People v. McGinty CA1/3

Filed 2/5/14 P. v. McGinty CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
FIRST APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
A135201
v.
NANCY JO MCGINTY, (Mendocino County
Super. Ct. No. SCUKCRCR1116558)
Defendant and Appellant.
Nancy Jo McGinty (appellant) appeals from a judgment entered after she pleaded
no contest to attempted voluntary manslaughter (Pen. Code, §§ 664/192, subd. (a),
count one1) and arson of a dwelling (§ 451, subd. (b), count two) with the use of an
accelerant (§ 451.1, subd. (a)(5)), and the trial court sentenced her to 13 years in state
prison. She contends the trial court erred in: (1) imposing the upper term on count two;
and (2) not staying the sentence on count one pursuant to section 654. We reject the
contentions and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
A felony complaint was filed March 1, 2011, charging appellant with attempted
murder (§§ 664/187, count one) and arson of a dwelling (§ 451, subd. (b), count two).
The complaint further charged that appellant committed arson with a device designed to
accelerate the fire (§ 451.1, subd. (a)(5)). The complaint was based on an incident that
took place on December 14, 2010. That night, at about 10:20 p.m., Mendocino County
1
All further statutory references are to the Penal Code unless otherwise stated.
1
Sheriff’s Office Deputies Elmore and Kendall responded to a residence regarding a
suspicious circumstance involving a fire.2 When Kendall arrived, he saw that the
residence was burned and that most of the roof and walls had come down.
Kendall spoke with Brooktrails Fire Chief Schoeppner, who said he had been
summoned to the location following a report of a fire and explosion. Upon arrival, he
noticed the residence was fully engulfed in flames and that the south living room wall
had been “basically blown out and laying against a large fir tree” that was holding the
separated wall up. Schoeppner stated that neighbors had saved Michael Faustina—a
disabled adult resident—from inside of the house as it was burning. Kendall knew both
Faustina and Faustina’s mother, appellant, from prior contacts. Faustina was a 31-year-
old man with a brain injury from a traffic accident. He was a quadriplegic and could not
speak, move, or eat without assistance.
A neighbor who identified himself as “Zac” said that he heard the explosion and
saw the house burning. Zac knew that Faustina was bedridden inside, so he entered with
another neighbor in hopes of rescuing him. Zac reported that when he entered the
residence, he saw Faustina and noticed the wood stove had a five-gallon propane tank on
it, which he thought was “odd” and “extremely unsafe.” He was able to remove Faustina
from the house. Faustina was transported by ambulance to a hospital. According to
Schoeppner, Faustina appeared to have been burned and there was black soot around his
mouth and face.
Neighbors said that appellant should have been home at the time of the fire and
explosion. Kendall noticed that both of appellant’s vehicles were parked in front of the
home. Kendall found a letter on a laptop computer inside of one of appellant’s vehicles
that was addressed to one of her sons and read, “Alex, look at my documents and open
new word document, it is for you. Dylan’s letter is under as I was going through boxes.
I’m sorry I did not finish it! I love you both very much. Sorry Mom.” Kendall reviewed
2
The facts relating to the incident are taken from the probation officer’s report.
The first names of the deputies and various other individuals were not included in the
report.
2
the letters and found they contained explanations of various events surrounding the
separation of her and the children’s father. Kendall also found a letter inside appellant’s
mailbox that was addressed to Kelly Shannon of Danville, California. The letter
contained appellant’s “last remaining money.” Based on appellant’s letters to her sons
and to Shannon, Kendall believed appellant may have been trying to tie up loose ends
before committing suicide via arson to her residence. Schoeppner advised that he would
not be able to search the residence for bodies until the morning because the house was
still “extremely hot” and unsafe to enter.
On December 15, 2010, Deputy Byrnes, who was also familiar with Faustina and
appellant, went to appellant’s house to conduct a follow-up investigation. Byrnes entered
the house and observed that the majority of the south side, including the living room,
kitchen, hallway, rafters, and roof, had been completely burned and was open to the sky.
Schoeppner told him that fire personnel had removed from the living room a five-gallon
propane tank that was missing its shut-off valve. Schoeppner said fire personnel had
conducted a search of the burned residence for other possible victims and had not found
appellant.
