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Filed 6/10/21 P. v. Henderson CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Shasta)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

DEMETRIUS VERDELL HENDERSON,

Defendant and Appellant.

C091536

(Super. Ct. No. 19F4273)

Defendant, Demetrius Verdell Henderson, appeals a judgment entered following a 

jury’s determination that he committed arson of forest land; resisted, obstructed, or 

delayed an officer; and battered an officer. Defendant argues: (1) substantial evidence 

does not support that he burned “ ‘[f]orest land’ ” as defined by Penal Code section 450, 

subdivision (b)1 and (2) the trial court’s ability to pay determination was improperly 

1 Further undesignated statutory references are to the Penal Code.
2

based on a determination that he could pay the assessed fines and fees out of his disability 

payments. The People oppose defendant’s sufficiency argument, but concede remand is 

required to clarify the court’s ruling on defendant’s ability to pay. For the reasons 

explained herein, we conclude a limited remand is required. In all other respects, the 

judgment is affirmed.

FACTUAL AND PROCEDURAL BACKGROUND

The People’s July 16, 2019, complaint charged defendant with arson of forest land 

(§ 451, subd. (c); count 1); resisting, obstructing, or delaying a police officer (§ 148, 

subd. (a)(1); count 2); and battery on a police officer (§ 243, subd. (b); count 3). 

Defendant pleaded not guilty, waived a preliminary hearing, and the matter was tried to a 

jury.

Pertinent to defendant’s claims on appeal, at trial, the People presented evidence 

that P.R. was leaving work at the tribal health center around noon when she saw 

defendant, who was naked, in an area beyond the parking lot’s fence. Defendant was 

situated between that fence and Highway 44, and P.R. noted him going in and out of a 

bush. Shortly thereafter, P.R. saw flames in that area. Defendant was alone, and P.R. did 

not see him make any effort to extinguish the flames.2 Another employee from the tribal 

health center saw the flames and ran outside with a fire extinguisher, which a county 

worker used to put out the fire before authorities arrived.

Officers Nicholas Weaver and Jacob Ruiz, who were in uniform, responded to the 

scene. They climbed over the fence separating “the parking lot from the shrubbery on the 

side of highway 44” and encountered defendant, naked and covered in dirt and leaves like 

he had been rolling on the ground. He was dumping water on himself and yelling 

2 People’s exhibit No. 1 is a security camera video played for the jury which, 

although partially obscured by trees from the parking lot, reveals flames and smoke in 

vegetation beyond the parking lot’s border.
3

nonsensically. Defendant had what was later determined to be a colostomy port in his 

abdomen, which along with defendant’s erratic behavior, caused Officer Weaver to call 

for medical assistance. Defendant was nonresponsive to Weaver’s questions. Next to 

defendant was a six-foot-wide bush or area of brush and a burnt spot on the hill. Much of 

it was smoldering, but some of it still had some small flames.

While they were waiting for the requested medical assistance, defendant threw a 

one-gallon jug of what smelled like urine at Officer Ruiz, hitting him in the chest and 

splashing on Ruiz’s face, eyes, nose, mouth, and chest. The officers handcuffed 

defendant placing him under arrest for assault, and Weaver told Ruiz to go for medical 

screening given his exposure to an unknown liquid. In the meantime, defendant 

attempted to flee by running up an embankment towards Highway 44. By that time, 

Officer Kevin Kimple was also on scene. Kimple and Weaver ordered defendant to stop, 

but defendant kept running. Officer Weaver caught defendant by the arm, and defendant

repeatedly resisted by trying to face Weaver who was attempting to escort defendant to

where they originally encountered him.

City of Redding Fire Inspector Michael Ham testified as an expert on the cause 

and origin of fires. He arrived at the scene when defendant was being taken into custody. 

Ham noted the burn area was approximately 10 feet by 10 feet, running uphill from the

base of a bush. The burn area had light grass, a bush, and some trash. While the fire was 

small, it was still concerning because “fires that start relatively small can grow relatively 

large in a matter of minutes.” The cigarette lighters and mirror that had been recovered 

from defendant’s bag could have been used to start the fire. It was Ham’s opinion that 

defendant, who was the only person in the area, had started the fire with one of his 

operational lighters. Ham did not believe the fire had been caused by cigarette butts, 

cooking equipment, or overhead wires because there was no evidence to support them as 

a source of ignition. Ham also opined the fire was not caused by a chain dragging or 
4

exhaust malfunction because its ignition point was too far from the highway3 and the 

parking lot. Ham took pictures of the brush that burned, as well as the general area where 

the fire occurred, which showed dense brush or shrubbery on a hill with grass, weeds, and 

garbage at its base.

