Filed 3/3/15 P. v. Helton CA5


                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication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
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F068160
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. VCF283774)
                   v.

JOHNNY RAY HELTON,                                                                       OPINION
         Defendant and Appellant.


                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Tulare County. H.N.
Papadakis, Judge. (Retired judge of the Fresno County Sup. Ct. assigned by the Chief
Justice pursuant to art. VI, § 6 of the Cal. Const.)
         William I. Parks, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Senior Assistant Attorney General, Louis M. Vasquez,
Amanda D. Cary, and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and
Respondent.
                                                        -ooOoo-

*        Before Levy, Acting P.J., Cornell, J. and Kane, J.
                              PROCEDURAL SUMMARY
       Appellant Johnny Ray Helton was charged in an information filed on June 19,
2013, with felony arson (Pen. Code, § 451, subd. (c), count 1) and one misdemeanor
count of vandalism (Pen. Code, § 594, subd. (a), count 2). The information further
alleged six prior serious felony convictions within the meaning of the three strikes law
(Pen. Code, §§ 667, subds. (b)-(i) & 1170.12, subds. (a)-(i)) and within the meaning of
Penal Code section 667, subdivision (a)(1). The information also alleged two prior
prison term enhancements (Pen. Code, § 667.5, subd. (b)).
       At the conclusion of a jury trial on August 15, 2013, appellant was found guilty of
counts 1 and 2. In a bifurcated proceeding, the trial court found true the prior serious
felony and prior prison term allegations. On September 27, 2013, the trial court
exercised its discretion pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th
497 and struck all of the allegations of prior serious felony convictions except for one.
       The court sentenced appellant to prison for a total of 19 years: the upper term of
six years for arson doubled to 12 years pursuant to the three strikes law; a consecutive
term of five years for the prior serious felony conviction alleged pursuant to Penal Code
section 667, subdivision (a)(1); and two consecutive terms of one year for each of the two
prior serious prison term enhancements. The court awarded credits of 122 days that
appellant was actually in custody, conduct credits of 61 days, and total custody credits of
244 days.
       Appellant contends the trial court erred in permitting the prosecutor to present
evidence of a prior, uncharged arson under Evidence Code section 1101 (undesignated
statutory references are to the Evidence Code) because it was improperly used to show
his propensity to commit the charged crime. Appellant also contends that the prejudice




                                             2
of admitting this evidence outweighed its probative value under section 352. We reject
these contentions and affirm the trial court’s judgment.
                                          FACTS
Section 402 Hearing
       The information alleged that appellant committed arson on May 29, 2013.1 The
prosecutor brought a motion in limine seeking to admit evidence of appellant’s
involvement in starting a fire 12 days earlier on May 17. The prosecutor sought to show
that on both occasions, appellant was trying to harm Kim Arrington, he had the same
intent to commit the charged offense, and the fires were set intentionally and not as the
result of mistakes. The prosecutor argued this evidence was admissible under section
1101 and that it should not be excluded under section 352.
       At the section 402 hearing, Kimberly Arrington testified that a few weeks prior to
the fire on May 17, appellant threw excrement and urine at her, her dog, her tent, and her
belongings. Appellant then attacked Arrington with a rake and a footstool. During the
attack, appellant threatened Arrington by saying, “‘I’ll bury you where you stay.’”
Arrington complained to authorities, but the district attorney’s office did not prosecute
the case and appellant was released from jail.
       On May 17, as Arrington was about to take a nap in her tent on the river between
the Jaye Street and Main Street bridges in Porterville, she heard someone on the bike path
say, “I’ll bury you where you stay.” The person was directly behind Arrington’s tent.
Arrington then smelled smoke, got up, looked outside her tent, and heard crackling. The
fire was very close, so she grabbed her dog and ran for the fence. Arrington found a hole
in the fence to escape the fire. When the fire department arrived, the fire had taken over
the whole river bank between the two bridges.

