People v. McCabe CA2/5 ( 2024 )

Filed 5/23/24 P. v. McCabe CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B328597
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA116642)
v.
DAVID McCABE,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Richard M. Goul, Judge. Affirmed.
Rudolph J. Alejo, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Zee Rodriguez and Nicholas J. Webster,
Deputy Attorneys General, for Plaintiff and Respondent.
___________________________
Defendant David McCabe was charged with three counts of
arson after he lit three fires in the City of Long Beach. At trial,
he admitted to setting the fires, but invoked the defense of
necessity based on his need to warm his arthritic hands. A jury
convicted him of three counts of the lesser included offense of
unlawfully causing a fire. After his conviction, defendant
asserted that his counsel did not adequately represent him at
trial and requested a new attorney in order to file a motion for
new trial. The trial court declined his request and imposed a
sentence of time served with no probation.
On appeal, defendant argues that the verdicts are tainted
by two instructional errors and that the trial court erred in
refusing to hold a Marsden hearing. There was no prejudicial
error, so we affirm.
FACTS AND PROCEDURAL BACKGROUND
On February 4, 2021, defendant David McCabe, a 63-year-
old homeless veteran, lit three separate fires in the City of Long
Beach—two on the campus of a local high school, and one in the
front yard of someone’s home. When police confronted him, he
admitted to setting the fires, described where he had set them,
and explained that he needed the fires to warm his hands.
I. Charges
The People charged defendant with three counts of arson,
including one count of arson of forest land (Penal Code, § 451,
subd. (c); count one) and two counts of arson on a property of
another (§ 451, subd. (d); counts two and three). The arson of
forest land count corresponded to the fire defendant set in the
front yard of a home. The People further alleged that defendant
had a prior felony conviction for unlawfully causing a fire
pursuant to section 452, subdivision (b) that qualified as a strike
2
under section 1170.12, subdivision (b) and section 667,
subdivision (d).
The matter proceeded to a jury trial.
II. Evidence at Trial
Defendant testified that he set the three fires, but that he
had had only done so to warm his hands, which were extremely
painful and stiff. He explained that he has psoriatic arthritis,
which causes swelling episodes that destroy his joints, and that
this condition is aggravated by the cold. Defendant takes two
medications for his arthritis, but he had been robbed of all of his
belongings two days before the fires.1 He testified that he was
punched twice in the face during the robbery, leaving him with
bruises on his cheeks.
Defendant further testified that COVID-19 was running
rampant at the time, and that he was afraid to go to homeless
shelters as a result. Defendant went to the Veteran’s
Administration Hospital, but was told to leave the premises
because he lacked identification. He slept outside on February 3,
2021, which he testified was a “very cold” night. Having slept in
the cold and gone without his medication for two days, defendant
woke up with pain and stiffness in his hands. He was also sick,
1 Defendant also presented the expert testimony of an
emergency medical physician who having reviewed defendant’s
medical records confirmed that defendant had been diagnosed
with psoriatic arthritis and other conditions which made him
vulnerable to severe COVID-19. The doctor explained that
psoriatic arthritis “causes inflammation in your body that creates
problems with . . . all the joints in your body can cause
inflammation, stiffness, and pain,” and that one of the
medications defendant had been prescribed was “used to treat
more severe cases of psoriatic arthritis.”
3
sneezing, and had a runny nose. Defendant explained that he
walked to a school that was closed due to COVID-19, where he
started a fire “to warm [his] hands” and “take away the pain.” He
traveled to another area of the school and set another fire.
Defendant testified to having worn his clothes for two days at
that point. After putting the second fire out, defendant got onto a
bus, which was “very hot inside.” He got off the bus and was “hit
by cold again.” He then “collapsed on the ground” in front of a
home, where he made “another little fire” “under manicured
bushes that had been blown out.” A woman saw defendant, put
the fire out, and called the police.
Defendant admitted during direct examination that in 2018
he was convicted for unlawfully setting a fire in an inhabited
structure after he set fire to a plastic wreath hanging on his
friend’s door. On cross-examination about this incident,
defendant testified that the fire he set to the wreath was a “tiny
fire,” to which the prosecutor responded, “so we have to take your
word . . . .” Defendant interjected that he “witnessed it,” and the
prosecutor retorted, “you didn’t witness it. You did it.”
