Filed 6/1/16 P. v. Coles 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
                                                       (Siskiyou)
                                                            ----

THE PEOPLE,                                                                                  C077669

                   Plaintiff and Respondent,                                           (Super. Ct. No.
                                                                                      MCYKCRF140510)
         v.

MIA MARIE COLES,

                   Defendant and Appellant.




         Defendant Mia Marie Coles appeals her conviction for arson. She contends she
received ineffective assistance of counsel when her trial attorney failed to argue in his
motion for acquittal that the prosecution had not established the corpus delicti for arson.
She also contends the trial court’s imposition of multiple registration fees under Penal
Code section 987.5 was unauthorized or alternatively, that counsel was ineffective for
failing to object to the assessment of these fees. (Unless otherwise set forth, statutory
references that follow are to the Penal Code.) We find counsel was not ineffective in
either regard and affirm the judgment.

                                            FACTS AND PROCEEDINGS

         Defendant was having difficulty with her roommate and asked some strangers at a
gas station to give her a ride to a lake. On the way, she became anxious and afraid, and


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asked to get out of the car. She started walking back to town on Highway A12. She
wanted to smoke a cigarette, so she stepped down an embankment where she could more
easily light a match. She lit multiple matches to search her purse for cigarettes, and she
dropped the matches to the ground. Eventually she realized she did not have any
cigarettes, walked back to the highway, and started walking westward toward Grenada.
       Janet Dingle saw a person walking away from the area on the highway in the
opposite lane. She drove a bit further and saw flames come up from the gully by the
road. She pulled over and called 911. About the same time, Randall Gibbons also saw
the fire at the bottom of the embankment. He believed it had just started based on the
height of the flames. Gibbons also saw a woman walking casually toward Grenada on
the north side of the highway. At one point, the woman turned around, looked at the fire
and turned back around. She did not act with any urgency or try to contact Gibbons.
       California Department of Forestry and Fire Protection (CAL FIRE) Battalion
Chief Monty Messenger responded to the site of the fire. He saw defendant walking on
the side of the highway about a quarter mile away from the fire. He asked her if she
knew anything about the fire and she answered, “Yes, I started the fire because I needed
help.” Messenger asked how she started the fire, and she answered that she used a book
of matches. Messenger handcuffed defendant, put her in the back of his vehicle, drove
closer to the fire, and reported his observations to dispatch. Emergency response
personnel arrived at the scene within minutes.
       CAL FIRE Fire Captain Specialist Monte Whipple investigated the origin and
cause of the fire. Whipple determined the origin of the fire was in an eight-foot by eight-
foot area down the embankment to the side of Highway A12 approximately 12 feet from
the asphalt shoulder. The only set of tracks in the area were what appeared to be new
tracks of a person walking on the shoulder of the road on the same side as the fire. The
tracks turned from the shoulder of the road at a 45-degree angle down the embankment
bank to the point of origin of the fire and then went directly up the bank back to the road

                                             2
at a 90-degree angle. Whipple determined that the fire originated in the area where the
footprints turned and angled straight back up onto the road. The footprints and point of
origin were in one of the drier areas of tules debris build up, and the tules appeared dead
and dry. Whipple also found a one-by-one-inch piece of cardboard one or two feet from
where the footprints turned back up the embankment, but could not determine whether it
caused the fire.
       In the conditions on the day of the fire, including the temperature and humidity, a
discarded cigarette would not have had enough heat to ignite the fire. Whipple also
eliminated campfires, power lines, railroads, burning debris, lightning, kids playing with
fire, fireworks, equipment use, and vehicles as possible sources of the fire. Based on his
investigation, Whipple concluded that the fire was human-caused, although investigators
did not locate an item definitively determined to be the source of the fire. Whipple
explained that the fire was caused directly by an open flame, like a lighter or a lit object
that had been dropped or placed in the grass. He agreed that the fire was consistent with
a person dropping a burning matchbook into the tules or holding it up next to a tule. He
concluded that there was no reasonable explanation for the fire besides somebody directly
lighting the vegetation or dropping an open flame into the vegetation.
       After completing his investigation, “based on what [he] heard [defendant] say,
what [he] observed as far as burn indicators and fire behavior, and what we found in the
general area of origin, was that this fire was a human-caused fire that originated at the
bottom of the--those footprints. And it was with either an open flame--and I don’t know
if it was with a lighter or if it was a lit object that was dropped or placed in the grass, but
an open-flame device.” He later explained he believed “someone, in this case the
defendant, based on statements, either lit the vegetation or dropped an open-flame
device.” And, he clarified, there was no other reasonable explanation for how the fire
started than that a person either directly light the vegetation on fire or dropped an open
flame into the vegetation.