1      Unless otherwise designated, all dates refer to the year 2013.


                                             3
       The voice Arrington heard was a male voice. Although she did not recognize the
voice, she recognized the words as the ones appellant had used during the earlier incident,
which took place a week or two weeks earlier. Arrington conveyed this information to
the fire investigator and explained that she had been having trouble with appellant. The
May 17 fire happened shortly after the district attorney dropped the charges against
appellant for the first attack on Arrington and he was released from jail.
       The prosecutor argued that evidence of the May 17 fire was relevant on the issues
of motive, identity, and the absence of mistake. Defense counsel argued that the
evidence was not even remotely reliable because Arrington had an animus toward
appellant. The court ruled that Arrington’s testimony concerning the previous fire was
admissible. The court noted the two incidents were “very, very similar.”
Charged Arson
       On May 29, John Warner was homeless and lived near the Tule River in
Porterville in a camp between the Jaye Street bridge and Highway 65. Warner lived in a
tent. Kim Arrington, Sherry England, and Steve Parham lived in tents near Warner.
They constructed a barrier to keep away animals and other people. There were a total of
four tents in the camp, in an area about 16 feet by 30 feet.
       Around 6:00 or 6:30 a.m., Warner went to the restroom area, about 10 feet outside
the wall of the campground. As he was urinating, Warner looked up to the top of the hill
about 20 to 25 feet away and saw a man squatting. The man was facing Warner. Warner
saw smoke and fire beside the man. Warner could hear the crackling of bamboo. Warner
went to get a shovel to put out the fire. Warner was away for 30 to 45 seconds. Although
Warner wears glasses, they are for reading and he sees fine without them.
       The fire was spreading quickly and was about 15 feet in diameter. Warner
grabbed the shovel and started heading up the hill to try to extinguish the fire when he
heard Arrington scream, “He’s trying to kill me.” Warner went back to see if he could

                                              4
help Arrington. He realized that the fire was too large for him to extinguish with the
shovel he had retrieved. Warner went back to the camp and saw the same man who had
started the fire trying to cut his way into Arrington’s tent. Arrington was still screaming.
Warner started chasing the assailant up the hill and down a dirt road for about a half mile.
The man dropped a baseball cap.
       The assailant went into Dr. Rice’s house. It took investigators three to five
minutes to arrive. During the chase, the assailant asked Warner four or five times not to
tell on him. Warner identified appellant in court as the assailant.
       Arrington testified that she was awoken on May 29, when Sherry England began
yelling that there was a fire. Arrington saw a silhouette outside her tent. The tent was
entirely closed and Arrington could not exit without unzipping the entry. Arrington
asked who was behind her tent. A man responded, “Hello puppy, puppy.” Then
Arrington saw appellant through the back of the mesh screen. Appellant began slicing
the screen open. Arrington screamed for Warner to help her. After cutting a hole into
Arrington’s tent, appellant reached for her head. Arrington tried to get out of the tent, but
she panicked and could not unzip the exit. Warner arrived and chased appellant away.
       On May 29, Michael Mahoney was staying at the El Granito Foundation on West
Date, which was run by Dr. Janice Rice, a pastor. While Mahoney was in a Bible study,
appellant started pounding on the front door. When Mahoney and Dr. Rice went to the
door, appellant told them to call 911 because a woman had been kidnapped, everyone
was looking for her, she was tied to a mattress down at the river, and she was being used
as a sex slave. Mahoney gave Dr. Rice his phone and she called 911. Appellant
appeared ecstatic and excited.
       Mahoney saw Warner across Date Street. Appellant told Warner, “‘You’re gonna
get 5 years you mother.’” Warner replied, “‘You’re gonna get life.’” While Dr. Rice was
on the phone with the 911 operator, Mahoney noticed smoke coming from the river and

