The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS, DIRECTING CLERK OF COURT TO ENTER JUDGMENT IN FAVOR OF RESPONDENT, AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pursuant to 28 U.S.C. § 636(c)(1), the parties have consented to the jurisdiction of the United States Magistrate Judge.
Following a jury trial in the Fresno County Superior Court,
Petitioner was convicted of the following offenses: arson of a
structure or forest near Powerhouse Road (Ca. Pen. Code*fn1
451, subd. (c); count 1); possession of flammable material (§ 453,
subd. (a); count 2); ex-felon in possession of a firearm (§ 120221,
subd. (a)(1); count 3); arson of a structure or forest along Highway
168 (§ 451, subd. (c); count 4); arson of an inhabited structure (§
451, subd. (b); count
5); and arson of a structure of forest, east of Dunlop (§ 451, subd.
(c); counts 6 & 7). In a bifurcated trial, the trial court found true
that Petitioner previously suffered three "strike" convictions and
three prior serious felony convictions.
Petitioner was sentenced to four consecutive terms of 25 years to life, plus 15 consecutive years for the section 667, subdivision (a) enhancements, and was ordered to pay a restitution fine of $10, 000.
Petitioner filed a timely notice of appeal. With the exception of striking one of the prior convictions and resulting five-year enhancement and staying the execution of the sentences imposed on counts 6 and 7, the Court of Appeal otherwise affirmed the judgment.
Petitioner thereafter filed a petition for review in the California Supreme Court, which was summarily denied on October 13, 2004.
Petitioner filed three state post-conviction collateral petitions. The first petition was filed in the Fresno County Superior Court on October 3, 2005, and was denied on October 31, 2005. The second petition was filed in the California Court of Appeal, Fifth Appellate District, on November 23, 2005, and denied on August 4, 2006. The third and last petition was filed in the California Supreme Court on September 28, 2006, and denied on April 11, 2007.
Petitioner filed the instant federal petition for writ of habeas corpus on June 14, 2007. (Court Doc. 1.) Respondent filed an answer to the petition on January 2, 2008, and Petitioner filed a traverse on February 27, 2008. (Court Docs. 18, 30.)
The Highway 168 fire began on Sunday, August 13, 2000, and was extinguished the following Thursday evening. It burned approximately 600 acres and threatened a number of residences.
At approximately 2:00 p.m. on August 13, Kurt Luikart left Shaver Lake to drive down Highway 168 to Prather for lunch. As he passed the bottom of the Four Lane, he saw no fire.*fn3 However, he observed appellant between one-half and two-thirds of the way up the hill from the turnout, coming down at an angle through the draw. It was an extremely hot day for someone to be on that hill, running; Luikart, who had lived in the area for six years and traveled from Shaver Lake to or past Auberry five days a week, previously had never seen anyone on that hill. Appellant, who was slightly balding in back and had long, reddish hair that looked dyed, stopped on the hillside by some brush and bent over at the waist with both arms in front of him and his hands almost touching. He was looking at the ground at the base of the bushes. Luikart could not tell whether he had anything in his hands. Although there was nothing of interest that Luikart could see, he assumed appellant was taking a picture of something. Appellant remained in that position for a few seconds, then continued down to a truck that was parked in a turnout area behind the guardrail of the highway. The truck was a burgundy red GMC or Chevrolet with a gold camper shell. Appellant went to the back of the truck and got something out or put something back in. Luikart was "pretty sure" it was a camera. Appellant glanced in Luikart's direction, then turned quickly and went around toward the driver's side of the truck. Luikart continued on to Prather. By the time he left the restaurant, it was readily apparent there was a major fire burning.
Vaughn Talsness was driving up the Four Lane, at what he estimated to be around midday on August 13, when he saw four small fires burning in the vicinity of the turnout by the large curve. Talsness pulled into a turnout a short distance uphill from the curve in order to watch what was happening. There was no fire suppression equipment in the area yet; however, someone pulled in behind him and began taking pictures in the direction of the fire. The person, who had reddish hair, was driving a faded red pickup truck.
Luikart headed home approximately an hour after he passed the location at which he saw appellant. As he went through the fire suppression staging area, he saw appellant sitting on the guardrail next to personnel from the California Department of Forestry and Fire Protection (CDF), looking around and taking pictures. At the time, Luikart assumed appellant must be a member of the press to be allowed there. By this time, the fire had burned down to the road in some places, although the main portion of the blaze was higher up the hill. The location where Luikart had initially seen appellant was completely engulfed.
United States Forest Service (USFS) Battalion Chief Cooper received information about the fire around 2:00 p.m. on August 13. He was the first firefighter to reach the scene; when he arrived, the blaze was between five and ten acres in size. It was approximately 75 to 100 feet from Highway 168 and 30 to 40 feet from the edge of the turnout. Because of the effect of the wind in what was a very sharp canyon, the head (most intense part) of the fire ran across the slope instead of straight up. The fire spotted out in front, i.e., embers caused smaller fires to start ahead of the main blaze. An hour and a half or two hours into the fire, it spotted across the drainage area and made a run toward Meadow Lakes, a small subdivision. The Beale fuel break allowed firefighters to prevent the fire from destroying any homes in that area.