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       Before being extinguished, the fire burned approximately 1.7 acres of wetlands.
After Mirandizing defendant, Messenger questioned her further. She admitted she started
the fire with “one match book. Five fucking matches on one side and three on the other”
and that she did not “know why it caught like that.” She later explained she had tried to
light the five matches, but they would not light, so she tried to light the four matches, and
they did. She then let the matchbook go because she did not have a cigarette.
       An information charged defendant with one count of arson of forest land. (§ 451,
subd. (c).)
       After the close of the prosecution’s case, defendant made a section 1118 motion
for acquittal. Defendant challenged the sufficiency of the evidence arguing the evidence
failed to establish that the setting of the fire was a malicious act and that the fire in this
case took place on forest land. The trial court denied the motion.
       Following a bench trial, the trial court found defendant guilty. On September 2,
2014, the trial court granted defendant three years’ probation. By the time of sentencing
defendant had lost her social security benefits as a result of her lengthy incarceration.
Accordingly, the trial court found she lacked the ability to reimburse the probation
department for the costs of preparing the presentence report, to pay probation supervision
fees, to pay a booking fee, or to reimburse the costs of her appointed counsel.

                                          DISCUSSION

                                                I

                                        Corpus Delicti

       Defendant contends she received ineffective assistance of counsel because
counsel failed to argue the prosecution had not established the corpus delicti of arson in
the motion for acquittal. Specifically, defendant argues “apart from the testimony and
evidence with regard to [defendant’s] extrajudicial statements prior to and immediately
following her arrest, or the opinion of Fire Captain Specialist Whipple which was at least


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in part derivative of those extrajudicial statements, the prosecution did not present even
slight evidence in its case in chief either that the fire was incendiary in origin or that the
fire was the result of actions by [defendant] with an awareness of, and conscious
disregard, for a substantial and unjustifiable risk that her actions would set fire to forest
land, or property.”
       To prevail on a claim of ineffective assistance of counsel, defendant must
demonstrate his trial counsel’s representation fell below an objective standard of
reasonableness and the defect prejudiced defendant in that there is a reasonable
probability that, but for the deficiency, defendant would have obtained a more favorable
result. (Strickland v. Washington (1984) 466 U.S. 668, 687–688 [80 L.Ed.2d 674];
People v. Williams (1997) 16 Cal.4th 153, 215.) We need not address both prongs if the
defendant makes an insufficient showing as to one. (Strickland, supra, 466 U.S. at
p. 697.) Here, defendant has not established deficient performance.
       “ ‘ “ ‘The corpus delicti of a crime consists of two elements[:] the fact of the
injury or loss or harm, and the existence of a criminal agency as its cause.’ ” ’ [Citation.]
‘In any criminal prosecution, the corpus delicti must be established by the prosecution
independently from the extrajudicial statements, confessions or admissions of the
defendant.’ [Citations.] Such independent proof may consist of circumstantial evidence
[citations] and need not establish the crime beyond a reasonable doubt. [Citations.]”
(People v. Jones (1998) 17 Cal.4th 279, 301.) “The amount of independent proof of a
crime required for this purpose is quite small[ and has been] described . . . as ‘slight’
[citation] or ‘minimal’ [citation].” (Ibid.) The rule “ ‘reflects the . . . fear that
confessions may be the result of either improper police activity or the mental instability
of the accused, and the recognition that juries are likely to accept confessions
uncritically.’ (Jones v. Superior Court (1979) 96 Cal.App.3d 390, 397.)” (People v.
Herrera (2006) 136 Cal.App.4th 1191, 1200.) To adequately prove the corpus delicti of
a crime “ ‘the prosecution need not eliminate all inferences tending to show a

