People v. Tanner

• Decision Date: 10 August 1979
• Docket Number: Cr. 33379
• Citation: 95 Cal.App.3d 948,157 Cal.Rptr. 465
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Margaret TANNER, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 465

157 Cal.Rptr. 465

95 Cal.App.3d 948

The PEOPLE of the State of California, Plaintiff and Respondent, v. Margaret TANNER, Defendant and Appellant.

Cr. 33379.

Court of Appeal, Second District, Division 5, California.

Aug. 10, 1979.

As Modified Sept. 11, 1979.

Hearing Denied Oct. 4, 1979.

Quin Denvir, State Public Defender, under appointment by the Court of Appeal, and Charles M. Sevilla, Chief Asst. State Public Defender; Mary Ellen Baldridge, Deputy State Public Defender, for defendant and appellant

Evelle J. Younger and George Deukmejian, Attys. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen. Crim. Div., S. Clark Moore, Asst. Atty. Gen., Norman H. Sokolow and Howard J. Schwab, Deputy Attys. Gen., for plaintiff and respondent.

KAUS, Presiding Justice.

A jury found defendant guilty of four counts of first degree murder (Pen.C. § 189) and one count of arson (Pen.Code § 447a). She was sentenced to state prison for life terms on the murder counts and the middle term of four years on the arson count. Service of the latter term was stayed pursuant to Penal Code section 654 and defendant received credit for 355 days of the time already served. This appeal is from the judgment of conviction.

FACTS

The evidence against defendant consisted chiefly of the opinions of an arson expert and her own statements made to the authorities shortly after a fire at her residence at 810 El Redondo, early in the morning of August 3, 1977. The fire resulted in the deaths of four people: three children Bobby Potter, Judy Potter and Melinda O'Brien and one adult, Robert Potter.

John Spiller, an arson expert from the Los Angeles Sheriff's Department, examined the scene of the fire at about 8:10 a. m. on August 3. The upstairs of the house, where the victims had been discovered, was substantially damaged and there was also some fire damage to a downstairs closet. Spiller determined that the fire had three "points of origin" the head of the bed in the front upstairs bedroom and two portions of the downstairs closet located beneath a stairwell. ¹

In Spiller's opinion, all three fires had been caused "by human hands applying an open flame to available combustibles. . . ." The combustibles in the bed fire had probably been the pillows, blankets or sheets. One of the closet fires had been started in a coat which had been hanging there. The other had been set in a shoe box, a plastic purse and a pair of shoes that were on the floor. Spiller concluded that the fires could not have been accidental. He also ruled out the possibility that the fire on the bed had resulted from lighted cigarettes having been placed there. He explained the latter conclusion from the fact that when there is a smoulder fire caused by lighted cigarettes laid on a bed, the mattress springs suffer a "complete loss of tension" from the prolonged exposure to heat. There was no such loss of tension here, but "more of a surface burn that spreads. . . ." Some matches were found near the head of the bed.

The fire had spread from the front upstairs bedroom to the rear upstairs bedroom, ² where the four decedents were found. The primary cause of the death of each was "inhalation of the products of combustion . . . (lethal gases). . . ."

Two sheriff's deputies spoke to defendant the morning of August 3, 1977. After she was advised of and waived her constitutional rights, she related the following account of her actions on the night before and the morning of the fire: Defendant and her husband, Robert Potter, went to bed in the front bedroom at about 8:00 p. m. on August 2. At about 1:30 the following morning, defendant was unable to sleep. While her husband slept, defendant got dressed and left the house on her moped. When she discovered that the bar she intended to go to was closed, she headed for a girlfriend's house, but all the lights were off. She then decided to return home.

At some point defendant's moped stopped running and would not start. She called her husband to pick her up and he arrived at about 4:00 a. m. He was angry and the two argued all the way home. When they got there, defendant began to gather up a pillow and blankets to sleep outside. Mr. Potter told her that she did not have to do that since he was leaving.

Defendant took 750 milligrams of a sleeping pill called Placidyl. She was extremely depressed and decided to commit suicide by setting herself on fire. She lay down on the bed and placed three lighted cigarettes beside her. The next thing she knew the drapes behind her were in flames.

She then noticed that the smoke was getting heavy and was coming from the children's room. Fearing for their safety, she ran downstairs and got a pan of water. As she attempted to douse the fire in the children's room, she ran into somebody whom she could not identify. She then ran outside into the back yard.

She was aware that there were children sleeping in the house when she had started the fire, but had "forgotten all about them."

