People v. Padilla CA2/2

Filed 10/6/20 P. v. Padilla CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, B302649

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA119781)
v.

FRANK PADILLA,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of
Los Angeles County. Rogelio G. Delgado, Judge. Affirmed as
modified.

John L. Staley, under appointment by the Court of Appeal,
for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Steven E. Mercer, Kathy S. Pomerantz, and
David F. Glassman, Deputy Attorneys General, for Plaintiff and
Respondent.
______________________________
 In a first amended information filed by the Los Angeles
County District Attorney’s Office, defendant and appellant Frank
Padilla was charged with one count of arson of the property of
another (Pen. Code, § 451, subd. (d); count 1)1 and five counts of
vandalism causing over $400 in damage (§ 594, subd. (a);
counts 2–6). It was further alleged that defendant had five prior
“strike” convictions within the meaning of the “Three Strikes”
law (§§ 667, subds. (b)-(i), 1170.12, subd. (a)-(d)), as well as three
serious felony convictions (§ 667, subd. (a)(1)), and had served
five prior prison terms (§ 667.5, subd. (b)).
The jury found defendant guilty of all counts and, as to the
vandalism counts, found it true that the damage caused was $400
or more. Defendant admitted the alleged priors.
The trial court sentenced defendant to a total term of 35
years to life in state prison, comprised of 25 years to life on
count 1 plus two five-year serious felony enhancements pursuant
to section 667, subdivision (a)(1). The court imposed and struck
one-year sentences for the enhancements under section 667.5,
subdivision (b). It imposed, but stayed pursuant to section 654, a
16-month sentence for each of the five vandalism counts. Finally,
the court imposed various assessments and fines.
In this timely appeal, defendant argues that (1) there was
insufficient evidence to support his arson conviction; (2) the trial
court incorrectly instructed the jury on the mental state required
for arson; and (3) the court violated his constitutional rights by
imposing the assessments and restitution without first finding
his ability to pay. We disagree with each of these contentions.

1 All further statutory references are to the Penal Code
unless otherwise indicated.

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 We find, however, that the trial court erred in failing to
impose the criminal conviction assessment (Gov. Code, § 70373)
and court operations assessment (§ 1465.8) as to each of the six
counts. We modify the judgment to correct this error.
Additionally, the abstract of judgment must be amended to
correct the omission of defendant’s conviction and stayed
sentence on count 6.
As modified, we affirm the judgment.
BACKGROUND
I. The People’s Evidence
A. The fire
At approximately 12:25 a.m., on October 1, 2018, Bernstein
Yao (Yao) left his apartment at the Hacienda Gardens in
Rowland Heights to buy whiskey for a party he was hosting. Yao
saw defendant and another man standing by a dumpster in the
carport, which was separated from the apartment building by a
driveway. As he walked past defendant, Yao saw defendant
throw lit firecrackers near the dumpster “many times.”
Yao drove to a nearby store. When he returned a few
minutes later, defendant and the other man were still in the
carport. Defendant threw three to five more firecrackers near the
dumpster. Yao returned to his apartment and, about 20 minutes
later, saw that a fire had erupted in the carport where he had
observed defendant throwing the firecrackers.
Deputy Curtis Sinclare of the Los Angeles County Sheriff’s
Department (LASD) responded to the fire and saw the carport
and a few vehicles “fully engulfed in flames.” The fire
department arrived shortly thereafter and extinguished the fire.
Deputy Sinclare observed that several vehicles had been burned
and were “total losses” and that the carport had been “completely

