People v. Williams

• Decision Date: 08 August 2013
• Docket Number: F062575
• Citation: 160 Cal.Rptr.3d 779,218 Cal.App.4th 1038
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Danny Victor WILLIAMS, Defendant and Appellant.

218 Cal.App.4th 1038

160 Cal.Rptr.3d 779

The PEOPLE, Plaintiff and Respondent,

v.Danny Victor WILLIAMS, Defendant and Appellant.

F062575

Court of Appeal, Fifth District, California.

Filed August 8, 2013

See 2 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Crimes Against Public Peace and Welfare, § 463.

APPEAL from a judgment of the Superior Court of Tulare County. Brett R. Alldredge, Judge. (Super.Ct. No. VCF222476A)

Nuttall Coleman & Wilson; Law Office of Roger D. Wilson and Roger D. Wilson for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and John A. Bachman, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

Gomes, J.

Section 386 of the Penal Code proscribes the unlawful construction or maintenance of a fire protection system in a manner which threatens the safety of any occupant or user of a structure in the event of a fire. Since no reported case has ever addressed this crime, we must interpret the statute as a matter of first impression. Our opinion holds that Penal Code section 386 requires proof of the defendant's specific intent to either (1) install a fire protection system which is known to be inoperable or (2) impair the effective operation of a fire protection system. We further hold the word “impair,” as used in the statute, means to make worse or diminish in some material respect.

Appellant, Danny Williams, was convicted by a jury on twenty-six counts of violating section 386 and one count of conspiracy to violate section 386. He was also found guilty of grand theft (Pen.Code § 487, subd. (a)), ¹ diversion of construction funds (§ 484b), and twenty-six misdemeanor charges for violating an assortment of regulations of the State Fire Marshal. The jury returned a true finding of an enhancement allegation pursuant to section 12022.6, subdivision (a)(1), for victims' losses in excess of $65,000.

Williams asserts multiple grounds for reversal of the jury's verdict, ranging from insufficient evidence and instructional error to prosecutorial misconduct, juror misconduct, and ineffective assistance of counsel. We agree the convictions under section 386, as well as the single count of conspiracy and true finding on the enhancement allegation under section 12022.6, must be reversed and dismissed for lack of sufficient evidence. The judgment is affirmed as to all other counts.

FACTUAL AND PROCEDURAL BACKGROUND

Danny Williams worked as a contractor in the fire protection industry. He held a class C–16 specialty license issued by the Contractors State License Board which authorized him to install and service all types of fire protection systems. As the Responsible Managing Officer under his license, Williams operated American Fire Services, Inc., dba American Fire Protection (“American Fire Protection”).

American Fire Protection specialized in the inspection and maintenance of portable fire extinguishers, sprinkler systems, and other types of automatic fire suppression systems. Headquartered in Camarillo, California, the company's staff of approximately six to eight employees provided services to customers throughout the state. One of those employees, Ken Speck, lived in Exeter and was responsible for the company's sales and services in Tulare County. It was through Ken Speck that Danny Williams came into contact with the main victim in this case, Svenhard's Swedish Bakery (“Svenhard's”).

Svenhard's is a high volume bakery that sells pastries to grocery stores and other retailers. In approximately 2007, the company took steps to relocate its manufacturing operations from Oakland to Tulare County. It acquired a vacant factory in Exeter, estimated to be “five acres under roof,” which it planned to convert into a commercial bakery and production plant.

The Exeter facility was equipped with an automatic fire sprinkler system consisting of approximately 4,000 to 5,000 sprinkler heads throughout six zones of the building. The zones were designated by system “risers,” referring to the main pipes that rise out of the floor and supply water to sprinkler heads located within a certain area. The system, however, was decades old and had not been inspected or serviced in many years.

Svenhard's hired a fire protection contractor called Jorgensen and Company (“Jorgensen”) to perform a comprehensive inspection and assessment of its sprinkler system. Numerous deficiencies were found in all six zones/risers, such that the overall system failed inspection, i.e., fell below the standards established by the National Fire Prevention Association (NFPA) and the California Code of Regulations (Cal.Code Regs., tit. 19, §§ 901–906). An informal evaluation by the Tulare County Fire Department confirmed the system was in need of extensive repairs.

