Filed 11/9/18 P. v. Hollis CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Blaine K. Bowman, Judge. Affirmed.

Raymond Mark DiGuiseppe, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Collette C. Cavalier, Deputy Attorneys General, for Plaintiff and Respondent.

INTRODUCTION

A jury convicted Andrew Hollis of first degree murder (Pen. Code, § 187, subd. (a))[1] and found true a special circumstance allegation that he committed the murder of his wife (D.H.) while committing the felony arson (§§ 190.2, subd. (a)(17)(H), 451, subd. (b)). The court sentenced Hollis to life without the possibility of parole.

Hollis contends his conviction should be reversed because the trial court failed to instruct the jury regarding second degree murder. Even if the court did so err, the jury's true finding on the special circumstance allegation that Hollis committed arson with an intent to kill renders any error harmless. He cannot show a different result was reasonably probable because the true special circumstance finding necessarily means Hollis committed felony murder rather than a lesser form of homicide. We, therefore, affirm the judgment.

BACKGROUND

A

D.H. and Hollis were married for over 20 years. The relationship was volatile and they argued. Arguments would erupt about money or sex. The arguments escalated when Hollis was not working. D.H. was not happy in the marriage. D.H. threatened to leave and to take everything including the mobile home and the vehicle. Hollis would respond saying, "No, you're not going to take my [mobile home]. This is mine. I will burn this motherfucker down."

C.G., one of D.H.'s sons, lived with D.H. and Hollis for over a year. After Hollis stopped working in December 2014, Hollis spent his days drinking beer, watching television, calling his family, and browsing the Internet.

D.H. spent her days shopping or going to a family member's house. She slept in the master bedroom while Hollis slept in the living room. C.G. slept in one of the other rooms. D.H. kept the door to her room locked if she was there. There was only one entrance to the master bedroom.

In the evenings, between 5:00 p.m. and 7:00 p.m., Hollis would be on the futon drinking and watching television or working on the computer. D.H. watched television in her room. C.G. slept or played video games in his room.

D.H. was involved in an automobile accident a few months before the fire and she had to use a walker. C.G. helped with D.H.'s medical care as she recovered. C.G. had a medical power of attorney for D.H. After the accident D.H. was not able to get into the bathtub in the master bedroom easily because there was a high step. She would wash using the sink.

B

Hollis, D.H., and C.G. had an argument on Friday night, February 20, 2015, after Hollis received a subpoena notifying him to appear at a court hearing because he owed money to a bank. D.H. and Hollis argued about where the money went. C.G. became involved when D.H. said something C.G. considered rude to Hollis. D.H. was upset that C.G. appeared to be defending Hollis. D.H. and C.G. then exchanged words. C.G. owed Hollis money. Hollis loaned C.G. money for medical expenses. C.G. moved out the following morning, leaving behind the remote control to the community gate as well as the keys for the mobile home and mailbox.[2]

C.G. moved back in with his ex-wife on Saturday morning, February 21, 2015. D.H. called C.G.'s ex-wife Saturday morning because D.H. was concerned about C.G. and wanted to make sure he was there safely.

On Sunday morning, February 22, 2015, D.H. called her daughter. D.H. said she was trying to reach C.G. because they had a fight. D.H. wanted to tell C.G. she loved him and understood why he moved out. D.H. said she planned to move out too.

C.G. spent Sunday with his son. They went shopping together. When they came home, they visited with other family members, watched television, or played video games. C.G. stayed at his ex-wife's home all evening, only stepping outside briefly to smoke.

C

On Sunday, February 22, 2015, at approximately 6:15 p.m., a neighbor, P.D., heard loud banging noises. When he went outside, he saw smoke coming from Hollis's mobile home. P.D. saw Hollis sitting hunched over on the bumper of his vehicle in the carport, coughing and gasping. Hollis was not calling 911, yelling "fire," or yelling for help. When P.D. asked Hollis where D.H. was, Hollis said C.G. lit the mobile home on fire. Hollis said D.H. was out. P.D. asked Hollis six to 10 times where D.H. was. P.D. called 911 to report the fire.

During the 911 call, P.D. asked Hollis again if D.H. was still in the mobile home. Hollis said, "She's in there." P.D. thought Hollis's demeanor was strange. Hollis was not very responsive and did not seem concerned about whether D.H. was out.

