1 Filed 1/14/14

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELL ATE 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, unde r appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Da ne R. Gillette, Chief Assistant Attorney General, Julie L. Garland, A ssistant Attorney General, Lilia E. Garcia, Barry Carlton and Felicity Senoski, Deputy Attorneys Gene ral, for Plaintiff and Respondent.2 A jury found Richard James Goolsby, defendant and appellant (hereafter defendant), guilty of arson of an inhabited structure in viol ation of Penal Code section 451, subdivision (b), 1 and further found true the allegati on 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 th e jury’s verdict and to his sentence. We agree with his assertion that hi s motor home is not a structure. 3 Therefore, the evidence that defendant set fire to his motor home do es not support the jury’s verdict finding defendant guilty of committing ar son of an inhabited structur e, and also does not support the jury’s true finding on the multiple stru cture enhancement. Moreover, arson of property (§ 451, subd. (d)), th e only other crime on which th e trial court instructed the jury, is a lesser related, not a lesser included, offense to the ch arged crime. Therefore, we cannot exercise our authority under section 11 81, subdivision 6, to modify the judgment by reducing defendant’s conviction to a lesser in cluded 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 powerp lant.” (§ 450, subd. (a).)3 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 ju dgment based on insufficiency of the evidence and direct the trial court to dismiss the charge. FACTS The facts are undisputed, and only a fe w are necessary for our resolution of the issues defendant raises on appeal. Defendant and Kathleen Burley liv ed together in what was one of several motor home s 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 inoperabl e motor home next to the one in which he and Burley were living and wher e 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 sleepi ng. The fire destroyed both motor homes. Additional facts will be recounted below as pertinent to the issues defendant raises on appeal.4 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 wa s insufficient to show that the motor home in which he an d Burley were then living was a structure. Therefore, the evidence that he set fire to or caused that motor home to bur n does not support the jury’s verdict finding him guilty of arson of an inha bited structure in viol ation of section 451. Under section 451, “A pe rson is guilty of arson when he or she willfully and maliciously sets fire to or burns or causes to be burned . . . any stru cture, forest land, or property.” Section 451 sets out “different levels of punishment, depending on the subject matter of the arson. [Citation.] These st atutory 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 inhabite d property’ (three, five, or eight years); (3) arson of a ‘structure or forest la nd’ (two, four, or six years); and (4) arson to other types of property (16 mont hs, two, or three years). (§ 451, subds. (a), (b), (c) & (d).) By creating these different levels of pu nishment, the Legislatur e intended to impose punishment ‘“in proportion to the seriousne ss of the offense,”’ and, in particular, ‘according to the injury or potential injury to human life involved . . . .’ [Citation.]” ( People v. Labaer (2001) 88 Cal.Ap p.4th 289, 292 ( Labaer ).)5 The district attorney in this case charged defendant w ith arson of an “inhabited structure” in violation of sec tion 451, subdivision (b). Defe ndant pointed out in the trial court that according to section 450, which de fines the terms used in the arson chapter, “‘Structure’ means any building, or comme rcial or public tent, bridge, tunnel, or powerplant.” (§ 450, subd. (a).) The trial cour t, at the district atto rney’s urging, focused on whether defendant’s motor home was a dwelli ng, 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 th is 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 th e statutory definition of the term “structure.” Of the several types of st ructures included in th e statutory definition, only a building is relevant here. As Di vision One of this court observed in Labaer , “The Penal Code does not define ‘building’ for purpos es 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 pa rtially dismantled and then set on fire was “property” not a building and, therefore, not subject to the in creased punishment for arson of a structure. In rejecting that clai m, the court observed, “Labaer does not dispute that the mobilehome—as it ex isted during the m onths before the fire—constituted a ‘building’ [and therefore a structure] under th e 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 resi dence for several months. ( Ibid .)6 The prosecutor did not present evidence to show that the moto r 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 thin gs included in the statutory definition of structure is that they are affi xed to the ground and either cann ot be moved at all or cannot be moved without first being disman tled 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 mo tor home was somehow fixed in place, such a vehicle cannot, as a matter of law, be a structure with in 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 ar gues that the ability to move is not the determining factor because a commercial or public tent ca n be dismantled and transported in a truck. The obvious response is that when dismantle d, a commercial or public tent is not a structure; it is property.

5 The Attorney General argues, as the district attorney di d 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 moto r home has wheels and is not fixed to the ground, it is functionally a building, as it serves all th e 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 tu rns on permanence or immobility, the very attribute of a motor home the Attorney Ge neral would have us disregard. Moreover, section 451, the arson statute in question, doe s not focus on protecting people in buildings as the Attorney General contends. The statut e applies to inhabited structures which the Legislature stated means not only buildings bu t bridges, tunnels, and powerplants. In addition, the severe punishment the Atto rney General cites as evidence of the Legislature’s intent applies not only to inhabite d 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 inha bited property does not apply in this case is that the district attorney in explicably failed to charge it.7 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, defe ndant’s motor home is property, which by statutory definition “means real property or pe rsonal property, other than a structure or forest land.” (§ 450, subd. (c).) The district attorney only charge d defendant with arson of an inhabited structure under section 451, su bdivision (b), even tho ugh that section also applies to arson of “inhabited property.” 8 In short and simply stated, th e motor home at issue in this appeal is not a structure,
as that term is defined in the arson statutes and as the trial cour t instructed the jury. 9 Therefore, the prosecutor’s evidence that defenda nt set fire to a moto r home that caused a second inhabited motor home to catch fire wa s insufficient as a matter of law to support the jury’s verdict finding defend ant guilty of arson of an inha bited structure. Nor does

