1

Filed 1/14/14 

CERTIFIED FOR PUBLICATION 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

FOURTH APPELLATE DISTRICT 

DIVISION TWO 

THE PEOPLE, 

 Plaintiff and Respondent, 

v. 

RICHARD JAMES GOOLSBY, 

 Defendant and Appellant. 

 E052297 

 (Super.Ct.No. FSB905099) 

 OPINION 

 APPEAL from the Superior Court of San Bernardino County. Bryan Foster, 

Judge. Reversed and remanded with directions to dismiss. 

 Steven S. Lubliner, under appointment by the Court of Appeal, for Defendant and 

Appellant. 

 Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney 

General, Julie L. Garland, Assistant Attorney General, Lilia E. Garcia, Barry Carlton and 

Felicity Senoski, Deputy Attorneys General, for Plaintiff and Respondent. 
2

 A jury found Richard James Goolsby, defendant and appellant (hereafter 

defendant), guilty of arson of an inhabited structure in violation of Penal Code section 

451, subdivision (b),1 and further found true the allegation that he caused more than one 

structure to burn within the meaning of section 451.1, subdivision (a)(4), based on 

evidence that defendant set a fire that caused two motor homes to burn.2 Because the 

felony conviction constituted defendant’s third strike, the trial court sentenced him to the 

mandatory term of 25 years to life in state prison, and also imposed various 

enhancements after first finding those allegations true. 

 Defendant raises various challenges to the jury’s verdict and to his sentence. We 

agree with his assertion that his motor home is not a structure.3 Therefore, the evidence 

that defendant set fire to his motor home does not support the jury’s verdict finding 

defendant guilty of committing arson of an inhabited structure, and also does not support 

the jury’s true finding on the multiple structure enhancement. Moreover, arson of 

property (§ 451, subd. (d)), the only other crime on which the trial court instructed the 

jury, is a lesser related, not a lesser included, offense to the charged crime. Therefore, we 

cannot exercise our authority under section 1181, subdivision 6, to modify the judgment 

by reducing defendant’s conviction to a lesser included crime. For that same reason, i.e., 

 1 All further statutory references will be to the Penal Code unless otherwise 

indicated. 

2 The jury found him not guilty of attempted murder. 

3 For purposes of arson, “‘Structure’ means any building, or commercial or public 

tent, bridge, tunnel, or powerplant.” (§ 450, subd. (a).) 
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because it is a lesser related crime, we also cannot remand the matter to the trial court for 

a new trial on the arson of property charge. Our only option, under the circumstances of 

this case, is to reverse the judgment based on insufficiency of the evidence and direct the 

trial court to dismiss the charge. 

FACTS

 The facts are undisputed, and only a few are necessary for our resolution of the 

issues defendant raises on appeal. Defendant and Kathleen Burley lived together in what 

was one of several motor homes defendant owned and had parked on a vacant lot. On 

November 28, 2009, defendant and Burley got into an argument. Sometime not long 

after the argument, in which defendant and Burley each called the police on the other, 

defendant used a vehicle to push an inoperable motor home next to the one in which he 

and Burley were living and where Burley then was sleeping. Defendant used gasoline to 

set the inoperable motor home on fire. After Burley got out with her dogs, the fire spread 

to the motor home in which she had been sleeping. The fire destroyed both motor homes. 

 Additional facts will be recounted below as pertinent to the issues defendant raises 

on appeal. 
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DISCUSSION

1.

THE EVIDENCE IS INSUFFICIENT TO SUPPORT THE 

JURY’S VERDICT FINDING DEFENDANT GUILTY OF 

ARSON OF AN INHABITED STRUCTURE

 Defendant contends, and we agree, that the evidence was insufficient to show that 

the motor home in which he and Burley were then living was a structure. Therefore, the 

evidence that he set fire to or caused that motor home to burn does not support the jury’s 

verdict finding him guilty of arson of an inhabited structure in violation of section 451. 

