People v. Peterson CA5 ( 2015 )

Filed 12/10/15 P. v. Peterson CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F068493
Plaintiff and Respondent,
(Kern Super. Ct. No. RF005983A)
v.
RICHARD ANTHONY PETERSON, OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Kern County. John W. Lua,
Judge.
Thomas P. Owen, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney
General, Louis M. Vasquez and Rebecca Whitfield, Deputy Attorneys General, for
Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
Appellant/defendant Richard Anthony Peterson was charged with and convicted of
arson of an inhabited structure or property (Pen. Code, § 451, subd. (b)), with an
enhancement for using a device designed to accelerate the fire (§ 451.1, subd. (a)(5)).1
1 All further statutory citations are to the Penal Code unless otherwise indicated.
The charges were based on a fire at the mobile home where defendant and his family
lived. The fire investigators concluded defendant drilled holes above his front door,
ignited the fire through those holes into the small attic, and placed two bottles of ignitable
liquids in that small space to accelerate the fire. The defense conceded it was an arson
fire, but attacked the fire department’s investigation and failure to follow through on
other leads provided by defendant, particularly defendant’s contentious relationship with
members of the mobile home park’s association and his belief that one of his neighbors
set the fire. As for the plastic bottles, defendant claimed a friend must have left them in
the attic after working on a home improvement project a few years earlier, and he did not
know about it.
The court denied probation and sentenced defendant to five years for arson, plus
five years for the special allegation, for an aggregate term of 10 years in prison, and
ordered him to pay restitution of $154,264.74 to Foremost Insurance Company.
On appeal, defendant contends the court abused its discretion when it allowed the
prosecution to amend the information after the parties rested, to add an enhancement for
using the plastic bottles as an acceleration device. Defendant further contends the court
abused its discretion when it denied the defense request to reopen and call an expert to
refute the issues raised by the enhancement. We affirm.
FACTS
Defendant’s report prior to the fire
Defendant and his family lived in a mobile home on Saguaro Street, located in a
mobile home park in Inyokern, near Ridgecrest. He lived there with his wife, four minor
children, and his mother-in-law. Defendant also owned the adjacent property and other
parcels in the tract.
Around 10:00 a.m. on September 17, 2009, Kern County Deputy Sheriff Justin
Sawaske responded to defendant’s mobile home and took the following report from him.
Defendant said he received an anonymous and threatening telephone call in the middle of
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the previous night. Defendant also said he woke up in the middle of the same night
because he heard a sound that resembled an electric pencil sharpener. Defendant said he
went outside to look around and did not see anything. In the morning, however,
defendant found three holes drilled in the eave above his front door. Deputy Sawaske
saw the holes, and noticed fresh sawdust and wood debris below them. He took a
photograph of the eave. Defendant was concerned, and believed the same person called
him and drilled the holes.
The fire
Around 1:00 a.m. on September 29, 2009, the Kern County Fire Department
responded to a fire at defendant’s mobile home. When Captain Richard Reeder arrived
with his unit, defendant was standing outside and spraying water on the north side of the
mobile home’s roof with a garden hose. Reeder thought that was odd because there was
no fire coming out of the roof.
Captain Reeder testified that smoke was emerging from under the eaves, between
the doors, and different cracks in the mobile home. The smoke was relatively strong,
greyish-white and turning black, which meant the fire was starting to build. Reeder could
not see any flames. However, there was a steady stream of smoke coming out, which
meant they had very little time to get inside and attack the fire.
Captain Reeder quickly walked around the structure to survey the situation, and
believed the fire started in the rear kitchen. He decided to enter through the door on the
west side, but it was locked. Reeder yelled at defendant and asked for the key.
Defendant was still hosing off the roof, even though there were no flames there, and he
did not move from that location. Defendant told his wife to open the door. Defendant’s
wife produced a full ring of keys, but she could not find the right key.
Captain Reeder ordered Engineer Jacobs to break down the door. Jacobs opened
the door with a sledgehammer. They entered the family room within three or four
minutes after their initial arrival at the scene. There were no flames but there was heavy
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black smoke as high as his waist, and Reeder could not see. Reeder fell down three or
four times over several obstacles in the family room, including the furniture, tables, and
boxes.
Captain Reeder used his water hose to work his way to the back of the structure.
He found heavy fire and extensive heat in the kitchen. The upper kitchen cabinets,
ceiling, and attic space were on fire. The fire was hot and growing. Reeder sprayed the
kitchen ceiling with his water hose and “knocked down” the intensity of the fire in five or
six minutes. There were still residual flames in the structure, and it took about 40
minutes to completely extinguish the blaze.
Discovery of the flammable liquid odor and the plastic bottles
Firefighter Matthew Dominguez initially used a pike pole to pull down the ceiling
to suppress the fire. He was wearing his full gear. Some water came down from the
ceiling. After about 20 minutes, he used a chainsaw to remove the hallway ceiling where
the fire was located to ensure the fire was extinguished in the void space between the
ceiling and the roof. As Dominguez cut the ceiling, about a half-gallon or more of a clear
fluid poured on top of him from the ceiling. Dominguez left the structure to change his
oxygen tank. As he was changing tanks outside, he smelled the odor of gasoline from his
gear.2
After the fire was extinguished, Captain Reeder and defendant walked through the
mobile home. Reeder smelled a flammable liquid that he thought was similar to paint
thinner or some other mineral spirit.3 The smell was in the kitchen, the bathroom
hallway, and by the front door. It was stronger inside than on the outside. Reeder knew
2
Firefighter Dominguez had been wearing a Nomex fire-resistant protective hood
when the liquid fell on him, and gave the hood to Chief Shawn Whittington as part of the
arson investigation.
3 Mineral spirits are petroleum-based liquids that are flammable or ignitable and
include paint thinner and pure toluene.
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that paint thinner and mineral spirits were ignitable liquids that could be used as
accelerants.
As he walked around the structure, Captain Reeder testified defendant directed
him to look at three holes above the front door on the north side, by the eave. Reeder had
earlier seen fire and flames in the area of those holes, and defendant had been spraying
water on the roof in the same area.
