People v. Buckley CA4/3 ( 2021 )

Filed 7/14/21 P. v. Buckley CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G058968
v. (Super. Ct. No. 18CF3174)
JAMES WILLIAM BUCKLEY, OPINION
Defendant and Appellant.
Appeal from a judgment of the Superior Court of Orange County, Robert
Alan Knox, Judge. Affirmed.
Kristen Owen, under appointment by the Court of Appeal, for Defendant
and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Robin Urbanski and
Genevieve Herbert, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
Appellant was charged and convicted of arson and resisting a peace officer.
The charges stemmed from a fire occurring in his residence, a unit in a multi-family
structure in Santa Ana. When firefighters from the Orange County Fire Authority
(OCFA) arrived, appellant let them into the home willingly. However, his demeanor
changed when they began questioning him about the start of the fire. He became
combative and uncooperative and OCFA had to call in police reinforcements, who
arrested him. Prior to his arrest, authorities noticed ammunition in the home, and after
his arrest, two firearms and more ammunition were discovered in a search of the home
and of his person. One of these firearms was a loaded shotgun located near the spot
where appellant was detained. At trial, appellant sought to exclude introduction of these
weapons and ammunition, arguing they were prejudicial and cumulative. The trial court
denied the motion. We affirm.
FACTS
On the evening of November 8, 2018, the OCFA responded to a report of
smoke inside the Santa Ana structure where appellant lived. The fire emanated from a
broken front window in appellant’s unit. OCFA Fire Captain Zebulon Hawkins knocked
on the door, and appellant answered, inviting firefighters in. Hawkins saw there was
significant smoke coming from the direction of the bedroom and hallway nearby. Upon
entering the bedroom, he noticed the smoke came down to his shoulders. On the bed was
a smoldering fire.
With gusty and dry weather conditions, including Santa Ana winds,
firefighters moved quickly to try to put out the fire on the bed before it spread. Because
the smoke was so thick in the room, Hawkins told appellant they had to leave the
property immediately.
Outside, Hawkins began to question appellant about how the fire may have
started, and noticed appellant grew “increasingly more agitated” in response to his
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questions. This was in contrast to the “nonchalant” manner in which appellant had first
greeted him at the door. After only a few questions, appellant ran back into the home.
Not knowing his intentions, and whether his firefighters were in any danger from
appellant, Hawkins ran after him and ultimately was able to block his path in the
entryway of the home. He asked appellant to leave several times. Appellant, “extremely
agitated,” and “uncooperative,” refused to do so.
Hearing the commotion, other firefighters inside the residence came out to
see what was going on, leaving the situation in the bedroom unattended. Because of
appellant’s behavior, they called for police assistance as well as an arson investigator.
They did not feel they could adequately deal with appellant and address the fire threat
simultaneously. The request, made through dispatch, was for a “Code 3” response,
meaning police would use lights and sirens. Despite his combative conduct, appellant
never physically attacked the firefighters but they noted several bullets lying around,
which made them more concerned about the risk he might pose to their safety.
OCFA Fire Captain and Investigator James Cass arrived on scene to
investigate the cause of the fire and to assist with appellant. Upon entering the home,
Cass saw .22 caliber ammunition sitting out in the open. He located appellant inside the
bedroom and told him three times in short succession that he needed to leave the
property. But again, appellant would not comply with the commands. Cass noted that
appellant had a “tense stance,” an “uncooperative nature,” and seemed erratic. “. . . [H]e
kept looking back and over to the closet area,” and “turned at one point and moved his
hand over to the closet.” Cass was not sure what was in the closet, or what appellant was
trying to do. Appellant was wearing a heavier coat which might conceal a weapon suited
for the ammunition Cass had just seen. All of this made him apprehensive about
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appellant’s intentions. He detained appellant – who resisted – and forcibly removed him
from the home.1
Outside on the sidewalk, Cass and another Santa Ana police officer began
searching appellant. In one pocket, they discovered three green shotgun shells. They
also found an unknown liquid and a multicolored disposable lighter, which was
functioning.
Back inside the home, Santa Ana police officers recovered a loaded
Remington shotgun from an area in the ceiling connected to the attic. This was in the
vicinity of the closet into which appellant had previously been seen reaching. Also
discovered in the home were an unloaded .22-caliber rifle, ammunition for the rifle, and
four more 12-gauge shotgun shells.
After appellant was taken into custody, Cass began investigating the
potential origin and cause of the fire. He found there were two fires – one on the mattress
of the bed and the other next to the bed near the windowsill. At trial, he opined the
windowsill fire was intentionally set, and neither fire appeared to be accidental.
The operative information charged appellant with one count of arson of an
inhabited property (Pen. Code, § 451, subd. (b)), resisting a peace officer (Pen. Code, §
148, subd. (a)(1)), and possession of a controlled substance paraphernalia (opium pipe)
(Health & Saf. Code, § 11364, subd. (a)). A jury convicted him on all counts and he was
sentenced to three years in prison.
1 Cass described appellant’s removal as “forcible” because even after being handcuffed and
marched toward the front door, appellant was resisting forward movement and had to be forced through the door.
He seemed to want to go toward the living room.
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DISCUSSION
Appellant challenges the trial court’s rulings on two motions in limine. The
first motion was to exclude reference to the shotgun shells discovered on his person at the
time of arrest because said evidence was irrelevant. The second was to exclude reference
to police or OCFA authorities finding a shotgun, .22-caliber rifle, switchblade, and
ammunition in the home after his detention because this evidence was cumulative and
prejudicial.2 The prosecutor argued all of the evidence helped corroborate the concerns
of police officers and Cass, who was the subject of the second charged count under Penal
Code section 148.
