In re Shawn S.

Filed 10/12/07 In re Shawn S. CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from a judgment of the Superior Court of Los Angeles County.

Irma J. Brown, Judge. Affirmed.

Lynette Gladd Moore, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan D. Martynec and Linda C. Johnson, Deputy Attorneys General, for Plaintiff and Respondent.

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The juvenile court sustained a petition alleging that appellant Shawn S. recklessly caused fire to the property of another in violation of Penal Code section 452,^[1]

subdivision (d), a misdemeanor. The court found that appellant was a person described by Welfare and Institutions Code section 602, adjudged appellant to be a ward of the court, and placed him on home probation for a period not to exceed six months.

Appellant appeals from the orders sustaining the petition and adjudging him to be a ward of the court, contending that counsel was ineffective in failing to make a motion to dismiss and further contending that there is insufficient evidence to support the trial court's finding that he recklessly caused fire to the property of another. We affirm the trial court's orders.

Facts

On February 4, 2006, about 5:30 p.m., William Peters, a security guard and a high school coach, was walking his dog near Yukon Elementary School in Torrance. Peters lived a block from the school and worked two blocks from the school, at North Torrance High School. When Peters got to the back of the elementary school, he noticed four young men. One of them threw his skateboard to the side before all four of them jumped a fence into a big outdoor nursery. In the nursery where the young men entered there was a pile of leaves, almost like a dump site.

About 10 minutes later, Peters noticed some smoke coming from the dump site on the side of the nursery so he went over to get a closer look. Two of the young men were in the area where the smoke was coming from. Peters made eye contact with one of the young men that he knew from the high school. The young man "took off."

Peters jumped the fence to go over to the trailer that serves as an office for the nursery to tell them about the fire, but no one was there. He came back over the fence. At this time, the flames were probably three to five feet high. Because he did not have a cell phone, Peters started walking to the front of the school, intending to get someone over to the fire. He found a woman with a cell phone. She called the fire department. Peters then went back to the school property. At this time, he saw appellant, who came from the front of the school to retrieve his skateboard, after which he "took off."

Detective Steven Jenkinson, who is assigned to the juvenile unit, spoke with two minors from North Torrance High School, Michael M. and Joseph H., whom Peters had seen in the nursery at the time of the fire. He then interviewed appellant in the assistant principal's office around 10 o'clock in the morning on February 23, 2006. Detective Taualii was also present. Appellant was advised of his Miranda rights, which he waived.

At first, appellant denied knowing anything about the fire. However, when Detective Jenkinson explained to him that Michael M. and Joseph H. said he was in the area where the fire started, appellant said he accidentally stepped on a torch that was present and that was how the fire started. Appellant then changed his story and said that he was teetering with a board that was on the torch and it fell off, which ignited the torch and the fire started. Lastly, after he was told that Michael M. said that appellant was pushing down on the torch with his foot, appellant admitted that he had been pressing on the torch when it lit, causing the fire. Appellant was only playing with the torch and did not intend to cause a fire. He became scared and ran away. He then went back to the school to get his skateboard. After that he went home.

Appellant testified in his own behalf. He went to the nursery the day of the fire with three other kids. Originally, Michael M. found the torch and began twirling it in his hand. When he was done, he threw the torch on the ground, where there were twigs, pots, dead plants, and a board. Appellant retrieved it and unsuccessfully tried to twirl it, and the torch fell to the ground. Mad because he could not twirl it, appellant stepped on it, kicking it. Appellant admitted that he knew what a torch was and what it could do. After stepping on the button that turned the torch on, he then saw smoke coming from the twigs on the ground.

Discussion

1. Ineffective assistance of counsel

Appellant contends that at the close of the prosecution's case there was no independent evidence of the corpus delicti of the crime of recklessly causing fire to the property of another with which he was charged and that his counsel was ineffective in failing to make a motion to dismiss the petition against him under Welfare and Institutions Code section 701.1. We do not agree.

Appellant has the burden of proving ineffective assistance of counsel. (People v. Pope (1979) 23 Cal.3d 412, 425.) In order to establish such a claim, appellant must show that his counsel's performance fell below an objective standard of reasonableness, and that, but for counsel's error, a different result would have been reasonably probable. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 694; People v. Ledesma (1987) 43 Cal.3d 171, 216-218.) "A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Strickland v. Washington, supra, 466 U.S. at p. 694.) "Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.' [Citations.]" (People v. Thomas (1992) 2 Cal.4th 489, 530-531.)

When an appellant makes an ineffective assistance claim on appeal, we look to see if the record contains any explanation for the challenged aspects of the representation. If the record is silent, then the contention must be rejected "'unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation' [citation]." (People v. Haskett (1990) 52 Cal.3d 210, 248.)

"In every criminal trial, the prosecution must prove the corpus delicti, or the body of the crime itself - - i.e., the fact of injury, loss, or harm, and the existence of a criminal agency as its cause. In California, it has traditionally been held, the prosecution cannot satisfy this burden by relying exclusively upon the extrajudicial statements, confessions, or admissions of the defendant. [Citations.]" (People v. Alvarez (2002) 27 Cal.4th 1161, 1168-1169, italics omitted.)

The independent evidence of corpus delicti may be circumstantial and need not be beyond a reasonable doubt. Thus, the evidence is sufficient if it permits an inference of criminal conduct even if a noncriminal explanation is also plausible. (People v. Alvarez, supra, 27 Cal.4th at p. 1171.) "There is no requirement of independent evidence 'of every physical act constituting an element of an offense,' so long as there is some slight or prima facie showing of injury, loss, or harm by a criminal agency. [Citation.]" (Ibid.)