Fire Captain Luis Monterroso, who also responded to the scene, determined the
blaze was a ceiling fire with quite a bit of smoke damage. Monterroso was familiar with
the construction of mobile homes. Defendant’s structure had a small attic void space
between the interior ceiling and the roof which contained noncombustible insulation,
similar to other mobile homes. Monterroso testified the void space was not designed for
storage, but he supposed someone could place items there.
Captain Reeder advised Monterroso about the holes above the north door.
Monterroso testified there were three holes drilled into the eave above the door. The
holes penetrated into the void area between the ceiling and roof. In the area where the
holes were drilled, Monterroso smelled flammable liquids, such as mineral spirits, a
solvent, or paint thinner.
Captain Monterroso found two 1-gallon plastic bottles on the hallway floor by the
bathroom. He smelled the same odor of a solvent-type, mineral spirits liquid in the
bottles. Monterroso only smelled flammable liquid by the front door holes and the area
where the plastic bottles were found. Engineer Jacobs was present when the bottles were
found in the hallway, which was about an hour after their initial arrival at the scene.
Captain Reeder testified that paint thinner and other mineral spirits could be used
as accelerants. Reeder thought defendant was acting oddly compared to other people in
similar house fire situations. For example, when the fire crews arrived, defendant was
spraying water on the roof, but there were no flames coming from the roof. Defendant
was not excited, he did not show any emotion, and did not approach the firefighters when
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they arrived. He stayed in his location as he sprayed water on the roof; he did not tell
them anything about the structure or interior; and the firefighters had to approach him for
information. Reeder noticed defendant’s family was standing next to a large amount of
clothing and luggage. It did not seem as if the clothing had been gathered in haste. There
were computers and game consoles in the family and dining rooms which had been
covered by blankets.
Captain Reeder decided to call an arson investigator because he believed the fire
was suspicious in origin. Defendant told Reeder that he was the victim of a “hate crime”
and said “that people hated him and they … set the fire on the house.”
Chief Whittington’s investigation
Around 5:30 a.m., Battalion Chief Shawn Whittington of the fire department’s
investigative unit arrived at the mobile home. Whittington testified the structure was a
rectangular, double-wide, 1971-era mobile home. It had metal sides and a flat metal roof.
There was a shed-type enclosure attached to the rear which was used for storage. There
was an addition to the side with an asphalt composition roof.
Captain Reeder advised Chief Whittington about the three holes drilled in the eave
above the north door. Whittington testified the holes had been drilled from the outside.
He noticed light charring and smoke damage around the three holes. There was also
charring in the doorway’s interior, which had come down from the ceiling.
Chief Whittington walked through the interior with defendant. Whittington did
not smell any ignitable liquids, mineral spirits, or gasoline on defendant.
Chief Whittington testified the bulk of the damage to the structure was caused by
the fire suppression efforts, which including removing the ceiling to look for the source.
“The actual fire itself and the charring … was in a relatively small area.”
As he walked through the structure, Chief Whittington detected a “heavy” odor of
ignitable liquid, similar to mineral spirits. “It was a significantly overpowering smell of
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ignitable liquid … that I likened to that of mineral spirits. It was a very overpowering …
so much overpowering, it was difficult to locate the source.”
Chief Whittington used a combustible gas indicator (also known as the “sniffer”)
to find the source of the smell. In the midst of the ceiling debris and insulation on the
floor, he saw the two plastic bottles in the hallway. The bottles were partially melted and
a vent hole had opened in each one. He believed the bottles fell from the ceiling void
while the firefighters were trying to extinguish the flames. The bottles were empty, but
the interiors appeared wet as if they had recently contained fluid. There were partial
labels on the bottle that indicated they were “paint cleanup.” The bottles were inside of a
plastic shopping-type bag that smelled like mineral spirits.
After taking photographs of the bottles, Chief Whittington turned the bottles over
and found slashing marks on the bottom that were “pretty consistent with the chain saw
blade” cutting them open. Whittington believed the firefighter’s chainsaw cut open the
bottoms of the bottles and emptied the contents while he was trying to open the ceiling.
Chief Whittington examined the ceiling and the void space above where the
bottles were found. There was smoke damage in the void space between the ceiling and
the roof. The two plastic bottles were found about 20 to 25 feet from the holes above the
front door. There were some vents in the roof but nothing that was “big enough to place
those plastic containers into that void” from the outside. There was a small vent for the
bathroom exhaust fan, but it was eight to 10 feet away from the location of the bottles,
and “it was not large enough to get those bottles into from the outside.”
Chief Whittington testified that someone could not have placed the plastic
containers into the attic void, and above the ceiling, by raising the roof or any place
outside of the mobile home. Based on the burn damage to the bottles, Whittington
concluded they had contained ignitable liquids.
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Chief Whittington’s opinion
Chief Whittington testified to his opinion that the fire was the result of arson. He
ruled out potential accidental causes of the fire. Whittington testified the point of origin
was within three feet of the area above the front door, where the three holes were.
“Q. Would you please describe the fire that you observed, the setup … as
it relates to how that fire would grow based on where the fire was with the
holes and the two plastic containers containing the liquid.
“A. Upon viewing evidence that I discovered …, you had an area of
origin over the front door with a relatively, by all standards, low-intensity
fire at that point. 25 feet away, you had plastic containers containing
ignitable liquid in a plastic container that’s easily failed. So you had the
ability for that fire to grow at a pretty controlled rate. But once it hit those
containers, then it would grow at quite a bit significantly faster rate, and it
… would enable the fire to burn at a faster rate and spread a little faster
and burn the structure.
“Q. So the setup that you saw, the device that you saw, was that a time-
delayed device?
“A. My interpretation of the setup, what I saw, was that it was a time-
delay device. It was something devised to spread the fire to a faster degree
at a certain point after the fire had been lit.” (Italics added.)
Based on the manner in which the plastic bottles had burned, melted, and vent
holes opened, Chief Whittington believed the bottles were at least half full when the fire
began.
“[T]he liquid has a cooling effect and will stay cooler than that airspace
above it. So as that airspace heats up and allows for that bottle to start
deforming in its shape and starting to melt and deform down, that liquid has
a more cooling effect. It has … a denser property. [¶] So from that point,
based on the physical characteristics of those bottles, I can say that those
bottles contained liquid to that point where it stopped, and then the
[firefighters’] suppression effort was able to stop the chemical chain
reaction, that is, fire and production of heat and smoke.”