 Under section 451, “A person is guilty of arson when he or she willfully and 

maliciously sets fire to or burns or causes to be burned . . . any structure, forest land, or 

property.” Section 451 sets out “different levels of punishment, depending on the subject 

matter of the arson. [Citation.] These statutory categories, in descending level of 

punishment, are: (1) arson resulting in great bodily injury (five, seven, or nine years); 

(2) arson to [sic] ‘an inhabited structure or inhabited property’ (three, five, or eight 

years); (3) arson of a ‘structure or forest land’ (two, four, or six years); and (4) arson to 

other types of property (16 months, two, or three years). (§ 451, subds. (a), (b), (c) & 

(d).) By creating these different levels of punishment, the Legislature intended to impose 

punishment ‘“in proportion to the seriousness of the offense,”’ and, in particular, 

‘according to the injury or potential injury to human life involved . . . .’ [Citation.]” 

(People v. Labaer (2001) 88 Cal.App.4th 289, 292 (Labaer).) 
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 The district attorney in this case charged defendant with arson of an “inhabited 

structure” in violation of section 451, subdivision (b). Defendant pointed out in the trial 

court that according to section 450, which defines the terms used in the arson chapter, 

“‘Structure’ means any building, or commercial or public tent, bridge, tunnel, or 

powerplant.” (§ 450, subd. (a).) The trial court, at the district attorney’s urging, focused 

on whether defendant’s motor home was a dwelling, i.e., a place in which defendant and 

Burley intended to live more or less permanently. Based on that focus, the trial court 

permitted the jury to determine whether, in this case, a motor home is a structure for 

purposes of the arson statute. 

 Whether the crime is arson of a structure in violation of section 451 does not turn 

on whether a dwelling is involved, as clearly evidenced by the statutory definition of the 

term “structure.” Of the several types of structures included in the statutory definition, 

only a building is relevant here. As Division One of this court observed in Labaer, “The 

Penal Code does not define ‘building’ for purposes of arson; we therefore apply the plain 

meaning of the word. [Citation.]” (Labaer, supra, 88 Cal.App.4th at p. 292.) In Labaer, 

the defendant argued the mobilehome he had partially dismantled and then set on fire was 

“property” not a building and, therefore, not subject to the increased punishment for 

arson of a structure. In rejecting that claim, the court observed, “Labaer does not dispute 

that the mobilehome—as it existed during the months before the fire—constituted a 

‘building’ [and therefore a structure] under the arson statutes. The evidence established 

the [mobile]home was fixed to a particular location, could not be readily moved, and had 

been used as Labaer’s residence for several months. (Ibid.) 
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 The prosecutor did not present evidence to show that the motor home in which he 

and Burley then lived was fixed to a particular location and, therefore, had the attributes 

of a building. The common feature of the things included in the statutory definition of 

structure is that they are affixed to the ground and either cannot be moved at all or cannot 

be moved without first being dismantled and detached from the ground.4 A motor home 

is a vehicle, the very purpose of which is to move from location to location. Absent 

evidence to show the motor home was somehow fixed in place, such a vehicle cannot, as 

a matter of law, be a structure within the meaning of the arson statute.5 More 

importantly, and as defendant also pointed out in the trial court, the punishment for arson 

of an inhabited structure and the punishment for arson of inhabited property is exactly the 

 4 The Attorney General argues that the ability to move is not the determining 

factor because a commercial or public tent can be dismantled and transported in a truck. 

The obvious response is that when dismantled, a commercial or public tent is not a 

structure; it is property. 