A trial court has wide discretion to exclude evidence “if its probative value
is substantially outweighed by the probability that its admission will (a) necessitate undue
consumption of time or (b) create substantial danger of undue prejudice, of confusing the
issues, or of misleading the jury.” (See Evid. Code, § 352.)3 “A trial court’s exercise of
discretion under section 352 will be upheld on appeal unless the court abused its
discretion, that is, unless it exercised its discretion in an arbitrary, capricious, or patently
absurd manner.” (People v. Thomas (2012) 53 Cal.4th 771, 806.) And even the
erroneous admission of evidence does not warrant reversal of a conviction unless a
proper objection was made and the error resulted in a miscarriage of justice. (See § 353.)
Appellant likens this case to People v. Riser (1956) 47 Cal.2d 566, in which
the California Supreme Court found error in the admission of a Colt .38 revolver, two
holsters, two leather belts, and a box of .22 shells into evidence at the trial of two brothers
charged with murdering the husband and wife proprietors of a café in Stanislaus County.
(Id. at pp. 572, 576-577.) These items were discovered in the defendants’ cars almost
two weeks after the murders, which were committed using a Smith and Wesson .38
2 Evidence about a switchblade was never introduced at trial, so we do not review this aspect of the
motion.
3 All statutory references are to the Evidence Code unless otherwise indicated.
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Special revolver. (Id. at pp. 573, 576.) Because the prosecution knew the specific type
of weapon used to commit the crime, our Supreme Court ruled “it [wa]s error to admit
evidence that other weapons were found in [defendant’s] possession, for such evidence
tends to show, not that he committed the crime, but only that he is the sort of person who
carries deadly weapons.” (Id. at p. 577.) Appellant believes the same principle applies
here, where the weapons and ammunition could not possibly have started the fire he was
charged with setting. He misapprehends their relevance.
The presence of the weapons and ammunition in appellant’s home was not
probative on the arson count, but rather on the resisting count under Penal Code section
148. “The longstanding rule in California and other jurisdictions is that a defendant
cannot be convicted of an offense against a peace officer ‘“engaged in . . . the
performance of . . . [his or her] duties”’ unless the officer was acting lawfully at the time
the offense against the officer was committed. (People v. Gonzalez (1990) 51 Cal.3d
1179, 1217, original italics; see also People v. Simons (1996) 42 Cal.App.4th 1100,
1109.) ‘The rule flows from the premise that because an officer has no duty to take
illegal action, he or she is not engaged in “duties,” for purposes of an offense defined in
such terms, if the officer’s conduct is unlawful. . . . [¶] . . . [T]he lawfulness of the
victim’s conduct forms part of the corpus delicti of the offense.’ (People v. Gonzalez,
supra, 51 Cal.3d at p. 1217.)” (In re Manuel G. (1997) 16 Cal.4th 805, 815.)
Evidence is relevant if it has “any tendency in reason to prove or disprove
any disputed fact that is of consequence to the determination of the action.” (§ 210.)
Here, the disputed evidence had the tendency to prove the reasonableness of the
responding authorities’ fears, and thus the lawfulness of appellant’s arrest. When
Hawkins and other firefighters were trying to keep appellant from reentering the home,
they noticed bullets on the ground or on a pony wall near the entryway. After he arrived,
Cass testified to observing .22-round ammunition lying about. It exacerbated his concern
about appellant’s intentions when he began moving toward the closet while wearing a
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heavy coat. The loaded shotgun was later discovered in a ceiling space near that same
closet. Shells for the shotgun were in appellant’s pocket when he was arrested. And the
.22-round ammunition matched the unloaded rifle discovered on the property. The
weapons and ammunition were indeed “interconnected,” as the trial court observed, and
supported Cass’ detention of appellant.4 The combination of a suspicious fire and a
jittery and erratic occupant with firearms and ammunition justified a detention which the
jury would understand as the lawful performance of the investigator’s duties. The rule in
Riser cannot help appellant here.
Neither was the evidence prejudicial or inflammatory. “‘The prejudice
which exclusion of evidence under [] section 352 is designed to avoid is not the prejudice
or damage to a defense that naturally flows from relevant, highly probative evidence.’
(People v. Karis (1988) 46 Cal.3d 612, 638; People v. Yu (1983) 143 Cal.App.3d 358,
377.) ‘Rather, the statute uses the word in its etymological sense of “prejudging” a
person or cause on the basis of extraneous factors. [Citation.]’ [Citation.]” (People v.
Zapien (1993) 4 Cal.4th 929, 958.) The evidence in question here was not introduced for
such effect. The jury was not being asked to judge appellant harshly due to the fact he
possessed weaponry. They were being asked to consider the possibility that the
authorities on the scene could reasonably have been concerned that he might have been
seeking to use said weaponry against them at the time he was arrested.
The court’s rulings were spot on.
4 For similar reasons, we disagree with appellant that the evidence was cumulative. While the trial
court does have discretion to exclude cumulative evidence under section 352 (see Horn v. General Motors Corp.
(1976) 17 Cal.3d 359, 371), evidence is not made cumulative simply because it is “identical in subject matter to
other evidence.” (See People v. Scott (2015) 61 Cal.4th 363, 399.) Even identical types of evidence can have
differing levels of “‘evidentiary weight or probative value.’” (Ibid, quoting People v. Mattson (1990) 50 Cal.3d 826,
871.) The rifle and matching ammunition corroborated Cass’ initial suspicions about appellant. Shells for the
shotgun in appellant’s pocket suggested he might have intended to make immediate use of the shotgun located not
far away from him. Each piece of evidence had a separate role to play.
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DISPOSITION
The judgment is affirmed.
BEDSWORTH, J.
WE CONCUR:
O’LEARY, P. J.
FYBEL, J.
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