People v. Fabris

• Decision Date: 17 January 1995
• Docket Number: No. C009819,C009819
• Citation: 31 Cal.App.4th 685,37 Cal.Rptr.2d 667
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. James Eugene FABRIS, Defendant and Appellant.

Page 667

37 Cal.Rptr.2d 667

31 Cal.App.4th 685

The PEOPLE, Plaintiff and Respondent, v. James Eugene FABRIS, Defendant and Appellant.

No. C009819.

Court of Appeal, Third District, California.

Jan. 17, 1995.

Certified for Partial Publication

Rehearing Denied Feb. 10, 1995.

Review Denied April 20, 1995.

Bradley A. Bristow, under appointment by the Court of Appeal, Sacramento, Thomas W. Condit, Foresthill, for defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Robert R BLEASE, Acting Presiding Justice.

Anderson, Asst. Atty. Gen., Michael Weinberger, Joel Carey, Deputy Attys. Gen., for plaintiff and respondent.

A jury convicted the defendant of one count of arson of an inhabited structure (Pen.Code, § 451, subd. (b)) ¹ and one count of presentation of a fraudulent insurance claim (former Ins.Code, § 556, subd. (a)(1) [Stats.1988, ch. 1609, § 1, p. 5864].) The court suspended the imposition of sentence and placed the defendant on probation for five years on condition he pay restitution in the amount of $53,000 and serve a one-year jail term.

In the published portion of the opinion ² we reject defendant's argument, predicated upon In re Stonewall F. (1989) 208 Cal.App.3d 1054, 256 Cal.Rptr. 578, that the trial court prejudicially erred in instructing the jury that arson requires a general criminal intent.

In Stonewall F. we held that arson, as it is defined in section 451, requires an intent to set fire to or burn or cause to be burned a structure, forest land or specified property. That definition was given in this case as part of CALJIC No. 14.80. We adhere to Stonewall F. and conclude that the jury was properly instructed and that an instruction on general intent, also given the jury, is consistent with the instruction as given.

Accordingly, after modifying the order of probation to include conduct credits arising from defendant's jail term, we will affirm the judgment.

FACTS AND PROCEDURAL BACKGROUND

A six-man canal-cleaning crew employed by the Nevada Irrigation District (NID) was working on irrigation canals in the Rough and Ready section of Nevada County on February 28, 1989. The canal on which they were working ran past the defendant's home on Haveture Way. While working approximately 75 feet up the canal, the crew members saw nothing out of the ordinary about defendant's house. Most of the crew then circled around by truck toward a part of the ditch by the defendant's house, while another crew member walked the direct route down the ditch to meet them. The NID truck passed the defendant on its way; he was headed in the opposite direction, away from his home. They arrived at the defendant's house no more than 15 minutes after leaving their initial vantage point. Smoke was coming from the eaves and windows. The worker walking down the ditch began smelling smoke a couple of minutes before he reached the house.

The supervisor of the NID crew attempted to open the main door of the house. It was fully closed and--according to the supervisor--locked. A crew member testified it was shut tighter than if it had just been closed by the wind. One of the crew members first tried breaking down the door with an ax; when that failed, he kicked the door in. It fell off its hinges. The supervisor could not recall seeing a separate deadbolt mechanism, but the worker who had broken down the door testified he noticed either that day or the next that the deadbolt had been extended; one of his co-workers concurred in his observation. There was quite a bit of smoke inside, and flames were coming down the wall to the left between the door and a washer and dryer.

