Opinion
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. SS072417
Retired Associate Justice of the Court of Appeal, Sixth Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Defendant Lance Oliver Scott was charged with 11 counts of arson of a forest (Pen. Code § 451, subd. (c), counts 1-11, all further statutory references are to the Penal Code unless otherwise stated) arising out of a series of fires in the Jacks Peak area of Carmel in 2006 and 2007. With regard to the arson charged in count 10, the information contained enhancement allegations that defendant used a device intended to delay ignition and act as an accelerant (§ 451.1, subd. (a)). Defendant was also charged with three drug offenses: cultivating marijuana (Health & Saf. Code, § 11358, count 12), possession of marijuana for sale (Health & Saf. Code, § 11359, count 13), and manufacturing a controlled substance by chemical extraction (Health & Saf. Code, § 11379.6, count 14). A jury found defendant guilty of all three drug offenses and five of the arson counts. The jury found defendant not guilty of the other six arson charges, including count 10, which contained the enhancement allegations. The court sentenced defendant to 10 years eight months in prison.
On appeal, defendant asserts three separate Fourth Amendment violations. He contends that the court erred when it denied his motion to suppress evidence obtained from a Global Positioning Satellite (GPS) tracking device that was placed on the undercarriage of his car without a warrant. He asserts that the court erred in denying his motion to suppress evidence obtained during searches of his home and vehicles, which were conducted pursuant to a warrant, arguing that the court did not have sufficient probable cause to issue the search warrant. He also challenges his arrest on probable cause grounds. Defendant contends that the court erred in admitting evidence of post-arrest statements he made to the police, arguing that they were obtained in violation of his Miranda rights after he invoked his right to counsel. (Miranda v. Arizona (1966) 384 U.S. 436.) Defendant contends that the court abused its discretion and violated his due process rights to present a defense and to a fair trial when it excluded evidence of an attempted arson by two other individuals on Jacks Peak shortly after he was arrested. He argues that the cumulative effect of these errors requires reversal. Lastly, defendant contends (and the Attorney General concedes) that the court erred when it ordered him to pay $5,741.15 in victim restitution to the California Department of Forestry and Fire Prevention (Cal Fire) to cover the cost of fire suppression for the five arson fires that he was convicted of setting. We accept the Attorney General’s concession on the victim restitution issue and direct the court to strike its order awarding restitution to Cal Fire. We find no other error and affirm the judgment as so modified.
Facts and Procedural History
Prosecution Case
Between June 2006 and August 2007, a series of fires occurred in the Jacks Peak area of Carmel. Jacks Peak is a heavily wooded, residential area with large homes on large lots. Access to the area is via a series of narrow roads. The terrain varies, but generally consists of grasslands and oak and pine woodlands.
The prosecution presented much of its case through the testimony of Cal Fire investigators Cliff Williams and Mark Kendall, who were the lead investigators on the case. At the time of trial, Williams had been with Cal Fire for 36 years and had 22 years experience as a fire investigator; Kendall had been with Cal Fire for 16 years and had been a full-time fire investigator for seven years. Other prosecution witnesses included: residents of Jacks Peak and other persons who discovered the fires, fire personnel who were involved in fire suppression, other fire investigators and law enforcement officers involved in the investigation, an expert in GPS tracking, and a jail informant.
Between 2002 and 2006, there were one or two accidental fires per year on Jacks Peak and no arson fires. Between June 2006 and August 2007 there were 13 arson fires on Jacks Peak. The parties presented evidence regarding the 11 charged fires, plus three uncharged arson fires. All 11 charged fires occurred near roads; most of the fires were on the uphill side of the road on a “cut bank.” (“When a road is cut into a hillside with a piece of machinery, the uphill side where the blade cuts in is referred to [as] a cut bank.”) Williams explained that if you want a fire to spread, you light it on the uphill side of the road, since fire naturally spreads uphill.
Count 1 – July 3, 2006 on Valenzuela Road (Not Guilty)
On July 3, 2006, there was a grass fire on Valenzuela Road, which burned an area 20 by 40 feet in size. The fire was caused by a TNT brand, ground bloom-type firework. Ground bloom fireworks are well-known for starting fires because they burn very hot; the flame resembles a flower and the firework spins around at a high rate of speed. Firefighters estimated the time of ignition as 11:00 p.m., eliminated other causes, and determined that this fire was due to arson.
In Monterey County, safe and sane fireworks are sold only in the cities of Marina and Seaside and only from June 28 until July 6 each year. They can be set off legally within the city limits of Seaside and Marina; however, it is common for people to buy them in those cities and take them to other parts of the county.
Uncharged Fire No. 1 – July 3, 2006 in Pebble Beach
The same day as the fire in count 1, there was an arson fire on Viscaino Road in Pebble Beach, caused by a ground bloom-type TNT firework. The estimated time of ignition was 10:49 p.m., 11 minutes before the fire on Valenzuela Road. Fire investigators testified that it was possible to get from one location to the other by car during that time. However, they were not sure whether the Pebble Beach fire was part of the series of fires, since it did not occur on Jacks Peak. Williams testified that it would be harder for an arsonist to operate in Pebble Beach than Jacks Peak because Pebble Beach is a gated community.
Count 2 – September 26, 2006 on Viejo Road (Guilty)
On Tuesday, September 26, 2006, there was a small vegetation fire on the uphill side of Viejo Road, eight to 10 feet above the roadway. The source of the fire was a sparkler. The sparkler was not consumed by the fire because it threw sparks upward and the fire burned away from the sparkler. The fire was reported at 10:11 a.m.; Kendall estimated that it started at 10:05 a.m. Kendall opined that someone threw the sparkler out of a moving car window and that it landed on pine needles and grass that readily ignited.
Uncharged Fire No. 2 – June 29, 2006
On cross-examination, defense counsel elicited evidence that there was a fire that was similar to the fire in count 2 on June 29, 2006, on Aguajito Road. A resident reported seeing a “young man, ” a blonde “adolescent” shooting fireworks into the brush on the side of the road. The adolescent was “standing next to a red, late-model American car.” Defendant’s three vehicles included an old (1994) red Oldsmobile. Kendall assumed the prosecution did not charge this fire because by the time defendant was arrested, the reporting party and the fire captain that responded to the fire had passed away.
Count 3 – October 3, 2006 on Viejo Road (Guilty)
On Tuesday, October 3, 2006, there was a small fire on a cut bank adjacent to Viejo Road. The source of ignition was a matchbook. The cover of the matchbook had been torn off and the matches had been separated and spread apart into two rows. When investigators searched defendant’s home, they found matches that had been prepared in the same way in his master bathroom. The fire was reported at 10:02 a.m. By the time firefighters arrived, the fire had burnt out due to moist weather. This fire was 100 yards from the fire in count 2.
Installation of Surveillance Cameras
Since there had been a number of fires on Jacks Peak, Cal Fire provided Kendall with surveillance cameras, which were placed at three locations: (1) at the intersection of Monhollan and Aguajito Roads near the eastern entrance into the area; (2) on Viejo Road, toward the middle of Jacks Peak, and (3) at the western entrance to the area at Aguajito Road and Highway 1. The cameras were in place by October 24, 2006.
Count 4 – October 24, 2006 on Viejo Road (Guilty)
On Tuesday, October 24, 2006, at about 10:00 a.m., area resident Robin Selvig spotted a fire across the street from her home on Viejo Road and called 911. She and her husband cleared the ground around the fire with a shovel until firefighters arrived. The fire was on a cut bank adjacent to the road, six to eight feet from the fire in count 3. The fire was bigger than previous fires, but burned less than a quarter of an acre. The fire was caused by crumpled up pieces of paper that had been ignited. The wad of paper was big enough to have been thrown, while lit, from a passing car. The paper landed in dry grass on the side of the road and the fire travelled up the cut bank.
Kendall reviewed the surveillance tapes after this fire. The image of a 1994 beige Mercury Sable (identified by its license plate number) also owned by defendant was captured on the camera at Viejo Road at 9:54 a.m. Thus, eight minutes before the 911 call, defendant’s car was less than 1 mile from the fire in count 4. Defendant’s car was the last vehicle to come through the area before the fire was reported, so his car became a “vehicle of interest.” The fires in counts 2, 3, and 4 occurred on Tuesdays, around 10:00 a.m.
Count 5 – March 3, 2007 on Valenzuela Road (Not Guilty)
On March 3, 2007, at 2:35 p.m., a resident noticed smoke near 500 Valenzuela Road and called 911. This fire was 200 to 300 yards from the fire in count 1; it burned an area 20 to 40 feet in size on the uphill side of the road.
Unlike the other fires, the fire investigators could not find a recognizable device that started this fire. Williams ruled out other possible causes including power lines, vehicle exhaust, the Christmas lights on a nearby fence, burning cigarettes, lightning, campfires, debris burning, railroads, sparks from construction equipment, and persons playing with fire, and concluded that this was a purposefully lit fire of unknown origin. Williams uses this process of elimination and a checklist of possible causes each time he analyzes a fire. He explained that this may have been a “hot start, ” meaning that the perpetrator retained the device that was used to ignite the fire. The ignition device also could have burned up in the fire or been destroyed by fire suppression activities. Williams had no doubt this was an arson fire. He felt it was part of a pattern because of its proximity to the other fires.
Count 6 – July 5, 2007 on Aguajito Road (Guilty)
On July 5, 2007, at 2:41 p.m., resident Donelle Laughlin saw a small fire, about two feet by two feet in size, next to the roadway on Aguajito Road and called 911. Williams estimated that the fire started at 2:35 p.m. and determined that it was caused by a matchbook. The matchbook was similar to that found in the fire in count 3. In forensic tests done in another case, Williams determined that a lit matchbook could “sail” 10 feet out of the window of a car moving at 20 miles per hour.
The surveillance cameras at Highway 1 revealed that defendant’s car entered the area seven minutes before the fire started; Kendall testified that it was possible to drive from that spot to the location of the fire in seven minutes. The camera at Monhollan showed a car similar to defendant’s leaving Jacks Peak two minutes after the fire started.
Count 7 – July 12, 2007 on Valenzuela Road (Not Guilty)
On July 12, 2007, a UPS driver observed a fire on an uphill bank adjacent to Valenzuela Road at 5:48 p.m. and called 911. The fire burned about a quarter of an acre. By process of elimination, fire investigators determined that this was an arson fire, but were unable to locate the device that caused this fire.
The surveillance cameras showed defendant’s car entering Jacks Peak at 6:06 p.m. on July 12, 2007, with a child in his backseat. The camera on a resident’s gate captured images of a red Oldsmobile much like defendant’s car making a U-turn in a driveway near the fire 18 to 20 minutes after the fire was reported. Kendall testified that it was not uncommon for arsonists to return to fire scenes to see what they have created.
