People v. Cole, B202387 (Cal. App. 8/7/2008), B202387
| Decision Date | 07 August 2008 |
| Docket Number | B202387 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. FREDDIE LEE COLE, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
Appeal from a judgment of the Superior Court of Los Angeles County, No. NA 061968, James B. Pierce, Judge. Affirmed with directions.
Mark Alan Hart, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan D. Martynec, and Lance E. Winters, Deputy Attorneys General, for Plaintiff and Respondent.
Freddie Lee Cole appeals from the judgment entered upon his convictions by jury of first degree murder (Pen. Code, § 187, subd. (a), count 1)1 and arson of an inhabited structure (§ 451, subd. (b), count 2). The trial court found that he had suffered two prior felony convictions within the meaning of sections 667, subdivision (a)(1) and subdivisions (b) through (i) and 1170.12, subdivisions (a) through (d). The trial court sentenced appellant to a state prison term of 25 years to life on count 1, tripled to 75 years to life as a third strike, plus two 5-year terms for the prior serious felony enhancements. No sentence was imposed on count 2. Appellant contends that (1) the trial court committed prejudicial error by admitting prior crimes evidence pursuant to Evidence Code section 1101, subdivision (b), (2) the abstract of judgment should be corrected to strike the concurrent, eight-year term on count 2, and (3) the judgment should be modified to credit appellant with 1,169 days of presentence custody credit.
We modify the custody credits, affirm and remand with directions.
Appellant's apartment
In July 2004, appellant resided in a downstairs unit, in an apartment building managed by Wendy Gutierrez (Gutierrez), at 323 West 9th Street, in the City of Long Beach.2 Fred Holland (Holland) and Georgia Goodman (Goodman) were his roommates. Appellant and Goodman were always arguing. Holland had health problems that limited his ability to move about and care for himself. For two or three months before July 2004, appellant had failed to pay his share of the rent, and Gutierrez had warned him that he would have to move if he did not do so.
Appellant's threats
Before the fire, appellant made numerous threats to burn down the building. In one conversation with Gutierrez, he said, ` ' Two to three weeks before the fire, after having been drinking, he made a similar comment to Kim Galloway (Galloway), who lived down the street and was Holland's caregiver. In that same time period, appellant made a couple of threats to burn down the building to Ricky Green (Green), who lived upstairs in the building, saying that he was angry at his roommates for asking him to move. Barbara Cox (Cox), lived in the apartment above appellant with her boyfriend, Edward Young (Young) and two children. A week before the fire, appellant was upset and told Young he was moving. The day before the fire, Cox heard appellant arguing with Goodman, and say, ` ' Betty Deaton (Deaton) lived in an apartment in the back of the building with her family. A few days before the fire, appellant had been drinking and was angry because he believed Goodman, who it was rumored was his girlfriend, had been having sex with Holland. Appellant told Deaton a few times that he was going to burn the `"f-ing" house down."'
The fire
On the morning of July 1, 2004, appellant, Young and Darryl Harrison (Harrison) were drinking alcoholic beverages, working on a car in the rear of the building. They started the car by pouring gasoline into the carburetor from a red, plastic gasoline container.
At approximately 7:30 or 8:00 p.m., Young came home with beer, saw appellant on the porch and said he would come down and drink beer with him. Young went upstairs, and, approximately 10 minutes later, the building was on fire.
Scott Holsey (Holsey), who lived across the street from appellant, was friends with Sterling Young (Sterling), who lived in the building. That evening, Sterling went upstairs to change clothes, and Holsey waited for him outside, sitting on a couch appellant had discarded in preparation for moving. Holsey heard appellant arguing with a woman sitting on the front porch. Seconds later, Holsey heard splashing, and turned to see appellant inside the porch with a red gas can, splashing a liquid from the can onto the walls by the front door. Holsey turned away, and right afterwards there was a fire. He ran into the building to warn Sterling and his family, who, in turn, warned neighbors. They all fled the building.