Defendant responded, “that makes me a witness too,” and the
prosecutor responded, “No. It makes you a defendant.” Defense
counsel objected as argumentative and the court sustained it.
On cross-examination, defendant testified that he had been
wearing the same clothes for three days when he lit the fires. He
also conceded that he lit a fire in the afternoon when “it wasn’t
cold” anymore, explaining that he was having an “arthritis flare-
up,” which he testified “the cold does not affect.” Defendant
described his hands as “stiff” and “hard to move” when he
experiences such flare-ups. He conceded that he lit one of the
4
fires on the grass at a school, despite being only two or three feet
from the sidewalk.
The video from the camera worn by the responding officer
was authenticated by that officer and played for the jury but is
not part of the record on appeal.
The fire captain who investigated the fires testified about
the locations of the fires and opined that defendant had set them.
He also explained that although defendant insisted he had “only
burned grass,” based on his training as a fire captain, any plant
that “grows in the ground” qualifies as forest land.
The parties stipulated that defendant had been “convicted
for Penal Code section 452(b), commonly known as causing fire to
an inhabited structure,” in 2018.
III. Closing Arguments
After explaining how the evidence supported each element
of arson of forest land (§ 451, subd. (c)) and arson of property (id.,
subd. (d)), the prosecution argued that defendant “was
exaggerating” about his pain and questioned his credibility.
He showed photos of defendant—not part of the record on
appeal—and stated, “there is no way [defendant looked] like that
after three days in the same pair of clothes.”
Referring to a photo and the footage from the responding officer’s
body camera, the prosecution asked the jury whether they saw
“bruising to his face,” or “sneezing,” consistent with defendant’s
testimony about being sick and having bruised cheeks from the
robbery. The prosecution also noted that in the body camera
footage, defendant “put[] his hands up,” “extending his middle
finger,” gave a “thumbs up,” and then “the hang loose,” all to
show that plaintiff had exaggerated about the pain and stiffness
in his hands. The prosecution also noted that when defendant
5
was speaking with officers, he stated that it was hot out and
asked to remove his sweatshirt.
Defense counsel’s sole argument was that defendant,
despite having set the fires, was “not guilty” because he acted out
of legal necessity in that “he started the fires to keep himself and
his damaged hands warm.” He went on to argue that defendant
“acted in an emergency,” in a time when he had no access to
healthcare, and COVID-19 prevented him from staying in a
homeless shelter.
In his final closing argument, the prosecutor explained
that, like crimes, “defenses also have elements,” and that the jury
has “to find every single one of” the six elements of necessity:
emergency; no adequate legal alternative; act did not create
danger greater than one avoided; defendant actually believed
fires were necessary to prevent harm; reasonable person would
have thought fires necessary; and defendant did not substantially
contribute to the emergency.
As to the emergency element, the prosecutor argued that
defendant did not inform any officers that he lit the fires out of
emergency; he did not go to an emergency room; he walked away
from the fires he had lit; and he did not wear his gloves, despite
being heard in the body camera footage stating that he had
gloves. Finally, the prosecutor suggested there were adequate
legal alternatives, such as wearing his gloves or lighting the fires
at a grill or fire pit rather than in someone’s front yard.
After the trial, the parties and the court realized that
defendant’s prior conviction under section 452, subdivision (d)
had been incorrectly alleged as a strike.
6
IV. Jury Instructions
The jury was instructed on “Count 1” that defendant is
guilty of arson in violation of section 451, subdivision (c), if he
“set fire to or burned forest land” and “acted willfully and
maliciously.” The instructions for “Counts 2 and 3,” for arson in
violation of section 451, subdivision (d), provided that defendant
is guilty if he “set fire to or burned property,” and “acted willfully
and maliciously.” In each of these instructions, the jury was
informed that “[p]roperty means personal property or land other
than forest land,” but the definition for “forest land” – provided as
an option in CALCRIM No. 1515 as “brush-covered land, cut-over
land, forest, grasslands, or woods” – was not given.