The neighbors across the street from the Hollis residence saw the flames. They came out and tried to fight the fire with garden hoses. Hollis seemed dazed and confused. He stood "zombie-like." When neighbors asked him if D.H. was still inside, Hollis did not respond. Eventually, Hollis said C.G. started the fire.

One of these neighbors later saw Hollis sitting on the bumper of the vehicle in Hollis's carport. That neighbor noticed Hollis had burns on his face. If someone had yelled "fire," the neighbors would have heard because the walls in the mobile homes are very thin.

F.W., who lived nearby, noticed a glow and flames when he went to his trash can. He told his roommate there was a fire and ran to the Hollis's mobile home to help anyone who was inside. F.W. saw Hollis standing in the back of the driveway, near the fire, staring. Hollis did not say anything. F.W. grabbed Hollis by the shoulders and asked where D.H. was. Hollis said, "Sitting at the table." F.W. did not smell alcohol on Hollis.

F.W. brought Hollis out into the street where F.W.'s roommate was standing. F.W. shoved Hollis toward the roommate and said, "Watch him." Hollis wanted to get away and eventually bolted back to the carport. Hollis appeared jumpy, but he did not yell for help or ask anyone to save D.H.

F.W. tried to get into the mobile home to find D.H., but when he opened the door thick black smoke hit his face and knocked him backward. F.W. then saw firefighters arrive. Neighbors did not see any cars or people fleeing the scene.

P.R., a neighborhood friend of D.H., walked to Hollis's mobile home to find out what was going on after P.R. saw fire trucks and police vehicles pass her own home. P.R. found Hollis's mobile home engulfed in flames.

P.R. saw Hollis standing next to P.D. Hollis could not stand well. P.R. thought Hollis was drunk. P.R. noticed Hollis had a big pink burn mark and he was holding his hands together. Hollis said C.G. was in the mobile home with D.H. and C.G. lit the fire. P.R. told police officers she thought Hollis set the fire based on his injuries.

P.R. testified D.H. was not happy in her marriage and was seeking a divorce. P.R. did not believe C.G. lit the fire because D.H. had a close and loving relationship with C.G.

D

1

The first police officer to arrive on scene saw flames and smoke coming out of the mobile home. Hollis and P.D. were standing by a gate near the carport. P.D. was yelling and said D.H. and C.G. may be in the mobile home. Hollis stood there, leaning on the fence. Hollis may have mumbled, but he did not say anything. Hollis's head was hanging down and he appeared nonresponsive. The officer never saw Hollis go into the mobile home.

The officer initially did not see injuries on Hollis. He thought Hollis had cobwebs on his face, but later noticed Hollis's skin was peeling and there were injuries on Hollis's forehead.

The officer entered the mobile home. There was smoke at the doorway. The officer went through the kitchen and as far back as the hallway to get to the back of the mobile home, but he was met with a wall of intense flames. The officer ran out and around the mobile home to the back window. He could not find a way to enter from the back because the flames started coming out of the wall and the wall started disintegrating.

Another officer saw Hollis walking towards the mobile home. Hollis had skin peeling off his forehead and arm. Hollis appeared animated and tried to get back into the mobile home. The officer directed Hollis back across the street. Hollis said C.G. set the fire. Hollis said D.H. was in the mobile home, but he did not know if she got out. The second officer spent about 20 minutes with Hollis. He did not smell alcohol on Hollis.

2

When firefighters arrived, they were told someone was inside. As one firefighter approached the carport area, a man was coming out from between the gate and the car. The man was walking with his hands out to his sides, which the firefighter thought was indicative of a burn. When the firefighter asked if anyone was inside, the man said, "Yeah. They are still inside." The man was not frantic. The firefighter directed the man across the street. The man did not ask the firefighter to find his wife.

Inside, fire conditions were extreme throughout the mobile home. The firefighters crawled in on their bellies. After about 10 seconds, they had to back out because they were getting burned even with their protective gear. They knocked down the fire from the outside and tried to protect surrounding structures since it was unsustainable for firefighters to be in the mobile home. They performed an exterior firefight for 20 to 30 minutes with approximately 40 firefighters before they were able to attempt to go back into the mobile home.

When the main body of the fire was extinguished enough to try another interior attack, three firefighters went in again and attempted to search. However, the fire was still intense. When the floor became spongy indicating it was going to collapse, they had to back out.