5 The Attorney General argues, as the district attorney did in the trial court, that 

“[b]uildings commonly have walls and a roof. In general, their function is to hold people 

and property. Although a motor home has wheels and is not fixed to the ground, it is 

functionally a building, as it serves all the normal purposes of a building, and shares 

critical design features, such as walls and a roof, and even interior rooms. It is manifestly 

intended to hold people.” The definition of the term “structure” set out in section 450 

does not turn on purpose or function, it turns on permanence or immobility, the very 

attribute of a motor home the Attorney General would have us disregard. Moreover, 

section 451, the arson statute in question, does not focus on protecting people in buildings 

as the Attorney General contends. The statute applies to inhabited structures which the 

Legislature stated means not only buildings but bridges, tunnels, and powerplants. In 

addition, the severe punishment the Attorney General cites as evidence of the 

Legislature’s intent applies not only to inhabited structures but also to inhabited property, 

which by definition is everything other than a structure, i.e., a motor home. The only 

reason the severe punishment for arson of inhabited property does not apply in this case 

is that the district attorney inexplicably failed to charge it. 
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same,6 unlike in Labaer, in which arson of a structure that is not inhabited carries a 

greater punishment than arson of property that is not inhabited.7

 For purposes of the arson statute, defendant’s motor home is property, which by 

statutory definition “means real property or personal property, other than a structure or 

forest land.” (§ 450, subd. (c).) The district attorney only charged defendant with arson 

of an inhabited structure under section 451, subdivision (b), even though that section also 

applies to arson of “inhabited property.”8

In short and simply stated, the motor home at issue in this appeal is not a structure, 

as that term is defined in the arson statutes and as the trial court instructed the jury.9 

Therefore, the prosecutor’s evidence that defendant set fire to a motor home that caused a 

second inhabited motor home to catch fire was insufficient as a matter of law to support 

the jury’s verdict finding defendant guilty of arson of an inhabited structure. Nor does 

 6 Imprisonment in state prison for three, five, or eight years. (§ 451, subd. (b).) 

Because section 451, subdivision (b), includes both inhabited structures and inhabited 

property, we must reject defendant’s claim that arson of inhabited property is a lesser 

included offense on which the trial court should have instructed the jury. 

7 Arson of a structure is punishable by two, four, or six years in state prison 

(§ 451, subd. (c)); arson of property is punishable by 16 months, two, or three years in 

state prison (§ 451, subd. (d)). 

8 The original felony complaint and original information, as well as an amended 

felony complaint charged defendant with arson of an inhabited structure or property, but 

then the district attorney filed an amended information that only alleged arson of an 

inhabited structure. 

9 The trial court instructed the jury according to the statutory definition that a 

structure is any building, bridge, tunnel, powerplant, or commercial or public tent. 
8

the evidence support the jury’s true finding on the enhancement that defendant “caused 

multiple structures to burn during the commission of the arson.” The next issue we must 

address is the appropriate remedy. 

2. 

REVERSAL WITH DIRECTIONS TO DISMISS IS THE PROPER REMEDY 

 The prosecutor, as previously noted, elected to charge defendant only with arson 

of an inhabited structure. The trial court instructed the jury on the lesser offense of arson 

of property in violation of section 451, subdivision (d). Arson of property is a lesser 

related, but not a lesser included, offense to the charged crime of arson of an inhabited 

structure because, as the Attorney General concedes, the charged crime does not include 

all the elements of the lesser. (People v. Hughes (2002) 27 Cal.4th 287, 365-366 [“‘An 

offense is necessarily included in another if . . . the greater statutory offense cannot be 

committed without committing the lesser because all of the elements of the lesser offense 

are included in the elements of the greater’”].) “In other words, when the greater crime 

‘cannot be committed without also committing another offense, the latter is necessarily 

included within the former.’ [Citation.]” (Id. at p. 366.) 

 Arson of property as defined in section 450, subdivision (d), includes arson of 

everything except a structure or forest land. Moreover, as defendant points out, arson of 

property requires proof the property either did not belong to the defendant (because it is 

not unlawful to burn one’s own personal property), or in burning or causing one’s own 

property to burn, “there is an intent to defraud or there is injury to another person or 

another person’s structure, forest land, or property.” (§ 451, subd. (d).) Arson of a 
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structure is unlawful regardless of whether the defendant owns the structure. (§ 451, 

subd. (c).) Because it is possible to commit arson of a structure without also committing 

arson of property, the latter is not a lesser necessarily included offense of the charged 

crime in this case. Because arson of property is not a lesser necessarily included offense 

of the charged crime of arson of a structure, we cannot exercise our authority under 

section 1181, subdivision 6, to reduce defendant’s conviction from the greater to that 

offense. 

