APPEAL from a judgment of the Superior Court of San Diego County, Herbert J. Exarhos, Judge. (Super. Ct. No. SCE286557)
The opinion of the court was delivered by: Irion, J.
CERTIFIED FOR PUBLICATION
A jury convicted James Kurtenbach of conspiracy to commit arson (Pen. Code, § 182, subd. (a)(1));*fn1 arson causing great bodily injury (§ 451, subd. (a)); concealing or knowingly failing to disclose an event affecting an insurance benefit (§ 550, subd. (b)(3)); and vandalism (§ 594, subds. (a), (b)(1)). The jury also made true findings that in committing the arson Kurtenbach used a device designed to accelerate the fire (§ 451.1, subd. (a)(5)) and acted for pecuniary gain (§ 456, subd. (b)). The trial court imposed a prison sentence of 15 years eight months.
Kurtenbach contends (1) the trial court prejudicially erred by failing to instruct the jury regarding aiding and abetting with respect to the count for arson causing great bodily injury; (2) insufficient evidence supports the conviction for arson causing great bodily injury because the only person injured in the fire was an accomplice to the arson; (3) pouring gasoline in a structure prior to starting a fire does not support a finding that the arson was "caused by use of a device designed to accelerate the fire" for the purposes of the sentencing enhancement set forth in section 451.1, subdivision (a)(5); (4) the trial court erred in instructing the jury on the vandalism count; (5) the conviction for concealing or knowingly failing to disclose an event affecting an insurance benefit (§ 550, subd. (b)(3)) violated his federal constitutional privilege against self-incrimination and his right to due process; (6) the sentences imposed for the vandalism conviction and the conviction for concealing or knowingly failing to disclose an event affecting an insurance benefit should have been stayed under section 654 because they arose from the same course of conduct as the arson conviction; and (7) in imposing the upper term for the arson conviction, the trial court improperly relied on aggravating factors that were elements of the crime.
We conclude that the trial court should have stayed execution of the eight-month sentence for the vandalism conviction pursuant to section 654, but that Kurtenbach's remaining arguments lack merit. We therefore direct the trial court to modify the judgment to stay execution of the sentence on the vandalism conviction. As modified, the judgment is affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
A house that Kurtenbach owned as a rental property was destroyed by fire in the early morning of October 31, 2008. The fire began with a powerful explosion and quickly proceeded to engulf the entire house in flames and destroy it. A neighboring house sustained over $100,000 in damage. Joseph Nesheiwat, who was in the house to ignite the fire, died in the explosion and fire.
Nesheiwat was an employee at a gas station that Kurtenbach owned. In their investigation of the incident, the police obtained information leading them to suspect that Kurtenbach had solicited Nesheiwat to burn down the house. According to arson experts, the fire was fueled by gasoline.
Kurtenbach was tried before a jury on charges of murder (§ 187, subd. (a)); conspiracy to commit arson (§ 182, subd. (a)(1)); arson causing great bodily injury (§ 451, subd. (a)); presenting a false insurance claim (§ 550, subd. (a)(1)); concealing or knowingly failing to disclose an event affecting an insurance claim (§ 550, subd. (b)(3)); and vandalism (§ 594, subds. (a), (b)(1)).
Among the evidence at trial, Kurtenbach's son, Justin, testified that Kurtenbach had asked him and Nesheiwat to burn down the house, but that Justin had declined to participate. Justin testified that he heard Kurtenbach and Nesheiwat talking about using gasoline to fuel the fire. Nesheiwat's brother, John, testified that at the request of Kurtenbach he drove his brother to the house early in the morning of October 31, 2008, so that his brother could ignite the fire, and that Kurtenbach had promised to compensate him and his brother for their participation. According to John, Kurtenbach told him that he and Nesheiwat had poured gasoline in the house. Witnesses saw Kurtenbach fill up jugs with gasoline and put them in his truck one or two days before the fire.
Among the evidence that Kurtenbach presented in his defense was the testimony of a witness who stated that Nesheiwat had said he was going to burn down the house, without Kurtenbach's knowledge, to help Kurtenbach financially.
