Filed 1/22/20 P. v. Maynor CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

TIMOTHY MAYNOR,

Defendant and Appellant.

F079221

(Super. Ct. No. BF174858A)

OPINION

THE COURT*

APPEAL from a judgment of the Superior Court of Kern County. John W. Lua, Judge.

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

Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Catherine Tennant Nieto, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

A jury convicted appellant Timothy Maynor of arson (Pen. Code, § 452, subd. (b))/count 1) and misdemeanor trespassing (§ 602, subd. (m)). In a separate proceeding, the trial court found true three prior prison term enhancements (§ 667.5, subd. (b)). On April 16, 2019, the court struck the three prior prison term enhancements and sentenced Maynor to the aggravated prison term of four years on his arson conviction and a concurrent local term of 180 days on his trespassing conviction.

On appeal, Maynor contends the court prejudicially erred by its failure to comply with section 866.5 at the preliminary hearing. We affirm.

FACTS

The Prosecution Case

The prosecution evidence established that on May 2, 2018, at approximately 1:51 p.m., two fire trucks responded to a house on Brown Street in Bakersfield, including one with Kern County Fire Engineer Geoffrey Van and his crew. The house appeared to be abandoned and smoke was coming out from one side. After the gas was shut off, Van entered the house and found that the kitchen ceiling had a temperature reading of between 400 and 600 degrees. Although there were no flames, there was substantial charring on sheetrock in the kitchen. To determine whether there was a fire in the attic, Van and another firefighter used long poles with hooks on the end to break a 12-foot square area in the ceiling.

The kitchen did not have a stove or any other appliances. However, in a small cubby area, the gas supply line for a stove protruded from the wall and the valve attached to it was in the open position. In front of the valve was a makeshift “fireplace kiln” made of cinder blocks and bricks that were stacked on each side of the gas supply line. burnt construction member lay under one of the masonry blocks.

Bakersfield Fire Captain Brian Bowman also responded to the Brown Street house. In the kitchen where the gas line protruded from the wall, he saw food cans around the makeshift kiln and it appeared someone had been opening the gas valve, lighting it and using it like a blowtorch to heat food. Bowman also saw evidence of extreme heat in that area that consisted of charring on the plywood that helped form the cubby area and charred paint that had peeled off.

Kern County Fire Captain Richard Turner responded to the house on Brown Street to investigate the cause of the fire. He contacted Maynor in the front yard of the house. Maynor stated he was trying to homestead the property and had been living there for three years. He did not pay rent but had placed the gas service at the house in his name. Maynor also told Turner he was drying clothes and had fallen asleep when the fire occurred.

Turner entered the house and found it was extremely hot, like a sauna. In the living room, which was in disarray, he saw clothes on top of a mattress and a pillow and blanket on a sofa. In the kitchen, Turner saw cinder blocks, food containers, and paint that had been burned off a wall. There was also damage from a previous fire on the baseboard under the gas line that protruded from the wall. Additionally, the sheetrock from the portion of the ceiling that had been knocked down and the insulation that had been on top of it were smoldering and were extinguished with water from a firehose. Turner determined the fire that caused the material to smolder originated in the kitchen area where the gas line came out of the wall.

After inspecting the house, Turner contacted Maynor again and told him he could not live at the property because it had been red tagged and that he could be cited and arrested for being there.

On May 26, 2018, at approximately 7:50 p.m., Bakersfield police officers were dispatched to the house on Brown Street on a trespassing call. Although it appeared abandoned and had yellow stickers posted that stated it had been condemned, the officers found Maynor inside. Maynor told the officers the owner of the house allowed him to stay inside but he could not name the owner.

The prosecutor also introduced Maynor’s preliminary hearing testimony during which Maynor testified that on May 2, 2018, as he had done numerous times without incident, he was heating stones in a makeshift kiln that he “placed together” out of cinderblock and cement pieces. When he tried to turn the gas off, he heard a click and the flame got larger. He called the gas company and was told they would have to call the fire department. When the fire department arrived, a firefighter turned off the gas. Since the flame did not ignite anything, the fire department did not use any water at the house. Maynor did not know why they cut an area of the ceiling and he could not believe he was arrested and charged with arson because nothing caught on fire.