Byrnes and Schoeppner entered the residence together. When they got to the
master bathroom, Byrnes saw what appeared to be a human body lying in a fetal position
in the bathtub. There was a blanket over the body, and there were clean, “not soot
covered,” feet protruding from underneath the blanket. It appeared the blanket was dry
and contained a minimal amount of soot compared to the inside of the bathroom and tub.
The blanket appeared to move slightly up and down, as if the person underneath had
shallow breathing. Byrnes called appellant’s name, discovered that the person was
appellant, and summoned medical help. Appellant appeared to be fairly clean and in fair
health, as she was able to walk and had minimal soot on her hands and face. Appellant
had dried pine needles in her hair. Ambulance personnel transported appellant to a
hospital. Byrnes followed the ambulance and interviewed appellant.
3
Appellant told Byrnes that she was home with Faustina and her two dogs on the
day of the incident.3 Her sister-in-law, Barbara Daughtry, who worked for her and
helped take care of Faustina, had left the prior Thursday to visit an ill family member
who lived out of the area. Appellant went to fill up five and seven-gallon propane tanks
and went to buy groceries before Daughtry left because she knew she would not be able
to leave the house for several days while Daughtry was away, as she would be taking care
of Faustina by herself. Appellant brought the five-gallon propane tank inside the house
and made it to the hallway, where she ended up setting it down. She then heard Faustina
cough, so she went to his room to suction out his throat, and then to her bedroom, where
she laid down. She then heard a loud hissing sound and got up to see that the propane
tank, which had rolled down the hallway toward her bedroom, was on fire. The room
filled with smoke, and she could not breathe or see. She could not get to Faustina’s room
because the flaming propane tank was blocking the hallway. Later, she heard someone
yell in or around Faustina’s room, but knew it could not have been him, as he could not
talk. Because of the smoke, appellant could not find the bedroom door that led to the
outside. She decided to lie down in the bathtub in her bathroom. She got cold and
retrieved a dry blanket and pants from the bathroom closet.
Appellant denied knowing how the fire started and claimed she never left the
house. She went on to explain personal financial and emotional problems she had been
having with her ex-husband, Allen McGinty, and her estranged children. She explained
the house was in foreclosure status due to Allen not helping to pay the bills. She said she
had planned to move out of the residence on the date of the interview. Appellant denied
consuming any alcohol or taking any drugs the evening before the fire. She said her head
hurt and that there was something in her hair; she pulled out some pine needles from her
hair. Byrnes asked appellant how she got them in her hair; appellant said she did not
know.
3
The dogs were later found dead in the house.
4
Byrnes interviewed Amy Niesen, a hospital emergency room manager. Niesen,
who was “very familiar” with appellant and Faustina from prior contacts, said that
appellant did not appear to be her usual self. She was usually “concerned and demanding
of the treatment Faustina received, but did not appear genuine with her inquiry as to
[Faustina’s] well-being.” Niesen reported that before appellant was released from the
hospital, her son Alex had come to visit her. Niesen was at appellant’s bedside when
appellant said to Alex, “Nobody checked on us for over a week, why do you think I did
this?” Alex looked at appellant and began to cry. When Niesen told appellant she was
being released, appellant said she could not leave because she was waiting for Byrnes to
arrest her.
Byrnes also interviewed neighbor “Zac” regarding his rescue of Faustina. Zac
said he knew Faustina was a quadriplegic who could not speak. On December 14, 2010,
Zac was in his living room when he heard a large explosion and felt his house shake. He
heard a woman yelling and a hissing sound from outside. He went outside and saw a
glow coming from appellant’s house and knew it was on fire. Zac told his girlfriend to
call 9-1-1 and ran to appellant’s house. Upon reaching the driveway, he saw a fire
shooting up the wall in the corner of the living room. Zac made various attempts to gain
access to the house and finally succeeded by kicking in a door until it partially opened.
