P. v. Goolsby
Filed 2/14/13 P. v. Goolsby CA4/2
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opinion has not been certified for publication or ordered published for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.
THE PEOPLE,
Plaintiff
and Respondent,
v.
RICHARD JAMES GOOLSBY,
Defendant
and Appellant.
E052297
(Super.Ct.No. FSB905099)
OPINION
APPEAL from the Superior Court
of
County. Bryan Foster,
Judge. Modified and affirmed with
directions.
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, 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),
caused more than one structure to burn within the meaning of section 451.1,
subdivision (a)(4) based on evidence that defendant set a fire that caused two
motor homes to burn.
name="_ftnref2" title="">[2] Because the felony conviction constituted
defendant’s third strike, the trial court sentenced him to the mandatory term
of 25 years to life in state prison. The
trial court also imposed three prior serious felony enhancements under section
667, subdivision (a) after first finding those allegations true,
the jury’s true finding on the section 451.1 allegation.
Defendant raises various challenges to the jury’s verdict and to his
sentence. We agree with his assertion
that his motor home is not a structure.
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. Because the trial court instructed the jury
on the necessarily included lesser offense of arson of property (§ 451, subd.
(d)), we will reduce defendant’s conviction to that crime and will strike the
section 451.1, subdivision (a)(4) multiple structure enhancement. We also will strike all but one of the three
section 667, subdivision (a) five-year enhancements.
FACTS
The facts are undisputed, and only a few are necessary for our
resolution of the issues defendant raises on appeal. On November
28, 2009, defendant had a disagreement with Katherine Burley. He and Ms. Burley lived together in what was
one of several motor homes defendant owned and had parked on a vacant lot. 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 were living and where Burley then was sleeping. Defendant used gasoline to set the inoperable
motor home on fire. After Burley got out
with her dogs, the fire spread to the motor home in which she had been
sleeping. The fire destroyed both motor
homes.
Additional facts will be recounted below as pertinent to the issues
defendant raises on appeal.
DISCUSSION
1.
SUFFICIENCY OF
THE EVIDENCE TO SUPPORT THE JURY’S VERDICT FINDING DEFENDANT GUILTY OF ARSON OF
AN INHABITED STRUCTURE
Defendant contends, and we agree,
that the evidence was insufficient to show that the motor home in which he and
Burley were then living was a structure.
Therefore the evidence that he set fire to or caused that motor home to
burn does not support the jury’s verdict finding him guilty of arson of an
inhabited structure in violation of section 451.
A. Inhabited Structure
Under section 451, “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.†Section 451 sets out
“different levels of punishment, depending on the subject matter of the
arson. [Citation.] These statutory categories, in descending
level of punishment, are: (1) arson resulting in great bodily injury (five, seven,
or nine years); (2) arson to [sic]
‘an inhabited structure or inhabited property’ (three, five, or eight years);
(3) arson of a ‘structure or forest land’ (two, four, or six years); and (4)
arson to other types of property (16 months, two, or three years). (§ 451, subds. (a), (b), (c) & (d).) By creating these different levels of
punishment, the Legislature intended to impose punishment ‘“in proportion to
the seriousness of the offense,â€â€™ and, in particular, ‘according to the injury
or potential injury to human life involved . . . .’ [Citation.]â€
(People v. Labaer (2001) 88
Cal.App.4th 289, 292 (Labaer).)
The district attorney in this case
charged defendant with arson of an “inhabited structure†in violation of
section 451, subdivision (b). Defendant
pointed out in the trial court that according to section 450, which defines the
terms used in the arson chapter, “‘Structure’ means any building, or commercial
or public tent, bridge, tunnel, or powerplant.â€
(§ 450, subd. (a).) Although
the motor home in this case does not come within the definition of the term
“structure,†the trial court, at the district attorney’s urging, focused on
whether the motor home was a dwelling, i.e., a place in which defendant and Ms.
Burley intended to live more or less permanently. Based on that focus, the trial court
permitted the jury to determine whether in this case a motor home is a
structure for purposes of the arson statute.
Whether the crime is 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.â€
In this case the motor home was not a building, commercial or public
tent, bridge, tunnel or powerplant. In
this case, for purposes of the arson statute, the motor home is property, which
by statutory definition “means real property or personal property, other than a
structure or forest land.†(§ 450,
subd. (c).) The district attorney
incorrectly charged defendant with arson of an inhabited structure under
section 451, subdivision (b), even though that section also applies to arson of
“inhabited property.â€
name="_ftnref5" title="">[5]
We need look no further than the noted statutory provisions to
conclude that the district attorney incorrectly charged and prosecuted this
case—the motor home in this case is not a building and therefore is not a
“structure†as that term is defined in section 450, subdivision (a). Labaer,
supra, on which the trial court
relied, and which the Attorney General cites in this appeal, is inapposite.
