State Of Washington, Respondent V. Cesar Ramos-avila, Appellant

IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
STATE OF WASHINGTON,
Respondent,
v.
No. 72452-5-1
DIVISION ONE
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CESAR RAMOS-AVILA, 	UNPUBLISHED OPINION o
Appellant. 	FILED: 	January 19, 2016 	K"
Leach, J. — Cesar Ramos-Avila appeals his conviction for one count of
arson in the first degree. 	He contends that the trial court should have instructed
the jury on arson in the second degree because he set fire to a portion of the
Wintergreen Place apartment building and the fire did not reach the inside of any
apartments. 	Because the record does not contain sufficient facts for a jury to
convict Ramos-Avila of an inferior degree or lesser included offense and acquit
him of the charged offense, the trial court did not err. We affirm.
Background
On May 18, 2014, Cesar Ramos-Avila set a fire at the Wintergreen Place
apartments 	in Des 	Moines, Washington. 	Wintergreen 	Place 	is a 	two-story
complex with access to each apartment provided by unsecured central interior
stairways. 	The upper units have exterior balconies. 	Desiree Sanchez lived at
Wintergreen Place with several family members. 	On May 18, Sanchez saw
sparks 	and 	smoke 	coming 	under 	the 	front 	entry 	door 	of 	her 	apartment.

No. 72452-5-1 / 2
Sanchez's father, 	Pablo 	Ramirez, 	opened 	the 	door to 	find fire 	and 	smoke
blocking an escape. 	He saw flames on the door and the carpet. 	Residents of
other 	units 	in the 	complex 	fled 	to 	their 	balconies, 	and 	some 	leaped 	off.
Firefighters hoisted a ladder to aid in the rescue. 	Shortly before the fire, two
witnesses, Maricela De La Cruz and Maria De La Cruz, saw Cesar Ramos-Avila
walk past their front window and go upstairs with a gas can. 	Once the fire
started, Maricela saw Ramos-Avila running from the fire, carrying what appeared
to be the same gasoline container.
Ramirez testified that the day before the fire, he and Ramos-Avila got into
a physical altercation in a store parking lot. 	After the incident with Ramos-Avila,
Ramirez realized 	that he was missing 	his wallet. 	Ramirez's wallet contained
identification cards showing his home address.
King County Sheriff's Office Fire Investigator Charles Andrews testified
that the fire warped the unit's metal front door, which allowed flame and smoke to
enter the apartment. 	Andrews also testified that the whole apartment would have
burned 	had the fire 	burned 	an additional 	10 minutes 	because "the fire 	was
already lapping under the door and around the door to get into the apartment"
and had nearly reached a large amount of combustible material in the home.
Photographs showed fire 	and smoke damage from 	both inside and outside
Ramirez's 	unit and 	also 	smoke damage 	inside the 	unit across the 	stairwell,
where another family lived.

No. 72452-5-1 / 3
A forensic scientist for the Washington State 	Patrol Crime 	Laboratory
testified about traces of gasoline found on fire debris from the doorway, a burned
doormat, 	carpet 	under a 	doormat, 	and 	Ramos-Avila's 	shoes. 	Ramos-Avila
testified that he did not start the fire, had no idea where the apartment building
was, did not go to Wintergreen Place that day, and had no gasoline that day.
Ramos-Avila requested jury instructions for an 	inferior degree offense,
arson in the second degree, and a lesser included offense, reckless burning in
the first degree. 	Ramos-Avila argued that because the fire did not occur in a
living area, the jury could 	ultimately decide that it was not part of a dwelling,
entitling him to an inferior degree offense jury instruction.
The State objected and asserted that the record included no evidence that
would permit an 	inference that the fire occurred in a 	building that was not a
dwelling. The trial court concluded that the evidence included no set of facts that
permitted a jury to conclude that Ramos-Avila committed arson in the second
degree and did not commit arson in the first degree. 	The jury found Ramos-Avila
guilty of arson in the first degree. 	Ramos-Avila appeals.
