Filed 4/5/23 P. v. Waltz CA5

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

WILLIAM LEROY WALTZ,

Defendant and Appellant.

F083591

(Super. Ct. No. MCR067568)

OPINION

APPEAL from a judgment of the Superior Court of Madera County. Mitchell C. 

Rigby, Judge.

Sylvia W. Beckham, under appointment by the Court of Appeal, for Defendant 

and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney 

General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D. 

Cary and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-
2.

INTRODUCTION

A jury convicted appellant William Leroy Waltz of seven counts of arson to forest 

land in violation of Penal Code section 451, subdivision (c).1 For all seven counts, the 

jury found true that appellant committed these crimes when a state of emergency existed 

(§ 454, subd. (a)(2)). The trial court sentenced appellant to prison for an aggravated term 

of 23 years. 

Appellant raises three claims in this appeal, including an assertion that the trial 

court improperly enhanced his sentence without the jury making a required finding of 

fact. We reject most of appellant’s claims. However, we agree with the parties that 

appellant’s sentence must be vacated based on a retroactive change in the law. We will 

remand this matter for resentencing but we otherwise affirm the judgment.

BACKGROUND

Appellant did not testify on his own behalf at trial and he did not call any 

witnesses. We summarize the material facts that support appellant’s judgment.

The prosecution established that, on August 30, 2020, appellant started fires on 

private pasture land located in Madera County. The area in question was just under 

10,000 acres used for cattle and horses. This land was fenced off and closed to the 

public. Appellant did not have permission to be on this real property. 

On the morning in question, appellant started seven different fires. The first fire 

was spotted around 7:15 a.m. At around the same time, or shortly thereafter, smoke from 

other fires was seen at other locations on the property. The smoke from the last fire was 

not spotted until over an hour later. Over 100 CAL FIRE personnel responded to 

suppress these seven fires and nearly 700 acres were burned. 

1 All future statutory references are to the Penal Code unless otherwise noted.
3.

These fires generally occurred over rough terrain, and all seven fires burned 

“grassland.”2 Some of the fires were over a mile apart from each other, while others 

were around a half a mile apart. Two of the fires were only about 36 feet apart. 

On the morning in question, appellant was spotted in the vicinity of the seventh 

fire as CAL FIRE personnel worked in that area. Appellant was with his dog. Appellant 

appeared “very jittery” as if he were under the influence of drugs. A firefighter asked 

appellant if he knew how that fire started, and appellant responded that he had started the 

fires. Appellant was detained that morning by law enforcement officials and he was 

questioned. His statements were recorded and played for the jury. He admitted that he 

had started the fires. Appellant indicated he had used a lighter when it was still dark 

outside.3 He stated that his lighter was out of fluid and he could only make it spark, 

which made it harder to start the fires. Appellant appeared tired and disheveled. His dog 

looked “very tired.” 

Throughout his various discussions with fire personnel, appellant made bizarre 

statements. He told a firefighter that he had killed five people in a nearby house. 

Emergency personnel, however, checked and learned that nobody had been killed in that 

residence. In a series of other rambling statements, appellant told other officials that he 

had started these fires because people, drones and vehicles had been chasing him during 

the night. He said he had been running all night, and he set the fires so he could receive 

help. 

The prosecution established that, at some unknown point, appellant had been 

camping on the private pasture land without permission.4 A very used lighter was 

2 Under the Penal Code, “grasslands” is included in the definition of “forest land” 

for purposes of arson. (§ 450, subd. (b).)

3 The sun was up and it was “bright” outside when the fires were first spotted. 

4 Appellant’s campsite was discovered about two months after the fires occurred. 

Two prescription bottles were located there, and one had appellant’s name on it. 
4.

recovered from appellant’s campsite. It did not have lighter fluid inside it. The grinder 

wheel on the lighter was very worn, and it only produced a very small spark. An 

improvised smoking device was also located at the campsite. That smoking device could 

have been used to ingest some sort of narcotic, such as methamphetamine. 

After ruling out other possible causes, an arson investigator opined at trial that all 

seven fires were probably ignited by an open flame device, such as a lighter. Even 

without appellant’s statements, and based on his own investigation, the arson investigator 

was “very certain” that arson had caused all seven fires. The investigator believed that 

the results of his investigation were consistent with appellant’s claim that he had started 

these fires with a lighter that had no fluid. 

DISCUSSION

I. Appellant’s Constitutional Rights Were Not Violated Regarding the Trial 

Court’s Judicial Notice and any Presumed Error is Harmless.