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destroyed[.]” He also saw that several windows in the adjacent
apartment building had shattered.
According to the Hacienda Gardens’ property manager, it
cost $8,987.77 to repair the carport and $2,875 to replace the
damaged windows. The owners of four vehicles that had been
parked in the carport each testified that their respective cars had
been burned in the fire and were total losses.
B. The investigation
LASD Detective Oscar Corcio was assigned to the arson
and bomb unit and qualified as an expert in fire and arson
investigations. When he investigated the scene of the
extinguished fire on the afternoon of October 1, 2018, he observed
several burned vehicles in the carport, that the roof of the carport
had completely burned, and that windows and blinds in the
adjacent apartment building had “‘radiant heat damage.’”
Detective Corcio viewed a surveillance video from the time
of the fire, which was also played for the jury. The video showed
two individuals loitering in the carport around the dumpster.2 A
few minutes later, the two individuals jumped over a wall and
smoke started to billow from the dumpster area. The fire
continued to grow and “consume . . . everything in its path.”
Based on his investigation, Detective Corcio determined
that the fire was not caused by mechanical issues with the
damaged vehicles, ruptured gas lines, electrical issues, or
lightning strikes. Rather, he opined that the fire was set
deliberately and intentionally in the area of the carport near the
dumpsters.

2 LASD Deputy Andrew Shackelford testified that he
recognized defendant, with whom he had prior contacts, as one of
the individuals in the video.

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 At the time of the fire, defendant was under parole
supervision and wore a GPS ankle bracelet that monitored his
location. Tracking data showed that he was at the carport
between 11:10 p.m. on September 30, 2018, to 12:16 a.m. on
October 1, 2018.
II. Defendant’s Evidence
Defendant testified that he went to the Hacienda Gardens
with a man named “Anthony” on the night of September 30, 2018,
in violation of his parole curfew. He was “cutting through the
apartments” on his way to his mother’s home when he noticed
that the dumpster was full. He decided to sort through the
dumpster for recyclables. Anthony “found some fireworks in the
trash” and “tossed a few . . . towards the street[.]” Meanwhile,
defendant “was just going through the stuff” in the dumpster.
Defendant denied that he lit or threw the fireworks.
Anthony tossed a firework too close to the dumpster and
“stuff caught on fire.” Defendant did not understand why
Anthony would do that and “start[ed] tripping out on
[Anthony] . . . .” Defendant unsuccessfully tried to extinguish the
fire. His “instinct was . . . to get away from the fire,” so he
jumped over the wall and left the scene. Defendant “heard sirens
in the distance” as he was leaving, which gave him comfort that
the fire would be taken care of. Defendant acknowledged that he
“could have ran inside the apartments” to get a fire extinguisher,
but it “didn’t cross [his] mind at the time.”

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 DISCUSSION
I. Evidence Sufficient on Count 1
Defendant contends that his conviction for arson under
section 451 (count 1) must be reversed because there is
insufficient evidence that he acted willfully and maliciously.3
A. Standard of review
“‘When considering a challenge to the sufficiency of the
evidence to support a conviction, we review the entire record in
the light most favorable to the judgment to determine whether it
contains substantial evidence—that is, evidence that is
reasonable, credible, and of solid value—from which a reasonable
trier of fact could find the defendant guilty beyond a reasonable
doubt.’ [Citation.] We determine ‘whether, after viewing the
evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt.’ [Citation.] In so doing, a
reviewing court ‘presumes in support of the judgment the
existence of every fact the trier could reasonably deduce from the
evidence.’” (People v. Edwards (2013) 57 Cal.4th 658, 715.)
B. Relevant law
“A person is guilty of arson when he or she willfully and
maliciously sets fire to or burns or causes to be burned or who
aids, counsels, or procures the burning of, any structure, forest
land, or property.” (§ 451, italics added.)
In this context, “‘[t]he word “willfully[]” . . . implies simply a
purpose or willingness to commit the act . . . . It does not require
any intent to violate law, or to injure another, or to acquire any
advantage.’” (In re V.V. (2011) 51 Cal.4th 1020, 1027.)