Analysis
Ramos-Avila contends that the trial court should have instructed the jury
on the 	inferior degree offense of arson in the second degree because a jury
could have concluded that he set fire to a building that was not a dwelling. 	We
disagree.

No. 72452-5-1 / 4
The trial court made a factual determination when it concluded that the
evidence did not support Ramos-Avila's request for an inferior degree or lesser
included offense instruction. 	When a trial court bases its decision to include or
omit a 	jury instruction 	on a 	factual determination, we 	review for abuse 	of
discretion.1 	To determine if the record includes sufficient evidence to support the
giving 	of an 	instruction, we 	review the 	evidence supporting a 	proposed jury
instruction in the light most favorable to the party that requested the instruction.2
A person 	is guilty 	of arson 	in the 	first degree 	if he 	knowingly 	and
maliciously causes a fire or explosion which damages a dwelling.3 	A "dwelling"
includes "any building or structure, though movable or temporary, or a portion
thereof, which is used or ordinarily used by a person for lodging."4
A person is guilty of arson 	in the second degree if he knowingly and
maliciously causes a fire or explosion which damages a building.5 	A "building"
includes a "dwelling, fenced area, vehicle, railway car, cargo container, or any
other structure used for lodging of persons or for carrying on business therein, or
for the use, sale, or deposit of goods."6
When the 	State 	charges 	a 	defendant 	with 	an 	offense consisting 	of
different degrees, the jury may find the defendant guilty of any inferior degree, or
1 State v. Condon, 182 Wn.2d 307, 315-16, 343 P.3d 357 (2015).
2 State v. 	Fernandez-Medina, 	141 	Wn.2d 	448, 	455-56, 	6 	P.3d 	1150
(2000).
3RCW9A.48.020(1)(b).
4RCW9A.04.110(7).
5RCW9A.48.030(1).
6RCW9A.04.110(5).

No. 72452-5-1 / 5
of an attempt to commit the offense, and not guilty of the charged offense.7 	In all
other cases, the defendant "may be found guilty of an offense the commission of
which is necessarily included within that with which he or she is charged."8
A trial court should give a proposed jury instruction on a lesser included or
inferior degree offense if the evidence would "'permit a jury to rationally find a
defendant guilty of the lesser offense and acquit him of the greater.'"9
The proposing party must satisfy both a legal and factual requirement.10
To satisfy the legal requirement, the proponent must show that the proposed
instruction 	describes 	an 	offense 	that 	is 	an 	inferior 	degree 	of 	the 	charged
offense.11 	For a 	lesser included offense, the proponent must show that the
proposed instruction describes an offense where each element of that lesser
offense is included in the charged offense.12 To satisfy the factual requirement,
the proponent must show that, when viewing the evidence in the light most
favorable to the proposing party, the jury could find that the proponent is guilty of
the lesser offense and not guilty of the charged offense.13 	The evidence must
7 RCW 10.61.003, .010.
8 RCW 10.61.006.
9 Fernandez-Medina, 	141 Wn.2d at 456 (quoting State v. Warden, 	133
Wn.2d 559, 563, 947 P.2d 708 (1997)).
10 State v. McDonald. 123 Wn. App. 85, 88, 96 P.3d 468 (2004); State v.
Tamalini, 134 Wn.2d 725, 728-29, 732, 953 P.2d 450 (1998).
11 McDonald, 123 Wn. App. at 88-89; Tamalini, 134 Wn.2d at 732; State v.
Foster, 91 Wn.2d 466, 472, 589 P.2d 789 (1979).
12 McDonald, 123 Wn. App. at 89; Tamalini, 134 Wn.2d at 728-29; State v.
Berlin, 	133 Wn.2d 541, 545-46, 947 P.2d 700 (1997); State v. Workman, 90
Wn.2d 443, 447-48, 584 P.2d 382 (1978).
