APPEAL from a judgment of the Superior Court of Tulare County, No. VCF222476A Brett R. Alldredge, Judge.
Nuttall Coleman & Wilson; Law Office of Roger D. Wilson and Roger D. Wilson for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and John A. Bachman, Deputy Attorneys General, for Plaintiff and Respondent.
Section 386 of the Penal Code proscribes the unlawful construction or maintenance of a fire protection system in a manner which threatens the safety of any occupant or user of a structure in the event of a fire. Since no reported case has ever addressed this crime, we must interpret the statute as a matter of first impression. Our opinion holds that Penal Code section 386 requires proof of the defendant’s specific intent to either (1) install a fire protection system which is known to be inoperable or (2) impair the effective operation of a fire protection system. We further hold the word “impair, ” as used in the statute, means to make worse or diminish in some material respect.
Appellant, Danny Williams, was convicted by a jury on twenty-six counts of violating section 386 and one count of conspiracy to violate section 386. He was also found guilty of grand theft (Pen. Code § 487, subd. (a)),  diversion of construction funds (§ 484b), and twenty-six misdemeanor charges for violating an assortment of regulations of the State Fire Marshal. The jury returned a true finding of an enhancement allegation pursuant to section 12022.6, subdivision (a)(1), for victims’ losses in excess of $65, 000.
Williams asserts multiple grounds for reversal of the jury’s verdict, ranging from insufficient evidence and instructional error to prosecutorial misconduct, juror misconduct, and ineffective assistance of counsel. We agree the convictions under section 386, as well as the single count of conspiracy and true finding on the enhancement allegation under section 12022.6, must be reversed and dismissed for lack of sufficient evidence. The judgment is affirmed as to all other counts.
FACTUAL AND PROCEDURAL BACKGROUND
Danny Williams worked as a contractor in the fire protection industry. He held a class C-16 specialty license issued by the Contractors State License Board which authorized him to install and service all types of fire protection systems. As the Responsible Managing Officer under his license, Williams operated American Fire Services, Inc., dba American Fire Protection (“American Fire Protection”).
American Fire Protection specialized in the inspection and maintenance of portable fire extinguishers, sprinkler systems, and other types of automatic fire suppression systems. Headquartered in Camarillo, California, the company’s staff of approximately six to eight employees provided services to customers throughout the state. One of those employees, Ken Speck, lived in Exeter and was responsible for the company’s sales and services in Tulare County. It was through Ken Speck that Danny Williams came into contact with the main victim in this case, Svenhard’s Swedish Bakery (“Svenhard’s”).
Svenhard’s is a high volume bakery that sells pastries to grocery stores and other retailers. In approximately 2007, the company took steps to relocate its manufacturing operations from Oakland to Tulare County. It acquired a vacant factory in Exeter, estimated to be “five acres under roof, ” which it planned to convert into a commercial bakery and production plant.
The Exeter facility was equipped with an automatic fire sprinkler system consisting of approximately 4, 000 to 5, 000 sprinkler heads throughout six zones of the building. The zones were designated by system “risers, ” referring to the main pipes that rise out of the floor and supply water to sprinkler heads located within a certain area. The system, however, was decades old and had not been inspected or serviced in many years.
Svenhard’s hired a fire protection contractor called Jorgensen and Company (“Jorgensen”) to perform a comprehensive inspection and assessment of its sprinkler system. Numerous deficiencies were found in all six zones/risers, such that the overall system failed inspection, i.e., fell below the standards established by the National Fire Prevention Association (NFPA) and the California Code of Regulations (Cal. Code Regs., tit. 19, §§ 901-906). An informal evaluation by the Tulare County Fire Department confirmed the system was in need of extensive repairs.
Jorgensen eventually prepared a written proposal to repair the sprinkler system. Jorgensen’s bid of May 8, 2008 was broken down in terms of work and price for each zone, Riser 1 through Riser 6, for a total cost of $147, 897. The proposal was not accepted. According to its representatives, Svenhard’s had a “shoestring budget” for the project and wanted to find a more cost effective bid.
Coincidentally, the company soon received a visit from Ken Speck of American Fire Protection, who made a “cold call” to the Exeter facility hoping to sell fire extinguisher services. Speck spoke with a manager who explained the company’s needs with regard to the sprinkler system. Mr. Speck advised that his boss, Danny Williams, could perform the necessary maintenance. Arrangements were made for Williams to visit the facility.
Following a series of meetings and negotiations with Williams, Svenhard’s entered into a contract with American Fire Protection for specified repairs to Risers 1 through 6 of the sprinkler system. The total contract price was $98, 000. American Fire Protection was to receive a $30, 000 deposit and progress payments of $24, 000, $24, 000 and $20, 000 as the work was completed.