Appellant argues that the trial court issued a directed verdict because it informed 

the jury that it had to accept as true that a state of emergency had existed when these fires 

were started. Appellant asserts that this was structural error,5requiring automatic 

reversal of his sentence. 

A. Background.

In the first amended information, the prosecution had alleged that, when appellant 

had committed these seven acts of arson, a state of emergency had existed in Madera 

County (§ 454, subd. (a)(2)). 

Prior to the presentation of evidence to the jury, the parties argued how this special 

allegation could be established at trial. The prosecution wanted to introduce into 

evidence that, when these fires had occurred, states of emergency had existed in 

5 An error is considered “structural” when it renders the criminal trial fundamentally 

unfair or as an unreliable vehicle for determining guilt or innocence. (Washington v. 

Recuenco (2006) 548 U.S. 212, 218–219.)
5.

California both for (1) widespread fires burning statewide and (2) due to COVID-19. In 

the alternative, the prosecution asked the trial court to take judicial notice of these facts.6

In contrast, the defense was willing to admit that a state of emergency had existed when 

these crimes occurred in exchange for these special allegations to not go before the jury. 

However, the prosecution was unwilling to accept such an admission, wanting instead to 

present its case. The court ruled that, despite appellant’s willingness to admit these 

special allegations, the prosecution was entitled to prove these allegations at trial.

Later in the trial proceedings, the prosecution changed its approach and it asked 

the court to take judicial notice of the Governor’s proclamations, and to present those 

facts to the jury. The defense objected to that approach, contending that the prosecution 

was required to prove the special allegations. The court concluded that it was required to 

take judicial notice of these proclamations because they were official acts of the 

executive branch. Defense counsel asserted that, if the court was going to take judicial 

notice of these proclamations, then the jury should only hear about the one pertaining to 

COVID-19. Defense counsel asserted that the other proclamation would be cumulative 

and more prejudicial than probative under Evidence Code section 352. The prosecutor 

agreed that the court should only inform the jury about the existing state of emergency 

due to COVID-19. The parties reached an agreement regarding the specific language the 

court would use when informing the jury about this state of emergency. 

The court informed the jury that it had taken judicial notice regarding the 

following facts: On March 4, 2020, the Governor had issued an executive order which 

6 Evidence Code section 452 permits a trial court to take judicial notice of any 

official act of the executive department of any state. (Evid. Code, § 452, subd. (c).) 

However, Evidence Code section 453 mandates that a trial court “shall” take judicial 

notice of any matter specified in section 452 if a party requests it and (a) the requesting 

party gives each adverse party sufficient notice of the request to enable an adequate 

response and (b) the requesting party furnishes the court “with sufficient information to 

enable it to take judicial notice of the matter.”
6.

had declared a state of emergency in California from COVID-19. This state of 

emergency had existed in Madera County on the day that these fires had occurred. The 

jury was told that the Governor’s executive order proclaiming a state of emergency was 

consistent with Government Code section 8625. The jurors were told they had to “accept 

these facts as true.”

On the verdict forms, the jurors were asked to find whether or not appellant was 

guilty of arson as charged in the seven counts. The jurors were then separately asked to 

determine whether or not it was true that appellant had committed these crimes during a 

state of emergency as proclaimed by the Governor pursuant to Government Code section 

8625, in violation of Penal Code section 454, subdivision (a)(2). After finding appellant 

guilty in all seven counts of arson, the jury separately found it true that appellant had 

committed these crimes during a state of emergency as declared by the Governor. 

At sentencing, and because of these true findings, appellant’s principal term was 

enhanced by an additional three years in prison. Likewise, his six subordinate terms were 

each enhanced by an additional one year in prison (§§ 451, subd. (c), 454, subd. (b)). 

B. Analysis.

Appellant acknowledges that it was permissible for the trial court to take judicial 

notice of the Governor’s proclamation regarding the state of emergency. According to 

appellant, however, telling the jury to accept this fact as true violated his federal 

constitutional rights to have the jury determine a fact that increased his maximum 

punishment. 

We reject appellant’s arguments. This issue was submitted to the jury for its 

consideration. Thus, appellant’s constitutional rights were not violated. In any event, 

any presumed error does not require automatic reversal and respondent has established 

beyond any reasonable doubt that any presumed error is harmless.
7.

1. Appellant’s constitutional rights were not violated.

The federal Constitution requires a jury to determine if a criminal defendant is 

guilty beyond a reasonable doubt of every element of a charged crime. (Apprendi v. New 

Jersey (2000) 530 U.S. 466, 476–477 (Apprendi).) This right also applies to any fact 

(other than the fact of a prior conviction) that increases the penalty for a crime beyond the 

prescribed statutory maximum. Thus, any fact that increases punishment must be 

submitted to a jury and proven beyond a reasonable doubt. (Id. at p. 490; see also 

Cunningham v. California (2007) 549 U.S. 270, 281.)

