 1777; In re Jesse L., supra, 221 Cal.App.3d at p. 167.) Whether an item has "lost its character as personal property and has become a fixture is primarily a question of fact to be determined by the evidence." (Moller, supra, 8 Cal.2d at p. 38; accord, Lee, supra, 24 Cal.App.4th at pp. 1777-1778.)
In Lee, the Court of Appeal applied these principles in a section 451(b) arson case where the fire damaged only wall-to-wall carpeting. (Lee, supra, 24 Cal.App.4th at pp. 1776-1778.) Under the fixture definition set forth above, the Lee court found substantial evidence supported the jury's determination that the carpeting had lost its character of personalty and became an integral part of the structure. (Ibid.) The Lee court explained: "The [trial] court instructed the jury on the burning [of the structure] requirement . . . and on the definition of fixtures . . . . [¶] We cannot say the jury's finding is contrary to the evidence. The evidence established there were several burn holes in the living room carpet. The fire burned through the carpet and the carpet pad to the wood flooring beneath before the neighbor was able to stomp out the flames. [¶] The fire inspector testified the carpet was not a throw rug, but wall-to-wall carpeting which was installed throughout the house. Wall-to-wall carpeting is often attached to the floor by using wood strips with tacks, nails or screws. In some instances the carpeting is additionally affixed to the floor with glue. Moreover, wall-to-wall carpeting is customized for a particular place and cut to fit only that area. When 'used for the purpose for which it was designed' the carpet could become a permanent and integral part of the realty. (M.P. Moller, Inc. v. Wilson, supra, 8 Cal.2d at p. 38.) Thus, like wallpaper, or other securely fastened and customized personal property, wall-to-wall carpeting often becomes an integral part of the structure. [¶] Consequently, the jury could reasonably find the carpet in this case was a fixture, i.e., originally personal property which was affixed to the real property so securely and permanently it became an integral part of the structure." (Id. at p. 1778.)
But the Lee court did not hold the burning of any type of wall-to-wall floor covering meets the fixture requirement, regardless of the circumstances. The court instead emphasized that the issue is a factual question. (People v. Lee, supra, 24 Cal.App.4th at pp. 1777-1778; accord Moller, supra, 8 Cal.2d at p. 38.) For example, the Lee court cited Plough v. Petersen (1956) 140 Cal.App.2d 595, in which the reviewing court upheld the fact finder's determination that rugs covering the concrete floors of a house were not fixtures. (See Lee, supra, 24 Cal.App.4th at p. 1778.) In Plough, the evidence showed the rugs were attached by tacks on wooden strips around the perimeter of the floors, which could be removed by simply lifting them up along the walls and were installed in a manner that made them readily removable and not permanently attached. (Plough, supra, 140 Cal.App.2d at p. 596.) The Plough court observed that "[w]hether under the above evidence the rugs were fixtures or personalty may be subject to reasonable difference of opinion; hence the factual decision of the trial court is binding on us." (Ibid.) The court found substantial evidence supported the finding that the rugs were not fixtures. (Ibid.)
A. Sufficiency of the Evidence
Reed contends there was insufficient evidence supporting his section 451(b) arson conviction because there was no evidence the structure, or a portion of the structure, was burned.
In reviewing this contention, the question is whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (People v. Lewis (2009) 46 Cal.4th 1255, 1289-1290.) We view the record in a light most favorable to the judgment, resolving all conflicts in the evidence and drawing all reasonable inferences in support of the conviction. (People v. Nguyen (1993) 21 Cal.App.4th 518, 528-529.)
The evidence at trial showed the carpet was burned in two places: in a small area in the hallway in front of the bathroom and a slightly larger area in the dining room. Although the floor underneath the carpet was not burned, the photographs show the carpet and the carpet padding were burned through to the floor. Further, although there was no specific testimony as to how the carpet was affixed to the floor or even whether the carpet was a "wall-to-wall" type covering, based on the admitted photographs, the carpet appears to be attached to the floor and looks to be wall-to-wall. Reed's girlfriend confirmed that the carpet was in the apartment when she moved into the residence. She also said the landlord replaced the burned carpet, and her renter's insurance covered the cost of the replacement.
Based on this evidence, the jury had a sufficient basis to conclude the carpet was permanently affixed to the floor, and that the carpet had become a permanent and integral part of the realty. (See Lee, supra, 24 Cal.App.4th at pp. 1776-1778.) Thus, the burning of the carpet supported the section 451(b) arson conviction.
B. Instructional Error
Reed alternatively contends the court erred by failing to instruct the jury on the burning-of-a-structure element of a section 451(b) arson offense. We agree with this contention.
