Filed 8/17/17 P. v. Ames CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Tuolumne County. James A. Boscoe, Judge.

John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D. Cary and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION

In 2014, appellant Steven John Ames started two small fires in close proximity in the kitchen of his rented residence. A jury found him not guilty of two counts of arson (Pen. Code, § 451, subd. (c))[1] but guilty in both counts for the lesser included offense of unlawful burning of a structure (§ 452, subd. (c); counts I & II). Prior to sentencing, appellant moved to reduce his convictions to misdemeanors, which the trial court denied. Imposition of sentence was suspended and the court placed appellant on felony probation for three years. He was ordered to pay a restitution fine of $1,500 and serve 169 days in the county jail, with credit for time served.

On appeal, appellant argues that the due process clause and section 17, subdivision (b) require reversal of the trial court’s order denying his motion to reduce his convictions to misdemeanors. We reject this claim. However, we agree with appellant’s second argument that he can only be guilty of a single violation of section 452, subdivision (c). We vacate his sentence and remand for further proceedings.

BACKGROUND

The Prosecution’s Case

The Fire

In April 2014, appellant was renting a residence in Twain Harte, California. Sometime that month, he gave notice to the property owner that he was going to move out.

On April 18, 2014, around 8:00 a.m., a man called 911 after smelling smoke coming from appellant’s residence. The residence had an open door and appellant was not present. The fire department and sheriff’s department responded.

Law Enforcement Investigation

Brenton Brown, a captain with Cal Fire, investigated the fire. Brown testified at trial as an expert on fire origin and causes. The fire was no longer burning when he arrived on scene at appellant’s residence.

Two distinct fires had originated in the kitchen, one on the stovetop and one on the floor. Based on clues in the residence, Brown opined that the fire did not generate much heat. He believed the stovetop fire started first. That fire “rolled up” underneath a cabinet housing a microwave. The microwave showed signs of melting. The microwave door had been removed and was located in the sink. A stovetop element was on, which caused either a pot handle or a potholder to burn. Several pans were on the stove. Nothing indicated an electrical malfunction and nothing indicated that cooking had caused the fire, although some type of cooking oil was on the stovetop. The fire lasted no longer than five minutes and it extinguished on its own. The fire, however, could have produced smoke for up to three hours. Brown opined that this fire was possibly not an accident.

Brown opined that the other fire on the floor was separate and distinct from the stovetop fire. The second fire was fueled by pine needles and twigs located in a cardboard box. The box had burned completely. Brown did not observe anything indicating the stovetop fire started the fire on the floor. He opined that an open flame started the floor fire, and he believed it was intentionally set. The pine needles were dry and did not appear to smolder, as wet needles would have done. The floor fire burned anywhere from three to seven minutes, with smoke produced for hours.

A sheriff’s deputy spoke with appellant on the afternoon of April 18, 2014. Appellant reported that he was depressed and feeling suicidal. The deputy transported appellant to a regional medical center for evaluation. On the way, appellant said the fire was an accident. He tried to cook some meat about 10:00 p.m. the night before, and the fire became too large and spread to a box of pine needles on the floor of the kitchen. The fire subsided and he passed out drunk. He slept in the residence that night with the fire still smoldering. Upon waking, appellant said he went for a walk. Upon returning, he saw the fire department and sheriff’s vehicles at his residence so he did not enter because he did not want to get into trouble. Appellant told the deputy that he was “‘tired of life’” and he did not want to live.

The Defense Case

Appellant testified on his own behalf. On April 17, 2014, he was planning on moving. Later that night, appellant put oil in a pan on his stove to cook some pot stickers. He turned on the burner. After starting the oil, appellant fell asleep on the couch. He woke up and discovered smoke. The burner was “red hot.” He saw no flames but smoke was coming off the pan. The microwave was badly burned. He cleaned up some of the mess and then he went back to sleep. He did not notice any fire on the floor.

