interFIRE Home interFIRE Home interFIRE VR Support Training Calendar Training Center Resource Center Message Board Insurance Info

Breaking Legal Developments


Published by:
Peter A. Lynch, Esq.
of Cozen O'Connor


EXECUTIVE SUMMARY:      This weekly newsletter covers:

  1. California Court Upholds Use of Prior Arson Acts in Unrelated Arson Trial


In People v. Spencer, No. C038422 (Oct. 15, 2002), the Third Appellate District in an unpublished decision reviewed Defendant's conviction by a jury of two counts of premeditated attempted murder (Pen. Code, 664/187, subd. (a)), two counts of arson of a structure (Pen. Code, 451, subd. (b)), and two counts of exploding a destructive device with the intent to commit murder (Pen. Code, 12308). Defendant was sentenced to two consecutive life terms for the attempted murder charges. Sentences on the remaining charges were stayed under Penal Code section 654.

Defendant appealed, contending that the trial court erred in admitting evidence of a 1996 uncharged act in violation of Evidence Code sections 352, 1101, and 1109 and in excluding evidence of a third party's culpability. Defendant also argued that these errors were cumulatively prejudicial.

Defendant met the victim, Kathleen Krouskop, in 1995. They began living together in an apartment on El Camino Avenue in February 1996. The couple continued to live together intermittently until shortly before defendant's arrest.

On September 2, 1996, Krouskop intended to move from the apartment and leave defendant, making him angry. While preparing to move her belongings, she left the apartment complex to telephone a friend. When she returned, she discovered that one of her cars was on fire in her parking space. Defendant, along with several neighbors, was watching the car burn. After hearing noise, apartment resident Tim Ciraolo ran to his balcony, saw Krouskop's car burning, ran to the manager's apartment, and saw defendant walking toward defendant's apartment.

After the fire, Krouskop went to stay with her friend Spurgeon Holloway for a few weeks. She and defendant then reconciled, and she moved back into the apartment. But the car was a total loss. Four years later, an arson investigator found a disposable butane lighter and a sock in the car's trunk. Krouskop could not think of any reason why she would have left a lighter in the trunk, but did note that defendant had access to the car keys. The fire had apparently originated in the driver's seat.

At the end of October 1998, Krouskop again left defendant. This time, she moved into Spurgeon Holloway's house. Holloway lived in a four-bedroom house on Willowbrook with his son, his daughter-in-law Renee Holloway Martin, and their two children.

On November 3, 1998, defendant called Krouskop at Holloway's house and asked her to come back to him. Krouskop refused. At 2:00 a.m. the next morning, Krouskop was coming out of a bathroom when there was a crash, followed by glass breaking and a big boom sound. A fire began in a child's bedroom located in the front of the house. The remains of an explosive device -- commonly referred to as a "Molotov cocktail" -- consisting of a glass bottle with gasoline in it and a wick, were found in the child's bedroom.

Several weeks later, Krouskop reconciled with defendant and returned to his El Camino Avenue apartment. In his apartment, she discovered notes on defendant's calendar containing Holloway's address and a real estate printout of Holloway's home and address. She also discovered that the clothing that she had left in defendant's closet had been cut up. Defendant admitted that he had cut up her clothing and had left them there "because he wanted [her] to see them."

At the beginning of March 2000, Krouskop left defendant once again and moved into an apartment with her mother about a block away. In or around early June 2000, she invited defendant to her apartment for dinner so that they could talk about some things.>

On July 16, 2000, Krouskop went to see defendant at their former apartment in order to sign papers concerning their car. Defendant asked Krouskop to come back home, but Krouskop refused. Krouskop asked defendant if they could be friends, but defendant said, "If we're not together, we'll never be friends."

Later that evening, Krouskop received a series of "hang-up" telephone calls and one call from defendant, suggesting that she return to their apartment for her microwave. At about 2:00 a.m., Krouskop was awakened by the sound of her bedroom window breaking, glass flying, and an explosion and fire in her bedroom. Krouskop managed to put out the fire with two rugs.

Arson investigators determined that the fire was started by a "Molotov cocktail" that had been thrown through the bedroom window. The investigator found the neck of a glass bottle with a checkered piece of cloth stuck in it, which was identified by Krouskop as similar to dish towels that she had bought with defendant. Two plastic bags smelling of gasoline, one bearing the name of Ralph's and one with the name of Springfield, were found outside Krouskop's window.