CDF Fire Captain Ferguson was dispatched to the blaze around 2:00 p.m. When he arrived, the fire was approximately five acres in size and was taking off on the eastern side of Backbone Ridge where it intersects Highway 168. The fire had started someplace mid-slope or slightly below mid-slope and had burned to the top of the ridge. It struck Ferguson as an unusual fire in that its origin was not right next to a road or a place of human habitation. Vegetation in the area of origin consisted of grass with scattered, moderate brush. Ferguson saw no apparent explanation for the fire's start. Based on elimination of other causes and Ferguson's years of fighting fires in that type of topography, Ferguson concluded the fire was caused either by teenagers playing with fire who were able to flee the scene, or someone who deliberately set the fire and was able to flee the scene.
In the course of his career with CDF, Fire Captain Rusty Souza had
investigated fire scenes to try to determine cause and area of origin
approximately 800 times, and was the primary cause-and-origin
investigator on 300-350 of those fires. He arrived at the scene of the
Highway 168 fire on the morning of August
14. By eliminating possible causes, he determined there was no
natural or man-made accidental explanation for the fire. Accordingly,
he concluded the fire was intentionally set. Souza was unable to
determine a point of origin, although he found more than one area of
confusion where he believed separate fires had started.*fn4
He could not determine whether these resulted from spot fires
or from multiple fires being set. He did not find an ignition device.
Then-CDF Battalion Chief Ron Subia told Souza that he had found an
area of origin toward the base of the hill. Subia was unsure what
started that particular fire. More than a week after the fire, Subia
told Souza that he had gone back and found an ignition
In March 2001, Luikart was in Home Depot in Clovis when he saw appellant. Appellant's hair was still long and reddish-colored and he was wearing a black belt with red and orange flames all the way around it. It was then Luikart decided it was obvious appellant did not work for the Fresno Bee. Luikart and appellant made eye contact; the look appellant gave Luikart a look which was not friendly and seemed somewhat aggressive-made Luikart believe appellant was not all right mentally. Luikart then went to his vehicle and started driving around the parking lot, trying to find a truck that looked like the one he had seen the day of the fire. Luikart found two, one with and the other without a camper shell, then saw appellant get into the one with the camper shell. Luikart was able to get the license number and also wrote down a detailed description of everything he saw on the vehicle, including bumper stickers. He contacted CDF the next morning. Luikart subsequently identified appellant from a photographic lineup as the man he saw running down the hill and at the back of the truck. There was no doubt in his mind.
On Sunday, August 19, 2001, a fire broke out just off of Highway 180, between Dunlop and Sequoia Park. Michael Ellis was at the Sierra Inn, he estimated around 6:30 or 7:00 p.m., when someone came in and said there was a fire.*fn5 Ellis went outside and saw a light whisk of smoke. He watched for 30 to 45 minutes, during which the fire appeared to be growing more intense. At some point-Ellis thought after he had been outside and then gone back inside-Ellis observed appellant enter the inn. He had a large, green drink cup with a purple top. He was dirty and sweaty and "kind of musty looking." He wanted some ice water and ice in his cup. He was acting kind of nervous and sweaty and fidgety. He left after a few minutes.
Dale Fleet happened on the scene of the fire before any firefighters. He pulled into the lower turnout and parked to watch the fire.*fn6 The only other people around were a family, James McCarthy (who was traveling with Fleet but in a separate car, and appellant. Appellant appeared to be watching the fire, then he started to help direct traffic.
Later on, appellant appeared in the upper turnout, to which Fleet and McCarthy had moved. He was taking pictures, and he and Fleet and McCarthy began talking. Appellant said that photography was a hobby of his and that he had just purchased the long lens on his camera. Appellant then named two or three other fires he had seen, including the Panorama fire. He mentioned how many acres and structures were burned, and said he had lived in San Bernardino when that fire happened. With respect to the Highway 180 fire, appellant told Fleet that he had gone up to the park, but found out it cost $10 to get in. He did not want to pay the money, so he came back down, stopped at a restaurant to get some ice, saw the fire, and then went back up to the fire's location. Appellant was upset that he had to pay the park fee when he was only going to be in there for a couple of hours. McCarthy described appellant as being "a little angry in an agitated sort of way. Kind of like he was really mad at the Forest Service or the National Park Service, whoever is in charge of the Big Stump entrance up there."
Fleet suspected appellant might have started the fire due to the photography, appellant's knowledge of other fires, and the fact appellant should have gone by the location of origin close in time to when the fire started and yet said he saw the smoke only after he came out of the restaurant. As a result, Fleet spoke to the ranger who was directing traffic, then, at her request, waited until a fire investigator arrived. Fleet pointed appellant out to Rick Moore, the investigator.