                                              5
told Dr. Rice that the fire department would be needed. Mahoney saw appellant place
some items into a hole at the top of a cinder block wall outside the house and cover the
hole with rocks from his pocket. Mahoney later retrieved the items, a Leatherman
multipurpose tool and a lighter.
       Michael Brodbeck worked as a fire fighter and on-shift fire investigator for the
Porterville Fire Department. On May 29, he was called to fight and investigate a fire at
the river. After being dispatched, it took Brodbeck about two or three minutes to arrive at
the scene of the fire. The fire was approximately 50 feet by 100 feet. Firefighters used
foam and water to extinguish the fire. The fire was contained in five minutes and
completely out after 20 minutes.
       Brodbeck determined where the fire was started. The weather was clear, so
lightening was not a cause of the fire. The cause of the fire was from a match, a lighter,
or any item someone could use to start the fire and walk away.
       Brodbeck talked to Arrington and Warner, who were upset and “a little mad.”
Mahoney gave Brodbeck the Leatherman and the lighter that appellant attempted to hide.
Appellant was given his Miranda2 rights and he told Brodbeck that he was looking for a
woman named Rhonda Richie, he was in love with her, and Richie was taken into the
camp and being sold for sex. Appellant learned this from a female transient the night
before, but was too tired to look for Richie then. Appellant told Brodbeck there was no
fire when he was in the camp and did not see Richie there.
Uncharged Arson
       After Warner and Arrington testified about the fire on May 29, Arrington testified
that on May 17, her tent was on the river between the Jaye Street and Main Street
bridges. Arrington was about to take a nap when a fire broke out on the river and she had

2      Miranda v. Arizona (1966) 384 U.S. 436.


                                             6
to run. Arrington heard a voice behind her tent on the bike path. Arrington estimated the
voice was about 28 feet away from her tent and was a male voice. Defense counsel
objected to Arrington’s testimony as irrelevant. The court advised the jury that
Arrington’s current testimony was admissible only for the limited purpose of showing
motive, intent, and identity.
       The man said, “‘I’ll bury you where you stay.’” Arrington had seen appellant and
heard him use that same phrase prior to the fire on May 17. The fire spread between Jaye
and Main Streets and spread across both sides of the river. All of Arrington’s property
was destroyed.
       Porterville Fire Captain Mitchell Sandoval responded to the fire to assist initially
with fire suppression and then to investigate the cause of the fire. Sandoval found no
obvious cause of the fire. Sandoval and the fire investigator concluded the fire was either
caused by an open flame device, such as a lighter, a match, or discarded smoking
material. Discarded smoking material could be from a cigarette, a hot ember from a
barbeque or cooking fire, or coal. Sandoval did not find any discarded cigarette butts.
Defense Testimony
       Dr. Rice testified that she conducted drug diversion classes at the El Granito
Foundation. Dr. Rice was teaching a class that started at 6:30 a.m. when appellant beat
on the door and said, “we need help.” Dr. Rice described appellant as “freaking out.”
Appellant told Dr. Rice that Rhonda was being raped and needed help. Dr. Rice knew
Rhonda. Another man was screaming and yelling “crazy stuff” at appellant like he was
going to get him.
       Appellant testified that he was nowhere near Arrington on May 17, and did not
know about the incident until the trial. Appellant lived about two miles down the river
from Warner’s camp. Appellant’s camp was nicer and was near running water. On May
29, appellant left his camp at about 4:00 a.m., looking for Rhonda Richie, who had been

