APPEAL from the Superior Court of San Bernardino County. Bryan Foster, Judge. (Super.Ct.No. FSB905099)
The opinion of the court was delivered by: McKINSTER Acting P. J.
Opinion following rehearing
CERTIFIED FOR PUBLICATION
Reversed and remanded with directions to dismiss.
A jury found Richard James Goolsby, defendant and appellant (hereafter defendant), guilty of arson of an inhabited structure in violation of Penal Code section 451, subdivision (b),*fn1 and further found true the allegation that he caused more than one structure to burn within the meaning of section 451.1, subdivision (a)(4), based on evidence that defendant set a fire that caused two motor homes to burn.*fn2 Because the felony conviction constituted defendant's third strike, the trial court sentenced him to the mandatory term of 25 years to life in state prison, and also imposed various enhancements after first finding those allegations true.
Defendant raises various challenges to the jury's verdict and to his sentence. We agree with his assertion that his motor home is not a structure.*fn3 Therefore, the evidence that defendant set fire to his motor home does not support the jury's verdict finding defendant guilty of committing arson of an inhabited structure, and also does not support the jury's true finding on the multiple structure enhancement. Moreover, arson of property (§ 451, subd. (d)), the only other crime on which the trial court instructed the jury, is not a lesser included offense to the charged crime. Therefore, we cannot exercise our authority under section 1181, subdivision 6, to modify the judgment by reducing defendant's conviction to a lesser included crime. Our only option, under the circumstances of this case, is to reverse the judgment based on insufficiency of the evidence and direct the trial court to dismiss the charge.
The facts are undisputed, and only a few are necessary for our resolution of the issues defendant raises on appeal. Defendant and Kathleen Burley lived together in what was one of several motor homes defendant owned and had parked on a vacant lot. On November 28, 2009, defendant and Burley got into an argument. Sometime not long after the argument, in which defendant and Burley each called the police on the other, defendant used a vehicle to push an inoperable motor home next to the one in which he and Burley were living and where Burley then was sleeping. Defendant used gasoline to set the inoperable motor home on fire. After Burley got out with her dogs, the fire spread to the motor home in which she had been sleeping. The fire destroyed both motor homes.
Additional facts will be recounted below as pertinent to the issues defendant raises on appeal.
THE EVIDENCE IS INSUFFICIENT TO SUPPORT THE JURY'S VERDICT FINDING DEFENDANT GUILTY OF ARSON OF AN INHABITED STRUCTURE
Defendant contends, and we agree, that the evidence was insufficient to show that the motor home in which he and Burley were then living was a structure. Therefore, the evidence that he set fire to or caused that motor home to burn does not support the jury's verdict finding ...