Count 8 – July 17, 2007 on Viejo Road (Not Guilty)
On July 17, 2007, a motorist saw a grass fire on Viejo Road at 9:34 p.m. and called 911. This fire burned an area 50 feet by 30 feet in size on a cut bank. Kendall estimated the time of ignition as 9:30 p.m. By process of elimination, he determined that this was an arson fire, but was unable to locate the device that caused this fire.
Count 9 – July 21, 2007 on Barnet Segal Road (Not Guilty)
On July 21, 2007, there was an arson fire on Barnet Segal Drive. The fire was reported at 3:33 p.m. and burned an area 100 feet by 50 feet in size on a cut bank adjacent to the road. Williams was unable to locate the device that caused this fire. But by process of elimination, he determined that it was an arson fire.
Surveillance Team
In July 2007, Cal Fire assigned 15 fire investigators to conduct surveillance on defendant. The surveillance teams started watching defendant on July 22, 2007; eight to 10 officers watched defendant at any given time. Several members of the surveillance team testified at trial.
The investigators had difficulty following defendant because he was very erratic in his driving. He drove recklessly at excessive speeds, he zigzagged in and out of traffic, and failed to stop at stop signs and traffic signals. Following defendant posed significant risks to the public and the officers. Even with seven or eight people following defendant, they lost him most of the time. Moreover, because of the mountainous roads on Jacks Peak, it was easy for defendant to determine when he was being followed.
Count 10 – July 25, 2007 on Aguajito Road (Not Guilty)
Area resident Diane Carol saw five-foot flames on the side of Aguajito Road as she drove by at 10:22 p.m. on July 25, 2007. She stopped and called 911. She threw a towel and some water she had in her car on the fire and extinguished it. Under the towel, fire investigators found an incendiary device made out of six model rocket motors, two CO2 cartridges, and a shop towel that had been soaked in a combustible liquid. Investigators determined that the incendiary device caused the fire.
Investigators observed defendant’s Oldsmobile leave his house at a high rate of speed at 10:00 p.m. An investigator attempted to follow defendant, but lost track of him. By 10:35 p.m., defendant’s car was parked back at this house. The search of defendant’s home uncovered a model rocket kit without the motors and a CO2 canister; however, those items were not of the same type used in the incendiary device.
Installation of Nighttime Cameras and GPS Tracking Device; Drug Sale
Since the fires had started to occur at night, the investigators installed infrared (nighttime) cameras at the entry points at Monhollan Road and at Highway 1 on August 3, 2007. Later, a third camera was installed on Viejo Road.
On August 3, 2007, Kendall installed a GPS tracking device under the rear bumper of defendant’s Oldsmobile, which was the car that defendant drove most of the time. The surveillance team followed defendant and his wife to a restaurant in Seaside and installed the GPS device while they were having dinner. The GPS tracking device was equipped with a cell phone. Investigators can call the device and follow a suspect in “real time.” They can also call the device and download data at a later time. Police investigator Mark Hatcher testified as an expert witness regarding the GPS tracking device and explained how it worked.
On August 8, 2007, officers observed defendant and his wife on Fisherman’s Wharf, where defendant’s wife made a hand-to-hand exchange with a male.
Count 11 – August 4, 2007 on Barnet Segal Road (Guilty)
On August 4, 2007, there was a fire on Barnet Segal Drive, which was reported at 8:49 p.m. The reporting party used a fire extinguisher and his feet to put the fire out. The fire department also responded. The fire burned an area five feet in diameter on a cut bank above the road surface. Williams eliminated other causes and determined that this was an arson fire. He did not find the device that caused the fire.
Investigator Winningham observed defendant’s car, with defendant driving, exit the parking lot of the Del Monte Shopping Center (DMSC), which is on the opposite side of the highway from Jacks Peak and Barnet Segal Drive, at 8:41 p.m. Investigators Eldridge and Harp (in separate cars) followed defendant’s car as it drove up Soledad Road and under the freeway. Both saw defendant’s car turn left onto Barnet Segal Drive. Harp lost sight of the car after the left turn. Eldridge got onto the freeway, which parallels Barnet Segal, and continued to observe defendant’s car until he lost sight of it near the area where the fire occurred.
The GPS tracking data confirmed what the investigators saw: defendant left DMSC at 8:40:51 p.m., went down Soledad Road under the freeway and turned left onto Barnet Segal; it also confirmed that defendant was at the location of the fire at 8:42:50 p.m.
Uncharged Fire No. 3 – August 11, 2007 on Loma Alta Road
On August 11, 2007, at 2:54 p.m. a customer at a retail store in Seaside spotted a fire at the top of Jacks Peak and called 911. The fire was on a cut bank on Loma Alta Road. The road dead ends near the top of Jacks Peak and is not well-travelled. Williams determined that this was another arson fire of unknown origin and opined that, given its location and the foggy weather conditions, it had smoldered for a long time before breaking into open flame. Video cameras revealed that a car defendant had rented entered Jacks Peak at 12:26 a.m. and exited at 1:01 a.m. on August 10, 2007. This was the last arson fire on Jacks Peak.
Impact of Fires on Residents
Area residents testified about ways the fires affected their lives. The Mathesons altered their schedules and were hesitant to go on vacation because of the fires. Diane Carol was on guard, looking for fires and described one of the fires as “pretty scary.” Every time Selvig went outside, she checked for the smell of smoke. She kept her photographs in her garage, ready to put them in her car and leave.
Execution of Search Warrant for Defendant’s Home and Cars
Fire investigators obtained a warrant and arrested defendant and searched defendant’s home and vehicles on August 12, 2007. They found sparklers similar to those used to ignite the fire in count 2 under the front seat of defendant’s Oldsmobile. The wooden stems on the sparklers were broken. Kendall opined that the stems were broken to make it easier to toss the sparklers. The investigators also found illegal fireworks in the car, but no ground bloom fireworks.
As the officers entered defendant’s home, they smelled marijuana burning; smoke was coming from a bong that defendant’s wife had been smoking when the officers knocked on the door. The officers found sparklers on the kitchen table and a burnt sparkler with a bent stem on the back deck. They found a Whistling Pete firework on the kitchen countertop. They found newspaper articles regarding a murder/arson in Prunedale and photographs of a controlled burn at Fort Ord. Williams told the jury that serial fire setters collect news articles and photographs of other fires.
The officers observed marijuana growing in pots on the back deck and in the ground 50 to 100 feet below the deck. They found a two-pound ball of marijuana in the freezer. They found 15 bags of marijuana seeds, bags of bud marijuana, seven baggies of marijuana that had been packaged for street sales, big bags of marijuana weighing about 5 pounds, photos of marijuana gardens, and magazines dedicated to cultivating marijuana. They found hashish, drug paraphernalia, scales, $2,000 in cash, motion sensors, and a night vision scope. They found a pipe that had been jammed full of marijuana and butane, which were used to make an extract known as “honey oil, ” as well as some honey oil on a plate.
“Honey oil” is produced by pouring butane into one end of the tube; the butane soaks through the marijuana, creating an extract of pure THC resin when it comes out the other end of the tube. The user allows the butane to evaporate before consuming the honey oil.
Deputy Sherriff Robert Gonzalez opined that the amount of marijuana in defendant’s home was more than would be required for two persons’ personal use and that defendant was growing marijuana for sale. A member of the surveillance team observed defendant meet with the same man at Carmel Beach every other day. He saw defendant and the man make two hand-to-hand exchanges.
Kendall tested five sparklers in vegetation similar to that on Jacks Peak. All five of them were totally consumed by the fires they started, leaving no evidence that they caused the blazes.
Testimony of Jail Informant
Michael Morris was in the same dorm as defendant at the county jail. Defendant told Morris that he was accused of the Jacks Peak fires and said he did not set the fires. But defendant said that it would be good for him if the fires continued while he was in jail and asked Morris if he knew anyone who would be interested in helping him by setting a fire on Jacks Peak. Morris thought there might be a “payday” in it for him and said he would think about it. Defendant asked him whether he had thought about it a couple of times.
On cross-examination, Morris admitted two prior felony convictions and that he regularly did dishonest things to support his drug habit. Morris said his probation officer threatened to violate his probation if he did not cooperate with the prosecutor.
Defense Case
Defendant presented the testimony of five character witnesses, who testified regarding defendant’s love of the outdoors and interest in nature. Defendant is an avid fisherman, hunter, and camper; he is extremely knowledgeable about fishing, plants, animals, and rocks; he enjoys fossil hunting and looking for Native American artifacts. For two years, defendant did volunteer work for the Carmel River Steelhead Association, which is working to restore the steelhead trout population in the Carmel River. Witnesses were surprised to hear that defendant was charged with the Jacks Peak arsons, since defendant’s attitude toward the land was to preserve it, not destroy it. The character witnesses described defendant’s marijuana gardens on Jacks Peak and testified that defendant would haul water into the area to water his plants. Jacks Peak was a very profitable area for defendant and he knew the area well.
Defendant testified. He was 39 years old at the time of trial. He grew up in Carmel and Carmel Valley. He is married and has three children. He has been fishing since age 6 and started hunting at age 12. When he was young, his father had a horse on Jacks Peak. Growing up, defendant spent a lot of time hiking Jacks Peak; he has studied its flora and fauna and has grown marijuana there for years. Defendant testified about the animals, trees, bugs, plants, and mushrooms on Jacks Peak; he said there is only one person who knows more about the area than he does: a man who has worked at Jacks Peak Park for 20 years.
Defendant denied setting any of the fires on Jacks Peak. He respects the area and would never do anything to intentionally harm it. He often drives through Jacks Peak, rather than take the freeway, to get away in nature and because it is the “scenic route.” He drove through Jacks Peak one to three times per week.
Defendant has grown marijuana every year since age 15 in several areas, including Jacks Peak. In 2006 and 2007, he started the plants on his back porch and transplanted them to Jacks Peak in June or July. He watered the plants by hauling water into Jacks Peak in a backpack.
Every Fourth of July, defendant buys fireworks from a legal stand in Seaside and sets them off on the blacktop at a Seaside school. Sometimes, he sets off illegal fireworks there. He bought sparklers because his kids liked them. The sparklers the officers found in his car were broken from being on the floorboard or just came broken. The sparklers were left over from the Fourth of July; defendant did not realize they were still in his car.
Defendant admitted selling marijuana and processing honey oil. He denied asking Morris to start a fire or find someone who would start fire.
Defendant drove his wife to work at a shoe store in Carmel. She started work at 9:30 a.m. He usually had his youngest child who was not yet in school with him. (Counts 2 through 4 (guilty) occurred on Tuesday mornings around 10:00 a.m.) Defendant’s last full-time job was at the Monterey Abalone Company, five years before trial. He stopped working there because of an industrial injury (tennis elbow) that required surgery.