                                             7
missing for a couple of days, and eventually came to Warner’s campsite. Appellant had a
relationship with Richie 15 to 19 years earlier and still had feelings for her. Appellant
had heard she was being mistreated and held against her will at Warner’s camp.
        When appellant found Warner’s camp, he saw Warner guarding what turned out to
be Arrington’s tent. The first thing appellant saw was disturbing to him. There was a
baby carriage wrapped with a knotted yellow rope and there was a bank bag with yellow
rope in it as well. This indicated to appellant that they had someone in bondage whom
they were selling. That was what appellant had learned was going on down there.
        Appellant slowly began to take apart the barrier around Warner’s camp. After 15
or 20 minutes, appellant got through the barrier. He went to the back of the tent that he
thought Rhonda was in because he could not see through it or inside of it. That was when
appellant took out “the Leatherman thing” and used the knife blade to slice open the tent
a few inches to look inside of it. Arrington screamed. Another lady and man came out of
their tents and came toward appellant, who ran away, eventually making it to Dr. Rice’s
place. Appellant never saw Richie inside the tent or at any time on May 29. Appellant
admitted putting the Leatherman tool and the lighter on the wall. He also had rocks in his
pocket for when dogs chased him on his bicycle. The rocks were cumbersome so he
removed them from his pocket and also set them on the wall. Appellant denied setting
the fire.
                   ADMISSION OF OTHER-CRIMES EVIDENCE
        Appellant contends the trial court abused its discretion under section 1101 in
permitting testimony concerning the uncharged arson. Appellant argues the two offenses
were not similar enough to one another and it was error to permit the evidence to show
identity or common plan. Appellant argues that the court erred in giving CALCRIM No.
375, the other-crimes evidence instruction, and that he was denied his constitutional right
to due process by the admission of the uncharged arson.

                                              8
        Under section 1101, evidence of a defendant’s other misconduct is inadmissible to
prove the defendant’s propensity to commit the charged offense. (§ 1101, subd. (a);
People v. Branch (2001) 91 Cal.App.4th 274, 280 (Branch).) Because evidence of other
crimes may be highly inflammatory, its admissibility should be scrutinized with great
care. (People v. Gray (2005) 37 Cal.4th 168, 202 (Gray).) Such evidence is admissible,
however, to establish a fact such as motive, intent, identity, preparation, absence of
mistake or accident, or that the defendant acted toward a common design or plan.
(§ 1101, subd. (b); Branch, supra, 91 Cal.App.4th at p. 280; see People v. Balcom (1994)
7 Cal.4th 414, 422-424.)
        The admissibility of other-crimes evidence depends on the materiality of the fact
sought to be proved or disproved, the tendency of the uncharged crime to prove or
disprove the material fact, and the existence of any rule or policy requiring exclusion of
relevant evidence, such as section 352. (People v. Lindberg (2008) 45 Cal.4th 1, 22
(Lindberg); People v. Sully (1991) 53 Cal.3d 1195, 1224.) On appeal, we review the trial
court’s ruling under section 1101 for abuse of discretion. (Gray, supra, 37 Cal.4th at p.
202.)
        When the prosecution seeks to prove identity of the perpetrator of the charged
offense, the admissibility of evidence of the uncharged offense or offenses turns on proof
that the charged and uncharged offenses share sufficient distinctive common features to
raise an inference of identity. A lesser degree of similarity is required to establish the
existence of a common plan or scheme and still less similarity is required to prove intent.
(Lindberg, supra, 45 Cal.4th at p. 23; People v. Roldan (2005) 35 Cal.4th 646, 705
[disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22].)
        We agree with the People that both the uncharged and charged arson here were
distinctly similar. Both arsons involved fires deliberately set by open flame devices to
foliage next to homeless encampments, both fires were set in or near the same location,

                                              9
both fires appeared to be attacks on Arrington, and both fires occurred while Arrington
was resting in her tent. During the May 17 fire, Arrington heard a man say he would
bury her where she stayed, an expression she heard appellant use on a prior occasion, just
as the fire erupted. During the May 29 fire, appellant again threatened Arrington verbally
and by cutting a hole in her tent shortly after he was seen squatting in brush with flames
burning next to him.
       Appellant argues that the trial court never conducted an analysis as to whether the
similarities rose to the level of sufficient distinctiveness. We agree with the People that
the trial court in fact expressly stated that the two incidents were similar enough to one
another to show appellant’s identity and therefore sufficient as well to prove appellant’s
intent, where the least amount of similarity between charged and uncharged offenses is
required.
       We note that the jury was instructed with CALCRIM No. 375, the instruction
limiting evidence of uncharged acts to show appellant’s intent, motive, or common plan
or scheme. The court told the jury to evaluate the similarity or lack of similarity between
the charged and uncharged offenses. In its oral instructions, the trial court left out the
advisement to the jury in the written instructions, “Do not consider this evidence for any
other purpose.” We do not find the omission of this one sentence to be a reversible error,
structural or otherwise, because the jury was given a written copy of the instructions to
use during their deliberations and our Supreme Court has held that to the extent a
discrepancy exists between the written and oral versions of jury instructions, the written
instructions control. (People v. Mills (2010) 48 Cal.4th 158, 200-201.) Also, the trial
court had already advised the jury during Arrington’s testimony concerning the arson on
May 17 that the other-crimes evidence was admitted for a limited purpose.
       We agree with the People that even if the admission of the arson on May 17
violated section 1101, the error was harmless under the facts of this case. Appellant was

