Filed 6/30/21 P. v. Henderson 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Shasta)
----
THE PEOPLE, C091536
Plaintiff and Respondent, (Super. Ct. No. 19F4273)
v. ORDER MODIFYING OPINION
AND DENYING REHEARING
DEMETRIUS VERDELL HENDERSON,
[NO CHANGE IN JUDGMENT]
Defendant and Appellant.
THE COURT:
It is ordered that the opinion filed herein on June 10, 2021, be modified as follows:
The sentence starting on the last line of page 5 and continuing onto page 6,
beginning with “Where the property burned” is deleted and replaced with
the following:
Where the property burned is “forest land” the crime is “a felony
punishable by imprisonment in the state prison for two, four, or six years.”
1
There is no change in the judgment. Appellant’s petition for rehearing is denied.
FOR THE COURT:
/s/
ROBIE, Acting P. J.
/s/
HOCH, J.
/s/
RENNER, J.
2
Filed 6/10/21 P. v. Henderson CA3 (unmodified opinion)
NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Shasta)
----
THE PEOPLE, C091536
Plaintiff and Respondent, (Super. Ct. No. 19F4273)
v.
DEMETRIUS VERDELL HENDERSON,
Defendant and Appellant.
Defendant, Demetrius Verdell Henderson, appeals a judgment entered following a
jury’s determination that he committed arson of forest land; resisted, obstructed, or
delayed an officer; and battered an officer. Defendant argues: (1) substantial evidence
does not support that he burned “ ‘[f]orest land’ ” as defined by Penal Code section 450,
subdivision (b)1 and (2) the trial court’s ability to pay determination was improperly
1 Further undesignated statutory references are to the Penal Code.
1
based on a determination that he could pay the assessed fines and fees out of his disability
payments. The People oppose defendant’s sufficiency argument, but concede remand is
required to clarify the court’s ruling on defendant’s ability to pay. For the reasons
explained herein, we conclude a limited remand is required. In all other respects, the
judgment is affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
The People’s July 16, 2019, complaint charged defendant with arson of forest land
(§ 451, subd. (c); count 1); resisting, obstructing, or delaying a police officer (§ 148,
subd. (a)(1); count 2); and battery on a police officer (§ 243, subd. (b); count 3).
Defendant pleaded not guilty, waived a preliminary hearing, and the matter was tried to a
jury.
Pertinent to defendant’s claims on appeal, at trial, the People presented evidence
that P.R. was leaving work at the tribal health center around noon when she saw
defendant, who was naked, in an area beyond the parking lot’s fence. Defendant was
situated between that fence and Highway 44, and P.R. noted him going in and out of a
bush. Shortly thereafter, P.R. saw flames in that area. Defendant was alone, and P.R. did
not see him make any effort to extinguish the flames.2 Another employee from the tribal
health center saw the flames and ran outside with a fire extinguisher, which a county
worker used to put out the fire before authorities arrived.
Officers Nicholas Weaver and Jacob Ruiz, who were in uniform, responded to the
scene. They climbed over the fence separating “the parking lot from the shrubbery on the
side of highway 44” and encountered defendant, naked and covered in dirt and leaves like
he had been rolling on the ground. He was dumping water on himself and yelling
2 People’s exhibit No. 1 is a security camera video played for the jury which,
although partially obscured by trees from the parking lot, reveals flames and smoke in
vegetation beyond the parking lot’s border.
2
nonsensically. Defendant had what was later determined to be a colostomy port in his
abdomen, which along with defendant’s erratic behavior, caused Officer Weaver to call
for medical assistance. Defendant was nonresponsive to Weaver’s questions. Next to
defendant was a six-foot-wide bush or area of brush and a burnt spot on the hill. Much of
it was smoldering, but some of it still had some small flames.
While they were waiting for the requested medical assistance, defendant threw a
one-gallon jug of what smelled like urine at Officer Ruiz, hitting him in the chest and
splashing on Ruiz’s face, eyes, nose, mouth, and chest. The officers handcuffed
defendant placing him under arrest for assault, and Weaver told Ruiz to go for medical
screening given his exposure to an unknown liquid. In the meantime, defendant
attempted to flee by running up an embankment towards Highway 44. By that time,
Officer Kevin Kimple was also on scene. Kimple and Weaver ordered defendant to stop,
but defendant kept running. Officer Weaver caught defendant by the arm, and defendant
repeatedly resisted by trying to face Weaver who was attempting to escort defendant to
where they originally encountered him.