The insurance claim
In September 2009, Mary McDonald (McDonald) was a branch claim supervisor
for Foremost Insurance, a subsidiary of Farmers Insurance. Foremost Insurance handles
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specialty insurance for mobile homes and recreational vehicles. As of December 18,
2008, defendant had a policy with Foremost Insurance insuring the mobile home which
covered $270,000 for the structure, $140,265 for personal property; $54,000 for living
expenses; $28,053 for adjacent structures; and $500,000 for liability coverage for bodily
injury. The policy had an “intentional act” exclusion that excluded claims if the
homeowner set fire to his or her own property. The homeowner would commit fraud if
he or she committed arson and collected insurance proceeds.
After the fire, defendant submitted a claim on the policy. McDonald
recommended the denial of his claim because of the arson investigation and the amount
of the policy. However, Farmers Insurance’s home office overruled her recommendation
and advised her to pay the claim. McDonald testified the company would not have paid
the claim if it found enough evidence of fraud.
McDonald testified defendant was paid a total of $154,264.74 on the claim, which
included structural damage, personal property loss, and living expenses. This amount did
not include over $10,000 for investigative fees. He received his first payment on
September 30, 2009.
The prosecution introduced exhibit No. 41, a certified copy of a grant deed in the
names of defendant and his wife as joint tenants, for a residential property on Stargazer
Place in Palmdale, dated October 23, 2009. Defendant and his family moved to that
property after the fire. McDonald testified that starting on or about December 23, 2009,
the insurance payments were sent to defendant at the Palmdale residence.
The computer evidence
A forensic examination was conducted on an HP Pavilion Slimline computer
found inside defendant’s mobile home at the time of the fire. The prosecution’s expert
testified that at some point between August 31 and September 7, 2009, someone used this
computer to visit the website www.foremost.com/news/2009/arson-school.htm. The
website showed pictures of recreational vehicles and cars that were on fire. The text
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stated: “One key observation was how difficult it was to start a fire in an automobile or
recreational vehicle without ventilation.” The text also stated: “Newer models are so
airtight, a fire will typically burn through its fuel and just self-extinguish,” and
“However, when a fire was started with an accelerant fueled by oxygen, it took less than
eight minutes to start collapsing a fifth-wheel.”
Prosecution expert testimony
Dr. Neil Spingarn, owner and manager of S&N Laboratories (S&N) in Santa Ana,
and Daniel Connell (Connell), an analytical chemist with the company, testified about
laboratory tests conducted on the following evidence from the fire: five samples of
ceiling material from the area where the holes were drilled above the north door (item
Nos. 1-5); the two empty one-gallon plastic containers found in the hallway (item No. 6);
and the firefighter’s Nomex hood (item No. 8). The tests were conducted in November
2009. The insurance company paid for the tests.
Connell, a gas chromatography expert, conducted the tests to detect any significant
liquid residue from vapors on the items. The laboratory did not test any free liquids.
Connell testified the initial tests showed “very high levels” of volatile components in the
samples. Dr. Spingarn explained this meant that high levels of ignitable liquid vapors
were still present. Connell smelled some sort of solvent on the Nomex hood during the
tests. The test on the Nomex hood resulted in a trace amount of ignitable liquid vapor.
The gas chromatograph and mass spectrometer tests were positive for gasoline on
all the items. Dr. Spingarn testified gasoline was an ignitable liquid and could be used as
an accelerant.
Dr. Spingarn testified that some pieces of the front porch ceiling had higher levels
of toluene than expected for gasoline. These levels could indicate the presence of another
ignitable liquid. It also could have been the result of decomposition of the material
during the fire, which would have burned off toluene.
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Connell testified he could not exclude the presence of mineral spirits from the
items. He explained gasoline and mineral spirits “share a lot of the similar components,”
and he could not be sure if there was something other than gasoline in the samples.
DEFENSE EVIDENCE
Laboratory reports
Dr. Andreas Gebauer, an associate professor and chair of the Department of
Chemistry at California State University, Bakersfield, testified for the defense about the
laboratory tests conducted by the prosecution. After the tests were conducted by S&N,
Chief Whittington sent the same items to Armstrong Labs for the same tests. Dr.
Gebauer testified the results from the two laboratories were “not even close to being
identical” to each other. The S&N tests found gasoline while the Armstrong tests found
mineral spirits.
Dr. Gebauer testified the S&N tests found a significantly higher amount of toluene
in five samples. According to the report from Armstrong Labs, however, the toluene
levels were “very miniscule, very, very low level.” Dr. Gebauer believed the difference
resulted from the failure of S&N to conduct a “blank” test between each sample. Dr.
Gebauer explained that each test is conducted by using a fiber to take a sample within the
containers that hold each item of evidence. When multiple samples are tested, a “blank”
test in run between these samples and ensures the fiber has not been contaminated before
the next test. The failure to run a “blank” test decreases the reliability of the test because
there is no assurance the fiber was not contaminated by some other substance.
Dr. Gebauer testified he reviewed the S&N report and conceded gasoline was
present in all the samples. He could not exclude gasoline or mineral spirits with any
certainty because they were similar. “[Y]ou cannot decide either way if it is mineral
spirits or gasoline.… It could have been either.”
11.
Defendant’s family
Two of defendant’s children, G.P. and M.P., were 10 and 14 years old,
respectfully, at the time of trial. They testified that on the night of the fire, they were
asleep when they heard their father yell that there was a fire, and he made them run away.
M.P. testified his grandmother was spraying a garden hose at the fire. The children
testified their computers were kept on the same table in the family room before the fire.
They did not know how the blankets were placed on the computers during the fire.
Mary Fernando (Fernando), defendant’s mother-in-law, testified she was asleep
and heard defendant yell there was a fire. Fernando testified that two months earlier, she
packed two large suitcases in preparation for an upcoming trip to Sri Lanka, where she
and her daughter were from. When defendant yelled about the fire, she dragged those
suitcases out of the back door as she left the mobile home. Fernando and defendant’s
wife also grabbed laundry from the back room.
Fernando testified about an incident that occurred six to eight months before the
fire, when defendant was not home. An unknown man came to the door and said he was
looking for defendant. The man acted “rowdy” and Fernando was scared. Fernando told
the man that defendant was not there, and the man said he would come back.
