Filed 1/9/18 P. v. Lewis 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
(Mono)
----


THE PEOPLE,

Plaintiff and Respondent,

v.

EVAN JACK LEWIS,

Defendant and Appellant.
C077782

(Super. Ct. No. MFE12008031)



A jury convicted defendant Evan Jack Lewis of vandalism, recklessly causing fire to a structure, two counts of arson of property, and petty theft in connection with a break-in, theft and fires set at Jalapenos restaurant in Mammoth Lakes. Defendant now contends (1) the trial court erred in ruling that a statement by a third party was not admissible under the statement against penal interest hearsay exception; (2) defendant’s postarrest statements to police were involuntarily made and defendant’s trial counsel rendered ineffective assistance by failing to move for their exclusion at trial; and (3) insufficient evidence supports the jury’s finding that defendant maliciously set fire to, burned or caused to burn certain property.
We will affirm the judgment.
BACKGROUND
Mammoth Lakes Police Department Sergeant Marc Moscowitz and Officer Luke Schwartzkopf responded to a call at about midnight on December 19, 2012, that someone who was drunk was in the Quality Inn’s Jacuzzi and then left the motel without a shirt and shoes. It was one degree out.
The officers saw no one around the motel but they found distinctive footprints in the freshly fallen snow. Sergeant Moscowitz suspected the footprints were related to the person who reportedly left the Jacuzzi because they were not in a straight line, and it appeared the person who left the footprints was staggering.
The footprints led the officers to a restaurant called Jalapenos. The restaurant was closed at that time. Sergeant Moscowitz noticed a broken window and, looking inside, saw smoke and felt heat but did not see flames. Sergeant Moscowitz called for the fire department.
A fire was smoldering but not actively burning inside the restaurant when firefighters arrived. Tables and chairs were knocked over, burnt newspapers or magazines were in a sink at the bar, a bassinet against a wall was charred, and a fire had been set in front of a container holding rags or towels. Fire Marshall Thomas Heller opined the fire was intentionally set because there were three distinct ignition areas, there were different types of fuels used to start the fires, and items had been moved to start the fires. There was over $11,000 in damages associated with the fire. The cash register was open and most of the money was gone.
Sergeant Moscowitz found a second broken window on the east side of the restaurant and saw the same footprints outside the window leading away from the restaurant. The officers followed the footprints to an apartment. The officers made contact with two residents of the apartment, and also with defendant, who was visiting. It was not unusual for defendant to spend the night at the apartment, but he was intoxicated, uncooperative, and his clothing had a strong odor of smoke.
Defendant called A. Madrigal as a witness at trial. Madrigal and defendant had worked together and went to Madrigal’s home one evening and drank. Madrigal and defendant went their separate ways at some point and Madrigal eventually ended up in the Jacuzzi at the Quality Inn. He left when a motel employee confronted him. At trial, Madrigal asserted his Fifth Amendment right with regard to statements he made to the prosecutor’s investigator and to defendant about his presence at the Quality Inn and involvement in the Jalapenos crimes. Defendant testified at trial that Madrigal was the person who broke into Jalapenos and started the fire.
The jury convicted defendant of vandalism (Pen. Code, § 594, subd. (b)(1) -- count II), recklessly causing fire to a structure (§ 452, subd. (c) -- count III), arson of property (§ 451, subd. (d) -- counts IV & V), and petty theft (§ 484 -- count VI). As to count II, the jury found defendant caused $400 or more in damages. The jury was deadlocked on the count I charge of second degree commercial burglary (§ 459) and the trial court dismissed that count upon the People’s request.
The trial court suspended imposition of sentence and placed defendant on supervised probation for 48 months with various terms and conditions.
Additional facts are included in the discussion as relevant to the contentions on appeal.
DISCUSSION
I
Defendant contends the trial court erred in excluding a statement against penal interest that Madrigal made to defendant when they were alone in a police interview room.