Following the presentation of this evidence, defendant moved under section 

1118.1 for acquittal on the arson count, which the trial court denied. Thereafter, the court 

instructed the jury on arson of forest land and the lesser offense of unlawfully causing a 

fire of forest land. (§§ 451, subd. (c), 452, subd. (c).) In so doing, the court instructed

the jury that “[f]orest land means brush covered land, cut over land, forest, grass lands, or 

woods.” (See CALCRIM Nos. 1515, 1530.) After about an hour of deliberations without 

any questions, the jury found defendant guilty on all counts.

On January 31, 2020, the court sentenced defendant to the midterm of four years 

on the arson court, plus concurrent sentences of one year each on the two misdemeanor 

convictions, with credit for 204 days actual credit plus 204 days conduct credit for a total 

of 408 custody credits. The court also imposed a $300 restitution fine (§ 1202.4, 

subd. (b)), a 10 percent administrative fee on that fine (§ 1202.4, subd. (l)), a $300 stayed

parole revocation restitution fine (§ 1202.45), three $40 court operations assessment fees 

totaling $120 (§ 1465.8, subd. (a)(1)), and three $30 court facilities assessment fees 

totaling $90 (Gov. Code, § 70373). The court reserved jurisdiction to determine victim 

restitution.

Defendant timely appealed.

3 The highway was 20 to 30 feet away from the ignition point.
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DISCUSSION

I

Arson of Forest Land

Defendant contends substantial evidence does not support his conviction for arson 

of forest land (§ 451, subd. (c)) as “forest land” is as defined by section 450, subdivision 

(b). He argues: (1) reference to dictionary definitions show brush covered land must be 

densely populated with brush and (2) because brush covered land is included in a list of 

other terms embodying large tracks of land, brush covered land must be of similar scope 

in order to qualify as forest land for purposes of arson. Given his clarified definition, 

defendant argues insufficient evidence supports that the land in question was indeed 

“brush covered.”4 We disagree.

“ ‘In reviewing the sufficiency of the evidence, we must determine “whether, after 

viewing the evidence in the light most favorable to the prosecution, any rational trier of 

fact could have found the essential elements of the crime beyond a reasonable doubt.”

[Citation.]’ [Citation.] ‘ “[O]ur role on appeal is a limited one.” [Citation.] Under the 

substantial evidence rule, we must presume in support of the judgment the existence of 

every fact that the trier of fact could reasonably have deduced from the evidence. 

[Citation.] Thus, if the circumstances reasonably justify the trier of fact’s findings, the 

opinion of the reviewing court that the circumstances might also reasonably be reconciled 

with a contrary finding does not warrant reversal of the judgment. [Citation.]’ 

[Citation.]” (In re V.V. (2011) 51 Cal.4th 1020, 1026.)

Section 451 provides: “A person is guilty of arson when he or she willfully and 

maliciously sets fire to or burns or causes to be burned or who aids, counsels, or procures 

the burning of, any structure, forest land, or property.” Where the property burned is 

4 We focus on defendant’s brush covered land arguments because that is the theory 

presented by the prosecution to the jury.
6

“forest land” the crime is “a felony punishable by imprisonment in the state prison for 

three, five, or eight years.” (§ 451, subd. (c).) “ ‘Forest land’ means any brush covered 

land, cut-over land, forest, grasslands, or woods.” (§ 450, subd. (b).) To the extent 

defendant’s challenge requires us to interpret the meaning of “forest land,” we perform 

this task de novo. (People v. Prunty (2015) 62 Cal.4th 59, 71.)

“Our primary task in interpreting the statute is to determine the lawmakers’ intent.

(Delaney v. Superior Court (1990) 50 Cal.3d 785, 798.) We begin with the words of the 

statute and their usual and ordinary meaning, which would typically be their dictionary 

definition. (People v. Gonzalez (2008) 43 Cal.4th 1118, 1126; Hammond v. Agran

(1999) 76 Cal.App.4th 1181, 1189.) Their plain meaning controls, unless the words are 

ambiguous. (People v. Gonzalez, supra, at p. 1126.) ‘If the statute is ambiguous, we 

may consider a variety of extrinsic aids, including legislative history, the statute’s 

purpose, and public policy.’ (Ibid.)” (People v. Costella (2017) 11 Cal.App.5th 1, 5-6 

(Costella).)