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noncriminal cause of [the harm]. Rather, the foundation may be laid by the introduction
of evidence which creates a reasonable inference that the [harm] could have been caused
by a criminal agency [citation], even in the presence of an equally plausible noncriminal
explanation of the event.’ [Citation.]” (People v. Ochoa (1998) 19 Cal.4th 353, 405.)
          Expert opinion testimony may establish the corpus delicti when it satisfies the
Evidence Code requirements that it be “ ‘[r]elated to a subject that is sufficiently beyond
common experience that the opinion of an expert would assist the trier of fact’ [Citation]”
and is “based on ‘matter . . . perceived by or personally known to the witness . . . that
reasonably may be relied upon by an expert in forming an opinion upon the subject to
which [the expert’s] testimony relates . . . .’ [Citation.]” (People v. Powers-Monachello
(2010) 189 Cal.App.4th 400, 412-413.) The expert cannot directly opine as to the
defendant’s guilt but may testify as to the cause of a crime, such as murder or arson.
(Ibid.)
          As to arson specifically, the prosecution need not establish “the whole gamut of
speculative possibility as to the cause of the fire[]” and then eliminate each of those
causes. “The corpus delicti will be proven sufficiently if the evidence shows . . . the fires
were of incendiary origin.” (People v. Andrews (1965) 234 Cal.App.2d 69, 76; see also
People v. Atkins (2001) 25 Cal.4th 76, 88.) In this context, incendiary origin means the
fire was deliberate and intentional, not accidental or unintentional. (Andrews, supra,
234 Cal.App.2d at p. 75.) The corpus delicti for arson may be established where
accidental causes are ruled out, that is where there is evidence permitting an inference of
a deliberately and intentionally set fire. (Andrews, at pp. 73-77; People v. Clagg (1961)
197 Cal.App.2d 209, 212; People v. Saunders (1910) 13 Cal.App. 743, 747.)
          Here, there was sufficient evidence establishing that the fire was of incendiary
origin. Defendant correctly points out that the expert, Whipple, formed part of his
opinion as to the fire’s cause based on defendant’s statements, specifically, that the
defendant caused the fire. We cannot consider that portion of Whipple’s testimony in

                                                6
establishing the corpus delicti. Independent of defendant’s statements, however, Whipple
eliminated a number of accidental or unintentional potential causes for the fire such as a
discarded cigarette, campfires, power lines, railroads, fireworks, burning debris,
lightning, kids playing with fire, equipment use, and vehicles. That is the fire was not
caused naturally or by accident. There was one set of footprints leading down the
embankment where the fire originated and back up to the highway. There was no
reasonable explanation for the fire other than someone directly lighting the vegetation or
dropping a flame on it. Defendant was the only person walking in the area, she did not
try to flag down assistance, and had no reaction to seeing the fire burning. This was
sufficient evidence to establish the fire was of incendiary origin--the corpus delicti of
arson. Accordingly, trial counsel was not ineffective for failing to make a motion for
acquittal on the basis that the corpus delicti was not established.

                                              II

                                     Unauthorized Fees

       Defendant contends the trial court imposed an unauthorized fee when it required
defendant to pay multiple court appointed counsel registration fees under section 987.5
without inquiring about her ability to pay those fees. Alternatively, she contends trial
counsel provided ineffective assistance in failing to object to the fee. We find there is a
possible reasonable explanation for counsel not having objected to the fee and reject
defendant’s contention.
       The trial court ordered defendant to pay a $25 registration fee at the April 11,
2014, arraignment hearing in this case, case No. 14-510. Both the minute order and
reporter’s transcript of that hearing reflect the imposition of the fee. The People filed a
new misdemeanor complaint, case No. 14-579, against defendant on April 29, 2014. The
trial court appointed counsel to represent defendant on that misdemeanor case and
assessed a registration fee for that case. The minutes for the hearing in case No. 14-510