Defendant was interviewed on the following day by John Spiller, the arson expert.

After again waiving her constitutional rights, she told Spiller approximately the same story she had told the sheriff's deputies. Spiller was skeptical that the fire could have been started by cigarettes and told her so. Defendant stated that she could have started the fire with a cigarette lighter. When asked where her husband was when she set the fire on the bed, defendant said that she did not "believe" that he was in bed with her but that he could have been. As to the fires in the closet, she said that she may have set them but did not remember.

The defense was diminished capacity. Witnesses who had seen defendant both before and after the fire described her as "stoned" and "lethargic." A friend who had been with defendant and her husband the day before the fire saw her take four Placidyls and described her as "high."

Testifying in her own defense, defendant stated that she began taking pills at about noon on August 2. Between that time and 4:00 a. m. the next day she took ten Placidyls and three Eskatrols, a mood elevator. She felt "high." Although was unable to remember many of the events of August 2 and 3, her testimony was similar to the statements she had given earlier. She continued to claim that she had started the fire on the bed with lighted cigarettes. She did not think that the resulting fire would leave the room.

Defendant's personal physician testified that on August 1 he had prescribed Placidyl and Eskatrol for her. He opined that if someone took ten Placidyls and a few Eskatrols over a ten to twelve hour period, they would be "confused."

ISSUES

Defendant contends that the evidence was insufficient to support her conviction of arson and that there were various instructional errors. She also claims that she is entitled to 118 days of "good time/work time" credit.

DISCUSSION

1. Sufficiency of Evidence of Arson.

Initially, defendant argues that the evidence of arson was insufficient because it did not show that she "maliciously" set fire to the residence as is apparently required by a literal reading of Penal Code section 448a. ³ It has consistently been held, however, that, "When related to the crime of arson, the word 'malice' denotes nothing more than a deliberate and intentional firing of a building . . . as contrasted with an accidental or unintentional ignition thereof; in short, a fire of incendiary origin." (People v. Andrews (1965) 234 Cal.App.2d 69, 75, 44 Cal.Rptr. 94, 98; see also People v. Nance (1972) 25 Cal.App.3d 925, 930, 102 Cal.Rptr. 266; People v. Williams (1971) 19 Cal.App.3d 339, 345, 96 Cal.Rptr. 848; People v. Bowman (1966) 240 Cal.App.2d 358, 387, 49 Cal.Rptr. 772.)

Defendant points to two cases People v. McCree (1954) 128 Cal.App.2d 196, 202, 275 P.2d 95 and People v. George (1941) 42 Cal.App.2d 568, 571, 109 P.2d 404 which she claims stand for the proposition that the word "maliciously" as used in the arson statute means more than merely "intentionally." However, the discussion in McCree, to which defendant alludes, is no more than a lengthy dictum. (People v. McCree, supra, 128 Cal.App.2d at p. 203, 275 P.2d 95.) Moreover, that dictum has been explicitly rejected by one court (People v. Bohmer (1975) 46 Cal.App.3d 185, 191, 120 Cal.Rptr. 136) and has been thoroughly repudiated at least by implication by the authorities cited in the preceding paragraph.

Defendant's reliance on People v. George, supra, is also unpersuasive. The sole question in that case was the constitutionality of the arson statute as applied to one who burns his own unoccupied dwelling. George is inapposite to the present case, in which the dwelling was occupied, deaths resulted, and felony-murder charges were predicated on the arson. ". . . (I)n felony murder based on arson the jury need find only that the defendant intended to set the fire." (People v. Nichols (1970) 3 Cal.3d 150, 165, 89 Cal.Rptr. 721, 731, 474 P.2d 673, 683.)

Next, defendant urges that there was no evidence demonstrating that she intended to burn the house rather than just the bed. It was shown that the fire on the bed was started by deliberate application of an open flame to the bed clothes, an act from which it could be inferred that the bed was intended to be used as a torch to set the building on fire. In addition, however, there was the evidence of the closet fires. ⁴ These separate and distinct fires support the inference that defendant's plans were more grandiose than mere self-immolation and that the ignition of the residence was not accidental. (See 1 Witkin, Cal. Crimes (1963 ed.) § 466, pp. 427-428.)

2. Instruction That No Intent Needed to Commit Arson.

In view of the foregoing discussion, it is clear that the trial court erred when it delivered to the jury, on its own motion, the following instruction: "In the crime charged in Count 5 of the information, arson, the doing of the act is punishable as a crime. The intent with...