People v. Kurtenbach

• Decision Date: 12 April 2012
• Docket Number: No. D058933.,D058933.
• Citation: 204 Cal.App.4th 1264,12 Cal. Daily Op. Serv. 4019,139 Cal.Rptr.3d 637
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. James KURTENBACH, Defendant and Appellant.

12 Cal. Daily Op. Serv. 4019

139 Cal.Rptr.3d 637

204 Cal.App.4th 1264

The PEOPLE, Plaintiff and Respondent,

v.James KURTENBACH, Defendant and Appellant.

No. D058933.

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

April 12, 2012.

Patrick Morgan Ford for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.

IRION, J.

A jury convicted James Kurtenbach of conspiracy to commit arson (Pen.Code, § 182, subd. (a)(1)); ¹ arson causing great bodily injury ( § 451, subd. (a)); concealing or knowingly failing to disclose an event affecting an insurance benefit ( § 550, subd. (b)(3)); and vandalism ( § 594, subds. (a), (b)(1)). The jury also made true findings that in committing the arson Kurtenbach used a device designed to accelerate the fire ( § 451.1, subd. (a)(5)) and acted for pecuniary gain (§ 456, subd. (b)). The trial court imposed a prison sentence of 15 years eight months.

Kurtenbach contends (1) the trial court prejudicially erred by failing to instruct the jury regarding aiding and abetting with respect to the count for arson causing great bodily injury; (2) insufficient evidence supports the conviction for arson causing great bodily injury because the only person injured in the fire was an accomplice to the arson; (3) pouring gasoline in a structure prior to starting a fire does not support a finding that the arson was “caused by use of a device designed to accelerate the fire” for the purposes of the sentencing enhancement set forth in section 451.1, subdivision (a)(5); (4) the trial court erred in instructing the jury on the vandalism count; (5) the conviction for concealing or knowingly failing to disclose an event affecting an insurance benefit (§ 550, subd. (b) (3)) violated his federal constitutional privilege against self-incrimination and his right to due process; (6) the sentences imposed for the vandalism conviction and the conviction for concealing or knowingly failing to disclose an event affecting an insurance benefit should have been stayed under section 654 because they arose from the same course of conduct as the arson conviction; and (7) in imposing the upper term for the arson conviction, the trial court improperly relied on aggravating factors that were elements of the crime.

We conclude that the trial court should have stayed execution of the eight-month sentence for the vandalism conviction pursuant to section 654, but that Kurtenbach's remaining arguments lack merit. We therefore direct the trial court to modify the judgment to stay execution of the sentence on the vandalism conviction. As modified, the judgment is affirmed.

IFACTUAL AND PROCEDURAL BACKGROUND

A house that Kurtenbach owned as a rental property was destroyed by fire in the early morning of October 31, 2008. The fire began with a powerful explosion and quickly proceeded to engulf the entire house in flames and destroy it. A neighboring house sustained over $100,000 in damage. Joseph Nesheiwat, who was in the house to ignite the fire, died in the explosion and fire.

Nesheiwat was an employee at a gas station that Kurtenbach owned. In their investigation of the incident, the police obtained information leading them to suspect that Kurtenbach had solicited Nesheiwat to burn down the house. According to arson experts, the fire was fueled by gasoline.

Kurtenbach was tried before a jury on charges of murder (§ 187, subd. (a)); conspiracy to commit arson (§ 182, subd. (a)(1)); arson causing great bodily injury (§ 451, subd. (a)); presenting a false insurance claim (§ 550, subd. (a)(1)); concealing or knowingly failing to disclose an event affecting an insurance claim (§ 550, subd. (b)(3)); and vandalism (§ 594, subds. (a), (b)(1)).

Among the evidence at trial, Kurtenbach's son, Justin, testified that Kurtenbach had asked him and Nesheiwat to burn down the house, but that Justin had declined to participate. Justin testified that he heard Kurtenbach and Nesheiwat talking about using gasoline to fuel the fire. Nesheiwat's brother, John, testified that at the request of Kurtenbach he drove his brother to the house early in the morning of October 31, 2008, so that his brother could ignite the fire, and that Kurtenbach had promised to compensate him and his brother for their participation. According to John, Kurtenbach told him that he and Nesheiwat had poured gasoline in the house. Witnesses saw Kurtenbach fill up jugs with gasoline and put them in his truck one or two days before the fire.

Among the evidence that Kurtenbach presented in his defense was the testimony of a witness who stated that Nesheiwat had said he was going to burn down the house, without Kurtenbach's knowledge, to help Kurtenbach financially.

