People v. Jackson

THE PEOPLE, Plaintiff and Respondent, v. KENNETH ALLEN JACKSON et al., Defendants and Appellants.

F069966

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

July 17, 2018

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. Nos. SCR013981A & SCR013981B)

OPINION

APPEAL from a judgment of the Superior Court of Madera County. Dale J. Blea, Judge.

Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant Appellant Kenneth Allen Jackson.

Audrey R. Chavez, under appointment by the Court of Appeal, for Defendant and Appellant Alice Waterman.

Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney General, Brian G. Smiley and Laura Wetzel Simpton, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION

Appellants Kenneth Allen Jackson and Alice Waterman, husband and wife, were prosecuted together as arsonists for 31 charged fires. The fires occurred in May and June 2013, mostly in and around the Sierra foothills development of Yosemite Lakes Park (Yosemite Lakes), where appellants resided.

A jury found Jackson guilty of arson in 21 of the fires but not guilty in the other 10 fires.¹ (Pen. Code, § 451, subd. (c).)² He was also found guilty of conspiracy to commit arson (§ 182, subd. (a)(1); count 32); battery on a peace officer (§ 243, subd. (b); count 33), and resisting arrest (§ 148, subd. (a)(1); count 34). He received an aggregate prison sentence of 30 years eight months.

Waterman was found guilty of arson in six of the fires (§ 451, subd. (c); counts 14, 15, 16, 18, 20 & 31) and guilty of conspiracy to commit arson (§ 182, subd. (a)(1); count 32). She received an aggregate prison sentence of 10 years eight months.

On appeal, appellants argue that the evidence was insufficient to support the arson and conspiracy convictions. They contend that the trial court erred in allowing the prosecution's experts to opine that arson caused some of these fires. They maintain that the trial court erred when it denied their motion for a mistrial based on a discovery violation. They claim the trial court erred in excluding certain third-party culpability evidence that suggested juveniles may have started some of the charged fires. Finally, they assert that the trial court erred when it allowed the prosecution to proceed against Jackson on six counts which were not charged in the complaint.

We find no error in the admission of the prosecution's expert testimony regarding causation. We find no abuse of discretion regarding the discovery violation and theexclusion of certain third-party culpability evidence. We find sufficient evidence supporting the conspiracy convictions (count 32) and a majority of the arson convictions. As to Jackson, we affirm the arson convictions in counts 9, 10, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, and 31. As to Waterman, we affirm the arson convictions in counts 15, 16, 20, and 31. However, based on insufficient evidence, we reverse eight of the arson convictions against Jackson (counts 5, 6, 11, 13, 14, 15, 16, and 19), and two of the arson convictions against Waterman (counts 14 and 18). The reversal of these convictions renders moot the final issue regarding the prosecution of Jackson for the six counts not pled.

The matter is remanded to the trial court for resentencing consistent with this opinion. We otherwise affirm the judgments.

BACKGROUND

This trial spanned 74 days and created a reporter's transcript exceeding 18,000 designated pages. The following is a relevant synopsis of the trial evidence.

I. An Overview Of The Charged Fires.

The 31 charged fires were known generally as the Gold Mine Fires of 2013. As explained below, these 31 fires occurred in an approximate 46-day span from May 11, 2013 through and including June 25, 2013. The last two fires occurred on the same day, with the last one occurring just before appellants were arrested.

Two groups of fires occurred. One group, consisting of 10 fires, was clustered around East Revis Circle in Yosemite Lakes next to and behind appellants' residence. Because of the terrain and location, whoever started these fires did so on foot. We refer to these as the Cluster Fires, which were charged in counts 4-6, 14-16, 18-20 and 31. These fires generally occurred between 4:00 p.m. and 9:00 p.m. Jackson was found guilty in seven of these counts (5, 6, 14, 15, 16, 19 and 31) and Waterman in six (14, 15, 16, 18, 20 and 31).

The second group, consisting of 21 fires, was scattered throughout and outside Yosemite Lakes. Each of these fires originated near a roadside. We refer to these as the Roadside Fires, which were charged in counts 1-3, 7-13, 17, and 21-30. A majority of these occurred on weekends between 10:00 a.m. and 3:00 p.m. Only Jackson was charged for these fires, and he was found guilty of setting 14 of them (counts 9-11, 13, and 21-30).

