Filed 5/9/18 P. v. Barley CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA



THE PEOPLE,

Plaintiff and Respondent,

v.

THEODIS BARLEY JR.,

Defendant and Appellant.
D071748



(Super. Ct. No. SCE360805)

APPEAL from a judgment of the Superior Court of San Diego County, Evan P. Kirvin, Judge. Affirmed.
John E. Edwards, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
A jury convicted Theodis Barley Jr. of arson of an inhabited structure (Pen. Code, § 451, subd. (b)) and found true the allegation that he used a device designed to accelerate the fire (§ 451.1). The court sentenced Barley to nine years in prison, consisting of the middle term of five years for the current offense, plus four years for the accelerant finding.
Barley appeals. His appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738 (Anders) and has not raised any specific issues on appeal. Barley's counsel asks this court to review the record independently for error as required by Wende. We granted Barley the opportunity to file a supplemental brief on his own behalf. Although Barley requested and received several extensions of time in which to file his supplemental brief, he has not done so.
We have independently reviewed the record under Wende and found no reasonably arguable issues for reversal on appeal. We therefore affirm.
FACTS
For purposes of this section, we state the evidence in the light most favorable to the judgment. (See People v. Osband (1996) 13 Cal.4th 622, 690; People v. Dawkins (2014) 230 Cal.App.4th 991, 994.)
Tracie E. lived with her daughter, Wendie N., and her two grandchildren in a house in La Mesa, California. Barley is Tracie's brother. He kept his belongings at the house, and Tracie allowed him to stay there periodically. Barley was otherwise homeless.
Wendie and Barley did not get along, and she did not like Barley staying at the house. Tensions further escalated when Barley borrowed Wendie's car without permission, and she had to go retrieve it. Wendie told Tracie that Barley could not stay at the house anymore. Tracie told Barley, and he became angry. At that point, or perhaps a few days afterwards, Barley threatened to call the landlord and have them evicted. He said, if he can't live there, no one can. Wendie changed the lock on the garage.
Later, Barley went to the house to pick up some of his belongings. He was angry. He had a box cutter in his hand and was threatening to ruin their lives. Barley scared Wendie. She called her brother, who confronted Barley with a kitchen knife. Tracie told them to calm down, and Barley continued to move his belongings.
On May 9, 2016, approximately a week after Barley had been told to stop staying at the house, Wendie went to work and Tracie took her grandchildren to school. Tracie returned home and went back to sleep. Later that morning, Barley was captured on a surveillance camera walking toward the house with a small white object in his jacket pocket. According to his later confession to police, Barley went to the house, sprayed lighter fluid on a couch that was against the outside wall of the house, and lit it on fire. A surveillance camera captured Barley walking away from the house afterward, without the small white object. A white plastic bottle of lighter fluid was later found down the street from the house.
A neighbor several blocks away saw the house on fire and called emergency personnel. Firefighters responded and put out the fire. The couch had been burned to the ground, and the fire had burned inside the house and in the attic.
Firefighters reported smelling lighter fluid at the scene. Fire investigators ruled out any possible cause other than a "hot-set" fire, which is a fire set by a flame or other heat source. Spalling patterns on the concrete above the couch were consistent with the use of lighter fluid, but were not conclusive. At trial, a fire investigator opined that Barley had set the fire using lighter fluid.
Three days after the fire, Ryan Gremillion, a detective with the La Mesa Police Department, arrested Barley near the house. As Barley was being searched, Gremillion implied he had video of Barley starting the fire. Barley responded, "Well, then, yes, I did." Barley said, when Wendie changed the lock, "That's what did it. That put me over the edge. I know it's stupid." He added, I "[w]ant them to fucking feel my pain." Gremillion took Barley to a police station, advised him of his rights, and continued questioning him. Barley admitted that he sprayed lighter fluid against the couch and the wall, and then "[j]ust whoosh." He said the lighter fluid was on a grill outside, in a small white can.