 Nor can we remand this matter to the trial court for a new trial on the lesser related 

offense of arson of property. Multiple prosecutions for the same act are prohibited under 

section 654;10 or as the Supreme Court put it in Kellett v. Superior Court (1966) 63 

Cal.2d 822, “When, as here, the prosecution is or should be aware of more than one 

offense in which the same act or course of conduct plays a significant part, all such 

offenses must be prosecuted in a single proceeding unless joinder is prohibited or 

severance permitted for good cause. Failure to unite all such offenses will result in a bar 

to subsequent prosecution for any offense omitted if the initial proceedings culminate in 

either acquittal or conviction and sentence.” (Id. at p. 827.) Although the trial court 

instructed the jury on the crime of arson of property, it did so only because the court and 

both attorneys believed it was a lesser necessarily included offense to the charged crime 

 10 Section 654, subdivision (a), states, “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. An acquittal or conviction and 

sentence under any one bars prosecution for the same act or omission under any other.” 
10

of arson of an inhabited structure. Consequently, the jury did not render or attempt to 

render a verdict on that crime because they had been instructed to do so only if they 

acquitted defendant on the charged greater offense. (Cf. Orlina v. Superior Court (1999) 

73 Cal.App.4th 258, 263-264 [retrial not barred under section 654 where jury acquitted 

on charged offense and deadlocked on lesser related offense].) Had the prosecutor 

charged defendant with the lesser related offense in this case, the jury would have been 

instructed to render verdicts on both the greater and lesser charges. Because the 

prosecutor did not do so, there is no unresolved or pending charge on which to remand 

this matter to the trial court. (Ibid.) Any new or subsequent trial in this matter would 

constitute a new prosecution of defendant based on the same evidence used to prosecute 

the original charge. Such a prosecution would violate section 654, subdivision (a). (See 

Sanders v. Superior Court (1999) 76 Cal.App.4th 609, 616.) 

 We conclude the prosecution, as a matter of law, failed to prove its case against 

defendant. Under the circumstances of this case, retrial is prohibited. We have no 

alternative but to reverse defendant’s conviction with directions to the trial court to 

dismiss the charges. 
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DISPOSITION 

 The judgment is reversed, and the matter is remanded to the trial court with 

directions to dismiss the charge and all enhancements based on insufficiency of the 

prosecution’s evidence to prove the charged crime. 

 CERTIFIED FOR PUBLICATION 

McKINSTER 

 Acting P. J. 

I concur: 

CODRINGTON 

 J.
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RICHLI, J., Concurring and dissenting. 

I concur with the majority’s holding that, on the facts of this case, defendant’s 

motor homes were not “structures” within the meaning of the arson statutes. I 

respectfully dissent, however, from the majority’s conclusion that defendant is now 

entitled to a “get out of jail free” card. 

I am willing to assume, without deciding, that we cannot simply reduce the 

offense from arson of an inhabited structure (Pen. Code, § 451, subd. (b)) to arson of 

property.11 But even if so, defendant could lawfully be retried for arson of property. 

Under Penal Code section 654, as construed in Kellett v. Superior Court (1966) 63 

Cal.2d 822, all offenses arising out of a single act or course of conduct must be 

 11 This proposition is by no means clear. 

Arguably, arson of an inhabited structure and arson of property are simply 

different degrees of arson, a single statutory offense. That would make arson analogous 

to murder (see People v. McKinzie (2012) 54 Cal.4th 1302, 1354) and theft (see People v. 

Ortega (1993) 19 Cal.4th 686, 693-699). We have the power to reduce a conviction for a 

higher degree of an offense to a lesser degree. (Pen. Code, § 1181, subd. 6.) People v. 