Investigators found the remains of the dish towels in the defendant's apartment, as well as plastic bags from Springfield and other stores (but not Ralph's). A maintenance man discovered that three light bulbs in the carport, near Krouskop's apartment, were unscrewed, thereby preventing them from affording any illumination. Defendant's fingerprint was found on one of the bulbs.

Counts 1, 2, and 3 charged defendant with the premeditated attempted murder of Krouskop, arson of her apartment, and ignition of a destructive device on July 17, 2000. Counts 4, 5, and 6 charged defendant with the attempted murder of Krouskop, arson of the house in which she was residing, and ignition of a destructive device on November 4, 1998.

Before trial, the prosecution sought admission of the evidence of the uncharged 1996 fire of Krouskop's car in order to prove "identity, intent, motive, absence of mistake, and common plan or scheme" under section 1101, subdivision (b). n4 The prosecution also sought to admit the 1996 fire as a prior incident of domestic violence pursuant to section 1109, subdivision (b).

The trial court found similarities between the uncharged and charged fires based on the facts that the incidents involved the same victim and that each fire erupted not long after the victim severed her relationship with the defendant. The trial court found that the evidence of the 1996 offense was therefore admissible under section 1101, subdivision (b), because it showed the "intent and circumstances" and "a pattern . . . if believed by a jury." The trial court also found the evidence admissible under section 1109, as an attempt to injure the victim directly or to place her in reasonable apprehension of serious bodily injury. Finally, the court found that the probative value of the evidence outweighed the possible prejudice.

Although the trial court did not mention that the 1996 incident would be admissible to show identity, the prosecution's written motion and argument sought its admission on that theory. And after hearing testimony of the victim at trial, the trial court agreed: "The circumstances of the firebombings . . . have a fingerprint in the matter in which they occur involving the victim. They were -- they all occur late night, with little notice after a recent break up [sic] with the victim and the defendant, and there's a clear pattern of identity . . . pinpointing back to the victim."

Evidence of the 1996 uncharged arson of Krouskop's car was presented through the testimony of Krouskop, witness Ciraolo, and arson investigator George McKinnon.

Separately, the defense sought to present evidence at trial that might suggest a different perpetrator of the 1998 fire. The defense offered the testimony of Martin, then Spurgeon Holloway's daughter-in-law living in the house at the time of the arson. Martin testified at a hearing outside the pre> sence of the jury that she had had a sexual encounter with a coworker, Clement Williams, which was discovered by Williams's girlfriend, Tracy Wallace. Wallace made threatening telephone calls to Martin at work the day before the arson (saying that she was going to "kick [her] a--" and hurt her) and a gloating telephone call to her after the arson ("How does it feel to have your house full of smoke?"). Martin testified that Wallace stole her purse after the fire and told her that she then knew where she lived. Although Martin told the arson investigator about the threatening calls in 1998, she could not remember Wallace's last name. Martin was interviewed at the time of the 1998 incident by the same arson investigator who investigated the 2000 incident.

After Wallace was located by the defense during trial, defense counsel reported that Wallace had told defense investigators that she had not known of the fire at the Holloway house until defense investigators had told her about it.

The trial court reviewed the taped interviews with Wallace and ultimately ruled that a presentation of Martin's testimony would unduly consume time and confuse and mislead the jury. It therefore excluded the testimony under section 352.

Defendant argued that the admission of the evidence of the 1996 car fire violated his state and federal constitutional rights to due process. Defendant contends that the evidence was inadmissible under section 1101, subdivision (b), and section 1109 and "was far more prejudicial than probative."

Because the evidence was found to be admissible under both sections, we must find it inadmissible under both sections in order to find error. (People v. Branch (2001) 91 Cal.App.4th 274, 280-281.) We conclude that the evidence was properly admissible under section 1101, subdivision (b), and thus we need not reach whether it was admissible under section 1109.

Section 1101, subdivision (a), prohibits the introduction of evidence of a defendant's character, including in the form of evidence of his prior offenses, in order to prove his conduct on a specified occasion. (See People v. Kipp, supra, 18 Cal.4th at p. 369.) Subdivision (b) of section 1101 allows, however, the admission of a crime, civil wrong, or other act to prove a fact other than disposition, such as motive, intent, plan, or identity.