Svenhard’s purchased new fire extinguishers from Williams at an additional cost of $6, 079.32. The parties further agreed that American Fire Protection would complete a project involving “outside stem and yoke” or “OS&Y” valves buried outside of the building. Williams offered to replace the OS&Y valves and raise them above ground for an extra $4, 000.
Work commenced on the Svenhard’s project in late July or early August 2008. Williams and his employees, varying at times between two to five people, spent approximately two to three weeks repairing Risers 1 through 5 of the sprinkler system. Williams subcontracted with a man named James Martinez to replace the OS&Y valves, which was a two-day assignment.
Williams later informed Svenhard’s that work was complete on the OS&Y valves and Risers 1 through 5. Svenhard’s accordingly disbursed payments totaling $78, 000 pursuant to the sprinkler system contract, plus $6, 079.32 for the new fire extinguishers and $4, 000 for the OS&Y valve replacement. Work on Riser 6 was put on hold because it required the installation of new sprinkler heads to cover a cold storage area that had not yet been constructed. The project could not proceed until engineering plans were completed and the necessary building permits were obtained. Svenhard’s also requested that work cease pending verification of American Fire Protection’s workers’ compensation insurance coverage.
In September 2008, Svenhard’s project manager, Gene Dorough, happened to mention the company’s dealings with American Fire Protection during a conversation with the local fire inspector, Jerry Sterling. Mr. Sterling had performed the informal evaluation of Svenhard’s sprinkler system on behalf of the Tulare County Fire Department approximately four months earlier. After speaking with Mr. Dorough, Jerry Sterling visited the facility again to evaluate the work completed up to that point. Mr. Sterling found numerous deficiencies and fire code violations were still present throughout the entire system.
Tulare County officials instructed Svenhard’s to stop work on its sprinkler system and have the facility re-assessed by Jorgensen. Svenhard’s eventually hired Jorgensen to complete the repair work left unfinished by Williams and his crew. Meanwhile, the Tulare County District Attorney’s Office began investigating American Fire Protection.
Authorities conducted an undercover interview with Williams in November 2008. Search warrants were executed at multiple locations, including American Fire Protection’s business address and at Williams’ personal residence. After reviewing volumes of seized records, Tulare County fire officials assembled a task force to examine the premises of other American Fire Protection customers.
The task force surveyed restaurants and small businesses that had hired American Fire Protection to inspect their “hood” systems, i.e., automatic fire extinguishing systems designed to cover kitchen areas and cooking equipment. In most instances, the customers’ systems were not fully compliant with the fire code and/or needed to be upgraded to meet minimum regulatory standards. Every hood system reviewed by the task force had been inspected and serviced by Ken Speck.
In April 2009, Tulare County officials inspected the OS&Y valves which had been replaced at Svenhard’s approximately seven months earlier. A supervisor from the county building department mistakenly concluded that Williams installed the wrong type of valve. This resulted in Svenhard’s paying approximately $17, 000 to a local construction company for the purchase and installation of what turned out to be an identical piece of equipment. Excavation of the area around the valves revealed a leak from a pipe in the underground plumbing, which Svenhard’s also paid to have fixed.
A Tulare County grand jury indicted Danny Williams and Ken Speck on multiple felony and misdemeanor charges relating to the business practices of American Fire Protection. Ken Speck accepted a plea deal in exchange for his cooperation and testimony in the prosecution’s case against Williams. An amended indictment was filed on July 27, 2010, charging Williams with thirty-four counts of “the crime of inoperable or impaired fire protection system in violation of Penal Code 386(a)” in connection with his own work at Svenhard’s and the work performed by Ken Speck at thirty-three separate business establishments.
In relation to the Svenhard’s project, Williams was also charged with unlawful diversion of construction funds (§ 484b), grand theft (§ 487, subd. (a)), and misdemeanor violations of State Fire Marshal’s Regulations for automatic fire extinguishing systems (Health & Saf. Code, § 13195) and portable fire extinguishers (Health & Saf. Code, § 13160). Additional charges pertaining to the restaurants and small businesses included one count of conspiracy to violate section 386 (§ 182, subd. (a)(1)), twenty-eight misdemeanor counts of petty theft (§ 484, subd. (a)), and forty-five misdemeanor counts of violating State Fire Marshal’s Regulations for automatic fire extinguishing systems and portable fire extinguishers. Finally, an enhancement allegation was made pursuant to section 12022.6, subdivision (a)(1), for victim losses in excess of $65, 000.