City of Redding Fire Inspector Michael Ham testified as an expert on the cause
and origin of fires. He arrived at the scene when defendant was being taken into custody.
Ham noted the burn area was approximately 10 feet by 10 feet, running uphill from the
base of a bush. The burn area had light grass, a bush, and some trash. While the fire was
small, it was still concerning because “fires that start relatively small can grow relatively
large in a matter of minutes.” The cigarette lighters and mirror that had been recovered
from defendant’s bag could have been used to start the fire. It was Ham’s opinion that
defendant, who was the only person in the area, had started the fire with one of his
operational lighters. Ham did not believe the fire had been caused by cigarette butts,
cooking equipment, or overhead wires because there was no evidence to support them as
a source of ignition. Ham also opined the fire was not caused by a chain dragging or
3
exhaust malfunction because its ignition point was too far from the highway3 and the
parking lot. Ham took pictures of the brush that burned, as well as the general area where
the fire occurred, which showed dense brush or shrubbery on a hill with grass, weeds, and
garbage at its base.
Following the presentation of this evidence, defendant moved under section
1118.1 for acquittal on the arson count, which the trial court denied. Thereafter, the court
instructed the jury on arson of forest land and the lesser offense of unlawfully causing a
fire of forest land. (§§ 451, subd. (c), 452, subd. (c).) In so doing, the court instructed
the jury that “[f]orest land means brush covered land, cut over land, forest, grass lands, or
woods.” (See CALCRIM Nos. 1515, 1530.) After about an hour of deliberations without
any questions, the jury found defendant guilty on all counts.
On January 31, 2020, the court sentenced defendant to the midterm of four years
on the arson court, plus concurrent sentences of one year each on the two misdemeanor
convictions, with credit for 204 days actual credit plus 204 days conduct credit for a total
of 408 custody credits. The court also imposed a $300 restitution fine (§ 1202.4,
subd. (b)), a 10 percent administrative fee on that fine (§ 1202.4, subd. (l)), a $300 stayed
parole revocation restitution fine (§ 1202.45), three $40 court operations assessment fees
totaling $120 (§ 1465.8, subd. (a)(1)), and three $30 court facilities assessment fees
totaling $90 (Gov. Code, § 70373). The court reserved jurisdiction to determine victim
restitution.
Defendant timely appealed.
3 The highway was 20 to 30 feet away from the ignition point.
4
DISCUSSION
I
Arson of Forest Land
Defendant contends substantial evidence does not support his conviction for arson
of forest land (§ 451, subd. (c)) as “forest land” is as defined by section 450, subdivision
(b). He argues: (1) reference to dictionary definitions show brush covered land must be
densely populated with brush and (2) because brush covered land is included in a list of
other terms embodying large tracks of land, brush covered land must be of similar scope
in order to qualify as forest land for purposes of arson. Given his clarified definition,
defendant argues insufficient evidence supports that the land in question was indeed
“brush covered.”4 We disagree.
“ ‘In reviewing the sufficiency of the evidence, we must 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.]’ [Citation.] ‘ “[O]ur role on appeal is a limited one.” [Citation.] Under the
substantial evidence rule, we must presume in support of the judgment the existence of
every fact that the trier of fact could reasonably have deduced from the evidence.
[Citation.] Thus, if the circumstances reasonably justify the trier of fact’s findings, the
opinion of the reviewing court that the circumstances might also reasonably be reconciled
with a contrary finding does not warrant reversal of the judgment. [Citation.]’
[Citation.]” (In re V.V. (2011) 51 Cal.4th 1020, 1026.)
Section 451 provides: “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.” Where the property burned is
4 We focus on defendant’s brush covered land arguments because that is the theory
presented by the prosecution to the jury.
5
“forest land” the crime is “a felony punishable by imprisonment in the state prison for
three, five, or eight years.” (§ 451, subd. (c).) “ ‘Forest land’ means any brush covered
land, cut-over land, forest, grasslands, or woods.” (§ 450, subd. (b).) To the extent
defendant’s challenge requires us to interpret the meaning of “forest land,” we perform
this task de novo. (People v. Prunty (2015) 62 Cal.4th 59, 71.)
“Our primary task in interpreting the statute is to determine the lawmakers’ intent.
