Filed 4/29/14 P. v. Williams 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
                                                     (Sacramento)
                                                            ----



THE PEOPLE,

                   Plaintiff and Respondent,                                                 C070382

         v.                                                                      (Super. Ct. No. 11F05725)

DEQUISE J. WILLIAMS,

                   Defendant and Appellant.




         A jury convicted defendant Dequise J. Williams of arson of an inhabited structure.
The trial court sentenced him to five years in prison and awarded him 156 days of
presentence credit.
         Defendant now contends (1) the trial court erred in refusing defendant’s requested
pinpoint instruction, which specified that reckless conduct leading to the burning of a
building is not arson, but only constitutes the lesser included offense of unlawfully
causing a fire; (2) the trial court misunderstood the scope of its discretion to grant



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probation; (3) alternatively, defendant’s trial counsel was ineffective in failing to explain
the trial court’s proper scope of discretion regarding probation; and (4) defendant is
entitled to additional presentence credit.
       We conclude (1) the trial court adequately instructed on arson and unlawfully
causing a fire, and it did not err in declining the requested instruction because the
instruction duplicated other proper instructions; (2) the trial court understood and
properly exercised its discretion in denying probation; (3) defendant’s ineffective
assistance claim lacks merit because trial counsel was not deficient and defendant has
failed to show prejudice; and (4) we will modify the judgment to grant defendant
141 days of custody credit and 21 days of conduct credit, for a total of 162 days of
presentence credit.
       We will affirm the judgment as modified.
                                     BACKGROUND
       Roy H., his wife Ashleigh S., and their daughter lived in a one-bedroom apartment
located on Del Paso Boulevard in Sacramento.1 The apartment was part of a single story
complex with four units laid out in a row. Defendant is Roy’s stepbrother. Defendant
stayed at Roy and Ashleigh’s apartment “[o]n and off.” Defendant’s girlfriend Mariah
Silver and their daughter also stayed at the apartment from time to time.
       On the evening of August 16, 2011, Roy, Ashleigh, Mariah, Roy’s brother Roess,
Roess’s wife, and Roess’s young daughter were outside the Hightower apartment.
Defendant came over with his friend David. Defendant’s girlfriend testified that he was
“drunk.”
       Roy and Ashleigh told defendant he had to move out because their Child
Protective Service (CPS) case worker said Roy and defendant could not live together




1 We refer to certain individuals by their first names for clarity.


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with pending CPS cases against them. Ashleigh told a defense investigator that she also
told defendant he had to leave because he had not paid rent. Defendant became angry.
He went inside the apartment and began to put his belongings in his daughter’s stroller.
Mariah followed defendant inside. The couple began to argue.
        Defendant and Mariah went into the bedroom, where they kept their belongings,
and continued arguing. Everyone else was outside the apartment. Ashleigh heard
someone throwing things around in the bedroom.
        Mariah said she hid in the bedroom closet after defendant threatened that she
would not see their daughter; Mariah did not want her crying to make defendant more
upset. She remained in the closet for about 10 minutes and heard defendant moving
about the bedroom. When she exited the closet, Mariah saw that half of the bedroom was
on fire. The fire was at the foot of the bed. Mariah ran out of the bedroom.
        Defendant left the bedroom and walked out the front door of the apartment. He
walked quickly past Ashleigh and said, “I hope you like the way I remodeled your room”
or “I hope you like the way I set up your new room now.” Ashleigh explained that
although she ascribed different words to defendant during her interview with the fire
investigator and at the trial, defendant essentially said he did something to Ashleigh’s
bedroom.
        Ashleigh looked inside and saw flames and smoke in the bedroom. A few seconds
later, Mariah came out of the bedroom. Mariah’s face was red and she was choking.
Ashleigh called 911 and yelled for her neighbors to evacuate.
        Roess heard defendant mumble, “Fuck y’all. I burn shit” or “Fuck y’all. I burn
shit down” as he walked past Roy and Roess. Roess saw smoke coming from the front
door.
        Roy recalled defendant saying, “I hope you like your new room” or “I hope you
like what I did to your room.” Defendant appeared angry and proud of himself when he