Thick, black smoke bellowed out of the door opening. Zac and another neighbor,
Francis, heard Faustina coughing. Zac crawled into the room and dragged Faustina off
the bed. Faustina’s eyes were “wide-eyed open and appeared to be alert.” The look in
Faustina’s eyes appeared to be “one of panic, as if Faustina knew he would die.” After
dragging Faustina outside, Zac and Francis cleared the soot from Faustina’s mouth and
carried him to the driveway to wait for the ambulance. Fire personnel arrived, attended
to Faustina, and attempted to extinguish the fire. Zac did not see appellant during or after
the fire.
On December 30, 2010, Byrnes met with appellant at her sister’s home in
Danville, California. Byrnes told appellant that the evidence that had been retrieved
during the investigation “spoke for itself.” Appellant responded, “I did it. I did not start
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it, but I put the propane tank on the wood stove.” Appellant said she had told a
psychiatrist she was seeing that her life had started to “spiral downward” and it had
“got[ten] worse and worse” and she could not pull herself out of it. It “pushed her over
the edge” when her sister-in-law “made up a story to get some time off.”
Appellant explained that it had been almost six years since her son had been in an
accident, leaving him a quadriplegic. She visited Faustina in a hospital in San Jose every
week until she brought him home in 2007. Conflict arose with her now ex-husband,
Allen, regarding whether Faustina should be cared for in their home. On one occasion,
Allen turned off Faustina’s oxygen tank, which resulted in domestic violence and a
restraining order. Allen moved out of the home a few months later and her two other
sons also eventually moved out. Appellant hired caregivers to help with Faustina but
fired them for various reasons. She felt that medical professionals “just put Faustina in a
bed and left him to die.” Appellant sought assistance from the county, but received no
response. The only help she was able to get was from a sister-in-law.
Appellant said she was embroiled in an “extremely bitter battle” with Allen over
financial issues, including ownership of the house and various outstanding bills.
Appellant said Allen was not helping with the bills and that she was responsible for
making all mortgage payments and car payments and covering all other expenses. Allen
had also written checks against the loans, and she had just learned in November 2010 that
the house was in foreclosure status. Allen, who was still a co-owner of the house, refused
to sign his half of the interest over to her. Appellant said that as a result of all of the
stress in her life, she decided she did not want to live anymore.
Appellant stated that she “made a plan” on December 14, 2010, after speaking
with Faustina, who told her he did not want to go into a facility again and wished to die
with her instead. Appellant described to Byrnes in detail how she planned to burn the
house down. She placed a five-gallon propane tank and four or five oxygen tanks around
the house, put Manzanita wood in the stove because she knew it would burn for a long
time, gave Faustina two muscle relaxers to help him fall asleep, checked on him to make
sure he was sleeping, then took four of his Percocet, a narcotic analgesic. She opened the
6
valves on the oxygen and propane tanks and left the wood stove door open. She turned
one kitchen stove burner on to release propane, and laid down on her bed to sleep.
Appellant later awoke and realized her plan was not working, as the oxygen tanks
were not hissing. She took some pliers and opened one of the oxygen tanks valves
further, and oxygen came out. She put more wood in the fire and closed the door to the
wood stove. She also turned two more kitchen burners on and placed the propane tank on
the wood stove. She gave Faustina two more muscle relaxers, and she took four more
Percocet. She later awoke to a hissing sound and saw something shoot down the hallway.
At that point, the house was full of smoke and she could not breathe. She headed toward
the glass sliding door in her bedroom, but could not remember anything that happened
after that. The next thing she remembered was that she was going into the bathroom,
reaching for a blanket, and covering herself up in the bathtub. She noted she had
redwood needles in her hair, but did not remember going outside.
Appellant said she wanted to blow up the house because she did not want Allen to
have it. She hoped to take her own life and “make sure nobody else got anything.” She
believed the fire would burn everything and nobody would have to deal with cleanup.
Byrnes asked appellant how she communicated with Faustina. Appellant explained that
Faustina responds by blinking twice to answer “yes,” and once to answer “no.” She said
she asked him specific questions and advised him she was going to end her life. She told
him her plan and asked him if he thought it would work. Faustina answered yes. When
she asked him if he wanted to go to a facility or die with her, his responses indicated that
he wanted to die with her. Appellant said she knew she “had to pay” for what she had
done but did not want to go to prison for the rest of her life. She wished to see Faustina
and start a new chapter in her life. She hoped to find a group home for Faustina in the
Bay Area, where more resources were available, and where her two sisters lived.