CDF Firefighters Elite and Sugimoto were among the first engine crew to respond.*fn7 They arrived to find the fire about 100 feet from the edge of the highway and two to five acres in size. The terrain was mountainous and fairly steep; the fire was burning in steep brush, in a gully or drainage area. Neither Elite nor Sugimoto noticed appellant at the scene.
CDF Battalion Chief Marquez arrived just as the fire-fighting effort was being organized. The fire was between five and ten acres in size at the time, and a little over halfway up the hill in a draw. Marquez saw appellant when he arrived. Appellant was standing in a turnout. Later, appellant was very close to where Marquez was having a conversation and looking at a map with one of the division chiefs.
CDF Fire Captain Chrisman arrived after fire suppression crews were already on the scene. Within several minutes of his arrival, he saw appellant in the upper turnout, which had the best view of the fire. It appeared appellant had a camera and was taking pictures. He continued to do so for the several minutes Chrisman remained at that location.
CDF Fire Battalion Chief Moore arrived at the fire just before 7:30 p.m. He was assigned to conduct a preliminary fire investigation, which meant interviewing people at the scene and documenting anything of importance to the fire. As a result, Moore took statements from civilians at the scene, including appellant.*fn8 Appellant pointed out a maroon GMC pickup with a tan camper as his. Appellant told Moore that he had gone up to check out Sequoia National Park that afternoon, but, being frustrated because it cost money to get in and he did not want to pay $10 when it was the end of the day, he turned around and came back down. He stated that as he came around the corner, he saw the fire. Appellant said he was going to try to get some photographs, and that he was assisting with traffic control.
As they continued their conversation, the subject returned to how appellant came to be there. Appellant deviated somewhat from his initial account, and said he had come around a corner and bypassed the area to go down to a store about a quarter of a mile below the fire scene to get some ice. When he came back outside, he saw the fire and went back up to assist with traffic control and take pictures. He stated numerous times that he had gotten there before anyone, even the fire trucks. At one point, appellant expressed curiosity as to who would do something like this, referring to the fire. Appellant said he liked to take photographs and thought he could get some good ones, and that he had the ability to sell them to the Fresno Bee. Appellant said the newspaper paid good money for a good photograph.*fn9
During the conversation, Moore purposely positioned himself so that appellant's back was to the fire. Appellant constantly looked over his shoulder at the blaze. At one point, appellant suddenly began speaking about the fact that he was clean and sober and trying to get his life straight, and that he had been in a rehabilitation center in Santa Cruz.
Approximately 90 minutes after Metcalf arrived at the fire, appellant came over to the command post and started listening to fire officials discussing their plan for the fire. There were a few other civilians in the area, but none of them appeared to listen to the firefighters' conversation. Appellant remained for at least 20 minutes.
Chrisman remained on the scene until around 9:00 p.m. A couple of hours after he saw appellant in the upper turnout, Chrisman saw appellant sitting on a rock in the lower turnout, watching the fire. Nearby, one of the engines was having a minor electrical problem. Appellant offered his services as an electrician. Chrisman and appellant talked for a few minutes, then Chrisman said he was preparing to leave on a new assignment at a new fire. Appellant was very interested in the size and location of that fire. Chrisman pointed appellant out to Souza and others. He had previously been shown photographs of appellant by people in the fire prevention bureau.
On Monday, August 20, Irene Burlingame was at work in the Hume Lake Ranger Office when she noticed appellant looking around the office. His hair was pinkish or reddish and reminded her of Bozo the Clown. He appeared unkempt. He said something like, " 'Looks like you have a fire, where is it?" which was obvious. Burlingame believed he also asked when it started. Appellant said he had to get up to the area to do some checking for a realtor friend of his who was considering selling or purchasing property. Burlingame explained there was no way anyone could get up in the area because of the fire, but he was very insistent. He said he was an electrical contractor and was going to check some underground lines. Burlingame, who knew the area, told him she did not believe there were any underground electrical lines up there. Appellant said he was a contractor and would be glad to work for the Forest Service. He said he was honest, did not do drugs, and was very dependable, unlike most electrical contractors. He remained in the office for about 10 or 15 minutes; as he was backing out the door, he sought to reassure her that he did not smoke, drink, or do drugs, and was very dependable.
Approximately eight or nine miles of Highway 180 were closed for five days. Around 9:30 or 10:00 p.m. on August 23, Caltrans Worker Hall was at the upper closure, sitting in his truck, when appellant approached and asked if he could drive in to the fire to take some pictures. Hall explained that was not allowed right then, but that there might be organized times when the main fire camp was allowing press and other folks in, and so appellant needed to go down to that camp and talk to people there. Hall had previously been advised by Forest Service personnel to watch for a maroon vehicle with a tan camper shell. Seeing that appellant had pulled up in such a truck, Hall attempted to get his name by saying he would pass it along. Appellant did not respond and said he knew where the fire camp was and would go that way. At some point, appellant mentioned that he was a free-lance photographer and electrician by trade, and that he lived in Fresno. When Hall commented that he should have been there when the fire started because some really good flames could be seen from the road, appellant said he had gotten pictures of that as well as of air tanker drops. Hall got the license number of the truck as appellant drove away, then notified his dispatcher. At the time, appellant had bright orange hair.