Madrigal had denied any involvement with the Jalapenos crimes. He persisted in his denials even after an investigator said Madrigal’s fingerprints were found at the scene. The investigator then brought defendant into the interview room, left defendant and Madrigal alone in the room, and secretly recorded the conversation between the two. Defendant said to Madrigal, “ ‘So you’re going to let me cover for what you did?’ ” Madrigal responded that he ran straight home from the jacuzzi and he did not see defendant. Madrigal then said: “ ‘But, yeah, I don’t know, man. Let’s see what this evidence crap is all about. Like shit, dude, if my shit is on that, then that’s that, you know. . . . I’m fucking man up and take it. But like I’m just saying, man, like in my mind that’s what happened. And I’m being honest, dude. But if like my -- like my fingerprints on that then absolutely, dude, me, but in my mind, dude, that’s -- that’s what I remember.’ ” Defendant sought to admit the quoted statement under the hearsay exception for a statement against penal interest, arguing it was an admission that Madrigal committed the Jalapenos crimes.
The trial court ruled Madrigal’s statement was not admissible as a statement against penal interest. Viewing the entirety of Madrigal’s statements to defendant, the trial court said the statements were exculpatory.
Evidence of a statement made out of court which is offered to prove the truth of the matter stated is hearsay and is inadmissible, unless an exception to the rule against hearsay applies. (Evid. Code, § 1200.) Evidence Code section 1230 provides: “Evidence of a statement by a declarant having sufficient knowledge of the subject is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and the statement, when made, was so far contrary to the declarant’s pecuniary or proprietary interest, or so far subjected him to the risk of civil or criminal liability, or so far tended to render invalid a claim by him against another, or created such a risk of making him an object of hatred, ridicule, or social disgrace in the community, that a reasonable man in his position would not have made the statement unless he believed it to be true.” (Evid. Code, § 1230.) The proponent of the evidence must show that (1) the declarant is unavailable, (2) the statement was against the declarant’s penal interest when made, and (3) the statement was sufficiently reliable to warrant admission despite its hearsay character. (People v. Grimes (2016) 1 Cal.5th 698, 711.) The trial court may consider the words spoken, the circumstances under which they were spoken, the possible motivation of the declarant, and the declarant’s relationship to the defendant in determining whether the statement is truly against the declarant’s interest and, thus, sufficiently trustworthy to be admissible under Evidence Code section 1230. (People v. Grimes, supra, at pp. 711, 714-716.) We review a trial court’s decision whether a statement is admissible under Evidence Code section 1230 for abuse of discretion. (People v. Grimes, supra, at p. 712.)
Defendant satisfied the first element of the exception -- unavailability -- because Madrigal exercised his privilege against self-incrimination. (People v. Brown (2003) 31 Cal.4th 518, 535; People v. Duarte (2000) 24 Cal.4th 603, 609.) But he fails the second element: Madrigal’s statement was not clearly against his penal interest. Madrigal denied any involvement with the Jalapenos crimes during his conversation with defendant. He said he ran straight home from the Jacuzzi. Madrigal said he would “man up” “if” physical evidence linked him to the crimes. He did not admit to any crime. Thus, Madrigal’s statement was not specifically disserving to Madrigal’s interests. (People v. Geier (2007) 41 Cal.4th 555, 585; People v. Duarte, supra, at p. 613.)
The trial court did not abuse its discretion in excluding Madrigal’s statement under Evidence Code section 1230.
II
The prosecutor played portions of the recording of defendant’s postarrest interview at trial. Defendant argues his postarrest statements to police were involuntary because police made false statements to him and he was intoxicated. We will describe the relevant portions of the interview in connection with each of defendant’s arguments.
Defendant forfeited these appellate contentions because he did not raise them in the trial court. (People v. Ray (1996) 13 Cal.4th 313, 339; People v. Jackson (1989) 49 Cal.3d 1170, 1188.) Perhaps anticipating forfeiture, defendant claims in the alternative that his counsel rendered ineffective assistance by failing to move for exclusion of defendant’s statements to police.
To establish ineffective assistance of counsel, defendant must prove that (1) trial counsel’s representation was deficient because it fell below an objective standard of reasonableness under prevailing professional norms, and (2) the deficiency resulted in prejudice to defendant. (People v. Maury (2003) 30 Cal.4th 342, 389 (Maury); Strickland v. Washington (1984) 466 U.S. 668, 687 [80 L.Ed.2d 674, 692-693] (Strickland).) If defendant makes an insufficient showing on either of those components, his ineffective assistance claim fails. (People v. Holt (1997) 15 Cal.4th 619, 703; Strickland, supra, at p. 687.)
We review trial counsel’s performance with deferential scrutiny, indulging a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance and recognizing the many choices that attorneys make in handling cases and the danger of second-guessing an attorney’s decisions. (Maury, supra, 30 Cal.4th at p. 389; Strickland, supra, 466 U.S. at p. 689.) We accord “ ‘great deference to counsel’s tactical decisions.’ ” (People v. Mickel (2016) 2 Cal.5th 181, 198 (Mickel).) And counsel is not ineffective for failing to make a meritless objection or motion. (People v. Weaver (2001) 26 Cal.4th 876, 931.)