A five-week jury trial began on January 20, 2011. At the conclusion of its case-in-chief, the prosecution dismissed three of the section 386 charges (Counts 63, 96 & 105), four counts of petty theft (Counts 56, 64, 84 & 106) and four counts of regulatory violations (Counts 15, 65, 107 & 108). The trial court subsequently granted a defense motion pursuant to section 1118.1 to dismiss all remaining counts of petty theft for lack of sufficient evidence (Counts 7, 13, 17, 21, 26, 30, 34, 37, 41, 44, 49, 53, 60, 67, 71, 75, 78, 81, 87, 90, 93, 98, 102 & 110).
The jury returned its verdict on February 23, 2011. Williams was acquitted on five counts of violating section 386 (Counts 36, 40, 46, 52 & 109), one count of violating regulations for automatic fire extinguishing systems (Count 38) and all counts pertaining to regulations for portable fire extinguishers (Counts 5, 9, 19, 23, 28, 32, 39, 42, 51, 58, 62, 69, 73, 95, 100 & 104). He was found guilty of all remaining charges. A true finding was returned on the special enhancement allegation under section 12022.6, subdivision (a)(1).
Williams was sentenced on May 20, 2011. The trial court imposed a total prison term of five years, calculated by a mitigated base term of two years for the section 386 violation involving Svenhard’s (Count 1); a one-year sentence consecutive to Count 1 for violating section 386 as alleged in Count 6; a one-year sentence consecutive to Count 6 for violating section 386 as alleged in Count 10; and a one-year sentence consecutive to Count 10 for conspiracy to violate section 386 as alleged in Count 112. The middle term of two years was imposed for each conviction of unlawful diversion of construction funds (Count 2) and grand theft (Count 3), to be served concurrent to Count 1. Concurrent two-year sentences were imposed for each of the remaining section 386 convictions (Counts 12, 16, 20, 24, 25, 29, 33, 43, 47, 48, 55, 59, 66, 70, 74, 77, 80, 83, 86, 89, 92, 97 & 101.) No time was imposed for the misdemeanor convictions.
A timely notice of appeal was filed on the day of sentencing.
Penal Code § 386
A. Elements and Required Mental State
Section 386 provides in relevant part: “Any person who willfully or maliciously constructs or maintains a fire-protection system in any structure with the intent to install a fire protection system which is known to be inoperable or to impair the effective operation of a system, so as to threaten the safety of any occupant or user of the structure in the event of a fire, shall be subject to imprisonment….” (§ 386, subd. (a).) The statute defines a “fire protection system” as including any automatic fire sprinkler system or automatic fixed fire extinguishing system. (§ 386, subd. (c).) Other subdivisions describe these systems in detail. (§ 386, subds. (d)(1), (d)(3).)
The meaning and application of the statute was a point of contention between the parties at trial. Williams argued section 386 requires the specific intent to either install a system known to be inoperable, or to impair the effective operation of an existing system. The prosecution argued the offense is a general intent crime, provable by the defendant’s knowledge that a fire protection system is “impaired” at the conclusion of any maintenance he or she performed on the system. The prosecution defined “impaired” as meaning in “less than perfect” condition, and relayed this to the jury during closing argument.
We address these competing formulations of the offense to help frame the issues in this case and provide guidance to trial courts in the future. The proper interpretation of section 386 is a question of law we review de novo. (Padres Hacia Una Vida Mejor v. Davis (2002) 96 Cal.App.4th 1123, 1130.) Our objective is to determine and effectuate the Legislature’s intent. (People v. Woodhead (1987) 43 Cal.3d 1002, 1007.) “The statutory language itself is the most reliable indicator, so we start with the statute’s words, assigning them their usual and ordinary meanings, and construing them in context.” (Wells v. One2One Learning Foundation (2006) 39 Cal.4th 1164, 1190.) If the words are clear and unambiguous, the statute’s plain meaning governs. (Ibid.) “Reviewing courts may turn to the legislative history behind even unambiguous statutes when it confirms or bolsters their interpretation.” (In re Gilbert R. (2012) 211 Cal.App.4th 514, 519.)
Section 386 was enacted as part of Senate Bill No. 1107 of the 1987–1988 Regular Session. (Stats. 1987, ch. 246, § 1.) The legislation was prompted by a case in Monterey County where the District Attorney had difficulty prosecuting a contractor who installed a fake sprinkler system in a chapel “by simply nailing or gluing sprinkler heads to the ceiling without connecting them to a water source.” The same contractor was suspected of installing “phony” systems discovered in a hospital, a school, government buildings, and hotels. (Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Sen. Bill No. 1107 (1987-1988 Reg. Sess.) as amended Apr. 20, 1987, p. 2; Assem. Com. on Public Safety, Rep. on Sen. Bill No. 1107, as amended Apr. 20, 1987, p. 2.) Existing law did not specifically criminalize the installation of an inoperable fire protection system.