With respect to the counts relating to insurance fraud (§ 550, subds. (a)(1), (b)(3)), the evidence was that Kurtenbach's homeowner's insurance agent had filed a claim for Kurtenbach after she learned of the fire from a source other than Kurtenbach, and that Kurtenbach thereafter spoke with an insurance adjuster about facts relating to the claim. Kurtenbach's last communication with the insurance adjuster was in December 2008, when Kurtenbach informed the adjuster that he was represented by legal counsel.
In a motion made pursuant to section 1118.1 after the close of the People's evidence, the trial court entered a judgment of acquittal on the charge of presenting a false insurance claim (§ 550, subd. (a)(1)) on the ground of insufficient evidence, as there was no evidence that Kurtenbach filed a claim or directed someone to do so on his behalf. The other insurance fraud claim -- based on the allegation that Kurtenbach concealed or knowingly failed to disclose an event affecting an insurance benefit (§ 550, subd. (b)(3)) -- was presented to the jury.
The jury was unable to reach a verdict on the murder count, but it convicted Kurtenbach on the remaining counts and made true findings that in committing the arson, Kurtenbach used a device designed to accelerate the fire (§ 451.1, subd. (a)(5)) and acted for pecuniary gain (§ 456, subd. (b)). The trial court declared a mistrial with respect to the murder count, and that count was eventually dismissed with prejudice. The trial court sentenced Kurtenbach to prison for a term of 15 years eight months.
A. The Trial Court Did Not Prejudicially Err by Omitting a Jury Instruction on Aiding and Abetting for the Arson Count
We first consider Kurtenbach's contention that the trial court prejudicially erred by failing to instruct the jury regarding aiding and abetting with respect to the count for arson causing great bodily injury.
Kurtenbach was charged in count 3 with committing arson causing great bodily injury. According to the applicable statute, "a person is guilty of arson when he or she willfully and maliciously sets fire to or burns or causes to be burned or who aids, counsels, or procures the burning of, any structure." (§ 451.)
According to the prosecutor's closing argument, Kurtenbach was guilty of arson on the theory that he "counseled, helped or caused" the burning of the house. The jury was accordingly instructed that to prove arson causing great bodily injury, the People must prove, in addition to the great bodily injury, that "[t]he defendant set fire to or burned or counseled, helped or caused the burning of a structure" and that "[h]e acted willfully and maliciously . . . ." The trial court instructed the jury on the principles of aiding and abetting, but it stated that the instruction applied only to the vandalism count.
Relying on People v. Sarkis (1990) 222 Cal.App.3d 23 (Sarkis), Kurtenbach contends that because the jury was instructed that he could be found guilty of arson under the theory that he "counseled" or "helped" the burning of a structure, the trial court was required to instruct, sua sponte, on the principles of aiding and abetting with respect to the arson count.
We note initially that Sarkis does not, as Kurtenbach contends, stand for the proposition that when a jury is instructed that a defendant may be found guilty of arson on the theory that he "counseled" or "helped" the burning of a structure, the trial court must sua sponte instruct the jury on the principles of aiding and abetting. On the contrary, Sarkis expressly declined to reach that issue. In Sarkis, the jury was instructed on the definition of arson, to include someone who " 'aids, counsels or procures the burning of any structure.' " (Sarkis, supra, 222 Cal.App.3d at p. 27, italics omitted.) But it was also instructed that the defendant could be found guilty if he " 'aided and abetted the commission of the offense.' " (Ibid., italics omitted.) Sarkis held that the trial court erred by introducing the concept of aiding and abetting liability but not providing a definition of aiding and abetting, including the concepts of knowledge and intent. (Id. at p. 28.) Sarkis expressly stated, "[w]e are not presented with, and do not pass upon, the question of the intent required of one who aids, counsels or procures the burning of a structure as defined in [the arson statute]." (Id. at p. 28, fn. 2.) Sarkis explained that "[w]hether such intent is identical to that required of one who 'aids and abets' the commission of other types of crimes is immaterial here in view of the fact the jury was instructed" that the defendant could be found guilty under a theory of aiding and abetting, and that fact alone "warrants our conclusion the omitted instruction [defining aiding and abetting] should have been given." (Ibid.)*fn2
In this case, we need not, and do not, reach the issue that Sarkis declined to reach, namely whether the trial court must instruct on the principles of aiding and abetting when an arson prosecution proceeds under the theory that the defendant counseled, aided or procured the burning of a structure.*fn3 Here, as we will explain, any error in failing to give such an instruction was harmless under the applicable standard set forth in Chapman v. California (1967) 386 U.S. 18, 24. (See People v. Sengpadychith (2001) 26 Cal.4th 316, 324 ["a trial court's failure to instruct on an element of a crime is federal constitutional error [citation] that requires reversal of the conviction unless it can be shown 'beyond a reasonable doubt' that the error did not contribute to the jury's verdict" (italics omitted)]; Sarkis, supra, 222 Cal.App.3d at pp. 28-29 [applying Chapman harmless error standard when trial court erred in failing to instruct on definition of aiding and abetting].)