“It is particularly difficult to prevail on an appellate claim of ineffective assistance. On direct appeal, a conviction will be reversed for ineffective assistance only if (1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation. All other claims of ineffective assistance are more appropriately resolved in a habeas corpus proceeding.” (People v. Mai (2013) 57 Cal.4th 986, 1009.)
Defendant’s trial counsel was not asked, and did not say, why he did not move to exclude defendant’s police interview statements. But trial counsel could have reasonably concluded such a motion would not have merit.
“An involuntary confession may not be introduced into evidence at trial. [Citation.] The prosecution has the burden of establishing by a preponderance of the evidence that a defendant’s confession was voluntarily made. [Citations.] In determining whether a confession was voluntary, ‘ “[t]he question is whether defendant’s choice to confess was not ‘essentially free’ because his [or her] will was overborne.” ’ [Citation.] Whether the confession was voluntary depends upon the totality of the circumstances.” (People v. Carrington (2009) 47 Cal.4th 145, 169.) No single factor is dispositive. (People v. Williams (2010) 49 Cal.4th 405, 436 (Williams).) “Relevant considerations are ‘ “the crucial element of police coercion [citation]; the length of the interrogation [citation]; its location [citation]; its continuity” as well as “the defendant’s maturity [citation]; education [citation]; physical condition [citation]; and mental health.” ’ ” (Id. at p. 436.) “ ‘ “[T]he courts have prohibited only those psychological ploys which, under all the circumstances, are so coercive that they tend to produce a statement that is both involuntary and unreliable.” ’ ” (Ibid.)
Here, Officer Schwartzkopf advised defendant of his Miranda rights. Defendant nodded his head or verbally indicated that he understood the officer’s advisement. Defendant never indicated he wanted an attorney or that he wanted to stop talking with the officer. Instead, he answered Officer Schwartzkopf’s questions.
Defendant appears to argue that his statements to police were involuntary because Officer Schwartzkopf lied to him. Officer Schwartzkopf told defendant there were photographs or a video of defendant breaking into Jalapenos and starting a fire. No such video or photograph existed. But “[d]eception does not undermine the voluntariness of a defendant’s statements to the authorities unless the deception is ‘ “ ‘of a type reasonably likely to procure an untrue statement.’ ” ’ ” (Williams, supra, 49 Cal.4th at p. 443.) In People v. Farnam, the Supreme Court held the false statement by interrogating officers that police found the defendant’s fingerprints on the victim’s wallet did not render the defendant’s subsequent confession involuntary because the deception was unlikely to produce a false confession. (People v. Farnam (2002) 28 Cal.4th 107, 182; accord, People v. Jones (1998) 17 Cal.4th 279, 299; People v. Thompson (1990) 50 Cal.3d 134, 166-167; see also People v. Musselwhite (1998) 17 Cal.4th 1216, 1240-1241.) Officer Schwartzkopf’s false representation regarding the evidence was not reasonably likely to induce defendant to admit culpability even though he was not involved in the Jalapenos crimes. Therefore, we cannot conclude from the record here that there simply could be no satisfactory explanation for counsel’s failure to bring a suppression motion based on deception by Officer Schwartzkopf.
Defendant also claims his statements to police were involuntary due to his intoxicated state. Defendant registered a .145 percent blood alcohol content on the preliminary screening device about one hour after his police interview. Nevertheless, having reviewed the record, we found nothing indicates that defendant did not understand the Miranda advisement given or the questions Officer Schwartzkopf asked. (People v. Clark (1993) 5 Cal.4th 950, 988 (Clark) [California Supreme Court has repeatedly rejected claims of incapacity or incompetence to waive Miranda rights premised on voluntary intoxication where nothing in the record indicated the defendant did not understand his rights and the questions posed to him], disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22; People v. Hendricks (1987) 43 Cal.3d 584, 591 [mere fact that the defendant voluntarily consumed alcohol does not establish impairment of capacity so as to render confession inadmissible].)