California’s Evidence Code mandates that a trial court shall take judicial notice of 

certain facts, including official acts of a state’s executive department, if a party makes 

such a request, the adverse party has sufficient notice of the request, and the requesting 

party furnishes the court with sufficient information to enable it to take judicial notice of 

the matter. (Evid. Code, §§ 452, subd. (c), 453.) The Evidence Code further requires a

trial court upon request to instruct a jury to accept as a fact any matter that is judicially 

noticed if it otherwise would have been for determination by the jury. (Evid. Code, 

§ 457.)

Here, the trial court was required to take judicial notice of the Governor’s state of 

emergency. The Governor’s proclamation was an official act of the executive 

department. Moreover, the prosecution gave notice to the defense regarding its intent to 

ask the court to take judicial notice of this information, and the prosecution provided the 

court with sufficient information for it to take judicial notice. Thus, the court was 

obligated to instruct the jury on this fact. (Evid. Code, § 457.)

The court instructed appellant’s jurors that, to establish this special allegation, the 

prosecution had to prove that appellant committed the charged arsons “during and within 

an area” that the Governor had proclaimed to be in a state of emergency. The jury was 

told that the prosecution had to prove this special allegation true beyond a reasonable 
8.

doubt. Moreover, the court informed the jurors that it was not its role to tell them what 

their verdicts should be. 

Although the trial court told the jurors that they must accept as true that the 

Governor had declared a state of emergency, the court did not instruct the jury that it 

must find the special allegation true. Instead, it was the jury’s role to decide if appellant 

had committed any arson and, if so, whether it was appropriate to find true the special 

allegations in each count. Thus, the requirements in Apprendi were met. The jury, and 

not the judge, ultimately decided whether or not the prosecution had established beyond a 

reasonable doubt the truth of these special allegations. Therefore, appellant’s 

constitutional rights were not violated and this claim is without merit. In any event, 

however, we also determine that any presumed error is harmless.

2. Any presumed error is harmless.

Appellant argues that structural error occurred, requiring automatic reversal of his 

sentence without the need to analyze prejudice. We disagree.

In general, most federal constitutional errors may be reviewed for harmlessness. 

(See Chapman v. California (1967) 386 U.S. 18, 24 (Chapman); People v. Aranda (2012) 

55 Cal.4th 342, 363.) In contrast, a “ ‘structural’ ” error requires automatic reversal. 

(People v. Reese (2017) 2 Cal.5th 660, 668.) A structural error is one that is central to 

“the trial mechanism—a biased judge, total absence of counsel, the failure of a jury to 

reach any verdict on an essential element.” (People v. Gamache (2010) 48 Cal.4th 347, 

396.) In other words, a structural error is a defect impacting how a trial proceeds, rather 

than simply an error in the trial process itself. (Arizona v. Fulminante (1991) 499 U.S. 

279, 310.)

In the present matter, this presumed error was not a defect in how the trial 

proceeded. Rather, this was an alleged error that occurred during the trial. Indeed, the 

United States Supreme Court holds that structural error does not occur when a sentencing
9.

factor is not submitted to a jury. (Washington v. Recuenco, supra, 548 U.S. at p. 222.) 

Thus, we reject appellant’s assertion that structural error occurred.

The United States Supreme Court holds that Apprendi error is reviewable under 

the harmless error standard of Chapman. (People v. Sengpadychith (2001) 26 Cal.4th 

316, 327.) Under Chapman, the question is whether the People can demonstrate that the 

federal constitutional error was harmless beyond a reasonable doubt. (People v. Aranda,

supra, 55 Cal.4th at p. 367.) In the context of an omitted element leading to Apprendi

error, a reviewing court asks whether the omitted element is supported by uncontroverted 

evidence, or whether the record contains evidence that could rationally lead to a contrary 

finding with respect to the omitted element. (Neder v. United States (1999) 527 U.S. 1, 

18–19.)

On its own motion, this court takes judicial notice that, on March 4, 2020, the 

Governor declared a state of emergency for the entire state due to COVID-19.7 (See 

Evid. Code, § 452, subd. (c).) The prosecution had a copy of this proclamation when this 

matter went to trial. 

On its own motion, this court also takes judicial notice that, in October 2022, the 

Governor announced that the COVID-19 state of emergency will end effective February 

28, 2023.8 (See Evid. Code, § 452, subd. (c).) 