As reflected in the jury instructions on aiding and abetting that the trial court provided for the vandalism count, if the jurors had been instructed on the theory of aiding and abetting as applied to the arson count, they would have been instructed that the People must prove, with respect to Kurtenbach's state of mind, that "[t]he defendant knew that the perpetrator intended to commit the crime," and "[b]efore or during the commission of the crime, the defendant intended to aid and abet the perpetrator in committing the crime . . . ."*fn4 The law requires that "an aider and abettor act with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense." (People v. Beeman (1984) 35 Cal.3d 547, 560, italics omitted.) Focusing on these requirements, Kurtenbach argues that because of the absence of an aiding and abetting instruction for the arson count, "the jury was never instructed on the need to find [Kurtenbach] had knowledge of [Nesheiwat's] intent to burn the house at the time he did so." Kurtenbach asserts that the jury thus may have convicted him of "helping" or "counseling" or "causing" the burning of the house, even if they concluded that Kurtenbach unwittingly inspired Nesheiwat to commit arson.*fn5
In light of findings that the jury necessarily made in convicting Kurtenbach of arson and conspiracy to commit arson, any error in omitting an aiding and abetting instruction for the arson count was harmless beyond a reasonable doubt. (See People v. Garcia (2001) 25 Cal.4th 744, 761 [an error in failing to instruct on an element of the offense is harmless "when the reviewing court can determine beyond a reasonable doubt, based on jury findings that may be inferred from other instructions, that the instructional error did not contribute to the verdict"].) According to the applicable instructions, in convicting Kurtenbach of conspiracy to commit arson in count 2, the jury necessarily found that Kurtenbach "intended to agree and did agree with John Nesheiwat and Joseph Nesheiwat to commit arson" and that "[a]t the time of the agreement, [Kurtenbach] and one or more of the other alleged members of the conspiracy intended that one or more of them would commit arson . . . ." In addition, according to the instruction for the arson count, the jury necessarily found that Kurtenbach "acted willfully and maliciously" when he "set fire to or burned or counseled, helped or caused the burning of a structure."
In light of the jury's findings that Kurtenbach (1) intended that an arson be committed; and (2) acted willfully and maliciously in connection with the arson, we conclude that, had the jury been instructed that the aiding and abetting instructions applied to count 3, it necessarily would have found that Kurtenbach "knew that the perpetrator intended to commit the crime" and "intended to aid and abet the perpetrator in committing the crime," as required under the principles of aiding and abetting. The jury's findings show that it unequivocally rejected defense counsel's argument that Kurtenbach unknowingly inspired Nesheiwat to commit arson as a favor to him, and instead concluded that Kurtenbach knowingly participated in a plan to burn down the house. Therefore, any error in failing to instruct on an aiding and abetting theory for the arson count was harmless beyond a reasonable doubt.
B. Injuries to an Accomplice Are Not Excluded from the Offense of Arson Causing Great Bodily Injury
Kurtenbach contends that insufficient evidence supports a finding that he committed arson causing great bodily injury in violation of section 451, subdivision (a), because the only great bodily injury caused by the ...