Filed 2/26/14 P. v. Ramsdell CA2/6
                     NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 8.111.5.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                   DIVISION SIX


THE PEOPLE,                                                                  2d Crim. No. B246053
                                                                          (Super. Ct. No. 2010012821)
       Plaintiff and Respondent,                                               (Ventura County)

v.

MARLENE M. RAMSDELL,

       Defendant and Appellant.



                   Marlene M. Ramsdell appeals her conviction by jury of two counts of arson
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of an inhabited structure (Pen. Code § 451, subd. (b)) and one count of arson of another's
property (§ 451, subd. (d)). The trial court denied probation and sentenced appellant to
six years eight months state prison. Appellant claims she was denied effective assistance
of counsel and argues evidentiary and sentencing errors. We affirm.
                                                          Facts
                   In 1996 appellant's house was gutted by a fire when the stove pilot light
ignited a freshly painted kitchen. Several charities helped appellant and her fiancée,
Lucas Sisson, after the fire. The Red Cross paid for appellant's stay at a hotel and the
first month's rent at a new house. Appellant and Sisson received $3,000, clothing, food,



1
    All statutory references are to the Penal Code unless otherwise stated.
furniture and a television. Sisson estimated they received ten times more than they lost in
the fire.
                                         2006 Arson
              In 2006 appellant rented a house from David Richards on Junipero Street in
Simi Valley. On July 24, 2006, Richards gave written notice that appellant was behind
on the rent and not paying the trash bill. The letter stated that Richards would take legal
action if the problems were not corrected. Richards sent a copy of the letter to the
Housing Authority where appellant received Section 8 housing assistance.
              On July 25, 2006, the house burnt down. Appellant claimed it was an
electrical fire but the house electrical system was completely upgraded before the fire.
The Red Cross provided appellant housing, food, and clothing. Appellant received a free
hotel stay, a month's free rent, shoes, bedding, and food money.
              Christine Saqui, a fire investigator with the Ventura County Fire
Department, determined that the fire was intentionally started in the bedroom closet.
Saqui ruled out accidental fire sources and opined that the fire was started with a lighter
or matches.
                                         2009 Arson
              On May 15, 2009, a closet fire caused $75,000 structural damage to a
Ventura house that appellant rented. Ventura County Fire Department Captain Daniel
Plum traced the fire to the bedroom closet but could not find an ignition source.
Appellant told Ventura County Sheriff Arson Investigator Guy Peach that she was at an
AA meeting when the neighbor reported the fire. After the fire, the Red Cross provided
appellant bedding, a five-day hotel stay, a month's fee rent, and food money.
              Fire insurance investigator Robert Rappaport determined that the fire was
intentionally set with an open-flame device such as a lighter. The neighbor saw appellant
leave the house a few minutes before the smoke alarms sounded.
              At trial, appellant defended on the theory that the 2006 fire (Simi Valley
arson) was caused by a closet light bulb. Appellant denied receiving the landlord's letter
(Richards' letter) before the fire and denied starting the 2009 fire.


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                                      Richards' Letter
              Appellant argues that Richard's Letter (the 2006 landlord letter) is hearsay.
The letter was not offered for the truth of what it said but to show motive. (See e.g.,
People v. Mickey (1991) 54 Cal.3d 612, 668.) The letter stated that appellant owed rent,
had another person living on the premises, had a camper parked in the driveway, was not
paying the trash bill, and that appellant had to replace a broken door window. Richards
discussed these issues with appellant before the letter was sent. The letter was admissible
to show the effect it had on the recipient, i.e., that appellant was angered by the letter and
set fire to the house. (People v. Mendoza (2007) 42 Cal.4th 686, 697; People v. Hill
(1992) 3 Cal.4th 959, 987.)
              Appellant asserts that the letter violates her due process rights but waived
the issue by not objecting on that ground at trial. (See e.g., United States v. Olano (1993)
507 U.S. 725, 731-732 [123 L.Ed.2d 508, 517-518]; People v. Partida (2005) 37 Cal.4th
428, 434-435.) Appellant contends that her trial attorney was ineffective but counsel was
not required to make groundless evidentiary objections. (People v. Sanchez (1997) 58
Cal.App.4th 1435, 1449-1450; People v. Mendoza (2000) 78 Cal.App.4th 918, 924.) The
application of ordinary rules of evidence under state law does not violate the federal
constitutional right to present a defense. (People v. Dement (2011) 53 Cal.4th 1, 52;
People v. Fudge (1994) 7 Cal.4th 1075, 1102-1103.) Appellant makes no showing that
she was prejudiced or denied a fair trial. (People v. Hovarter (2008) 44 Cal.4th 983,
1004.)
                                       CALCRIM 316
              After appellant did not recall a prior conviction for bouncing a check, it
was stipulated that appellant was convicted of passing an insufficient-funds check in
1999. Appellant claims that she was denied effective assistance of counsel because her
trial attorney did not request a CALCRIM 316 instruction that prior misconduct does not




