(Super. Ct. No. CRF065858)
The opinion of the court was delivered by: Raye , P. J.
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury convicted defendant Robert Eric Eason of 12 counts of arson of forest land (Pen. Code, § 451, subd. (c) -- counts 1-12)*fn1 and two counts of possession of an incendiary device (§ 453, subd. (a) -- counts 13-14). The jury also found true as to each arson count an enhancement for starting a fire with a device designed to accelerate or delay the fire. (§ 451.1, subd. (a)(5).) The jury hung on four counts of arson of forest land (counts 15-18), and a mistrial was declared as to those counts. Defendant was sentenced to prison for 40 years.
On appeal, defendant contends the evidence is insufficient to prove any of the arson offenses, and even if there were sufficient evidence to so prove, there is not sufficient evidence to support the enhancements. In supplemental briefing, defendant contends his counsel's failure to move to suppress, on Fourth Amendment grounds, evidence obtained by fire investigators who, without a warrant, monitored his movements for approximately two months by means of a global positioning satellite device (GPS device) covertly attached to his vehicle deprived him of effective assistance of counsel. We reject defendant's contentions.
The 12 arson fires of which defendant was convicted occurred from July to October in 2006 (unless otherwise stated, all dates refer to the year 2006). During this time, defendant lived on his parents' rural property in Guinda with his wife and children, aged 11, 7, and 3. Defendant worked as a security guard at Cache Creek Casino from 4:30 p.m. to 12:30 a.m., and he was a volunteer firefighter for the Capay Valley Volunteer Fire Department (CVVFD).
Errett Crum knew defendant from their work as security guards at Cache Creek Casino and volunteer work as firefighters. Although Crum could not recall just when, at some point defendant had told him that someone was setting fires in the Capay Valley using a mosquito coil as a delay device.*fn2 Defendant explained to him that matches could be attached to one end of the coil, the coil could be lit at the other end, the coil would burn down and ignite the matches, and nothing would be left of the device.
Around 10:30 to ll:00 p.m. on July 29, Dean Hogan was driving with his wife on Highway 16 to the Cache Creek Campground when they saw a grass fire on the roadside near Windy Point Bridge. Using a blanket and ice from his ice chest, Hogan put out the fire. Roadside camera HD-11, located 1.9 miles from the fire, showed defendant's vehicle driving at 10:43 p.m. Fifteen vehicles passed the camera in the two hours preceding the fire.
Alan Carlson, a deputy chief and investigator for the California Department of Forestry and Fire Protection (CAL FIRE), and Dave Harp, a battalion chief also with CAL FIRE, investigated the fire and concluded it was caused by arson.
Defendant testified that even though the camera showed his vehicle in the vicinity of the fire that night, he had no memory of being there but speculated that he might have just gone for a drive.
Creek (Count 2) and Rumsey (Count 3) Fires
During the early afternoon of July 30, defendant and other firefighters from CVVFD responded to a water rescue near Windy Point Bridge. Camera HD-11 photographed defendant's vehicle going to the rescue at 12:52 p.m. and returning at 1:51 p.m. The same camera showed defendant driving into Rumsey Canyon at 2:57 p.m. and returning at 3:03 p.m. At 3:30 p.m., CVVFD firefighters were dispatched to two roadside fires on Highway 16 near Windy Point Bridge. The fires were about 100 yards apart and on opposite sides of Highway 16. Investigators Carlson and Harp concluded that each fire was caused by arson.
Defendant testified he had driven by the locations of the fires because he was looking for equipment left behind earlier at the water rescue.
Shortly after midnight on August 10, CAL FIRE officers attached a GPS device to defendant's vehicle.
At 4:38 p.m. on August 10, CAL FIRE officers were dispatched to a roadside fire on Highway 16, near Road 82. The fire was extinguished by firefighters from CAL FIRE, the Rumsey Rancheria Fire Department, and CVVFD. Investigator Christian Abballo could not eliminate the fire's having been started by a particle from a faulty vehicle exhaust system, nor could he eliminate arson as a cause of the fire. Investigator Carlson attributed the cause of the fire to arson.
The GPS device attached to defendant's vehicle showed defendant's vehicle passing the fire location on Highway 16 at 4:12 p.m. at a speed of 51 miles per hour, doing a U-turn at 4:13 p.m., and passing the fire location again at 4:16 p.m. at a speed of 53 miles per hour. Defendant's vehicle made another U-turn at 4:18 p.m., passed the location of the fire about a minute later, and then returned home.
Defendant testified that at the time of this fire he believed he was dropping off his children at the school where his wife worked.
On August 23, about 5:30 p.m., Mark Harman saw smoke coming from behind a stack of hay bales on his property near Road 49. Checking, Harman found a fire about 4 feet by 10 feet on the grass next to the bales. He threw water on the fire and then called 911. CVVFD firefighters, including defendant, responded to the call and checked the remnants of the fire. Fire Investigator Gary Prather could eliminate as the cause of the fire neither a vehicle emission nor arson. However, Investigator Carlson disagreed, concluding the cause of the fire was arson.
The GPS device showed defendant's car was driven on Highway 16, turned onto Road 59, turned again onto Road 49, turned once more onto Road 53, and then turned back onto Highway 16 without stopping. Defendant's vehicle drove by the location of the fire at 4:59 p.m., slowed to 19 miles per hour as it approached that location, then sped up and returned home at 5:04 p.m.
Defendant testified he passed the fire area because he was taking an ...