Filed 11/2/20 P. v. Vongchanh CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Butte)
----
THE PEOPLE, C090988
Plaintiff and Respondent, (Super. Ct. No. 19CF04225)
v.
SOURIYA DANNY VONGCHANH,
Defendant and Appellant.
Defendant Souriya Danny Vongchanh was seen leaving a grass fire that damaged
a fence and threatened to burn residential structures. He was convicted of arson (Pen.
Code, § 451, subd. (d))1 and sentenced to three years in state prison plus an additional
year for the special allegation he had served a prior prison term (§ 667.5, subd. (b)). The
court also imposed various fines and fees. On appeal, defendant makes three arguments:
(1) the arson conviction is unsupported by substantial evidence; (2) remand is necessary
1 Undesignated statutory references are to the Penal Code.
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for the trial court to conduct an ability to pay hearing on the fines and fees, relying on
People v. Duenas (2019) 30 Cal.App.5th 1157 (Dueñas); and (3) his prior prison term
enhancement should be stricken under Senate Bill No. 136. We strike the one-year prior
prison term enhancement and affirm.
I. BACKGROUND
At a bench trial, two witnesses testified they were nearby the fire when it started
and saw defendant leaving the scene. Though people often camped in the area, defendant
was the only other person present when the fire started and was about 10 feet away from
the fire when the witnesses saw him walking away. One of the witnesses said she heard
the defendant say, “How did you like that?” They then left to go call for help.
Fire Captain Donald Robinson testified to arriving at the scene, seeing smoke
rising behind a fence. Before the fire was put out, a total area of .19 acres of grass had
burned and portions of the fence were damaged. He determined a 30-foot area where the
fire started, which was grassy and surrounded on three sides by residential structures and
sheds within about 50 feet. Captain Robinson could not, however, determine the source
of the fire and whether it was or was not arson. There was also no evidence the fire was
started naturally such as by lighting or downed power lines, and there was no evidence it
was started by cooking or someone smoking.
Police Officer Robert Raiter testified defendant was arrested based on the
description provided by the witnesses. He was found carrying two lighters at a nearby
store within 10 minutes of the fire being started. Officer Raiter did an in-field show up
with the witnesses who identified defendant as the person they saw at the fire. He also
described that area as a place where homeless people would camp, and he had told
defendant to leave the area the day before the fire.
The court found defendant guilty of arson. It also found true the prior prison term
allegation, which was for evading a police officer. (Veh. Code, § 2800.2, subd. (a).) The
court sentenced defendant to four years—the upper term of three years for arson and one
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year for the prior prison term. The court also imposed a minimum $300 restitution fine
(§ 1202.4, subd. (b)), a $40 court operations assessment (§ 1465.8), and a $30 conviction
assessment (Gov. Code, § 70373).
II. DISCUSSION
A. Sufficiency of Evidence
Defendant argues there was insufficient evidence supporting his arson conviction
because there was no evidence he started the fire or that it was maliciously set. The only
evidence tying him to the fire was the two witnesses who saw him in the general area
where others camped. He further argues that his alleged statement at the scene does not
take responsibility or indicate motive, so the evidence could at most support a conviction
for unlawful burning under section 452. We disagree.
We review the record in the light most favorable to the judgment to determine
whether it discloses substantial evidence. (People v. Snow (2003) 30 Cal.4th 43, 66.)
Substantial evidence 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.” (Ibid.) From the evidence, we draw all inferences supporting the fact finder’s
verdict. (People v. Olguin (1994) 31 Cal.App.4th 1355, 1382.) Before the judgment can
be set aside for insufficient evidence, “it must clearly appear that on no hypothesis
whatever is there sufficient substantial evidence to support the verdict of the [fact
finder].” (People v. Hicks (1982) 128 Cal.App.3d 423, 429.) “ ‘ “This standard applies
whether direct or circumstantial evidence is involved.” ’ ” (People v. Thompson (2010)