Captain Hinz, a USFS forest protection officer who had been a firefighter since 1966 and a fire investigator since 1978, was assigned to determine the cause and origin of the Highway 180 fire. Based on what he saw on the ground, the time of report, the time of initial attack, and burn indicators, Hinz estimated the origin time as 6:15 p.m.*fn10 He believed the fire could have burned for approximately 20 minutes before it was reported.
In the area of origin was a drop-off from Highway 180 into a gully or drainage area, then, toward the bottom of the fire, it sloped up to between 30 and 50 percent with a southwest aspect. The fuel types were brush and grass, with some trees. Hinz was able to locate an area of origin based on burn indicators, fire behavior, the weather, and the terrain. The fire initially ran parallel to the drainage, then continued on upslope. The area of origin was not in the ravine itself, but approximately six to ten feet away. It was 165 feet from the road. Hinz was able to narrow the area of origin to a circle five feet in diameter, although he had some reservations about it and could not determine a point of ignition because the scene had been so disturbed. Hinz eliminated all ignition sources with the exception of someone intentionally starting the fire, either by placing or throwing an ignited substance. It could have been either a hot set (flame to fuel) or delayed ignition device. The area of origin was the kind of spot someone would pick to start a fire if he or she really wanted to get it going, as the fire should have "ripped up" the slope. In this case, however, although eventually it became a large fire, it was a very slow burn due in large part to higher than usual fuel moisture.
The Highway 180 fire ultimately burned approximately 4,300 acres, including a cabin, other structures, and timber belonging to James Donovan; and structures and two travel trailers belonging to Darrell Knoy. One of the trailers served as the Knoy family's weekend residence. Donovan and Knoy both suffered substantial economic loss. Firefighters battled the blaze for almost two weeks.
Sporadic surveillance of appellant was being conducted by May of 2001. Souza was in charge; other agents involved were USFS Special Agents Launer and Matthews, USFS Criminal Investigator Hernandez, CDF Fire Captains Hanon, Applegate, and Day, and CDF Fire Captain Specialist Weger.
On August 26, 2001, surveillance on appellant began at 7:00 a.m. at appellant's residence on South Winery, in the Church and Chestnut area. The morning's surveillance took place mostly within the Fresno city limits. It then proceeded up Friant Road to Auberry Road. Appellant, who was driving an older, maroon or copper GMC pickup with a camper shell, stopped at a drugstore in Prather. He purchased four rolls of film, which he placed in the back of the truck.
From there, appellant continued on Auberry Road through Auberry, then turned left on Powerhouse Road toward North Fork. Prior to turning onto Powerhouse Road, appellant had been driving at normal speeds. After the turn, however, he significantly decreased his speed. After starting the descent toward Kerckhoff Reservoir, appellant pulled over into a turnout and stopped.*fn11 There was grass, scrub oak, and mixed brush there, and the topography was a moderately steep ravine with a culvert and small ditch at the bottom by the turnout.
Launer, who was with Matthews and who had been following appellant, drove on past, then pulled into a nearby driveway. A few minutes later, appellant passed his location, heading toward the reservoir. Launer followed appellant across the river and into Madera County, then pulled off the road next to the powerhouse. Meanwhile, Souza requested that someone go to the turnout where appellant had been and check for a fire. Matthews, who knew which turnout appellant had used, radioed directions to Hernandez.
At 2:10 p.m., Hernandez saw the fire starting in a small drainage area on the south side of the road. No one else was in the area. The fire was small and up the hill about 20 feet from the turnout in which appellant had stopped. The area was grassy, with scattered brush. Due to the distance and wind direction, there was no possibility it had been started by embers from the nearby North Fork fire. Hernandez immediately radioed to the surveillance team that he had a fire, then attempted to protect the point of origin from foot traffic. He also notified his dispatcher and requested that air support be diverted from the North Fork fire.
During the time Hernandez was locating the turnout appellant had used, Souza saw appellant turn off into a recreational area a quarter to half a mile beyond the powerhouse. Approximately 30 seconds after Matthews's final contact with Hernandez, and just as Souza was parking near the recreational area, Hernandez radioed that there was a fire. Souza and his team remained at their location approximately 10 minutes, during which time Souza observed a whisk of smoke on the Fresno County side of the river, coming up through the tops of some trees.