Defendant tracked Officer Schwartzkopf’s statements and questions during the interview. Although he repeatedly answered “I don’t know” to Officer Schwartzkopf’s questions, defendant’s responses were directed to the questions posed. Defendant was evasive, saying he maybe remembered going into Jalapenos, he possibly remembered starting a fire to warm up, he was probably not the person who started a fire inside Jalapenos, and he guessed he used matches of some sort to start a fire. He also said he doubted and did not remember that he went inside Jalapenos, and he denied taking anything out of the cash register. Defendant persisted in denying that he took money out of the cash register even after Officer Schwartzkopf asked whether defendant could deny it if a security camera showed defendant taking money from the cash register. Defendant insisted he had no reason to steal and no reason to break into Jalapenos. Defendant was defiant when Officer Schwartzkopf said police apprehended defendant because they followed defendant’s shoeprints. Defendant emphatically denied starting a fire. He denied he intended to steal. And, while he made admissions or statements that could be construed as admissions, defendant provided an excuse for his conduct, saying that if police found him in a building with a fire and money in his pocket, then he was simply trying to survive on an extremely cold and snowy evening. Defendant’s evasive conduct and denials indicate he was not so impaired that his statement was involuntarily made. (Clark, supra, 5 Cal.4th at p. 992.) In addition, Officer Schwartzkopf testified defendant was cogent, understood his questions and answered questions to the best of his ability during the interview. On this record, we cannot conclude defendant was so intoxicated that he was incapable of free choice and, therefore, that there simply could be no satisfactory explanation for his trial counsel’s failure to move to exclude defendant’s interview statements.
Defendant fails to meet his burden of establishing ineffectiveness of counsel.
III
Defendant further argues there is insufficient evidence that he maliciously set fire to, burned, or caused to burn property.
“ ‘In reviewing a challenge to the sufficiency of the evidence, we do not determine the facts ourselves. Rather, we “examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—evidence that is reasonable, credible and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” [Citations.] We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] [¶] The same standard of review applies to cases in which the prosecution relies primarily on circumstantial evidence and to special circumstance allegations. [Citation.] “[I]f the circumstances reasonably justify the jury’s findings, the judgment may not be reversed simply because the circumstances might also reasonably be reconciled with a contrary finding.” [Citation.] We do not reweigh evidence or reevaluate a witness’s credibility.’ ” (People v. Nelson (2011) 51 Cal.4th 198, 210.)
“A person is guilty of arson when he or she willfully and maliciously sets fire to or burns or causes to be burned or who aids, counsels, or procures the burning of, any structure, forest land, or property.” (§ 451.) “ ‘Property’ ” includes personal property. (§ 450, subd. (c).) “Willfully” means intentionally doing the prohibited act or omission. (People v. Atkins (2001) 25 Cal.4th 76, 85 (Atkins).) “ ‘Maliciously’ imports a wish to vex, defraud, annoy, or injure another person, or an intent to do a wrongful act . . . .” (§ 450, subd. (e).) The “willfully and maliciously” requirement of the arson statute ensures that the setting of the fire is a deliberate and intentional act, rather than an accidental or unintentional ignition or act of setting a fire. (Atkins, supra, at p. 88; People v. Tanner (1979) 95 Cal.App.3d 948, 955 (Tanner).)
Arson is a general intent crime, i.e., the defendant must intend to do the prohibited act -- set fire to, burn or cause to be burned -- but need not intend to do some further act or achieve some additional consequence. (Atkins, supra, 25 Cal.4th at pp. 84, 86.) Evidence of voluntary intoxication is not admissible to negate the intent required for arson because arson is a general intent crime. (Id. at p. 79.)
The jury found in counts IV and V that defendant willfully and maliciously set fire to, burned or caused to burn a bassinet and a bucket. Substantial evidence supports the jury’s findings. The bassinet was found against a wall, which was charred. It appeared to Fire Marshall Heller that something in the bassinet had been set on fire. He testified that a fire had been set in front of a bucket. Heller, who was trained and had experience to investigate fires, opined the Jalapenos fires were intentionally set. He opined the fires were not accidental fires because there were three distinct ignition areas, different types of fuels were used to start each fire, and items had been moved to start the fires. Heller’s opinion was uncontradicted. The above evidence established that someone intentionally, and not accidentally, set fire to the bassinet and bucket. (People v. Schwartz (1992) 2 Cal.App.4th 1319, 1325; Tanner, supra, 95 Cal.App.3d at pp. 953, 955-956.)
DISPOSITION
The judgment is affirmed.



MAURO , J.

We concur:



BUTZ , Acting P. J.



RENNER , J.