Discussion
I. Motion to Suppress GPS Evidence, Evidence Obtained Pursuant to the Search Warrant, and Arrest Warrant
Defendant asserts three Fourth Amendment claims. He contends that the court erred when it denied his motion to suppress evidence obtained from the GPS tracking device that was placed on his car without a warrant. He asserts that the court erred in denying his motion to suppress evidence obtained during searches of his home and vehicles, which were conducted pursuant to a warrant, arguing that the court did not have sufficient probable cause to issue the search warrant. He also challenges the warrant issued for his arrest on probable cause grounds.
A. Background
In 2007, defendant lived in Carmel and owned 3 vehicles: a beige 1994 Mercury Sable, a red 1994 Oldsmobile, and a 1986 blue Toyota pick-up truck.
On August 3, 2007, investigators installed the GPS tracking device under the rear bumper of defendant’s Oldsmobile while defendant and his wife were having dinner at a restaurant in Seaside. The officers did not obtain a warrant before installing the GPS device. Defendant’s car was parked in the public parking lot outside the restaurant when Kendall installed the GPS tracking device.
On August 7, 2007, Kendall obtained a search warrant to search defendant’s person, home, and vehicles. Kendall’s affidavit in support of the warrant set forth the history of the charged and uncharged fires discussed in the statement of facts (except for the July 21, 2007 fire and the August 10, 2007 fire), plus four other fires in Carmel Valley. Kendall also described the video surveillance; his investigation related to defendant’s home address, vehicle registrations, and marital status; defendant’s move from Carmel Valley to Carmel in February 2007; the deployment of the surveillance team and the results of their surveillance of defendant; the installation of the GPS device; the GPS evidence regarding the August 4, 2007 fire; and Kendall’s experience and expert opinions regarding the behavior of arsonists.
In January 2008, months before trial, defendant filed a motion to suppress the evidence obtained from his home and vehicles, as well as all statements he made after he was arrested, arguing that he was arrested without a warrant and that the search warrant was “illegally obtained.” Defendant argued that the search warrant was invalid because the evidence did not demonstrate any pattern apart from the geographic location of the fires and did not provide probable cause to believe he was setting the fires. He argued that use of a GPS tracking device is a search and seizure under the Fourth Amendment and that law enforcement conducted an illegal search when it placed the tracking device on his car. He argued that the investigators did not have probable cause to place the tracking device on his car. He asserted that with or without the GPS data, the affidavit failed to provide probable cause to believe that defendant was the arsonist, that there was no probable cause to search his Toyota pick-up, and that law enforcement did not have probable cause to arrest him without a warrant.
The prosecution opposed the motion, arguing that the search warrant was issued based on probable cause, that the officers did not have to show probable cause to place the GPS tracking device on defendant’s car, and that even if probable cause was required, there was sufficient probable cause to justify installing the tracking device, that the warrant included a search of defendant’s person, and that there was a sufficient nexus between defendant and the Toyota to justify the search of the pick-up truck.
At the hearing on the motion to suppress, Kendall testified that he had identified defendant as a suspect based on the video surveillance of Jacks Peak. The surveillance cameras recorded defendant’s car in the area of the fires on October 24, 2006 (count 4) and July 5, 2007 (count 6) shortly before the fires started. Officer surveillance indicated that defendant left his home shortly before the July 5, 2007 fire started and returned shortly after that fire started. Moreover, there was no reason for defendant to go to the target area. There were no restaurants, gas stations, or other businesses on Jacks Peak; it was not a shortcut anywhere. The surveillance team never saw him go to anyone’s home there. According to Kendall, one of the reasons they decided to install the GPS device was that defendant drove erratically, which made it difficult for the officers to follow him safely. Kendall also described the installation of the GPS device. The device had its own battery; Kendall did not tap into the vehicle’s power system to install it. Kendall did not open any doors, the hood, the trunk, or any containers on the car to install the device. The GPS tracking device was held in place by a magnet. Kendall crawled under the car and looked for a place that was accessible where the magnet would work and attached the device to the car via the magnet. It took one to two minutes to install the device; the entire operation, which included observing the parking lot for an opportunity to install the unit, took five to 10 minutes. Kendall explained that the GPS device recorded data regarding the car’s location but did not transmit the data unless initiated by the operator. The investigators used a cell phone to download the data. They would retrieve the data when they were following defendant and “lost him” or after a fire. If they knew where defendant was, they had no reason to look at the GPS data.
The prosecutor argued that no probable cause was required to install the GPS device because it was not a search. He asserted that defendant did not have an expectation of privacy on a public street and that the GPS device was a less invasive form of surveillance than the 24-hour surveillance the officers did before installing the GPS device because the GPS device only tells the officers where he was, not who he was with or what he was doing.
The court denied the motion to suppress. It found that “the placement of the GPS device on defendant’s vehicle was not a search and that the investigators had valid public safety reasons for the placement. [¶] Placement of the GPS device did not require probable cause, however, investigators had probable cause. [¶] The search warrant was validly issued. [¶] The officers had probable cause to search and arrest defendant. [¶] All searches of defendant’s home and vehicles were proper.”
B. Standard of Review
“In reviewing the trial court’s denial of a motion to suppress evidence, we view the record in the light most favorable to the trial court’s ruling, deferring to those express or implied findings of fact supported by substantial evidence. [Citations.] We independently review the trial court’s application of the law to the facts.” (People v. Jenkins (2000) 22 Cal.4th 900, 969.) “In conducting our independent review, we are concerned with the correctness of the ruling, not the trial court’s reasoning.” (People v. Zichwic (2001) 94 Cal.App.4th 944, 951 (Zichwic).)
C. Evidence Obtained Without a Warrant From GPS Tracking Device
“A search occurs when ‘an expectation of privacy that society is prepared to consider reasonable is infringed.’ ” (Maryland v. Macon (1985) 472 U.S. 463, 469, citing United States v. Jacobsen (1984) 466 U.S. 109, 113.) “ ‘A seizure occurs when ‘there is some meaningful interference with an individual’s possessory interests’ in the property seized.’ ” (Maryland v. Macon, at p. 469.)
In People v. Edelbacher (1989) 47 Cal.3d 983 the California Supreme Court explained: “An officer’s observation with the naked eye from a vantage point open to the public is ordinarily not regarded as a search within the meaning of the constitutional proscription against warrantless searches. [Citations.] In determining whether a warrantless government surveillance is proscribed by the Fourth Amendment, the inquiry is ‘whether the government intruded unreasonably on an expectation of privacy which society is prepared to recognize as valid.’ [Citations.] The determining factor is whether common habits in the use of property result in a reasonable expectation of privacy in a given situation. [Citations.] ‘What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.’ ” (Id. at p. 1015, quoting Katz v. United States (1967) 389 U.S. 347, 351.)
In United States v. Knotts (1983) 460 U.S. 276 (Knotts), the United States Supreme Court held that the monitoring of a beeper in a drum of chloroform that was tracked as it was transported in the defendant’s car did not constitute a search under the Fourth Amendment because the defendant did not have a reasonable expectation of privacy while driving his car on public roads. (Id. at pp. 281-282.) The court concluded that monitoring electronic signals does not amount to a search when the only information provided is what could be obtained through visual surveillance, such as the movements of an automobile on public thoroughfares. (Ibid.) The court observed that the beeper did not reveal anything to law enforcement that traditional surveillance would not have provided and stated: “Nothing in the Fourth Amendment prohibited the police from augmenting the sensory faculties bestowed upon them at birth with such enhancement as science and technology afforded them in this case.” (Id. at p. 282.) But the court observed that the defendant did not challenge the warrantless installation of the beeper in the chloroform container and left open the question whether the installation of the beeper, as opposed to the monitoring of the beeper after it was installed, constituted a search under the Fourth Amendment. (Id. at p. 279; United States v. Karo (1984) 468 U.S. 705, 713 (Karo) [“As [Knotts] came to us, the installation of the beeper was not challenged; only the monitoring was at issue”].)
In Zichwic, supra, 94 Cal.App.4th at pp. 953-956, this court addressed the question whether the installation of an electronic tracking device on the undercarriage of the defendant’s pickup truck was a search within the meaning of the Fourth Amendment and concluded that it was not a search. We observed that “[i]t is... settled that it is not a search to view either the exterior of a vehicle or what is exposed to the public inside the vehicle, though it is a search for an officer to physically enter the vehicle.” (Id. at p. 954, citing People v. Gale (1973) 9 Cal.3d 788, 794-795 and New York v. Class (1986) 475 U.S. 106, 114.) We noted that there were no California cases that addressed the question “whether it is a search to install an electronic tracking device on the undercarriage of a vehicle” and observed that at that time, the federal appellate courts were split on the issue. (Zichwic, at p. 954; id. at p. 955.) We noted, in particular, that the Ninth Circuit had held in United States v. Pretzinger (9th Cir. 1976) 542 F.2d 517, 520 that “attachment of an electronic location device to a vehicle moving about on public thoroughfares (or through the public airspace) does not infringe upon a reasonable expectation of privacy and therefore does not constitute a search. [Citations.] Consequently, no warrant is needed to justify installation of an electronic beeper unless fourth amendment rights would have to be violated in order to initially install the device.”
Defendant observes that the federal appellate courts remain split on the question whether the installation of a tracking device is a search. For example, the courts in U.S. v. McIver (9th Cir. 1999) 186 F.3d 1119, 1126-1127 [GPS tracking device and beeper] and United States v. Garcia (7th Cir. 2007) 474 F.3d 994, 996-997 [GPS tracking device] hold that there is no search or seizure when law enforcement installs a tracking device on a vehicle. On the other hand, United States v. Bailey (6th Cir. 1980) 628 F.2d 938, 944 (beeper), United States v. Moore (1st Cir. 1977) 562 F.2d 108, 113 (warrantless installation of beeper requires probable cause), and United States v. Holmes (5th Cir. 1976) 537 F.2d 227, 227-228 (beeper) hold that installing a tracking device is a search or seizure under the Fourth Amendment. We note that the latter cases, which defendant cites, were all decided before Knotts. Contrary to defendant’s assertion, United States v. Michael (5th Cir. 1981) 645 F.2d 252, 256-257 does not hold that installation of a tracking device is not a search. In Michael, the court assumed without deciding that installation of beeper was a search, but held that it was permissible under the facts of the case.