13 McDonald. 123 Wn. App. at 89; Fernandez-Medina, 141 Wn.2d at 455-
56; Tamalini, 134 Wn.2d at 729, 732; State v. leremia, 78 Wn. App. 746, 755,
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No. 72452-5-1 / 6
"affirmatively establish the defendant's theory of the case—it is not enough that
the jury might disbelieve the evidence pointing to guilt."14
This case involves only the factual requirement. 	Ramos-Avila contends
that he satisfied this requirement. 	He asserts that the record shows that he set
fire to a 	portion of Wintergreen 	Place where people do 	not ordinarily lodge.
Thus, he did not set fire to a dwelling. 	But neither Washington case law nor the
applicable statute supports his argument.
Washington courts have consistently held that where a building is used for
lodging at the time of the offense, any portion of that building is a "dwelling"
under RCW 9A.04.110(7).15
In State v. Neal,16 this court held that a toolroom in a residential apartment
building was a dwelling. 	In that case, an apartment building maintenance worker
saw Neal inside the toolroom putting tools into several bags.17 	A jury convicted
Neal of residential burglary.18 	Though a toolroom in an apartment building is not
ordinarily used for 	lodging, the court reasoned that because Neal entered a
building used for lodging, sufficient evidence existed for a jury to find that Neal
entered a dwelling and convict him of residential burglary.19
899 P.2d 16 (1995) (evidence must support inference that defendant committed
the lesser offense "instead of" the charged offense).
14 Fernandez-Medina, 141 Wn.2d at 456.
15 State v. Neal, 161 Wn. App. 111, 114, 249 P.3d 211 (2011); State v.
Murbach, 68 Wn. App. 509, 513, 843 P.2d 551 (1993).
16 161 Wn. App. 111, 114, 249P.3d211 (2011)
17 Neal, 161 Wn. App. at 112.
18 Neal, 161 Wn. App. at 113.
19 Neal, 161 Wn. App. at 114.
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No. 72452-5-1 / 7
Similarly in State v. Murbach,20 Division Three of this court held that the
definition 	of "dwelling" included 	an 	attached 	garage. 	In that case, 	Murbach
entered a garage attached to the victims' home and scratched a car.21 	The court
reasoned that the attached garage was part of the dwelling because it was a
portion of a building used as lodging.22
In State v. McDonald,23 Division Two of this court held that the evidence in
that case raised a jury question about whether a house was a dwelling within the
meaning of RCW 9A.04.110(7) because the homeowners had not been using it
for lodging around the time of the burglary. 	The court reasoned that the jury
could have convicted McDonald of second degree burglary and not residential
burglary because, when viewing 	the evidence 	in the 	light most favorable to
McDonald, the jury could 	have found 	that the Gig Harbor house was not a
dwelling within the meaning of the statute when McDonald burglarized it.24
Unlike 	McDonald, where the homeowners were renovating their home,
here no evidence shows renovation or construction at Wintergreen Place when
Ramos-Avila set fire to it. 	In 	McDonald, the 	home was 	uninhabited. 	Here
undisputed evidence shows that people lived at Wintergreen Place when Ramos-
Avila set the fire.
20 68 Wn. App. 509, 513, 843 P.2d 551 (1993).
21 Murbach, 68 Wn. App. at 510.
22 Murbach. 68 Wn. App. at 513.
23 123 Wn. App. 85, 91, 96 P.3d 468 (2004).
24 McDonald, 123 Wn. App. at 90-91.

No. 72452-5-1 / 8
Here, even viewing the evidence in a light most favorable to Ramos-Avila,
Wintergreen Place is a building used for lodging, and residents used an interior
portion of that building as a dwelling. 	Though Ramos-Avila contends that a jury
could have reasonably concluded that "persons do not ordinarily 'lodge' in the
stairwell of the building," Washington case law and RCW 9A.04.110(7) refute his
position.
Viewing 	the 	record 	in the 	light 	most favorable 	to 	Ramos-Avila, 	even
though the fire did not contact the inside part of the apartment unit, the exterior
door to the interior hallway or stairway is still part of a dwelling because it is a
part or portion of a building used for lodging. 	The trial court did not abuse its
discretion when it refused to instruct the jury on 	arson in the second degree
because a jury could not have reasonably concluded that he committed only this
lesser offense.