(Delaney v. Superior Court (1990) 50 Cal.3d 785, 798.) We begin with the words of the
statute and their usual and ordinary meaning, which would typically be their dictionary
definition. (People v. Gonzalez (2008) 43 Cal.4th 1118, 1126; Hammond v. Agran
(1999) 76 Cal.App.4th 1181, 1189.) Their plain meaning controls, unless the words are
ambiguous. (People v. Gonzalez, supra, at p. 1126.) ‘If the statute is ambiguous, we
may consider a variety of extrinsic aids, including legislative history, the statute’s
purpose, and public policy.’ (Ibid.)” (People v. Costella (2017) 11 Cal.App.5th 1, 5-6
(Costella).)
In approaching this task, Costella appears to be the only published opinion to
analyze the meaning of brush covered land as part of section 450’s forest land definition.
(Costella, supra, 11 Cal.App.5th at pp. 5-6.) Because brush covered land and/or brush
were not further defined by the Penal Code, Costella looked to the dictionary definition
of those terms. (Id. at p. 6.) “According to Merriam-Webster, the meaning of ‘brush’ is
‘scrub vegetation’ or ‘land covered with scrub vegetation.’ (Citation.) ‘Scrub,’ in turn, is
‘a stunted tree or shrub.’ (Citation.)” (Ibid.) There was, however, no indication in the
statute or legislative history that continuous coverage of dense brush was required for
criminal liability. (Id. at p. 7.)
Applying this definition, the Costella court found sufficient evidence supported
the defendant’s conviction. (Costella, supra, 11 Cal.App.5th at p. 6.) The record
revealed that defendant had set fire to a murder victim on the side of a highway in a place
with bare dirt, grass, and small brush scattered throughout the area. (Id. at p. 4.)
6
Nonetheless, aerial photographs of the plot showed much of the land was covered with
dense vegetation. (Id. at p. 5.) Because there was no requirement of continuous
coverage, the court concluded sufficient evidence supported that defendant had
committed arson of forest land. (Id. at pp. 6-7.)
We do not find “brush covered land” to be an ambiguous term, and thus, the plain
meaning as described in Costella is instructive. (See People v. Gonzalez, supra,
43 Cal.4th at p. 1126.) We note that nothing in the cognizable legislative history of
Senate No. Bill 116 (1979-1980 Reg. Sess.), which enacted the changes at issue in this
case, suggests that brush covered land should be construed to have the special, more
narrow meaning that defendant requests.5 Rather, a major purpose of this legislation was
to “generally simplify and reorganize the laws concerning arson.” (Judicial Council of
Cal., Analysis of Sen. Bill No. 116 (1979-1980 Reg. Sess.) May 31, 1979, p. 2
[transmitted to Senate/Assembly committees & Governor].) In pursuit of this goal, the
enactment replaced “archaic language with simple, understandable English,” for example
by simplifying the definition of arson “by referring to a ‘structure, property, or forest
land’ rather than a ‘rick or stay of hay’, ‘pile of plants’, etc.” (State and Consumer
Services Agency, Analysis of Sen. Bill No. 116 (1979-1980 Reg. Sess.) June 26, 1979.)
5 We deny defendant’s request for judicial notice of a letter to the Governor from
the bill’s author. There is no evidence this letter or its views were transmitted to the
legislature as a whole, and thus, they do not constitute cognizable legislative history.
(Kaufman & Broad Communities, Inc. v. Performance Plastering, Inc. (2005)
133 Cal.App.4th 26, 37.) We grant defendant’s request for judicial notice of the
Department of Forestry enrolled bill report. (Ibid.) This report states the legislation was
designed to both simplify the wording of the arson laws and bring the punishment for
burning forest land to the same level of punishment for burning an unoccupied structure.
This recognized that “a person who sets fire to a wildland area creates a greater threat to
life and property than many of the single building unoccupied structures that are the
subject of arson.” (Cal. Dept. of Forestry, Enrolled Bill Rep. on Sen. Bill No. 116 (1979
Gen. Sess.) June 26, 1979, p. 1.)
7
Accordingly, it is appropriate that we give the term “brush covered land” its plain
meaning.6
Applying that meaning, we conclude the record contains substantial evidence
supporting defendant’s conviction for arson of forest land (§ 451, subd. (c)). Whether the
land in question qualified as “forest land” under the statute was not specifically litigated
below, and as a result, the record is relatively sparse. However, there is evidence, which
taken in the light most favorable to the prosecution, supports defendant’s conviction. (In
re V.V., supra, 51 Cal.4th at p. 1026.)