Defense computer analysis
William Wilson (Wilson) lived in the same mobile home park and knew
defendant. Wilson was also involved in a romantic relationship with defendant’s mother-
in-law. Wilson testified that in August 2009, he received a letter from his insurance
broker about his policy with Foremost Insurance, which advised him to change his policy
to another company. Wilson researched Foremost Insurance on the Internet and read that
there were disputes with the company about paying claims. Wilson knew defendant’s
mobile home policy was also with Foremost Insurance, and told defendant about the
matter in September 2009.
12.
Donna Meyers, a lecturer in computer science at California State University,
conducted a forensic examination of defendant’s computer and determined the exact path
of the Internet search which led to the “arson school” site. Meyers testified that on
September 3, 2009, someone searched for “Foremost Insurance problems,” which led to a
hyperlink to “arson school.” Meyers testified that the person did not directly search for
“arson” or “arson school.”
The mobile home association
Ronald Peterson lived in the same mobile home park and was the president of the
homeowner’s association. Ronald was not related to defendant, they were not friends,
and they had multiple conflicts regarding the homeowner’s association and the board.
Defendant had tried and failed to join the board, and often argued with the board’s
decisions. Ronald testified that shortly before the fire, he was part of a decision made by
the board of the homeowner’s association to file a nonjudicial foreclosure lien against
another property that defendant owned in the mobile home park.
DEFENDANT’S TRIAL TESTIMONY
Prior incidents
Defendant testified that five years before the fire, he bought bottles of “paint
cleanup” for a renovation project. Defendant, his wife, and their friend, John Milam,
worked on the project. The paint cleanup material was used to clean paintbrushes and
stains on doorknobs. After they finished, Milam put away the bottles, and defendant did
not know what happened to them. He did not know they were in the mobile home’s attic.
Defendant testified he had an adversarial relationship and “run ins” with Ronald
Peterson on the homeowner’s association board. Defendant ran against Ronald’s brother
and believed members of the board had stolen money. Defendant testified that in 2006,
he was working on a nearby property with John Milam when Ronald drove by and said,
“I can’t wait to get a son of a bitch like you out of the park.” Defendant received
multiple complaints and inquiries from regulatory agencies about the condition of his
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property which were initiated by the board; he resolved all the complaints. In 2009,
Ronald drove in front of defendant’s house, honked the horn, and made an obscene
gesture while defendant’s family was present.
Defendant’s insurance policy
At some point prior to the fire, defendant was advised by Wilson about problems
with Foremost Insurance. Wilson said their broker was changing insurance companies.
Defendant testified he used the computer to investigate and found a site about “Farmers
fights fraud.” He clicked on the site and reached something called “arson school.”
Defendant closed the window because it was not what he was looking for.
The alleged threat and discovery of the holes
Defendant testified that on September 15 or 16, 2009, he was out of town with his
wife and children. His mother-in-law, was alone in the mobile home when a strange man
appeared at the door and punched the side of the house. She was frightened and called
defendant, and he immediately returned home. He inspected his home and found an
indentation on the wall between the light and the doorbell near the front door. On cross-
examination, however, defendant testified this incident occurred three or four months
before the fire.
Defendant testified that on the night of September 16, 2009, he received a
threatening telephone call. Defendant did not describe the caller’s voice or what the
caller said. Also that night, he was asleep when he heard a sound like someone was using
an electric pencil sharpener. The noise stopped and started multiple times. Defendant
thought it was his children and yelled, “Go to bed” or “Go to sleep,” and the noise
stopped. Defendant realized the lights were out and the children were asleep. He opened
the front door and looked outside, but he did not see anything.
Defendant testified that on September 17, 2009, his wife showed him there were
holes above his front door. Defendant testified the three holes were each about the size
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of a nickel. Defendant called the police and reported the incident. Defendant purchased
material to fill in the holes but never got around to doing the job.
The fire
Defendant testified that on September 29, 2009, he was asleep on the couch when
he smelled smoke. He woke up and saw smoke from the ceiling by the front door. He
panicked because of the children. He thought his daughter was asleep in the front room
and tried to find her. She was in another room, and he screamed at everyone to get out.
His son, D.P., ran towards him, but defendant turned him around and told him to get out.
Defendant testified the computers were on a table in the front room. He grabbed a
quilt he had been using on the couch, and another blanket, and threw them over the
computers. He retrieved two fire extinguishers from outside, returned inside, and saw
smoke. He opened the attic access and sprayed the extinguisher into the area. As he used
the second extinguisher, the smoke became intense, and he had to get out.
Defendant testified his wife and mother-in-law dragged a large suitcase out of the
mobile home. Defendant grabbed some laundry and told them to get out. Defendant also
got out and called 911. He grabbed the hose and sprayed water at the front door, near the
area of the three holes.
Defendant testified he showed the firefighters the three holes above his front door.
He told Captain Reeder that he was the victim of vandalism and thought it was an arson
fire.
Defendant testified he was present when Chief Whittington found the two plastic
bottles, but described a different version of the event. Defendant testified he provided a
stepladder, which Whittington used to look into the attic space. Whittington removed the
two plastic bottles from that area. Defendant testified this was the first time he saw the
bottles.
At some point after the fire, defendant looked into that same attic area and found a
partially burned and melted videotape. Defendant testified that based on the box, it was
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an old Japanese “pornographic” video. Defendant showed the tape to Chief Whittington,
and a photograph of it was introduced into evidence.
Defendant testified there was tension between him and Chief Whittington over his
investigation of the fire. Defendant told Whittington about the threatening phone calls,
the suspicious incidents before the fire, and his conflicts with the mobile home
association. Defendant testified to his belief that Ronald Peterson started the fire to kill
defendant and distract attention from the lien that the board filed against him. Defendant
was upset about Whittington’s failure to follow any of these leads. He wrote two letters
of complaint about Whittington, which he sent to Fire Chief Chris Angello and the
district attorney’s office.
Defendant testified he used the insurance money to pay for his family’s living
expenses after the fire. The insurance proceeds did not cover the amount of the loss.
