People v. Morales

Decision Date22 January 2019
Docket NumberC084560
CourtCalifornia Court of Appeals Court of Appeals
PartiesTHE PEOPLE, Plaintiff and Respondent, v. ERNEST LANE MORALES, Defendant and Appellant.

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

OPINION ON REMAND

A jury found defendant Ernest Lane Morales guilty of arson of an inhabited structure and acquitted him of five counts of attempted murder. The court found defendant had been convicted of two prior strike offenses and a prior serious felony and had also served two prior prison terms. In his original appeal, defendant contended the court erred by denying his motion for a mistrial, admitting evidence of his drug use, and incorrectly instructing the jury regarding the intent required for arson. He further argued the prosecutor committed misconduct by eliciting inadmissible evidence and that cumulative error resulted. On September 5, 2018, we affirmed the judgment.

Later that month, the Governor signed Senate Bill No. 1393 to take effect on January 1, 2019, (2017-2018 Reg. Sess., Stats. 2018, ch. 1013), to enable the trial court to exercise its discretion to consider striking a prior serious felony conviction sentence enhancement. In December 2018, our Supreme Court granted defendant's petition for review and remanded his case for us to reconsider it in light of the change in the law. We conclude Senate Bill No. 1393 retroactively applies to defendant and that his case must be remanded for the trial court to exercise its discretion to strike his prior serious felony conviction enhancement.

FACTUAL AND PROCEDURAL BACKGROUND
IThe Fire

Defendant lived with his elderly mother in a three-bedroom mobile home. Also living in the mobile home was defendant's niece, Sherry Solorzano,1 and her son Sturlin Sims. Defendant's mother was the only person listed on the lease for the mobile home. In October 2015, defendant's mother moved into a care facility and Sherry's other son, Zachary Solorzano, moved into the home with his two children. Before the move, defendant threatened multiple times to burn down the mobile home if Sherry or her sons tried to make him leave or take the home away from him.

After defendant's mother moved, the relationship between defendant and Sherry deteriorated. Sherry and her sons were upset with defendant for not contributing to the household by paying rent or buying food. Defendant would usually get a disability check at the beginning of every month and leave the home for seven to 10 days before returning with no money for the household. Upon his return, he and Sherry would fight about hisfailure to contribute to the household finances. As a result, Sherry asked defendant to move out of the mobile home on multiple occasions.

On February 21, 2016, Sherry, Zachary, and Sims were in the kitchen of the mobile home with Zachary's children eating breakfast. Sims saw defendant pack his belongings in his bedroom, which he also did the day before. Defendant carried his belongings to the backyard by putting them onto his wheelchair or into his wire laundry basket to transport them outside. He also packed items in suitcases he moved outside. Defendant did not appear to have any problem leaving the mobile home through the door leading to the back porch, which Sims saw him use over 10 times that morning. All during breakfast and throughout the day, Zachary and Sims used the sink in the kitchen without a problem.

In the afternoon, Zachary was brushing his teeth at the kitchen sink. He and Sims saw defendant leave the mobile home through the back door and approximately 15 to 30 minutes later Sims asked Zachary, "What is that?" referring to something outside of the mobile home. Zachary looked out the back window and saw an orange glow he immediately recognized as fire.2 He went to the back door and tried to open it, but was only able to open it six to eight inches. It looked as though bags of clothing obstructed the door from opening further. Also while trying to open the door, flames came into the mobile home, which caused Zachary to close the door and flee with the rest of his family through the front door.

Once outside, Zachary and Sims ran to the back of the mobile home and attempted to use the garden hose to contain the fire until the fire department could arrive. Although Zachary turned the nozzle, water did not come out of the garden hose. Sims saw that the main water line to the house had been turned off, so he turned it on to allow the water to flow. Because it takes a few minutes for the water to run after being shut off through the main line, Zachary decided to salvage property from inside the mobile home instead of trying to contain the fire. He went inside the home through the front door, but became disoriented within seconds from the smoke and fell. He crawled out of the mobile home and did not attempt to go back inside.