49 Cal.4th 79, 113.)
Section 451 is violated when a person “willfully and maliciously sets fire to or
burns or causes to be burned . . . any structure, forest land, or property.” (§ 451.) The
malice necessary for arson is not “actual ill will or intent to injure,” but instead “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.” (In re V.V. (2011) 51 Cal.4th
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1020, 1028.) The nature of arson “ordinarily dictates that the evidence will be
circumstantial,” so courts have relied on several factors to evaluate evidence of arson,
including: “motive, evidenced by a threat [citations]; prior presence in the building
[citation]; possession of inflammatory materials [citation]; presence in the vicinity at time
of fire [citations]; lack of evidence of natural or accidental cause but evidence of
intentional (incendiary) cause [citations]; more than one fire with temporal and spatial
proximity [citations]; and defendant’s possession of the instrumentality utilized to start
the fire [citations].” (People v. Beagle (1972) 6 Cal.3d 441, 449-450, abrogated on other
grounds by People v. Diaz (2015) 60 Cal.4th 1176, 1190.) “Consequently, the lack of . . .
direct evidence to establish [a defendant’s] guilt does not render the [fact finder’s] verdict
of guilty of arson constitutionally deficient.” (People v. Solis (2001) 90 Cal.App.4th
1002, 1010.)
The evidence here satisfies several factors considered in evaluating circumstantial
evidence establishing arson convictions. Defendant was not only at the scene of the fire
but was the only one there besides the witnesses, he was carrying lighters, he was at the
scene the day before the fire, there was no evidence the fire was started naturally, and he
had motive—he was told to leave the area by Officer Raiter the day before. Defendant’s
statement, “How did you like that?” and the lack of evidence that he subsequently called
for help or otherwise acted surprised by the fire supports the trial court’s reasonable
inference defendant not only started the fire but did so intentionally in retribution for
being previously forced out of the area. Captain Robinson’s inability to determine the
precise cause of the fire is not evidence against arson because he also could not rule out
arson. The circumstantial evidence in this case was more than sufficient for a reasonable
trier of fact to determine defendant started the fire and did so intentionally. (See People
v. Solis, supra, 90 Cal.App.4th at pp. 1010-1011 [finding substantial evidence of arson
with evidence defendant had access to accelerant used to start fire, threatening messages
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defendant left on a victim’s answering machine, and defendant’s motive through an
acrimonious relationship with another victim].)
There is also no evidence defendant started the fire recklessly, as required by the
lesser included offense of unlawfully causing a fire. (§ 452.) This offense is violated
when one is “ ‘aware of and consciously disregards a substantial and unjustifiable risk
that his or her act will set fire to . . . property.’ ” (In re V.V., supra, 51 Cal.4th at
pp. 1031-1032.) These unintentional fires may, for example, “include those caused by a
person who recklessly lights a match near highly combustible materials.” (People v.
Atkins (2001) 25 Cal.4th 76, 89.) Defendant points to no evidence supporting an
inference he unintentionally and recklessly started the fire, such as him carelessly lighting
a stove or throwing a cigarette.2 Instead the evidence, summarized above, supports a
contrary inference. The trial court’s finding of guilt for arson was therefore supported by
substantial evidence.
B. Fines and Fees
Defendant next argues the case should be remanded under Dueñas, supra,
30 Cal.App.5th 1157 for the trial court to hold an ability to pay hearing for the $300
restitution fine (§ 1202.4, subd. (b)), the $40 court operations assessment (§ 1465.8), and
the $30 conviction assessment (Gov. Code, § 70373). The People argue forfeiture,
defendant failed to show an inability to pay the fees, and he has no constitutional right to
an ability to pay hearing.
2 Defendant also relies heavily on In re Stonewall F. (1989) 208 Cal.App.3d 1054 to
argue there is no evidence he had the specific intent to burn any structure. But the
Supreme Court disapproved of this case and its central finding that arson is a specific
intent crime. (See People v. Atkins, supra, 25 Cal.4th at p. 84 [“arson requires only a
general criminal intent and that the specific intent to set fire to or burn or cause to be
burned the relevant structure or forest land is not an element of arson”].)