In Zichwic, we also observed that the Ninth Circuit had revisited this issue in U.S. v. McIver, supra, 186 F.3d 1119 (McIver). In McIver, officers placed two magnetized tracking devices, one of which was a GPS device, on the undercarriage of the defendant’s vehicle while it was parked in his driveway. (Id. at pp. 1123, 1126.) The McIver court “assumed for the sake of argument ‘that the officers committed a trespass in walking into McIver’s open driveway’..., but concluded that their action was not a search. The court reasoned that ‘ “[t]he undercarriage is part of the car’s exterior, and as such, is not afforded a reasonable expectation of privacy.” ’ [Citation.] There was no evidence that the defendant intended to shield the vehicle’s undercarriage from inspection by others. [¶] The court also concluded that the placement of the tracking devices was not a seizure of the defendant’s vehicle, because it did not interfere with his possessory interests.” (Zichwic, supra, 94 Cal.App.4th at p. 955, quoting McIver, at p. 1127.) In Zichwic, we agreed with the reasoning of McIver and held: “There can be no objectively reasonable expectation of privacy in what is regularly exposed to public view. While the undercarriage of a vehicle is not as readily seen as the hood, doors, and other parts of its exterior, the undercarriage is part of the exterior that is ordinarily exposed to public view. It does not amount to a search to examine the undercarriage, to touch it, or to attach a tracking device, so long as a police officer does so from a place where the officer has a right to be.” (Zichwic, at pp. 955-956.)
Defendant acknowledges this court’s holding in Zichwic, but urges us to re-examine our holding in that case. He argues that “given the reasonable expectation of privacy drivers have as regards the underside of their vehicles (or for any place hidden from public view on their vehicles; i.e., the trunk or engine compartment) placement of a GPS device in such a location constitutes a search or seizure within the meaning of the Fourth Amendment.” He asserts that “the underside of the car is not ‘part of the exterior of the vehicle that is ordinarily exposed to public view’ ” but is, instead, “a location that society is willing to recognize as a place where the driver or owner has an objectively reasonable expectation of privacy.” Defendant relies on the fact that people often hide their keys in magnetic boxes placed on the underside of cars and argues that underneath the bumper is not a location that drivers expect to be publicly scrutinized.
Defendant argues further that the installation of the GPS device here was more of a disturbance than the visual inspection by border guards in United States v. Rascon-Ortiz (10th Cir. 1993) 994 F.2d 749 (Rascon-Ortiz) and therefore qualifies as a search. The court in Rascon-Ortiz held that a border agent’s brief visual examination of a vehicle undercarriage was not a search, but part of a valid routine checkpoint stop. (Id. at p. 754.) The court explained that the “undercarriage is part of the car’s exterior, and as such, is not afforded a reasonable expectation of privacy. The fact that Agent Pena knelt down to look under the car does not alter this finding. An officer may shift his position to obtain a better vantage point without transforming a visual inspection into a search, even though the agent’s purpose is to look for contraband. See generally California v. Ciraolo, 476 U.S. 207, 213, ... (1986) (an officer may make observations directed at identifying the presence of contraband from a ‘vantage point where he has a right to be”); [Texas v.] Brown[, (1983)] 460 U.S. [730], 740, [overruled on another point in Horton v. California (1990) 496 U.S. 128]... (the fact that an officer changed his position and bent down at an angle to look inside the Appellees’ car is irrelevant to Fourth Amendment analysis). If, however, Agent Pena had disturbed or moved parts of the car in order to facilitate his observations, then such actions might constitute a search. See Arizona v. Hicks, 480 U.S. 321, 322, ... (1987) (‘A truly cursory inspection – one that involves merely looking at what is already exposed to view, without disturbing it – is not a “search” for Fourth Amendment purposes.’ (Emphasis added)). In this instance, Agent Pena observed only what was in plain view.” (Rascon-Ortiz, supra, 994 F.2d at pp. 754-755.) The court also stated that “Crawling under the vehicle did not significantly add to the intrusiveness of the routine checkpoint stop. Agent Pena’s conduct was no more intrusive than if he had questioned the Appellees concerning the suspicious circumstances. The inspection of the vehicle’s undercarriage lasted less than two minutes and did not involve more intrusive, time-consuming measures such as putting the car on a lift to obtain a better view.” (Id. at p. 755.)
We are not persuaded that defendant has an expectation of privacy in the undercarriage of his vehicle or the area under his bumper. A person who places a “hide-a-key” under the bumper runs the risk that it will be seen by a passerby who happens to bend over or kneel near the car. Moreover, there was no evidence that defendant had a subjective expectation of privacy in the underside of his bumper. He did not do anything to shield it from view, especially in the public parking lot. Defendant’s assertion also invites artificial limitations on permissible observation by law enforcement. Under defendant’s view, the officer may examine the car from a standing or seated position, but may not kneel, bend over, or lay on the ground to examine the exterior of the car, activities that are permitted under our current jurisprudence. (Rascon-Ortiz, supra, 994 F.2d at p. 754.)
We also reject the assertion that the installation of the GPS device here was more intrusive than the visual inspection in Rascon-Ortiz. Kendall testified that he did not open any doors, the hood, the trunk, or any containers on the car to install the GPS device. The device had its own battery and he did not tap into the vehicle’s power system to install it. Kendall crawled under the car and looked for a place that was accessible where the magnet would work and attached the device to the car via the magnet. It took one to two minutes to install the device; the entire operation, which included observing the parking lot for an opportunity to install the unit, took five to 10 minutes. In our view, this was no more intrusive than the visual examination on Rascon-Ortiz. Neither of defendant’s contentions persuades us that we should change our holding in Zichwic.
Defendant also contends that the use of the GPS tracking device in this case constitutes a search because the technology involved in the GPS device was much more intrusive than the beepers at issue in previous cases. He asserts that the holdings in Zichwic and the federal cases (except for Garcia) do not apply because they involved older beeper technology. (As noted above, McIver also involved a GPS tracking device.) In this portion of his brief, it appears that defendant is challenging not only the installation of the GPS tracking device, but also the monitoring of his movements.
In support of his contention that GPS monitoring is more intrusive than tracking with a beeper, defendant cites United States v. Berry (D. Md. 2004) 300 F.Supp.2d 366 (Berry), State v. Jackson (2003) 150 Wn. 2d 251 (Jackson), and a law review article: Hutchins, “Tied Up in Knotts? GPS Technology and the Fourth Amendment” (2007) 55 UCLA L.Rev. 409 (Tied Up in Knotts). In our view, defendant’s reliance on these authorities is misplaced.
In Berry, police placed a GPS device on the defendant’s Mercedes to keep track of the car’s location after obtaining a court order allowing them to do so. The Berry court distinguished the GPS device from the less sophisticated beeper device, noting that the police are not required to obtain a court order to place a beeper on a car in order to monitor it, pursuant to the United States Supreme Court’s decisions in Knotts, supra, 460 U.S. 276 and Karo, supra, 468 U.S. 705. (Berry, supra, 300 F.Supp.2d at p. 368.) The Berry court was uncertain whether the United States Supreme Court’s analysis would also apply to a GPS device, which, the court stated, might be viewed either as “a more sophisticated beeper” or as “technology is so intrusive that the police must obtain a court order before using it.” (Ibid.) However, the court declined to decide whether “modern GPS devices effect a search and seizure, ” because the police had obtained a court order permitting the placement of the GPS device in that case. (Ibid.) In light of its holding, the language defendant relies on, in which the court expresses uncertainty regarding the intrusiveness of GPS technology, is dicta.
Defendant also urges us to follow the reasoning of the Washington Supreme Court in Jackson, in which the court determined that a GPS device cannot be placed in Washington State without a search warrant. In Jackson, the defendant was suspected of involvement in his young daughter’s disappearance. Local police obtained two 10-day warrants allowing them to attach GPS devices to the defendant’s vehicles. GPS monitoring data showed that defendant had traveled twice to a remote site, where the girl’s body was later discovered in a shallow grave. (Jackson, supra, 150 Wn.2d at p. 257.) In evaluating the defendant’s challenge to the GPS warrants on state constitutional grounds, the Washington Supreme Court ruled that “installation and use of a GPS device on a private vehicle involves a search and seizure under article I, section 7 [of the Washington State Constitution], ” and that a warrant is therefore required. (Id. at p. 264.) The basis for the ruling was the court’s determination that “use of GPS tracking devices is a particularly intrusive method of surveillance, making it possible to acquire an enormous amount of personal information about the citizen under circumstances where the individual is unaware that every single vehicle trip taken and duration of every stop may be recorded by the government.” (Ibid.) The court rejected the view that “use of the GPS devices to monitor [the defendant’s] travels merely equates to following him on public roads where he has voluntarily exposed himself to public view.” (Id. at p. 261.)
In Tied Up in Knotts, Professor Hutchins opines that the intrusiveness of an emerging technology is critical to the Unites States Supreme Court’s constitutional treatment of that technology. She concludes that, based on the intrusiveness of GPS-enhanced tracking, the use of GPS technology must be deemed a search, which must be preauthorized by a warrant issued on probable cause. (Tied Up in Knotts, supra, 55 UCLA L.Rev. at pp. 409, 452-463.) In the passage defendant cites from Tied Up in Knotts, Professor Hutchins states that if GPS tacking “is deemed a non search, ” individual citizens will be forced to assume the risk that the government may be keeping a continuous log of their whereabouts. (Id. at p. 459.)
Berry, Jackson, and Professor Hutchins’s article express concern about the amount of data that GPS devices can record and store as compared to older tracking technology, which in turn has the potential to reveal “an enormous amount of personal information about the citizen.” (Jackson, supra, 150 Wn.2d at p. 224.) The focus of these authorities is on the quantity of data that can be obtained through GPS monitoring, as opposed to the question whether the installation of a GPS tracking device should be deemed a search.
Although Kendall testified that the GPS tracking device had the potential to track all of the car’s movements in time and space, that is not the way the officers used the GPS device in this case. Kendall did not use the GPS technology as a substitute for traditional law enforcement efforts. In addition to the GPS tracking, Kendall had eight to 10 officers in cars, following defendant and observing his activities. Kendall testified that he did not use the GPS device to track all of defendant’s activities. He relied on the GPS data when the officers who were conducting surveillance on the ground lost track of defendant because of his erratic driving habits or when a fire occurred. In addition, as the prosecutor argued below, in some respects, the GPS data provided less information than surveillance by an officer. Although the GPS device was able to track the location of defendant’s vehicle at different times, it did not provide information regarding what defendant did at a particular location, who he was with, the nature of the location he visited (i.e., whether it is was a home, a business, or woodlands) or what he did inside his car. The investigators had to use traditional officer surveillance or video surveillance to gather such information.