Appellant planned to find employment and housing in the Bay Area.
Byrnes later reviewed Faustina’s medical reports, which showed he had been
administered four liters of oxygen. Emergency medical technicians “performed oral
suctioning and tracheal suctioning with a large amount of soot and burned material
7
removed from the oral cavity and the tracheostomy.” Faustina had “evidence of soot and
partial-thickness burns around the face, as well as soot on the dorsum and of the hands.”
“[D]ue to significant smoke inhalation, elevated carboxyhemoglobin, and significant
amounts of carbonaceous material in his oropharynx and tracheostomy tube, there was a
concern of burns to the lungs and possible pulmonary injury.” As a result, Faustina was
transferred to St. Francis Burn Center via Reach Air ambulance.
Appellant pleaded no contest to attempted voluntary manslaughter and arson, and
to using a fire accelerant. On March 28, 2012, the trial court sentenced appellant to 13
years in state prison, consisting of the upper term of eight years on the arson account, a
consecutive four years for the use of an accelerant, and an additional consecutive one
year term for the attempted voluntary manslaughter count. Appellant filed a timely
notice of appeal.
DISCUSSION
Upper Term
Appellant contends the trial court erred in imposing the upper term on the arson
count. We disagree.
The trial court has wide discretion in weighing aggravating and mitigating factors.
(People v. Avalos (1996) 47 Cal.App.4th 1569, 1582.) The weighing of these factors by
the sentencing court involves a flexible analysis, not a rigid numerical approach, and it is
not necessary for the court to discuss each factor individually. (People v. Thornton
(1985) 167 Cal.App.3d 72, 77; People v. Evans (1983) 141 Cal.App.3d 1019, 1022.) A
reviewing court must presume in favor of the trial court’s exercise of sentencing
discretion, absent a clear showing by appellant that the sentence was capricious, arbitrary
or irrational. (People v. Giminez (1975) 14 Cal.3d 68, 72.) Moreover, the power of the
reviewing court in determining the sufficiency of the evidence to support the findings of
the trial court begins and ends with a determination as to whether there is any substantial
evidence, contradicted or uncontradicted, that will support such conclusions or findings.
(People v. Gragg (1989) 216 Cal.App.3d 32, 46.) Because a sentencing court need only
find an aggravating factor by a preponderance of the evidence, any credible, solid
8
evidence appearing in the record will necessarily be substantial enough to support the
lower court’s exercise of discretion as to sentencing factors in aggravation and
mitigation. (See People v. Preyer (1985) 164 Cal.App.3d 568, 577.) If such evidence
appears on the record, then the reviewing court must uphold the lower court’s finding
against appellant’s challenge. (People v. Giminez, supra, 14 Cal.3d at pp. 72–73; People
v. Preyer, supra, 164 Cal.App.3d at p. 577.)
Here, there was ample evidence supporting the trial court’s finding that there were
aggravating factors that justified the upper term on the arson count. Appellant’s actions
placed numerous individuals at great risk, including her quadriplegic son who she knew
could not protect himself in any way, numerous firefighters, the neighbors who went
inside to save her son, and other neighbors whose homes and lives could have been
destroyed by the explosion and subsequent conflagration. Appellant also blew up the
house, causing great financial damage, and admitted she did so in order to prevent her ex-
husband from getting possession of the house, and to “make sure nobody else got
anything.” Moreover, she did not add just a little accelerant to start the fire; rather, she
turned on oxygen tanks and propane tanks in order to blow the roof and the walls off of
her house. It was also a calculated crime, as she planned the fire by purchasing propane
gas, placing propane tanks strategically inside the house, and filling the stove with
Manzanita wood, which she knew would burn for a long time. Finally, appellant initially
denied any culpability for the offense, making up a story about inadvertently leaving a
propane tank inside the house and having no idea how the fire started. She later said she
started the fire and intended to kill herself as well, but there was evidence suggesting this
was not true and that she had left the home before or during the fire, as there were pine
needles in her hair and minimal soot on her.
