People v. Belton

Opinion

FLEMING, J.

Belton appeals a judgment murder, second degree (Pen. Code, §§ 664, 187, 189), and for two counts of arson (Pen. Code, § 447a), which resulted in his sentence to prison for four and one-half years. He contends the trial court erred in denying his motion for acquittal on the second arson count and on the attempted murder count.

As required by the usual rule governing appellate review, we evaluate the evidence in the light most favorable to the challenged ruling.

On May 7, 1978, about noon defendant visited Miriam Belton, his ex-wife, at her apartment. The parties had been married for some years, and defendant had formerly owned the apartment building in which Mrs. Belton lived, which, however, he had deeded to her at the time of

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the parties’ separation. Defendant stayed all day, and the two did some drinking together. About 9 p.m. defendant left the apartment at Mrs. Belton’s request. At that time he had no visible injuries. Sometime after midnight Mrs. Belton was awakened by a crackling sound of burning wood outside her bedroom window. She looked out, saw flashes of light, and saw defendant lying in the grass 10 feet away. She also smelled smoke. She thereupon ran from the apartment building with her children.

About the same time the tenant of an adjoining apartment, William Warren, heard someone moving on his front porch and saw flames from his window. When he opened his door he discovered flames coming from under the porch of Mrs. Belton’s apartment, and he saw an isolated patch of fire in the grass to the right of the porch, where defendant was “[s]watting at the fire [coming from his body or clothing] and rolling around in the grass.” Warren recognized the defendant, who had been his landlord for six years. Since he thought defendant had the fire on his person under control, Warren reentered his apartment to call the fire department. When he stepped outside again, defendant had disappeared.

Los Angeles Fire Department Arson Investigator Jerry Brittenham examined the premises about 1 a.m., observed the damage to the basement of the triplex apartment and to the interior wall of Mrs. Belton’s bedroom, and concluded the fire had been of “incendiary origin, caused by an open flame and human hand.” He noticed an odor of gasoline on the grass around the house, and he found a melted plastic milk carton with an odor of gasoline in the charred area of the fire.