On the arson offense, the court gave only one instruction:
"The defendant is charged in Count 4 with arson. To prove that the defendant is guilty of this crime, the People must prove that: One, the defendant set fire to or burned a structure or property. And two, he acted willfully and maliciously. To set fire to or burn means to damage or destroy with fire either all or part of something, no matter how small the part. Someone commits an act willfully when he or she does it willingly or on purpose. Someone acts maliciously when he or she intentionally does a wrongful act or when he or she acts with the unlawful intent to defraud, annoy, or injure someone else. A structure is any building. Property means personal property. A person does not commit arson if the only thing burned is his or her own personal property, unless the fire also injures someone else or someone else's structure or property." (Italics added, Reporter's Transcript paragraph formatting omitted.)
Under this instruction, the jury was told it could find Reed guilty of arson under section 451(b) if Reed's actions caused burning to "a structure" or "property," and that "property" means "personal property." Thus, the jury was not required to find any portion of the structure was burned or that the carpet had become a fixture in the case. This instruction is missing a required element to prove a section 451(b) offense — the burning of a structure.
The Attorney General argues there was no error because the only element about which the jury was not told was that the burned structure must be "inhabited." In support of this argument, the Attorney General relies on the CALCRIM Nos. 1502 and 1515 form instructions. However, when reviewing an instructional error claim, a court must examine the instructions that were actually given to the jury, and not merely the wording of the model instructions. The Attorney General's argument that the jury was told that Reed's conduct must have caused a structure to burn is not supported by the language of the instruction that was actually given in this case.
We also reject the Attorney General's argument that the jury was "aware" it had to find that the fire burned a structure (as opposed to personal property) because the signed jury verdict form states Reed was guilty of "a violation of Penal Code section 451(b), maliciously setting fire to an inhabited structure, as stated under Count IV of the information." There is no indication that each juror saw this verdict form and understood that the language of the verdict form superseded the court's jury instructions. Additionally, the Attorney General does not cite to legal authority showing that a verdict form can remedy a jury instruction error.
We note the instruction given in this case does not appear to have been inadvertent. Although the district attorney charged Reed under section 451(b), the prosecutor tried and argued this case as if Reed had been charged with a section 451(d) arson. For example, after the prosecution presented its case, Reed moved for an acquittal (§ 1118.1), arguing the prosecutor had the burden to show the burning of a structure or personal property, and asserted that the evidence was insufficient to show either type of damage. In response, the prosecutor agreed that "the jury instructions require either a burning of [a] structure or personal property that is not one's own . . . ," and argued there was evidence supporting that each type of property was burned. (Italics added.) In denying the motion, the trial court stated the burning of the carpet was sufficient to show damage to personal property under the arson count because there was evidence that the carpet was owned by the landlord. Consistent with this ruling, at closing arguments the prosecutor concentrated on who owned the burned property and did not mention that the jury was required to find the structure was burned.
The Attorney General alternatively argues the instructional error was harmless under the Chapman standard for federal constitutional error. (Chapman v. California (1967) 386 U.S. 18.) The Chapman standard applies because the jury was not instructed on an essential element of the charged crime (burning of an occupied structure). (See People v. Flood (1998) 18 Cal.4th 470, 502-503, 504.) Under this standard, the Attorney General had the burden to prove beyond a reasonable doubt that the instructional error did not contribute to the jury's verdict on the arson count. (See Chapman, supra, 386 U.S. at p. 24.)
We conclude the Attorney General did not meet this burden. First, there were no other instructions that clarified the issue, and counsels' closing arguments compounded the error. During closing arguments, the prosecutor told the jury it could find Reed guilty of arson if it found "personal property" was burned, and focused solely on the issue of who owned the "personal property" (the landlord or the tenants). The prosecutor thus urged the jury to find Reed guilty of the section 451(b) arson count because he burned property that did not "belong" to him. Defense counsel likewise failed to discuss the correct legal standard. For example, he asserted that: "A person does not commit arson if the only thing burned is his or her own personal property unless the fire also injures someone else's property — or someone else's structure or property. That's straight from the jury instruction. [¶] . . . [¶] . . . I'm putting up portions of the jury instruction. . . . [¶] . . . [¶] Ultimately, it's the People's burden to prove beyond a reasonable doubt that the arson was committed against property that did not belong to Mr. Reed." (Italics added.)
Additionally, on the evidentiary record before us, there is an insufficient basis from which we could conclude a properly-instructed jury would have necessarily found the prosecution met its burden of proof to show the structure was burned.
