Filed 9/26/17 P. v. Thomas CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Gregg L. Prickett, Judge. Affirmed.

Susan L. Ferguson, 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 Alan L. Amann, Deputy Attorneys General, for Plaintiff and Respondent.

A jury convicted Trisha Thomas of three counts of arson (Pen. Code, § 451, subd. (d), and one count of vandalism (Pen. Code, § 594, subds. (a), (b)). The court suspended imposition of sentence and placed Thomas on probation for five years.

Thomas asserts the prosecutor committed misconduct during closing argument by misstating the law on necessity, and by mentioning possible punishment.

We conclude the challenged arguments were not prosecutorial misconduct, and were harmless in any event. Therefore, we affirm the judgment.

FACTS

1. Prosecution Case

In 2015, Thomas was homeless. In late April, a relative rented a storage unit for her at Smart Stop Self-Storage in Santa Ana. Smart Stop’s property hours were 6:00 a.m. to 10:00 p.m., and there was no access permitted outside of the designated property hours. Smart Stop’s office hours were from 9:30 a.m. to 6:00 p.m. If renters wanted to access their unit after office hours, they used a gate with an access code.

Thomas used her storage unit for overnight shelter during the spring and summer, which was against Smart Stop’s policy. In June, Elvia Morales, the manager, and Laura Ortega, the assistant manager, locked Thomas out of her unit and suspended her gate access code. Her privileges were later restored, and they reminded Thomas of Smart Stop’s property hours, and the prohibition against spending the night.

On the morning of June 26, Ortega discovered damage to the outside of Thomas’s unit and the one next to it. Further investigation revealed more damage inside. Someone had torn down the interior wall separating the units and placed some of Thomas’s belongings in the other unit. Ortega locked both storage units and suspended Thomas’s gate access code again.

That night, the temperature dropped to about 67 degrees. Around midnight, Thomas, clad in a bathing suit, shorts, and a tank top, used another renter’s gate code to access the Smart Stop facility.

Once inside the Smart Stop facility, Thomas grabbed a crowbar from an unlocked landscaping truck parked nearby, and she used the crowbar to attempt to get into both storage units. Thomas damaged the door handles and locking mechanisms of both units, but could not get inside either unit.

Thomas left the Smart Stop facility and walked into an adjacent alley. She used a butane lighter to set fire to some cardboard boxes next to a dumpster. While the boxes were burning, Thomas heard a bang, like a gunshot, coming from the boxes. After the fire died out, she saw paint cans inside.

Thomas next walked into the parking lot of a nearby church. Again, using a butane lighter, Thomas ignited some wood inside a 10- or 15-gallon plastic bucket. The plastic bucket caught fire, but the fire burned itself out in about 10 minutes. Later, a man led her to a car dealership and she slept in the back of an unlocked car that night.

Around 8:30 the following morning, Thomas went to visit her mother, Yvonne Hatch, at Hatch’s mobilehome in Santa Ana. Thomas told Hatch she had been locked out of her storage unit and needed a coat. However, their conversation quickly ended in a loud and heated argument, so she left.

After the argument, Janet Jones, a neighbor, saw Thomas outside her mother’s mobilehome, and heard Thomas curse her mother as she left. Jones said Thomas looked around before she walked toward the rear of a nearby vacant lot.

Moments later, witnesses noticed a fire in the vacant lot. When Santa Ana Police Officer Chris Donahue arrived, the flames of the fire were “probably 10 to 15 feet over the top of the roofs” of the two mobilehomes closest to it, which included Hatch’s.

After hearing what Hatch and her neighbor reported, Donahue contacted Ortega and Morales at the Smart Stop storage facility. They showed him the interior and exterior damage to the two units, and the remnants of the fires Thomas set in the alley behind the units and in the church parking lot. While they talked, Donahue saw Thomas standing outside the Smart Stop facility.

Donahue approached Thomas and asked her a few questions. Thomas told Donahue she used a crowbar in an attempt to pry open both storage units because she “didn’t believe she should be allowed to be locked out.” She also admitted tearing down the dividing wall of the two units because she thought she deserved more space for the money. She referred to her storage unit as her “apartment.”