3 Defendant does not challenge the sufficiency of the
evidence regarding any other count.

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 “Although ‘[m]alice as universally understood by the
popular mind has its foundation in ill-will’ [citation], it need not
take the form of malevolence or ill will. [Citations.] . . . Malice
in fact—defined as ‘a wish to vex, annoy, or injure’ [citation]—
consists of actual ill will or intent to injure.” (In re V.V., supra,
51 Cal.4th at p. 1028.) “[M]alice in law[,]” in contrast, “is
defined . . . as ‘an intent to do a wrongful act, established either
by proof or presumption of law.’” (Ibid.) For arson, malice in law
“will be presumed or implied from the deliberate and intentional
ignition or act of setting a fire without a legal justification,
excuse, or claim of right.” (Ibid.)
Arson’s “willful and malice requirement ensures that the
setting of the fire must be a deliberate and intentional act, as
distinguished from an accidental or unintentional ignition or act
of setting a fire; ‘“in short, a fire of incendiary origin.”’
[Citations.] ‘Because the offensive or dangerous character of the
defendant’s conduct, by virtue of its nature, contemplates such
injury, a general criminal intent to commit the act suffices to
establish the requisite mental state.’ [Citation.] Thus, there
must be a general intent to willfully commit the act of setting on
fire under such circumstances that the direct, natural, and highly
probable consequences would be the burning of the relevant
structure or property.” (People v. Atkins (2001) 25 Cal.4th 76,
88–89 (Atkins).)
In In re V.V., supra, 51 Cal.4th 1020, a minor lit a large
firecracker, which was then thrown by another minor onto a
brush-covered hillside. (Id. at p. 1024.) The firecracker exploded,
causing a brush fire. (Ibid.) The Supreme Court concluded that
substantial evidence supported the juvenile court’s finding that
the minors committed arson of forest land (§ 451, subd. (c)). (In

7
re V.V., at pp. 1026–1033.) It mattered not that the minors “did
not intend to set the hillside on fire and tried to avoid such a
consequence.” (Id. at p. 1030.) The Supreme Court held that “[a]
defendant may be guilty of arson if he or she acts with awareness
of facts that would lead a reasonable person to realize that the
direct, natural, and highly probable consequence of igniting and
throwing a firecracker into dry brush would be the burning of the
hillside” and that minors “were aware of such facts.” (Ibid.)
C. Analysis
Defendant does not contest that there was sufficient
evidence for the jury to find that he threw lit firecrackers into the
dumpster, which caused the fire. Rather, he claims that there
was insufficient evidence to show that he acted willfully and
maliciously, as required under section 451. We disagree.
Yao testified that, on his way to a nearby store, he saw
defendant throw lit firecrackers near the dumpster in the carport
“many times.” When Yao returned from the store a few minutes
later, he witnessed defendant in the same area, still throwing
firecrackers near the dumpster. Approximately 20 minutes later,
Yao observed that a fire had started in the area that he had
observed defendant. Defendant testified that the dumpster in the
carport was full of trash. He also admitted that he fled the scene
after the fire erupted, without attempting to locate a fire
extinguisher or call for help.
From this evidence, the jury could reasonably infer that
defendant intentionally and unjustifiably threw lit firecrackers in
the carport over an extended period; it was not a one-time,
accidental occurrence. Such conduct is willful. (See In re V.V.,
supra, 51 Cal.4th at p. 1027.) Any reasonable person would know
that repeatedly throwing lit firecrackers around a dumpster full