The trial court relied on many of the above aggravating factors in imposing the
upper term of eight years on the arson count. The court added that while “the
background to the events that occurred . . . would cause anybody to have great empathy
with [appellant],” it did not mitigate her unjustifiable actions. The court believed
appellant had “delud[ed] [her]self to think that [her son] . . . could have entered into a
9
reasonable, rational, and informed decision” to die, and that even if she had truly believed
her son wished to die, “the manner that [she] chose to accomplish” the objective placed
numerous people at great risk. The court also noted that appellant “could have made life
more difficult for [her] son,” who “could have been gravely injured.”
Even a single aggravating factor “is sufficient to impose an aggravated sentence
where the aggravating factor outweighs the cumulative effect of all mitigating factors,
justifying the upper prison term when viewed in light of general sentencing
objectives . . . .” (People v. Nevill (1985) 167 Cal.App.3d 198, 202.) Here, in light of the
fact that the offense involved great violence, disclosing a high degree of callousness (Cal.
Rules of Court, rule 4.421(a)(1)), the victim was particularly vulnerable
(rule 4.421(a)(3)), the manner in which the crime was carried out indicates a great deal of
planning and sophistication (rule 4.421(a)(8)), the crime involved damage of great
monetary value (rule 4.421(a)(9)), and appellant engaged in violent conduct, indicating a
serious danger to society (rule 4.421(b)(1)), we conclude the trial court properly imposed
the upper term.
Section 654
Appellant contends the trial court erred in not staying the sentence on count one
pursuant to section 654. We disagree.
Section 654 provides: “An act or omission that is punishable in different ways by
different provisions of law shall be punished under the provision that provides for the
longest potential term of imprisonment, but in no case shall the act or omission be
punished under more than one provision. In determining whether the facts call for the
application of section 654, the threshold inquiry is to determine the defendant’s objective
and intent. If all the offenses are incident to one objective, the defendant may be
punished for any one of them, but not for more than one. (People v. Coleman (1989) 48
Cal.3d 112, 162.) Whether a defendant acted with a singular intent and objective is a
question of fact for the trial court and the court’s finding will not be disturbed if it is
supported by substantial evidence. (People v. Avalos, supra, 47 Cal.App.4th at p. 1583.)
The “intent and objective” test is not applied broadly for purposes of section 654. Thus,
10
where a defendant entertained multiple criminal objectives that were independent of and
not merely incidental to each other, the trial court may impose punishment for
independent violations committed in pursuit of each objective even though the violations
shared common acts or were parts of an otherwise indivisible course of conduct. (People
v. Akins (1997) 56 Cal.App.4th 331, 338–339; see also People v. Hicks (1993) 6 Cal.4th
784, 790.)
Here, the trial court properly sentenced appellant. In imposing a consecutive term,
the court noted, “[a]nd I think this deserves sentencing as a consecutive term rather than a
concurrent because you still—if your intent had been to take your own life and to do that
by means of arson or by burning the building, there was still no need—you could have
accomplished that without attempting to kill your son Michael as well. In my mind, even
though it’s related to arson in that they both used the same means, it’s still a separate
action on your part, the attempted voluntary manslaughter.” Appellant harbored separate
intents and objectives when she committed the arson and the attempted manslaughter.
The arson conviction was based on her plan of killing herself and/or destroying the house
so that her ex-husband would not be able to have the house. She described the animosity
between her and her ex-husband at length and admitted she “[blew] up the house” at least
in part because she did not want him to have it. The attempted voluntary manslaughter
conviction was based on her objective to kill her son. Because she had distinct intents
and objectives in committing the two crimes, her convictions were based on separate acts
that were not part of an indivisible course of conduct. (People v. Douglas (1995) 39
Cal.App.4th 1385, 1393; People v. Evers (1992) 10 Cal.App.4th 588, 602–603.) There
was no error.
DISPOSITION
The judgment is affirmed.
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_________________________
McGuiness, P.J.
We concur:
_________________________
Siggins, J.
_________________________
Jenkins, J.
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