Filed 8/23/17 P. v. Flores CA5



NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

ROSENDO FLORES III,

Defendant and Appellant.

F073261

(Super. Ct. No. F15903252)


OPINION

THE COURT*
APPEAL from a judgment of the Superior Court of Fresno County. W. Kent Hamlin, Judge.
Jennifer Mouzis, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
-ooOoo-

INTRODUCTION
Rosendo Flores III (defendant) stands convicted of arson of an inhabited dwelling, a violation of Penal Code section 451, subdivision (b). Defendant filed a timely notice of appeal and appellate counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On May 27, 2015, a complaint was filed alleging defendant committed a violation of section 451, subdivision (b). Defense counsel declared a doubt as to defendant’s competency to stand trial on June 22, 2015, and pursuant to section 1368, the trial court suspended proceedings and appointed Paula Jean Willis, Ph.D., to conduct an examination of defendant to determine his competency to stand trial.
Willis filed her report on July 20, 2015. In the report, Willis stated that defendant suffered from schizophrenia. Although suffering from schizophrenia, Willis concluded defendant was competent to stand trial. Defense counsel and the People stipulated to Willis’s findings and the trial court found defendant was competent to stand trial; criminal proceedings were reinstated.
Trial commenced on October 8, 2015, but was continued to October 22, 2015, for in limine motions and jury selection. Presentation of evidence commenced on October 26, 2015.
Patricia Aguinaga testified that at the time of the fire, she lived in an apartment at the Alpine Apartments with defendant, who is her son. There was no electricity to the apartment at this time. The day of the fire, she and defendant had an argument after she returned home. The argument was about defendant moving a heavy coffee table out of the living room, leaving the television on the floor. Aguinaga could not recall the exact words they said to each other.
After the argument, Aguinaga went for a walk for about 20 minutes. When she returned to the apartment, it was on fire. As she opened the apartment door, Aguinaga saw flames and defendant carrying a bucket of water. She saw the fire was too big to be extinguished with a bucket, so she grabbed defendant and pulled him out of the apartment. Once outside, they knocked on doors to alert neighbors to the fire. When asked, she denied that defendant ever threatened to burn down the apartment when she left the apartment after their argument.
Aguinaga testified defendant was a heavy smoker. Defendant had made his closet into a “hideout” with a chair. If the closet door was closed, it was completely dark inside the closet. She testified that defendant had multiple disorders and sometimes would stay in the apartment a week or more without going outside.
Ten-year-old Edgar P. testified that the day of the fire, he had come over from his home adjacent to the Alpine Apartments. Edgar walks a dog for one of the residents, Jennifer, at the Alpine Apartments who lives in the apartment next to defendant and Aguinaga.
That day, Edgar heard defendant and Aguinaga arguing while he was waiting for the dog. Although most of the words were indistinct, he heard defendant say he “wanted to start the fire.” The door to the apartment shared by defendant and Aguinaga was open, which is how he heard the argument. Aguinaga left the apartment and about 10 minutes later, the fire started. When he saw the fire, Edgar ran home with the dog and told his grandmother.
After telling his grandmother about the fire, Edgar returned to the Alpine Apartments. Upon his return, Edgar spoke with the fire investigator, Christine Wilson, and gave a recorded statement that was played for the jury. In Edgar’s recorded statement to Wilson, Edgar stated he heard defendant say, “ ‘[W]atch I’ma burn the house down.’ ” He then stated he heard Aguinaga respond, “ ‘I don’t care, go [a]head.’ ” Defendant then replied, “ ‘that’s why I’m gonna do it.’ ” Edgar told Wilson that he heard a “boom boom” and the “[n]ext thing you know[,] it started smoking.”
Captain Barton Burkhart is with the City of Fresno Fire Department. On the day of the fire, his engine was the first to arrive and he became the incident commander. Upon his arrival, there was an active fire and thick black smoke coming from the front door and sliding glass door of Aguinaga’s apartment. Burkhart called for additional units to respond. After they arrived, the fire in the back bedroom was extinguished.
Burkhart spoke with Aguinaga and defendant. Defendant told him the smoke detector began “chirping.” Defendant said he pulled it out of the ceiling and clipped the wires, and this started the fire. Burkhart called for a fire investigator. He noted that defendant was covered in soot and “that he had been in the smoke.” Burkhart did a walk-through of the apartment. He testified it was clear the fire started in the back bedroom.