With respect to the burning of the carpet, the Attorney General relies on Lee, supra, 24 Cal.App.4th 1773 to argue the error was harmless because there was evidence showing the carpet had become a fixture. However, the fact there was evidence from which a jury could find that the carpet was a fixture is a different analysis from the issue whether the Attorney General met its burden to show beyond a reasonable doubt that a properly instructed jury would have found Reed caused the burning of a structure based on the burns to the carpet. Lee held the burning of a carpet may, but does not necessarily, support a finding that a "structure" was burned under the arson statutes. (Id. at pp. 1776-1778.) The Lee court emphasized that the jury had been fully instructed on the structure issue and thus had necessarily considered the question of whether the wall-to-wall carpeting had become an integral part of the structure. (Id. at p. 1778.) The court also noted that the jury had the option of convicting the defendant of the lesser crime of attempted arson but had not done so. (Ibid.)
In this case, unlike Lee, there is no indication the jury considered the structure/fixture issue or was given (and rejected) the option of convicting Reed of attempted arson or arson of personal property under section 451(d). Additionally, unlike Lee, it was unclear whether the carpet was a "wall-to-wall" type of floor covering. The only evidence of the carpet placement in the apartment was the photographs showing small sections of the burned rug, and Davis's testimony that the carpet was already inside the apartment when she moved into the apartment and her renter's insurance covered the cost of the carpet replacement. There was no specific testimony as to how the carpet was affixed to the floor or even if the carpet was a "wall-to-wall" type covering. Although a trier of fact could infer based on the admitted photographs and Davis's testimony that the carpet was a fixture, this conclusion is not the only reasonable one that could have been reached. A properly instructed jury could have found the prosecution did not meet its burden of proof on this issue.
We also reject the Attorney General's reliance on the burns to the bedroom door to establish harmless error. Although it is clear that the door was part of the building's structure, it is not clear that the fire "burned" the door as that term has been defined under the arson statutes. Under California law, to establish arson, the prosecution must prove some destruction of the building material, rather than merely a discoloration of the building surface. (Haggerty, supra, 46 Cal. at p. 355; Lee, supra, 24 Cal.App.4th at p. 1776; In re Jesse L., supra, 221 Cal.App.3d at p. 166.) As the California Supreme Court stated more than 125 years ago, "If the wood is blackened, but no fibers are wasted, there is no burning; yet the wood need not be in a blaze. And the burning of any part, however small, completes the offense, the same as of the whole. Thus, if the floor of the house is charred in a single place, so as to destroy any of the fibers of the wood, this is a sufficient burning in a case of arson." (Haggerty, supra, 46 Cal. at p. 355.)
The Attorney General contends the evidence here met this standard because the prosecution's expert (Williams) testified there was " 'scorching' on the door," and the word " 'Scorch' " is defined in the dictionary as " 'to burn slightly so as to change in color . . . or texture.' " The Attorney General further argues that the term "scorch" means the same thing as " 'Char,' " and the Haggerty court stated that a charring of a structure is sufficient burning in the case of arson.
This argument is unavailing for two reasons. First, the reference to dictionary definitions is unhelpful because Williams specifically explained what he meant by scorching. Williams testified that although there was some exterior damage from burning or "scorching," the damage was "not enough to really penetrate the surface of the door, just to do exterior damage to the door finish." Williams later reiterated that "[t]he finish on the door [was] damaged, but the structure of the door itself [was] not," and he agreed there was no damage to the "structural integrity" of the door. Thus, Williams's testimony does not necessarily establish that the door was burned in a sufficient manner to establish arson.
Moreover, even if we could infer from Williams's testimony that the door was burned under the Haggerty definition, in addressing the harmless error issue, we must determine whether the Attorney General met its burden to show beyond a reasonable doubt the jury would have reached this conclusion if they had been properly instructed on the structure element. Based on the evidence presented, we cannot conclude the Attorney General met this burden to show the jury would have concluded the door was sufficiently burned to constitute a completed arson offense.
Because we have found sufficient evidence in the record to support the section 451(b) arson conviction if the jury had been properly instructed, we reverse and remand for retrial on this count. Alternatively, as Reed concedes, the record supports a conclusion that the jury found him guilty of arson under section 451(d) (the burning of any property), which supports punishment of 16 months, two, or three years. (§ 451(d).) If the district attorney elects not to retry the section 451(b) count, the trial court shall modify the judgment by reducing the Count 4 conviction to arson of property in violation of section 451(d) and resentence Reed under this subdivision.
The judgment is affirmed in all respects except as to the conviction on Count 4 (arson causing an inhabited structure or inhabited property to burn (§ 451(b)). On Count 4, the judgment is reversed and the matter is remanded. The People will have 60 days from the date of the remittitur in which to file an election to retry Reed on Count 4. If the People elect not to retry him, the trial court shall modify the judgment by reducing the Count 4 conviction to arson of property in violation of section 451(d), and shall resentence Reed under section 451(d). At the conclusion of the proceedings, the court shall cause the abstract of judgment to be amended in a manner consistent with this disposition and send copies of the amended abstract to the appropriate law enforcement and custodial officials. In all other respects, the judgment is affirmed.
HUFFMAN, Acting P. J.