While they awaited the arrival of the volunteer fire department (whom they had summoned by radio), one of the workers clambered up to the second-story deck and pushed open a sliding glass door with his ax handle. Black smoke billowed out. By this time the defendant had returned (about five minutes before the fire department arrived and ten minutes after the crew had gotten there). Climbing up onto the deck, he warned the worker to stay away from the house because there was ammunition inside. After the fire had grown in intensity and the fire department had begun its suppression efforts, the defendant told one of the NID One of the firefighters found a jerrican under the stairs leading to the second floor (which were to the right of the front door). It was still about one-quarter full of gas. He removed it from the house, but returned it to its exact location before the fire marshal's investigation. Another firefighter entered the building and saw that the flames had burned through the ceiling of the entryway; he could see all the way through to the second-floor ceiling, which was also aflame. Upstairs, he had particular difficulty extinguishing flames in the kitchen near the sliding glass door (which was directly above the entranceway). In his experience, this was consistent with a flammable liquid being involved in the fire. He stumbled across the bodies of two animals later determined to be goats. After the fire was suppressed, the fire chief came over to the defendant and his neighbor, who owned the goats, to inform them of the grisly discovery.

workers that the fire might have been started by his neighbor's goats, who could have gotten into the house and chewed through an electrical wire or knocked over a jerrican, the contents of which would then have been ignited by the washer or dryer--which he had left operating while he ran his errands. No one had heard anything at this point about goats being found in the house, but there were two young goats bleating loudly at the fence.

The defendant repeated his theory involving the goats to a number of people. When the fire chief told him about finding the goats, the defendant said the goats would push their way through the door, and the chief and the defendant discussed whether the goats could have knocked over the gas can and whether the dryer could have ignited the fumes. The night of the fire, the defendant called the intended purchasers of his house to tell them to take it out of escrow because it had burned down. He asked if they remembered how the goats would push open the door and get into the house, but the buyers had no such recollection. He told his insurance agent the next day about the fire and his speculation that the goats--which knew how to push open his door--had knocked over a can of gas he had in the house, which was then ignited by the dryer he had left running while he was out of the house taking care of some errands. He also repeated this for the insurance adjuster (whom he told the goats had previously gotten into the house the week before), the claims representative (whom he told he must have left the door ajar), and the state fire marshall's investigator (whom he told he had trouble with the door closing, so he left it ajar when he went to run his errands).

A number of witnesses testified to the condition of the front door before the fire. The neighbor who had owned the goats and known defendant for 10 years said the deadbolt was broken and the door would stick tight if closed all the way, so it was generally left unlocked. ³ The irate intended buyers of the house (who had become incensed when defendant told them he would not use the insurance money to rebuild the house) testified they never had any difficulty in closing the door, but it would stick when one tried to open it. The realtor who listed the defendant's house said the door was never locked. Another longtime friend of the defendant testified that whenever he came to visit the defendant, he would just push open the door. He had never found it locked.

There was additional circumstantial evidence of the defendant's guilt. According to the intended buyer of the house, the defendant had told him on a number of occasions before February 1989 that he wished he had burned the house down during the 49er fire (a large conflagration in September 1988 which had damaged only defendant's landscaping while destroying his neighbor's home) because no one would have questioned the cause; the defendant would always hasten to tell the buyer he was too honest to do any such thing. The defendant also told the intended buyer he was unhappy with the price because he needed to get more cash out of the sale. The insurance agent testified the defendant had brought up the 49er fire with him as well; the defendant told him it was a shame the fire had not occurred back The defendant testified at trial. He reiterated the theory about the goats, and maintained he had not firmly closed the door because of the difficulty in reopening it. He asserted he had adequate financial resources at the time of the fire. He admitted he had underrepresented his assets in a spousal support hearing shortly before the fire at which he was seeking increased support from his ex-wife. At the hearing he claimed he was destitute. He also admitted he had given an extremely low value ($200) for his household goods in a bankruptcy proceeding, saying he did so on advice of counsel.

then because it would have saved the agent time and effort. The county tax [31 Cal.App.4th 691] assessor testified the defendant was two years behind in paying his property taxes.

Two experts testified for the prosecution, one of whom was an investigator for the state fire marshall and one of whom was a private investigator retained by the insurer. They had made their investigation in parallel a week after the blaze. Both believed there were two sources of incendiary fire--one under the stairs, and one in the kitchen--although neither was able to say which was ignited first, or if one ignited the other. The fire in the kitchen burned down through the floor. Neither expert found any indication the fire could have been started by the washer or dryer. It is sufficient to note the experts based their opinion on their interpretation of physical...