Wilson is a fire investigator with the City of Fresno Fire Department. Upon arriving at the Alpine Apartments, Wilson made contact with Burkhart and spoke to potential witnesses before going into the apartment. The apartment manager told Wilson that defendant and his mother had argued just prior to the fire starting.
Defendant told Wilson he was playing with the electrical panel and the fire started there. When confronted with the fact there was no electricity to the apartment, defendant continued to blame his playing with the panel for the fire. Wilson acknowledged that defendant was “rambling incoherently” at times during the interview and that she needed Aguinaga’s assistance to conduct the interview.
As Wilson walked through the apartment, she noted a large amount of smoke damage on the upper walls and ceiling of the living room and kitchen, which signified the fire started in another room. The least affected room was the master bedroom, where firefighters had “tarp[ed]” all the furniture. Across the hall, there was charring and smoke damage to the upper walls and some of the paint “had been bubbled.”
In defendant’s bedroom, there was extensive burn damage. The glass from the window was blown out, which is typical when there is a hot fire in the room. The greatest area of fire damage was centered in the closet in defendant’s bedroom. The damage indicated to Wilson that the fire started in the bottom of the closet and ventilated up through the scuttle to the attic.
Wilson examined the electrical panel in defendant’s bedroom to determine if that could be the cause of the fire. She determined that since there was no electric service to the apartment, the panel could not have caused the fire. In addition, Wilson concluded that if the panel had caused the fire, there would be more damage around the panel and less fire damage in the closet.
Once Wilson concluded the fire started in the closet of defendant’s bedroom, she testified that the only conclusion to be drawn was that it started by open flame. There was no candle wax, so the fire could not have started from a candle. Wilson was of the opinion that a lighter or matches were used to start the fire. Wilson also testified that a lit cigarette could not have caused the fire because of the short span of time between the time Edgar overheard the argument between defendant and Aguinaga, and the moment Edgar saw the fire. A lit cigarette would not have created the heat necessary to cause the fire in that amount of time.
Wilson opined that the fire was started by the intentional use of an open flame.
Angelica Mendez lived in the apartment directly across the hall from defendant and Aguinaga. On the day of the fire, she was in her apartment with friends when she heard loud voices coming from the apartment where defendant and Aguinaga lived; she heard a male and female voice. She could not make out the words. Mendez went to the front of her apartment and saw Aguinaga slam the door; Mendez saw defendant in the apartment. The arguing stopped and things were quiet. Approximately 10 minutes later, Mendez heard loud voices again and looked out to see smoke coming from the apartment across from hers.
Mendez told her friend to grab her cell phone and ran downstairs. By the time she reached the bottom, thick black smoke was pouring out of the apartment on fire. Mendez saw Aguinaga come out of the apartment yelling “fire.” Aguinaga then started knocking on apartment doors to alert neighbors to the fire.
Mendez testified the initial argument she heard lasted about 10 minutes; the woman sounded angry, the man did not. Mendez was not certain if Aguinaga had left the apartment before the fire started. The second argument she heard occurred seven to 10 minutes after the initial argument.
The parties stipulated that on the day of the fire, the apartment shared by defendant and Aguinaga had no electrical power.
Defense investigator Ramiro Maciel spoke with Edgar. Edgar told him he heard a man say “watch [me] burn the house down” and a woman responded, “Whatever.”
The jury returned its verdict on October 27, 2015, finding defendant guilty of a violation of section 451, subdivision (b). The trial court appointed psychologist Richard Kendall to determine defendant’s amenability to treatment on probation.
Kendall concluded that defendant would not be a suitable candidate for probation because defendant would not take the prescribed antipsychotic medication necessary to control his schizophrenia without direct supervision, as in a custodial setting.