Here, the testimony established that defendant burned an area that was
approximately 10 feet by 10 feet, running uphill from the base of a bush. The burn area
had light grass, a bush, and some trash. The burn area in question was described as a six-
foot-wide bush or area of brush. Much of it was smoldering when authorities arrived, but
some of it still had some small flames. Testimony also established responding officers
climbed over the fence separating “the parking lot from the shrubbery on the side of
highway 44” in order to reach defendant and the burn area. While the precise dimensions
of land on which the fire occurred are unknown, the fire was set at least 20 to 30 feet
from Highway 44. Further, surveillance video and pictures taken at the scene do show
areas of dense brush or shrubbery on a hill with grass, weeds, and garbage at its base.
6 In so finding, we reject defendant’s arguments that reversal is required because a
narrow construction is necessary to maintain conformity with other terms in the forest
land definition (see People v. Prunty, supra, 62 Cal.4th at p. 73 [warning against
construing listed terms in a manner which would render them “ ‘unnecessary or
redundant . . . or . . . markedly dissimilar to the other items in the list’ ”]) and that under
such construction, the evidence is insufficient to sustain his conviction. We find it
unnecessary to decide how big a plot of land must be to qualify as “brush covered land”
for purposes of the arson statute. Rather, we note that whatever the parameters of the size
qualification may be, they are met in this case.
8
Based on this record, we conclude substantial evidence supports that the land was “brush
covered,” and thus, we will uphold defendant’s conviction for arson of forest land.
II
The Ability to Pay Determination
Defendant argues the trial court erred in basing its ability to pay determination on
an assumption that he could pay the assessed fines and fees by virtue of his disability
payments in violation of title 42 United States Code section 407(a). The People concede
that if the trial court determined defendant could pay because he would make payments
from his disability funds, that would be error and request we remand the matter so that
the trial court may clarify its ability to pay determination.
While a sentencing court may take disability payments into account in assessing a
defendant’s entire financial situation when determining a defendant’s ability to pay (In re
J.G. (2019) 6 Cal.5th 867, 878-884 [victim restitution]), it is improper for a court to find
an ability to pay based on an assumption that the disability payments would be the source
of any such payments. (Id. at pp. 884-885.)
Here, the trial court imposed a $300 restitution fine (§ 1202.4, subd. (b)), a 10
percent administrative fee on that fine (§ 1202.4, subd. (l)), a $300 stayed parole
revocation restitution fine (§ 1202.45), three $40 court operations assessment fees
totaling $120 (§ 1465.8, subd. (a)(1)), and three $30 court facilities assessment fees
totaling $90 (Gov. Code, § 70373). The court reserved jurisdiction to determine victim
restitution.
Thereafter, defense counsel requested the trial court waive the 52 hours of public
defender fees in light of defendant’s indigency and despite his receipt of Social Security
disability benefits (SSI benefits). In response, the court found defendant did not have the
ability to pay for his public defender and then addressed the other fines and fees assessed
sua sponte. The court noted it had considered defendant’s indigency in not imposing the
9
normal $780 base fine for a felony conviction and in setting the restitution fine at the
statutory minimum.
The trial court then stated in pertinent part: “So the Court finds in light of the
defendant’s admission in his letter to the Court that he will be receiving SSI and his
period of incarceration, I do believe he’ll have the ability to pay just the minimum fines
that I set. [¶] Mr. Henderson, I want to express something to you, sir. The reason I
reduced the fines that were recommended by probation is because I want to give you the
best opportunity to succeed when you are released from prison. And I realize, sir, that
you now being eligible for SSI benefits is probably going to help you tremendously in
that regard as expressed to the Court in your letter to the Court. So I took that into
account.” It is unclear on this record whether the court was assuming defendant would
pay the fines and fees assessed directly from his SSI benefits. While defendant was
homeless and indigent at the time of his arrest, his probation report detailed periods of
gainful employment, thus not foreclosing the possibility that defendant would have a
future ability to pay from nondisability sources. Accordingly, we will remand the matter
to allow the court to clarify its finding in light of the guidance provided by In re J.G.,
supra, 6 Cal.5th at pages 878-885.
10
DISPOSITION
The matter is remanded so that the trial court may clarify its ability to pay
determination consistent with the guidance provided herein. In all other respects, the
judgment is affirmed.
/s/
HOCH, J.
We concur:
/s/
ROBIE, Acting P. J.
/s/
RENNER, J.
11