People v. Sandoval

• Decision Date: 26 July 2021
• Docket Number: D077538
• Court: California Court of Appeals Court of Appeals
• Parties: THE PEOPLE, Plaintiff and Respondent, v. VICTOR SANDOVAL, Defendant and Appellant.

THE PEOPLE, Plaintiff and Respondent, v. VICTOR SANDOVAL, Defendant and Appellant.

D077538

California Court of Appeals, Fourth District, First Division

July 26, 2021

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of San Diego County No. SCN403638 Brad A. Weinreb, Judge. Affirmed and remanded with directions.

Russell S. Babcock, under appointment by the Court of Appeal for the Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters and Julie L Garland, Assistant Attorneys General, Steve Oetting and Heather Bushman Arambarri, Deputy Attorneys General, for the Plaintiff and Respondent.

O'ROURKE, J.

A jury convicted Victor Sandoval of arson. (Pen. Code, ^[1] § 451.) The court sentenced him to three years' probation and ordered him to pay certain fines, fees and assessments, starting one year after sentencing at $35 per month.

Sandoval contends: (1) insufficient evidence supported his arson conviction; (2) his counsel provided ineffective assistance by failing to object to certain testimony; (3) the court erroneously failed to order a mental competency examination under section 1368 despite signs that he was mentally ill; (4) the court erroneously instructed the jury with CALCRIM No. 372 regarding flight; and (5) the court erroneously imposed the fines, fees and assessments without determining his ability to pay them, in violation of his constitutional rights and under People v. Duenas (2019) 30 Cal.App.5th 1157. We affirm the judgment and remand with directions set forth below.

FACTUAL AND PROCEDURAL BACKGROUND

In August 2019, a woman saw Sandoval carrying “an armful of branches” near a wooded area. She watched him for approximately five minutes as he added leaves from one pile of branches to another. She saw smoke and flames rise from one pile. She called 911.

Another passerby noticed smoke rising from some nearby trees and saw Sandoval moving away from the area. The man videotaped Sandoval, and asked if he had started the fire. Sandoval denied doing so. Afterwards, Sandoval walked away and “was being casual like nothing happened.” The man called 911. He also extinguished the fire. The video recording was played for the jury.

An Oceanside Police Department arson detective who investigated the fire described the surrounding area as “about a ten-acre preserve area where there's just nothing built on it. In close proximity, you have a lot of homes. On any given corner, you have multifamily homes, single-family homes. Very dry wooded area. A lot of under-undergrowth that's dead, easily combustible, and it could easily be set on fire.” The detective testified that a charred tree trunk indicated this incident involved not “just the smoldering fire. It was a fire that was burning quite well.”

The Defense Case

At trial, Sandoval was asked if he “intentionally” started the fire, and he replied, “Yeah, ” explaining that his “goal was to smell that church-type of smell” by putting eucalyptus branches on the fire to “get an incense effect.” Sandoval testified: “I was careful because I was thinking to myself that I could have burned acres, create damage or-so I clean around the-around the tree like eight-feet [sic] radius, and then I started a fire.” Defense counsel asked Sandoval, “Why did you select to start [the fire] next to a tree?” He replied, “Because that tree would help me to avoid the-the wind, because I checked the direction of the wind and the wind was heading-it was blowing towards east, and then the tree was-was blocking me from the fire to spread.” He added, “And so I was kind of supervising the fire.” Sandoval testified he extinguished the fire by stepping on it. But he acknowledged the fire was still smoking when he walked away: “I just put it out and then I walked away. And then when I walked away, I saw this man videotaping... me and asking me: [‘]Did you start a fire?['] And I said [‘]no, ['] because there was no more fire.” Sandoval said he did not have to answer the man, who was not an “officer or anything like that.”

In closing, defense counsel argued Sandoval was not guilty of arson but rather of the lesser included offense of unlawfully starting a fire: “[Sandoval] told the officer that he set the fire to smell eucalyptus because that has a spiritual effect on him. And Mr. Sandoval did so recklessly. He did not do it with a malicious intent. He did not do it with a wrongful intent. When he set that pile of brush on fire to smell the eucalyptus, he got his spiritual effect, and then he believed he put out the fire and he walked away.” Defense counsel added: “Even though [Sandoval] cleared that area, he ignored the risk because he went ahead and he started the fire. And ignoring the risk is a gross deviation from what a reasonable person would do.”