The house was still smoky when appellant woke up. He removed the microwave door, which had been hanging and was already loose. He cleaned the counters and microwave. At that point, appellant noticed that a fire had occurred on the floor where he had kept pine needles in a box. He kept the needles to weave baskets, and the needles had been attached to branches. The floor beneath the pine needle box was scorched. He told the jury he drank a lot of wine the afternoon and evening before the fire started, which is why he did not notice the floor fire that night.

After cleaning the kitchen, appellant left the door open to air out the house. He went for a walk. Upon returning, he saw the fire department and sheriff at his residence. He panicked and walked away for a few hours. He purchased more wine and consumed it before returning home. Sheriff deputies then contacted him and spoke with him.

Appellant told the jury he had been depressed that day, but he denied starting the fire on purpose or trying to kill himself.

DISCUSSION

I. The Motion to Reduce the Convictions to Misdemeanors

At the sentencing hearing, appellant moved to reduce his convictions to misdemeanors. The prosecution opposed the motion. The trial court denied the motion, finding that “serious problems” could have occurred from appellant’s conduct, including serious injury or damage to property. The court put appellant on felony probation but invited him to apply for a misdemeanor when he completed probation.

On appeal, appellant contends the trial court abused its discretion in denying his motion. He argues he had lived an exemplary life except for minor recent problems caused by depression; he did not intentionally set the fire; the property damage was minimal; and his risk of reoffending was minor. He claims the trial court irrationally speculated on the harm that might have occurred from appellant’s actions rather than focusing on the “minor cooking accident” that did occur. He asserts that due process required the trial court to reduce his convictions to misdemeanors.

A. Standard Of Review

A deferential abuse of discretion standard is used to review a trial court’s decision whether to reduce an offense to a misdemeanor. (People v. Tran (2015) 242 Cal.App.4th 877, 887.) “We will not disturb the court’s decision on appeal unless the party attacking the decision clearly shows the decision was irrational or arbitrary. [Citation.] Absent such a showing, we presume the court acted to achieve legitimate sentencing objectives. [Citation.]’ [Citation.]” (Ibid.)

B. Background

1. Probation Report

According to the probation officer’s report, appellant had the following criminal history: (1) a June 2014 misdemeanor violation of Vehicle Code section 23152, subdivision (a) (DUI). He was sentenced to three years of probation and a fine; (2) a May 2011 misdemeanor violation of sections 484/488 (petty theft). He received a fine; and (3) a June 2009 conviction of Vehicle Code section 23152, subdivision (a) (DUI). He received three years of probation, 15 days in jail, and a fine. A forensic assessment evaluated appellant at low risk to reoffend.

Appellant was 56 years old, he had two children, and he was divorced in 2014. He admitted a frequent use of alcohol that had increased “significantly within the past few years and created problems for him including two DUI’s.” He participated in and completed a six-month rehabilitation program in 2012 while in treatment at the Salvation Army.

The probation officer’s report attached recommendations and awards. During 2006, appellant was inducted into the Truckee Hall of Fame for his contributions to the community. He owned a popular deli in Truckee for 25 years and was involved in youth sports for 26 years. He also led efforts to clean the streets of Truckee. Two articles discussed the loss to the Truckee community when appellant’s deli closed. A letter from appellant’s sister explained his emotional decline and how he came to abuse alcohol following the loss of his business, his home of 25 years, and his marriage.

2. The Sentencing Hearing

At sentencing, the trial court read and considered the probation officer’s report and recommendations, as well as “numerous attachments” to it, letters of recommendation, appellant’s statement, and a list of appellant’s community contributions. The court also accepted a page from a church’s newsletter, which showed that appellant had been hired as a church sexton to provide security and assistance. Finally, the court accepted photographs that depicted appellant’s efforts to fix the fire damage.