At trial, Barley testified in his own defense. He claimed the fire was an accident. He said he was smoking methamphetamines near the outside couch using a small torch lighter. He left the lighter on the couch and went to look for Tracie. When he came back, the couch and the surrounding area were on fire. Barley grabbed the lighter and left. He denied carrying lighter fluid and claimed the object in his pocket was a water bottle. He said he did not tell the police the truth because he was ashamed of using methamphetamines.
DISCUSSION
As we have noted, Barley's appellate counsel has filed a brief pursuant to Wende, supra, 25 Cal.3d 436, and Anders, supra, 386 U.S. 738, and has not raised any specific issues on appeal. Instead, Barley's counsel identified 14 possible issues under Anders: (1) "Whether lighter fluid constitutes a device designed to accelerate a fire within the meaning of section 451.1. (People v. Kurtenbach (2012) 204 Cal.App.4th 1264[.])" (2) "Whether [the] court properly responded to [a] jury question regarding inability to reach [a] verdict on [the] greater offense. (CALCRIM [No.] 3517; People v. Fields (1996) 13 Cal.4th 289, 310.)" (3) "Whether Mr. Barley sufficiently invoked [his] right to counsel at [his] first questioning. (Davis v. U.S. (1994) 512 U.S. 452, 461-462.)" (4) "Whether the subsequent reading of the Miranda rights at the police station and Mr. Barley's failure to request counsel at that time resulted in an admissible statement in the absence of counsel. (People v. Storm (2002) 28 Cal.4th 1007, 1031-1034; People v. Bradford (1997) 14 Cal. 4th 1005, 1039-1040.)" (5) "Whether reading of Miranda at second questioning resulted in valid waiver of his [Fifth] Amendment rights. (Oregon v. Elstad (1985) 470 U.S. 298, 309; Dickerson v. U.S. (2000) 530 U.S. 428, 441.)" (6) "Whether Mr. Barley's spontaneous statement was admissible despite lack of Miranda warning. (People v. Mobley (1999) 72 Cal.App.4th 761, 790.)" (7) "Whether any error on admission of any of Mr. Barley's statements was harmless because those statements became admissible as impeachment when Mr. Barley testified. (U.S. v. Gomez (2013) 725 F.3d 1121, 1126.)" (8) "Whether agreement by counsel to admit pre-Miranda statements waived any Miranda error." (9) "Whether it was error to allow the prosecution expert to opine on the ultimate fact that Mr. Barley started the fire and used an accelerant. (People v. Cole (1956) 47 Cal.2d 99, 104-105.)" (10) "Whether, assuming the expert's opinion was inadmissible[,] the error was waived by counsel's failure to object. (People v. Anderson (1990) 52 Cal.3d 453, 478.)" (11) "Whether, assuming the expert's opinion was inadmissible, the error was prejudicial in light of Mr. Barley's admission to the police regarding the use of lighter fluid to start the fire." (12) "Whether the [prosecution's] disclosure of videos of three individuals in the alley near the fire and then at a trolley station, and the disclosure that an individual questioned at the trolley station had a prior conviction for arson, resulted in a Brady violation [(Brady v. Maryland (1963) 373 U.S. 83)] because the district attorney did not indicate that one of the three individuals depicted in the video was also the one with the prior arson conviction." (13) "Even if there was a non-disclosure, whether the evidence was exculpatory since there was no other evidence of third party involvement and Mr. Barley's defense was that he had set the fire accidentally." (14) "Even if there was a non-disclosure, whether any claimed non-disclosure could meet the Brady standard for materiality in light of Mr. Barley's theory that he set the fire accidentally. (Turner v. United States (2017) 582 U.S. ___ [137 S.Ct. 1885].)"
We have independently reviewed the record under Wende and considered the possible issues identified by Barley's counsel. We have found no reasonably arguable issues for reversal. Competent counsel has represented Barley in this appeal.
DISPOSITION
The judgment is affirmed.

O'ROURKE, Acting P. J.

WE CONCUR:



DATO, J.



GUERRERO, J.