It is beyond any reasonable dispute that a state of emergency existed in Madera 

County when appellant committed these acts of arson. Therefore, we can declare beyond 

any reasonable doubt that any presumed error was harmless. This record does not 

contain evidence which could rationally lead to a contrary finding with respect to these 

7 Governor Newsom Declares State of Emergency to Help State Prepare for Broader 

Spread of COVID-19 | California Governor

8 Governor Newsom to End the COVID-19 State of Emergency | California 

Governor
10.

special allegations. Accordingly, it is readily apparent that appellant did not suffer 

prejudice. This claim is without merit and reversal is not required.

II. Due to a Retroactive Change, Appellant’s Sentence must be Vacated and this 

Matter Remanded for Resentencing.

At sentencing in this matter, the trial court followed the recommendations from 

the probation department and it imposed the maximum possible sentence against 

appellant, 23 years in prison. The court imposed an aggravated sentence for the principal 

arson conviction (count 1), and it imposed consecutive subordinate terms for the 

remaining six arson convictions. The parties now agree that, based on a retroactive 

change in a sentencing law, appellant’s sentence must be vacated and this matter 

remanded for resentencing. 

Effective January 1, 2022, Senate Bill No. 567 amended section 1170, subdivision 

(b). (Stats. 2021, ch. 731, § 1.3.) Under this change in law, a court may now impose an 

upper term sentence only when there are circumstances in aggravation that justify it, and 

the facts underlying those circumstances have been stipulated to by the defendant, or 

have been found true beyond a reasonable doubt by the finder of fact. (§ 1170, subd. 

(b)(2).)

Respondent concedes that this amendment retroactively applies to appellant. We 

agree because this ameliorative change occurred while this matter was still pending on 

appeal. (See In re Estrada (1965) 63 Cal.2d 740, 745.) Respondent further concedes 

that, based on this change in law, this matter should be remanded for resentencing. We 

accept respondent’s concession. As noted by respondent, the trial court relied on factors 

in aggravation to impose the upper term that were neither admitted by appellant nor 

found true beyond a reasonable doubt by the jury. Thus, we remand this matter for 

resentencing in light of Senate Bill No. 567.9

9 As respondent notes, the prosecution must be given the opportunity to satisfy the 

requirements of section 1170, subdivision (b)(2), when this matter is remanded. (See 
11.

III. The Trial Court did not Abuse its Discretion in Imposing Consecutive 

Sentences.

Appellant contends that the trial court abused its discretion when it imposed 

consecutive sentences for all six of the subordinate terms. According to appellant, he 

committed the seven acts of arson with the same intent and objective. He argues that his 

criminal conduct was a continuous course of action over a brief period of time in the 

same general area. He maintains that concurrent sentences are warranted. 

In part, respondent asserts that we should not address this claim because we are 

remanding this matter for resentencing. Appellant, however, contends that, despite the 

remand for resentencing, this claim should be resolved because it was raised in his 

opening brief. To assist the court and parties on remand, we elect to resolve this claim 

now. We disagree that the court abused its discretion.

A trial court has discretion to impose consecutive sentences when a person is 

convicted of two or more crimes. (§ 669, subd. (a); People v. Woodworth (2016) 245 

Cal.App.4th 1473, 1479.) When discretionary power is statutorily vested in the trial 

court, we will not disturb the trial court’s decision on appeal unless “the court exercised 

its discretion in an arbitrary, capricious or patently absurd manner that resulted in a 

manifest miscarriage of justice. [Citations.]’ [Citation.]” (People v. Rodrigues (1994) 

8 Cal.4th 1060, 1124–1125; see People v. Williams (1998) 17 Cal.4th 148, 162 [abuse of 

discretion review asks whether ruling in question falls outside bounds of reason under 

applicable law and relevant facts].) 

Appellant points to California Rules of Court, rule 4.425. This rule permits a 

sentencing court to impose a consecutive sentence if (1) the crimes and their objectives 

were predominantly independent of each other; or (2) the crimes involved separate acts of 

violence (or threats of violence); or (3) the crimes were committed “at different times or 

People v. Lopez (2022) 78 Cal.App.5th 459, 469.) Alternatively, the People may elect to 

submit to resentencing based on the state of the current record. (Ibid.)
12.

separate places, rather than being committed so closely in time and place as to indicate a 

single period of aberrant behavior.” (Cal. Rules of Court, rule 4.425(a)(1)-(3).) 