Ramos-Avila next contends that the trial court erred when it used the
improper 	test 	to 	refuse 	an 	inferior 	degree 	or 	lesser 	included 	offense 	jury
instruction. 	However, even if the trial court did err in its analysis, the error was
harmless and does not warrant reversal because it did not materially affect the
verdict.
The test for determining if a party is entitled to an instruction on an inferior
degree offense differs from the test for a lesser included offense instruction only
with respect to the legal component of the test.25 	A trial court must give a lesser
25 Fernandez-Medina, 141 Wn.2d at 455.
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No. 72452-5-1 / 9
included offense instruction where (1) each element of the lesser offense is a
necessary element of the greater offense charged and (2) the evidence in the
case supports an inference that the defendant committed only the lesser crime.26
An inferior degree offense instruction is appropriate when
"(1) the statutes for both the charged offense and the proposed
inferior 	degree 	offense 	'proscribe 	but 	one 	offense'; 	(2) 	the
information charges an offense that is divided into degrees, and the
proposed offense is an inferior degree of the charged offense; and
(3) there is evidence that the defendant committed only the inferior
offense."'27]
Ramos-Avila does not claim constitutional error. 	A nonconstitutional error
is 	harmless 	if it did 	not, 	within 	reasonable 	probability, 	materially 	affect the
verdict.28
Ramos-Avila 	does 	not 	contend 	that the 	instructions were 	misleading,
could not be readily understood by the jury, or did not permit him to argue his
theory of the case.29 	Instead, Ramos-Avila asserts that the trial court relied on a
mistaken analysis to reach its ruling.
Ramos-Avila 	asserts 	that 	the 	trial 	court 	improperly 	used 	the 	lesser
included offense analysis to reject his request for an inferior degree instruction.
However both instructions require the same factual inquiry: 	the evidence "must
raise 	an 	inference that only 	the 	lesser included/inferior degree offense was
26 State v. Meneses. 169 Wn.2d 586, 595, 238 P.3d 495 (2010).
27 Fernandez-Medina, 141 Wn.2d at 454 (quoting State v. Peterson, 133
Wn.2d 885, 891, 948 P.2d 381 (1997)).
28 State v. Zwicker, 105 Wn.2d 228, 243, 713 P.2d 1101 (1986).
29 State v. 	Hutchinson, 	135 Wn.2d 	863, 	885, 	959 	P.2d 	1061 	(1998);
Petersen v. State, 100 Wn.2d 421, 440, 671 P.2d 230 (1983); State v. Dana, 73
Wn.2d 533, 537, 439 P.2d 403 (1968).
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No. 72452-5-1/10
committed to the 	exclusion of the 	charged 	offense."30 	Here, the 	trial 	court
resolved the matter on the factual prong, stating, "I don't see that there have
been facts presented where they could conclude that a lesser included crime,
indeed, was committed."
The 	record 	does 	not 	contain 	affirmative 	evidence 	supporting 	Ramos-
Avila's contention that he committed arson in the second degree but did not
commit arson in the first degree. 	The record includes overwhelming evidence
that the interior hallway or stairway of Wintergreen Place constituted a dwelling
and Ramos-Avila maliciously and knowingly set fire to it. 	Even if the trial court
did 	err in 	its legal 	analysis, 	it 	reached the correct conclusion and 	properly
instructed the jury. 	Any analysis error was harmless because it did not materially
affect the jury's verdict.
Conclusion
The trial court did not abuse its discretion when it rejected Ramos-Avila's
request for a jury instruction for arson in the second degree because a jury could
not have reasonably concluded that he committed only the lesser offense. Any
30 Fernandez-Medina, 141 Wn.2d at 455.
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No. 72452-5-1 /11
error in the trial court's legal analysis was harmless because it did not materially
affect the jury's verdict. 	We affirm.
WE CONCUR:
J.
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