People v. Cecil

• Decision Date: 12 January 1982
• Docket Number: Cr. 22422
• Citation: 127 Cal.App.3d 769,179 Cal.Rptr. 736
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Gary Allen CECIL, Defendant and Appellant.

Page 736

179 Cal.Rptr. 736

127 Cal.App.3d 769

PEOPLE of the State of California, Plaintiff and Respondent, v. Gary Allen CECIL, Defendant and Appellant.

Cr. 22422.

Court of Appeal, First District, Division 1, California.

Jan. 12, 1982.

Ernest Krause, San Francisco, for defendant and appellant.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Criminal Division, William D. Stein, Asst. Atty. Gen., Herbert F. Wilkinson, Deputy Atty. Gen., San Francisco, for plaintiff and respondent.

SIMS, Associate Justice. ^*

Defendant has appealed from a judgment of conviction entered upon a jury verdict which found him guilty of attempted arson in violation of section 455 of the Penal Code. ¹ He was sentenced to eight months in state prison, to be served consecutively with a prior uncompleted sentence for rape, and given credit for one day spent in custody in county jail.

On November 6, 1979, the date of the alleged offense, those provisions were found in section 451a of the Penal Code, and the original information filed March 10, 1980, charged a violation of that section. By statutes of 1979, chapter 145, section 9, effective January 1, 1980, the provisions of section 451a were amended and renumbered as section 455. The information was amended on its face by striking 451a and inserting 455 by "M W Judge," apparently on September 15, 1980, when the defendant appeared before a judge bearing those initials. After a challenge under section 170.1 of the Code of Civil Procedure, further proceedings were held in other departments.

The defendant was punishable under the provisions of section 451a because they were substantially reenacted in section 455. (In re Dapper (1969) 71 Cal.2d 184, 189, 77 Cal.Rptr. 897, 454 P.2d 905, cert. den. 397 U.S. 905, 90 S.Ct. 906, 25 L.Ed.2d 90.) Since the defining language as quoted above is the same in both sections, and since there was no increase in the punishment provided (cf. Pen.Code, § 455 with former Pen.Code § 451a and Pen.Code, § 18 as amended by Stats.1976, ch. 1139, § 98, operative July 1, 1977), defendant has suffered no prejudice by the use of the number of the statute enacted after the commission of the crime.

Defendant contends that his conviction should be reversed because the evidence reflects that the acts committed by defendant and his co-defendant could not have resulted in arson and therefore it was impossible for him to commit attempted arson. As further ground, he urges that he was prejudiced and his conviction is tainted because he was under restraints in a holding cell at a place where he could have been observed by passing jurors. Finally, he seeks credit for 413 days he was held in custody on an unrelated charge, because the pendency of the instant case was a substantial reason for denial of bail on the former charge. We find no merit in these contentions. The judgment must be affirmed.

Approximately a year before the incident involved in this case, the defendant and the daughter of the owner of the automobile that was the subject of the attempted arson rented a house in Pleasant Hill. Various members of the young woman's family, including her father, Mr. Fry, lived in the premises, also. By October 1979, there was a breakup in the relationship of the daughter and defendant; and she kicked him out of the house. Thereafter, the defendant made several threatening phone calls late at night; and Mr. Fry, who received them, reported them to the police.

Just after midnight on November 6, defendant and his co-defendant, Merlin Roper, purchased four to six butane lighter refill cans. Roper made the purchase with money furnished by defendant.

Shortly before 3 a. m. the same morning, a neighbor directly across the street from where Fry resided was awakened by a hammering noise. He looked out and observed a man kneeling at the rear of the Fry car which was parked by the curb. He yelled at the man and he walked rapidly away. The police appeared soon. The neighbor could not remember whether or not he had called them. In any event, at least four officers and an arson investigator went to the scene. Roper was apprehended leaving the scene and defendant was discovered on the floor of a vehicle parked on the wrong side of the street in the same area. Examination of Fry's car revealed that a punctured butane can had been jammed into the gas tank and a partially burned piece of carpeting had been used as a wick, but had fallen to the ground. Burn smudges were noted on the car's fender directly below the gas tank's opening, and the gas tank cover; and a burned paper match and some ashes were found on the pavement below.

On the discovery of the foregoing, the two suspects were arrested. Carpeting of the same fabric as that used in the wick was found in the car where defendant was hiding. Roper had a service Army knife which had on it fibres similar to the carpeting. The puncture marks in the can appeared to have been made by a similar knife. Roper's fingerprints were on the butane can found in the gas tank opening.

Defendant offered evidence to show that there was some uncertainty in a prior attempt to have the store clerk identify the defendant from photographs. He also produced a witness, an admitted recaptured San Quentin escapee, who testified that in November 1979, Fry had requested him to beat up the defendant.