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necessarily destroy the witness's credibility. The jury was instructed on how to evaluate
witness testimony (CALCRIM 226), that certain evidence was admitted for a limited
purpose, and that '[y]ou may consider that evidence for that purpose and no other."
(CALCRIM 303.) The trial court had no sua sponte duty to give a CALCRIM 316
supplemental instruction. (See e.g., People v. Hawkins (1995) 10 Cal.4th 920, 942.)
Witness credibility was adequately covered by the instructions given. It is not ineffective
assistance of counsel where counsel fails to request a supplemental instruction. (See e.g.,
People v. Castillo (1997) 16 Cal.4th 1009, 1015.)
              To prevail on the ineffective assistance of counsel claim, appellant must
show both deficient performance and resulting prejudice. (Strickland v. Washington
(1984) 466 U.S. 668, 687 [80 L.Ed.2d 674, 693]; People v. Fairbank (1997) 16 Cal.4th
1223, 1241.) Appellant's trial attorney may have concluded that CALCRIM 316 would
draw attention to the prior crimes evidence. (See e.g., People v. Hinton (2006) 37
Cal.4th 839, 878.) Because counsel was confronted with difficult and nuanced tactical
decisions, we do not second guess counsel's choice. (People v. Montoyua (2007) 149
Cal.App.4th 1139, 1147-1148.)
              Assuming, arguendo, that counsel was deficient in not requesting a
CALCRIM 316 instruction, appellant must show "there is 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 outcome." (Strickland v. Washington supra, 466 U.S. at p. 694 [80 L.Ed.2d. at p.


2
 Where a defendant admits a prior crime or other misconduct, the defense can request
CALCRIM 316 which states: "Additional Instructions on Witness Credibility - Other
Conduct [¶] . . . [¶] If you find that a witness has committed a crime or other
misconduct, you may consider that fact [only] in evaluating the credibility of the
witness's testimony. The fact that a witness may have committed a crime or other
misconduct does not necessarily destroy or impair a witness's credibility. It is up to you
to decide the weight of that fact and whether that fact makes the witness less believable."
(Judicial Council of California, Criminal Jury Instructions (2013) CALCRIM 316, p.
88.)


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698].) Prejudice is lacking here because appellant's prior conviction was not used as
propensity evidence to prove the charged offenses. The evidence shows that appellant
intentionally set fire to two homes. Had CALCRIM 316 been given, it is not reasonably
probable that appellant would have obtained a more favorable result. (Id., at pp. 694-695
[80 L.Ed.2d at p. 698].)
                                          Probation
              Appellant contends that the trial court abused its discretion in not granting
probation. Appellant has the burden of showing that the sentence is so irrational or
arbitrary that no reasonable person could agree with it. (People v. Superior Court
(Alvarez) (1997) 14 Cal.4th 968, 977-978.) Where the defendant is convicted of arson of
an inhabited structure, section 1203, subdivision (e)(9) prohibits probation except in
unusual cases where the interests of justice would be served. Appellant did not satisfy
any of the probation criteria set forth in California Rules of Court rule 4.413(b) & (c) or
show that it was an unusual case warranting probation.
              It is undisputed that the 2009 fire was close to neighboring homes and
posed a substantial danger to property and human life. Appellant (age 52) had two prior
convictions, was a long term substance abuser, and suffered from depression, anxiety,
panic attacks, and post traumatic stress disorder. There is no evidence that substance
abuse or mental illness caused appellant to set fire to two homes. Appellant argues that no
one was hurt but that does not make it an unusual case or overcome the presumption of
no probation. (See e.g., People v. Superior Court (Dorsey) (1996) 50 Cal.App.4th 1216,
1229.)
              The probation report lists six factors against probation, five aggravating
factors, and no mitigating factors. It states that appellant "is a great danger to the
community and any property owner[] . . . . Clearly, she fails to take any responsibility for
her dangerous behavior as she contends she did not set any of the fires. . . . Not only
were her actions extremely dangerous for the lives of other people, but she also caused
thousands of dollars in losses."



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              The same public safety concerns are echoed in a 90-day diagnostic report
prepared by the Department of Corrections and Rehabilitation. (§ 1203.03, subd. (a).) .
Dr. Douglas Hoehing reported that appellant "has shown no remorse. The emotional
support and financial rewards she received from the first fire was a strong reinforcing
motivation for setting the subsequent fires. [Appellant's] behavior demonstrated a total
lack of concern for the safety and welfare of others and was motivated from the self
interest of greed. Her narcissistic sense of entitlement blocks her from gaining any
insight into her behavior and in turn she does not benefit from this insight . . . . There is
nothing in [appellant's] thinking or behavior that would indicate that she would not repeat
this behavior in the future if she thought she could get away with it."
              Appellant complains that the 90-day diagnostic report does not refer to the
diagnostic tests conducted before sentencing. Trial counsel alerted the trial court and
argued that "I don't think [the diagnostic report] is any more helpful than the probation
report was." The reports show that appellant is unrepentant, is likely to reoffend, and is
a threat to public safety. The trial court did not abuse its discretion in denying probation.
Probation is an act of clemency and grace, not a matter of right. (People v. Giordano
(2007) 42 Cal.4th 644, 663, fn. 7.)
              The judgment is affirmed.
              NOT TO BE PUBLISHED.


                                                          YEGAN, J.

We concur:


              GILBERT, P.J.



              PERREN, J.




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                               Patricia R. Murphy, Judge

                            Superior Court County of Ventura

                           ______________________________


             Lisa M. Spillman, under appointment by the Court of Appeal, for
Defendant and Appellant.


             Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Linda C.
Johnson, Supervising Deputy Attorney General, Toni R. Johns Estaville, Deputy
Attorney General, for Plaintiff and Respondent.




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