Capps (1984) 159 Cal.App.3d 546 held that a court has this modification power even 

when the lesser degree of the offense has an element that the higher degree does not; 

specifically, it held that a court could modify a conviction from first degree murder to 

second degree murder, even though the jury may have relied on a felony murder theory 

and thus may never have made any finding of malice. (Id. at pp. 551-553.) Under this 

reasoning, we could reduce defendant’s conviction from arson of an inhabited structure to 

arson of property, even though the latter has elements that the former does not. 

I have some reservations, however, about whether Capps is still good law in the 

wake of Apprendi v. New Jersey (2000) 530 U.S. 466 and its progeny. Hence, I choose 

not to rely on it. 
2

prosecuted in a single proceeding, if the prosecution is or should be aware of them. (Id. 

at p. 827.) “Failure to unite all such offenses will result in a bar to subsequent 

prosecution of any offense omitted if the initial proceedings culminate in either acquittal 

or conviction and sentence.” (Ibid., fn. omitted.) 

The protection of Kellett has been held to apply, not only when the initial 

proceedings culminate in acquittal or conviction, but also when they culminate in a 

reversal on appeal based on insufficient evidence; in that event, too, the prosecution is 

barred from trying the defendant on new or different charges arising out of the same act 

or course of conduct. (Sanders v. Superior Court (1999) 76 Cal.App.4th 609, 616-617; 

People v. Tatem (1976) 62 Cal.App.3d 655, 658-659.) 

Here, however, the prosecution did effectively charge defendant with arson of 

property, because the jury was instructed on this offense, and because defense counsel 

did not object. As the Supreme Court stated in People v. Toro (1989) 47 Cal.3d 966, 

disapproved on another ground by People v. Guiuan (1998) 18 Cal.4th 558, 568, fn. 3: 

“There is no difference in principle between adding a new offense at trial by amending 

the information and adding the same charge by verdict forms and jury instructions.” (Id. 

at p. 976.) The defendant forfeits any lack of notice by failing to object. (Id. at p. 978.) 

Orlina v. Superior Court (1999) 73 Cal.App.4th 258 is on point. There, the 

defendant was charged with assault on a child under eight, resulting in death. (Pen. 

Code, § 273ab.) At the defendant’s request, the jury was also instructed on involuntary 

manslaughter (Pen. Code, § 192, subd. (b)) as a lesser related offense. The jury acquitted 
3

the defendant on the greater but deadlocked on the lesser. (Orlina, supra, at p. 260.) The 

appellate court held that the defendant could be retried on the lesser: “By requesting the 

jury be instructed on the lesser offense, be it an included or related one, a defendant asks 

to be tried on a crime not charged in the accusatory pleading. By doing so, the defendant 

implicitly waives any objection based on lack of notice. . . . [A] defendant who requests 

the jury be instructed on an uncharged offense consents to be treated as if the offense had 

been charged.” (Id. at pp. 263-264.) 

The majority attempts to distinguish Orlina on the ground that here, the jury did 

not deadlock on the lesser; rather, it was instructed that, if it convicted defendant on the 

greater, it should not return a verdict on the lesser, and so it did not. However, this is a 

distinction without a difference. Kellett is the controlling authority, and under the 

rationale of Kellett, whether the jury deadlocked on the lesser is irrelevant. Kellett

precludes a trial on an offense only when the prosecution has failed to charge that offense 

in a previous proceeding. Here, defendant was charged with arson of property. 

Moreover, because the jury never returned a verdict on the lesser (for whatever reason), 

this charge is still “unresolved” and “pending.” (Cf. maj. opn. at p. 10.) Under these 

circumstances, Kellett’s concerns about “preventing harassment, . . . avoid[ing] needless 

repetition of evidence and sav[ing] the state and the defendant time and money” (Kellett 

v. Superior Court, supra, 63 Cal.2d at p. 826) simply are not implicated. 

RICHLI 

 J.