2. Thomas’s Statement

Donahue arrested Thomas and advised her of her Miranda (Miranda v. Arizona (1966) 384 U.S. 436) rights. In her post-Miranda statement, Thomas admitted setting the fires in the alley and the parking lot, but said she did it to keep warm. Thomas explained how she used a butane lighter to set both fires, and Donahue found a butane lighter in her purse. Thomas also admitted trying to pry open the storage units, and said she knew she did not have permission to set the fires, or pry open the storage units.

Thomas initially denied being in the vacant lot where the mobilehome park fire started. However, after Donahue told her there was a witness, she admitted she had been in the vacant lot, but she denied starting the fire. She told Donahue she had walked into the vacant lot to “dumpster dive,” or look for discarded items.

3. Expert Testimony

William Lackey, a Santa Ana Fire Department investigator, examined the remnants of the three fires to determine how they had started. He concluded none of the fires could have been started accidentally. It had been 67 degrees at 10:00 p.m. the night before with high humidity throughout the following day. In Lackey’s opinion, all three fires had been started with an open flame, like that produced by a butane lighter.

Lackey also talked to Thomas. Thomas told Lackey she left the mobilehome park before the fire in the vacant lot started, and she had noticed the smoke while she waited at a bus stop. However, Thomas also told Lackey the fire in the vacant lot had quickly “fizzled out.”

Thomas told Lackey she lit the alley and parking lot fires to keep warm, although she had never set a “warming fire” before. She usually stayed at a friend’s house when the weather turned cold. In fact, she admitted one of her friends had invited her to stay the night with them because it was cold, but she declined the offer.

In Lackey’s opinion, the fires were inconsistent with so-called “warming fires” because such fires are typically built with long-lasting fuel and set in areas away from other objects. By contrast, the alley fire consisted of cardboard items and paint cans, and it was placed next to a dumpster. The parking lot fire was set next to flammable vegetation. Moreover, both of these fires lasted mere minutes.

Lackey did not believe Thomas started the alley and parking lot fires to stay warm.

4. Thomas’s Trial Testimony

At trial Thomas testified she was cold when she returned to her storage unit after hours, and all she wanted to do was change into warm clothes. She set the alley and parking lot fires to stay warm. Later, someone let her stay in their car for the night.

The next morning, Thomas decided to visit her mother, but an argument started and she left. She saw a pile of debris at the rear of the vacant lot. She walked over to the pile to see if she could salvage anything, but she found nothing and left the mobilehome park.

Thomas testified she was waiting at a nearby bus stop when she saw a plume of black smoke emanating from the fire in the vacant lot at the mobilehome park.

Thomas admitted she could have spent the night of June 26 with her mother, but she did not feel welcome there. Although she had previously stayed with her ex-husband on occasion, his home was about an hour’s bus ride away and the buses were not running. She did not go to the Armory homeless shelter that night because it closed at 5:30 p.m.

5. Argument, Instructions, and Jury Question

Defense counsel did not contest the vandalism count. With respect to the arson charges, counsel argued Thomas had not set the vacant lot fire (count 1), and she only set alley and parking lot fires (counts 2 & 3) out of necessity.

The court gave an instruction on arson (CALCRIM No. 1515). As to counts 2 and 3, the court also gave instructions on the lesser offense of unlawfully causing a fire (CALCRIM No. 1532) and necessity defense (CALCRIM No. 3403).

During deliberations, the jury asked for clarification of the term “malicious” in the arson instruction The court responded: “Someone acts maliciously when she intentionally does a wrongful act or when she acts with the intent to defraud, annoy, or injure someone else.”

DISCUSSION

1. Prosecutorial Misconduct

a. Forfeiture

Thomas objects to four instances of purported prosecutorial misconduct during closing argument. The Attorney General first asserts Thomas forfeited her prosecutorial misconduct claims by failing to object to the allegedly improper statements at trial. We agree with the Attorney General.

“‘As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion—and on the same ground—the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety. [Citation.]’ [Citation.]” (People v. Hill (1998) 17 Cal.4th 800, 820 (Hill).) Here, defense counsel did neither.

A defendant may be excused from a failure to object and request for a curative admonition if (1) such an objection and request would have been futile, (2) an objection was made without opportunity to request a curative admonition, or (3) a timely admonition would not have cured the harm. (Hill, supra, 17 Cal.4th at p. 820.)

