NOT TO BE PUBLISHED IN OFFICIAL REPORTS IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION ONE A118621

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1 Filed 4/3/08 P. v. Ritch CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule (a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule (b). This opinion has not been certified for publication or ordered published for purposes of rule IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION ONE THE PEOPLE, Plaintiff and Respondent, v. JAMES ZORRO RITCH, Defendant and Appellant. A (Mendocino County Super. Ct. No. SCUK-CRCR ) Defendant James Zorro Ritch was convicted by a jury of arson of a dwelling (Pen. Code, 451, subd. (b)), 1 assault with a deadly weapon ( 245, subd. (a)(1)), and first degree burglary ( 459, 460, subd. (a)), and was found by the jury to have failed to remain free of custody for five years following imprisonment for a prior felony conviction ( 667.5, subd. (b)). He was sentenced to 11 years four months in prison, representing the aggravated term of eight years for the arson conviction, plus: one year for the assault; one year four months for the burglary; and one year for the special allegation. Defendant contends, the People agree, and we concur that the sentence for the burglary conviction must be stayed pursuant to section 654. The contested issue is whether there was sufficient evidence to support a finding, as required for the burglary conviction, that he entered the dwelling where he committed the arson. We conclude that 1 All further statutory references are to the Penal Code. 1

2 the burglary conviction was supported by substantial evidence, and affirm the judgment as modified pursuant to section 654. I. FACTS Defendant s wife, Portia Smith, had taken refuge with Stephen Miller on March 31, 2007, after being battered by defendant. Miller lived in a trailer on his parent s property. Thomas Huff, who was staying about one-eighth of a mile from Miller, said that defendant came by his place 42 times on March 31 looking for his wife, becoming drunker and more agitated as the day wore on. Defendant thought that his wife and Miller were having an affair, and repeatedly told Huff that he was going to burn down Miller s home. Miller said that defendant came to his trailer on March 31, threatened to burn the trailer down, and demanded that Smith leave with him. Miller told defendant that they would talk to him at the mailboxes on the street outside his parent s property. As Miller and Smith were walking down a dirt road toward the street, defendant twice tried to run them over with his car. Miller hid Smith behind a retaining wall and stood near the street, where he watched defendant drive back and forth and then up toward the trailer. As Miller returned to the trailer, he heard its door pop open and saw flames. Miller said that there was a fire right inside the door, where defendant had dropped a garbage bag. He assumed there must have been gas in the bag because of the way it went off. Miller tried to hose down the trailer through the door, but the trailer was completely destroyed by the fire. State Fire Investigator Larry Grafft examined the scene and opined that the fire began in debris located 20 inches inside the trailer door. He found no evidence of an ignitable liquid. Miller told Grafft that he saw a plastic bag burning in the area where the fire originated, an observation that was consistent with Grafft s findings. Huff said that defendant told him he was going to town to get gasoline to burn down Miller s place. Huff testified that, when defendant returned, He said he walked up to the trailer, he thought they [Miller and Smith] were in the back bedroom. Said the door wasn t all the way closed, creaked in halfway down the hallway, stopped, the door 2

3 was closed. He thought they were in there. And he said he started dousing the gasoline as he walked back and lit it on his way out. Huff thought that defendant was kidding until he saw the flames from Miller s property. In closing argument, the prosecutor addressed Grafft s and Huff s testimony as follows: Now, we heard from Mr. Grafft that no accelerants were used. He sent off debris for testing and it came back showing that there were no accelerant[s], basically the use of gasoline or anything that would create the fire to spread faster. Now, we can put that back to Mr. Ritch, grandstand, if you would, while he s drunk. Mr. Hoff said he had seen him drinking vodka and I believe he was probably just puffing his chest at that time making it sound a little bit more I don t know, a little bit more of a victory for him to do it in such a sinister way, by pouring gasoline down the hallway and then back up around the couch and then lighting the place on fire as he burned the bitch down. But no, we know that what he did was he just took a bag of garbage, reached in 20 inches inside the door, and burned the trailer down at that time. II. DISCUSSION A. Substantial Evidence Defendant argues that the burglary conviction must be reversed because there was no substantial evidence that he entered the trailer. ( 459 [person who enters dwelling with intent to commit any felony commits burglary].) [A]n entry occurs for purposes of the burglary statute if any part of the intruder s body, or a tool or instrument wielded by the intruder, is inside the premises. (People v. Wise (1994) 25 Cal.App.4th 339, 345.) When sufficiency of the evidence is questioned, we review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence that is, evidence which is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578.) Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court which must be convinced of the defendant s guilt 3

4 beyond a reasonable doubt. If the circumstances reasonably justify the trier of fact s findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment. (People v. Bean (1988) 46 Cal.3d 919, ) The substantial evidence argument fails in this instance because the jury could choose to believe defendant s admission to Hoff that he entered the trailer to commit the arson. Defendant argues that the jury could not credit the admission because the other parts of the story he told Hoff were demonstrably false: he did not, as he claimed, use gasoline to start the fire according to Grafft s findings; and he would not have believed that Miller and Smith were inside the trailer when he started the fire according to their account of the preceding events. However, unlike these other aspects of defendant s account, no other evidence made his professed entry into the trailer implausible. Thus, the jury could find that this one facet of the story, at least, was true. Defendant reasons that it would have made little sense for him to enter the trailer and the[n] start a fire right in front of his only means of egress. Defendant submits that the only credible evidence at trial was consistent with [him] opening the door and throwing a burning bag into the trailer. The evidence showed that defendant probably started the fire by lighting a bag of debris, and it does seem unlikely that he would have done so while standing inside the trailer, with the bag between him and the door. But it also seems unlikely that defendant would have endangered himself by holding and throwing a burning bag. As suggested by the prosecution s argument, he could well have put the bag inside the trailer, and then reached inside and ignited it. The evidence did not preclude a finding that he entered the trailer as he claimed to have done. B. Section 654 While defendant could be convicted of burglary as well as arson, he could not be punished for both offenses because they were part of an indivisible course of conduct. (See People v. Williams (1971) 19 Cal.App.3d 339, 345 [arson and burglary convictions; sentence for burglary set aside].) 4

5 III. DISPOSITION The judgment is modified to stay the sentence on the burglary conviction pursuant to Penal Code section 654. As so modified, the judgment is affirmed. The trial court is directed to prepare and forward an amended abstract of judgment reflecting the modification to the Department of Corrections. Marchiano, P.J. We concur: Swager, J. Margulies, J. 5