When Matthews heard the announcement of a fire, she looked out over the reservoir in the direction of the turnout appellant had used and was just barely able to see a wisp of smoke cresting over the tree line. A couple of minutes later, she and Launer spied appellant on foot, walking along Powerhouse Road in their direction. Appellant, who had a camera, looked across the reservoir and took some photographs in the direction of the turnout. He took photographs from more than one position. His attention appeared to be completely focused on the subject of his photographs. Appellant then turned and walked back in the direction from which he had come. A minute or two later, appellant's vehicle passed Launer's location, heading back toward Fresno County and the location of the fire. By this time, the smoke was building.
When Souza learned that appellant was again leaving in his vehicle, he and other members of the surveillance team followed him back into Fresno County and, when he pulled over into a turnout that was fairly close to the fire, the decision was made to arrest him. Matthews and Weger stopped him, and Matthews made the formal arrest. Launer-who arrived after appellant had been taken into custody-looked inside appellant's vehicle. In the back of the unlocked camper shell were various personal items, tools, and, in a coffee can by the tailgate, two or three propane lighters. In the front seat was a box of Marlboro cigarettes and a camera.*fn12
Ultimately, helicopters and firefighting crews were diverted to this fire from the North Fork fire that was burning several miles away. The Powerhouse fire burned just over three acres.
Following his arrest, appellant was advised of, and waived, his rights.*fn13 He immediately said he would not have started this fire. He related that he had been clean and sober for approximately 12 years 9 months, and had done nothing but try to live his life within the rules of society. He said that when he became sober, his problems went away. He admitted doing " 'a lot of stupid and crazy things' " when he was drinking and using drugs, but once he stopped, his life changed. Appellant said he had stopped smoking and been smoke free for many, many years. He admitted starting some fires when he was a youngster; he thought the first occurred when he was around 14. He said he started a roadside grass fire with a match. For the second fire, however, he used a time delay device made from a Marlboro 100 cigarette with matches. When Matthews asked how he learned to do that, he said he was taught by Danny Pruitt, another person who also started fires. Appellant said he was living in the San Bernardino area at the time. Appellant described the device to Matthews and explained how it worked. He admitted making such a device when he was a youngster and leaving it in wildland grass. Appellant said he placed the device in a field and had time to leave the area-approximately five minutes-before the fire started. Appellant said his reaction had been that using the device was a lot "sneakier" than just throwing a match, and he admitted lighting two to three fires in the field. Appellant told Matthews that if a Marlboro 100 with a filter was used, it left remains that investigators might find, and that for the field fires, he used filters. He said that Danny Pruitt lit a fire in a ravine and also near appellant's home. Appellant said he had been blamed for that fire. Appellant gave the impression that he was young when he saw his first big fire. He said his parents had taken him up to the San Bernardino mountains when there was a big fire, and that it impressed him and always stuck out in his mind. He related that he had heard people talking about it, and that their reaction was fear and respect.
Appellant told Matthews about three fires he started as an adult. The first was when he was living in a Christian community in Santa Cruz. He related that he had gotten very drunk and set a pile of furniture and trash on fire. He was angry at another resident at the community and those who ran the place. He related that he started another fire in Santa Cruz as an adult, using a cigarette lighter. He did it because he was mad at someone who, he had found out, was an informant for local narcotics officers. He lit a pile of trash in this person's garage on fire. Matthews was not sure of the location of the third fire, but believed it was in the general area of Santa Cruz. Appellant said it was a small fire started at a roadside. He said he was walking down the street and did not want to get into the car with some of his drinking friends, so he flipped a cigarette. That fire occurred in 1987; as far as Matthews could recall, it was the most recent fire in time for which appellant said he was responsible. At one point, appellant said that the fires he started before all had one thing in common: he took a book of matches and put a cigarette behind the heads of the matches as a delay, and " 'that was the M-O so to speak.'"
Appellant gave many reasons for starting fires, but in general used fire to strike back at people who treated him badly. Appellant said drugs and alcohol affected why he started the fires. Although appellant gave various reasons for turning his life around, one was that in 1988, he went to a detoxification center. He told Matthews about a lot of psychological strains, and said that within the past year, he had been in an auto accident near the Fresno area in which he had hit another vehicle. He said it really scared him, and so he would drive very slowly at certain times in certain areas. Appellant said he did electrical work, and related that he had done a lot in terms of fire prevention and letting the people for whom he worked know how to prevent fires.
Appellant said he was in the mountains on the day of his arrest because he wanted to go to Kerckhoff Reservoir and take pictures. He also said he wanted to go to the North Fork fire. Although he said many things about the fire on Powerhouse Road, the predominant theme was that he did not start it. Appellant said he had stopped to buy film, but then did not end up going to the North Fork fire because it was getting late. He had an appointment early the next morning and had to get back in time to get some rest. Appellant gave the first name of the person with whom he had the appointment, but could not remember the last name or the exact address. When Souza tried to get him to describe the appointment's location, he had difficulty doing so beyond that it was in Fresno. Appellant also said he changed his mind about going to the North Fork fire because he had some business-related telephone calls he needed to make concerning a job interview.