None of these circumstances is present here. As will be explained, a timely objection and admonition would have cured any harm from the objectionable statements. Nevertheless, we address the merits of defendant’s arguments to address her alternative claim she received the ineffective assistance of counsel.

b. Applicable Legal Principles

Under federal law, prosecutorial error is reversible only if it “infects the trial with such unfairness as to make the conviction a denial of due process.” (People v. Morales (2001) 25 Cal.4th 34, 44.) Under state law “prosecutorial misconduct . . . involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury.” (Ibid.)

A defendant challenging a prosecutor’s remarks to the jury must show that, “‘n the context of the whole argument and the instructions’ [citation], there was ‘a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner. [Citations.] In conducting this inquiry, we “do not lightly infer” the jury drew the most damaging rather than the least damaging meaning from the prosecutor’s statements. [Citation.]’ [Citations.]” ([i]People v. Centeno (2014) 60 Cal.4th 659, 667.)

We are required to review prosecutorial misconduct claims in the context of the argument as a whole. (People v. Dennis (1998) 17 Cal.4th 468, 522.) We “presume the jurors treated ‘the prosecutor’s comments as words spoken by an advocate in an attempt to persuade.’” (People v. Cole (2004) 33 Cal.4th 1158, 1204.) “When the issue ‘focuses on comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.’ [Citations.] Moreover, prosecutors ‘have wide latitude to discuss and draw inferences from the evidence at trial,’ and whether ‘the inferences the prosecutor draws are reasonable is for the jury to decide.’ [Citation.]” (Id. at pp. 1202-1203.)

c. Purported Improper Misstatements of Law

Thomas asserted the necessity defense to the alley and parking lot fires. She argued the circumstances forced her to set those fires to stay warm.

The prosecutor conceded the night was chilly, but argued the weather was not freezing, and at most Thomas would have suffered sleep deprivation and discomfort. Thus, Thomas was not in danger of suffering “a significant bodily harm or evil.”[1]

Regarding the no adequate legal alternative element of the necessity defense, the prosecutor argued, “She had choices. She told you she was savvy enough. She knows where the vacant lots are. She can look, see, she stayed in them before.” The prosecutor mentioned Thomas’s ex-husband, mother, and homeless shelters as options.

The prosecutor also said Thomas, “knew where the landscape truck was. She told you it wasn’t locked. She could have easily, had she chosen, gone into the unlocked car, the landscape car, stayed the night there, but she didn’t.”

Finally, the prosecutor argued there was no emergency, and Thomas contributed to her condition. She said, “Well, what’s the emergency here? Arguable? She was locked out of her storage unit, so, she couldn’t get her clothes, couldn’t get a sweater to keep her warm overnight. Did the defendant contribute to that? It was her actions. She’s living there when she’s not supposed to. She tore down the wall and got caught. That’s what terminated her access. Did she contribute to that? Absolutely.”

Thomas maintains the prosecutor’s legal alternative arguments misstated the law. Specifically, she asserts the landscape truck argument was improper because sleeping there would have required trespassing. But, taken in the context of the whole argument about the legal alternatives available to Thomas, the prosecutor’s one brief reference to an alternative which might not have been legal was not misconduct.

Next, citing In re Eichorn (1998) 69 Cal.App.4th 382 (Eichorn), Thomas maintains the prosecutor’s legal alternative arguments misstated the law because her homelessness and lack of money forced her to set fires. But, Eichorn is inapposite.

In Eichorn, the defendant was charged with a misdemeanor violation of a city ban on sleeping in designated public places. The Eichorn trial court ruled the defendant could not present a necessity defense, even though he had proffered substantial evidence showing his homelessness was due to his inability to afford to pay for housing and the lack of available beds in the city’s homeless shelters on the night of the violation. (Eichorn, supra, 69 Cal.App.4th at pp. 385-387, 390.) On appeal, after he was convicted, this court ruled the trial court had erred, because the defendant’s offer of proof was sufficient to require the court to instruct on the necessity defense. (Id. at p. 390.)

Eichorn does not stand for the general proposition homelessness or a need for money constitute a legal necessity justifying arson when other legal alternatives are available. So Eichorn has no bearing on the prosecutor’s legal alternative arguments.

In sum, Thomas had the burden to show she had no adequate legal alternative to setting the alley and parking lot fires, and that she did not contribute to her situation. The prosecutor’s arguments referred to Thomas’s decisions, not her homelessness, as the reason for the fires. When viewed in this context, the prosecutor’s comments on these topics and the availability of legal alternatives were fair argument.