They initially lived in a hotel, and then moved into the residence that he owned next to
the damaged mobile home. They had to move out because his daughter was sensitive to
the smoke and smell from the damaged structure. Defendant testified he bought a
property in Palmdale for $230,000. The deed of trust was dated October 23, 2009, but
defendant testified that date was wrong because the sale closed on November 6, 2009.
Defendant testified the Palmdale residence had not been listed for sale before the fire, and
he had no knowledge of it until after the fire.
Rebuttal
Daniel Connell of S&N Laboratory was recalled to address the testing methods.
Connell testified he ran a “system blank” and then a “fiber blank” before he tested any
samples in this case. After he tested item No. 1, a part of the ceiling, he ran another fiber
blank since the first test showed high levels of volatiles. “[W]e wanted to check to make
sure the fiber was clean after that run, and it showed that it was clean.” He conducted
another fiber blank with the next run, and then tested item Nos. 2 and 3, which were also
part of the ceiling. Connell did not conduct a blank test between item Nos. 2 and 3
16.
because the levels for item No. 2 were “quite a bit lower than for item No. 1,” and it was
reasonable to conclude there would not be any “carry-over.” Instead, Cornell went
through an extra cleaning process after testing item Nos. 2 and 3 by heating the fiber “to
get all the volatile to evaporate off the fiber. Then the fiber is removed, and then it is
placed into another [gas chronometer] … and it is allowed to just sit in a hot injection
port to clean” for 20 or 30 minutes. Connell conducted the cleaning process with “every
run.”
Connell testified that after he tested item No. 4, another part of the ceiling, he
conducted another blank test because of high levels of volatiles in item No. 4. When he
tested item No. 5, the final piece of ceiling, it also had high levels, and he conducted
another blank test. “When you see something high, we always just double-check the
blanks to make sure the system is clean before we move on to try to safeguard from any
kind of crossover contamination.”
Arguments, verdict, and sentence
The prosecution theory was that defendant staged the fire for financial gain by
reading about arson techniques on the Internet, drilling the holes above the front door,
then falsely reporting an act of vandalism, and placing the plastic bottles with an ignitable
fluid in the attic space to act as an accelerant.
The defense theory was that his handyman left the two bottles of paint cleanup in
the ceiling after defendant’s renovation project but without his knowledge, and an
unknown arsonist drilled the three holes and started the fire. Defense counsel attacked
Chief Whittington’s investigation and his failure to follow up other leads, particularly
about defendant’s hostile neighbors. Counsel argued that Whittington decided defendant
was responsible and only looked for evidence to support that conclusion.
Defendant was convicted of arson and the jury found the special allegation true.
He was sentenced to five years for arson and five years for the special allegation.
17.
DISCUSSION
I. The Court’s Rulings on the Motions to Amend and Reopen
After both parties rested in this case, the prosecution moved to amend the
information to conform to proof and add an enhancement to the arson count, that
defendant used a device designed to accelerate the fire, based on the presence of the two
plastic bottles of ignitable fluid in the attic (§ 451.1, subd. (a)(5)). The court granted the
motion over defense counsel’s objections. Defense counsel then moved to reopen his
case to determine whether to call an expert to refute the new enhancement. The court
denied the motion.
Defendant contends the court abused its discretion when it granted the
prosecution’s motion to add the enhancement, and denied his motion to reopen to call
another expert to address the issues raised by that enhancement.
A. Motions to Amend and Continue
We begin with the well-settled law in this area. “The general framework within
which criminal pleadings are amended is statutorily derived and has remained constant
since 1911. [Citation.] Section 1009 authorizes amendment of an information at any
stage of the proceedings provided the amendment does not change the offense charged in
the original information to one not shown by the evidence taken at the preliminary
examination. If the substantial rights of the defendant would be prejudiced by the
amendment, a reasonable postponement not longer than the ends of justice require may
be granted. The questions of whether the prosecution should be permitted to amend the
information and whether continuance in a given case should be granted are matters within
the sound discretion of the trial court and its ruling will not be disturbed on appeal absent
a clear abuse of discretion. Moreover, a trial court correctly exercises its discretion by
allowing an amendment of an information to properly state the offense at the conclusion
of the trial. Similarly, where the amendment makes no substantial change in the offense
charged and requires no additional preparation or evidence to meet the change, the denial
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of a continuance is justified and proper. [Citations.]” (People v. Winters (1990) 221
Cal. App. 3d 997, 1005 (Winters), italics added; People v. Burnett (1999) 71 Cal. App. 4th
151, 165; People v. Arevalo-Iraheta (2011) 193 Cal. App. 4th 1574, 1580–1581.)
We now turn to the procedural history of this case, particularly about whether
there was evidence at the preliminary hearing that plastic bottles contained ignitable
fluids and were acceleration devices.
B. Preliminary Hearing
The fire occurred on September 29, 2009. On January 6, 2011, a felony complaint
was filed charging defendant with arson and four counts of child endangerment for
setting the fire while his minor children were in the mobile home.
On May 26 and 27, 2011, the court conducted the preliminary hearing. Then-
Captain Whittington was the only witness, and his testimony was very similar to what he
later testified at trial.
At the preliminary hearing, Chief Whittington testified about the three holes
drilled above the door and that he smelled mineral spirits by the door. He testified that
Firefighter Dominguez used the chain saw on the ceiling, that two plastic bottles were
discovered on the hallway floor, that the bottoms of the bottles had been cut open by the
chain saw, that the bottles were empty, were burned and partially melted, which was
consistent with liquid being inside. He further testified that he smelled mineral spirits
from the bottles, and the bottles were about 25 feet away from the door where he smelled
the same odor.
Chief Whittington testified the partially burned label on the bottles identified the
contents as paint cleanup; and the laboratory tests on the bottles and the ceiling samples
from the front door were positive for gasoline.
Chief Whittington testified that in his opinion, regardless of who was responsible
for starting the fire, the fire’s point of origin was the holes above the door. The plastic
bottles were 25 feet away from the holes. The heat generated from the fire would have
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been enough to melt the two plastic bottles given the narrow depth of the attic space.
Given the location of the fire, the bottles were moments away from being fully ignited
when the firefighters extinguished the blaze. Whittington further testified to his opinion:
“[T]he holes were intentionally drilled for the purpose of starting the fire,
and that the containers with the ignitable liquid in them were staged for the
purpose of carrying the fire.” (Italics added.)