Maynor constructed a fence around the house because he believed that to adversely possess the house he had to fence it, but a code inspector tore the fence down. When he went to court on a previous trespassing citation, the house was auctioned. One day at the house, a young man in his early 20’s told him that “they” had bought it and the man allowed him to stay there to “housesit.” Maynor also spoke to an insurance adjuster who confirmed one of the owners was a young man. The adjuster was there to take pictures and Maynor told him that no fire occurred there.

During cross-examination, Maynor testified he had permission to be at the house from the young man who was an owner of the house, but he could not remember the man’s name. On May 2, 2018, he was using the flame from the gas line to heat rocks. When he attempted to turn off the gas the flame grew to a height of about four feet.

The Defense

Maynor testified he first visited the property in 2015 and that he intended to acquire it from the City of Bakersfield through adverse possession. He planted trees and grass on the property and had the water and gas turned on in his name. In the kitchen, he made a kiln with cinderblocks, a piece of cement, and stones. Maynor would use the flame from the gas line to heat rocks up in the kiln to extract gold from them that he used to make jewelry.

Maynor had done this hundreds of times before without incident. However, on May 2, 2018, he had been heating rocks for about 30 minutes when he had to leave for an appointment. He tried to turn the valve on the gas line off by using a three-foot long rod, but it malfunctioned, and the flame increased to a height of about chest level. Although the flame from the gas line came out of the kiln and reached a height of four feet, it did not get out of control. Maynor acknowledged he was still on the property on May 26, 2018. He was impeached with three felony convictions and his conduct in once providing false information to a police officer.

DISCUSSION

Background

On December 18, 2018, at Maynor’s felony arraignment on the underlying charges, the trial court granted his request to represent himself. Prior to granting Maynor’s request, the court advised him of the “perils, pitfalls, dangers and disadvantages of self-representation” and it found that Maynor “waived counsel and knowingly and intelligently elected to represent himself.”

On January 2, 2019, at Maynor’s preliminary hearing, after the prosecution presented its case, the following colloquy occurred:

“MR. MAYNOR: I wish to testify myself, Your Honor.

“THE COURT: You understand that’s rarely done at a preliminary hearing. This is not a trial. It can be used against you in a trial if it’s inconsistent at all with anything else that someone says you said.

“Do you understand that?

“MR. MAYNOR: Yes.

“THE COURT: Do you still wish to testify?

“MR. MAYNOR: Yes.

“THE COURT: So[,] we’ll allow a narrative, Mr. Prince, as opposed to him having to ask himself questions and answer.

“MR. PRINCE: That’s fine, Judge.

“THE COURT: So[,] speak slowly so we can get all your points, and go ahead and tell us what you wish us to know, Mr. Maynor, ….”

Analysis

Section 866.5 provides, “The defendant may not be examined at the [preliminary] examination, unless he is represented by counsel, or unless he waives his right to counsel after being advised at such examination of his right to aid of counsel.” Failure to comply with this section requires exclusion at trial of a defendant’s preliminary hearing testimony. (People v. Mora (1953) 120 Cal.App.2d 896, 898‒899, overruled on other grounds in People v. Van Eyk (1961) 56 Cal.2d 471, 477.)

Maynor contends the court violated section 866.5 because it did not advise him at the preliminary hearing of his right to counsel or obtain a waiver of that right. He further contends the court’s error violated his state and federal constitutional right to due process, requiring reversal of his convictions. Respondent contends Maynor forfeited his claim of error because defense counsel did not object to the introduction of Maynor’s preliminary hearing testimony. Alternatively, respondent contends the court’s advisement complied with section 866.5 because Maynor waived his right to counsel on December 8, 2018, and at the preliminary hearing the court advised him that his testimony could be used against him at trial and, in any event, the error was harmless. We agree that Maynor forfeited this issue and alternatively that any error was harmless.

