P. v. Rupp

Filed 5/4/07 P. v. Rupp CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Shasta)

----

On a 100-degree day in August 2004, defendant William Matthew Rupp rode a power mower to trim weeds on his property in rural Shasta County. The resulting fire destroyed over 10,000 acres and 80 homes.

A jury convicted defendant of unlawfully and recklessly causing a fire of a structure or forest (count 1; Pen. Code,  452, subd. (c))^[1]and of negligently using a lawnmower and causing a fire, a misdemeanor (count 2; Pub. Resources Code,  4435). In a bifurcated proceeding, the trial court found the allegation true as to count 1 that defendant unlawfully and recklessly caused multiple structures to be burned ( 452.1, subd. (a)(4)).^[2] The court sentenced defendant to an aggregate state prison term of four years, consisting of two years (the midterm) on count 1 plus two years (also the midterm) on the enhancement. The record is silent as to the courts disposition of count 2, if any.^[3]

Defendant contends: (1) The trial court prejudicially misinstructed the jury as to the presumption of negligence. (2) The trial court erred reversibly by [g]iving an [i]mpromptu [a]mplification of the [r]easonable [d]oubt [i]nstruction[.] (3) The trial courts imposition of an additional term based on an enhancement not tried to the jury is unconstitutional in light of Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856] (Cunningham). We reject these contentions and affirm the judgment. However, we shall remand the matter to the trial court for resentencing as to count 2.

FACTS

Defendant mowed for hours in the morning and early afternoon of August 11, 2004, a day of extreme fire hazard conditions (106 degrees by mid-afternoon, with six percent humidity and winds gusting up to nine miles per hour), despite his knowledge that he could be cited for mowing in the heat. He also disregarded a passerbys warning that day, two prior warnings from the local fire chief, and extensive media publicity (which he admitted hearing) about the dangers of mowing on hot dry days. As he mowed, the blades repeatedly struck rocks, which can create sparks capable of igniting dry vegetation. Defendant admitted to the California Department of Forestrys fire investigator that the fire started on his property just after he made his last pass with the mower in the early afternoon. The investigator ruled out all other possible causes of the fire and concluded that defendants mower had caused it by striking a rock and creating a spark.

Testifying on his own behalf, defendant admitted mowing, but denied that anyone had warned him against doing so or that he had made inculpatory admissions to anyone. He claimed his mower hit a couple of rocks at most. He thought he could mow safely on the day of the fire despite the heat because the media did not broadcast a red flag warning that day. He did not believe he caused the fire.

DISCUSSION

I

Defendant contends the trial court misinstructed on the presumption of negligence in a manner which probably confused and misled the jury. We conclude that any error could only have benefited defendant.

Section 452, under which defendant was charged in count 1, provides in part: 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.

Recklessly [within the meaning of 452] 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).)

Public Resources Code section 4435, under which defendant was charged in count 2, provides: If any fire originates from the operation or use of any engine, machine, incinerator, railroad rolling stock, chimney, or any other device which may kindle a fire, the occurrence of the fire is prima facie evidence of negligence in the maintenance, operation, or use of such engine, machine, barbecue, incinerator, railroad rolling stock, chimney, or other device. If such fire escapes from the place where it originated and it can be determined which persons negligence caused such fire, such person is guilty of a misdemeanor.

As to count 1, the trial court instructed the jury pursuant to CALCRIM No. 1532 as follows:

The defendant is charged in Count 1 with unlawfully causing a fire. To prove the defendant is guilty of this crime, the [P]eople must prove that, first, the defendant set fire to or burned or caused the burning of a structure or forest land; and second, the defendant did so recklessly.

A person acts recklessly when, first, he or she is aware that his or her actions present a substantial and unjustifiable risk of causing a fire; second, he or she ignores that risk; and third, ignoring the risk is a gross deviation from what a reasonable person would have done in the same situation.

As to count 2, the trial court gave the following special instruction (italics added):

Defendant is charged in Count 2 with causing a fire by negligent operation of equipment in violation of section 4435 of the Public Resource Code, a misdemeanor.

In order to prove this charge, the [P]eople must prove the following elements:
First, a fire originated from the operation of a lawnmower; and second, the fire escaped from a place where it originated; and third, the escape of the fire was a result of the defendants criminal negligence.