8
of trash in a carport occupied by numerous vehicles would create
an obvious fire hazard, and that a resulting fire would be “the
direct, natural, and highly probable consequence . . . .” (Id. at
p. 1030.) This constitutes substantial evidence establishing the
requisite malice for arson. (Id. at p. 1028 [“‘“An intentional act
creating an obvious fire hazard . . . done without justification . . .
would certainly be malicious . . . .”’”]; see also id. at p. 1031, fn. 6.)
Defendant attempts to distinguish In re V.V., supra,
51 Cal.4th 1020 by noting that, unlike the minors in that case
(see id. at pp. 1030–1031), he made no admissions
“demonstrating that he knew a fire was likely from throwing
firecrackers.” However, defendant was “not required to know or
be subjectively aware that the fire would be the probable
consequence of [his] acts.” (Id. at p. 1030.) It is enough that he
“act[ed] with awareness of facts that would lead a reasonable
person to realize that the direct, natural, and highly probable
consequence of” his actions would be the burning of the carport.
(Ibid.; see also Mason v. Superior Court (2015) 242 Cal.App.4th
773, 784 (Mason) [“[A] defendant need not intend to burn the
relevant property. All that is needed is an intent to do an act, the
direct, natural, and highly probable consequences of which is the
burning of a relevant property . . . .”].)4
Contrary to defendant’s contention, the evidence is
sufficient to show that defendant was subjectively aware of the
underlying circumstances that created such an obvious fire

4 Defendant also contends that In re V.V., supra, 51 Cal.4th
1020 and Atkins, supra, 25 Cal.4th 76 misinterpreted the mental
state required for arson. We, however, are bound by these cases.
(Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450,
455.)

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hazard. First, he knew that the dumpster was full. Second,
while defendant denied that he was the person that threw the
firecrackers, instead blaming Anthony, he testified that he “didn’t
understand why [Anthony] would throw something like [the
firecrackers] so close to the dumpster” and so he “start[ed]
tripping out on [Anthony] . . . .” The jury could infer from this
testimony that defendant subjectively understood that throwing
firecrackers near the dumpster was hazardous. Despite this
knowledge, defendant proceeded to engage in the wrongful act.
Malice in law could be presumed.
II. No Instructional Error
Defendant contends that the trial court committed
reversible error by incorrectly instructing the jury on the mental
state required for arson.
A. Relevant proceedings
The trial court instructed the jury with CALCRIM
No. 1515, the standard instruction on arson. (Mason, supra,
242 Cal.App.4th at p. 784.) As given, the instruction states: “The
defendant is charged in Count One with arson in violation of
Penal Code section 45l[, subdivision] (d). [¶] To prove that the
defendant is guilty of this crime, the People must prove that: [¶]
1. The defendant set fire to or burned or caused the burning of a
structure or property; [¶] AND [¶] 2. He acted willfully and
maliciously. [¶] To set fire to or burn means to damage or
destroy with fire either all or part of something, no matter how
small the part. [¶] Someone commits an act willfully when he or
she does it willingly or on purpose. [¶] Someone acts maliciously
when he or she intentionally does a wrongful act or when he or
she acts with the unlawful intent to defraud, annoy, or injure

10
someone else. [¶] A structure is any building. [¶] Property
means personal property or land other than forest land.”
Defendant did not object to or request any modification of
the instruction.
B. Standard of review and relevant law
“‘We determine whether a jury instruction correctly states
the law under the independent or de novo standard of review.
[Citation.] Review of the adequacy of instructions is based on
whether the trial court “fully and fairly instructed on the
applicable law.”’ [Citation.] The trial court ‘has a duty to give
instructions on the general principles of law governing the case,
even though not requested by the parties, but it need not instruct
on specific points developed at the trial unless requested.’
[Citation.] Generally, ‘it is enough for the court to instruct [on
the elements of a crime] in the language of the statute when the
defendant fails to request an amplification thereof.’ [Citation.]
‘Even if such an instruction “cannot be commended as a full or
clear exposition of the meaning of the section of the code, still it
cannot be said that it was error for the court in giving the law to
have conformed to the language of the code, and to have omitted
what that code itself omits.”’ [Citation.]
“‘“Where an instruction on a particular point or points as
given by the court is correct as far as it goes, and the only valid
objection, if any, to it is that it is deficient or inadequate by
reason of its generality, indefiniteness, or incompleteness, if
defendant desires additional, amplified, explanatory, fuller, or
more complete, elaborate, comprehensive, definite, specific or
explicit instructions on such point or points, he must properly
request the same, otherwise error cannot be predicated upon the
failure to give such additional instruction.”’ [Citation.] ‘The

