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,                   E052297

v.                                                  (Super.Ct.No. FSB905099)

RICHARD JAMES GOOLSBY,                              OPINION

        Defendant and Appellant.



        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.




                                            1
       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).)




                                               4
       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.)


                                             5
       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.



                                             6
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.


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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


                                              8
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.”


                                              9
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.




                                             10
                                    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.




                                           11
       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.



                                             1
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



                                              2
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.



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