The fact that a fire occurred creates a presumption of criminal negligence by the defendant in the maintenance, operation, or use of a lawnmower. This presumption may be rebutted by the defense.

If there is a reasonable doubt that the fire originated and escaped from the operation of the lawnmower, the defendant has rebutted this presumption.

Criminal negligence is defined as conduct which is aggravated, culpable, gross, or reckless. It is such a departure from what would be the conduct of an ordinarily prudent or careful person under the same circumstances as to demonstrate an indifference to consequences.

The trial court also gave CALCRIM No. 253 (Union of Act and Intent: Criminal Negligence) as to this count.^[4]

Defendant asserts: (1) The instructions on count 2 were incorrect because section 4435, a misdemeanor public welfare offense, requires proof only of simple negligence, not criminal negligence. (See People v. Martin (1989) 211 Cal.App.3d 699, 712-714 [public welfare offenses generally]; People v. Southern Pacific Co. (1983) 139 Cal.App.3d 627, 632-634.) (2) The erroneous instruction on count 2 made the standards of proof on both counts substantially similar. (3) Therefore, the jury could have applied the presumption of negligence, including defendants burden to rebut the presumption, to the standard of proof for count 1 as well as count 2. (4) If the jury did so, this would have had the effect of lowering the prosecutions burden of proof on count 1. We are not persuaded.

The instructions on count 1 were correct, as defendant acknowledges. Assuming without deciding that the instructions on count 2 were incorrect, they raised the Peoples burden of proof on that count: they required the jury to find criminal negligence whereas the law required only simple negligence. Absent evidence that the jury was confused about the standard of proof on count 1 or misapplied the instructions on count 2 to count 1, which defendant does not cite, we will not assume any such confusion. On the contrary, we presume the jury understood and followed its instructions. (People v. Adcox (1988) 47 Cal.3d 207, 253.)^[5]

Defendant has not shown grounds for reversal on this issue.

II

Defendant contends the trial court erred prejudicially by amplifying the definition of beyond a reasonable doubt sua sponte in response to defense counsels closing argument. There was no error.

The trial court instructed the jury with CALCRIM No. 103, which defines reasonable doubt as follows: Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt.

While discussing the prosecutions burden of proof, defense counsel raised the analogy of a house sale in which the prosecutor was the seller and the jurors were the buyers. He asked whether they would buy a house with all sorts of known problems (apparently analogous to grounds for reasonable doubt), which, for some reason, could not thereafter be sold: You own it forever. (Italics added.) After developing this theme for seven paragraphs, counsel summed up: Thats kind of my analogy, is you would have -- you would sit there and say, well, I dont know if I want to purchase this house with all these problems, and thats what you are doing here. Thats the same thought process when you begin your deliberations. Because remember, its an abiding conviction. It lasts forever. (Italics added.)

The trial court intervened (italics added):

I am going to interrupt just because this is important. An abiding conviction doesnt mean that you have to be satisfied that you will always, forever, no matter what your life circumstances are, that you will always have that same -- you dont have to be a hundred-percent certain that 50 years from now you are still going to have that same degree of certainty because you are not even going to remember the case. Its an abiding conviction at the time that you decide the case.

You need to listen to the instructions. I dont want you to think, well, this is a burden of proof that requires me to five years from now, 20 years from now have that same knowledge, the same recollection, the same all other details in your mind because we are human. Things pass with time, so that is just not going to happen, and thats not the requirement or the [P]eoples burden, that you have to think that you will always have this same degree of knowledge of the case and recollection of the facts, and so that is not what an abiding conviction is.

It means at the time you form your decision you have to have an abiding conviction, and its not that five, ten, or some distant time or forever I think what [sic] [the prosecutor] said. Thats not the standard, so just to make sure no one is going off on the wrong understanding of the law.

After the verdict, defendant moved for new trial on the theory that the trial courts oral instruction lowered the prosecutions burden of proof to less than beyond a reasonable doubt. Counsel asserted: [A]biding conviction is defined as . . . a conviction of a lasting permanent nature.