With respect to the counts relating to insurance fraud (§ 550, subds. (a)(1), (b)(3)), the evidence was that Kurtenbach's homeowner's insurance agent had filed a claim for Kurtenbach after she learned of the fire from a source other than Kurtenbach, and that Kurtenbach thereafter spoke with an insurance adjuster about facts relating to the claim. Kurtenbach's last communication with the insurance adjuster was in December 2008, when Kurtenbach informed the adjuster that he was represented by legal counsel.

In a motion made pursuant to section 1118.1 after the close of the People's evidence, the trial court entered a judgment of acquittal on the charge of presenting a false insurance claim (§ 550, subd. (a)(1)) on the ground of insufficient evidence, as there was no evidence that Kurtenbach filed a claim or directed someone to do so on his behalf. The other insurance fraud claim—based on the allegation that Kurtenbach concealed or knowingly failed to disclose an event affecting an insurance benefit (§ 550, subd. (b)(3))—was presented to the jury.

The jury was unable to reach a verdict on the murder count, but it convicted Kurtenbach on the remaining counts and made true findings that in committing the arson, Kurtenbach used a device designed to accelerate the fire (§ 451.1, subd. (a)(5)) and acted for pecuniary gain (§ 456, subd. (b)). The trial court declared a mistrial with respect to the murder count, and that count was eventually dismissed with prejudice. The trial court sentenced Kurtenbach to prison for a term of 15 years eight months.

IIDISCUSSION

A. The Trial Court Did Not Prejudicially Err by Omitting a Jury Instruction on Aiding and Abetting for the Arson Count

We first consider Kurtenbach's contention that the trial court prejudicially erred by failing to instruct the jury regarding aiding and abetting with respect to the count for arson causing great bodily injury.

Kurtenbach was charged in count 3 with committing arson causing great bodily injury. According to the applicable statute, “a person is guilty of arson when he or she willfully and maliciously sets fire to or burns or causes to be burned or who aids, counsels, or procures the burning of, any structure.” (§ 451.)

According to the prosecutor's closing argument, Kurtenbach was guilty of arson on the theory that he “counseled, helped or caused” the burning of the house. The jury was accordingly instructed that to prove arson causing great bodily injury, the People must prove, in addition to the great bodily injury, that “[t]he defendant set fire to or burned or counseled, helped or caused the burning of a structure” and that “[h]e acted willfully and malicious ly....” The trial court instructed the jury on the principles of aiding and abetting, but it stated that the instruction applied only to the vandalism count.

Relying on People v. Sarkis (1990) 222 Cal.App.3d 23, 272 Cal.Rptr. 34 ( Sarkis ), Kurtenbach contends that because the jury was instructed that he could be found guilty of arson under the theory that he “counseled” or “helped” the burning of a structure, the trial court was required to instruct, sua sponte, on the principles of aiding and abetting with respect to the arson count.

We note initially that Sarkis does not, as Kurtenbach contends, stand for the proposition that when a jury is instructed that a defendant may be found guilty of arson on the theory that he “counseled” or “helped” the burning of a structure, the trial court must sua sponte instruct the jury on the principles of aiding and abetting. On the contrary, Sarkis expressly declined to reach that issue. In Sarkis, the jury was instructed on the definition of arson, to include someone who “ ‘aids, counsels or procures the burning of any structure.’ ” ( Sarkis, supra, 222 Cal.App.3d at p. 27, 272 Cal.Rptr. 34, italics omitted.) But it was also instructed that the defendant could be found guilty if he “ ‘aided and abetted the commission of the offense.’ ” ( Ibid., italics omitted.) Sarkis held that the trial court erred by introducing the concept of aiding and abetting liability but not providing a definition of aiding and abetting, including the concepts of knowledge and intent. ( Id. at p. 28, 272 Cal.Rptr. 34.) Sarkis expressly stated, “[w]e are not presented with, and do not pass upon, the question of the intent required of one who aids, counsels or procures the burning of a structure as defined in [the arson statute].” ( Id. at p. 28, fn. 2, 272 Cal.Rptr. 34.) Sarkis explained that “[w]hether such intent is identical to that required of one who ‘aids and abets' the commission of other types of crimes is immaterial here in view of the fact the jury was instructed” that the defendant could be found guilty under a theory of aiding and abetting, and that fact alone “ warrants our conclusion the omitted instruction [defining aiding and abetting] should have been given.” ( Ibid.) ²

In this case, we need not, and do not, reach the issue that Sarkis declined to reach, namely whether the trial court must instruct on the principles of aiding and abetting when...