"To be relevant on the issue of identity, the uncharged crimes must be highly similar to the charged offenses. . . . [P] . . . [P] A lesser degree of similarity is required to establish relevance on the issue of common design or plan. [Citation.] For this purpose, 'the common features must indicate the existence of a plan rather than a series of similar spontaneous acts, but the plan thus revealed need not be distinctive or unusual.' [Citation.] . . . [P] The least degree of similarity is required to establish relevance on the issue of intent. [Citation.] For this purpose, the uncharged crimes need only be 'sufficiently similar [to the charged offenses] to support the inference that the defendant "'probably harbored the same intent in each instance.' [Citations.]"' [Citation.]" (People v. Kipp, supra, 18 Cal.4th at pp. 369-371, bracketed text in original; see also People v. Carpenter (1997) 15 Cal.4th 312, 379, 935 P.2d 708.)

Defendant argued that "the car fire evidence could not have been probative of the issue of intent on [the attempted murder and destructive device with intent to murder] counts because the car fire obviously did not involve intent to murder." And although he concedes that "evidence of uncharged conduct, such as the car fire, may have been admissible as to the issue of a defendant's intent with regard to a charged offense of arson of a structure," he argues that the admission of evidence of the 1996 car fire was unnecessary because "the issue of intent as to these counts was undisputed." He reasons that "whoever threw the 'Molotov cocktails' into the respective homes . . . did so willfully and maliciously.">

However, since defendant did not concede his intent to commit arson, evidence that he threw the "Molotov cocktail" willfully and maliciously, as required by the arson statute (Pen. Code, 451), that is, with a purpose to commit the act and with a wish to vex, annoy, or injure another person or intent to do a wrongful act (Pen. Code, 7, subds. (1), (4)), was relevant. And the 1996 fire of the victim's car, if the jury found that defendant caused it, was relevant to show an intent to vex, annoy, or injure his girlfriend each time that they broke up.

More importantly, the evidence of the 1996 fire showed motive and thus identity: The distinctive thread and unchanging timing running through the uncharged and charged offenses -- a fire targeted at the same victim following her leaving the defendant, thereby angering him -- demonstrated a common motive associated with each of the fires, which helped identify defendant as the perpetrator. In short, the uncharged arson -- in light of the nature of the crime, the identity of the same victim, and the same motive and timing -- was "highly similar to the charged offenses" (People v. Kipp, supra, 18 Cal.4th at p. 369) and was thus probative of the conclusion that the same person had perpetrated all three offenses.

True, it is unusual to use an uncharged act, for which the perpetrator's identity is unclear, to prove the identity of the perpetrator of two charged crimes for which the evidence of the perpetrator's identity is stronger. But if the evidence of the uncharged crime has a "tendency in reason to prove" identity, it is, by definition, relevant and admissible under section 1101, subdivision (b).

And in this case, the common features of the three arsons help to point to the one person who had the same motive for each fire and who was clearly responsible for the last one: the defendant. The evidence clearly linked defendant to the last arson in 2000, which was directed at Krouskop's bedroom. First, the cloth in the "Molotov cocktail" was similar to dish towels that Krouskop had bought with defendant, the remains of which towels were found in defendant's apartment. Second, defendant's fingerprints were found on one of the three partly unscrewed bulbs near Krouskop's apartment, which had no other purpose but to avoid illumination on the night of the arson. Third, one of the bags outside Krouskop's apartment matched bags that defendant kept in his apartment.

The prior arson in 1998, however, offered less direct evidence of defendant's involvement. Krouskop had moved to Holloway's house only days before the arson, but found notes on defendant's calendar containing Holloway's address and a real estate printout of Holloway's house and address. But the same motive and triggering event existed for that arson as the arson that defendant had clearly perpetrated in 2000 -- anger at the recent breakup. Indeed, defendant had asked Krouskop to come back to him the very night of the 1998 arson, she had refused, and he had cut up her clothes in apparent anger.

The uncharged, 1996 arson of Krouskop's car, which immediately followed Krouskop's breakup with defendant, completed the pattern of similarly timed fires. The recurrence in three separate cases of the same crime (arson) directed at the same victim (Krouskop) following the same event (a breakup between defendant and the victim) was probative of the fact that the same person who was responsible for the 2000 arson was also responsible for the 1998 arson. The coincidences of the same victim being subjected to three arsons each time she left defendant were too great to be a mere coincidence. Accordingly, the evidence of the 1996 fire was relevant under section 1101, subdivision (b), to prove identity. (People v. Linkenauger (1995) 32 Cal.App.4th 1603, 1613.)

