Mason v. Superior Court of Placer Cnty.

• Decision Date: 30 November 2015
• Docket Number: C075149
• Citation: 242 Cal.App.4th 773,195 Cal.Rptr.3d 527
• Parties: Byron Craig MASON, Petitioner, v. The SUPERIOR COURT of Placer County, Respondent; The People, Real Party in Interest.
• Court: California Court of Appeals Court of Appeals

242 Cal.App.4th 773

195 Cal.Rptr.3d 527

Byron Craig MASON, Petitioner,

v. The SUPERIOR COURT of Placer County, Respondent;The People, Real Party in Interest.

C075149

Court of Appeal, Third District, California.

Filed November 30, 2015

Leupp & Woodall, Thomas A. Leupp and Brad J. Poore for Petitioner.

No appearance for Respondent.

Kamala D. Harris, Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Daniel B. Bernstein, Supervising Deputy Attorney General, and Jennifer M. Poe, Deputy Attorney General, for Real Party in Interest.

Blease, Acting P.J.

The petitioner, Byron Craig Mason, seeks review of the denial of a Penal Code section 995¹ motion to set aside a grand jury indictment for the arson of forest land that caused great bodily injury. (§§ 451, 451, subd. (a).) The indictment arises out of a forest and grass fire ignited by sparks emitted from the explosion of a large firework. The firework, an illegal, aerial device, designed to shoot flares into the air, was thrown by petitioner into a large swimming hole, surrounded by cliffs, forest, and grassland, on a hot, July day in 2012. It floated briefly, then exploded, shooting sparks into the air, one of which landed in dry brush 27 feet above the hole, causing a fire that burned 2,650 acres of grassland and forest. Mason was initially charged by complaint with arson with enhanced penalties (§§ 451, subd. (a), 451, subd. (b)) and the lesser offense of unlawfully causing a fire (§ 452). The arson charges were dismissed at a preliminary hearing and Mason was held to answer on the lesser offense.

The People did not file an information in the Superior Court. They convened a grand jury and obtained an indictment charging Mason with arson that caused great bodily injury and the burning of an inhabited structure, relying on People v. Atkins (2001) 25 Cal.4th 76, 104 Cal.Rptr.2d 738, 18 P.3d 660 (Atkins ) and In re V.V. (2011) 51 Cal.4th 1020, 125 Cal.Rptr.3d 421, 252 P.3d 979. The grand jury was instructed with a modified version of the standard CALCRIM instructions for an arson that causes great bodily injury and for an arson that causes an inhabited structure to burn. (§§ 451, subd. (a), 451, subd. (b); CALCRIM Nos. 1501, 1515, 240.)²

The instruction follows the language of CALCRIM No. 1501. The modification, which is not contained in the standard instruction, was apparently derived from Atkins and In re V.V. It provides that: "It is not required that [Mason] intended to break the law or intended to cause fire to forest land" and that "[a]n act cause[s] burning of forest land ... if the burning was the direct, natural, and probable consequence of the act...."³ It is this modification which Mason challenges.

The grand jury returned an indictment charging the defendant with arson of an inhabited structure and arson that causes great bodily injury. The trial court denied Mason's motion to set aside the indictment (§ 995 ), and Mason sought review of the denial in this court. We granted review.

On review Mason challenges the modification to the standard instruction, and the grand jury evidence and procedures, claiming in part that the jury should have been instructed on the lesser offense of unlawful burning, and that an indictment does not lie where a complaint is not dismissed and the defendant is held to answer on another charge. He argues that arson requires an intent to burn a property, that when he set off the firework he was on an outing with his wife and children to a swimming hole, into which the firework was thrown and did not intend to cause a forest and grassland fire. He claims that his conduct amounted at most to the lesser offense of unlawfully causing a fire. (§ 452.)

The case turns on the culpable state for arson. The Supreme Court in Atkins and In re V.V. rejected intent to cause a structure to be burned as the meaning of willfully "caus[ing] to be burned" a structure, the language of the third proscribed act of section 451. It construed "caus[ing] to be burned" as "the act that causes" a structure to burn (Atkins, supra, 25 Cal.4th at p. 86, 104 Cal.Rptr.2d 738, 18 P.3d 660 ; see also In re V.V., supra, 51 Cal.4th at p. 1027, 125 Cal.Rptr.3d 421, 252 P.3d 979 ), and held that the mens rea for that form of arson is the "general intent to willfully commit the act of setting on fire under such circumstances that the direct, natural, and highly probable consequences would be the burning of the relevant structure or property." (Atkins, supra, 25 Cal.4th at p. 89, 104 Cal.Rptr.2d 738, 18 P.3d 660 ; In re V.V., supra, 51 Cal.4th at p. 1029, 125 Cal.Rptr.3d 421, 252 P.3d 979.)

