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People v. Vang

California Court of Appeals, Third District

July 11, 2016

THE PEOPLE, Plaintiff and Respondent,
v.
JOSON VANG, Defendant and Appellant

         [CERTIFIED FOR PARTIAL PUBLICATION[*]]

          APPEAL from a judgment of the Superior Court of Sacramento County, No. 09F07077, Stephen W. White, Judge.

          Modified and remanded with directions.

Page 378

         COUNSEL

         Kat Kozik, under appointment by the Court of Appeal, for Defendant and Appellant.

Page 379

         Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos Martinez and Chung Mi (Alexa) Choi, Deputy Attorneys General, for Plaintiff and Respondent.

         Opinion by Hoch, J., with Raye, P. J., and Duarte, J., concurring.

          OPINION

          [204 Cal.Rptr.3d 456] HOCH, J.

          In 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 structure.

         Defendant Joson Vang and his cousin, Ronnie Vang,[1] 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.

         On 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,[2] 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.

         In the published portion of this opinion, we conclude defendant's arson of an inhabited structure conviction must be modified to convict him of arson of

Page 380

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 Fessler's murder.

         In the 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.

         FACTS

         Defendant 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 ...


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