The Legislature envisioned section 386 as a specific intent crime. The comments of the Senate Committee on the Judiciary are particularly illustrative of this point: “The key element of the proposed offense is the actor’s specific intent to install a fire protection system known to be inoperable or to impair the effective operation of a system. The purpose of this provision is to additionally require that the actor intend to commit a specific evil before he can be convicted…. Without this specific intent element, the proposed offense would be a strict liability crime. In addition, the specific intent provision would protect against the inadvertent prosecution of incompetent building owners or contractors.” (Sen. Com. on Judiciary, Rep. on Sen. Bill No. 1107 (1987-1988 Reg. Sess.) as amended Apr. 20, 1987, p. 5, original emphasis.)
The plain language of section 386 reflects these legislative objectives. The statutory proscription of conduct done “willfully and maliciously” does not require proof of a specific intent. (People v. Licas (2007) 41 Cal.4th 362, 366.) Therefore, the first element of the offense is established if the defendant, acting with general intent, “constructs or maintains a fire-protection system in any structure.” (§ 386, subd. (a).) In its ordinary usage and relevant context, “maintains” refers to the act of performing maintenance by caring for property or equipment; upkeep. (See Merriam-Webster’s Collegiate Dict. (11th ed. 2011) p. 749; Black’s Law Dict. (9th ed. 2009) p. 1039.)
The second element is the specific intent requirement. “A specific intent crime is one that requires the actor intend not only the proscribed act, but also that he intend some further act or additional consequence.” (People v. Cleaves (1991) 229 Cal.App.3d 367, 380 (Cleaves).) Section 386 requires the defendant to act “with the intent to install a fire protection system which is known to be inoperable or to impair the effective operation of a system ….” (§ 386, subd. (a).)
Finally, the defendant’s actions must result in a threat to the safety of any occupant or user of the structure in the event of a fire. The legislative history characterizes this as a third element of the offense, separate from the specific intent requirement. (Sen. Com. on Judiciary, Rep. on Sen. Bill No. 1107, supra, at pp. 5-6.) The element is satisfied if the defendant’s conduct endangers human safety, regardless of whether such a result was intended. (Ibid.)
The Legislature evidently included the intent to “impair the effective operation of a system” as an alternative basis for liability in order to “deal directly with the intentional act of disabling lifesaving devices.” (Assem. Com. on Public Safety, Rep. on Sen. Bill No. 1107, supra, at p. 2.) This broadens the scope of the statute to prohibit not only the installation of a fake or non-functioning fire protection system, but also the act of intentionally impairing the effective operation of such a system. The verb “impair” means “to damage or make worse by or as if by diminishing in some material respect.” (Merriam-Webster’s Collegiate Dict., supra, at p. 622.) The ordinary, common sense meaning of the word is consistent with the Legislature’s stated purpose.
The prosecution was correct insofar as the adjective “impaired” refers to “being in a less than perfect or whole condition.” (Merriam-Webster’s Collegiate Dict., supra, at p. 622.) However, section 386 does not use this language, nor does it speak of a defendant’s knowledge that a fire protection system is in an “impaired” state. The indictments against Williams merged the alternate forms of culpability together, creating a misconception that persisted throughout the case. Each count under section 386 accused Williams of acting “with the intent to install or maintain a fire-protection system known to be inoperable or impaired.” A similar conflation of the elements appeared in the jury instructions.
This construction of the statute is problematic for several reasons. First, there is nothing in section 386 or its legislative history to suggest it is unlawful for a contractor to maintain, i.e., perform maintenance on, a fire protection system that is known to be “impaired.” It will often be the case that both the owner and the contractor are fully aware the system is “impaired, ” hence the engagement of the contractor’s services. This was certainly true of Svenhard’s vis-à-vis Williams and other contractors such as Jorgensen.
Secondly, allowing guilt or innocence to hinge upon the contractor’s knowledge that a system remains in “less than perfect condition” after his services have been rendered comes close to being a rule of strict liability. This would have illogical and absurd consequences. (See People v. Loeun (1997) 17 Cal.4th 1, 9 [“‘Interpretations that lead to absurd results … are to be avoided’”].) A proprietor or building owner may wish to hire the contractor not to achieve perfection, but only to repair a specific problem or ensure minimal functionality. The situation is analogous to that of a car owner dealing with a repair shop. The owner’s request for an oil change does not mean he or she wants or can even afford all of the additional maintenance recommended by the mechanic. These scenarios are more than hypothetical; Ken Speck testified at trial that some customers were unable or unwilling to pay for additional repairs and upgrades to their systems even when deficiencies were brought to their attention.