Because we follow the Supreme Court's interpretation of "causes to be burned," we shall affirm the indictment on the ground the grand jury proceedings show there was probable cause to believe that the natural and highly probable consequence of the act of igniting and throwing a large, unlawful, aerial firework into the swimming hole in the middle of a forest and grassland in extreme fire conditions would be the burning of the forest land.⁴

FACTS

On July 11, 2012, Mason went with his wife, his two children, his dog, and friends to the Shirttail Canyon swimming hole in Foresthill, California, for a party. The size of the swimming hole is approximately 50 feet by 72 feet and was surrounded by steep, granite, canyon walls and grassland and forest. Other people were present. It was a hot and dry day and people were swimming. It was fire season, and numerous fires had started in the surrounding area.

About 2:00 p.m. a member of Mason's party asked the swimmers to get out of the swimming hole. Mason then lit and threw an aerial firework into the middle of the swimming hole where it initially floated, then exploded, throwing flares in all directions and up in the air. A spark landed on a dry, grassy edge of the cliff about 27 feet above the surface of the pool and ignited the brush. The fire spread quickly and soon expanded beyond control. Mason unsuccessfully attempted to put out the fire, then left the area with his family and dog, saying "I'm sorry, I'm sorry." By the time a fire suppression crew arrived the fire had burned some 500 acres. A firefighter suffered a fracture of his right forearm when a large boulder hit his arm. In all, 2,650 acres of grassland and forest were destroyed.

A search of Mason's car revealed a box of various fireworks including aerial shells. The aerial shell was identified by Bryant Hart, an explosive enforcement officer with the federal Bureau of Alcohol, Tobacco, Firearms, and Explosives, as the kind used in the incident and as illegal for use in California. An aerial shell is made of explosive material that shoots flares into the air that spray off stars that burn when falling through the air. The officer testified that a person who purchased the fireworks would know the nature of the fireworks purchased. He also testified that aerial shells had set fires before. Mason admitted that he had purchased and used the fireworks before.

Mason tearfully confessed to law enforcement and expressed great remorse for the consequences of his act.

DISCUSSION

I

Mason Was Properly Indicted on the Arson Charge Pursuant to In re V.V.

A. The Prosecution May Proceed by an Indictment Charging Arson Notwithstanding That Mason Was Held to Answer for Unlawful Burning

Mason argues that the prosecutor cannot proceed by indictment on the arson charges because he was held to answer on the unlawful burning charge, and the magistrate dismissed the arson counts but never dismissed the entire action. He argues that because he had been held to answer on the complaint, albeit not on the arson charges, the prosecution could not thereafter file an indictment. He argues that in such case the prosecution may either include the dismissed charges in an information pursuant to section 739, or make a motion in superior court to compel the magistrate to reinstate the dismissed charges pursuant to section 871.5, but these remedies are exclusive, and the prosecution may not proceed by way of indictment as it did in this case.⁵ We disagree.

It has long been held that the prosecution may elect to start a prosecution over either by a new complaint or by indictment following a magistrate's order of dismissal. (People v. Uhlemann (1973) 9 Cal.3d 662, 664, 108 Cal.Rptr. 657, 511 P.2d 609.) In this case the arson charges were dismissed when the magistrate failed to hold Mason to answer. Section 871 provides that a magistrate shall order a complaint dismissed when it appears that no public offense has been committed. A failure to hold the defendant to answer is the equivalent of a section 871 dismissal of the arson charges in the complaint, even if there is no express order. ( People v. Su perior Court (Martinez ) (1993) 19 Cal.App.4th 738, 744, 23 Cal.Rptr.2d 733 (Martinez ).) Thus, the magistrate's failure to hold Mason on the arson charges was the equivalent of a dismissal of those charges, and the prosecution could elect to proceed by way of indictment on those charges following the dismissal.

Mason argues that a dismissal under section 871 did not occur in this case, relying on Martinez, supra, 19 Cal.App.4th 738, 23 Cal.Rptr.2d 733. Martinez does not support Mason's point. Martinez concerned whether a magistrate's order of dismissal under section 871 should be considered an order terminating the action within the meaning of section 1387, which provides a bar to the prosecution of an offense that has already been terminated twice. (Martinez, at pp. 743–744, 23 Cal.Rptr.2d 733.) Martinez recognized that a section 871 order of dismissal may or may not be an order terminating the action within the meaning of section 1387, depending on the circumstances. (Martinez, at p. 744, 23 Cal.Rptr.2d 733.) Martinez held that a magistrate's dismissal pursuant to section 871 does not terminate the action for purposes of section 1387 when a defendant is held to answer on a another transactionally related count and the...