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Defendant forfeited his challenge to the fines, fees, and assessment because the
resentencing hearing was held after Dueñas was decided; there was thus authority for
requesting an ability to pay hearing at the time of the sentencing hearing and defendant
failed to do so. (Cf. People v. Castellano (2019) 33 Cal.App.5th 485, 489 [finding the
defendant did not forfeit Dueñas argument because it was decided after sentencing]; see
People v. Aguilar (2015) 60 Cal.4th 862, 866-867 [defendant’s failure to object at
sentencing to certain fees on the basis of his inability to pay forfeited the challenge on
appeal].)
In any case, we are not persuaded the analysis used in Dueñas is correct. Our
Supreme Court is now poised to resolve this question, having granted review in People v.
Kopp (2019) 38 Cal.App.5th 47, review granted November 13, 2019, S257844, which
agreed with the court’s conclusion in Dueñas that due process requires the trial court to
conduct an ability to pay hearing and ascertain a defendant’s ability to pay before it
imposes court facilities and court operations assessments under section 1465.8 and
Government Code section 70373, but not restitution fines under section 1202.4. (Kopp,
supra, at pp. 95-96.)
In the meantime, we join several other courts in concluding that the principles of
due process do not require determination of a defendant’s present ability to pay before
imposing the fines and assessments at issue in Dueñas and in this proceeding. (People v.
Kingston (2019) 41 Cal.App.5th 272, 279; People v. Hicks (2019) 40 Cal.App.5th 320,
329, review granted Nov. 26, 2019, S258946; People v. Aviles (2019) 39 Cal.App.5th
1055, 1069; People v. Caceres (2019) 39 Cal.App.5th 917, 928.) Having done so, we
reject defendant’s Dueñas challenge to his fines and fees even if it was not forfeited.
C. Senate Bill No. 136
Defendant contends his one-year prior prison term enhancement imposed pursuant
to section 667.5, subdivision (b) must be stricken pursuant to the amendment to section
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667.5, subdivision (b) by Senate Bill No. 136 (2019-2020 Reg. Sess.) effective January 1,
2020, and the People agree.
On October 8, 2019, the Governor signed Senate Bill No. 136 into law. The new
law, which became effective on January 1, 2020, amends section 667.5, subdivision (b),
which formerly imposed a one-year sentence enhancement for each separate prior prison
term or county jail term imposed under section 1170, subdivision (h) where defendant
had not remained free of custody for at least five years. (Former § 667.5, subd. (b).)
Pursuant to Senate Bill No. 136, a one-year prior prison enhancement now applies only if
a defendant served a prior prison term for a sexually violent offense as defined in Welfare
and Institutions Code section 6600, subdivision (b). (See Stats. 2019, ch. 590, § 1.)
Because his sentence was not final when Senate Bill No. 136 took effect and
because his prior offense was not for a sexually violent felony, we agree with the parties
that the amended law applies to defendant retroactively. (See People v. Vieira (2005)
35 Cal.4th 264, 306 [defendant entitled to retroactive application of criminal statute that
takes effect during the time defendant has to appeal to the United States Supreme Court];
In re Estrada (1965) 63 Cal.2d 740, 742; People v. Lopez (2019) 42 Cal.App.5th 337,
341-342.) Therefore, we modify the judgment to strike defendant’s one-year prior prison
term and otherwise affirm. We need not remand this matter for resentencing, as the trial
court already imposed the maximum sentence available. (See Lopez, supra, at p. 342.)
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III. DISPOSITION
The judgment is modified to strike the one-year prior prison term enhancement.
(§ 667.5, subd. (b).) As modified, the judgment is affirmed. The trial court is directed to
prepare an amended abstract of judgment and forward a certified copy to the Department
of Corrections and Rehabilitation.
/S/
RENNER, J.
We concur:
/S/
DUARTE, Acting P. J.
/S/
HOCH, J.
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