In approaching this task, Costella appears to be the only published opinion to 

analyze the meaning of brush covered land as part of section 450’s forest land definition. 

(Costella, supra, 11 Cal.App.5th at pp. 5-6.) Because brush covered land and/or brush 

were not further defined by the Penal Code, Costella looked to the dictionary definition 

of those terms. (Id. at p. 6.) “According to Merriam-Webster, the meaning of ‘brush’ is 

‘scrub vegetation’ or ‘land covered with scrub vegetation.’ (Citation.) ‘Scrub,’ in turn, is 

‘a stunted tree or shrub.’ (Citation.)” (Ibid.) There was, however, no indication in the 

statute or legislative history that continuous coverage of dense brush was required for 

criminal liability. (Id. at p. 7.)

Applying this definition, the Costella court found sufficient evidence supported 

the defendant’s conviction. (Costella, supra, 11 Cal.App.5th at p. 6.) The record 

revealed that defendant had set fire to a murder victim on the side of a highway in a place 

with bare dirt, grass, and small brush scattered throughout the area. (Id. at p. 4.) 
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Nonetheless, aerial photographs of the plot showed much of the land was covered with 

dense vegetation. (Id. at p. 5.) Because there was no requirement of continuous 

coverage, the court concluded sufficient evidence supported that defendant had 

committed arson of forest land. (Id. at pp. 6-7.) 

We do not find “brush covered land” to be an ambiguous term, and thus, the plain 

meaning as described in Costella is instructive. (See People v. Gonzalez, supra, 

43 Cal.4th at p. 1126.) We note that nothing in the cognizable legislative history of 

Senate No. Bill 116 (1979-1980 Reg. Sess.), which enacted the changes at issue in this 

case, suggests that brush covered land should be construed to have the special, more 

narrow meaning that defendant requests.5 Rather, a major purpose of this legislation was 

to “generally simplify and reorganize the laws concerning arson.” (Judicial Council of 

Cal., Analysis of Sen. Bill No. 116 (1979-1980 Reg. Sess.) May 31, 1979, p. 2

[transmitted to Senate/Assembly committees & Governor].) In pursuit of this goal, the 

enactment replaced “archaic language with simple, understandable English,” for example 

by simplifying the definition of arson “by referring to a ‘structure, property, or forest 

land’ rather than a ‘rick or stay of hay’, ‘pile of plants’, etc.” (State and Consumer 

Services Agency, Analysis of Sen. Bill No. 116 (1979-1980 Reg. Sess.) June 26, 1979.) 

5 We deny defendant’s request for judicial notice of a letter to the Governor from 

the bill’s author. There is no evidence this letter or its views were transmitted to the 

legislature as a whole, and thus, they do not constitute cognizable legislative history. 

(Kaufman & Broad Communities, Inc. v. Performance Plastering, Inc. (2005) 

133 Cal.App.4th 26, 37.) We grant defendant’s request for judicial notice of the 

Department of Forestry enrolled bill report. (Ibid.) This report states the legislation was 

designed to both simplify the wording of the arson laws and bring the punishment for 

burning forest land to the same level of punishment for burning an unoccupied structure. 

This recognized that “a person who sets fire to a wildland area creates a greater threat to 

life and property than many of the single building unoccupied structures that are the 

subject of arson.” (Cal. Dept. of Forestry, Enrolled Bill Rep. on Sen. Bill No. 116 (1979 

Gen. Sess.) June 26, 1979, p. 1.)
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Accordingly, it is appropriate that we give the term “brush covered land” its plain 

meaning.

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Applying that meaning, we conclude the record contains substantial evidence 

supporting defendant’s conviction for arson of forest land (§ 451, subd. (c)). Whether the 

land in question qualified as “forest land” under the statute was not specifically litigated 

below, and as a result, the record is relatively sparse. However, there is evidence, which 

taken in the light most favorable to the prosecution, supports defendant’s conviction. (In 

re V.V., supra, 51 Cal.4th at p. 1026.) 

