APPEAL from a judgment of the Superior Court of Stanislaus County. Ricardo Cordova, Judge. (Super. Ct. No. 1079502).
The opinion of the court was delivered by: Ardaiz, P.J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Suze Adams appeals from a sentence of life without possibility of parole for the premeditated murder of Kristina Soult by means of arson. She contends that the trial court erred in admitting certain statements that she made when she took a polygraph examination. She also contends that her convictions for attempted premeditated murders of three other people who were at the site of the arson fire should be vacated because she did not know that they were present. Finally, she contends that the trial court erred in ordering direct restitution to the Turlock Fire Department. In the published portion of this opinion, we reject Adams's contention that her attempted murder convictions should be vacated. In the non-published portion of the opinion, we reject her contention that her confession should not be admitted but we agree that direct restitution to the Turlock Fire Department was erroneous. Thus, we will remand for resentencing.
On August 31, 2006, Adams was charged in a six-count information with committing five crimes on or about June 18, 2004, as follows: count 1, the murder of Kristina Soult (Pen. Code, § 187), with an allegation that the crime was premeditated and a special circumstances allegation that it was committed while Adams was engaged in the commission of arson (Pen. Code, § 190.2, subd. (a)(1)); count 2, arson of an inhabited structure or property (Pen. Code, § 451, subd. (b)); and counts 3, 4, and 5, the attempted murders (Pen. Code, §§ 664, 187) of Joseph Lopes, J.V., and Andrea Marr, respectively, with allegations that the crimes were premeditated. Adams was charged in count 6 with committing an additional arson of an inhabited structure or property on or about March 25, 2004.
On September 19, 2006, Adams pled not guilty and not guilty by reason of insanity to the charges.
On February 1, 2007, Adams filed a motion to exclude statements that she gave on August 4, 2004, while taking a polygraph examination. On April 4, 2007, the prosecutor filed an opposition to the motion. On April 6, 2007, the court conducted an Evidence Code section 402 hearing, heard argument, and denied the motion. On May 14, 2007, the court revised its ruling and excluded Adams's statements regarding "certain evidence of controlled substances."
On May 14, 2007, Adams withdrew her plea of not guilty by reason of insanity. On May 29, 2007, a jury found Adams guilty as charged in all six counts, found the murder and attempted murders to have been premeditated, and found the special circumstances allegation to be true.
On July 10, 2007, the court sentenced Adams to state prison on count 1, and the special circumstances, for life without possibility of parole. The court imposed a middle term of five years for both count 2 and count 6, but stayed punishment of count 2, sentenced Adams for counts 3, 4, and 5 to life with the possibility of parole, ordering those counts to run concurrent with each other but consecutive to count 6, and ordered Adams to pay direct restitution to the Turlock Fire Department in the amount of $9,309.19.
On July 17, 2007, Adams filed a notice of appeal.
On March 25, 2004, Jerry McDaniel, the fire marshal for the City of Turlock, was dispatched to the scene of a fire. The fire was already out, and McDaniel spoke with the fireman in charge, Captain Becker. McDaniel and Becker determined that the fire originated from the wooden front porch of the house and extended "up and out" in a classic "V-pattern," charring the front porch and front wall of the house. McDaniel originally concluded that the cause of this fire was "undetermined" because "cigarette butts in the area" could have accidentally ignited the fire.
On June 18, 2004, McDaniel was dispatched to the same house, again meeting with Becker, who related that a young man at the scene had advised that his mother was still inside the home. McDaniel did a "brief walk around" and "clearly" saw "there were two separate fires set" at the house, one at the backdoor and one on the front porch. Both fires grew "up and out," extending into the house until intersecting, consuming much of the house and causing the front porch, the roof, and "all the floorboards" in the house to collapse. The reason that the second fire was "much more intense" than the first was a heavier "fuel content" or "fuel package" on the front porch, in that a large stuffed chair or recliner caught fire. The fire at the back door started where "[i]gnitable fluid was poured." The body of the young man's mother was found in the bathroom.
Found in some trash cans in the area where two "one gallon Ziplock seal-a-meal type bags" containing what looked like pine needles. The bags emitted an "odor of a cleaning fluid or paint thinner." Samples of the contents of these bags were sent to the Department of Justice for analysis, and the samples were determined to be "rosemary and alcohol."
McDaniel concluded that both the March 25 and June 18 fires were the result of arson.
B. The Victims and the Suspect
Witness interviews showed that the deceased female, Kristina Soult, was in the home at the time both fires were started. Present at the time of the first fire were Soult, Joseph Lopes, and Lopes's girlfriend. They managed to escape through the back door of the house. Present for the second fire were Lopes, Andrea Marr, who was Soult's friend, and J.V, who was Soult's grandson and Lopes's nephew.
During the second fire, Lopes stated that he was asleep on a couch when he was awakened "by heat and light coming through the front window." He got up, woke up everyone else in the house, and tried to get them out. He last saw his mother in the hallway, when she handed J.V. to Andrea. He, Andrea, and J.V. exited the house through the back door, which was "already hot to the touch." Upon opening the door, the "fire rolled in on the floor making it difficult to get out." After exiting the house, he realized his mother was still inside.
Turlock Police Detective Morgan attended Soult's autopsy on June 18, 2004. Later that day, he got an anonymous telephone call from a woman subsequently determined to be the wife of David Jaen. The next day, he got an anonymous telephone call from a man who was subsequently determined to be Jaen. He met with Jaen and, as a result, came to consider Adams a suspect in Soult's death.
Both Jaen and Adams were cooks who worked at the same restaurant in Turlock. Jaen also had worked with Soult around 2002 or 2003, in another restaurant. According to Jaen, Adams never told him that she was scared of Soult. Shortly after the first fire at Soult's house, Jaen learned about it from Soult's son, Joseph Lopes. He mentioned to Adams that someone had tried to burn Soult's home, and she responded that the "[s]econd time around she'll do better." About a week before the second fire, Soult came into the restaurant and ...