                                              7
do not reflect the imposition of an additional registration fee in that case. The People
filed a second misdemeanor case, case No. 14-618, and due to a conflict of interest, the
court appointed conflict counsel to represent defendant in this case and assessed another
registration fee. The court specifically indicated the attorney was appointed in “each of
these three cases; and each of the three cases assess the $25 fee normally associated with
court appointed counsel appointments. . . .” The minute order for this hearing does not
reflect the imposition of an additional registration fee in case No. 14-510. The trial court
did not inquire about defendant’s ability to pay the fees prior to imposing them and trial
counsel did not object to the fees. At sentencing, the trial court found defendant did not
have the ability to pay probation related costs or attorneys fees. Neither the court nor
counsel addressed the registration fees at sentencing.
       Section 987.5 provides that every defendant who is represented by appointed
counsel shall be assessed a registration fee of up to $50. (§ 987.5, subd. (a).) The statute
goes on to provide: “At the time of appointment of counsel by the court, or upon
commencement of representation by the public defender, if prior to court appointment,
the defendant shall be asked if he or she is financially able to pay the registration fee or
any portion thereof. If the defendant indicates that he or she is able to pay the fee or a
portion thereof, the court or public defender shall make an assessment in accordance with
ability to pay. No fee shall be assessed against any defendant who asserts that he or she
is unable to pay the fee or any portion thereof. No other inquiry concerning the
defendant’s ability to pay shall be made until proceedings are held pursuant to Section
987.8.” (§ 987.5, subd. (b).)

       A.     Multiple Fees

       Initially, defendant contends the trial court improperly imposed multiple
registration fees in the case before us (No. MCYKCRF 140510). As delineated above, on
the record before us, it is clear the trial court only imposed a single registration fee in this


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matter. The minute orders for this case, case No. 14-510 reflect the imposition of the fee
at only one hearing. At the June 3, 2014 hearing, the court specified it had assessed a
single fee covering all three separate cases. Accordingly, we find the trial court did not
improperly assess multiple fees in a single case.

       B.     Unauthorized Sentence

       Defendant also claims the registration fee was unauthorized, as the trial court did
not inquire about her ability to pay the fee. The People argue that defendant has forfeited
her claim by failing to object in the trial court. Defendant counters that the court lacked
the authority to impose the fee resulting in an unauthorized sentence and therefore no
objection was required. We find the imposition of the fee was not unauthorized;
therefore, defendant was required to object to preserve the claim on appeal.
       “[T]he ‘unauthorized sentence’ concept constitutes a narrow exception to the
general requirement that only those claims properly raised and preserved by the parties
are reviewable on appeal.” (People v. Scott (1994) 9 Cal.4th 331, 354.) The fee in
question was not unauthorized in a jurisdictional sense. Generally, a fee is
“ ‘unauthorized’ where it could not lawfully be imposed under any circumstance in the
particular case. Appellate courts are willing to intervene in the first instance because
such error is ‘clear and correctable’ independent of any factual issues presented by the
record.” (Ibid.) The registration fees do not meet this definition, because the fees could
be lawfully imposed under circumstances showing an ability to pay, a fact-bound
determination. “In essence, claims deemed [forfeited] on appeal involve sentences
which, though otherwise permitted by law, were imposed in a procedurally or factually
flawed manner,” (ibid.) which is exactly what happened here: the fee, which was
otherwise permitted, was assessed in a procedurally flawed manner because the trial court
did not ask defendant if she had the ability to pay all or a portion of the fee. Accordingly,