Appellant admitted pulling over where the fire started, but said he would not have done anything to hurt his possibilities for the next day. Toward the end of the interview, appellant stated, " 'I'm just trying to make a point. I mean, look, I have been honest with you guys. I mean, if I had anything to hide, then, you know, I would make you dig.'"
When Souza asked appellant about the Highway 180 fire, appellant said he had seen it in the beginning stages. He related that he was going to Sequoia National Park to go hiking, but when he got there, he learned it cost $10 and so he turned around. He did not feel the admission fee was right because he did not plan on being there very long, and in fact asked park officials whether there could be a reduced rate. He said it did not upset him to drive all the way up there and find he had to pay $10. On his way back down, he stopped at a bar with a restaurant. He had his cup and wanted some ice. He said that he continued down the road to a store further down because he wanted to get some water, and as he was walking out of the store, he saw smoke. He then drove back to the fire to see what was going on. He said he took pictures of the fire suppression activity, the aerial drops, and the fire in progress. At one point in the interview, appellant said he went to the Highway 180 fire that one time. At another point, however, he said he drove back at night a few nights before his arrest, but not all the way to the fire, to take pictures of the moonrise. He denied driving near the Forest Service office or going close to the fire zone.
At some point during the interview, appellant said he was taking pictures of fires because he knew a lady named Mary Johnston in Waco, Texas (where appellant previously lived), and he was trying to collect pictures from fires to send to her so she could use them in fire prevention-type activities in Texas. He said Johnston was an elementary school teacher, but she taught hundreds of children at certain times of the year. He did not have an address for her, but said he knew someone who might be able to find her so that he could send her the pictures.
Appellant was asked about the Highway 168 fire. He said he had been up Highway 168 to Mono Wind, but had never been on the Four-Lane. He said he only knew the park-and-ride by the Auberry turnoff, but had never been up any farther. Appellant said he saw a fire about a year before, and that he thought it was around Highway 180. According to Matthews, however, he was referring to the Highway 168 fire. Appellant said he had driven up a multi-lane road and seen a fire burning. There were numerous emergency personnel, and he pulled over, took pictures, and talked to a few people. With respect to why he had denied being familiar with any fire on Highway 168 beyond the park-and-ride, appellant said he did not keep a log of his movements, and that he remembered seeing a fire but never knew the name of the area. He said that if Souza, who was asking the questions, had said something about Auberry, it would have rung more of a bell.
During the interview, Souza asked appellant if there were any cigarette lighters in his truck. Appellant said there were, as he kept some in the bed of his pickup for use in his profession. Appellant explained that as an electrician, he needed to have matches and cigarette lighters to perform heat-wrapping to repair damaged wires or to seal connections.*fn14 Souza then asked if there were any cigarettes in his truck. Appellant said yes, that a customer with whom he was working on a business deal left them in his vehicle a month earlier. Appellant said the person's name was John, but that he did not obtain the last name. Appellant said he had gone to John's house in the Shields and Hughes area. He said it was necessary to turn down several side streets in that general area to get to John's house, but appellant could not recall offhand exactly how to get there. Appellant said he did not keep the address.*fn15 Appellant said he gave John a ride, then noticed a pack of cigarettes lying on the seat of his pickup. Appellant put them in his briefcase, having been a nonsmoker for more than 11 years. When asked why he was keeping the cigarettes, appellant first responded, " 'Huh?' " When the question was repeated, he said he might know someone someday who was a smoker and who might want the cigarettes, in which case appellant would give them to that person. Appellant said he had pretty much forgotten the cigarettes were in his briefcase.
At some point during the interview, Matthews was talking about how fires could start quickly or could be delayed. Appellant said he had already told them the one and only way he ever knew to delay the start of a fire, and that if someone were to find a device like that-which he had been told would leave remains-then " 'shame on" appellant. Unless someone found something at the scene that tied back to his past, however, it was merely a " 'bad coincidence' " that he was in the area, but that did not make him guilty of starting a fire. When the subject came up about having a deputy transport appellant, appellant protested that there was not one person who could say he was appellant do it.
On the evening of August 26, a search warrant was executed at appellant's place of abode. A loaded shotgun was found in his room, as were numerous photographs of different fires in various stages of burning. Some were in a packet labeled " 'Fire, Auberry, 2000.'" Also found were matchbooks, "aim and flame-type" lighters (i.e., long, wand-type lighters), and newspaper articles depicting firefighters.
On August 27, Hanon, Weger, and CDF Investigator Vaughn searched appellant's vehicle, which had been secured at a garage in Auberry. A camera loaded with film was found in the front.*fn16 In the back compartment were tools, a camera bag inside which was a roll of exposed film, a bag from the drugstore in Prather with a receipt dated August 26, and a four-pack of film. Also in the back, in a coffee can in which appellant kept nails, were an "aim and flame-type" lighter and a Bic-type lighter. In an inside pocket of a small leather bag in the back were a package of stale Marlboro cigarettes and two books of matches.*fn17
After the vehicle search, the investigators returned to the turnout. There, Weger found a Marlboro cigarette butt, which he did not see on August 26. Although it appeared to have been twisted off and not smoked, appellant was excluded as the donor of the small amount of DNA recovered from it.
