People v. Lewis

KENNARD, J.

I generally concur in the majority opinion. I disagree, however, with its analysis of the issue described below.

At the penalty phase of defendant’s capital trial, the prosecution introduced evidence that one morning at the Fresno County jail, defendant called a guard to complain that another inmate had not received his breakfast tray. He said that if the inmate did not receive the tray, “there was going to be some disturbance” that would involve a fire. Thereafter, defendant set fire to his bed sheet, which he then threw into a trash can outside his cell. Other *396 prisoners who had made similar calls burned bedding and pieces of paper. At trial, defendant did not object to this evidence, but he now argues it was inadmissible because it did not fall within the aggravating factors set forth in Penal Code section 190.3.

The majority correctly holds that because at trial defendant did not object to the evidence in question, he may not now challenge its admissibility. The majority goes on to state, however, that even if defendant had objected, the evidence would have been admissible as evidence of “criminal activity by the defendant which involved the express or implied threat to use force or violence.” (Pen. Code, § 190.3, factor (b) (hereafter factor (b).) I disagree.

There was no evidence that defendant, when he threatened to create a disturbance and thereafter set fire to the trash can outside his cell, was threatening to injure anyone. I recognize that under certain circumstances an act of arson would be admissible under factor (b) as a threat to use violence. An example would be the scenario in People v. Stanley (1995) 10 Cal.4th 764, 824 [ 42 Cal.Rptr.2d 543 , 897 P.2d 481 ], a case on which the majority relies. There, in a series of acts designed to terrorize the victim, the defendant set fire to the victim’s car, raped her, and eventually killed her. In contrast, here defendant intended only to inflict property damage. He threw the burning bed sheet not at a guard or a fellow inmate but into a trash can. As this court has explained: “We do not believe that violent injury or the threat of violent injury to property is sufficient to justify admissibility [under factor (b)].” (People v. Boyd (1985) 38 Cal.3d 762, 776 [ 215 Cal.Rptr. 1 , 700 P.2d 782 ], italics added; see also People v. Kirkpatrick (1994) 7 Cal.4th 988, 1013 [ 30 Cal.Rptr.2d 818 , 874 P.2d 248 ] [“To be admissible under [factor (b)], a threat to do violent injury must ... be directed against a person or persons, not against property.”].) Accordingly, here defendant’s conduct is not an aggravating circumstance under factor (b).

Insisting that defendant’s conduct involved a “threat to use force or violence against a person” (maj. opn., ante, at p. 392), the majority asserts that the “officers who had to extinguish the fire would have exposed themselves to the physical danger of not only the fire but also the inmates” (ibid.). The record contains no evidence, however, that the guards who extinguished the fires were exposed to any risk of injury.

The majority also asserts that the inmates who lived in the housing unit where the fires occurred “would have been exposed to flames and smoke inhalation if the correctional officers could not put out the fire in time.” (Maj. opn., ante, at p. 392.) But none of the guards who testified for the prosecution said there was any danger that the trash can fire set by defendant *397 could spread and endanger the safety of other inmates. Jail floors are generally made of metal or cement, and there is no evidence that the floor of the Fresno County jail was made of a flammable material. Thus, even if not extinguished, the trash can fire would simply have burned itself out without risk of harm to others.

Appellant’s petition for a rehearing was denied September 19, 2001. Chin, J., did not participate therein.