Moreover, the prosecution only presented GPS data relating to the fire on August 4, 2007, and that data merely confirmed what the investigators observed from their cars, namely that defendant left the DMSC at 8:41 p.m., drove down Soledad Road to Barnet Segal Drive, turned left onto Barnet Segal and was in the area of the fire at 8:43 p.m. Investigator Winningham saw defendant leave DMSC at 8:41 p.m. Investigators Eldridge and Harp saw him turn left onto Barnet Segal Drive. Eldridge got onto the freeway, which parallels Barnet Segal, and continued to observe defendant’s car until he lost sight of it when it “turned easterly right by the fire, ” meaning the spot where the fire ultimately occurred. Scene diagrams and aerial photographs reveal that the August 4, 2007 fire occurred right before the spot where Barnet Segal Drive curves eastward and is no longer visible from the freeway.
In addition to what the officers observed, the GPS data also provided information regarding the route that defendant took after he left the scene of the fire and his speed in the area of the fire. The route that defendant took after he left the fire scene is irrelevant to the question whether he started the fire. On the other hand, information regarding the speed his car was travelling tended to corroborate the prosecution’s theory that defendant started the fires by tossing incendiary items out of his car window.
In this case, law enforcement did not use the GPS device to gather enormous amounts of information on defendant and the prosecution did not present GPS evidence regarding defendant’s activities apart from those allegedly related to the fire in count 11. Thus, the privacy concerns expressed in Berry, Jackson, and Tied Up in Knotts are not implicated here.
We return to the analysis in Knotts, where the court concluded that monitoring electronic signals does not amount to a search when the only information provided is what could be obtained through visual surveillance, such as the movements of an automobile on public thoroughfares. (Knotts, supra, 460 U.S. at pp. 281-282.) The court observed that the beeper did not reveal anything to law enforcement that traditional surveillance would not have provided and stated: “Nothing in the Fourth Amendment prohibited the police from augmenting the sensory faculties bestowed upon them at birth with such enhancement as science and technology afforded them in this case.” (Id. at p. 282.) The GPS evidence presented here related only to defendant’s movements on public streets, which was identical to and corroborated what the officers who were following defendant observed. It also provided information regarding defendant’s speed as he travelled along Barnet Segal Drive. However, an officer tracking defendant would have been able to estimate his speed. We therefore conclude that the GPS tracking evidence here did not reveal anything that traditional surveillance would not have provided, and therefore did not constitute a search.
For these reasons, we conclude that the installation and the monitoring by the GPS device in this case did not amount to a search within the meaning of the Fourth Amendment. Consequently, the court did not err when it denied defendant’s motion to suppress the GPS evidence.
D. Probable Cause to Issue the Search Warrant
1. Applicable Legal Standards
The Fourth Amendment to the federal Constitution provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause.” Probable cause exists “where an officer is aware of facts that would lead a [person] of ordinary caution or prudence to believe, and conscientiously to entertain, a strong suspicion that the object of the search is in the particular place to be searched.” (Wimberly v. Superior Court (1976) 16 Cal.3d 557, 564, called into doubt on another point by constitutional amendment as stated in People v. Hunter (2005) 133 Cal.App.4th 371.) In this context, probable cause “is a fluid concept – turning on the assessment of probabilities in particular factual contexts – not readily, or even usefully, reduced to a neat set of legal rules.” (Illinois v. Gates (1983) 462 U.S. 213, 232 (Gates).) “[P]robable cause requires only a... substantial chance.” (Id. at p. 243, fn. 13.) In issuing a search warrant, there must be a “fair probability that contraband or evidence will be found in a particular place.” (Gates, at p. 238.) The existence or nonexistence of probable cause is assessed by applying a “totality-of-the-circumstances” test, which entails consideration of “the whole picture.” (United States v. Cortez (1981) 449 U.S. 411, 417.) Given a set of facts, trained officers are permitted to draw “common-sense conclusions” that are based not on certainties, but on probabilities. (Gates, at p. 231.)
2. Magistrate’s Role and Standard of Review
“The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.” (Gates, supra, 462 U.S. at p. 238.) To accomplish this task, the magistrate may consider the views and opinions of an experienced officer. (People v. Tuadles (1992) 7 Cal.App.4th 1777, 1784 (Tuadles).)
In contrast, because “ ‘the magistrate acts as a trier of fact in appraising and weighing the affidavit [citation], ’... [his or her] ‘ “determination of probable cause should be paid great deference by reviewing courts.” ’ (... Gates, supra, 462 U.S. at p. 236...) [¶]... [¶] In reviewing the issuance of a search warrant ‘[a]ll we are... asked to decide is whether the [magistrate] acted properly, not whether [the police officer] did.’ [Citations.] Our determination is not based upon a de novo review. [Citations.] [¶] Our task, as a reviewing court, is to determine whether ‘the magistrate had a “substantial basis for... conclud[ing]” that a search warrant would uncover evidence of wrongdoing.’ [Citation.] ‘ “[A]ll conflicts must be resolved in favor of the respondent, and all legitimate and reasonable inferences indulged to uphold the findings of the [magistrate] if possible.” ’ [Citation.] Moreover, doubtful or marginal cases should be resolved in favor of upholding the warrant.” (Tuadles, supra, 7 Cal.App.4th at pp. 1782-1784.)
3. Contentions & Analysis
Defendant contends that there was insufficient evidence to support issuance of the search warrant. He argues that the presence of his car at four or five of the 11 suspected arson fires does not establish a nexus between him and the fires. He argues that he was not positively identified as the driver of his car in any of those instances and that the evidence at most showed someone driving his car on public highways. He contends that there was no evidence that he started a fire or possessed arson devices. Defendant asserts that Kendall’s opinions were generalized conclusions that were based on nothing more than a hunch. He also contends that the search warrant was not saved by the good faith exception in United States v. Leon (1984) 468 U.S. 897.
As noted previously, Kendall’s affidavit in support of the search warrant set forth the history of the charged and uncharged fires (except for the July 21, 2007 fire and the August 10, 2007 fire) and four other fires. Kendall’s affidavit established a pattern of fires in the Jacks Peak area and advised that court that based on past experience, the number of fires was unusual. Kendall described: (1) the extensive investigation of the fires, spanning a period of almost one year, which included his investigation of defendant’s home address, vehicle registrations, and marital status; (2) defendant’s move from Carmel Valley to Carmel in February 2007; (3) the video surveillance; (4) the deployment of the surveillance team and the results of their surveillance efforts; (5) the installation of the GPS device; (6) the GPS evidence regarding the August 4, 2007 fire that placed defendant at the precise location of that fire at the time it started; (7) Kendall’s fire and law enforcement experience; and (8) his experience investigating arson fires. Kendall’s affidavit also contained several expert opinions regarding the behavior of arsonists.
The affidavit detailed the similarities between the fires. Several of the fires occurred in close proximity to one another; some involved the same incendiary devices (match books, fireworks); three occurred on the same day of the week at the same time of day. The affidavit recounted how defendant became the primary suspect because surveillance by the officers and the video cameras repeatedly showed defendant’s vehicles near fire scenes. Kendall told the court that all of the fires were located along rural roads that had limited traffic. In spite of this, vehicles belonging to defendant and his wife were seen in the vicinity of three of the fires around the time of ignition. On one occasion, one of defendant’s vehicles was spotted near a fire scene several minutes after the fire occurred, during fire suppression efforts. Kendall told the court that “arsonists frequently return to the scene of the fire to witness the fire suppression efforts and often gain some type of gratification from the excitement of the suppression scenes.” Thus, there was evidence linking defendant to four of the fires. On one other occasion, the surveillance team saw defendant leave his home for approximately 30 minutes, during which time a fire occurred. In our view, these facts would lead a person of ordinary prudence to entertain a strong suspicion that defendant was involved in the fires.
Defendant argues that he was not positively identified as the driver of his cars in any of those instances. To the contrary, Kendall’s affidavit told the court that the surveillance team had positively identified defendant as the driver of the red Oldsmobile on July 25, 2007 (when he was away from home at the time that a fire started), and on August 4, 2007 (count 11). In addition, the surveillance team had documented defendant driving the Oldsmobile on several occasions, but had only observed his wife drive it once. The affidavit included a physical description of defendant, described his driving habits and stated that the vehicles were registered to defendant or his wife. Kendall had accessed defendant’s DMV records and obtained a photograph of defendant, which he used to confirm his identity.
The warrant affidavit stated with particularity each item the officers were searching for, including matches, matchbooks, materials used to construct incendiary devices, model rockets and model rocket motors, CO2 canisters, ignitable liquids, shop towels, receipts for items used to construct incendiary devices, instructions relating to the construction of such devices, fireworks, scanners capable of scanning police and fire frequencies, and burn holes in vehicle carpeting. All of these items were related to the series of fires at issue. The search warrant also sought periodicals, newspaper clippings, digital media, photographs and computer files regarding fires, fire investigation, or fire suppression. Kendall explained that, based on his training and experience, “media (news paper articles, etc) surrounding arson is often collected and held by the suspects” as a “testament to their work.” Such material “adds to the excitement and feeds the gratification” of the arsonist. Probable cause “ ‘may be based not only upon the circumstances and conduct recited in the affidavit but also upon the affiant’s interpretation of and opinion about those circumstances and conduct.’ ” (Tuadles, supra, 7 Cal.App.4th at p. 1784.) Circumstances and conduct that “ ‘ “would not excite the suspicion of the man on the street might be highly significant to an officer who had had extensive training and experience....” ’ ” (Ibid.) Kendall, the affiant, had extensive training and experience in fire investigations and “ ‘the magistrate could legitimately consider [his opinions] in determining probable cause for the search.’ ” (Ibid.)
We hold that there was a substantial basis for the magistrate’s finding of probable cause to issue the search warrant. Consequently, the court did not err when it issued the warrant or when it denied the motion to suppress the evidence obtained as a result of the search. Inasmuch as we find that there was probable cause to issue the warrant, we do not address defendant’s Leon claim.
E. Probable Cause to Arrest
Defendant argues that since law enforcement did not have probable cause to search, there was not sufficient probable cause to arrest him. He asserts further that since he “was interrogated soon after his illegal arrest, his post-arrest admissions should have been excluded as fruits of the poisonous tree.”
“Cause to arrest exists when the facts known to the arresting officer would lead a person of ordinary care and prudence to entertain an honest and strong suspicion that the person arrested is guilty of a crime.” (People v. Price (1991) 1 Cal.4th 324, 410.) “Determining whether an officer had cause to arrest requires two analytically distinct steps, each with its own standard of review. First, the court ascertains when the arrest occurred and what the arresting officer then knew; second, the court decides whether the officer’s knowledge at the time of arrest constituted adequate cause. On appeal, a reviewing court must accept the trial court’s express or implied findings on disputed factual issues in the first step of the inquiry if they are supported by substantial evidence, but a reviewing court must use its independent judgment to review the second step of the inquiry.” (Id. at p. 409.)