Jorgensen eventually prepared a written proposal to repair the sprinkler system. Jorgensen's bid of May 8, 2008 was broken down in terms of work and price for each zone, Riser 1 through Riser 6, for a total cost of $147,897. The proposal was not accepted. According to its representatives, Svenhard's had a “shoestring budget” for the project and wanted to find a more cost effective bid.

Coincidentally, the company soon received a visit from Ken Speck of American Fire Protection, who made a “cold call” to the Exeter facility hoping to sell fire extinguisher services. Speck spoke with a manager who explained the company's needs with regard to the sprinkler system. Mr. Speck advised that his boss, Danny Williams, could perform the necessary maintenance. Arrangements were made for Williams to visit the facility.

Following a series of meetings and negotiations with Williams, Svenhard's entered into a contract with American Fire Protection for specified repairs to Risers 1 through 6 of the sprinkler system. The total contract price was $98,000. American Fire Protection was to receive a $30,000 deposit and progress payments of $24,000, $24,000 and $20,000 as the work was completed.

Svenhard's purchased new fire extinguishers from Williams at an additional cost of $6,079.32. The parties further agreed that American Fire Protection would complete a project involving “outside stem and yoke” or “OS & Y” valves buried outside of the building. Williams offered to replace the OS & Y valves and raise them above ground for an extra $4,000.

Work commenced on the Svenhard's project in late July or early August 2008. Williams and his employees, varying at times between two to five people, spent approximately two to three weeks repairing Risers 1 through 5 of the sprinkler system. Williams subcontracted with a man named James Martinez to replace the OS & Y valves, which was a two-day assignment.

Williams later informed Svenhard's that work was complete on the OS & Y valves and Risers 1 through 5. Svenhard's accordingly disbursed payments totaling $78,000 pursuant to the sprinkler system contract, plus $6,079.32 for the new fire extinguishers and $4,000 for the OS & Y valve replacement. Work on Riser 6 was put on hold because it required the installation of new sprinkler heads to cover a cold storage area that had not yet been constructed. The project could not proceed until engineering plans were completed and the necessary building permits were obtained. Svenhard's also requested that work cease pending verification of American Fire Protection's workers' compensation insurance coverage.

In September 2008, Svenhard's project manager, Gene Dorough, happened to mention the company's dealings with American Fire Protection during a conversation with the local fire inspector, Jerry Sterling. Mr. Sterling had performed the informal evaluation of Svenhard's sprinkler system on behalf of the Tulare County Fire Department approximately four months earlier. After speaking with Mr. Dorough, Jerry Sterling visited the facility again to evaluate the work completed up to that point. Mr. Sterling found numerous deficiencies and fire code violations were still present throughout the entire system.

Tulare County officials instructed Svenhard's to stop work on its sprinkler system and have the facility re-assessed by Jorgensen. Svenhard's eventually hired Jorgensen to complete the repair work left unfinished by Williams and his crew. Meanwhile, the Tulare County District Attorney's Office began investigating American Fire Protection.

Authorities conducted an undercover interview with Williams in November 2008. Search warrants were executed at multiple locations, including American Fire Protection's business address and at Williams' personal residence. After reviewing volumes of seized records, Tulare County fire officials assembled a task force to examine the premises of other American Fire Protection customers.

The task force surveyed restaurants and small businesses that had hired American Fire Protection to inspect their “hood” systems, i.e., automatic fire extinguishing systems designed to cover kitchen areas and cooking equipment. In most instances, the customers' systems were not fully compliant with the fire code and/or needed to be upgraded to meet minimum regulatory standards. Every hood system reviewed by the task force had been inspected and serviced by Ken Speck.

In April 2009, Tulare County officials inspected the OS & Y valves which had been replaced at Svenhard's approximately seven months earlier. A supervisor from the county building department mistakenly concluded that Williams installed the wrong type of valve. This resulted in Svenhard's paying approximately $17,000 to a local construction company for the purchase and installation of what turned out to be an identical piece of equipment. Excavation of the area around the valves revealed a leak from a pipe in the underground plumbing, which Svenhard's also paid to have fixed.

A Tulare County grand jury indicted Danny Williams and Ken Speck on multiple felony and misdemeanor charges relating to the...