The trial court asked: Is it defined as forever? Counsel conceded it is not. The court said: But thats what you said to the jury. And I did not define abiding conviction; I explained what it was not and that it was not forever, and I elaborated on that. [] . . .  [] . . . So Im not a potted plant here; I have a function. . . . Im not here just to sit by passably [sic] while counsel misinstructs the jury. And thats what you said when you said, Remember, abiding conviction is forever. Thats a mistake under the law, and I stepped in, clarified, being afraid that you were going to misdirect the jury and confuse them in their deliberations.

After further discussion, the court denied the motion.

Defendant asserts that the trial court diluted the standard of reasonable doubt by undermining the force of the word abiding in the phrase abiding conviction. He relies on the following: Former CALJIC No. 22 (rev.) has some serious flaws. . . . CALJIC No. 2.90 speaks of an abiding conviction; former CALJIC No. 22 (rev.) speaks only of conviction. The lasting, permanent nature of the conviction connoted by abiding is missing and the juror is not informed as to how strongly and how deeply his conviction must be held. Thus, former CALJIC No. 22 (rev.) may allow a juror to conclude that he or she could return a guilty verdict based on a strong and convincing belief which is something short of having been reasonably persuaded to a near certainty. [Citation.] (People v. Brigham (1979) 25 Cal.3d 283, 290-291 (Brigham); italics added.) We disagree.

Brighams exegesis of abiding as lasting [and] permanent is not found in either CALJIC No. 2.90 or CALCRIM No. 103: neither defines the term. Moreover, the court in Brigham does not define lasting [and] permanent, which it appears to use as a mere rhetorical synonym for strong[] and deep[]. (Brigham, supra, 25 Cal.3d at pp. 290-291.) Thus, to the extent defendant claims the Brigham language is part of the definition of abiding conviction, we are not persuaded.

In any event, defense counsel told the jury something quite different: he said an abiding conviction lasts forever. Even Brigham does not support that claim, which is untenable on its face. The trial court did not err by pointing out that jurors are not expected to hold any convictions forever.

Defendant has not shown grounds for reversal on this issue.

III

We requested supplemental briefing on whether the trial courts imposition of the two-year enhancement for the unlawful and reckless burning of multiple structures ( 452.1, subd. (a)(4)) after a bifurcated proceeding, which doubled defendants two-year midterm sentence on count 1 ( 452, subd. (a)), was unconstitutional in light of Cunningham, supra, 549 U.S. ___ [166 L.Ed.2d 856]. We conclude it was not.

Background

The information charged in count 1 that defendant did unlawfully and recklessly set fire to and burn and cause to be burned a structure and forest land located at JONES VALLEY[,] a felony under section 452, subdivision (c). It also charged under section 452.1, subdivision (a)(4), that defendant did unlawfully and recklessly set fire to and burn and cause to be burned an inhabited structure and inhabited property, a structure, forest land, personal property [sic] with the following aggravating factor: MULTIPLE STRUCTURES BURNED. (Despite this pleading, section 452.1, subdivision (a), calls its additional penalty a one-, two-, or three-year enhancement, not an aggravating factor.)

On the first day of trial, defense counsel moved in a trial brief to bifurcate Count 1 from the sentencing enhancement and have the sentencing enhancement heard by the trial court. At the hearing on the motion, in defendants presence, counsel said defendant was prepared to admit the enhancement in open court should he be convicted on count 1: he did not dispute the fact that multiple structures burned, but only the allegation that he recklessly caused it to happen. The prosecutor, wanting to be able to prove to the jury the amount of damage caused by the fire, refused to accept a waiver of jury trial on the enhancement. The court observed that the enhancement also alleged defendant unlawfully and recklessly set fire to and burn[ed] [etc.], and concluded defendant could not admit it before jury trial without, in effect, admitting guilt on count 1.

After a recess, the trial court denied the motion to bifurcate. The court also ruled, however, that if defendant would stipulate that multiple structures burned, the court would exclude reference to the exact number under Evidence Code section 352, while allowing the People to put on evidence as to the extent of the destruction. Both counsel accepted this proposal and entered into the stipulation on the record; the court accepted the stipulation.

The prosecutor in his opening statement said: [T]hat fire on [defendant]s property . . . ended up destroying numerous buildings and over 10,000 acres before it was finally contained. The People put on evidence to support this assertion through the chief investigators testimony.

