California Court of Appeals, First District, Fifth Division
CERTIFIED FOR PARTIAL PUBLICATION[*]
Superior Court of the County of Del Norte, No. JDSQ126118, William H. Follett, Judge
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Senior Assistant Attorney General, Eric D. Share, Supervising Deputy Attorney General, Ronald E. Niver and Huy T. Luong, Deputy Attorneys General, for Plaintiff and Respondent.
Jonathan Soglin and Stephanie Clark, under appointment by the Court of Appeal, for Defendant and Appellant.
The juvenile court adjudicated David R. (the minor) a ward of the court after it determined he committed arson (Pen. Code, § 451, subd. (c)) and resisted a police officer (§ 148). The court placed the minor on probation and ordered him to register pursuant to section 457.1.
On appeal, the minor contends there is insufficient evidence of malice to support an arson finding. He also argues the arson registration requirement does not apply to him because he was not committed to the Department of Juvenile Facilities (DJF).
In the unpublished portion of the opinion, we conclude sufficient supports a finding of arson in violation of section 451, subdivision (c). In the published portion of the opinion, we conclude the court erred by requiring the minor to register as an arson offender pursuant to section 457.1 because he was not committed to, or paroled from, what was formerly known as the Department of Youth Authority or California Youth Authority (now the DJF). We therefore strike the section 457.1 registration requirement.
FACTUAL AND PROCEDURAL BACKGROUND
Crescent City Police Sergeant Erik Apperson went to the Masonic Lodge (lodge or building) and saw it was on fire. The damage to the building was extensive: the roof collapsed and the building’s contents were “completely destroyed.” The lodge was declared “a total loss.”
After learning the 13-year-old minor and his friend, Michael H. (Michael), were “people of interest, ” Sergeant Apperson and another law enforcement officer went to the minor’s house and interviewed him. Initially, the minor told law enforcement officers he, his sister, and Michael were in the building before the fire and that he saw an African American man “exiting the building that he believed may be suspect.” Later, however, the minor said Michael was upstairs alone; the minor also said that later, Michael said he, Michael, “lit a carpet on fire.” Finally — and after being Mirandized — the minor “accept[ed] responsibility for finding [a cigarette] lighter upstairs, lighting a box and leaving the building while the box was burning.” The minor said he found the lighter in a desk drawer and lit a candle and then a box. “And then he also said he lit a box” on fire. According to Sergeant Apperson, the minor claimed to be “playing around. He was horseplaying.”
The minor said he blew on the fire to put it out and was unsuccessful. In response, Sergeant Apperson told the minor he thought the minor blew on the fire to “cause the fire to burn more.” Sergeant Apperson explained that the minor may have denied he left the fire burning “at some point in the interview, ” but by the end of the interview, “the idea was that he — he left it burning. He was aware that the fire had started and he fled the building.” The minor said he fled the building because he was “scared.”
The minor’s 10-year-old sister, Jenny H. (Jenny), testified that she, the minor, and Michael went into the lodge and “messed up everything and threw soda on the ground[.]” They went upstairs, where they found “a whole bunch of boxes” and “lighters and stuff.” According to Jenny, the minor set fire to a cardboard box he found in a storage room. Right afterward, he left the room: “he just lit [the box] and took off[.]” Jenny initially testified that after the minor lit the fire, “[i]t went out and then he blowed [sic] it and then it tried to go back again” but the fire did not reignite. She also said, however, that the flame ignited again and the box was still burning when the minor left. Then Jenny said she “tried to blow it out when they went down there and then I couldn’t, so I went down there with them.” She explained, “I was trying to blow it out and then he went out, and I said, wait, try and blow it out, and then he — he tried to blow it out. It blew out and then it — and then I tried to blow it out, and then it came right back up.”
When the prosecutor tried to clarify the sequence of events, Jenny said the minor found a box and lit it on fire. About “five seconds” after he set the box on fire, the group left the room and quickly walked downstairs. Before they went downstairs, she and the minor blew on the box and the fire “just blew out, and then — and then it didn’t light again.” According to Jenny, the box was not burning when the minor went downstairs. She testified she blew on the box after the minor left and the fire reignited. Then she stepped on the box and the fire “went out” and she ran downstairs. On redirect examination, Jenny said she knew the box “would light on fire” when she blew on it but she did it anyway. Jenny estimated she saw ...