The jury was also instructed on the lesser offenses—
referred to as “Count[s] 4, 5, and 6”--of “unlawfully causing a fire”
under section 452 (CALCRIM No. 1532). The jury was instructed
that defendant is guilty of unlawfully causing a fire if he “set fire
to, burned, or caused the burning of property,” and “did so
recklessly.”
The jury was instructed on the defense of necessity
(CALCRIM No. 3403), that “defendant is not guilty of [counts] 1,
2, [or] 3 . . . if [he] acted because of legal necessity.”
V. Verdict
After closing argument, the jurors deliberated for two hours
in the afternoon and one more hour the following morning before
returning their verdict.
In accordance with CALCRIM No. 3517 instructing jurors
on completion of the verdict forms, there were separate verdict
forms for the arson counts (the greater crimes) and the lesser
offense of unlawfully causing a fire associated with each greater
crime. The labelling of the counts was the same for the charged
7
offenses of arson as it was for the lesser offenses; that is, both the
charged and the corresponding lesser offenses were labeled as
counts one, two, and three.
The jury found defendant “not guilty of the crime of arson
of . . . forest land in violation of . . . section 451(c), a felony as
charged in count 1 of the information,” but “guilty of the crime of
unlawfully causing a fire in violation of . . . section 452, a felony,
a lesser included offense within count 1 of the information.”
Similarly, the jury found defendant “not guilty of the crime of
arson of a property of another in violation of . . . section 451(d),
. . . as charged in” counts two and three of the information, but
“guilty of the crime of unlawfully causing a fire in violation of . . .
section 452, a felony, a lesser included offense within” counts two
and three of the information.
After the jury returned its verdict and was discharged, the
prosecution moved “to amend counts 2 and 3 to reflect lesser
included offenses as [section] 452(d), a misdemeanor and count 1
as lesser included offense 452(c), a felony.” The court noted there
was “no objection by defense counsel,” and the lesser offenses
were amended accordingly.
VI. Marsden Motion
On December 14, 2022, the court convened a hearing for
sentencing. At that hearing, defendant expressed dissatisfaction
with his attorney, complaining that the prosecutor had “told the
jurors [he] had an arson with a strike,” and that defense counsel
“did not object.” Defendant also complained that the prosecutor
during cross-examination said that defendant was not a “witness”
to the prior crime because he was the “defendant,” and that
defense counsel did not object, which defendant argued was
ineffective assistance. Defendant continued that his counsel,
8
“didn’t defend [him] all the way,” and that he had “lots of other
problems” with his attorney, including that for 22 months,
defendant and his counsel had been arguing about whether
defendant had a prior strike, which he did not.
The court continued the sentencing hearing and set a
hearing for a possible new trial motion for the same date.
Defendant waived his right to be sentenced that day, stating “but
if I have to make that motion for a new trial, I need a new
attorney.”
At the next hearing, defendant stated that his counsel
“cannot represent” him because “he is guilty of ineffective
assistance of counsel,” and that “veterans court [is] where
[defendant is] supposed to go next.” Defendant told the court,
that he “cannot be released out in the cold with no clothes, no
money, in the same position [as he] was when [he] was arrested,”
and that he “want[s to file] a motion for retrial for the reasons . . .
stated.” The court proceeded to sentence defendant to “no
probation [and] time served.”
DISCUSSION
I. Instructional Errors
We review claims of instructional error de novo. (People v.
Morales (2021) 69 Cal.App.5th 978, 990.)
A. Necessity
The jury was instructed that necessity was a defense to
counts one, two, and three, and was only presented with verdict
forms for counts labeled one, two, and three. The jury
instructions, however, referred to the lesser offenses as counts
four, five, and six. Based on this inconsistency, defendant argues
that the trial court erred in failing to instruct the jury that
necessity was a defense not only to the charged crimes of arson,
9
but also to the lesser included offenses of unlawfully starting a
fire. We consider the merits of this argument, despite defendant
having forfeited it by not requesting a modification to the jury
instructions below. (People v. Bell (2020) 48 Cal.App.5th 1, 20.)
