P. v. Mead

Filed 4/17/06 P. v. Mead CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Tehama)

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A jury convicted defendants Esterene Mead and Shawn Robert Mead^[1] of defrauding an insurer, possessing flammable material, and two counts of arson of an inhabited structure. The court sentenced each defendant to three years in state prison.

Defendants appeal in this consolidated action. Together, they contend: (1) the trial court erred in rejecting their proffered expert testimony and (2) there was insufficient evidence to establish insurance coverage to sustain their insurance fraud convictions. Shawn further contends: (1) there was insufficient evidence to establish his knowledge of an insurance policy and (2) the trial court erred by not instructing the jury on such knowledge. Esterene also contends: (1) the trial court failed to inquire into defendants' joint representation when an actual conflict of interest existed and (2) the trial court erred by not using its inherent power to remove her attorney. Finding no error, we affirm.

FACTS

On November 9, 2001, at approximately 8:00 a.m., defendants' neighbors saw Shawn, Esterene's son,^[2] near a motor home outside a gate leading to defendants' residence. A neighbor saw Shawn lock the gate, get into the motor home, and drive away. At approximately 10:00 a.m., a neighbor saw smoke coming from defendants' home and called the fire department. Firefighters responded to the fire shortly thereafter and entered the home. They found an active fire in a hallway linen closet, which they quickly extinguished.

Firefighters described the home as sparsely decorated and lacking household furnishings. While the bedroom belonging to Esterene's daughter, Candice, contained normal bedroom furnishings, the other two bedrooms did not. Although the walls in the living room had hooks for hanging pictures, the walls were bare.

Firefighters noticed burn spots on the carpet in the living room and on the linoleum in the kitchen. These spots indicated no signs of active fire, as they were not burning or smoking, and firefighters did not spray water on them. These spots prompted firefighters to request an arson investigation.

The arson investigator testified about the results of the investigation as an expert for the prosecution. The investigation revealed that there were two separate fires, which could have occurred two days apart. Further, the investigation revealed that the fire in the closet and the fires in the kitchen and living room were intentionally set. The fire in the closet may have smoldered, and could have been set an hour and 45 minutes to two hours before its discovery. At trial, defendants' attorney sought to introduce an expert to offer his opinion as to the duration of the fire based upon the evidence collected in the arson investigation, but the court denied the request.

Investigators obtained a search warrant for defendants' home and the vehicles and structures on their property. They found bills indicating Esterene was past due on her mortgage and a credit card account. They also found receipts from Wal-Mart for the recent purchase of storage containers and garbage cans. In a motor home on the property, investigators found storage containers matching the type on the receipts. They also found several cats in small cages, clothing, food, and a computer. Further, they located receipts for three storage units at a self-storage facility. A search of these units revealed clothing, furniture, and household furnishings in good condition. Some items in the units were contained in storage bins matching the type on the receipts.

Investigators met with Esterene and Shawn shortly after they returned to their home on the evening of November 9, 2001. Shawn told the investigators they removed items from the house because they intended to paint its interior, and the cleaning product he intended to use prior to painting could damage their possessions. Shawn did not explain why they did not remove any of Candice's belongings from the house. He did not mention the storage units or other items stored on their property. He said nothing about singe marks on the kitchen floor, or about a previous fire at the residence.

In a subsequent interview, Shawn disclosed that two days earlier, on the evening of November 7, 2001, he and Esterene arrived home to find their front door open and burn marks in the living room and kitchen. He drew a diagram of the damage done to the house, and put â€