6 Imprisonment in state prison for three, fi ve, or eight years. (§ 451, subd. (b).) Because section 451, subdivisio n (b), includes both inhabite d structures and inhabited property, we must reject defendant’s claim that arson of inhabited property is a lesser included offense on which the trial cour t should have inst ructed 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 puni shable by 16 months, two, or three years in state prison (§ 451, subd. (d)).

8 The original felony complaint and origin al information, as well as an amended felony complaint charge d defendant with arson of an inha bited structure or property, but then the district atto rney filed an amended informati on 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, br idge, 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 dur ing 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, elec ted to charge defenda nt only with arson of an inhabited structure. The trial court inst ructed 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 elem ents of the lesser offense are included in the elements of the greater’” ].) “In other words, when the greater crime ‘cannot be committed w ithout also committing another offe nse, the latter is necessarily included within the form er.’ [Citation.]” ( Id . at p. 366.) Arson of property as define d in section 450, subdivisio n (d), includes arson of everything except a structure or forest land. Moreov er, as defendant points out, arson of property requires proof the property either di d not belong to the de fendant (because it is not unlawful to burn one’s own personal prop erty), or in burning or causing one’s own property to burn, “there is an intent to de fraud or there is injury to another person or another person’s structure, fore st land, or property.” (§ 451, subd. (d).) Arson of a9 structure is unlawful regardless of whether th e defendant owns the structure. (§ 451, subd. (c).) Because it is possi ble 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 necessa rily included offense of the charged crime of arson of a structur e, we cannot exercise our authority under section 1181, subdivision 6, to reduce defe ndant’s conviction from the greater to that offense. Nor can we remand this matter to the tria l court for a new trial on the lesser related offense of arson of property. Multiple pros ecutions 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, th e 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 pr osecution for any offense omitted if th e 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 necessar ily included offense to the charged crime

10 Section 654, subdivision (a), states, “A n act or omission that is punishable in different ways by different prov isions of law shall be punish ed under the provision that provides for the longest potential term of impr isonment, but in no case shall the act or omission be punished under mo re than one provision. An acquittal or conviction and sentence under any one bars prosecution for th e same act or omission under any other.”10 of arson of an inhabited stru cture. 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 char ged greater offense. (Cf. Orlina v. Superior Court (1999) 73 Cal.App.4th 258, 263-264 [re trial not barred under section 654 where jury acquitted on charged offense and deadlocked on lesse r related offense].) Had the prosecutor charged defendant with the lesse r 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 unresolv ed 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 w ould 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 pr ove its case against defendant. Under the circumstances of this case, retrial is prohibited. We have no alternative but to reverse defe ndant’s conviction with direc tions to the trial court to dismiss the charges.11 DISPOSITION The judgment is reversed, and the matt er 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.1 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 major ity’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 lawf ully 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 aris ing out of a single act or course of conduct must be

11 This proposition is by no means clear. Arguably, arson of an inhabited struct ure and arson of pr operty are simply different degrees of arson, a single statutor y 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 hi gher degree does not; specifically, it held that a court could modi fy a conviction from fi rst degree murder to second degree murder, even thou gh 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 defe ndant’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 pros ecution 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 offe nse omitted if the initial proceeding s culminate in either acquittal or conviction and sentence.” ( Ibid ., fn. omitted.) The protection of Kellett has been held to apply, not only wh en the initial proceedings culminate in acqu ittal or conviction, but also when they cu lminate in a reversal on appeal based on insufficient eviden ce; in that event, too, the prosecution is barred from trying the defendant on new or different charges ar ising 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 effec tively charge defendant with arson of property, because the ju ry was instructed on this offense, and because defense counsel did not object. As the Su preme 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 betwee n 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 a ssault on a child under eight, resulting in death. (Pen. Code, § 273ab.) At the defenda nt’s request, the jury was al so instructed on involuntary manslaughter (Pen. Code, § 192, subd. (b)) as a lesser related offense. The jury acquitted3 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 accu satory pleading. By doing so, the defendant implicitly waives any objection ba sed 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; ra ther, it was instructed that, if it convicted defendant on the greater, it should not re turn 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 d eadlocked 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 ju ry never returned a ve rdict on the lesser (f or whatever reason), this charge is still “unresolved” and “pendi ng.” (Cf. maj. opn. at p. 10.) Under these circumstances, Kellett ’s concerns about “preventing hara ssment, . . . avoid[ing] needless repetition of evidence and sav[ing] the st ate and the defendant time and money” ( Kellett v. Superior Court , supra , 63 Cal.2d at p. 826) simply are not implicated.

RICHLI J.