Defense counsel did not object to the admission of Maynor’s preliminary hearing testimony. Thus, Maynor forfeited his right to challenge the introduction of this testimony into evidence at his trial. (People v. Doolin (2009) 45 Cal.4th 390, 437.) However, even assuming this issue were properly before us and that the court erred as Maynor contends, we would find the error was not prejudicial.

Maynor contends that although a violation of section 866.5, constitutes an error of state law, it implicated his federal constitutional due process right to the state complying with its own laws. He further contends the preliminary hearing is a critical stage in the proceedings and that section 866.5 is the device the Legislature chose to implement a defendant’s right to counsel at that hearing. Thus, according to Maynor, the court’s failure at his preliminary hearing to appoint counsel to represent him or to advise him of his right to counsel, as required by section 866.5, violated his federal right to counsel under the Sixth and Fourteenth Amendments and his right to counsel under article I, section 15 of the California Constitution. Maynor further contends that the violation of his federal constitutional right to counsel requires reversal unless the error was harmless beyond a reasonable doubt, whereas the violation of his state constitutional right to counsel requires reversal unless it is reasonably probable he would have obtained a more favorable result absent the error (Cal. Const., art. VI, § 13, People v. Watson (1956) 46 Cal.2d 818, 836). Moreover, according to Maynor, reversal is required under either standard because his preliminary hearing testimony that the flame reached a height of up to four feet was probably the key evidence the jury focused on in finding his conduct reckless. Maynor is wrong.

The alleged error did not infringe on Maynor’s federal constitutional right to counsel because “[f]ederal authority holds that once a defendant gives a valid waiver [of his right to counsel], it continues through the duration of the proceedings unless it is withdrawn or is limited to a particular phase of the case.” (People v. Crayton (2002) 28 Cal.4th 346, 362.) Further, the Watson standard of prejudice applies to a superior court’s error in failing to follow a statutory command to readvise a defendant of his right to counsel, especially when the defendant has already validly waived his right to counsel. (Cf. Crayton, supra, 28 Cal.4th at p. 364 [Watson standard of prejudice applies to court’s failure to readvise defendant, pursuant to § 987, of his right to counsel when defendant is arraigned on information].)

To convict Maynor of arson in violation of section 452, the prosecutor had to prove he set fire to, burned or caused the burning of a structure, that he did so recklessly, and that the structure was inhabited. (CALCRIM No. 1531.) To prove Maynor was reckless, the prosecutor had to prove Maynor was aware that his actions presented a substantial and unjustifiable risk of causing a fire, he ignored the risk, and ignoring the risk was a gross deviation from what a reasonable person would have done in the same situation. (Ibid.)

Without Maynor’s preliminary hearing testimony, the prosecution evidence established that Maynor would ignite gas coming out of the gas line in the kitchen and use the flame it created like a blow torch to heat up food or perform other tasks. On May 2, 2018, he admitted to Turner he had fallen asleep while he was using the flame from the gas line to dry clothes. On previous occasions Maynor had burned the baseboard running under the gas line, the plywood that formed the cubby area where the stove should have been installed, and a construction member under a cinderblock that formed the makeshift kiln. The jury could find from these circumstances that Maynor was aware that igniting the flame directly on the gas line, with or without a makeshift kiln in front of the line, could easily cause the surrounding area to burn and that he acted recklessly by doing so. The jury could also find from Turner’s testimony that the flame reached a height greater than four feet because Turner testified that the flame reached high enough to char the sheetrock on the ceiling, which was about six to seven feet off the ground, and to cause the insulation on top of the sheetrock to smolder. Thus, Maynor’s preliminary hearing testimony that the flame from the gas line reached a height of four feet did not prejudice him because other evidence established that it reached a substantially greater height.

DISPOSITION

The judgment is affirmed.