                                              9
the forfeiture exception does not apply. (People v. McCullough (2013) 56 Cal.4th 589,
599.)
        Defendant also contends no objection was required to preserve the issue for
appeal, citing People v. Viray (2005) 134 Cal.App.4th 1186 (Viray). In Viray, the
appellate court held that a forfeiture of an appellate challenge to an attorney fee
reimbursement order cannot “properly be predicated on the failure of a trial attorney to
challenge an order concerning his own fees,” given the “patent conflict of interest.” (Id.
at p. 1215, italics omitted.) The People, in turn, rely on People v. Aguilar (2015)
60 Cal.4th 862, in which our Supreme Court held the forfeiture rule applied where
defendant failed to object to the amount of counsel fees or to assert the inability to pay in
the trial court. In Aguilar, however, our Supreme Court noted the case did not present,
“and we therefore do not address, the question whether a challenge to an order for
payment of the cost of the services of appointed counsel is forfeited when the failure to
raise the challenge at sentencing may be attributable to a conflict of interest on trial
counsel’s part.” (Id. at p. 868, fn. 4.)
        The statute at issue here explicitly references the attorney fee statute, and
specifically permits defendant to be “given credit for any amounts paid as a registration
fee toward any lien or assessment imposed pursuant to Section 987.8.” (§ 987.5, subds.
(d) & (b).) Thus, there may be some circumstances in which the registration fee becomes
part of the attorneys fees. In this scenario, the credit against attorneys fees would create
the same conflict discussed in Viray, and the failure to object would not result in a
forfeiture. However, the statute does not result directly in an assessment of attorney’s
fees. Rather, the assessment is a registration fee. And, if attorney’s fees are not awarded,
as they were not in this case, the conflict found in Viray which served as the basis for
foregoing the forfeiture rule, does not arise. In that circumstance, the failure to object
would result in a forfeiture of the issue on appeal. But, since defendant has also raised
the issue of ineffective assistance of counsel, which requires us to reach the merits of her

                                              10
claim, we will assume without deciding that the general forfeiture rule applies and an
objection was required to preserve the claim for appeal.

       C.     Ineffective Assistance of Counsel

       “When challenging a conviction on grounds of ineffective assistance, the
defendant must demonstrate counsel’s inadequacy. To satisfy this burden, the defendant
must first show counsel’s performance was deficient, in that it fell below an objective
standard of reasonableness under prevailing professional norms. Second, the defendant
must show resulting prejudice, i.e., a reasonable probability that, but for counsel’s
deficient performance, the outcome of the proceeding would have been different. When
examining an ineffective assistance claim, a reviewing court defers to counsel’s
reasonable tactical decisions, and there is a presumption counsel acted within the wide
range of reasonable professional assistance. . . . On direct appeal, a conviction will be
reversed for ineffective assistance only if (1) the record affirmatively discloses counsel
had no rational tactical purpose for the challenged act or omission, (2) counsel was asked
for a reason and failed to provide one, or (3) there simply could be no satisfactory
explanation.” (People v. Mai (2013) 57 Cal.4th 986, 1009.)
       Contrary to defendant’s argument, section 987.5 does not place “an affirmative
duty upon the trial court to ask [defendant] if she [is] financially able to pay the
registration fee or a portion of it before imposing the fee.” Rather, the statute puts the
burden upon either the trial court or the public defender to inquire of the defendant and to
assess whether he or she is able to pay the fee. (§ 987.5, subd. (b).) It is clear that the
trial court did not make this inquiry of defendant. It is not clear, however, that defense
counsel did not make the inquiry or the assessment of defendant’s ability to pay the fee.
In fact, prior to appointment, the public defender informed the court defendant qualified
for appointment of counsel. This suggests there had been some conversation regarding
defendant’s finances. There is no requirement in the statute that the inquiry and


                                              11
assessment by the public defender be made on the record. We cannot know what
conversations defendant and counsel may have had off the record or what information
defense counsel had about defendant’s ability to pay. For example, defendant may have
indicated she was able to pay the fee because, at the time, she was receiving social
security benefits. The public defender’s own inquiry and assessment would have been a
rational basis for counsel to choose not to object to the imposition of the fees. On a silent
record, we will not presume that counsel’s failure to object rendered his assistance
ineffective. (See People v. Anderson (2001) 25 Cal.4th 543, 598.)

                                        DISPOSITION

       The judgment is affirmed.



                                                        HULL                   , J.



We concur:



      BLEASE                , Acting P. J.



      ROBIE                 , J.




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