After the fire, several people saw appellant in the area of the building. Galloway saw him on the edge of her porch, looking at the fire before firefighters arrived. He left a "little abrupt[ly]." Darryl Harris3 and Patricia Needom (Needom) were standing at the corner of 9th and Cedar when Needom became aware of the fire. Appellant came down the street, walking rapidly, breathing heavily and wet or sweating, and Harris told him his house was on fire. Appellant said it was not his home, and he "didn't give a fuck," and kept walking away from the building. Deaton also saw appellant after the fire sitting on the ground watching it.
The investigation
Long Beach Fire Captain Ray Toohey and his crew responded to the fire. It was very large and well advanced when they arrived. Captain Toohey saw a red, plastic gasoline can on the walkway between the sidewalk and the front porch. There was also a lighter and a pack of cigarettes on the sidewalk in front of a chair in front of the property. Holsey and Gutierrez identified the gasoline can as the same type they had seen appellant holding before the fire.
After the fire was extinguished, Firefighter Charly Baker entered the building and found Holland lying face down on the bathroom floor, showing no signs of life. Firefighters removed him from the building and immediately administered CPR, as Holland was not breathing and had no pulse. He had burns on his head, neck and arms. He was intubated, and a pulse returned. He subsequently died from smoke inhalation, lack of oxygen and thermal burns to the interior of his chest.
Forensic tests of burnt debris taken from the front door area of appellant's apartment revealed the presence of gasoline, as did a liquid sample taken from the red gasoline can. A pair of boots taken from appellant at the men's jail, was also shown to have gasoline present. No fingerprints were found on the can or the lighter found at the fire scene.
Fire Captain Patrick Wills, a fire investigator, opined that the fire started in front of the building near the porch. Gasoline was used as an accelerant, and the fire was caused by splashing it into the porch area and setting it on fire with a match or open flame. He ruled out an electrical or accidental source of the fire.
Prior crimes evidence
1989 fire
On March 13, 1989, Long Beach Police Detective Wayne Watson contacted appellant who was a suspect in an "unwelcome subject" investigation in apartment No. 7, at 1377 Warren Street, City of Long Beach. When the detective arrived, appellant was sitting in front of that apartment. Detective Watson returned four hours later and found the door to that apartment and surrounding wall and porch area had been set on fire, and was charred and smoking. There was a partially melted, plastic Clorox bottle in front of the door that smelled like gasoline. Police found appellant four blocks away.
Douglas McClure (McClure), a senior arson investigator at the time of the fire, thought it was gasoline driven and consistent with someone throwing gasoline on the apartment door and setting it on fire. He spoke with appellant in a recorded interview. Appellant said that he had had a fight with his girlfriend in the park, and she had knocked out one of his teeth. Later, he returned to his apartment and was not allowed in. When he asked for his clothes, his girlfriend said that she had thrown them away. Appellant went to a gas station, found a Clorox bottle in a trash bin, purchased 50 cents worth of gasoline, poured it on the front door and lit it with a match, causing the fire. He said he was not trying to hurt anyone and had been drinking.
1996 fire
On February 14, 1996, there was a fire at the bottom of the door to room No. 38 at the Rocky Inn Motel, located at 1045 East Pacific Coast Highway, in Long Beach. Judy Hill (Hill) lived in that room and was there when the fire began. She smelled something like fingernail polish. Based upon witness statements, Captain Clifford Munson, commanding officer of the Long Beach arson unit at that time, opined that the fire was caused by piling clothing by the door, pouring fingernail polish or polish remover on them and igniting them with an open flame device. The clothing included a pair of white coveralls belonging to appellant.
Appellant spoke with Captain Munson while in custody. After waiving his rights, appellant stated that he was allowed to live in room No. 12 at the motel in exchange for doing work around the motel, but was moving out that morning. He was putting furniture and other things in the dumpster. After initially denying that he was arguing with Hill, he admitted that they argued all of the time and that the coveralls in the fire were his. Appellant said he had been drinking the morning of the fire. When asked if he set the fire, he said, `"Not that I remember."' When asked if he had a habit of doing things when he was drinking, he said that he did not remember.
Before trial, the...
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