Filed 4/30/13 Opinion following rehearing



                               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, Barry Carlton and Felicity

Senoski, Deputy Attorneys General, for Plaintiff and Respondent.




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       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 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. Our only option, under the


       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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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.

                                      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




                                              3
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.

                                    Inhabited Structure

       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).)

       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


                                               4
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. In this case, the prosecutor did not present any evidence

to show defendant’s motor home was affixed to the ground in any manner. Therefore,

the motor home was not a building and, in turn, could not be a structure as that term is

defined above.

       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 charged defendant with arson of an

inhabited structure under section 451, subdivision (b), even though that section also

applies to arson of “inhabited property.”4

       We need look no further than the noted statutory provisions to conclude that the

district attorney incorrectly charged and prosecuted this case—the motor home in this

case is not a building and, therefore, is not a “structure” as that term is defined in section

450, subdivision (a). Labaer, supra, 88 Cal.App.4th 289, on which the trial court relied,

and which the Attorney General cites in this appeal, is inapposite.

       4 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.


                                               5
       In Labaer, which involves a mobilehome rather than a motor home, the defendant

argued the mobilehome that he had partially dismantled before he set it on fire, was

“property” not a building and, therefore, not subject to the increased punishment for

arson of a structure. In rejecting that claim, Division One of this court first noted that,

“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.) The

court then 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. Labaer argues instead that the dilapidated condition of the home on the day of

the fire—caused primarily by his illegal dismantling activities the previous day—

converted the mobilehome from a ‘structure’ under section 451, subdivision (c) to

generic ‘property’ subject to lesser punishment under section 451, subdivision (d). [¶]

The easy answer to this contention is that the Legislature could not have intended that a

criminal defendant benefit from his or her unlawful activities to obtain a lesser

punishment merely by attempting to take apart a building shortly before setting it on fire.

The more lengthy—but equally correct—response to Labaer’s contention is that despite

his dismantling activities, the mobilehome remained a ‘building’ within the meaning of

the arson statute because the dismantling was never completed. Although the

mobilehome was in a substantially substandard condition, there was ample evidence




                                              6
showing it remained a standing and constructed structure that had four sides and a partial

roof.” (Labaer, at pp. 292-293.)

       As defendant argued in the trial court in this case, 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 all affixed to

the ground and either cannot be moved at all or cannot be moved without first being

dismantled and detached from the ground.5 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




       5  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.



                                               7
within the meaning of the arson statute.6 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 same,7 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.8




       6  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.

       7 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.

       8  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
       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

that 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



       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.


                                               9
‘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 (c), includes arson of

everything except a structure or forest land. Therefore, arson of property is not a lesser

necessarily included offense of the charged crime because in committing arson of an

inhabited structure, the perpetrator is not also committing the crime of arson of property.

Because it is not a lesser necessarily included offense of the charged crime, we cannot

exercise our authority under section 1181, subdivision 6, to reduce defendant’s

conviction from the greater to the lesser included offense.

       Under the circumstances of this case, we have no alternative but to reverse

defendant’s conviction with directions to the trial court to dismiss the charges. We

cannot, as the Attorney General urges, remand for a new trial because that would violate

the constitutional prohibition against placing a person twice in jeopardy for the same

offense. People v. Lagunas (1994) 8 Cal.4th 1030, which the Attorney General cites to

support its request for a new trial, involves the trial court, sitting as a 13th juror. As the

Supreme Court explained, “When, after a jury verdict, a trial court rules on a new trial

motion, it independently assesses the evidence supporting the verdict. [Citations.] If the

trial court is not convinced that the evidence presented at trial warrants the jury’s verdict

finding the defendant guilty of the offense charged, but the court concludes that the

evidence would have justified conviction of a lesser related offense, it has statutory

authority to order a new trial. (§ 1181, subd. 6.) Such an order ‘places the parties in the

same position as if no trial had been had’ (§ 1180), thus giving the People the option to


                                              10
retry the case.” (Id. at p. 1038.) “In considering a motion for a new trial made on the

ground of insufficiency of the evidence to support the verdict, the trial court

independently weighs the evidence, in effect acting as a ‘13th juror.’ If the trial court,

sitting as a ‘13th juror,’ would have decided the case differently from the other 12 jurors

and grants the motion for a new trial, there is no double jeopardy bar to retrial.

[Citation.] Double jeopardy does bar retrial, however, when a court, using the

‘substantial evidence’ test, determines as a matter of law that the prosecution failed to

prove its case.” (Ibid., fn. 6.)

       We conclude the prosecution, as a matter of law, failed to prove its case against

defendant. Therefore, retrial of defendant is prohibited, and we must reverse the

judgment with directions to dismiss the charges.

                                      DISPOSITION

       The judgment is reversed, and the matter 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.
We concur:


RICHLI
                            J.


CODRINGTON
                            J.


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