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made these statements. Roy looked in the apartment and saw smoke and flames coming
from the end of his bed.
       Roy testified that defendant said, “I set your house on fire” as he walked across the
street. Roy asked defendant why he burned the house. According to Roy, defendant
answered, “I did that” and “I burnt it up.” Roy said defendant showed no remorse. Roy
and defendant wrestled and punched each other; then defendant walked away.
       City of Sacramento Fire Department Investigator David Fowler testified as an
expert on fire investigation. He determined the fire started in the area of the northeast
corner of the bedroom, at the foot of the bed, and the fire spread to the rest of the
bedroom, the bathroom, and the kitchen. Fowler saw a lot of clothing in the area where
the fire started. He opined that the fire started outside the closet.
       The fire was not caused by the television, electrical outlets or air conditioning unit.
Fowler opined that the fire was intentionally set, based on the fire pattern, the physical
evidence at the property, the possible sources of combustion near the origin of the fire,
and witness interviews. He determined that an open flame was used to deliberately ignite
the fire. He ruled out any accidental causes of the fire. He did not find a cigarette or
candle in the area where the fire started.
       Fowler did not detect any type of accelerant used to set the fire. But he said an
accelerant was not needed to start a fire. He testified that clothing and bedding were
commonly used as accelerants and an open flame from a lighter could ignite a fire. He
also ruled out multiple points or areas of origin, and said multiple points or areas of
origin did not necessarily indicate that a fire was more likely intentionally set.
       Defendant smoked cigarettes. Mariah reported that defendant carried a lighter.




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       The jury convicted defendant of arson of an inhabited structure. (Pen. Code,
§ 451, subd. (b).)2 The trial court declined to grant probation, sentenced defendant to the
middle term of five years in prison, and awarded 156 days of presentence credit (136
actual days and 20 conduct days).
                                       DISCUSSION
                                               I
       Defendant contends the trial court erred in refusing defendant’s requested pinpoint
instruction. The requested instruction stated: “Reckless conduct causing only a chain
that leads to the burning of a building constitutes only the lesser-included offense of
unlawfully causing a fire.”
       The prosecutor objected to the requested instruction, arguing that CALCRIM
No. 1531, which the trial court intended to use, adequately explained the crime of
unlawfully causing a fire.
       The trial court ultimately declined to give defendant’s requested instruction,
stating there was no evidence to support it, and the instruction would mislead and confuse
the jury. The trial court said the evidence indicated defendant wanted to burn everything
in the apartment.
       Defendant argues the requested instruction would have clarified the difference
between the requisite intent for arson and the requisite intent for unlawfully causing a
fire. He claims the trial court’s refusal to give the instruction kept a relevant factual
consideration from the jury, thereby violating defendant’s rights to due process and trial
by jury.
       A person commits arson of an inhabited structure when he willfully and
maliciously sets fire to or burns or causes to be burned an inhabited structure. (§ 451,




2 Undesignated statutory references are to the Penal Code.


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subd. (b).) “Willfully” means the person knows what he is doing and intends to do the
act that causes the harm. (§ 7, subd. 1; People v. Atkins (2001) 25 Cal.4th 76, 85-86.)
“ ‘Maliciously’ imports a wish to vex, defraud, annoy, or injure another person, or an
intent to do a wrongful act, established either by proof or presumption of law.” (§ 450,
subd. (e).)
       A person commits the crime of unlawfully causing a fire when he recklessly sets
fire to or burns or causes to be burned, among other things, an inhabited structure.
(§ 452, subd. (b).) “ ‘Recklessly’ means a person is aware of and consciously disregards
a substantial and unjustifiable risk that his or her act will set fire to, burn, or cause to burn
a structure, forest land, or property. The risk shall be of such nature and degree that
disregard thereof constitutes a gross deviation from the standard of conduct that a
reasonable person would observe in the situation. A person who creates such a risk but is
unaware thereof solely by reason of voluntary intoxication also acts recklessly with
respect thereto.” (§ 450, subd. (f).)
       “Under appropriate circumstances, ‘a trial court may be required to give a
requested jury instruction that pinpoints a defense theory of the case . . . . But a trial
court need not give a pinpoint instruction if it is argumentative [citation], merely
duplicates other instructions [citation], or is not supported by substantial evidence
[citation].’ ” (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 99.)
       Here, the trial court properly instructed the jury with CALCRIM No. 1502 [arson:
inhabited structure] and CALCRIM No. 1531 [unlawfully causing a fire: inhabited
structure]. Pursuant to CALCRIM No. 1502, the trial court instructed the jury that to find
defendant guilty of arson, the People must prove that defendant acted willfully and
maliciously, terms that the trial court properly defined. And pursuant to CALCRIM
No. 1531, the trial court instructed that in order to convict defendant of the lesser
included offense of unlawfully causing a fire, the People must prove that defendant acted
recklessly, a term that the trial court also properly defined. Those instructions adequately