When instructional error is claimed, our task is to
determine whether the trial court “ ‘ “fully and fairly instructed
on the applicable law.” ’ ” (People v. Franco (2009)
180 Cal.App.4th 713, 720.) When a jury instruction is
ambiguous, we look to the instructions as a whole and the entire
trial record—including the arguments of counsel—to determine
whether there is a reasonable likelihood that the jury was misled
to the defendant’s prejudice. (People v. O’Malley (2016)
62 Cal.4th 944, 991; People v. Bell, supra, 48 Cal.App.5th at
p. 16.) We must assume that jurors are intelligent people capable
of understanding and correlating all jury instructions given.
(O’Malley, supra, 48 Cal.4th at p. 991.) We give jury instructions
a reasonable, rather than technical, meaning, and interpret them
to support the judgment if possible. (People v. Martinez (2019)
34 Cal.App.5th 721, 728; Franco, supra, 180 Cal.App.4th at p.
720.)
We agree that viewed in isolation the inconsistent
numbering of the lesser included offenses—labeled as counts one,
two, and three on the verdict forms, but as counts four, five, and
six in the jury instructions—might create some ambiguity as to
whether necessity is a defense to the lesser included as well as
the charged offenses. However, viewed in the context of the trial
record as a whole, we find no reasonable likelihood that the jury
misinterpreted the instructions. Defendant’s entire case centered
on his necessity defense, as he did not dispute having set the
fires. Both attorneys’ closing arguments focused on the
10
applicability of the defense. Defense counsel argued that
defendant was “not guilty” by reason of legal necessity, without
referring to or distinguishing between the charged and lesser
included offenses. Finally, and most tellingly, there is no
indication in the record that the jury sought clarification on the
instructions; and its deliberation was relatively short. (See
People v. Young (2005) 34 Cal.4th 1149, 1203.) Because we
conclude there was no error, we do not reach the parties’
arguments about harmlessness.
B. Elements of Lesser Included Offenses
Defendant argues that the trial court erred in issuing the
same instruction for unlawfully setting a fire to property for all
three lesser included offenses because the first charged offense
was for arson of forest land, not property. The People concede
this was error, but argue it was harmless.
Chapman review applies to instructions that omit an
element of an offense or that provide an incomplete or misleading
conception of an element. (People v. Schuller (2023) 15 Cal.5th
237, 257.) Accordingly, we must determine whether it is clear
beyond a reasonable doubt that a rational jury would have
rendered the same verdict absent the error. (People v. Merritt
(2017) 2 Cal.5th 819, 824, 831.)
Section 450 defines “forest land” broadly, to mean “any
brush covered land, cut-over land, forest, grasslands, or wood.”
(§ 450, subd. (b); CALCRIM No. 1515.) Defendant himself
testified that he set fire under “manicured bushes that had been
blown out.” The fire captain described a photo as showing a
close-up of “the area where the grass burned.” In closing, the
prosecutor argued that the forest land element was met because
forest land includes “brush covered land.” Defendant did not
11
offer any evidence or argument to oppose the fire captain’s
testimony or the prosecutor’s theory on this point. Instead, his
sole defense was based on legal necessity.
Defendant argues that he “personally disputed” the forest
land element in his testimony when he stated, “I can’t see that as
forest land,” referring to the grass in the front yard where he set
a fire. Defendant’s opinion about the legal definition of “forest
land” for the purpose of arson is not relevant. Based on the
record, it is clear beyond a reasonable doubt that the jury would
have reached the same verdict had it been properly instructed on
the “forest land” element. Because there was no conflicting
evidence and no argument about the forest land element, we are
unpersuaded by defendant’s argument that “the jury necessarily
found the fire was not to forest land” when it found defendant
guilty of the lesser crime of unlawfully setting a fire to property.
Although the jury convicted defendant on the only lesser crime it
was presented with—unlawfully setting fire to property—the
prosecutor properly moved to amend the information to state the
correct offense of unlawfully setting fire to forest land, and
defendant did not object. (See People v. Sawyers (2017)
15 Cal.App.5th 713, 720 [the Penal Code permits accusatory
pleadings to be amended at any stage of the proceedings for any
defect or insufficiency and bars reversal of a judgment by reason
of any defect that does not prejudice a defendant’s substantial
right on the merits]; People v. Whitmer (2014) 230 Cal.App.4th
906, 919 [defendant may impliedly consent to the amendment of
a pleading by his conduct].)