Defense counsel contended that probation seemed to believe that appellant committed arson, but that went against the jury’s findings. The defense asserted that appellant had repaired a lot of the damage, and he had purchased a new microwave, which he left at the residence. Defense counsel argued that appellant had been merely “negligent in cooking.” Appellant had completed an alcohol program through Salvation Army, but he had relapsed into alcoholism due to personal problems. He did not have a criminal history and he had contributed to his community. The defense maintained that the fire was an accident. The defense requested the trial court to reduce appellant’s convictions to misdemeanors.

After hearing argument from the prosecution, the trial court denied appellant’s motion to reduce the convictions to misdemeanors. The court acknowledged that alcohol and appellant’s personal life had contributed to the event. However, serious injury or property damage could have occurred. The court placed appellant on felony probation and gave him credit for time served.

C. Analysis

Most crimes are classified as either a felony or a misdemeanor. (People v. Park (2013) 56 Cal.4th 782, 789.) Some crimes, however, are deemed wobblers and may be punished as either a felony or a misdemeanor. (Ibid.; see § 17, subd. (b).) Section 452, subdivision (c) qualifies as a wobbler offense.

The Legislature has empowered the trial courts to decide in each individual case whether a wobbler should be classified as a felony or a misdemeanor. In making that determination, the court considers the facts surrounding the offense and the characteristics of the offender. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 978.)

Our Supreme Court has set forth the following criteria regarding a trial court’s discretion. The trial court should examine (1) the nature and circumstances of the offense, (2) the defendant’s appreciation of and attitude toward the offense, and (3) the defendant’s character traits as evidenced by his or her behavior and demeanor at trial. The trial court should also consider, when appropriate, the general sentencing objectives set forth in the California Rules of Court.[2] (People v. Superior Court (Alvarez), supra, 14 Cal.4th at p. 978.) Our Supreme Court has cautioned that a trial court abuses its discretion when its ruling is not based on the offense, the offender, and the public interest. (Ibid.)

Rule 4.410 sets forth the general objectives of sentencing. These include, but are not limited to, protecting society, punishing the defendant, encouraging the defendant to lead a law-abiding life in the future, deterring the defendant from future offenses, preventing the defendant from committing new crimes, and securing restitution. (Rule 4.410(a)(1)-(6).)

Here, we disagree with appellant’s assertions that his prior criminal history, as well as the nature and circumstances of this crime, favored reducing the convictions to misdemeanors. Appellant had an admitted drinking problem that had increased before this offense. Prior to this sentencing, he had two DUI convictions. He drank heavily on the day of this crime before recklessly starting two fires in his rented residence. There was evidence that appellant posed a risk to himself and others. The court’s ruling was based on the circumstances of this offense. It protected society while punishing appellant and encouraging him to avoid future crimes.

To establish an abuse of discretion, appellant cites to rules 4.421 and 4.423. These rules establish circumstances in aggravation and mitigation, respectfully. Appellant contends that many of the circumstances in aggravation do not apply to him. For instance, his crime did not involve violence and he was not armed with a weapon. He further argues some of the circumstances in mitigation do apply to him. For instance, this crime occurred because of unusual circumstances that are unlikely to recur, and he had made restitution to the victim.

However, these rules are used to determine an appropriate felony sentence. These rules provide factors for a sentencing court to determine whether the upper, middle, or lower term should be imposed against a defendant. (Rule 4.420(a) & (b).) As such, we reject appellant’s assertion that these factors indicate the trial court should have imposed misdemeanors in this matter.

Based on this record, appellant has not shown the court’s decision was irrational or arbitrary. Absent such a showing, we presume the court acted to achieve legitimate sentencing objectives. An abuse of discretion is not present. Likewise, appellant cannot establish a due process violation. (See Hicks v. Oklahoma (1980) 447 U.S. 343, 346 [a defendant has due process protection under the 14th Amendment for the appropriate exercise of statutory discretion].) Accordingly, this claim fails.