                                             10
caught in the act of starting a brush fire next to a homeless encampment on May 29.
Appellant was seen threatening Arrington after tearing a hole in her tent. Appellant was
chased to Dr. Rice’s foundation and seen by an independent witness pulling the
Leatherman tool and lighter out of his pocket and then trying to hide them in a wall with
rocks he also pulled out of his pocket. There was strong and substantial evidence of
appellant’s culpability for the May 29 arson.
       Ordinarily, the erroneous admission of evidence is evaluated under the standard of
review set forth in People v. Watson (1956) 46 Cal.2d 818, 836. (People v. Clark (1992)
3 Cal.4th 41, 130 (overruled on another ground in People v. Pearson (2013) 56 Cal.4th
393, 461-462).) Had evidence of the uncharged arson on May 17 been excluded, we do
not find it reasonably probable that the jury would have reached a different result on the
charged arson.3 Given the strength of the People’s case, pursuant to Chapman v.
California (1967) 386 U.S. 18, we further find beyond a reasonable doubt that exclusion
of the challenged other-crimes evidence would not have altered the jury’s verdict on the
charged arson.
                                      SECTION 352
       Appellant contends the trial court abused its discretion under section 352 in
permitting evidence of the uncharged arson. The People initially argue that appellant
cannot challenge the prejudicial effect of the evidence pursuant to section 352 because he
did not raise an objection on this ground to the trial court.4 We reject the People’s

3     We further reject appellant’s due process challenge to the admission of other-
crimes evidence.
4       Appellant argues that trial counsel did argue to the trial court that the evidence was
neither reliable nor relevant. Although this may not have been the most artful way to
raise a section 352 objection, we find it was sufficient enough to put the court and
prosecutor on notice that appellant was challenging the prejudicial effect of the evidence.
We note that the prosecutor’s motion seeking admission of this evidence argued it was
not unduly prejudicial under section 352. We further find the trial court made at least an

                                             11
forfeiture argument. We also reject appellant’s section 352 challenge to the admissibility
of the uncharged arson.
       Under section 352, the trial court may exclude evidence if its probative value is
substantially outweighed by the probability that its admission will necessitate undue
consumption of time, or create a substantial danger of undue prejudice, confusing the
issues, or misleading the jury. We review a challenge to the trial court’s ruling for abuse
of discretion and will reverse only if the ruling was arbitrary, whimsical, or capricious as
a matter of law. (Branch, supra, 91 Cal.App.4th at pp. 281-282.) Evidence that is
unduly prejudicial within the meaning of section 352 is evidence that uniquely tends to
evoke an emotional bias against the defendant as an individual while having only slight
probative value. (People v. Scheid (1997) 16 Cal.4th 1, 19.)
       We concur with the People that the evidence of the arson on May 17 was highly
probative to show identity, intent, common plan, and motive. Both arsons appeared to
show that appellant had a motive to attack Arrington. They both happened very close in
time, less than two weeks apart. The testimony concerning the May 17 event took little
time in the trial and the jury was admonished to consider it for the limited purpose of
showing identity, intent, common plan, and motive. The trial court did not abuse its
discretion under section 352 by admitting evidence of the uncharged arson on May 17.
                                      DISPOSITION
       The judgment is affirmed.




implied ruling that admission of the evidence under section 352 was not unduly
prejudicial.


                                             12