II. Lack of Marsden Hearing Was Harmless
Defendant argues that the trial court’s refusal to hold a
Marsden hearing despite his requests for new counsel requires a
12
conditional reversal and remand. The People concede that “the
trial court should have held a Marsden hearing,” but urge that
any error was harmless.
Under People v. Marsden (1970) 2 Cal.3d 118, 124, it is
error for a trial court to deny the defendant the opportunity to
explain the basis for his request for new counsel. (People v.
Sanchez (2011) 53 Cal.4th 80, 87.) Given that defendant did
provide his reasons for requesting new counsel (despite not being
asked), we are not convinced that the trial court erred in not
holding a full-blown hearing. (See People v. Wharton (1991)
53 Cal.3d 522, 580 [when basis of defendant’s dissatisfaction with
counsel is set forth in sufficient detail, a full-blown hearing is not
required].) We need not reach that issue, however, because we
agree that any error was harmless.
We apply Chapman’s beyond-a-reasonable-doubt standard
in assessing the harmlessness of a trial court’s failure to hold a
Marsden hearing. (People v. Winn (2020) 44 Cal.App.5th 859,
871.) A trial court’s failure to conduct a postconviction Marsden
hearing is harmless where the defendant “has made no showing
. . . either that his Marsden motion would have been granted had
it been heard, or that a more favorable result would have been
achieved had the motion in fact been granted.” (People v.
Washington (1994) 27 Cal.App.4th 940, 944.)
Here, none of the alleged shortcomings defendant identified
provided a basis for granting his Marsden motion or a motion for
new trial. The prosecutor never told the jury defendant had a
prior arson conviction, so defendant’s assertion that his counsel
failed to object to such a statement is without merit. Defendant
also asserts that his counsel was ineffective in that he failed to
object when the prosecutor during cross-examination said that
13
defendant was not a “witness” to the prior crime because he was
the “defendant.” Such a trivial and tangential matter falls short
of showing defense counsel’s incompetence. (See People v.
Centeno (2014) 60 Cal.4th 659, 675 [“ ‘a mere failure to object to
evidence or argument seldom establishes counsel’s
incompetence’ ”].) Nevertheless, the record shows defense
counsel did object and the court sustained that objection.
Defendant stated that his counsel, “didn’t defend [him] all the
way,” and that he had “lots of other problems” with his attorney,
including that for 22 months, defendant and his counsel had been
arguing about whether defendant had a prior strike, which he did
not. We agree with trial court, however, that nothing in the
record suggests defense counsel was inadequate, at least not in
any way that prejudiced defendant. Defendant complains that
“he was made ineligible for [veteran] diversion by virtue of the
incorrect prior strike allegation.” But defense counsel did request
defendant be admitted into a veteran’s program, but the program
administrator concluded he was ineligible for diversion because of
his arson charges in addition to his prior conviction for
unlawfully setting fire to property. Ultimately, the trial court
found “the defendant eligible but not suitable for diversion in
that no program is available that meets the defendant’s needs.”
Defendant does not contend he would have received a more
favorable sentence had he been appointed new counsel during
sentencing.
14
DISPOSITION
We affirm the judgment.
LEE, J. *
I CONCUR:
KIM, J.
* Judge of the San Bernardino County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
15
The People v. David McCabe
B328597
BAKER, Acting P. J., Dissenting
The problem with the judgment of conviction in this case
does not really depend on correlating count numbers in jury
instructions with those on verdict forms. The problem is simple:
the jury was never instructed it should find defendant and
appellant David McCabe not guilty of any offense (lesser included
or as charged) if it credited his necessity defense. Under the
circumstances, we should not rely on weak arguments about the
duration of jury deliberations or dogs that did not bark (see
generally Elsner v. Uveges (2004) 34 Cal.4th 915, 933, fn. 18
[citing Silver Blaze]) to affirm. We should reverse and permit
retrial in the event the People so elect. That is what I would do.
BAKER, Acting P. J.