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explained the difference between the requisite intent for arson and the requisite intent for
unlawfully causing a fire. They did not keep a relevant factual consideration from the
jury. The trial court did not err in declining to give an additional instruction on a point
already adequately covered by other instructions. (People v. Hughes (2002) 27 Cal.4th
287, 362-363.)
       The requested instruction also did not pinpoint defendant’s theory of the case as
presented to the jury. Defendant did not argue to the jury that he recklessly or
unintentionally set the fire. He argued instead that he was innocent, suggesting that
Mariah was also unhappy about being asked to move out.
       In any event, defendant has not shown prejudice. No prejudice resulted if it is not
reasonably probable that the trial court’s failure to so instruct affected the verdict.
(People v. Hughes, supra, 27 Cal.4th at p. 363; People v. Earp (1999) 20 Cal.4th 826,
887 [applying People v. Watson (1956) 46 Cal.2d 818 standard to error in refusing
defense pinpoint instruction].) Here, the prosecutor and defense counsel highlighted to
the jury that arson requires a finding of willfulness and malice, whereas unlawfully
causing a fire requires a finding of reckless conduct. And the evidence supporting
defendant’s conviction for arson was compelling. When Mariah hid in the closet,
defendant was the only person with access to the area around the bed, which Fowler
determined was where the fire started. Everyone else was outside the apartment. Fowler
opined that the fire did not start in the closet where Mariah was hiding. Fowler opined
that the fire was intentionally set and that an open flame was used to ignite the fire.
Fowler said clothing and bedding were commonly used as accelerants. And he saw a lot
of clothing in the area where the fire started. There was also evidence that defendant
smoked cigarettes and carried a lighter. Fowler said an open flame from a lighter could
ignite a fire. Fowler did not find a cigarette or candle in the area where the fire started to
suggest an accidental fire.



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       Defendant had a motive for starting the fire. He was mad that Roy and Ashleigh
asked him to move out. His anger was evident in the various self-incriminating
statements he made to Roy, Ashleigh, and Roess. For example, when Roy asked
defendant why he burned the house, defendant said “I did that” and “I burnt it up.”
According to Roy, defendant looked angry and proud of himself when he made these
statements. Defendant’s statements suggest that he acted willfully and maliciously in
setting a fire in Roy and Ashleigh’s bedroom. There was no evidence that the fire was set
recklessly, such as carelessly discarding a lit cigarette.
       Defendant’s contention lacks merit.
                                               II
       Defendant next argues that the trial misunderstood the scope of its discretion to
grant probation.
       “ ‘The grant or denial of probation is within the trial court’s discretion and the
defendant bears a heavy burden when attempting to show an abuse of that discretion.
[Citation.]’ (Ibid.) ‘In reviewing [a trial court’s determination whether to grant or deny
probation,] it is not our function to substitute our judgment for that of the trial court. Our
function is to determine whether the trial court’s order granting [or denying] probation is
arbitrary or capricious or exceeds the bounds of reason considering all the facts and
circumstances.’ [Citation.] [¶] ‘The decision to grant or deny probation requires
consideration of all the facts and circumstances of the case. [Citation.]’ ” (People v.
Weaver (2007) 149 Cal.App.4th 1301, 1311-1312.)
       California Rules of Court, rule 4.414, sets forth the criteria affecting the decision
to grant or deny probation. “In deciding whether to grant or deny probation, a trial court
may also consider additional criteria not listed in the rules provided those criteria are
reasonably related to that decision. [Citation.] A trial court is generally required to state
its reasons for denying probation and imposing a prison sentence, including any
additional reasons considered pursuant to rule 4.408. [Citation.] Unless the record

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affirmatively shows otherwise, a trial court is deemed to have considered all relevant
criteria in deciding whether to grant or deny probation or in making any other
discretionary sentencing choice. [Citation.]” (People v. Weaver, supra, 149 Cal.App.4th
at p. 1313.)
       The trial court expressly stated that it considered the probation report, the
statements in aggravation and in mitigation, and a psychiatric report submitted by
defendant.
       Defendant suggests the trial court found defendant “ineligible” for probation. He
contends the trial court “relied” on the following statement in the probation report: “The
defendant is advisably ineligible for probation pursuant to Penal Code Section 454(c),
unless the Court finds unusual circumstances warranting a grant of probation.”3
       Defendant misconstrues the trial court’s comments. It is true that the trial court
said: “In terms of unusual circumstances that would make him ineligible for probation,
[the] probation department did not find any.” But the trial court did not “find” defendant
ineligible for probation, and it did not rely on the challenged comments in the probation
report. Instead, the trial court showed that it understood and fully exercised its discretion
in considering whether to grant defendant probation.
       The trial court considered and weighed the California Rules of Court, rule 4.414
factors and decided to deny probation. It began by considering some of the mitigating
factors defendant advances on appeal. The trial court explained that it considered
defendant’s mental health history, that this was his first adult conviction, and that his


3 Section 454, subdivision (c) provides that probation shall not be granted to any person
who violates section 451 (arson) or 452 (unlawfully causing a fire) during or within the
area of a state of insurrection or a state of emergency proclaimed by the Governor, except
in unusual cases where the interest of justice would best be served. Section 454,
subdivision (c) does not apply to this case because defendant was not convicted of arson
during or within the area of a state of insurrection or a state of emergency proclaimed by
the Governor.