Chief Whittington testified that the contents of the bottles were used as an
accelerant.
“Q. And absent this introduction of mineral spirits where you found
them in the insulation area, absent any introduction of that accelerant,
would any attempt to light a fire at the holes find its way to the Paint
Cleanup bottles?
“[A.] No.
“Q. Was there any access that you could discern from inside the house
that would otherwise permit somebody to place the mineral spirits in the
area of the insulation that you found it?
“A. No.” (Italics added.)
Chief Whittington also testified about the forensic examination of defendant’s
computer: A site about the arson school which Foremost Insurance conducts for its
investigators had been visited, and the site discussed “the need for adequate ventilation
with accelerants” to burn a recreational vehicle. Whittington testified recreational
vehicles were constructed in the same manner as early-model mobile homes.
The court held defendant to answer on the arson count. The court dismissed the
child endangerment charges because the prosecution failed to present evidence on the
children’s precise ages.
On June 8, 2011, the information was filed which charged defendant with arson of
an inhabited structure or property; it did not allege any enhancements.
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C. The First Trial
On November 2, 2012, defendant’s first trial began with motions in limine. On
November 13, 2012, the presentation of evidence to the jury began. The instant record
does not contain the reporter’s transcript for the first trial. According to the minute
orders, the testifying witnesses were Captains Reeder and Monterosso; Firefighters
Dominguez and Jacobs; Deputy Sawaske; Chief Whittington; Dr. Spingarn and Connell.
As the trial progressed, defendant’s public defender became ill, and the trial was
continued for several days. On November 26, 2012, the court declared a mistrial because
of defense counsel’s illness and unavailability, and the jury was excused.
D. The Second Trial
On October 8, 2013, defendant’s second jury trial began with motions in limine.
On October 11, 2013, the presentation of evidence to the jury began. As set forth in the
factual statement above, Chief Whittington testified consistent with his preliminary
hearing testimony, and in greater detail, about his opinion that the fire’s point of origin
was the three holes, the two plastic bottles contained ignitable liquids, and the fire was set
to use the contents of the bottles as an accelerant for the fire.
E. The Prosecution’s Motion to Amend
Defendant’s appellate contentions are based on the following sequence.
On October 22, 2013, after both parties rested, and before the jury was instructed,
the court conducted the instructional conference in chambers. When the matter resumed
on the record, the prosecutor moved to amend the information to conform to proof and
add an enhancement to the arson charge, that defendant used a device designed to
accelerate the fire (§ 451.1, subd. (a)(5)). The prosecutor argued:
“The evidence in this case presented whoever lit the fire did use this
accelerant device to fuel the fire. It is an enhancement. The evidence was
presented, argued by both counsel, presented. And defense also presented
defenses to dispute that evidence.”
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The court asked the prosecutor whether there were any discovery issues, and if one
could argue “that discovery was never provided involving an accelerant in this case.”
The prosecutor replied that the investigative and laboratory reports were provided to the
defense “upon the initial filing years ago.”
Defense counsel objected to the prosecution’s motion to amend as “highly
unusual.”
“In this particular case, the defense had spoken with an expert, a
William Crisp out of LA, and had this enhancement … been added prior to
trial or at least after the People’s case-in-chief, we would have had an
opportunity to call him in regards. He is an arson expert. I believe that
allowing the prosecution to amend and add now would be highly
prejudicial.
“The People have had this case, this fire since 2009. As indicated by
[the prosecutor], the testimony of Whittington regarding this device was
presented at the preliminary hearing, was presented at the original trial, and
at no time did they seek to amend and add.
“If they had added this enhancement prior to the trial or at least
during the trial, one, it may have affected the negotiation on whether or not
[defendant] wanted to offer a counteroffer; and, two, it may have affected
how we presented our evidence.
“To seek to amend and add after the close of evidence, I think,
would be highly prejudicial to [defendant], and we are objecting.”
The court asked defense counsel if she agreed with the prosecutor, “that the
defense has been on notice involving the accelerant or the delaying device…. In other
words, is there no discovery issue because the defense had this information certainly well
before this trial began; and, therefore, it has not caught the defense off guard in that they
had no idea this evidence existed?”
Defense counsel agreed “there’s no discovery issue” but argued the defense was
caught “off guard” by the proposed amendment.
“[T]he People have had, since the filing of this, since the mistrial, more
than enough time to amend and add this particular enhancement if they
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chose to. It just would have shaped the evidence differently had we been
given notice that they intended to amend.” (Italics added.)
The court asked the prosecutor whether information about the accelerant was
presented at the preliminary hearing. The prosecutor reviewed the preliminary hearing
transcript and noted that Chief Whittington testified he smelled an ignitable liquid, the
plastic bottles were melted, they smelled of mineral spirits, they were 25 feet away from
the door, the test results for the bottles showed gasoline, and the same smell was at the
door.
The court granted the prosecutor’s motion to amend to add the enhancement
pursuant to section 1009.
“To the extent that the defense may have been prejudiced by this
enhancement simply because they were not aware the People would move
to amend the Information to conform to proof that’s been presented to this
case, while that is a factor, it is not a significant factor in this court’s
opinion. What is significant is whether there’s been prior notice of
evidence existing either through typical discovery procedures or through a
preliminary hearing. And in this particular case, there is evidence both
through discovery procedures involving the S&N Lab reports, in addition
to the probable cause declaration that was utilized to question Chief
Whittington, in addition to the testimony at the preliminary hearing.
“For those reasons, it does not appear that this is an issue that would
rise to the level of any discovery violations. It is the exact opposite in that
the People have provided discovery of these—of this particular area to the
extent that it would apply to an enhancement for the substantive charge.”
(Italics added.)
F. Defendant’s Motion to Continue and Reopen
Immediately after the court granted the motion to amend, defense counsel
requested a “brief continuance” and leave to reopen. “I would like to speak with my
expert Mr. Crisp and see what, if anything, he would say in relation to the time-delay
technique. Without having given prior notice, as I indicated, I would have potentially
called him had I known the People were going to amend and add this. I would ask for a
continuance in order to do that, Your Honor.”