According to appellant, none of these criteria are present. Appellant also argues that the 

trial court improperly weighed the factors in aggravation and mitigation. He asserts that 

the court should have given much greater weight to his apparent mental defect or 

disorder. 

Appellant’s arguments are unpersuasive. As an initial matter, California Rules of 

Court, rule 4.425 is only a guideline for a sentencing court, and it does not impose a rigid 

obligation. (People v. Calderon (1993) 20 Cal.App.4th 82, 86–87.) Moreover, only a 

single factor in aggravation is required for a court to impose a consecutive term. (People 

v. Osband (1996) 13 Cal.4th 622, 728–729.) In fact, absent certain exceptions, any 

circumstance in aggravation or mitigation may be considered in deciding whether to 

impose a consecutive sentence.10 (Cal. Rules of Court, rule 4.425(b)(1)-(3).)

The trial court determined that consecutive sentences were warranted because 

appellant did not engage in a single period of abhorrent behavior. According to the court, 

appellant started multiple fires and he had time to reflect between each new act of arson. 

The court noted that, when appellant encountered fire personnel, he attempted to sic his 

dog on one of the firemen.11 According to the court, it appeared that appellant was not 

seeking assistance from authorities. In addition, the court found that there was a threat of 

great bodily injury. Nearby residences had to be evacuated. Finally, the fires caused a 

great loss of value to the property owner.12 The court noted that appellant “apparently 

10 A sentencing court may not consider (1) a fact used to impose an upper term; (2) a 

fact used to otherwise enhance the defendant’s sentence; or (3) a fact that is an element of 

the crime. (Cal. Rules of Court, rule 4.425(b)(1)-(3).)

11 When appellant first encountered CAL FIRE at the scene, it appeared that 

appellant instructed his dog to chase a firefighter, who ran a short distance away. 

12 At sentencing, the trial court noted that appellant’s criminal conduct in this matter 

had cost the property owner about $55,000 in damages. 
13.

suffers from a mental defect” that had some impact on his culpability. The court, 

however, believed that the overall magnitude of his criminal activity warranted the 

consecutive terms. The court stated it had considered both the aggravating and mitigating 

factors. 

Substantial evidence supports the trial court’s determination that appellant did not 

engage in a single period of abhorrent behavior. Some of these fires were separated by a 

half of a mile or more over rough terrain. Appellant admitted that he first started the fires 

when it was still dark outside. However, the last fire was not spotted until about an hour 

after fire personnel had arrived. When contacted by authorities, appellant and his dog 

both appeared tired, as if they had been running all night. 

The evidence reasonably demonstrates that appellant started these fires over great 

distances, and those fires were not all started at the same time. Thus, this record amply 

supports the trial court’s finding that appellant had time to reflect on his criminal 

behavior before he started each fire. Therefore, we reject appellant’s contention that 

substantial evidence did not justify the court’s sentencing choice. 

Finally, appellant points to other interpretations that can be drawn from the record, 

such as whether or not he started these fires to summon help from law enforcement or 

whether his mental state should have been given greater weight as a factor in mitigation. 

These arguments do not alter our conclusion that the court did not abuse it sentencing 

discretion. The court considered appellant’s mental condition as a factor in mitigation. 

The court, however, believed that the overall magnitude of his criminal activity warranted 

the consecutive terms. We must presume that the trial court acted to achieve legitimate 

sentencing objectives. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977.) 

Although appellant can point to other interpretations that can be drawn from the 

record, it is inappropriate for us to substitute our own judgment for that of the sentencing 

court. (People v. Superior Court (Alvarez), supra, 14 Cal.4th at p. 978.) We may 
14.

displace the trial court’s decision only if there is a clear showing its sentence was 

arbitrary or irrational. (People v. Sandoval (2007) 41 Cal.4th 825, 847.)

Based on this record, the court had ample grounds to determine that consecutive 

sentences were warranted, and the evidence supports the court’s discretionary choice. 

The court did not exercise its discretion in an arbitrary, capricious or patently absurd 

manner that resulted in a manifest miscarriage of justice. The court’s ruling did not fall 

outside the bounds of reason under applicable law and relevant facts. Accordingly, an 

abuse of discretion is not present, and this claim fails.13

DISPOSITION

Appellant’s sentence is vacated and this matter is remanded for resentencing 

consistent with Senate Bill No. 567. In all other respects, the judgment is affirmed. 

LEVY, Acting P. J.

WE CONCUR:

SNAUFFER, J.

DESANTOS, J.

13 We have resolved this claim based on appellant’s request to do so before this 

matter is remanded for resentencing. However, we take no position regarding how the 

trial court should exercise its sentencing discretion following remand.