II. Consolidation of Two Convictions

The parties disagree as to whether appellant’s two convictions are proper. Appellant contends his two convictions must be consolidated into a single count. He argues that the plain language of section 452 does not criminalize multiple fires set to a particular structure. He asserts the double jeopardy clause prevents his conviction of more than one crime under the same statute. In contrast, respondent argues a criminal defendant can suffer multiple convictions for a single criminal act or series of related criminal acts. Respondent also contends that a statutory violation of section 452 occurs any time a fire is unlawfully set so that double jeopardy was not violated. We agree with appellant and reject respondent’s arguments.

To analyze section 452, we look first to the statutory language, giving the words their usual and ordinary meaning. (People v. Flores (2003) 30 Cal.4th 1059, 1063.) “When the language of a statute is clear, we need go no further. However, when the language is susceptible of more than one reasonable interpretation, we look to a variety of extrinsic aids, including the ostensible objects to be achieved, the evils to be remedied, the legislative history, public policy, contemporaneous administrative construction, and the statutory scheme of which the statute is a part. [Citations.]” (Ibid.) We review de novo the interpretation of a statute. (People v. Williams (2010) 184 Cal.App.4th 142, 146.)

Pursuant to section 452, “[a] person is guilty of unlawfully causing a fire when he recklessly sets fire to or burns or causes to be burned, any structure, forest land or property.” “Unlawfully causing a fire of a structure or forest land is a felony punishable by imprisonment in the state prison for 16 months, two or three years, or by imprisonment in the county jail for not more than six months, or by a fine, or by both such imprisonment and fine.” (§ 452, subd. (c).) “Structure” is defined as “any building, or commercial or public tent, bridge, tunnel, or powerplant.” (§ 450, subd. (a).)

We agree with appellant that the language of section 452 prohibits the burning of a structure (or forest land or property). It does not address the number of fires necessary for conviction and it does not increase criminal liability for multiple fires recklessly set in the same structure. Moreover, this statute does not criminalize merely the act of recklessly starting a fire. Instead, for criminal liability to attach, either a structure, forest land, or property must burn. In other words, recklessly starting a fire that does not burn either a structure, forest land or property is not a crime pursuant to section 452.

We also agree with appellant that the statutory scheme supports an interpretation that section 452 prohibits the burning of a structure regardless of the number of fires recklessly started. In section 452.1, the Legislature enacted sentencing enhancements of one, two, or three years if certain circumstances are found true. One such circumstance occurs when a “defendant proximately caused multiple structures to burn in any single violation of Section 452.” (§ 452.1, subd. (a)(4).) This enhancement strongly suggests that the intent of section 452 was to prohibit fire damage to a structure regardless of the number of recklessly started fires within that structure. We note the Legislature did not enact a sentencing enhancement regarding the number of fires started.

Finally, respondent’s argument leads to an absurd result. For instance, a criminal defendant could recklessly start multiple fires in the same structure. As was the case here, those fires are extinguished and the structure does not suffer extensive damage. However, a second defendant could recklessly start a single fire that destroys the same structure. The first defendant could be convicted of multiple felony violations of section 452 while the second defendant receives a single felony conviction. The ostensible goal of section 452, and the evil it is intended to prohibit, is not served by respondent’s position.

Here, the trial evidence established that appellant recklessly set two separate fires in close proximity in the kitchen of the same building. The record is vague regarding how much time passed when the second fire began. Both fires caused relatively minor damage to the structure. Based on this record, only a single violation of section 452 occurred because appellant recklessly caused fire to one structure.[3] Accordingly, appellant must be resentenced.

DISPOSITION

Appellant’s sentence is vacated and the matter is remanded to the trial court for further proceedings. The trial court must select and vacate one of appellant’s convictions in accordance with this opinion. Appellant must be resentenced based on a single violation of section 452, subdivision (c). The judgment is otherwise affirmed.

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BLACK, J.*

WE CONCUR:

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DETJEN, Acting P.J.

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SMITH, J.