An example of the minimal requirements of the corpus delicti rule can be found in People v. Jennings (1991) 53 Cal.3d 334. In that case, the court found that when the body of a young woman was found unclothed in a remote locale, an inference arose that some sexual activity occurred, thus satisfying the corpus delicti requirement that there be some showing of a loss, injury, or harm. The court also found that the fact that the woman was unclothed in a remote location where her lack of clothes was not easily explainable, had a broken jaw and was dead created an inference that the sexual activity was against the victim's will, thus satisfying the corpus delicti requirement of a criminal agency. (Id. at pp. 367-368.)

Here, at the close of the prosecution's case, there was sufficient evidence to establish the corpus delicti of recklessly causing fire to the property of another.

Peters's testimony established that a fire occurred at the nursery. This satisfies the corpus delicti requirement for a loss or injury. Appellant acknowledges that there was also independent evidence that he and his friends were on nursery property. Peters's testimony established that the fire was well established 10 minutes after appellant and his friends entered the nursery. At that time, smoke was visible from the school and the flames were about three to five feet high. At least two of the young men were in the area where the smoke was coming from. Apart from appellant and his friends, there was no one else present at the nursery at that time. There is nothing to suggest that the fire started naturally. The fire occurred in February, not a dry or hot time of the year. These circumstances create an inference that appellant and his friends were involved in starting the fire and satisfy the corpus delicti requirement for a criminal agency. To the extent that appellant contends that all other plausible explanations for the fire must be ruled out, we do not agree.^[2]

Thus, the low quantum of evidence necessary to establish the corpus delicti for the crime was met. The evidence clearly shows an injury and supports a reasonable inference that it was the criminal conduct of the four youths that set the fire. It does not matter that there might also be a plausible noncriminal explanation for the youths' conduct. (People v. Jennings, supra, 53 Cal.3d at p. 364.)

Since there was sufficient evidence of the corpus delicti, counsel acted reasonably in not making a motion for acquittal at the close of the prosecution's case. (See People v. Ochoa (1998) 19 Cal.4th 353, 427-428, 432 [counsel not required to make meritless motion to exclude].) Further, if counsel had made such a motion, we see no reasonable probability that the court would have granted the motion and thus no reasonable probability of a more favorable outcome. Thus, appellant's claim of ineffective assistance of counsel fails.

2. Sufficiency of the evidence

Appellant contends that there is no evidence that he had the required reckless state of mind. Appellant claims that the evidence shows only that his conduct was negligent. We see sufficient evidence that appellant acted recklessly in setting the fire.

In reviewing the sufficiency of the evidence, "courts apply the substantial evidence test. Under this standard, the court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence -that is, evidence which is reasonable, credible, and of solid value - such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Cuevas (1995) 12 Cal.4th 252, 260-261, internal quotation marks, italics, and citations omitted.)

The standard of review is the same when the prosecution relies on circumstantial evidence to prove guilt. (People v. Rodriguez (1999) 20 Cal.4th 1, 11.) "If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment." (People v. Thomas, supra, 2 Cal.4th at p. 514, internal quotations omitted, citing People v. Bean (1988) 46 Cal.3d 919, 932-933.)

The meaning of the word "recklessly" as used in section 452, subdivision (d) is set forth in section 450, subdivision (f). That subdivision states in relevant part: "'Recklessly' means a person is aware of and consciously disregards a substantial and unjustifiable risk that his or her act will set fire to, burn, or cause to burn a structure, forest land, or property. The risk shall be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation. . . ." ( 450, subd. (f).)

In sustaining the petition, the juvenile court stated: "The court does not find any testimony to support the theory that the minor stepping on the button that was the igniting device of the torch, the butane tank, whatever it was, was accidental in nature. He was kicking it because he was angry at it. He saw the button. He was aware the area was full of twigs, according to his own testimony, and other incendiary material, and he intentionally stepped on the button to see what would happen, knowing that it was a torch and had the potential to ignite, and it did so. That conduct is reckless, so the court finds the petition to be true beyond a reasonable doubt."

The evidence supports the juvenile court's ruling. Appellant himself admitted that he knew what a torch was and what it could do. Nevertheless, while he saw twigs, pots, dead plants, and a board on the ground, he repeatedly stepped on the torch, kicking it while it was on the ground because he was mad that he could not successfully twirl it like Michael M. had done. After he stepped on the button that turned the torch on, appellant saw smoke coming from the twigs on the ground.

Appellant's testimony by itself establishes his reckless conduct. He kept kicking and stepping on the torch while it was on the ground amidst incendiary material knowing that the torch could ignite. Nevertheless, he did it. His behavior was clearly reckless within the meaning of sections 450, subdivision (f) and 452, subdivision (d). It was a "gross deviation" from what the reasonable person would have done under these circumstances.

Disposition

The juvenile court's orders are affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ARMSTRONG, J.

WE CONCUR:

TURNER, P. J.

KRIEGLER, J.

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^[1] All further statutory references are to the Penal Code unless otherwise indicated.

^[2] Appellant relies on Elcome v. Chin (2003) 110 Cal.App.4th 310, a civil case involving the doctrine of res ipsa loquitur and quantum of evidence necessary to defeat summary judgment. Nothing in that case alters the well established rules of the corpus delicti doctrine.