After the fire was under control, firefighters were able to search the mobile home. D.H. was found dead, submerged in the bathtub in the master bathroom with the shower running. D.H. suffered thermal burns and had soot covering her body, nose, and mouth. She died from thermal injuries and inhalation of carbon monoxide.

A paramedic saw burns on Hollis's face and right hand. Hollis said C.G. poured accelerant on him and lit the fire. Hollis said he tried to go back into the mobile home at some point. The paramedic thought Hollis was in shock. Hollis said he had been drinking.

3

A fire investigator arrived to investigate as the fire was being extinguished. The investigator learned Hollis was transported to the hospital with burns to his right hand and face. The investigator thought the location of Hollis's injuries indicated flash burns, which can occur when a flammable vapor or flammable liquid is set on fire. Flash burns are usually on the hand and face. The investigator felt this could be arson and possible homicide based on the amount of damage to the wall between the living room and the bedroom and Hollis's injuries. The investigator sought assistance from the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) to investigate the possible arson homicide.

A jacket was located on the stairs. Empty charcoal lighter fluid bottles were found in the backyard and at the base of the stairs. Another full bottle of charcoal lighter fluid was found inside the vehicle parked in the carport.

Family members stated it was unusual to have empty bottles of charcoal lighter fluid at the bottom of the stairs because nothing in the mobile home required use of charcoal lighter fluid. DNA from Hollis was found on the cap of one bottle. C.G. was excluded as a possible contributor.

4

A certified fire investigator with the ATF determined the fire started on the upper north wall of the living room above the entertainment center. The ATF investigator eliminated an electrical cause for the fire as well as causes such as a candle or discarded smoking material. The ATF investigator determined the cause of the fire was arson with some sort of incendiary object such as a lighter, match, or torch along with an accelerant. The ATF investigator opined a lighter or a match was used to ignite an ignitable liquid along the north wall of the living room.

If the fire started near the entertainment center, the master bedroom door would have been blocked by flames. The master bedroom door was consumed in the fire.

The T-shirt Hollis was wearing tested positive for an ignitable liquid known as a heavy n-alkane or a normal alkane. Hollis's jacket tested positive for a heavy normal alkane product as well as medium petroleum distillate, which is also an ignitable liquid. Some debris samples collected from the carpeting on the floor of the living room and hallway in front of the master bedroom tested positive for normal alkane.

Several bottles of charcoal lighter fluid were found around the house and in the vehicle parked in the carport, which tested positive for medium petroleum distillate. One of the bottles had a label from the local market.[3] Lighter fluid is typically a medium petroleum distillate. Heavy normal alkane is typically found in candle oil, copier toner, or carbonless forms. Ignitable liquids can have dozens or hundreds of components. With evaporation, there can be a loss of the lighter components and a skewing toward heavier components.

Hollis said he last used charcoal lighter fluid a year before the fire. The ATF investigator conducted an experiment and determined charcoal lighter fluid is not detectable after 12 hours.

Hollis's injuries were consistent with flash burns. They were not consistent with his story that he held the jacket up as he went to the bedroom door to try to save D.H. The jacket would have been burned in such a scenario, which it was not.

E

D.H.'s daughter and C.G.'s family learned about the fire and D.H.'s death the following morning after seeing a report on the local television news. C.G. thought Hollis had done it because Hollis had threatened to burn the mobile home down more than 10 times. C.G. called the police because the news reported C.G. may have been in the fire. On the way to the mobile home, police officers stopped C.G.'s family. C.G. and his family cooperated with police officers.

C.G. said he was with his family and his ex-wife at her residence at the time of the fire the night before and only learned about the fire that morning. Other family members confirmed his whereabouts. Cellular phone records confirmed C.G. was with his family at his ex-wife's home on Sunday evening. Officers ruled out C.G. as a suspect because there was no evidence to place him at the fire. He did not have access to the mobile home the night of the fire because C.G. left behind the keys and the gate access remote control.

C.G. was very sad. He could not forgive himself for leaving. He felt he could have helped D.H. if he had been there.

F

1

Detectives interviewed Hollis in the hospital on the night of February 22, 2015. Hollis was calm, alert, and coherent. He did not appear emotionally distraught.