In Labaer, which involves a
mobilehome, not a motor home, the defendant argued the mobilehome that he had
partially dismantled before he set it on fire, was “property†not a building,
and therefore not subject to the increased punishment for arson of a structure. In rejecting that claim, Division One of this
court first noted that, “The Penal Code does not define ‘building’ for purposes
of arson; we therefore apply the plain meaning of the word. [Citation.]â€
(Labaer, supra, 88 Cal.App.4th at p. 292.)
The court then observed, “Labaer does not dispute that the mobilehome—as
it existed during the months before the fire—constituted a ‘building’ [and
therefore a structure] under the arson statutes. The evidence established the [mobile]home was
fixed to a particular location, could not be readily moved, and had been used
as Labaer’s residence for several months.
Labaer argues instead that the dilapidated condition of the home on the
day of the fire—caused primarily by his illegal dismantling activities the
previous day—converted the mobilehome from a ‘structure’ under section 451,
subdivision (c) to generic ‘property’ subject to lesser punishment under
section 451, subdivision (d). [¶] The easy answer to this contention is that
the Legislature could not have intended that a criminal defendant benefit from
his or her unlawful activities to
obtain a lesser punishment merely by attempting to take apart a building
shortly before setting it on fire. The
more lengthy—but equally correct—response to Labaer’s contention is that
despite his dismantling activities, the mobilehome remained a ‘building’ within
the meaning of the arson statute because the dismantling was never
completed. Although the mobilehome was
in a substantially substandard condition, there was ample evidence showing it
remained a standing and constructed structure that had four sides and a partial
roof.†(Labaer, at pp. 292-293.)
As defendant argued in the trial
court in this case, the prosecutor did not present evidence to show that the
motor home in question was fixed to a particular location and therefore had the
attributes of a building. The common
feature of the things included in the statutory definition of structure is that
they are all affixed to the ground and either cannot be moved at all or cannot
be moved without first being dismantled and detached from the ground.
which is to move from location to location.
Absent evidence to show the motor home was somehow fixed in place, such
a vehicle cannot be a structure within the meaning of the arson statute. More importantly, and as defendant also
pointed out in the trial court, the punishment for arson of an inhabited
structure and the punishment for arson of inhabited property is exactly the
same,
in which arson of a structure that is not inhabited carries a greater
punishment than arson of property that is not inhabited.
In short and simply stated, the
motor home at issue in this case is not a structure, as that term is defined in
the arson statutes and as the trial court instructed the jury.
defendant set fire to a motor home that caused a second inhabited motor home to
catch fire does not support the jury’s verdict finding him guilty of arson of
an inhabited structure. Nor does that
evidence support the jury’s true finding on the enhancement that defendant
“caused multiple structures to burn during the commission of the arson.†The next issue we must address is the
appropriate remedy.
Although the Attorney General
insists the jury’s verdict is supported by substantial evidence,
remedy, defendant correctly notes that we must strike the section 451.1
sentence enhancement but that we may exercise discretion under section 1181,
subdivision 6 to reduce defendant’s conviction to a lesser included
offense. The trial court instructed the
jury on the lesser included offense of arson of property in violation of
section 451, subdivision (d). Defendant
challenges the sufficiency of the evidence to show that he harbored malice, and
thus committed arson, as opposed to recklessly setting a fire in violation of
section 452. Before we exercise our
discretion to reduce defendant’s conviction to a lesser included offense, we
must address this claim.
B. Malice
“In addressing a challenge to the
sufficiency of the evidence supporting a conviction, the reviewing court must
examine the whole record in the light most favorable to the judgment to
determine whether it discloses substantial evidence—evidence that is
reasonable, credible and of solid value—such that a reasonable trier of fact
could find the defendant guilty beyond a reasonable doubt. [Citation.]
The appellate court presumes in support of the judgment the existence of
every fact the trier could reasonably deduce from the evidence. [Citations.]
The same standard applies when the conviction rests primarily on
(People v. Kraft (2000) 23
Cal.4th 978, 1053.)
As set out above, in order to commit
arson the evidence must show that the defendant acted “willfully and
maliciously†in setting fire to, or burning or causing to burn, any structure,
property or forest land.