Defendant was arrested at 9:20 a.m. on August 12, 2007. He was away from home, driving his Oldsmobile. About the same time, the officers executed the search warrant of his home. As set forth in our analysis of defendant’s challenge to the search warrant, the fire investigators conducted a lengthy investigation and had accumulated substantial information linking defendant to the fires. In our view, the facts set forth in the affidavit in support of the search warrant provided substantial evidence that would lead a person of ordinary prudence to entertain an honest and strong suspicion that defendant was guilty of arson. The same facts that supported issuance of the search warrant also provided probable cause for the arrest. We therefore conclude that there was adequate cause to arrest defendant and that the court did not err in denying the motion to suppress on this basis.
II. Admission of Evidence Allegedly Obtained in Violation of Defendant’s Miranda Rights
Defendant contends that the trial court erred when it denied his motion to exclude statements he made during his interview with Kendall and Eldridge on August 12, 2007, shortly after he was arrested. According to defendant, his statements were inadmissible because they were obtained in violation of his Miranda rights after he invoked his right to counsel.
A. Background
After defendant was arrested on August 12, 2007, he was taken to the Monterey City Police Department, where he was questioned by Battalion Chief Kendall and Investigator Eldridge. The interrogation was recorded on videotape and later transcribed. Neither the videotape nor the transcript was in evidence, but Kendall testified about some of the statements that defendant made during the interview.
Defendant’s challenge is based on the portion of the interview that follows. (“LS” is defendant Lance Scott, “MK” is Battalion Chief Mark Kendall, and “RE” is Investigator Ron Eldridge.) Right before this exchange, Kendall took a waiver form out of a binder and filled in part of the form. The form is not in the record.
“MK: My partner’s gonna read you your uh, your rights, okay?
“RE: Okay, before we ask you any questions, you must understand your rights. You have the right to remain silent, anything you say may be used against you in court. Do you understand?
“LS: Yeah.
“RE: Um, with this, uh, right in mind are you willing to talk with us?
“LS: Um, I don’t really know what this is about, yeah.
“RE: We’ll get to that....
“MK: Yeah
“RE: But I need you to answer the question.
“LS: Will I.... ?
“MK: Yeah.
“LS:... will I talk with you? Yeah, I’ll talk with you.
“MK: Okay...
“RE: You have the right to an attorney before and during any questioning, if you cannot afford an attorney, one will be appointed, appointed for you before, uh, any questions. Um do you understand these rights?
“LS: Uh, yeah.
“RE: With these rights in mind, are you willing to talk with us?
“LS: Um, yeah, I wanna know what this is about.
“MK: Okay. [I need] you to sign right here that, saying that you’ve understood your rights, right there. [(Kendall handed defendant the waiver form.)]
“(Pause) [(There were 28 seconds of silence while defendant read the waiver form. It appears he read the entire form.)]
“LS: I didn’t say I don’t wanna lawyer right now.
“MK: Okay, then sign right there. [(It appears Kendall either did not hear or did not understand what defendant just said.)]
“LS: What?
“MK: What, say, I’m sorry....
“LS: I didn’t say I didn’t wanna lawyer right now. I’m, I’m not gonna sign that says I don’t....
“MK: Okay.
“LS:... wanna a lawyer....
“MK: Okay.
“LS: I mean, I might, might wanna law-, lawyer so....
“MK: (Inaudible)
“LS: I mean, I could, I could write that, uh, I understand that, you know, I might, you know, so....
“MK: Okay[.] [(Defendant handed the unsigned waiver form back to Kendall).] [S]o, uh, with these rights in mind, do you wanna to talk to us now?
“LS: Sure.”
Kendall began questioning defendant about the merits of the case. After approximately 30 minutes, defendant said: “Yeah, actually I do want to talk to my lawyer, I think.” Kendall said, “Okay, not a problem” and “interview’s over” and agreed to bring defendant a phone so he could call his lawyer. About 20 minutes later, Williams transported defendant to the Monterey County jail. Defendant once again said he wanted to talk to his lawyer. Two days later, Deputy Gonzalez of the Monterey County Sheriff’s Office questioned defendant, who was still in custody, without a lawyer present.
At trial, defendant made a motion in limine to exclude his statements to law enforcement, arguing that they were obtained in violation of his Miranda rights. At the hearing on the motion, defendant argued that his words were not a clear waiver of his right to counsel. The prosecution argued that once defendant was presented with the waiver form, he became concerned about waiving his right to an attorney for all purposes, and that defendant did not want to sign something that said he was giving up his right to counsel.
The court reviewed the transcript, viewed the first five minutes of the videotape, and ruled: “Well, for the purposes of this interview, I agree with the District Attorney’s position. The defendant states twice that he does want to talk to them. They do go through this thing about him signing a waiver. He says, ‘I don’t want to sign a waiver, ’ apparently under the impression that if he signs something he’s giving up his right to have a lawyer, period. But – and then he said – again, asked if he wants to talk to them now, and he says sure. [¶] So that’s not really indicating any hesitancy to go along with the conversation. He just indicates he doesn’t want to sign away a right that he may want to exercise in the future and, in fact, he does exercise it about a half hour later. So the Court feels that this interview, at least, is admissible.” The court stated that it would address the admissibility of the interview with Deputy Gonzalez at a later time. The prosecution presumably elected to proceed without that evidence, since there were no further proceedings related to the interview with Deputy Gonzalez.
In the interview on August 12, 2007, defendant gave the officers some background information (including information about his wife’s work schedule), admitted that he drove to the scene of one of the Jacks Peak fires after the fact, said he saw a large fire in Sonora the week before, said he saw the August 11, 2007 fire on Jacks Peak from his kayak in the bay, admitted he drove to Jacks Peak the night before that fire to “smoke a bowl, ” and agreed that he was at DMSC on August 4, 2007, after confronted with the surveillance evidence, but denied lighting any fires that day or at any other time.
B. Applicable Legal Standards & Analysis
“In Miranda, supra, 384 U.S. 436, the United States Supreme Court ‘recogniz[ed] that any statement obtained by an officer from a suspect during custodial interrogation may be potentially involuntary because such questioning may be coercive’ and ‘held that such a statement may be admitted in evidence only if the officer advises the suspect of both his or her right to remain silent and the right to have counsel present at questioning, and the suspect waives those rights and agrees to speak to the officer.’ [Citation.] The Miranda safeguards apply to confessions and ‘statements which amount to “admissions” of part or all of an offense’ regardless of whether they are exculpatory or inculpatory in nature.” (People v. Guerra (2006) 37 Cal.4th 1067, 1092 (Guerra), disapproved of on another ground as stated in People v. Rundle (2008) 43 Cal.4th 76, 151.) A statement obtained in violation of Miranda is not admissible in the prosecution’s case in chief. (Ibid.)
A waiver of Miranda rights may be express or implied. (Berghuis v. Thompkins (2010) ___ U.S. ___ [130 S.Ct. 2250, 2261] (Thompkins); People v. Whitson (1998) 17 Cal.4th 229, 244, fn. 4.) However, unless the prosecution proves by a preponderance of the evidence that the waiver was made voluntarily, knowingly, and intelligently, the waiver is invalid. (People v. Whitson, at pp. 247-248.) To determine whether a Miranda waiver is valid, courts apply the totality of the circumstances test. As instructed by the California Supreme Court: “ ‘The due process [voluntariness] test takes into consideration “the totality of all the surrounding circumstances — both the characteristics of the accused and the details of the interrogation.” ’ [Citations.] This test ‘examines “whether a defendant’s will was overborne” by the circumstances surrounding the giving of a confession.’ ” (Guerra, supra, 37 Cal.4th at p. 1093.)
The standard of review for a trial court’s ruling on the validity of a Miranda waiver is two-part. First, we independently review the trial court’s determinations as to whether coercive police activity was present and whether the Miranda waiver was voluntary. (Guerra, supra, 37 Cal.4th at p. 1093.) Second, “[w]e review the trial court’s findings as to the circumstances surrounding the confession, including the characteristics of the accused and the details of the interrogation, for substantial evidence. [Citation.] ‘To the extent the facts conflict, we accept the version favorable to the People if supported by substantial evidence.’ ” (Ibid.)
In the present case, the trial court ruled that defendant’s Miranda waiver was valid, finding that defendant had initially stated twice that he wanted to talk to the officers. With regard to their discussion about the waiver form, the court found that defendant was under the impression that if he signed the form he would give up his right to ever have a lawyer and that after defendant refused to sign the waiver form, the officers asked him again if he wanted to talk to them and he said, “Sure.” The court held, “So that’s not really indicating any hesitancy to go along with the conversation. He just indicates he doesn’t want to sign away a right that he may want to exercise in the future and, in fact, he does exercise it about a half hour later.” We have independently and carefully reviewed the videotape and the transcript of defendant’s statement to Kendall and Eldridge, with particular attention to the portions of the transcript cited by defendant and the issue of the validity of the Miranda waiver. Before Kendall handed defendant the waiver form, defendant twice stated that he was willing to talk to the officers. The first time was after Eldridge advised him of his right to remain silent and that anything he said may be used against him in court. The second time was after Eldridge told him that he had a right to counsel and that an attorney would be appointed if he could not afford one. In our view, there was nothing inappropriate about the manner in which the interview was conducted. We find that substantial evidence supports the trial court’s findings with regard to the circumstances surrounding the waiver.
Defendant contends that his repeated assertions that “[he] didn’t say [he] didn’t wanna lawyer right now, ” coupled with his refusal to sign the waiver form amounted to an unequivocal request for counsel. Alternatively, he argues that if those assertions were ambiguous, then under United States v. Rodriguez (9th Cir. 2008) 518 F.3d 1072 (Rodriguez), the officers were limited to asking questions that were aimed at clarifying his statements since they had not yet obtained his waiver.