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juvenile offenses occurred many years prior. The trial court also considered the
dangerousness of defendant’s conduct in this case and his lack of success in prior
treatment. (Cal. Rules of Court, rule 4.414(a)(1), (b)(1), (b)(4), (b)(8).) The trial court
concluded: “[W]hen you weigh those factors in terms of his dangerousness, I don’t see
giving him a grant of probation after balancing, balancing the criminal conduct in this
case, the dangerousness of this case, as against his past criminal history in matters that I
have already mentioned, and so based upon that I think it’s aggravated, and he shall not
be given a grant of probation.” Those statements show that the trial court did not
improperly find defendant ineligible for probation pursuant to section 454,
subdivision (c), and did not misunderstand the scope of its discretion to grant or deny
probation.
                                             III
       Defendant argues, in the alternative, that his trial counsel was ineffective in failing
to explain the trial court’s proper scope of discretion regarding probation.
       To prevail on his ineffective assistance of counsel claim, defendant must prove
(1) that trial counsel’s representation was deficient because it fell below an objective
standard of reasonableness under prevailing professional norms, and (2) that the
deficiency resulted in prejudice to defendant. (People v. Maury (2003) 30 Cal.4th 342,
389; Strickland v. Washington (1984) 466 U.S. 668, 687 [80 L.Ed.2d 674, 693].) If
defendant makes an insufficient showing on either one of these components, his
ineffective assistance claim fails. (People v. Holt (1997) 15 Cal.4th 619, 703;
Strickland v. Washington, supra, 466 U.S. at p. 687 [80 L.Ed.2d at 693].)
       Defendant must affirmatively prove prejudice. (People v. Maury, supra,
30 Cal.4th at p. 389; Strickland v. Washington, supra, 466 U.S. at p. 693 [80 L.Ed.2d at
697].) “[T]he record must demonstrate ‘a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the

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outcome.’ [Citation.]” (People v. Maury, supra, 30 Cal.4th at p. 389.) It is not enough
for defendant to show that errors had some conceivable effect on the outcome of the case.
(People v. Ledesma (1987) 43 Cal.3d 171, 217; Strickland v. Washington, supra,
466 U.S. at p. 693 [80 L.Ed.2d at 697].) He must show a reasonable probability of a
more favorable result. (People v. Ledesma, supra, 43 Cal.3d at pp. 217-218; Strickland v.
Washington, supra, 466 U.S. at p. 694 [80 L.Ed.2d at 698].)
         Defendant argues trial counsel was deficient because there was no conceivable
reason not to explain the scope of discretion to the trial court, and the deficiency was
prejudicial because a reasonable probability exists that, but for counsel’s failings, the trial
court would have granted probation.
         As we explained in part II, ante, however, the trial court did not find defendant
ineligible for probation pursuant to section 454, subdivision (c), and it did not
misunderstand the scope of its discretion to grant or deny probation. Thus, there was no
reason to explain the scope of discretion to the trial court, and trial counsel was not
deficient. Moreover, defendant has not established prejudice, because even if his trial
counsel had objected and explained the scope of discretion, the record indicates the trial
court would have done what it did: considered and weighed the California Rules of
Court, rule 4.414 factors and decided to deny probation.
         Defendant’s ineffective assistance claim lacks merit.
                                              IV
         Defendant contends he is entitled to additional presentence credit. The People
agree.
         Defendant was arrested on September 7, 2011. He was sentenced on January 25,
2012. Accordingly, he was entitled to 141 (not 136) days of actual custody credit.
(§ 2900.5, subd. (a).) Pursuant to section 2933.1, defendant would receive no more than
15 percent conduct credit -- 21 (not 20) days -- because he was convicted of a qualifying
felony. We will modify the judgment to award defendant 162 days of presentence credit.

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                                     DISPOSITION
      The judgment is modified to award defendant 141 days of custody credit and
21 days of conduct credit for a total of 162 days of presentence credit. The judgment is
affirmed as modified. The trial court is directed to prepare an amended abstract of
judgment reflecting the judgment as modified, and to forward a certified copy of the
amended abstract of judgment to the Department of Corrections and Rehabilitation.



                                                             MAURO                     , J.


We concur:


             BLEASE                   , Acting P. J.


             MURRAY                   , J.




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