(§ 451.) “[W]hen applied to
the intent with which an act is done,†the term “willfully†“implies simply a
purpose or willingness to commit the act.â€
(§ 7, subd. 1.)
“‘Maliciously’ imports a wish to vex, defraud, annoy, or injure another
person, or an intent to do a wrongful act, established either by proof or
presumption of law.†(§ 450, subd.
(e).)
Defendant contends the issue in this appeal is whether the evidence is
sufficient to establish he had the intent to do a wrongful act. This type of malice, referred to as malice in
law, as opposed to malice in fact, which is “defined as ‘a wish to vex, annoy,
or injure’ [citation] – consists of actual ill will or intent to injure.†(In re
V.V. (2011) 51 Cal.4th 1020, 1028.)
“In determining whether [malice in law] (‘intent to do a wrongful act’)
is established for arson, malice will be presumed or implied from the
deliberate and intentional ignition or act of setting a fire without a legal
justification, excuse, or claim of right.â€
(Ibid.)
Defendant contends he only intended to burn the first motor home, and
because that motor home is his own property, that act is not unlawful. Therefore, defendant argues, the resulting
fire to the second motor home in which Burley was sleeping was not arson as a
matter of law.
title="">[11] Instead, defendant contends the jury could
find him guilty only of violating section 452, unlawfully causing a fire as a
result of recklessly setting a fire that burns or causes to be burned any
property.
Had defendant not moved the first motor home before he set it on fire,
we would have to agree with him. But the
fact that before setting it on fire, defendant pushed the inoperable motor home
next to the one in which Burley was sleeping is sufficient to support an
implied finding that defendant intended to use what defendant refers to as the
“privileged burning†as the incendiary device to set the other motor home on
fire. In short, a jury could reasonably
infer that defendant intended to commit the wrongful and unjustified act of
setting the second motor home on fire from the fact that he pushed the first
motor home over next to it before setting that first motor home on fire.
To the extent defendant challenges
the sufficiency of the evidence to prove malice in fact, we also must reject
that claim. The evidence in this case
shows defendant and Ms. Burley had an argument during which they each
separately called the police. The first
time a police officer responded, he suggested defendant leave for the night and
sleep somewhere else. Defendant left but
then almost immediately returned and apparently entered the motor home where he
then annoyed Ms. Burley by trying to pull a blanket off her while she slept. This prompted Ms. Burley’s call to the
police. The same officer responded
Although defendant left the motor home, he did not leave the
property. Instead, defendant used a
vehicle to push the inoperable motor home over near the one in which Burley was
sleeping. Although no one saw defendant
start the fire that ignited the inoperable motor home, defendant does not deny
doing so. Moreover, the subsequent arson
investigation disclosed evidence of accelerant, in particular gasoline, at
various locations around the burned motor homes, as well as on defendant’s
clothing. When she smelled smoke and
looked out the window to see what was going on, Burley also saw defendant
holding a container that the investigation determined had contained gasoline.
Defendant’s contrary claim notwithstanding, the noted evidence is
sufficient to support the jury’s implied finding that defendant acted
willfully, i.e., with a purpose to do what he did, namely set fire to the
inoperable motor home, and maliciously, i.e., with a wish to vex and annoy
Burley.
Because we conclude the evidence is sufficient to support the noted
implied findings and thus supports an arson conviction, we will exercise
discretion under section 1181, subdivision 6 to modify the judgment by reducing
defendant’s conviction from a violation of section 451, subdivision (b) to the
lesser included offense of arson of property in violation of section 451,
subdivision (d).
DISPOSITION
The judgment is modified by (1)
reducing defendant’s conviction from a violation of section 451, subdivision
(b) to a violation of section 451, subdivision (d); (2) striking the five-year
sentence enhancement the trial court imposed under section 451.1; and (3)
striking all but one of the section 667, subdivision (a) five-year prior
serious felony sentence enhancements. As
modified, the judgment is affirmed. The
trial court is directed to prepare an amended abstract of judgment that
reflects defendant’s modified sentence and to forward copies of that amended
abstract to the appropriate agencies and entities.
NOT TO BE PUBLISHED IN OFFICIAL
REPORTS
MCKINSTER
Acting P. J.
We concur:
RICHLI
J.
CODRINGTON
J.
name="_ftn1" title=""> [1] All further statutory references will be to
the Penal Code unless otherwise indicated.
name="_ftn2" title=""> [2] The jury found him not guilty of attempted
murder.