I

The arson investigator testified that based on the evidence observed at the scene, someone had tried to burn the car by introducing flammable and explosive-like material into the gas tank. He further testified that he had never seen an auto/arson fire via the gas tank. No apparent effort had been made to puncture the tank or build a fire underneath. Attempts to cause a fire with the punctured butane canister and wick would not have been effective. The gasoline in the tank would not be caused to burn or explode in that manner because of a lack of oxygen. Still, he believed it was a serious attempt to set the car on fire because he had seen many circumstances where people had stuck a wick down the fill spout of a gasoline tank thinking it would explode or burn; and he concluded that most people do not know that a gasoline tank cannot be caused to explode in that manner.

At the conclusion of the People's case, the defendant made a motion for a directed verdict of acquittal (Pen.Code, § 1118.1) on the ground that the defendant could not be held guilty of an attempt if the acts performed could not have resulted in the completed crime if carried to a conclusion. He renews that argument here in reliance on the doctrine of impossibility as enunciated in People v. Jaffe (1906) 185 N.Y. 497, 78 N.E. 169. There the court did state, "If all which an accused person intends to do would if done constitute no crime it cannot be a crime to attempt to do with the same purpose a part of the thing intended. (1 Bishop's Crim. Law (7th ed.), sec. 747.)" (185 N.Y. at p. 501, 78 N.E. at p. 170. Although followed, Jaffe has been questioned in its state of origin. (See People v. Jelke (1956) 1 N.Y.2d 321, 328-329, 135 N.E.2d 213, 218, 152 N.Y.S.2d 479, 485-486 (recognizing that an attempt may specifically be made a crime); and People v. Rollino (1962) 37 Misc.2d 14, 19, 22, 233 N.Y.S.2d 580, 585, 588 (following Jaffe but recognizing the necessity of modifying it to follow the progressive and more modern contrary view of California and the American Law Institute).)

Defendant recognizes that in this state Jaffe has been rejected. (See People v. Rojas (1961) 55 Cal.2d 252, 256-258, 10 Cal.Rptr. 465, 358 P.2d 921; Lupo v. Superior Court (1973) 34 Cal.App.3d 657, 662-663, 110 Cal.Rptr. 185; People v. Meyers (1963) 213 Cal.App.2d 518, 522, 28 Cal.Rptr. 753; and Faustina v. Superior Court (1959) 174 Cal.App.2d 830, 833-834, 345 P.2d 543. Cf. Young v. Superior Court (1967) 253 Cal.App.2d 848, 853-854, 61 Cal.Rptr. 355, criticized in Lupo v. Superior Court, supra, 34 Cal.App.3d at p. 662, 110 Cal.Rptr. 185, and overruled in People v. Wright (1980) 105 Cal.App.3d 329, 332, 164 Cal.Rptr. 207.) In People v. Rojas, supra, as in People v. Jaffe, supra, the question was whether the receipt of goods originally stolen but recovered and then offered to catch a reputed receiver of stolen property could constitute an attempt. The court reviewed Jaffe and numerous commentaries and concluded: "The situation here is materially like those considered in People v. Camodeca (1959), 52 Cal.2d 142, 146-147 (6-9), 338 P.2d 903 (attempted theft by false pretenses), and People v. Lavine (1931), 115 Cal.App. 289, 300-301 (11), 1 P.2d 496 (attempted extortion). Each of those cases is decided on the hypothesis that the defendants had the specific intent to commit the substantive offense and that under the circumstances as the defendants reasonably saw them they did the acts necessary to consummate the substantive offense; but because of circumstances unknown to defendants, essential elements of the substantive crime were lacking." (55 Cal.2d at p. 257, 10 Cal.Rptr. 465, 358 P.2d 921. See in addition to cases previously cited, Shadle v. City of Corona (1979) 96 Cal.App.3d 173, 180, 157 Cal.Rptr. 624; People v. Staples (1970) 6 Cal.App.3d 61, 65-66, 85 Cal.Rptr. 589; People v. Parker (1963) 217 Cal.App.2d 422, 427-428, 31 Cal.Rptr. 716; People v. Siu (1954) 126 Cal.App.2d 41, 43-44, 271 P.2d 575; People v. Van Buskirk (1952) 113 Cal.App.2d 789, 793, 249 P.2d 49; People v. Grant (1951) 105 Cal.App.2d 347, 355, 233 P.2d 660; People v. Parrish (1948) 87 Cal.App.2d 853, 856, 197 P.2d 804; People v. Fiegelman (1939) 33 Cal.App.2d 100, 106, 91 P.2d 156; People v. Hickman (1939) 31 Cal.App.2d 4, 10, 87 P.2d 80; People v. Lanzit (1925) 70 Cal.App. 498, 504-509, 233 P. 816, and In re Magidson (1917) 32 Cal.App. 566, 570, 163 P. 689.)

Defendant seeks to avoid the application of the principles applied in the foregoing cases because in this case in the "usual course of events" the crime of...