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The court denied defendant’s motion to continue and reopen without further
comment.
G. The Motion to Amend was Properly Granted
Based on this sequence, defendant argues the court abused its discretion when it
granted the prosecutor’s motion to amend the information to add the enhancement, and
then denied his motion to continue and reopen to call another defense arson expert.
As explained above, the court may allow amendment of an accusatory pleading at
any time up to and including the close of trial so long as there is no prejudice to the
defendant. (§ 1009; People v. Graff (2009) 170 Cal. App. 4th 345, 361.) An indictment or
accusation, however, “cannot be amended so as to change the offense charged, nor an
information so as to charge an offense not shown by the evidence taken at the preliminary
examination.” (§ 1009.) “ ‘[A]t a minimum, a defendant must be prepared to defend
against all offenses of the kind alleged in the information as are shown by evidence at the
preliminary hearing to have occurred within the timeframe pleaded in the information.’
[Citations.]” (People v. Jones (1990) 51 Cal. 3d 294, 317.)
We first note the proposed amendment was an enhancement pursuant to section
451.1, subdivision (a)(5), which provides that any person convicted of felony arson shall
receive an additional term of three, four, or five years if “the arson was caused by use of a
device designed to accelerate the fire or delay ignition.” (People v. Andrade (2000) 85
Cal. App. 4th 579, 584, italics in original.) This statute was enacted in 1994 to increase
penalties for “ ‘ “the worst arsonists who exhibit a specific intent to inflict damage or
who in fact inflict serious damage ….” ’ ” (Id. at p. 586.) A “ ‘device designed to
accelerate the fire’ [citation] means a piece of equipment or a mechanism intended, or
devised, to hasten or increase the progress of the fire.” (Id. at p. 587.) The defendant’s
use of a “Molotov cocktail” or breaking a bottle of gasoline constitutes such a device.
(Ibid.) In addition, the defendant’s use of gasoline to fuel a fire, “no matter how it is
contained or dispersed,” also satisfies the enhancement. (People v. Kurtenbach (2012)
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204 Cal. App. 4th 1264, 1280.) “Because gasoline is used in connection with an arson to
increase the strength and destructive power of the fire, it is consistent with the legislative
intent to view the use of gasoline in connection with an arson as the use of a device
designed to accelerate a fire within the meaning of the sentencing enhancement.” (Ibid.)
“As the use of gasoline in connection with an arson exhibits ‘a specific intent to inflict
damage’ [citation] and is comparable to the use of lighter fluid to fuel a fire, we conclude
based on the legislative history of section 451.1, subdivision (a)(5) that the act of pouring
gasoline in a structure in connection with an arson is the ‘use of a device designed to
accelerate the fire’ within the meaning of section 451.1, subdivision (a)(5).” (Ibid.)
As discussed above, defendant had a two-day preliminary hearing, which gave
him notice of “the time, place, and circumstances” of factual and legal basis for the
prosecution’s theory that the plastic bottles and their contents were acceleration devices,
as alleged in the subsequent amendment, which “is the touchstone of due process notice
to a defendant. [Citation.]” (People v. Jeff (1988) 204 Cal. App. 3d 309, 342.)4 As
required by section 1009, Chief Whittington’s testimony at the preliminary hearing made
defendant well aware that the prosecution’s theory of guilt implicated his alleged use of
an accelerant: the fire’s point of origin was the three holes drilled into the eave above the
north door, the plastic bottles were placed in the small attic void space, the laboratory
reports stated they contained ignitable fluids, the plastic bottles were moments away from
being fully ignited, the bottles were used as accelerants, they were “staged for the
purpose of carrying the fire” through the attic space and the structure, and a fire ignited at
the three holes would not have reached further into the structure without the use of the
bottles as the accelerant.
4 Defendant’s case is clearly inapposite to the circumstances in Winters, which
held the trial court should not have granted the amendment because the defendant waived
his right to a preliminary hearing, and section 1009 “specifically proscribes amending an
information to charge an offense not shown by the evidence taken at the preliminary
hearing.” (Winters, supra, 221 Cal.App.3d at p. 1007; People v. Peyton (2009) 176
Cal. App. 4th 642, 654–659.)
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The court did not abuse its discretion when it granted the amendment because the
prosecution’s trial theory was virtually identical to the case presented at the preliminary
hearing. Indeed, defendant’s trial tactics reflected knowledge of the prosecution’s theory
and the evidence being presented. The defense theory was that defendant’s handyman
must have left the two bottles in the attic crawl space years earlier, and defendant did not
know anything about it until the fire. However, defense counsel also attacked the
prosecution’s evidence about the contents of the bottles, how they were discovered, the
condition of the bottles, the contents, and whether they would have accelerated the fire.
Counsel extensively cross-examined the two experts from S&N Laboratories about the
tests conducted on the bottles and the other evidence seized from the structure, and called
a defense expert to challenge the accuracy of S&N’s testing procedures.
H. The Court Properly Denied the Motion to Continue
We similarly conclude the court did not abuse its discretion when it denied
defendant’s subsequent motion to continue and reopen. “A continuance will be granted
for good cause [citation], and the trial court has broad discretion to grant or deny the
request. [Citations.] In determining whether a denial was so arbitrary as to deny due
process, the appellate court looks to the circumstances of each case and to the reasons
presented for the request. [Citations.] One factor to consider is whether a continuance
would be useful. [Citation.]” (People v. Frye (1998) 18 Cal. 4th 894, 1012–1013,
disapproved on other grounds in People v. Doolin (2009) 45 Cal. 4th 390, 421, fn. 22.)
Where the court properly grants an amendment to the information, and “the
amendment makes no substantial change in the offense charged and requires no
additional preparation or evidence to meet the change, the denial of a continuance is
justified and proper. [Citations.]” (Winters, supra, 221 Cal.App.3d at p. 1005.) Such is
the case here. As we have explained, the defense was well aware of the evidence in
support of the prosecution’s theory that the plastic bottles contained ignitable liquids, and
the bottles were placed in the attic space, to fuel the fire started in the holes above the
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north door. Defense counsel conceded there were no discovery issues. Indeed, the
prosecution’s theory was set forth in the investigative reports, the laboratory reports, the
preliminary hearing, and presumably through the testimony of Chief Whittington and the
other firefighters at defendant’s first trial.