Meanwhile, fire investigators were on the scene. Hinz arrived as fire suppression crews were finishing up. An area near the road had been cordoned off. Hinz interviewed Hernandez, but did not enter the cordoned-off area because the area was in shadows and Hinz needed good daylight.
Day spent the night to prevent entry into the cordoned-off area, then Hinz returned the next morning. He looked the area over for burn patterns and forward movement of the fire, as forward movement can be followed back to the origin. In determining the area of origin, Hinz took into account burn patterns, vegetation types, topography, and the weather. He and his team, which consisted of Day and United States National Park Service Ranger Gebicke, were able to determine that the fire came from somewhere inside a 10-foot-square area within 10 feet from the edge of the turnout. By following the burn indicators, they were able to identify a four-foot-square area that showed a high rate of incineration. Such complete consumption made it difficult to find the actual ignition source. If the ignition source was a device made of matches and a cigarette, there was a high probability it was consumed. In addition, a branch fell across the area, adding to the disruption of the ash bed. Even so, Hinz and his team found some ash that was more like paper, and possibly even a tiny staple such as would be found in a matchbook. Although there was too much consumption to tell for sure, the ash appeared foreign to the surrounding ashes.*fn18
As a result of his investigation, together with his training and experience, Hinz was able to eliminate all causes other than an intentionally-started fire.*fn19 Intentionally-started fires are either hot set (i.e., started immediately) or set through use of a delayed ignition device. Although this fire could have been either a hot set fire or one set using a delay device, based on what Hinz saw on the ground, the rate of spread, the time frames, and the last time anyone was seen in the area, he believed some sort of delay device, that was tied or put together in some fashion, was used. He acknowledged, however, that it would be extremely difficult to prove, given the amount of incineration. All he could say with certainty, having eliminated all other possible causes, was that the fire was set either by a time device or was hot set.
The area of origin was near the turnout used by appellant, a short distance from the road, in the small drainage ditch. Because of air movement up the drainage area and the fact fire burns uphill faster than downhill, the drainage area made the side of the road on which the fire was started-the uphill side-a better place than the other side of the road at which to start a fire that would travel.
On August 28, Souza and Weger interviewed appellant again. This time, appellant said he happened to be on the Four Lane in August of 2000 because he was going to Shaver Lake. He said he had been involved in an accident earlier that day, and that he was upset and decided to go up to the lake. However, his car began making an unfamiliar noise and so he decided to turn around and go home because he was concerned there was a mechanical problem. Appellant said he was driving up the Four Lane when this occurred. Appellant had originally said he went straight to Mono Wind Casino and, after a short time, came out and saw smoke. When Souza reasked him, however, and said there was a witness who could place him at the scene of the fire, appellant thought about it, then stated he had pulled into the turnout that Souza had related was the general area of origin, and had gone into the brush and urinated and then got back into his truck and continued on to the casino. Appellant said there was no fire at that time. Once he saw the smoke, he decided to drive back to the fire to take some photographs.
Jeff Hanlon reported a fire on Highway 168 shortly after 3:00 p.m. on August 13, 2000. The fire was not too big at the time-perhaps the size of a small car and as high as a nearby tree-and was approximately 30 feet from a turnout. Hanlon saw a tall, lanky man in jeans up on the hill. He appeared to be doing something with the fire. There was an older gray truck parked in the area with a man standing next to it. No fire equipment was present yet, nor were any cars starting to stop on the highway to watch the fire. Both men had dark hair.
Warner Dozier, who had spent a summer as a firefighter for the Forest Service, observed the Highway 168 fire from a large turnout near the Beale Fire Road. He reached that location just before the first air tanker arrived. Shortly after, he heard what sounded like a couple of firecrackers off in the distance, down and to his right. Shortly after that, he saw two or three columns of smoke rising off the edge of the road, one-quarter to three-eighths of a mile from the main fire and 20 to 25 feet apart. An air tanker extinguished that portion of the fire. Given their location vis-a-vis the main fire and the direction of the wind, Dozier did not believe the new fires started because of the main fire. The three columns of smoke all rose within 10 to 15 seconds of each other; Dozier did not see anything that would account for them starting by natural causes. Instead, it appeared they were started on purpose.*fn20
Alvino Terronez, Jr., had known appellant for years. At times, including that of his arrest, appellant resided with the Terronez family. To Terronez's knowledge, appellant's hobby was photography, and appellant took pictures of a number of subjects. Appellant also enjoyed barbecuing. There was a large barbecue in the Terronezes' backyard.