11
defendant will not be heard to complain where he has failed to
request an amplification of an instruction [given in the language
of the statute].’ [Citation.]” (People v. Turner (2019)
37 Cal.App.5th 882, 887–888 (Turner).)
C. Analysis
Defendant argues that the arson instruction given by the
trial court was erroneous because it omitted an element—that
defendant “acted ‘with awareness of facts that would lead a
reasonable person to realize that the direct, natural[,] and highly
probable consequence of igniting and throwing a firecracker’ (In
re V.V., supra, 51 Cal.4th at p. 1030)[] would be the burning of
property.”
The applicable arson statute, however, does not include the
“direct, natural and highly probable consequence” language
deemed essential by defendant. Rather, section 451 states that
“[a] person is guilty of arson when he or she willfully and
maliciously sets fire to or burns or causes to be burned or who
aids, counsels, or procures the burning of, any structure, forest
land, or property.”
CALCRIM No. 1515, as given by the trial court here,
tracked the statutory language and included all elements of the
offense by instructing that the People were required to prove that
(1) “defendant set fire to or burned or caused the burning of a
structure or property;” and (2) defendant “acted willfully and
maliciously.” In addition, the instruction provided correct
definitions of “willfully and maliciously.” It explained that
“[s]omeone commits an act willfully when he or she does it
willingly or on purpose.” This comports with the statutory
definition that “‘willfully,’ when applied to the intent with which
an act is done . . . , implies simply a purpose or willingness to

12
commit the act[.]” (§ 7, subd. (1).) The instruction also explained
that “[s]omeone acts maliciously when he or she intentionally
does a wrongful act or when he or she acts with the unlawful
intent to defraud, annoy, or injure someone else.” This is
consistent with the statutory definition that “‘[m]aliciously’
imports a wish to vex, defraud, annoy, or injure another person,
or an intent to do a wrongful act[.]” (§ 450, subd. (e); see also § 7,
subd. (4).)
The Supreme Court in In re V.V., supra, 51 Cal.4th 1020
did not add an element to the crime of arson or find the statutory
definitions of willfully and maliciously inapplicable. Rather, it
explained that the element of malice can take two forms—malice
in fact and malice in law. (Id. at p. 1028.) Malice in fact is “‘a
wish to vex, annoy, or injure’ [citation]—consist[ing] of actual ill
will or intent to injure”—while malice in law is “‘an intent to do a
wrongful act . . . [,]’” which “may be ‘presumed’ or ‘implied’ from
the intentional doing of the act without justification or excuse or
mitigating circumstances.” (Ibid.) In the specific case of arson,
malice in law “will be presumed or implied from the deliberate
and intentional ignition or act of setting a fire without a legal
justification, excuse, or claim of right.” (Ibid.)
In Atkins, supra, 25 Cal.4th 76, the Supreme Court had
previously held that arson requires only “a general intent to
willfully commit the act of setting on fire under such
circumstances that the direct, natural, and highly probable
consequences would be the burning of the relevant structure or
property.” (Id. at p. 89.) In In re V.V., supra, 51 Cal.4th 1020,
the Supreme Court stated that the phrase “‘. . . under such
circumstances that the direct, natural, and highly probable
consequences would be the burning of the relevant structure or