In People v. Green (1983) 146 Cal. App. 3d 369 at page 376, 194 Cal. Rptr. 128 (Green), the Court of Appeal observed that "'"when . . . a primary issue of fact is whether the defendant -- rather than some other person -- committed the charged offense, evidence of uncharged offenses is ordinarily admissible if it discloses a distinctive modus operandi common both to the charged and uncharged offenses . . . ."'" In Green, the court found a prior arson of defendant's estranged wife's apartment admissible as evidence for another fire in the wife's apartment. The Court of Appeal concluded that the trial court had correctly found strong unifying factors between the two incidents based on the facts that the wife's apartment was targeted by both fires, that both fires were deliberately set, that a flammable liquid had been used, and that the defendant was in the area when the fires broke out. (Id. at p. 377.)

Here, too, there were strong unifying factors among the three fires, like Green: the same victim, deliberately set fires, instigated by the same type of event, and based on the same motive. Accordingly, the evidence was relevant under section 1101, subdivision (b).

However, "there is an additional requirement for the admissibility of evidence of uncharged crimes: The probative value of the uncharged offense evidence must be substantial and must not be largely outweighed by the probability that its admission would create a serious danger of undue prejudice, of confusing the issues, or of misleading the jury." (People v. Kipp, supra, 18 Cal.4th at p. 371.) This standard, of course, is codified in section 352.

In People v. Harris (1998) 60 Cal.App.4th 727, we identified five areas of inquiry pertinent to a section 352 analysis: (1) the inflammatory nature of the evidence of the prior acts; (2) the probability of resulting confusion among the jurors; (3) the remoteness of the prior acts; (4) whether admission of the evidence will involve an undue consumption of time; and (5) the probative value of the evidence. (Id. at pp. 737-740.) We noted, "The two crucial components of section 352 are 'discretion,' because the trial court's resolution of such matters is entitled to deference, and 'undue prejudice,' because the ultimate object of the section 352 weighing process is a fair trial." (Id. at p. 736.)

In this case, addressing the first Harris factor (the inflammatory nature of the evidence), the car fire in 1996 was less dramatic and less serious than the two incidents of attempted murder targeting the victim's residence at night. Addressing the second factor (the probability of confusion), the evidence of the 1996 car fire was straightforward and did not risk any confusion on the part of the jury. Third, the 1996 car fire was not particularly remote from the two arsons in 1998 and 2000. Fourth, evidence of the uncharged offense was not time-consuming. In fact, virtually the same witnesses were used as for the charged offenses. Fifth, the risk of prejudice from admission of the car fire was minimal.

Defendant argues that the prejudice was great because "the connection between [defendant] and the car fire was speculative, at best." But the jury was instructed that it could not consider the uncharged act "for any purpose" unless it found by a preponderance of the evidence that defendant committed that act. (CALJIC No. 2.50) If the jury found that he did, the evidence of the 1996 car fire was relevant and not inflammatory or otherwise prejudicial. After all, "'"the 'prejudice' referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against defendant as an individual and which has very little effect on the issues."'" (People v. Coddington (2000) 23 Cal.4th 529, 588, overruled on another ground in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.) If the jury found defendant committed the 1996 car fire, the evidence was relevant and did not tend to evoke an emotional bias. Accordingly, the 1996 uncharged act was admissible.>

Defendant argues that the exclusion of evidence that a third party had a motive and opportunity to commit the 1998 arson deprived him of his due process right to a fair trial. As noted earlier, defendant sought to present evidence that on the day prior to the 1998 arson, Tracy Wallace threatened Renee Martin, who also lived in the house targeted by the arson. Defendant argues that this evidence met the requirements for the admission of third-party culpability evidence set forth in People v. Hall (1986) 41 Cal.3d 826, 226 Cal. Rptr. 112, 718 P.2d 99 (Hall).

"To be admissible, the third-party evidence need not show 'substantial proof of a probability' that the third person committed the act; it need only be capable of raising a reasonable doubt of defendant's guilt. At the same time, we do not require that any evidence, however remote, must be admitted to show a third party's possible culpability. . . . Evidence of mere motive or opportunity to commit the crime [by] 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." (Hall, supra, 41 Cal.3d at p. 833.)

"Courts should simply treat third-party culpability evidence like any other evidence: If relevant[,] it is admissible [citation] unless its probative value is substantially outweighed by the risk of undue delay, prejudice, or confusion [citation]." (Hall, supra, 41 Cal.3d at p. 834.)