Hollis's statements about the fire were inconsistent. Hollis initially said he was asleep in the living room and awoke to a fire coming from the back of the mobile home. He said he started to go to the bedroom to see if D.H. was there, but there were heavy flames coming out of D.H.'s bedroom and he could not get to the door. So, he left the mobile home. Hollis then said he awoke to flames and smoke and jumped up yelling, "fire, fire." He said he could not get D.H.'s bedroom door open. Hollis described the flames in the kitchen and in the bedroom, but the bedroom door was closed. Later, he said he woke up to flames in the living room. Hollis's statements were inconsistent about whether he could reach the bedroom door, whether he tried to open the door to the bedroom, or whether he knocked on the door. Hollis said the fire department was already there when he got outside.

Hollis had burns on his right hand and face, but he said he did not know how he was burned. He said he fought his way back toward D.H.'s bedroom. At one point, Hollis claimed a gust of flames hit him in the face and hand as he tried to put the fire out with his jacket and tried to get D.H. out. He also said he was burned in the kitchen area where there were heavy flames coming from the kitchen or from D.H.'s bedroom, but he said there were no flames in the living room where he slept. Later, he said he was burning when he awoke in the living room.

Hollis said D.H. was handicapped and used a walker, but she could walk by herself. Hollis thought D.H. was in the bedroom sleeping and asked detectives, "Was she there?" He then said, "She wasn't—she wasn't in the bedroom?" He later asked if D.H. made it out of the mobile home or if she got "burnt up."

When the officers mentioned lighter fluid bottles were found around the mobile home, Hollis said he never uses lighter fluid. Hollis said he thought he was deliberately burned or sabotaged. He thought C.G. set the fire to burn Hollis. Hollis told detectives C.G. had been living in the mobile home for a while but moved out after an argument the day before the fire started.

2

The following day, on February 23, 2015, Hollis spoke to detectives again. Hollis had burns on the top of his right hand and a burn on his left index finger. He also had burns on his forehead, ears, and nose. Hollis was cooperative, but unemotional. He now knew D.H. had not survived the fire.[4]

Hollis showed emotion when they talked about financial matters or the family, but not when speaking about D.H. However, when asked how he felt about D.H. passing away in the fire he said, "That's my second wife." He then said it made his heart hurt because his first wife died of cancer and she waited until he got home from the service to die in his arms. He continued, "This one, I don't know how she died or whatever it was, only thing I know about piece—piece of what's her name, that her son said. She was in the bathroom hiding."

When he was asked how the fire started, Hollis was not able to give a consistent or direct answer. He also gave inconsistent answers about how he was burned. Hollis said he was asleep on a futon in the living room when something woke him up. He said he saw fire on the back wall coming from the master bedroom and he jumped up and said, "fire, fire, fire." When asked if he checked to see if the master bedroom door was locked, he said he tried, but a fireman told him to get out of there. He said the firemen were there right away.

Then Hollis said he went out of the mobile home first and came back into the mobile home to check the door, but the smoke was too thick. Later, he said he got to D.H.'s bedroom door when he went back in and tried to open the door when fire hit him in the face. He said he asked the fire personnel to get D.H. out.

In another description, Hollis said he woke up when he heard crackling. He said the fire and smoke were coming from D.H.'s bedroom. He said he called "fire, fire," and went outside. He said he left the mobile home but reentered later to check the bedroom door. He said he knocked on the door and tried to open the door, but it would not open. He said he was hit by the fire in the face. He said a fireman told him to get out of the mobile home.

Hollis said he was married to D.H. for almost 23 years. He said the relationship became rocky when C.G. moved in. Hollis thought C.G. set the fire. He said C.G. suffered from depression and made suicide attempts. Hollis said there was an argument on Friday afternoon, February 20, 2015, and C.G. moved out the next morning. The fire started on Sunday, the day after C.G. moved out. Hollis also said he thought D.H. might have participated in setting the fire.

Hollis said he drank beer and watched television most of the day on Sunday, February 22, 2015. He thought he drank six beers. Hollis said he locked the doors after C.G. moved out because he did not trust C.G.

Hollis said he planned to visit his mother who lives out of state, but denied he was separated from D.H. He did not believe in divorce.

When asked what should happen to the person who set the fire, Hollis said the person should spend a couple of years in jail. Hollis mentioned his own son set a mobile home on fire and served two years. Hollis denied he set the fire.