The United States Supreme Court established the applicable rule in Davis v. United States (1994) 512 U.S. 452: “[A]fter a knowing and voluntary waiver of the Miranda rights, law enforcement officers may continue questioning until and unless the suspect clearly requests an attorney.” (Id. at p. 461; People v. Gonzalez (2005) 34 Cal.4th 1111, 1124 (Gonzalez).) The High Court recently discussed its holding in Davis in Thompkins, supra, 130 S.Ct. 2250, and stated that when invoking the Miranda right to counsel, “a suspect must do so ‘unambiguously.’ If an accused makes a statement concerning the right to counsel ‘that is ambiguous or equivocal’ or makes no statement, the police are not required to end the interrogation, [citation], or ask questions to clarify whether the accused wants to invoke his or her Miranda rights, ....” (Thompkins, at pp. 2259-2260, citing Davis, supra, at pp. 458-459.) The court explained, “A requirement of an unambiguous invocation of Miranda rights results in an objective inquiry that ‘avoid[s] difficulties of proof and... provide[s] guidance to officers’ on how to proceed in the face of ambiguity. [Citation.] If an ambiguous act, omission, or statement could require police to end the interrogation, police would be required to make difficult decisions about an accused’s unclear intent and face the consequence of suppression ‘if they guess wrong.’ [Citation.] Suppression of a voluntary confession in these circumstances would place a significant burden on society’s interest in prosecuting criminal activity. [Citations.] Treating an ambiguous or equivocal act, omission, or statement as an invocation of Miranda rights ‘might add marginally to Miranda’s goal of dispelling the compulsion inherent in custodial interrogation.’ [Citation.] But ‘as Miranda holds, full comprehension of the rights to remain silent and request an attorney are sufficient to dispel whatever coercion is inherent in the interrogation process.’ ” (Thompkins, at p. 2260.)
The Thompkins court explained, “Although Miranda imposes on the police a rule that is both formalistic and practical when it prevents them from interrogating suspects without first providing them with a Miranda warning, [citation], it does not impose a formalistic waiver procedure that a suspect must follow to relinquish those rights. As a general proposition, the law can presume that an individual who, with a full understanding of his or her rights, acts in a manner inconsistent with their exercise has made a deliberate choice to relinquish the protection those rights afford.” (Thompkins, supra, 130 S.Ct. at p. 2262.) “The Miranda rule and its requirements are met if a suspect receives adequate Miranda warnings, understands them, and has an opportunity to invoke the rights before giving any answers or admissions. Any waiver, express or implied, may be contradicted by an invocation at any time. If the right to counsel or the right to remain silent is invoked at any point during questioning, further interrogation must cease.” (Id. at pp. 2263-2264.)
In California, our Supreme Court has instructed that “[c]onsistent with Davis, a reviewing court – like the trial court in the first instance – must ask whether, in light of the circumstances, a reasonable officer would have understood a defendant’s reference to an attorney to be an unequivocal and unambiguous request for counsel, without regard to the defendant’s subjective ability or capacity to articulate his or her desire for counsel, and with no further requirement imposed upon the officers to ask clarifying questions of the defendant.” (Gonzalez, supra, 34 Cal.4th at p. 1125.) Thus, questioning need not cease where “ ‘a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel, ....’ ” (Id. at p. 1127.) Additionally, “the reviewing court must ‘accept the trial court’s resolution of disputed facts and inferences, and its evaluations of credibility, if supported by substantial evidence. [The reviewing court] independently determine[s] from the undisputed facts and the facts properly found by the trial court whether the challenged statement was illegally obtained.’ ” (Id. at p. 1125.)
Defendant relies on Rodriguez, supra, 518 F.3d 1072, in which the Ninth Circuit Court of Appeals held “that the ‘clear statement’ rule of Davis applies only after the police have already obtained an unambiguous and unequivocal waiver of Miranda rights. Prior to obtaining such a waiver, however, an officer must clarify the meaning of an ambiguous or equivocal response to the Miranda warning before proceeding with general interrogation.” (Id. at pp. 1074, 1080.) In Rodriguez, National Park Service rangers stopped the defendant on suspicion of driving under the influence. After reading the defendant the Miranda warnings, one of the rangers asked the defendant whether he wished to speak to the rangers and the defendant responded, “I’m good for tonight.” The ranger understood this to mean that the defendant was willing to talk to him and proceeded to question the defendant. (Id. at p. 1075.) The court held that the defendant’s response was ambiguous and that the officers therefore had a “duty to clarify what Rodriguez meant – and if he meant he didn’t want to talk, that right should have been ‘scrupulously honored.’ ” (Id. at p. 1080.) The court held further that “the clarification rule of Nelson v. McCarthy [(6th Cir. 1981) 637 F.2d 1291, 1296] survives Davis..., except in situations where the suspect under interrogation has already given an unequivocal and unambiguous waiver of his Miranda rights.” (Id. at pp. 1080-1081.)
In light of the United States Supreme Court’s recent decision in Thompkins, it is unclear whether the holding of Rodriguez is correct. (See Thompkins, supra, 130 S.Ct. at p. 2275 & fn. 7 (dis. opn. of Sotomayor, J.) [observing that “the suspect’s equivocal reference to a lawyer in Davis occurred only after he had given express oral and written waivers of his rights” and stating that the Thompkins majority “ignores this aspect of Davis, as well as the decision of numerous state and federal courts declining to apply a clear-statement rule, ” including Rodriguez].) However, we need not resolve this question, since this case is factually distinguishable from Rodriguez. Unlike Rodriguez, the officers here obtained an unambiguous statement from defendant that he was willing to talk to them. After Eldridge gave defendant the Miranda warnings, but before Kendall asked defendant to sign the written waiver form, Eldridge asked defendant “With these rights in mind, are you willing to talk with us?” and defendant responded “Um, yeah, I wanna know what this is about.” In our view, this was an unequivocal waiver of his Miranda rights. Consequently, Rodriguez does not apply and Davis controls this case.
After defendant gave the oral waiver of his Miranda rights, Kendall asked him to sign the waiver form. Defendant took about half a minute to review the form, then refused to sign it. Defendant relies on two of the statements he made when he refused to sign the form (“I didn’t say I don’t wanna lawyer right now” and “I didn’t say I didn’t wanna lawyer right now”) and argues that those statements, coupled with his refusal to sign the form, were an unequivocal request for counsel. We disagree.
The evidence here, especially the videotape, supports the trial court’s conclusion that defendant was not invoking his right to counsel and that defendant interpreted the written waiver form as a waiver of the right to ever request counsel, something he was not willing to do. The officers were not required to get a formal written waiver from defendant; his oral waiver sufficed. (Thompkins, supra, 131 S.CT. at p. 2262 [Miranda “does not impose a formalistic waiver procedure”].)
Moreover, when read in context and viewed in light of the totality of the circumstances, we conclude that defendant’s statements were, at most, an ambiguous or equivocal request for counsel and that, under Davis, the officers therefore were not required to end the interrogation or ask questions to clarify whether the defendant wanted to invoke his Miranda rights. (Davis, supra, 512 U.S. at pp. 458-459; Thompkins, supra, 131 S.Ct. at pp. 2259-2260.) Defendant relies on two of the statements that he made during this exchange with Kendall. After Kendall realized that defendant was not going to sign the waiver form, the only thing Kendall said was the word “okay” or was inaudible. Removing Kendall’s comments and reviewing defendant’s statements in context of everything he said, results in the following: “I didn’t say I didn’t wanna lawyer right now. I’m, I’m not gonna sign[.] [T]hat says I don’t... wanna a lawyer.... I mean, I might, might wanna law-, lawyer so.... I mean, I could, I could write that, uh, I understand that, you know, I might, you know, so....” Defendant uses the word “might” and suggests altering the form because he might want a lawyer in the future. This was, at most, an equivocal request for counsel. (See e.g., Anderson v. Terhune (9th Cir. 2008) 516 F.3d 781, 788 [suspect “did not equivocate in his invocation” because he did not “us[e] words such as ‘maybe’ or “might” or “I think’ ”].)
Moreover, after defendant refused to sign the waiver form and made these ambiguous statements, Kendall asked a clarifying question: “[S]o, uh, with these rights in mind, do you wanna to talk to us now?” and defendant said, “Sure.”
For all these reasons, we conclude that the trial court did not err when it admitted evidence obtained during defendant’s interview with Kendall and Eldridge.
III. Exclusion of Third Party Culpability Evidence
Defendant contends that the trial court abused its discretion when it excluded evidence of an attempted arson on Jacks Peak on August 18, 2007. He asserts that the exclusion of this evidence violated his due process right to a fair trial and to present a defense.
A. Background
On August 18, 2007, six days after defendant was arrested, while he was in custody, Jackson Sheriden (age 19) and Robert Savale (age 20) made an incendiary device out of a deconstructed roman candle firework and electrical tape, drove to Jacks Peak, ignited the device, tossed it out the window of Sheriden’s car onto the stone driveway at 505 Valenzuela Road, and drove away. The device burned out and did not start a fire. A few minutes later, the two young men drove past the driveway to check on the results of their efforts.
The resident at 505 Valenzuela found the device and reported the incident. Images from the Cal Fire surveillance cameras and the camera on the resident’s gate allowed investigators to identify Sheriden’s car and Sheriden. Investigators contacted both Sheriden and Savale. Sheriden initially denied being in the area. Both men said they threw the device out of the car window “to see what would happen.” They denied any intent to start a fire and said they threw the device on the driveway near a stone wall to avoid starting a fire. Both men pleaded guilty to throwing a lighted substance on a roadway (Health & Saf. Code, § 13003, subd. (a)).
At trial, defendant made a motion in limine to admit evidence regarding the incident involving Sheriden and Savale as evidence of third party culpability. Defendant argued that the prosecution’s case was a “complex web of circumstances” and that this evidence of an attempted arson would diffuse the prosecution’s assertion that the Jacks Peak fires stopped after defendant was arrested. Defendant argued that the evidence was relevant because: (1) the August 18, 2007 incident occurred very close to the locations of three charged fires that occurred on Valenzuela Road (counts 1, 5, and 7); (2) it involved an unusual incendiary device, similar to that used in count 10; and (3) Savale worked close to the location of the uncharged fire in Pebble Beach.
The prosecutor argued that the evidence was not relevant because Sheriden and Savale’s device did not start a fire; they threw it onto a paved area near a stone wall and if they wanted to set a fire, there was lots of vegetation nearby. Moreover, there was no evidence that linked Sheriden and Savale to the charged or the uncharged fires.
The trial court stated that “a couple of the circumstances are enough to raise an eyebrow, ” including the location and the timing of the behavior. But, the court observed that there was no fire in the August 18, 2007 incident and that there was no evidence linking Sheriden and Savale to any of the fires at issue. The court reasoned that if Sheriden and Savale were responsible for the Jacks Peak fires, they would have shown up on the video surveillance at various times, just like defendant did. The court stated that if they wanted to set a fire, the driveway next to a stone wall would have been the last place they would have tossed the device. The court found that there were insufficient links between Sheriden and Savale’s behavior and the charged fires to put this evidence before the jury and denied the motion.