A trial court's discretionary ruling under section 352 will not be disturbed on appeal absent an abuse of discretion. (People v. Lewis (2001) 26 Cal.4th 334, 372; People v. Alvarez (1996) 14 Cal.4th 155, 201, 926 P.2d 365.)

The trial court gave the defense ample opportunity to produce evidence that a third party had anything beyond a motive to commit the 1998 firebombing. The court permitted Martin to testify outside of the jury's presence and used law enforcement sources to locate Wallace, the purportedly guilty third party. After Wallace was located, the trial court also reviewed the substance of the defense investigator's interview with Wallace and described its contents for the record. And after a full hearing and numerous postponements of its ruling, and after reminding the defense that any additional witnesses could still be produced, the court properly found that the testimony was inadmissible under section 352 because it would mislead and confuse the jury. The court held that the court did not abuse its discretion.

Defendant argues that the evidence "constituted much more than a demonstration of mere motive or opportunity on the part of Ms. Wallace. . . . In addition, . . . Ms. Wallace actually threatened Ms. Martin with bodily harm several times, made these threatening calls to both Ms. Martin's home and work phone numbers, boldly confronted Ms. Martin at her workplace, and stole Ms. Martin's purse. Perhaps most importantly, Ms. Wallace threatened Ms. Martin with bodily harm just hours prior to the house fire. Finally, the day after the fire occurred, Ms. Wallace called Ms. Martin to ask her how it felt to 'have her house full of smoke.'"

But except for the threatening calls -- which were, as the trial court said, "more of a taunt" -- Martin's testimony did not link Wallace to the actual perpetration of the 1998 crime, as required by Hall, supra, 41 Cal.3d 826. "Evidence of mere motive or opportunity to commit the crime [by] another person, without more, will not suffice to raise a reasonable doubt about a defendant's guilt." (Id. at p. 833.) But Martin's testimony at the motion in limine effectively precluded an opportunity for Wallace to hurl a firebomb through a window at Martin's residence because it established that Wallace did not know where Martin lived before the fire: Wallace's threatening calls to Martin on the day before the fire were made to Martin's office. Wallace stole Martin's purse > after the fire and then called Martin to gloat that she now knew where Martin lived. And Martin was very clear that Wallace did not call her to gloat about the fire until after Martin had appeared on the television news in front of her burned home. Defendant's scenario that Wallace threw a Molotov cocktail at Martin's home was inconsistent with Wallace's taunt that once she got Martin's purse, she now had Martin's address.

Defendant suggests that the trial court made "a credibility determination that the evidence did not truly link Ms. Wallace to the fire" and thereby "invaded the province of the jury." But the trial court did not make a mere credibility determination. It merely determined that Martin's testimony suggested that Wallace did not have Martin's home address and that the probative value of the evidence of the threats to Martin at her office were outweighed by the risk that the evidence would mislead and confuse the jury.

Indeed, trial counsel's report to the trial court of his investigator's interview of Wallace effectively eliminated her as an effective defense witness: Wallace stated that the first time that she learned of the fire in Martin's house was when the defense investigator told her about it. She denied taking Martin's purse or knowing what she looked like.

Faced with dwindling evidence that might inculpate a third party in the 1998 arson, the trial court properly exercised its discretion under section 352. Defendant could only show a motive but not an opportunity to commit the crime in light of the evidence that Wallace did not have Martin's address.

And even if the court concluded that error had occurred, there was no miscarriage of justice. (Hall, supra, 41 Cal.3d at p. 836; People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243.) The evidence in support of the judgment -- namely, the clear evidence linking defendant with the 2000 arson against Krouskop and the distinctive similarities between that arson and the 1998 arson in terms of the device (a Molotov cocktail), motive (retaliation), timing (after a breakup with the victim), and victim -- was frankly compelling. An effort to cast blame on a third party, in the face of evidence that the third party did not even know Martin's address before the fire, would not have affected the outcome of the case. The judgment was affirmed.

Mr. Lynch can be reached at Cozen and O'Connor, 501 West Broadway, Suite 1610, San Diego, California 92101, 800-782-3366 (voice), 619-234-7831 (fax), (e-mail), Follow us on Twitter at @firesandrain.

Please direct comments, suggestions, stories, and other items to the author by e-mail at

Home | interFIRE VR Support | Training Calendar | Training Center | Resource Center | Message Board | Insurance Info
Sponsorship Opportunities
Web Site Designed for 800 x 600 by Stonehouse Media Incorporated® Copyright © 2024 All Rights Reserved.