3

D.H.'s daughter saw Hollis at the hospital on February 24, 2015. Hollis told D.H.'s daughter he was sleeping and when he woke up there was a fire in D.H.'s bedroom, but the door was locked. Hollis said he tried to save D.H. D.H.'s daughter thought Hollis's injuries on his face and hands were not consistent with him trying to save someone; she expected him to have burns everywhere.

Hollis said he had life insurance for D.H. and he planned to bury her in Canada and invest in a home. This made no sense to D.H.'s family. Hollis did not tell the family members C.G. set the fire. The family did not believe C.G. could have set the fire because he loved D.H. and cared for her. C.G. was devastated after D.H. died.

4

A special agent with ATF, interviewed Hollis on April 2, 2015, at the hospital. Hollis said there was fire around the television area all the way to the ceiling when he woke up. He said he could not make it to the back of the mobile home to get D.H. He said he told a fireman D.H. was in the bedroom and the fireman told Hollis to get out of the mobile home because he was injured. The same day, detectives arrested Hollis after he was released from the hospital. They interviewed him at the police station after advising him of his Miranda rights.

Hollis's story about how the fire started changed. He initially said he was not sure how or where the fire started. Then, he said he suspected a family member started it. At one point, he said he woke up with someone standing above him with a lighted substance in their hands. Then he confessed to starting the fire.

The detectives told Hollis they were going to arrest him for arson and murder and this was the last chance to tell the truth. Hollis asked where he would be if he changed his statement. The detectives told him they wanted the truth. Hollis said, "Okay, I set the house on fire." He said he started the fire with one can of charcoal lighter fluid he got from outside the mobile home and a lighter. When asked why five cans were found, Hollis said he only remembered one. When asked why he did it, he said he got angry. Hollis said he set the fire in the living room. He said he poured it on the floor in front of the television.

The detective felt Hollis's answers when he confessed were more direct than they were before. Hollis described a specific location where he used the bottle of charcoal lighter fluid and said he used one bottle.

When detectives told Hollis that D.H.'s children wanted to know what happened, Hollis appeared apathetic. Shortly thereafter, he recanted his statement saying the detectives could tell the family he said he did it, but he did not do it. He then said he did not know how the mobile home caught on fire.

The detectives found significant portions of Hollis's statements inconsistent and unbelievable. Hollis's explanations for how he was injured were not consistent with his documented injuries. He said he was burned when he tried to open the door to D.H.'s bedroom, but only the back of one hand was burned, not the palms of the hands.

The detectives focused their investigation on Hollis because the evidence pointed toward him: there was accelerant on the jacket, empty bottles of charcoal lighter fluid were found around the house, his burns were consistent with flash burns, his statements about the fire changed, and no evidence pointed to another individual.

5

After Hollis was arrested, another neighbor called the police or the district attorney's office to report an incident the neighbor witnessed a couple of weeks before the fire. The neighbor said he was doing yard work when he heard loud voices. Hollis was walking with D.H. and talking in a loud and animated way. D.H. was walking very slowly with her walker, slower than usual. She was looking down at the ground the whole time. Hollis kept repeating, "I've been working for over 30 years. I'm supposed to be enjoying my life. I don't want nothing slowing me down." D.H. did not appear to be herself, which was usually happy, smiling, and looking up and around. She looked depressed or sad.

G

The defense presented evidence Hollis was being treated with narcotic pain medications on February 23, 2015. The nurse who cared for him noted he had a flat affect, meaning he was not interactive or was unemotional. Later, she noted he was tearful when he talked about D.H. and he appeared to be appropriately grieving. The defense also presented testimony from a treating psychiatrist who stated Hollis was worried about D.H. on February 23 and asked how to contact her.

Hollis's blood-alcohol content tested at more than 0.2 percent when he was admitted to the hospital at approximately 7:00 p.m. on February 22, 2015. A toxicology expert stated individuals may have blackouts at levels of alcohol above 0.2 percent. The expert opined 15 or 16 beers over the course of two or three hours could produce a 0.24 percent blood-alcohol level in a male weighing 165 pounds. A functioning alcoholic with a high blood-alcohol content may be able to walk, talk, drive, and answer questions well.