Then-CDF Battalion Chief Subia testified at the preliminary hearing that he was the primary cause-and-origin investigator for the Highway 168 fire.*fn21 Utilizing burn indicators, he determined that the fire started in some trees near a turnout and then moved uphill. After eliminating all natural causes, he formed the opinion that the fire was deliberately set. He found a match-and-cigarette ignition device within the area of origin, and determined it was the cause of the fire. The device was at the base of a drainage slope, which is a good place to start a fire for rapid acceleration. The device was approximately 50 to 75 feet uphill from the turnout area.
At CDF's request, Officers Dust and Koenig of the California Highway Patrol's internal affairs section subsequently conducted an internal investigation of Subia's conduct with respect to the Highway 168 fire, including whether he himself manufactured the ignition device he claimed to have found.*fn22 Although Subia claimed to have found the device on or about August 15, he dated the evidence tag August 13 and testified, at the preliminary hearing, that he found the item August 14. Photographs of the device on the ground were dated, by the camera, August 16 and 17. There were also inconsistencies in Subia's statements, and there were no negatives for the photographs Subia took of the device or records of how those photographs were taken. There were issues concerning Subia's claimed education and experience, as well as his evidence collection procedures and documentation. On his CV, Subia represented that he had Associate of Arts degrees in fire technology and criminology from College of the Sequoias, and a Bachelor of Science degree from Fresno State University. In reality, he possessed neither degree and there was no evidence he ever attended Fresno State. Although Subia explained those were his educational goals, Dust concluded there was an attempt to deceive.
With respect to maintenance of evidence logs, the investigation was limited to the Highway 168 fire and concluded that proper procedures were not followed. There was also some question as to whether the ignition device was properly collected. In addition, Dust questioned Subia about his production of the preliminary fire report for the Highway 168 fire. At two points in the interview, Subia gave different answers concerning when he wrote the report. Although Subia said his handwritten notes were contained in the case file, Dust was unable to find any notes or other documentation to show that Subia wrote the Highway 168 preliminary fire report prior to the Powerhouse fire.
Dust concluded Subia's evidence and documentary procedures were poor, and that Subia did a very poor job of investigating the Highway 168 fire. Dust did not, however, form the opinion that Subia fabricated the ignition device or that he lied about finding it on August 15. Given Subia's documentation problems, it did not surprise Dust that Subia placed the date of the fire, instead of the date of discovery, on the evidence tag or that the date may have been set wrong on the camera. The records were so poorly kept that Dust could not tell whether Subia was lying or simply kept no records concerning the device.
Koenig formed the opinion that Subia was being dishonest during the interrogation. However, he could not say whether Subia was being dishonest about his claim that he found the ignition device. The investigation revealed more evidence that he actually found it than that he did not find it. Koenig believed Subia had a motive for lying about the circumstances surrounding his finding of the device, the motive being that he was a very poor investigator and failed to document any portion of his investigation or the chain of custody for the evidence. About some issues, however, Koenig believed Subia had been negligent, as opposed to untruthful, in the routine completion of his investigative duties. Aside from the ignition device, Koenig found no other piece of evidence during the course of the investigation which he suspected had been tampered with.
As a result of the investigation, Subia was terminated from his position with CDF. Because Subia's CV was apparently false and questions were raised with regard to the device allegedly discovered at the Highway 168 fire, there was a general reconsideration of the case by the district attorney's office to determine whether the integrity of other evidence in the case had been compromised. As a result, the prosecutor's investigator made a number of new inquiries, but was unable to find any other evidence that appeared to have been compromised by Subia. It was possible other evidence was tainted; Subia was the chief investigating officer on all three of the fires until he was removed in late February or early March 2002. As such, he was the person in possession of the physical evidence, so the opportunity existed for him to compromise that evidence. The district attorney's office did its best to discover any taint and disclose it. The district attorney's investigator found Subia to be a liar or of doubtful credibility with regard to his CV and the ignition device he claimed to have found at the Highway 168 fire. The investigator found no other tainted items of evidence.
Appellant testified in his own behalf that he was a self-employed electrical contractor. He had lived in Fresno since October 1998; prior to that, he lived in Waco, Texas, from 1993 to 1998.
It was appellant's custom to photograph his jobs from start to finish, both to document his work in case of later question, and also to serve as a photographic resume. When he was contacted by a potential customer, he would take down the name, telephone number, and address, then go to that person's location and give an estimate. If he did not get the job, he would discard the information. When appellant gave his statement following his arrest, he could not recall the name of the person with whom he was supposed to meet because the information was in his work folder, which was not then at his disposal.
Appellant testified that photography was a long-standing hobby of his, dating back to his teen years.*fn23 He especially liked to take pictures of theme parks, nature, and people. He had over 1,000 photographs in his collection.
Appellant enjoyed going to casinos. At one point, he went to Mono Wind every weekend to play bingo, but stopped going so often when bingo was eliminated. The year before his ...