While outside, Sims saw the suitcases defendant removed from the house near the garden hose; the suitcases were not damaged. He also saw defendant behind the backyard fence with his wheelchair. Instead of accompanying Zachary to salvage property from inside the mobile home, Sims ran after defendant. When he caught up to him, defendant turned around with a cigarette in his hand, then put his hands up and said, "I didn't do it." Sims slapped defendant in the face causing him to fall to the ground. He then went back to the mobile home, and Zachary approached defendant, keeping him in the area until police arrived.

When police arrived, defendant told Officer Bandon Swonger of the Woodland Police Department that he came outside of the mobile home to put out his cigarette in the ash tray usually kept on the back porch, but could not find it. So he threw the cigarette on the back porch assuming the cigarette was not burning. Defendant described the back porch as a "fire hazard" because clothing and other trash was scattered around. He acknowledged that his cigarette caused the fire but claimed it was an accident and that he would never throw a lit cigarette onto the porch. He also admitted he had previously threatened to burn down the mobile home during an argument with a member of the Solorzano family about their living arrangements. When booked into jail, officers recovered two matchbooks, a lighter, and an instruction manual for a lighter indefendant's possession. Several matches were missing from the matchbook. Defendant did not have any cigarettes in his possession.

Detective Matt Jameson of the Woodland Police Department conducted an investigation of the fire. He discovered that firefighters found aerosol cans on the back porch of the mobile home. Although Sims claimed there were other cans of flammable material on the porch, including paint and paint thinner, Jameson did not look for or collect any of these cans as evidence because he believed fire personnel were responsible for evidence collection during an arson investigation. For this same reason, he failed to preserve defendant's clothing properly and could not test it for the presence of accelerants.

Jim Burgess, an engineer with the Woodland Fire Department, responded to the fire, which took 20 to 30 minutes to put out. Once put out, he observed "extensive fire damage, destruction to the exterior patio, and one bedroom and the kitchen structure were damaged as well. The rest of the structure was damaged by heat and smoke." Burgess pinpointed the fire's origin to the back porch because the large amount of damage indicated the fire burned there the longest. Burgess described the back porch as a fire hazard with clothing, papers, old equipment, appliances, and aerosol cans causing a lot of clutter.

In Burgess's opinion, the fire was started by an open flame because it was a quick developing fire. He based this opinion on statements from Zachary describing the time he last saw defendant until he noticed the fire. A fire that took 30 minutes to start, however, would be more consistent with a slow developing fire that could be the result of a lit cigarette igniting a fuel source. Burgess acknowledged there was no physical evidence establishing the time it took the fire to develop and his opinion depended on the accuracy of Zachary's statements.

Burgess ruled out an electrical problem as the cause of the fire because there was no electrical source on the back porch that could have spontaneously caused a fire.Burgess also ruled out gas as the cause of the fire because, although he did see aerosol cans on the porch, the cans were six to eight feet from the origin of the fire. The cans may have contributed to the fire's growth but not to its creation. Similarly, the fire most likely did not start from a smoldering cigarette. For a fire to start, the cigarette would have to be applied directly to a fuel source, such as clothing or paper, and would be slow to develop. As the cigarette gets shorter, the duration of time the heat is exposed to the fuel source diminishes, leaving less time to ignite a fire. Burgess could not provide a specific timeframe for a lit cigarette to cause a fire because several factors are at play, including fuel type, humidity, and wind conditions. On the day of the fire it was 67 degrees with no rain. It is possible for a fully lit cigarette to ignite a fuel source but it is much faster and easier for a person to ignite a fuel source with an open flame, such as a lighter or matches.

IIRelevant Trial Proceedings

Defendant moved to exclude evidence of his drug use, which the prosecution sought to offer into evidence to show defendant's motive for starting the fire. According to the prosecutor, she intended to call a social worker with Adult Protective Services to testify that s...

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