DISCUSSION

I

General Principles

Hollis contends the court should have instructed the jury regarding second degree murder as a lesser included offense. We independently review claims of failure to instruct on a lesser included offense. (People v. Licas (2007) 41 Cal.4th 362, 366.) Although California recognizes a duty to instruct on lesser included offenses, no such duty is recognized under federal constitutional law in noncapital cases. (People v. Gonzalez (2018) 5 Cal.5th 186, 198 (Gonzalez).) Therefore, in addressing a state law error, the defendant "must show that a different result was reasonably probable" absent the error. (Id. at p. 201, citing People v. Watson (1956) 46 Cal.2d 818, 836–837.)

"Murder with malice aforethought results in a second degree murder conviction—assuming all other elements of the offense are proven—where the defendant had an intent to kill or acted with conscious disregard that the natural and probable consequences of the act or actions were dangerous to human life. [Citation.] If the defendant instead had an intent to kill and the killing was also deliberate and premeditated, the jury could convict the defendant of first degree murder. [Citations.] Lesser included offenses of first degree premeditated murder include second degree murder, voluntary manslaughter, and involuntary manslaughter." (Gonzalez, supra, 5 Cal.5th at p. 197.)

Trial courts "must instruct the jury on lesser included offenses of the charged crime if substantial evidence supports the conclusion that the defendant committed the lesser included offense and not the greater offense." (Gonzalez, supra, 5 Cal.5th at p. 196.) "[T]he court need instruct the jury on a lesser included offense only '[w]hen there is substantial evidence that an element of the charged offense is missing, but that the accused is guilty of' the lesser offense.' " (People v. Shockley (2013) 58 Cal.4th 400, 404.) "[T]he existence of 'any evidence, no matter how weak' will not justify instructions on a lesser included offense, but such instructions are required whenever evidence that the defendant is guilty only of the lesser offense is 'substantial enough to merit consideration' by the jury." (People v. Breverman (1998) 19 Cal.4th 142, 162 (Breverman).)

II

A

Background

The accusatory pleading in this case charged Hollis with unlawful murder and further alleged as a special circumstance the murder was committed while he was engaged in committing the crime of arson. In a discussion regarding jury instructions, the court confirmed the prosecutor was proceeding only on a first degree murder charge based on two alternative theories: (1) the murder was willful, premeditated, and deliberate; and (2) the murder was committed during the commission of the felony of arson. Defense counsel did not ask for instruction on lesser included offenses. The court determined it did not have a sua sponte duty to instruct on lesser included offenses given the state of the evidence. The court noted the defense was that Hollis did not start the fire. So, he would either be found guilty of first degree murder or not guilty at all.

Later, the court interrupted its recitation of the jury instructions to discuss whether to include an instruction regarding voluntary intoxication given the evidence that Hollis had a blood-alcohol content over 0.20 percent on the night of the fire. Defense counsel requested the instruction. The court modified pattern jury instruction CALCRIM No. 3426 to instruct the jury it could consider voluntary intoxication for the limited purpose of determining whether Hollis acted with the specific intent necessary for both theories of first degree murder and the special circumstance allegation. Defense counsel did not request an instruction regarding second degree murder.

The court instructed the jury it could consider voluntary intoxication in deciding whether Hollis acted with the required intent or mental state for (1) willful, deliberate and premeditated murder; (2) felony murder with respect to whether Hollis intended to commit arson; and (3) the special circumstance allegation, specifically whether Hollis intended to commit arson and intended to kill D.H.

Defense counsel did not focus on Hollis's intoxication during closing arguments. Defense counsel argued C.G., not Hollis, set the fire. Defense counsel said Hollis had been drinking and awoke to a fire. In defending against an accusation that Hollis lied to police detectives, counsel said memory lapses were not unusual since he had been drinking and was asleep when he woke to the fire.

B

Analysis

Hollis contends the court's failure to instruct regarding second degree murder left the jury with an all-or-nothing choice for first degree murder and left them without an adequate opportunity to consider or apply the voluntary intoxication defense to reduce his liability for D.H.'s death. However, even assuming without deciding the evidence of Hollis's intoxication supported an instruction on second degree murder as mitigating the specific intent required for first degree premeditated murder, Hollis cannot show a different result was reasonably probable given the jury's true finding on the special circumstance allegation.