In summary, we hold that section 386 is a specific intent crime. It must be shown that the defendant acted with specific intent to install a fire protection system which was known to be inoperable or specific intent to impair the effective operation of a fire protection system. Proof of the latter requires evidence of the defendant’s intent to disable or diminish the effectiveness of the system in some material respect.
B. The Jury Instructions Were Erroneous
Williams’ claim of instructional error has merit. The jury was provided a specially prepared written instruction on the elements of section 386. The trial court also gave an oral instruction regarding the type of intent required for the offense. Both instructions were improper.
The special instruction was entitled “Inoperable or Impaired Fire Protection Systems.” A prefatory statement advised that Williams was “charged with constructing or maintaining an inoperable or impaired fire protection system in violation of Penal Code section 386(a).” We have already explained why use of the word “impaired” in this context is incorrect.
The elements of the crime were described as follows:
“1. The defendant willfully or maliciously constructed or maintained a fire protection system;
2. The defendant intended to install or maintain a fire protection system which was known to be inoperable or which was known to impair the effective operation of a system; and
3. As a result of defendant’s conduct, the safety of the occupant or user of the structure in which the fire protection system was located was threatened.”
None of these statements accurately correspond to the statutory language. The first sentence omits the requirement that the system be located in a “structure.” (§386, subd. (a).) This is a necessary component of the offense. The word “structure” is defined at section 386, subdivision (d)(3)(5).
The second sentence misstates the law almost to the point of unintelligibility. Even the most generous reading suggests the fire protection system itself “was known to impair the effective operation of a system.” More importantly, the instruction fails to identify and distinguish between the two forms of culpability set forth in subdivision (a). A defendant must have the intent “to install a fire protection system which is known to be inoperable or to impair the effective operation of a system.” (Emphasis added.) The third sentence also deviates from the language of section 386 and is overbroad by omission of the phrase “in the event of a fire.”
Further, it appears from the record that the jury did not receive written instructions explaining the concurrence of act and intent required for the crimes at issue. This does not constitute error in and of itself. (People v. Samayoa (1997) 15 Cal.4th 795, 845 [no federal or state constitutional right to instructions in writing].) However, the trial court’s verbal instruction with respect to section 386 was a near verbatim recital of the standard instruction on general intent set forth in CALCRIM No. 250. Given that section 386 is a specific intent crime, the trial court had a sua sponte duty to instruct the jury as to the requisite mental state. (People v. Alvarez (1996) 14 Cal.4th 155, 220 [“Even in the absence of a request, a trial court must deliver an instruction of this sort as to a given crime if it is one of ‘specific intent.’”]; Cleaves, supra, 229 Cal.App.3d at p. 380, fn. 14 [“[T]he court must on its own motion give a specific intent instruction when a specific intent crime is charged.”].) Thus, the trial court erred by instructing the jury with CALCRIM No. 250, which defines general intent, instead of using an instruction such as CALCRIM No. 251, which defines specific intent.
Respondent contends Williams forfeited the right to appeal on instructional grounds. Despite earlier objections, defense counsel acquiesced to the final version of the written instruction and did not challenge the oral instructions of the trial court. Consequently, Williams would now need to show his substantial rights were affected. (§ 1259; People v. Salcido (2008) 44 Cal.4th 93, 155; People v. Anderson (2007) 152 Cal.App.4th 919, 927.) Since the issues are intertwined with our task of statutory interpretation, the foregoing discussion serves the interest of avoiding similar errors in future cases. We need not decide if Williams’ substantial rights were violated because, as explained below, the evidence was insufficient to support his convictions.
C. The Convictions Are Not Supported By Sufficient Evidence
The case against Williams was presented in two parts. The first phase of trial focused on the work at Svenhard’s involving the interior sprinkler system and replacement of the OS&Y valves outside the building. The second phase pertained to Ken Speck’s work on other customers’ fire suppression systems. Our analysis proceeds in the same manner.
We note that the facts of this case do not involve the installation of a fire protection system. This was undisputed at trial and no such arguments have been advanced on appeal. Respondent acknowledges all charges stemmed from Williams’ repairs to the automatic sprinkler system at Svenhard’s and his employee’s inspection and maintenance of fire protection systems at other Tulare County businesses. The question, therefore, is whether the evidence was sufficient ...