Defendant relies on People v. Murphy (1963) 59 Cal. 2d 818 (Murphy) and asserts
an information may be amended at a late stage only to correct a clerical or typographical
error, which “rarely if ever are a surprise to the defendant.” Defendant argues the court
must grant a continuance to allow the preparation of a defense when a late amendment is
one of “substance” and involves a new allegation which must be proved beyond a
reasonable doubt and carries an additional term of imprisonment. Defendant concludes
the court abused its discretion under Murphy when it denied the continuance because the
defense never had the opportunity to further investigate or present an affirmative defense
to the accelerant enhancement, or cross-examine the prosecution witnesses on the new
issue.
Defendant’s reliance on Murphy is misplaced. In that case, the trial court granted
the prosecution’s motion to amend and add new charges, and denied the defendant’s
request for a continuance. (Murphy, supra, 59 Cal. 2d 818.) Murphy held that while
section 1009 vests the trial court with discretion whether to grant a continuance upon an
amended pleading, “that discretion may not be exercised in such a manner as to deprive
the defendant of a reasonable opportunity to prepare his defense.” (Murphy, supra, at
p. 825.) Murphy held the defendant’s substantial rights were violated by both the
amendment and the denial of the continuance, because the amendments were not
supported by the preliminary hearing testimony and amounted to new charges. (Id. at
pp. 826–827.) “The mere mention at the preliminary of some event not charged as an
offense can scarcely be held to put a person on notice that he must be prepared to
instantly go to trial on an information which substitutes the casually mentioned event for
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the offense which had been charged. [T]he transcript of the preliminary examination is
devoid of evidence to support the charge … as thus amended .…” (Id. at p. 826.)
Murphy’s holding is not applicable to this case, where there was a two-day
preliminary hearing addressing the same issue implicated by the enhancement, and the
defense to the enhancement would have been the same as the defense already raised at
trial to the arson charge.
In addition, an amendment that exposes a defendant to increased criminal liability
does not offend due process. Rather, the relevant inquiry is whether the amendment is
supported by evidence at the preliminary hearing. (§ 1009; People v. Arevalo–Iraheta,
supra, 193 Cal.App.4th at p. 1581.) We have already demonstrated that point. When
defense counsel moved for the continuance, she said that she needed time to consult an
arson expert in Los Angeles. Counsel stated she had previously consulted that expert, but
never called him to testify even though the prosecution’s theory was that defendant
intentionally set up the acceleration device in the attic. The defense theory was that one
of defendant’s neighbors started the fire because of his disputes with the homeowners’
association, the culprit was responsible for the three holes mysteriously drilled above his
door, and the plastic bottles just happened to have been stored in the small attic space for
several years when the fire was started. Defense counsel ably cross-examined Chief
Whittington about the nature and circumstances of his investigation, and his alleged
failure to check the leads suggested by defendant, primarily the animosity from his
neighbors in the mobile home tract. Defense counsel also called defense experts to attack
the reliability of the laboratory tests performed on the plastic bottles and ceiling samples,
and the forensic search of defendant’s computer. Defense counsel relied on this evidence
to assert that defendant was not responsible for the fire, someone else was the arsonist,
and the bottles happened to have been stored in the attic space without his knowledge.
Defendant failed to show how the defense case would have been different or
needed additional witnesses in response to the well-known evidentiary support for the
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accelerant enhancement. We thus conclude the court did not abuse its discretion when it
granted the prosecution’s motion to amend and added the enhancement, and denied
defendant’s motion to continue and reopen.
II. Defendant’s Requests to Discharge his Appellate Counsel
In the course of these proceedings, defendant has filed numerous motions,
pleadings, and letters seeking to discharge the attorney who was appointed by this court
to represent him in this appeal. He has declared that his appointed appellate counsel is
ineffective, and repeatedly expressed his frustration with this court’s failure to comply
with his demands to discharge counsel and appoint another appellate attorney.
“Under California law a criminal defendant has neither a constitutional nor
statutory right to argue his case on appeal, or to be present during such proceedings.
[Citations.] [¶] Moreover, under some circumstances, counsel may be appointed on
appeal over the defendant’s objections. [Citations.] Once appointed, the attorney has the
exclusive right to appear and control court proceedings as long as fundamental rights are
not denied; neither the party himself nor another attorney can be recognized in the
conduct or disposition of the case. [Citations.]” (In re Walker (1976) 56 Cal. App. 3d
225, 228; People v. Scott (1998) 64 Cal. App. 4th 550, 556–560.) The attorney is the
“captain of the ship” in deciding which legal issues should be raised (In re Horton (1991)
54 Cal. 3d 82, 95; People v. Freeman (1994) 8 Cal. 4th 450, 509) and appellate counsel
has no obligation to raise frivolous issues at his client’s behest (Smith v. Robbins (2000)
528 U.S. 259, 278; Rules Prof. Conduct, rule 3–200(B)).
Defendant has asserted his appointed appellate counsel’s representation has been
prejudicially ineffective. A claim of ineffective assistance of appellate counsel requires a
showing of both deficient performance and prejudice. (In re Reno (2012) 55 Cal. 4th 428,
488.) Such a claim may be raised by an indigent defendant represented by appointed
counsel, and if the appellate court agrees that the appellate attorney failed to raise
significant meritorious issues, the defendant may be entitled to appointment of new
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counsel on appeal. (People v. Lang (1974) 11 Cal. 3d 134, 139, 142; People v. Rhoden
(1972) 6 Cal. 3d 519, 529.)
Based on a review of defendant’s pleadings, the record, and appellate counsel’s
brief, there is no basis in this record to support his ineffective assistance claim at this
time. Defendant is already well-aware of the habeas process, and if he wishes to
challenge the performance of his appellate attorney as ineffective, based on matters
outside the appellate record, the proper vehicle would be a petition for writ of habeas
corpus. (People v. Mendoza Tello (1997) 15 Cal. 4th 264, 266–267; People v. Salcido
(2008) 44 Cal. 4th 93, 172.)
DISPOSITION
The judgment is affirmed.
______________________
POOCHIGIAN, Acting P.J.
WE CONCUR:
______________________
FRANSON, J.
______________________
SMITH, J.
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