Filed 10/15/15




      IN THE SUPREME COURT OF CALIFORNIA


THE PEOPLE,                          )
                                     )
           Plaintiff and Respondent, )
                                     )                             S216648
           v.                        )
                                     )                       Ct.App. 4/2 E052297
RICHARD JAMES GOOLSBY,               )
                                     )                      San Bernardino County
           Defendant and Appellant.  )                     Super. Ct. No. FSB905099
____________________________________)


        A jury convicted defendant, Richard James Goolsby, of violating Penal
Code section 451, subdivision (b), which proscribes arson of “an inhabited
structure or inhabited property.”1 Because of the way the case was charged, the
Court of Appeal found the evidence insufficient to sustain the conviction, which
precludes retrial of that charge. The question before us is whether defendant can
be retried for the lesser related offense of arson of property under section 451,
subdivision (d), without violating section 654, as interpreted in Kellett v. Superior
Court (1966) 63 Cal.2d 822 (Kellett). Kellett viewed section 654 as generally
requiring all offenses involving the same act or course of conduct to be prosecuted
in a single proceeding.
        The prosecution did not charge defendant with arson of property, but the
court instructed the jury on it. However, erroneously believing that arson of

1       All further statutory citations are to the Penal Code.



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property is a lesser included offense of the charged crime, the court instructed the
jury to reach a verdict on that offense only if it acquitted defendant of the greater
offense. Accordingly, the jury did not reach a verdict on the arson of property
charge.
       We conclude that, under these circumstances, the lesser offense of arson of
property was prosecuted in a single proceeding along with the section 451,
subdivision (b), charge and, accordingly, that section 654 does not prohibit
retrying defendant for that lesser offense. We reverse the judgment of the Court of
Appeal, which had concluded that the entire case must be dismissed.
                      FACTUAL AND PROCEDURAL HISTORY
       The majority in the Court of Appeal summarized the facts established at
trial: “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.”
       The district attorney charged defendant with attempted murder and,
relevant here, with violating section 451, subdivision (b). That provision makes it
a felony to commit “[a]rson that causes an inhabited structure or inhabited
property to burn.” The original information charged that defendant committed
arson of “an inhabited structure or inhabited property.” However, an amended
information, the one operative at trial, charged defendant with arson only of “an



                                           2
inhabited structure.” The district attorney also alleged, as an enhancement, that
defendant “caused multiple structures to burn.” (§ 451.1, subd. (a)(4).)
       At trial, the court instructed the jury on arson as charged, i.e., arson of an
“inhabited structure.” Additionally, it instructed the jury on lesser crimes,
including arson of property under section 451, subdivision (d). When the court
stated it intended to give these instructions, defense counsel said he had not
anticipated them. But he never objected to them. Because the court and parties
evidently believed the crime of arson of property was included in the charged
crime, the court instructed the jury to reach a verdict on it only if it acquitted
defendant of the charged arson crime.
       The jury acquitted defendant of attempted murder. However, it found him
guilty of “arson of an inhabited structure as charged.” It also found true the
enhancement allegation that defendant caused multiple structures to burn. In
accordance with the trial court‟s instructions, the jury did not return a verdict on
the lesser crimes, including arson of property. The trial court subsequently found
true allegations that defendant had suffered certain prior felony convictions and
served prior prison terms, and it sentenced defendant accordingly.
       The Court of Appeal reversed the judgment. It held that the motor home
was not a “structure” under the arson statute but instead is “property,” and, for this
reason, the evidence was insufficient to support the jury‟s verdict finding
defendant guilty of arson of an inhabited structure.
       The Court of Appeal also concluded that the crime of arson of property, on
which the jury was also instructed, is not, as the court and parties had believed, a
lesser included offense of the charged crime, but instead is a lesser related offense.
Arson of property under section 451, subdivision (d), is not included in the offense
of arson of an inhabited structure or inhabited property under section 451,
subdivision (b), because “arson of property does not include one burning or