Moreover, the defendant bears the burden of demonstrating the lack of legal alternatives, either before or during the event, to avoid violating the law. (United States v. Singleton (6th Cir. 1990) 902 F.2d 471, 473.) This Thomas failed to do.

d. Purported Improper Reference to Sentencing

At the conclusion of the prosecutor’s rebuttal argument, she said, “I have to prove that the defendant set fire or burned the property. I have to prove that she did it intentionally. Those are the only two elements. The why, I was cold, that’s up to the judge. You have to do your job to return verdicts of guilty so the judge can do his job and appropriately sentence her if he deems it appropriate in this case. [¶] Don’t mix the two because they’re two completely separate. You’re fact-finders. Even if you don’t like it, even if you don’t think it’s a big deal, that’s up to the judge. He can’t do his job until you do yours.”[2] (Italics added.)

Thomas asserts the prosecutor’s reference to sentencing constitutes an improper reference to punishment. She relies primarily on Sechrest v. Ignacio (9th. Cir. 2008) 549 F.3d 789 (Sechrest), but Sechrest is distinguishable.

In Sechrest, a federal habeas case, the appellate court reversed a death sentence because the prosecutor repeatedly made false and inflammatory statements that suggested a state board of pardon commissioners could release the petitioner from prison if the jury did not return a verdict imposing the death penalty, and that any punishment less than death would result in the defendant’s eventual release. (Sechrest, supra, 549 F.3d at pp. 809-810.)

Here, the prosecutor’s single reference to the fact that the judge will determine the sentence in no way resembles the conduct of the prosecutor in Sechrest. This was a perfectly proper reference to the differences between the duties of the judge and jury, not an argument that any sentence less than the maximum would not do.

Again, there was no prosecutorial misconduct.

2. Harmless Error

Even assuming the prosecutor had committed misconduct, there was no prejudice. When a prosecutor’s argument deviates from the jury instructions, an appellate court will ordinarily conclude the jury followed the instructions and not the argument. (People v. Osband (1996) 13 Cal.4th 622, 717.) This is because “n the absence of any evidence of confusion on the part of the jury, ‘[j]urors are presumed able to understand and correlate instructions and are further presumed to have followed the court’s instructions.’ [Citations.]” ([i]People v. Forrest (2017) 7 Cal.App.5th 1074, 1083.)

The court here gave an instruction on the necessity defense and admonished the jury to “follow the law as I explain it to you, even if you disagree with it.” The court also explained the arguments and comments of the attorneys, if in conflict with the court’s instructions, were to be disregarded. (CALCRIM No. 200.)

With respect to the prosecutor’s reference to sentencing, the court twice advised the jury to reach a decision “without any consideration of punishment.” The first mention of this prohibition had been made during pretrial instructions before the presentation of evidence. The second, directly after the arguments of counsel.

Although Thomas relies on the jury’s request for a definition of malice as evidence the jury failed to consider her necessity defense, there is a more reasonable explanation. Malice is an element of arson, but not the lesser included offense of unlawfully causing a fire the jury considered. In any event, Thomas points to nothing in the record to substantiate her suspicion, and we see no reason to conclude otherwise.

Moreover, the evidence offered to support Thomas’s necessity defense was not compelling. The weather was cool, but not freezing, and she had no excuse for failing to find clothing and shelter earlier in the day. In addition, Thomas admitted she had places to stay, but she did not want to use them. In our view, Thomas’s unauthorized entry and earlier vandalism of her storage unit and the one next to it suggest anger and frustration were the motive for the parking lot and alley fires, not necessity.

On balance, the few instances of purported prosecutorial misconduct were isolated and fleeting. A timely objection and request for admonition would have cured any harm. Given the strength of the prosecution’s case against Thomas, and the relative weakness of her necessity defense, there is no reasonable probability defendant would have obtained a more favorable result absent the alleged misconduct. (People v. Sandoval (1992) 4 Cal.4th 155, 194; People v. Watson (1956) 46 Cal.2d 818, 836 [applying the Watson standard to a claim of prosecutorial misconduct in arguments].)

DISPOSITION

The judgment is affirmed.

THOMPSON, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

ARONSON, J.