People v. Earnest

• Decision Date: 15 December 1975
• Docket Number: Cr. 7891
• Citation: 53 Cal.App.3d 734,126 Cal.Rptr. 107
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Johnny Ray EARNEST, Defendant and Appellant.

Page 107

126 Cal.Rptr. 107

53 Cal.App.3d 734

The PEOPLE of the State of California, Plaintiff and Respondent, v. Johnny Ray EARNEST, Defendant and Appellant.

Cr. 7891.

Court of Appeal, Third District, California.

Dec. 15, 1975.

Evelle J. Younger, Atty. Gen. by Gary A. Binkerd, Deputy Atty. Gen., Sacramento, for plaintiff and respondent.

Richard Keith Corbin, Sacramento, for defendant and appellant.

PARAS, Associate Justice.

A jury convicted defendant of arson (Pen.Code, § 447a); ¹ sentence was suspended and he was placed on probation. He appeals.

Defendant solicited a 15-year-old boy, Ruben Munoz, to burn down his house so that he could collect the insurance proceeds. Munoz died in the fire, and defendant was originally indicted for murder as well as arson. The trial court dismissed the murder count (§ 995) and this court affirmed in People v. Earnest (1975) 46 Cal.App.3d 792, 120 Cal.Rptr. 485.

The fire occurred on Saturday, July 7, 1973, at approximately 9:30 p.m. There is no question that the fire was set by Ruben. On January 25, 1974, Sergeant Robert Jones of the Woodland Police Department questioned defendant's stepfather, Paul May, in the Commanche County Jail in Lawton, Oklahoma. May told Jones that approximately a week before the fire, while riding in a car occupied by defendant and Ruben, he overheard a conversation between them about the burning of defendant's house. Defendant told Ruben that he wanted to get some money to buy into a small business or to buy two homes, live in one, and rent the other. He asked Ruben how much money he wanted to set the house on fire. Ruben stated that they were friends and that he would take nothing for it, but defendant insisted that since he would thereby make money, Ruben should also make money. The fire was to occur approximately two to three months later, after defendant checked to make sure the fire insurance policy premium was paid. It was finally decided that Ruben would receive one hundred dollars for the burning.

Before the grand jury and at defendant's trial, May admitted making these statements to Sergeant Jones, but stated that except for riding in the car with Ruben and defendant, they were all lies he manufactured because he was angry with defendant. He was angry because he had just been convicted of second-degree murder in Oklahoma and defendant's brother had 'turned state's evidence' against him in the case; he felt that defendant 'could have cleared' him if he had come to Oklahoma and testified. He added that Sergeant Jones offered to give him some information to help get a reversal of his conviction, in return for his cooperation.

Linda Martinez, a former neighbor and friend of Ruben, testified to five conversations she had with Ruben prior to this death. Approximately three weeks prior to the fire, Ruben told her of his intention to set fire to defendant's residence. About a week later, Ruben and Linda engaged in a second conversation in which Ruben reiterated his intention to burn the residence, and also told her he would set the fire at 9:30 p.m. on a Saturday within the next two weeks, no one would be at home when he arrived; he would find a gasoline can on the back porch; the back door would be kicked in to suggest that the house had been broken into; all of the windows would be shut; and the gas would be left on inside the house. He told Linda he was to pour gasoline along the outside of the house and ignite it with a fuse constructed of a lit cigarette and a book of matches devised so as to provide him time to get away. Linda was also told that Ruben was to receive one hundred dollars for his efforts.

A third conversation occurred between Ruben and Linda approximately one week prior to the fire, during which Ruben stated that he would have some money by the following Monday for burning the house.

On the day of the fire, Ruben and Linda conversed on two occasions. In the first conversation she asked him if he still planned to set the fire. Receiving an affirmative response, she told him that if he did not change his mind she would have to tell either the police or his mother. He indicated that he would think about it. The second conversation was by telephone at approximately 8:30 p.m. Ruben related that having thought the matter over, he had changed his mind and wouldn't go through with it.

Steven Fernandez testified that he was Ruben's cousin and that Ruben had lived with him and his wife Lisa prior to the fire. Sometime during the evening of the fire, Ruben asked Steven in the presence of Lisa, if Steven could give him a ride later in the evening. Later, Steven asked Ruben if he wanted to go, and Ruben responded that he wanted to wait until it was a little darker. Still later, Ruben said that he was ready to leave, and Ruben and Steven departed. Ruben was not carrying anything.