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causing to be burned his or her own personal property unless 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).) This provision adds a factual element to the
lesser offense not included in the greater. One can violate subdivision (b), but not
subdivision (d), of section 451 by burning one‟s own property or structure.
       The Court of Appeal also concluded that no part of the case, including the
charge of arson of property under section 451, subdivision (d), may be retried.
Accordingly, it ordered the entire case dismissed. Justice Richli dissented from
this latter conclusion. She argued that defendant could be retried on the lesser
offense of arson of property.
       We granted the Attorney General‟s petition for review, which raised only
the question of whether the lesser related offense of arson of property can be
retried, as the dissent had argued.2
                                  II. DISCUSSION
       Section 451 makes a person “guilty of arson when he or she willfully and
maliciously sets fire to or burns or causes to be burned or who aids, counsels, or
procures the burning of, any structure, forest land, or property.” Defendant was
charged with, and convicted of, arson under section 451, subdivision (b), which
proscribes “[a]rson that causes an inhabited structure or inhabited property to
burn.” (Italics added.) Section 450 defines structure as “any building, or
commercial or public tent, bridge, tunnel, or powerplant.” (§ 450, subd. (a).) It




2       Later we requested and received supplemental briefing on an additional
issue not raised in the petition for review. We have now, however, concluded that
it is best simply to decide the issue raised in the petition for review. (See Cal.
Rules of Court, rule 8.516(b)(3).)



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defines property as “real property or personal property, other than a structure or
forest land.” (§ 450, subd. (c).)
       The apparent reason that section 450‟s definition of property excludes a
structure or forest land is that various provisions in the chapter that governs arson
distinguish among these different categories. For example, the enhancement
allegation of this case was that defendant “caused multiple structures to burn.”
(§ 451.1, subd. (a)(4).) Unlike section 451, subdivision (b), this enhancement
applies only to structures and not to other kinds of property. Additionally, arson
of an (uninhabited) “structure or forest land” is a less serious offense listed in
section 451, subdivision (c). This lesser crime also applies only to a structure (or
forest land) and not to other kinds of property.
       The information operative at trial charged defendant with arson under
section 451, subdivision (b), but in describing the crime it did not use the statutory
language of arson of “an inhabited structure or inhabited property.” Instead, it
only alleged that he committed arson of “an inhabited structure.” The court
instructed the jury in the charged language, and the jury found defendant guilty as
charged. The Court of Appeal held that the motor home located at that address
was not a “structure” but instead was “property,” a holding not before us on
review and on which we express no opinion. Accordingly, it held that substantial
evidence did not support the arson conviction. That being the case, the arson
charge under section 451, subdivision (b), may not be retried. “[A]n appellate
ruling of legal insufficiency is functionally equivalent to an acquittal and
precludes a retrial.” (People v. Hatch (2000) 22 Cal.4th 260, 272.)3

3      It is not clear why the amended information charged only arson of an
inhabited structure rather than used the statutory language of arson of an inhabited
structure or inhabited property, as the original information had done. The problem
                                                            (footnote continued on next page)


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        The issue before us is whether defendant may be retried for the lesser
charge of arson of property under section 451, subdivision (d). Defendant makes
two distinct arguments why the arson of property charge may not be retried. First,
he argues that retrial would violate section 654 as interpreted in Kellett, supra, 63
Cal.2d 822. Second, he argues retrial would violate double jeopardy principles.
The majority below found that Kellett barred retrial and did not decide the double
jeopardy question. In dissent, Justice Richli argued that Kellett does not bar
retrial. She also did not address the double jeopardy question.
        We conclude that neither section 654 nor Kellett, supra, 63 Cal.2d 822,
prohibits retrial. Section 654, subdivision (a), provides: “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 a
prosecution for the same act or omission under any other.”
        Interpreting section 654 as it then read, which, as relevant here, was
substantially identical to the current version,4 Kellett held that when “the