13
property[]’” “describes arson’s malice requirement, i.e., that the
willful and intentional act is committed under circumstances that
create an obvious fire hazard.” (Id. at p. 1031, fn. 6.)
The language regarding a direct, natural, and highly
probable consequence does not add an element to the crime of
arson but rather provides an amplification of the statutory
definition of malice conveyed in the instruction given to the jury
at defendant’s trial. Because the trial court’s instruction was an
accurate statement of the law, conforming to the statutory
language, the court had no sua sponte duty to instruct on the
amplification of the malice requirement provided in In re V.V.
and Atkins. (Turner, supra, 37 Cal.App.5th at pp. 887–888.)
Defendant’s failure to ask for “‘“. . . additional, amplified,
explanatory, fuller, or more complete, elaborate, comprehensive,
definite, specific or explicit instructions . . . []”’” forfeited his claim
of error on appeal. (Id. at p. 888; see also People v. Rangel (2016)
62 Cal.4th 1192, 1223 [where jury instruction was legally correct,
the “defendant’s failure to propose any modification to the
instruction forfeit[ed] the claim of instructional error”].)
III. Assessments and Fines
The trial court ordered defendant to pay a $300 restitution
fine (§ 1202.4, subd. (b)), a $30 criminal conviction assessment
(Gov. Code, § 70373), and a $40 court operations assessment
(§ 1465.8). The court imposed but stayed a $300 parole
revocation fine (§ 1202.45).
“As a threshold matter, we must correct the trial court’s
error in failing to impose the [$30 criminal conviction and $40
court operations assessments] as to each count. (Pen. Code,
§ 1465.8, subd. (a) [assessment applies to ‘every conviction’];
Gov. Code, § 70373, subd. (a) [same]; see also People v. Smith

14
(2001) 24 Cal.4th 849, 853 [appellate court may correct error in
not imposing mandatory financial obligations].)” (People v. Hicks
(2019) 40 Cal.App.5th 320, 324 (Hicks), review granted Nov. 26,
2019, S258946.) Because defendant was convicted of six counts,
the court was required to impose a total of $180 in criminal
conviction assessments and $240 in court operations
assessments.
Defendant argues that the trial court erred in imposing the
assessments and fines without first determining that he had the
ability to pay, in violation of his federal and state constitutional
rights. In support, he relies on People v. Dueñas (2019)
30 Cal.App.5th 1157 (Dueñas).5
Based on the constitutional guarantee of due process and
ban on excessive fines, Dueñas held that trial courts may not
impose the standard $30 per count criminal conviction
assessment, $40 per count court operations assessment, and
minimum $300 restitution fine without first ascertaining the
“defendant’s present ability to pay.” (Dueñas, supra,
30 Cal.App.5th at pp. 1164, 1171, fn. 8.) We, however, have
“conclude[d] that Dueñas was wrongly decided[.]” (Hicks, supra,
40 Cal.App.5th at p. 322.) It follows that we reject defendant’s
challenge to the assessments and fines.

5 Although defendant was sentenced 10 months after Dueñas
was decided, he failed to object in the trial court to the imposition
of the assessments or fines on any basis. While that generally
forfeits a challenge on appeal (see People v. Aguilar (2015)
60 Cal.4th 862, 864), because the court did not orally pronounce
the correct, total amount owed by defendant at sentencing, we
decline to find forfeiture.

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IV. Correction of Abstract of Judgment
Although not raised by either party, we observe that the
abstract of judgment omits defendant’s conviction and stayed
sentence on count 6. “When an abstract of judgment does not
reflect the actual sentence imposed in the trial judge’s verbal
pronouncement, this court has the inherent power to correct such
clerical error on appeal, whether on our own motion or upon
application of the parties.” (People v. Jones (2012) 54 Cal.4th 1,
89.) We direct the issuance of an amended abstract correcting
the omission.
DISPOSITION
The judgment is modified to impose six $30 criminal
conviction assessments (total $180) under Government Code
section 70373 and six $40 court operations assessments (total
$240) under section 1465.8. The trial court is directed to prepare
an amended abstract of judgment reflecting these modifications,
as well as correcting the omission of the conviction and stayed
sentence on count 6, and to forward a certified copy to the
Department of Corrections and Rehabilitation.
As modified, the judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

________________________, J.
ASHMANN-GERST
We concur:

________________________, P. J. ________________________, J.
LUI HOFFSTADT

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