At the January 11, 2016, sentencing, the trial court noted Kendall’s report before pronouncing sentence. The trial court denied probation; imposed the midterm of five years in state prison; and awarded 267 days of credit. Various fines and fees were imposed. Restitution was reserved. Defendant was ordered to submit a DNA sample pursuant to section 296 and to submit to lifetime registration pursuant to section 457.1.
Defendant filed a timely notice of appeal on February 17, 2016.
DISCUSSION
Appellate counsel filed a brief pursuant to Wende, supra, 25 Cal.3d 436 on November 14, 2016. On December 15, 2016, this court issued its letter to defendant inviting supplemental briefing. No supplemental brief was filed.
In the Wende brief, appellate counsel raises the following issues: (1) whether there is sufficient evidence to support Wilson’s opinion the fire was started intentionally; and (2) was Edgar’s testimony believable so that a jury could rely upon it to conclude defendant intentionally set the fire. Expressed another way, the issue is whether there is substantial evidence to support the verdict.
In reviewing the sufficiency of the evidence to support a conviction, we examine the entire record and draw all reasonable inferences therefrom in favor of the judgment to determine whether there is reasonable and credible evidence from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Rangel (2016) 62 Cal.4th 1192, 1212.) Our review is the same in a prosecution resting primarily upon circumstantial evidence. (People v. Johnson (2015) 60 Cal.4th 966, 988.)
A violation of section 451, subdivision (b) requires that the defendant have “willfully and maliciously” set fire to an inhabited structure. Aguinaga, Edgar, and Mendez all testified to an argument that occurred shortly before the fire started; the argument was between defendant and his mother, Aguinaga. Edgar testified that he overheard the argument and heard defendant state “ ‘watch I’ma burn the house down.’ ” Edgar told Wilson about defendant’s comment the day of the fire; he told Maciel about the remark when questioned by the defense investigator; and he testified to it at trial.
The testimony of a single witness is sufficient to support a conviction, unless the testimony is inherently improbable or physically impossible. (Evid. Code, § 411; People v. Young (2005) 34 Cal.4th 1149, 1181.) Edgar’s testimony was neither physically impossible nor inherently improbable. While there were discrepancies between his testimony and the statements he made at the time of the fire, Edgar’s statements and testimony were consistent on the critical point of defendant stating he was going to “ ‘burn the house down.’ ” That there were discrepancies between Edgar’s trial testimony and his statements at the time of the fire was thoroughly examined at the time of trial; and a trier of fact may consider those discrepancies in assessing a witness’s testimony. (People v. Tuggles (2009) 179 Cal.App.4th 339, 365.)
That Edgar heard the words said during the argument between defendant and Aguinaga, an argument heard by at least three people, is neither inherently improbable nor physically impossible. As for the ultimate weight to be accorded Edgar’s testimony, that is exclusively in the province of the trier of fact. (People v. Young, supra, 34 Cal.4th at p. 1181.)
As for Wilson’s conclusion that the fire was started intentionally, there is abundant evidence to support this conclusion. The fire damage showed the fire was centered in defendant’s closet. For a fire centered in the closet to have started, it had to have been started by an open flame. There was no electricity to the apartment, consequently neither the electrical panel nor any of the electrical outlets in defendant’s bedroom could have sparked a fire. There was no candle wax in the debris of the fire, thus a candle was not responsible for an open flame that could spark a fire.
Wilson opined that a lit cigarette could not have caused the fire because of the short amount of time spanning the argument between defendant and his mother and the fire. While Wilson mentioned using Edgar’s timeline to reach this conclusion, Mendez testified to the same timeline, a lapse of seven to 10 minutes. Wilson therefore concluded that a lighter or matches had to have been used to intentionally start a fire, a conclusion reached by examining the physical evidence and applying her expertise. The jury is not required to accept an expert’s opinion, although the jury in defendant’s case did. (People v. Sanchez (2016) 63 Cal.4th 665, 675.)
In sum, there is reasonable and credible evidence to support the conviction. (People v. Rangel, supra, 62 Cal.4th at p. 1212.)
After an independent review of the record, we find that no reasonably arguable factual or legal issues exist.
DISPOSITION
The judgment is affirmed.