DISCUSSION

I. Sufficiency of the Evidence Challenge

Sandoval contends insufficient evidence supported his arson conviction: “The crux of the issue in this case is that while [Sandoval] did intend to burn eucalyptus leaves, there is no evidence that he intended the fire to spread out to burn forest land or woods.... [H]ere, there is a complete absence of malice because the uncontroverted evidence is that [he] only attempted to burn eucalyptus leaves, attempting to extinguish them after his ceremony, and he did not intentionally do damage to the woodlands.” He further requests that this court “consider exercising its discretion” and reduce his conviction to the lesser included offense of unlawfully causing a fire to forest land. (§ 452.)

A. Applicable Law

“ ‘In reviewing the sufficiency of the evidence, we must determine “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” [Citation.]' [Citation.] ‘ “[O]ur role on appeal is a limited one.” [Citation.] Under the substantial evidence rule, we must presume in support of the judgment the existence of every fact that the trier of fact could reasonably have deduced from the evidence. [Citation.] Thus, if the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant reversal of the judgment.' ” (In re V.V. (2011) 51 Cal.4th 1020, 1026.)

“A person is guilty of arson when he or she willfully and maliciously sets fire to or burns or causes to be burned... any structure, forest land, or property.” (§ 451.) Arson requires only a general criminal intent; “the specific intent to set fire to or burn or cause to be burned the relevant structure or forest land is not an element of arson.” (People v. Atkins (2001) 25 Cal.4th 76, 84.) Thus, there must be a general intent to willfully commit the act of setting on fire under such circumstances that the direct, natural, and highly probable consequences would be the burning of the relevant structure or property. (In re V.V., supra, 51 Cal.4th at p. 1029.) In the context of arson, the definition of “maliciously” does not require a “specific intent to do a further act or achieve a future consequence.” (Id. at p. 1027.) Rather, “arson's ‘willful and malice requirement ensures that the setting of the fire must be a deliberate and intentional act, as distinguished from an accidental or unintentional ignition or act of setting a fire.' ” (Id. at p. 1029.) “[M]alice will be presumed or implied from the deliberate and intentional ignition or act of setting a fire without a legal justification, excuse, or claim of right.”^[2] (Id. at p. 1028.)

B. Analysis

As set forth above, substantial evidence showed that Sandoval intentionally started the fire. He testified to doing so. Further, a witness saw him adding leaves to a fire. Another witness videotaped Sandoval as he was leaving the area, and captured his denial that he had started the fire. The detective testified the fire was burning “quite well, ” and posed a threat to the neighborhood. Based on this evidence and the court's instructions, the jury could reasonably conclude that the malice element was met here because Sandoval did not ignite the fire accidentally or unintentionally. (In re V.V. supra, 51 Cal.4th at p. 1029.) His claim that he did not intend to set the woodlands on fire is unavailing, as arson does not require the specific intent “to do a further act or to achieve a future consequence.” (People v. Booker (2011) 51 Cal.4th 141, 177.)

For the same reason, we decline Sandoval's invitation to reduce his conviction to the lesser included offense.^[3] The jury evaluated the evidence and court instructions and declined to find that he acted merely recklessly and unintentionally when he set the fire and walked away while it was still smoking. (Accord, In re V.V., supra, 51 Cal.4th at pp. 1032-1033; People v. Green (1983) 146 Cal.App.3d 369, 379.) We have no basis for rejecting the jury's verdict based on the trial record.

II. Ineffective Assistance of Counsel Claim

Sandoval contends he received ineffective assistance of counsel, who failed to object to the arson detective's testimony regarding a whiskey can that appeared like a Molotov cocktail and was found near the fire.

A. Background

On direct examination, the detective testified regarding the can that “there was some stuffing material that was sticking out of [the can] as if it was being turned into maybe a makeshift Molotov cocktail.” He described such an item as “some combustible material fluid that's placed in some type of container with a fuse attached to it that... you could light the fuse and, when you throw the bottle or container, the material or the fluids, combustible material could be gas. It could be just about anything that...