Personnel from the California Department of Forestry and Fire Prevention (CAL FIRE) typically prepared two reports for these fires; one report came from a responder, who suppressed the fire, and the second report came from an investigator, who analyzed the fire site. Both reports discussed potential causation. The CAL FIRE personnel generally relied upon a cause exclusion analysis (or negative corpus) to determine causation. This technique rules out possible causes.

The trial evidence generally established that the investigators received more training (FI-210) and were more qualified than some of the responders in determining fire causation. For some of these fires, an incendiary device was found and the investigator determined arson. For many of these fires, however, the investigator determined arson without evidence of an incendiary device but after ruling out all other possible causes. Finally, for a minority of these fires, the investigator could not exclude arson (sometimes along with one or more other potential causes).

II. An Overview Of The Roadside Fires.

Between May 11, 2013 and May 22, 2013, six fires started in and around Yosemite Lakes (three were Roadside Fires, counts 1-3, and three were Cluster Fires, counts 4-6). CAL FIRE officials believed that these six fires were set intentionally. The number of suspicious fires at that point was "unusual" during a fire season, even during the drought. Officials installed cameras intending to capture images of all vehicles entering and exiting Yosemite Lakes. By around June 3, 2013, four cameras were in place.

Yosemite Lakes is accessible via two thoroughfares, Yosemite Springs Parkway and Road 400. A camera designated as YSP East was placed at the southeast end of Yosemite Springs Parkway, near the intersection with Highway 41. A camera designated as YSP West was placed at the opposite end of Yosemite Springs Parkway at the intersection with Road 400.

A camera designated as 400 East was placed near the intersection of Road 400 and Road 415 at the northeast corner of Yosemite Lakes. A camera designated as 400 West was placed by Road 400 near Best Way some distance west of the intersection of Road 400 and Yosemite Springs Parkway.

As of June 8, 2013, CAL FIRE began collecting and reviewing camera data. Officials initially decided to analyze camera footage in a two-hour window, one hour before each reported fire and one hour after, but that proved too time consuming. As a result, starting June 18, 2013, CAL FIRE began reviewing camera footage 20 minutes before and 20 minutes after each reported fire.

Initially, CAL FIRE could only capture less than 60 percent of the license plates on vehicles. On June 13, 2013, officials modified the cameras. Thereafter, CAL FIRE had an approximate 95 percent capture rate. CAL FIRE compiled a database of about 7,576 vehicles captured on camera before and after each fire.

The initial five Roadside Fires (counts 1-3, 7 and 8) occurred between May 11 and June 1, 2013. Except for count 8, these fires burned before cameras were installed. Two cameras, YSP East and YSP West were in place when the fire in count 8 occurred, but the YSP West camera was not operating and it had no data. The one operating camera did not have any significant data, and it did not capture any license plates belonging to either Jackson or Waterman. From June 8 through June 25, 2013, the remaining 16 Roadside Fires occurred. Jackson's vehicles were observed all 16 times (usually oncamera) typically in a 40-minute window either coming and/or going towards each fire site.³ The jury convicted him of setting 14 of these fires (counts 9-11, 13, and 21-30).

For the final 16 Roadside Fires, CAL FIRE fire captain specialist Branden Smith calculated an ignition window for each fire. This was based on when each fire was reported, the time when Jackson's vehicle was observed, and the drive time to the fire site. To determine the drive time, Smith drove between the two applicable locations without stopping. The ignition window represented the time when Jackson would have passed the fire site and when that fire was reported. Smith's analysis assumed that an ignition source was placed, dropped or tossed at each fire's location. His analysis also assumed that Jackson drove at or below the posted speed limit and, when applicable, he did not turn off the road leading towards a fire site.

There were 110 vehicles that appeared in the applicable time window for two or more fires. Based on the license plates, Smith researched these registered owners. For a subset of these 110 vehicles, Smith analyzed when those vehicles would have passed by fire sites. Over time, however, he became less concerned with other vehicles. Other than Jackson's vehicles, no other vehicle could have been involved in all of the final 16 Roadside...