FOR PARTIAL PUBLICATION[*]]
from a judgment of the Superior Court of Sacramento County,
No. 09F07077, Stephen W. White, Judge.
Modified and remanded with directions.
Kozik, under appointment by the Court of Appeal, for
Defendant and Appellant.
D. Harris, Attorney General, Michael P. Farrell, Assistant
Attorney General, Carlos Martinez and Chung Mi (Alexa) Choi,
Deputy Attorneys General, for Plaintiff and Respondent.
by Hoch, J., with Raye, P. J., and Duarte, J., concurring.
Cal.Rptr.3d 456] HOCH, J.
this case, we conclude the death of a structure's
inhabitant renders that structure uninhabited within the
meaning of the arson statute. This is so even where the
arsonists murder that inhabitant before setting fire to the
Joson Vang and his cousin, Ronnie Vang, broke into Keith
Fessler's house to steal some property. Fessler was home
at the time. When he came out of a back bedroom and
confronted the burglars, they beat him, tied him up, and
Ronnie executed him with two shots to the back of the head.
After taking several items from the house and leaving with
these items in Fessler's car, defendant and Ronnie came
back and set fire to the [204 Cal.Rptr.3d 457] house.
Defendant and Ronnie were tried together before separate
juries. Defendant's jury convicted him of first degree
murder, first degree burglary, robbery, arson of an inhabited
structure, and the unauthorized taking or driving of a
vehicle. With respect to the murder, the jury found the crime
was committed during the commission of both a burglary and a
robbery. The jury also found a principal was armed with a
firearm during the commission of the murder, burglary, and
robbery. The trial court sentenced defendant to serve life
imprisonment without the possibility of parole, plus a
consecutive determinate term of nine years eight months.
appeal, defendant contends (1) the evidence is insufficient
to support his arson of an inhabited structure conviction
because Fessler was dead when he and Ronnie set fire to
Fessler's house and there was no evidence anyone else
lived there or intended to live there, and (2) the trial
court violated the Aranda/Bruton rule, and thereby
violated defendant's right of cross-examination under the
Sixth Amendment's confrontation clause, by admitting
against defendant certain out-of-court statements Ronnie made
to two individuals that implicated defendant in the charged
crimes and defendant conceded were non-testimonial in nature.
published portion of this opinion, we conclude
defendant's arson of an inhabited structure conviction
must be modified to convict him of arson of
a structure. As we shall explain, Fessler's death
rendered his house uninhabited. While it is troubling
defendant shall be subject to less punishment for what would
otherwise be arson of an inhabited structure because he and
his cousin murdered the inhabitant before setting fire to the
house, we agree with various decisions of our fellow Courts
of Appeal that the statutory term " inhabited"
requires a present intent to use the structure as a dwelling.
The dead simply cannot have such an intent. This is so
regardless of how they came to be deceased. Prior iterations
of our arson statute would have allowed for conviction of
arson of an inhabited structure on these facts. Thus, if the
Legislature is troubled by the outcome of this case, it can
amend the statute. But we are bound to apply the law as it is
presently written. We also note defendant incurred the
harshest punishment available short of the death penalty for
unpublished portion of the opinion, we reject defendant's
remaining claim his confrontation rights were violated by the
admission of certain statements made by Ronnie. The
concededly non-testimonial nature of these challenged
statements ends the inquiry under the confrontation clause.
does not challenge the sufficiency of the evidence to support
his convictions, except for arson of an inhabited structure
based on the undisputed fact Fessler was dead when the fire
was set. We therefore dispense with a detailed recitation of
the evidence ...