During the instructions conference, the trial court noted: [I]f the jury finds that he did, in fact, unlawfully and recklessly set fire, the fire did, its undisputed, burn multiple structures. That stipulation was received, and we proceeded. Defense counsel said: Right.

The court added that the parties [a]greed to bifurcate and proceed [on the enhancement] only if there was a conviction on Count 1. Both counsel agreed.

After the jury returned its verdict, the trial court conducted the bifurcated proceeding on the enhancement. The parties submitted on the evidence received. The trial court found the enhancement true beyond a reasonable doubt.

Analysis

In Cunningham, supra, 549 U.S. ___, ___ [166 L.Ed.2d 856], the United States Supreme Court held that under Californias Determinate Sentencing Law the middle term is the maximum sentence a judge may impose solely on the basis of facts reflected in the jury verdict or admitted by the defendant. (Cunningham, supra, 549 U.S. ___ [166 L.Ed.2d 856, 867], quoting Blakely v. Washington (2004) 542 U.S. 296, 303 [159 L.Ed.2d 403].) Thus an upper-term sentence based on facts found by a judge, other than for the fact of a prior conviction, violates the Sixth Amendment of the United States Constitution. (Ibid.) However, Cunningham does not discuss statutory enhancements to midterm sentences, as here.

In Washington v. Recuenco (2006) 548 U.S. ___ [165 L.Ed.2d 466] (Recuenco), a jury convicted the defendant of second-degree assault and found he was armed with a deadly weapon; the trial court thereafter increased his sentence based on an enhancement for firearm use, a fact the jury had not been asked to find. The Supreme Court held that, although the failure to submit a sentencing factor which could enhance the defendants sentence to the jury was an error of constitutional dimension, it was not reversible-per-se structural error. Rather, it was analogous to instructional error which omits an element of an offense,

therefore potentially harmless. (Id. at pp. ___ [472-477].)

Here, the trial court imposed the middle term on count 1. The court then added a two-year enhancement (also the middle term) based on a fact to which defendant had stipulated before trial. Thus, what occurred here is analogous to Recuenco, supra, 548 U.S. ___ [165 L.Ed.2d 466], rather than to the upper-term sentencing condemned in Cunningham, supra.

The enhancements element of reckless causation, to which defendant had not stipulated, had already been found true beyond a reasonable doubt by the jury as to count 1. Therefore, sentencing on the enhancement, as on count 1 itself, was based solely on facts either found true beyond a reasonable doubt by the jury or admitted by defendant. No facts were found by the trial court, and Cunningham is inapposite.

IV

As noted above, so far as the record shows, the trial court failed to make any disposition of count 2. We must therefore remand the matter to the trial court for resentencing on that count.

DISPOSITION

The judgment is affirmed. The matter is remanded to the trial court with directions to impose sentence on count 2, to prepare a corrected abstract of judgment reflecting that sentence, and to furnish a certified copy thereof to the

Department of Corrections and Rehabilitation.

SIMS , Acting P.J.

We concur:

RAYE , J.

MORRISON , J.

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^[1] Undesignated statutory references are to the Penal Code.

^[2] As we explain further in part III of the Discussion, defendant stipulated before trial that multiple structures were burned, disputing only that he had caused this to happen.

^[3] Defendant notes this fact, but does not request a remedy. The People ignore the point.

^[4] The prosecutor requested this instruction, stating: Count 2 is a negligence standard. Its not . . . general intent according to at least my interpretation of the code. Its kind of a unique statute. Its a criminal negligence standard which brings us to 253 which is the one that talks about criminal negligence. (Italics added.) Defense counsel agreed this instruction should be given.

^[5] Defendant states vaguely that the jury questioned the court on the instructions regarding the felony and general criminal intent. However, as defendant also states, the jury did not question the court about the standards of care applicable to the respective counts.

What the jury actually asked was whether CALCRIM No. 250 (Union of Act and Intent: General Intent) conflicted with CALCRIM No. 1532 (defining the offense charged in count 1). The trial court replied: These two instructions do not conflict and are read together. The intent referred to in instruction 250 is not an intent to cause a fire.