The jury could have acquitted Hollis if it determined Hollis's intoxication impaired his ability to form the specific intent necessary for first degree murder under either theory or the specific intent necessary for the special circumstance allegation. Additionally, the jury had the option to find Hollis guilty of first degree murder based on deliberation and premeditation without finding true the special circumstance allegation of murder during the commission of arson. (See Gonzalez, supra, 5 Cal.5th at p. 201.) For example, if the jury believed the fire started accidentally or due to Hollis's intoxication, it could have found Hollis guilty of deliberate and premeditated murder based on evidence he knew D.H. was in the mobile home in her room and he chose to let her die in the flames. He ran out of the mobile home and watched it burn while he sat on the bumper of his vehicle or stood in the carport. He did not try to rescue D.H. or call for help. When asked about D.H., he either did not respond or gave different statements about whether D.H. was in the mobile home.

The special circumstance instruction CALCRIM No. 700 required the jury to consider the special circumstance finding only after convicting on first degree murder. Additionally, the special circumstance instructions required the jury to find elements beyond those required for first degree murder under either deliberate and premeditated murder or felony murder. (See Gonzalez, supra, 5 Cal.5th at pp. 192, 201.) Under the premeditated murder theory, the jury only had to find that Hollis acted willfully, deliberately, and with premeditation. (§ 189; CALCRIM No. 521.) Under the felony murder theory, the jury only had to find Hollis committed arson, intended to commit arson, and the arson caused the death of another person. (§ 189; CALCRIM No. 540A.) The instruction for the elements of the special circumstance of murder while engaged in the commission of arson required the jury to find Hollis both intended to commit arson and intended D.H. be killed as a result of the arson.[5] We presume the jury understood and followed the instructions and found both intentions when it found the special circumstance allegation true. (Gonzalez, at p. 202.)

Hollis does not challenge the sufficiency of the evidence for the jury's additional findings of intent to commit arson and intent to kill on the special circumstance allegation. There was substantial evidence, based on Hollis's own statements, that he and D.H. were home alone the evening of the fire and Hollis had locked the doors and windows. C.G. had an alibi with testimony and cell phone records establishing he was with his family at his ex-wife's home at the time the fire started. Neighbors did not see anyone leaving or fleeing the scene. Fire investigators determined the fire started with a flame and an ignitable liquid above the entertainment center in the living room near where Hollis slept. Hollis's jacket tested positive for traces of ignitable material consistent with empty lighter fluid bottles found in and outside the mobile home. There was also evidence Hollis intended to separate from his wife and had financial difficulties.

Contrary to Hollis's contention, whether he had the specific intent necessary for premeditated and deliberate murder is irrelevant to the special circumstance finding so long as it found he intended to commit arson and he intended to kill D.H. during the commission of arson. " 'All murder … which is committed in the perpetration of, or attempt to perpetrate, arson … is murder of the first degree.' (§ 189.) … [T]he mental state required for felony murder is ' "the specific intent to commit the underlying felony" ' [citation], and ' "the evidence must establish that the defendant harbored the felonious intent either prior to or during the commission of the acts which resulted in the victim's death." ' [Citation.] A killing has been 'committed in the perpetration of the [underlying] felony if the killing and the felony are parts of one continuous transaction.' " (People v. Brooks (2017) 3 Cal.5th 1, 64.)

The Supreme Court has stated in similar circumstances, "a true special circumstance finding requires a jury to find that the killing occurred during the commission of a felony. Accordingly, such a finding necessarily demonstrates the jury's determination that the defendant committed felony murder rather than a lesser form of homicide." (Gonzalez, supra, 5 Cal.5th at p. 200.) "Because 'the elements of felony murder and the special circumstance[s] coincide, the true finding[s] as to the … special circumstance[s] establish[] here that the jury would have convicted defendant of first degree murder under a felony-murder theory, at a minimum, regardless of whether more extensive instructions were given on second degree murder.' " (People v. Castaneda (2011) 51 Cal.4th 1292, 1328.) Therefore, the special circumstance finding in this case renders harmless the failure to instruct on lesser included offenses and "the associated prejudice created by an all-or-nothing choice." (Gonzalez, at p. 200.)

DISPOSITION

The judgment is affirmed.

McCONNELL, P. J.

WE CONCUR:

DATO, J.

GUERRERO, J.