Here, the testimony established that defendant burned an area that was 

approximately 10 feet by 10 feet, running uphill from the base of a bush. The burn area 

had light grass, a bush, and some trash. The burn area in question was described as a sixfoot-wide bush or area of brush. Much of it was smoldering when authorities arrived, but 

some of it still had some small flames. Testimony also established responding officers

climbed over the fence separating “the parking lot from the shrubbery on the side of 

highway 44” in order to reach defendant and the burn area. While the precise dimensions 

of land on which the fire occurred are unknown, the fire was set at least 20 to 30 feet 

from Highway 44. Further, surveillance video and pictures taken at the scene do show 

areas of dense brush or shrubbery on a hill with grass, weeds, and garbage at its base. 

6

In so finding, we reject defendant’s arguments that reversal is required because a

narrow construction is necessary to maintain conformity with other terms in the forest 

land definition (see People v. Prunty, supra, 62 Cal.4th at p. 73 [warning against 

construing listed terms in a manner which would render them “ ‘unnecessary or 

redundant . . . or . . . markedly dissimilar to the other items in the list’ ”]) and that under 

such construction, the evidence is insufficient to sustain his conviction. We find it 

unnecessary to decide how big a plot of land must be to qualify as “brush covered land” 

for purposes of the arson statute. Rather, we note that whatever the parameters of the size 

qualification may be, they are met in this case.
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Based on this record, we conclude substantial evidence supports that the land was “brush 

covered,” and thus, we will uphold defendant’s conviction for arson of forest land.

II

The Ability to Pay Determination

Defendant argues the trial court erred in basing its ability to pay determination on 

an assumption that he could pay the assessed fines and fees by virtue of his disability 

payments in violation of title 42 United States Code section 407(a). The People concede 

that if the trial court determined defendant could pay because he would make payments 

from his disability funds, that would be error and request we remand the matter so that 

the trial court may clarify its ability to pay determination. 

While a sentencing court may take disability payments into account in assessing a 

defendant’s entire financial situation when determining a defendant’s ability to pay (In re 

J.G. (2019) 6 Cal.5th 867, 878-884 [victim restitution]), it is improper for a court to find 

an ability to pay based on an assumption that the disability payments would be the source 

of any such payments. (Id. at pp. 884-885.)

Here, the trial court imposed a $300 restitution fine (§ 1202.4, subd. (b)), a 10 

percent administrative fee on that fine (§ 1202.4, subd. (l)), a $300 stayed parole 

revocation restitution fine (§ 1202.45), three $40 court operations assessment fees 

totaling $120 (§ 1465.8, subd. (a)(1)), and three $30 court facilities assessment fees 

totaling $90 (Gov. Code, § 70373). The court reserved jurisdiction to determine victim 

restitution.

Thereafter, defense counsel requested the trial court waive the 52 hours of public 

defender fees in light of defendant’s indigency and despite his receipt of Social Security 

disability benefits (SSI benefits). In response, the court found defendant did not have the 

ability to pay for his public defender and then addressed the other fines and fees assessed

sua sponte. The court noted it had considered defendant’s indigency in not imposing the 
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normal $780 base fine for a felony conviction and in setting the restitution fine at the 

statutory minimum.

The trial court then stated in pertinent part: “So the Court finds in light of the 

defendant’s admission in his letter to the Court that he will be receiving SSI and his 

period of incarceration, I do believe he’ll have the ability to pay just the minimum fines 

that I set. [¶] Mr. Henderson, I want to express something to you, sir. The reason I 

reduced the fines that were recommended by probation is because I want to give you the 

best opportunity to succeed when you are released from prison. And I realize, sir, that 

you now being eligible for SSI benefits is probably going to help you tremendously in 

that regard as expressed to the Court in your letter to the Court. So I took that into 

account.” It is unclear on this record whether the court was assuming defendant would 

pay the fines and fees assessed directly from his SSI benefits. While defendant was 

homeless and indigent at the time of his arrest, his probation report detailed periods of 

gainful employment, thus not foreclosing the possibility that defendant would have a 

future ability to pay from nondisability sources. Accordingly, we will remand the matter 

to allow the court to clarify its finding in light of the guidance provided by In re J.G., 

supra, 6 Cal.5th at pages 878-885.
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DISPOSITION

The matter is remanded so that the trial court may clarify its ability to pay 

determination consistent with the guidance provided herein. In all other respects, the 

judgment is affirmed. 

 /s/

HOCH, J.

We concur:

 /s/

ROBIE, Acting P. J.

 /s/

RENNER, J.