After parking on Locust Street, within walking distance of defendant's Elm Street residence, Ruben declared, 'I am going to burn this guy's house down.' When Steven asked him why, Ruben responded, 'Johnny's going to pay me for it.' He also stated that Johnny wanted to collect on the fire insurance and that Ruben was to get ninety or one hundred dollars for his participation. Steven asked Ruben if he knew what he was doing, to which Ruben replied, 'Johnny's got it all worked out.' Ruben then outlined some of the details of the plan. He indicated that the back door was to be open with the appearance of having been forced, and a gasoline can and papers were to be available. He was to set the fire with a lit cigarette and a match book fuse. As Ruben life Steven he said, 'Be right back.'

Five to seven minutes later, from his parked car, Steven saw the glow of the flames from the burning building. Mrs. Adelia Cook, next door neighbor to defendant, heard an explosion and observed flames erupt from the residence. She immediately telephoned the fire department. The firefighters, in addition to finding the boy's charred body, discovered a partially filled gasoline can in the house. There was also evidence that the back door had been forcibly opened. The physical evidence at the scene suggested that the boy had spread an inflammable liquid in two areas of the house; the liquid was ignited by one of two probable flame sources, the floor furnace or a pilot light on the water heater.

Because defendant and his wife could not obtain credit, the house was nominally owned by Mrs. Florence McDermott, grandmother of defendant's wife; but all of the payments on an outstanding loan and encumbrance against the property were paid by defendant. A fire insurance policy was also taken out in Florence McDermott's name, but all premiums were paid by defendant. After the house burned, all insurance proceeds in excess of the amount of the outstanding loan were paid to Mrs. McDermott, who in turn paid them to defendant and his wife.

Defendant testified in his own behalf, and denied any involvement. He makes five contentions on appeal:

1. All the evidence connecting defendant with the crime was inadmissible hearsay.

2. There was no substantial evidence of his guilt.

3. The trial court erred in failing to instruct Sua sponte on the definition of conspiracy.

4. The trial court erred in denying defendant's motion for dismissal of the arson count on the ground that he was charged with the wrong crime.

5. Juror number 12 should have been dismissed for cause on the ground of actual bias.

I

Defendant's first and second contentions are properly treated together, as the basis for the argument that the evidence was not substantial is that it was entirely hearsay. The contentions are rejected.

Defendant cites no authority for his proposition that properly admissible hearsay is Per se insubstantial. None can be found. In People v. Petersen (1972) 23 Cal.App.3d 883, 100 Cal.Rptr. 590, the court upheld defendant's conviction, even though the only evidence associating him with possession of the dynamite used in the crime consisted of his prior admission thereof. Indeed, the principal reason for all the exceptions to the hearsay rule is that under certain circumstances hearsay statements are as reliable as statements made in court. This is certainly true of the four exceptions here in issue: May's prior inconsistent statements (Evid.Code, § 1235); defendant's admissions (Evid.Code, § 1220); Ruben's declarations offered to show his state of mind (Evid.Code, § 1250), and statements of a co-conspirator (Evid.Code, § 1223).

Defendant challenges the admissibility of all of Ruben's declarations on the ground that they were admissible only as declarations of a coconspirator, and the conspiracy was not sufficiently established by prior independent proof from some source other than the declarations of the conspirator himself. (People v. Morales (1968) 263 Cal.App.2d 368, 69 Cal.Rptr. 402; People v. Murphy (1943) 60 Cal.App.2d 762, 141 P.2d 755.)

The foundational requirement may be met without establishing a conspiracy beyond a reasonable doubt or even by a preponderance of the evidence; only prima facie evidence of the fact is required. (People v. Steccone (1950) 36 Cal.2d 234, 238, 223 P.2d 17.) The declaration of Paul May as to the conversation he overheard between defendant and Munoz is sufficient independent proof of the conspiracy. Defendant contends that since May stated he lied in making the statement, it was unworthy of belief, and thus insufficient to establish Prima facie evidence of the conspiracy. We disagree. The fact that a witness repudiates an earlier statement makes one or the other statement unworthy of belief, but the jury determines which one. Since May's statements adequately supplied the foundation, any of Ruben's statements made during and in furtherance of the conspiracy were admissible. (People v. Saling (1972) 7 Cal.3d 844, 852, 103 Cal.Rptr. 698, 500 P.2d 610.) Ruben's statement to Linda Martinez on the day of the fire, that he had decided not to go through with...