(footnote continued from previous page)

in this case would not have arisen under the original information, because then it
would not have mattered whether one characterized the motor home as a structure
or property. Using the statutory language avoids potentially difficult questions
regarding whether what was burned was a structure or some other kind of
property.
4       When Kellett was decided, section 654 provided: “An act or omission
which is made punishable in different ways by different provisions of this code
may be punished under either of such provisions, but in no case can it be punished
under more than one; an acquittal or conviction and sentence under either one bars
a prosecution for the same act or omission under any other.” (As enacted by Stats.
1872; see Kellett, supra, 63 Cal.2d at p. 824, fn. 1.)



                                           6
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 of any offense omitted if the initial proceedings culminate in either
acquittal or conviction and sentence.” (Kellett, supra, 63 Cal.2d at p. 827.)
       The majority below held that this rule precluded retrial of the arson of
property charge: “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 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. [Citation.] 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. [Citation.] 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).”
       We disagree. If the trial court had not instructed the jury on arson of
property, we have no doubt that Kellett, supra, 63 Cal.2d 822, would prohibit
charging that crime for the first time now. Here, however, although the charging
documents never charged this crime, the court did instruct the jury on it at trial.
Defense counsel‟s response to the trial court‟s stated intent to instruct on the lesser
related offense of arson of property constitutes, at best, an equivocal statement. It
falls short of an express objection. Even if counsel had some disagreement with

                                           7
the proposed instruction — and we see nothing in the record to this effect —
counsel never sought a ruling from the court on the propriety of the instruction.
As such, counsel impliedly consented to the jury‟s consideration of the arson of
property offense. (People v. Toro (1989) 47 Cal.3d 966, 978.) Accordingly, it
was “prosecuted in a single proceeding” along with the other crimes. (Kellett, at
p. 827.)
        We agree with Justice Richli‟s argument: “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 in People v. Guiuan (1998) 18 Cal.4th 558, 568, footnote 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.‟ (Toro, at p. 976, fn. omitted.) The defendant forfeits any lack of
notice by failing to object.    (Id. at p. 978.) [¶] . . . [¶] . . . 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 [charge] (for
whatever reason), this charge is still „unresolved‟ and „pending.‟ ” (Citing maj.
opn.)
        As noted, defendant also argues that principles of double jeopardy bar
retrial. The Court of Appeal did not resolve this question. Rather than decide the
question ourselves, we think it best to remand the matter for the Court of Appeal
to decide it in the first instance.




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                                 III. CONCLUSION
       We reverse the judgment of the Court of Appeal and remand the matter to
that court for further proceedings consistent with this opinion.

                                                         CHIN, J.
WE CONCUR:

CANTIL-SAKAUYE, C. J.
WERDEGAR, J.
CORRIGAN, J.
LIU, J.
CUÉLLAR, J.
KRUGER, J.




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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Goolsby
__________________________________________________________________________________

Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 222 Cal.App.4th 1323
Rehearing Granted

__________________________________________________________________________________

Opinion No. S216648
Date Filed: October 15, 2015
__________________________________________________________________________________

Court: Superior
County: San Bernardino
Judge: Bryan Foster

__________________________________________________________________________________

Counsel:

Steven S. Lubliner, under appointment by the Supreme Court, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette and Gerald A. Engler, Chief Assistant Attorneys
General, Julie L. Garland, Assistant Attorney General, Steven T. Oetting, Deputy State Solicitor General,
William M. Wood, Lilia E. Garcia, Barry Carlton and Felicity Senoski, Deputy Attorneys General, for
Plaintiff and Respondent.




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Counsel who argued in Supreme Court (not intended for publication with opinion):

Steven S. Lubliner
P.O. Box 750639
Petaluma, CA 94975-0639
(707) 789-0516

Felicity Senoski
Deputy Attorney General
600 West Broadway, Suite 1800
San Diego, CA 92101
(619) 645-2607




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