B. Contentions
Defendant argues that unlike the circumstantial case against him, there was direct evidence on the videotape showing Sheriden or Savale throwing an arson device out of a car window. He asserts that although Sheriden and Savale were not charged with attempted arson, that is what their conduct amounted to. Defendant argues that this evidence was admissible because (1) the incident occurred close to the location of the charged fires in counts 1, 5, and 7; (2) Sheriden and Savale’s device was similar to the device in count 10; (3) Savale lived two miles from the uncharged Pebble Beach fire; and (4) the method Sheriden used (throwing the device out the window) was what the prosecution alleged defendant did. Defendant argues that the trial court’s reasoning was flawed because there was only video surveillance for six of the 11 fires because the video cameras were not always in place or the fires occurred at night when it was too dark to film.
C. Applicable Legal Standards
In People v. Hall (1986) 41 Cal.3d 826 (Hall), our state Supreme Court addressed the standard by which the trial court assesses the admissibility of proposed third-party culpability evidence. It rejected “the Mendez-Arline rule, ” under which third-party culpability evidence was held to be “admissible only if it constitute[d] ‘substantial evidence tending to directly connect that person with the actual commission of the offense.’ ” (Hall, at pp. 828, 831.) The Supreme Court concluded that such a standard was unduly exacting and instead held that such evidence “need only be capable of raising a reasonable doubt of [the] defendant’s guilt.” (Id. at p. 833.) It held that third-party culpability evidence should be treated “like any other evidence: if relevant it is admissible ([Evid. Code, ] § 350) unless its probative value is substantially outweighed by the risk of undue delay, prejudice, or confusion ([Evid. Code, ] § 352).” (Id. at p. 834.) But while rejecting the more restrictive standard of admissibility, the court observed: “At the same time, we do not require that any evidence, however remote, must be admitted to show a third party’s possible culpability. As this court observed in Mendez, evidence of mere motive or opportunity to commit the crime in another person, without more, will not suffice to raise a reasonable doubt about a defendant’s guilt: there must be direct or circumstantial evidence linking the third person to the actual perpetration of the crime.” (Id. at p. 833.) The Hall standard for determining the admissibility of third-party culpability evidence has been reiterated on numerous occasions by the Supreme Court. (See, e.g., People v. Hamilton (2009) 45 Cal.4th 863, 914; People v. Robinson (2005) 37 Cal.4th 592, 625; People v. Bradford (1997) 15 Cal.4th 1229, 1325.)
The rule was based on People v. Mendez (1924) 193 Cal. 39 and People v. Arline (1970) 13 Cal.App.3d 200. (Hall, supra, 41 Cal.3d at pp. 828-829.)
In a number of instances, the trial court’s exclusion of a defendant’s proffered third-party culpability evidence has been upheld on appeal, due to the defendant’s failure to show that the evidence had met the threshold requirements of Hall. For example, in People v. Yeoman (2003) 31 Cal.4th 93, 140, the trial court properly excluded evidence that the victim’s car was burglarized by third parties one week before his murder, where one of the third parties called another person to say that if the victim did not withdraw his testimony, that third party would end up being incarcerated for 12 years for the burglary. (Ibid.) Although the defense theorized that the burglar was responsible for the later murder, it had no evidence to connect him to the crime. (Ibid.) The high court concluded that since the “defendant’s offer of proof showed motive only, [it] was thus insufficient.” (Id. at p. 141; see also People v. Geier (2007) 41 Cal.4th 555, 581-582 [evidence that third party was seen with victim at restaurant on night of her murder properly excluded, due to absence of evidence connecting him to crime].)
Similarly, in People v. Samaniego (2009) 172 Cal.App.4th 1148, 1172-1173, the trial court excluded the defendants’ proffered evidence that the victim, a drug dealer, got into an argument with, and was threatened with a knife by, a third party on the day he was shot and killed. The eyewitness to the shooting did not identify the third party as having been present, and another witness (familiar with the third party’s voice) who heard the assailants could not identify the third party as having been one of them. (Id. at p. 1175.) The appellate court concluded that while the defendants’ evidence showed that the third party had motive and opportunity, the evidence was properly excluded because there was no evidence that he was involved in any way with the murder. (Ibid.)
And in People v. Adams (2004) 115 Cal.App.4th 243, this court excluded evidence that a third party (Kallerup), the victim’s “ ‘off and on’ boyfriend with mental problems” (id. at p. 247), may have been involved in the charged rape, sodomy, and murder (id. at p. 250). The defendant’s proffer included evidence that the victim and Kallerup “had a stormy and violent history” (ibid.); and the existence of similarly burned cigarette butts in both the victim’s apartment and Kallerup’s motel room, and crushed beer cans in the victim’s carport and in Kallerup’s motel room (id. at p. 251). There was DNA evidence from the victim from which Kallerup was eliminated as a donor and from which a comparison “against the criminal justice DNA database [resulted in]... a ‘cold hit’ to [the] defendant’s DNA profile.” (Id. at p. 248.) We rejected the defendant’s claim of error, concluding that there was nothing directly linking Kallerup to the commission of the crimes: “[T]he trial court correctly concluded that the evidence proffered by the defense was ‘lacking sufficient direct or circumstantial evidentiary value or connection to link Mr. Kallerup to the actual perpetration of the crime or crimes.’ The crushed beer cans found outside the carport were a different brand from the cans in Kallerup’s motel room. The cigarette butts were found in the apartment, not at the crime scene which was in the carport. Furthermore, in the absence of fingerprint or DNA evidence linking the cigarette butts to an individual, they could have been left by any of the many individuals who had come to [the victim’s] apartment. ‘[E]xclusion of evidence that produces only speculative inferences is not an abuse of discretion.’ [Citation.] [¶] In addition, Kallerup’s history of violence toward [the victim], without direct or circumstantial evidence linking Kallerup to the actual perpetration of the crime, was inadmissible under Evidence Code section 1101.” (Id. at p. 253.)
“The trial court has broad discretion in determining the relevance of evidence. [Citation.] We review for abuse of discretion a trial court’s rulings on the admissibility of evidence.” (People v. Harris (2005) 37 Cal.4th 310, 337.) Further, “[a] trial court’s discretionary ruling under Evidence Code section 352 will not be disturbed on appeal absent an abuse of discretion.” (People v. Lewis (2001) 26 Cal.4th 334, 372-373.) Since third-party culpability evidence is treated like any other evidence (Hall, supra, 41 Cal.3d at p. 834), a trial court’s exclusion of such evidence is likewise reviewed for abuse of discretion. (People v. Robinson, supra, 37 Cal.4th at pp. 625-626; People v. Gutierrez (2002) 28 Cal.4th 1083, 1137 (Gutierrez).)
D. Analysis
We apply the two-prong test of admissibility under Hall, supra, 41 Cal.3d at page 834, in evaluating whether the court here abused its discretion by excluding the third-party culpability evidence. We assess whether defendant’s proffered evidence was relevant and admissible, and if so, we then determine whether the court properly exercised its discretion under Evidence Code section 352 in concluding that the probative value of the evidence was substantially outweighed by a risk that its introduction would cause undue delay, prejudice or confusion. (Gutierrez, supra, 28 Cal.4th at p. 1136.)
Under Hall, defendant was required to show either “direct or circumstantial evidence linking the third person [Sheriden and Savale] to the actual perpetration of the crime.” (Hall, supra, 41 Cal.3d at p. 833.) As the trial court found, there was nothing that placed Sheriden or Savale on Jacks Peak at the time of any of the charged fires or the uncharged fires. Although Sheriden and Savale constructed an incendiary device out of a firework, it was very different from the incendiary device in count 10, which was made out of six model rocket motors, two CO2 cartridges, and a shop towel that had been soaked in a combustible liquid. The arson fires were all lit in dry grass and brush on the side of the road; most were on the uphill side of the road, which fire investigators said increased the likelihood that the fires would spread. Sheriden, on the other hand, threw his device onto a paved driveway, near a stone wall, which was unlikely to ignite. Moreover, Sheriden and Savale did not start a fire. Defendant’s contention that the Sheriden and Savale incident was relevant because of its similarities to the fires in counts 1, 5, 7 and 10 is undercut by the fact that defendant was acquitted of those counts. Thus, even if there were some similarities between the incident and those counts, the failure to admit the evidence was clearly harmless. Since the proffered third party evidence was not relevant to the crimes at issue, we conclude the court did not abuse its discretion when it excluded that evidence.
E. Due Process Claim
Defendant contends that the exclusion of the third party culpability evidence violated his due process rights to a fair trial and to present a defense. Defendant acknowledges that he did not object on these grounds below, but argues that the claim should not be deemed forfeited because it would have been futile to object on this basis after the court excluded the evidence. He also asserts that he is not precluded from raising the issue on appeal, because the claim asserts a fundamental constitutional right. Lastly, he urges us to exercise our discretion to reach the issue. He also argues that if we conclude that the issue has been forfeited, then his counsel was ineffective.
In view of the ineffective assistance of counsel claim, we are persuaded that we should exercise our discretion to reach the constitutional issue. However, in light of our conclusion that the court did not abuse its discretion when it excluded the inadmissible, irrelevant third party evidence, we reject defendant’s claim that the exclusion of this evidence violated his due process rights. (See People v. Lewis, supra, 26 Cal.4th at pp. 372-373.)
IV. Cumulative Error
Since we have rejected each of defendant’s claims we have addressed thus far, we also reject his claim of cumulative error.
V. Restitution Order
The trial court ordered defendant to pay $5,741.15 to Cal Fire in victim restitution to cover the cost of its fire suppression efforts. Defendant contends that the restitution order must be stricken because it is an unauthorized sentence, citing People v. Martinez (2005) 36 Cal.4th 384 (Martinez). The Attorney General concedes that the restitution order was erroneous.
In Martinez, the our state Supreme Court disapproved of In re Brian N. (2004) 120 Cal.App.4th 591 to the extent it held that a fire department that has incurred labor costs in fighting a fire on property not owned by the department is a direct victim of the crime of unlawfully causing a fire (Pen. Code, § 452, subd. (c)). (Martinez, supra, 36 Cal.4th at p. 394, fn. 2.) Martinez explained that victim restitution “is limited to ‘entities against which the [defendant’s] crimes had been committed’ –that is, entities that are the ‘immediate objects of the [defendant’s] offenses.’ ” (Id. at p. 393.) Cal Fire did not claim that it owned any of the land that was damaged by the arson fires and only sought restitution for its fire suppression efforts. Thus, under Martinez, the restitution order must be stricken. We therefore accept the Attorney General’s concession.
Disposition
The trial court’s order directing defendant to pay $5,741.15 to Cal Fire in victim restitution is stricken. As so modified, the judgment is affirmed. The clerk of the superior court is directed to prepare an amended abstract of judgment reflecting that the victim restitution order has been stricken. The clerk is also directed to forward a certified copy of the amended abstract of judgment to the Department of Corrections.
WE CONCUR: Bamattre-Manoukian, Acting P.J., Mihara, J.