Starting a fire on a dirt and weed covered portion of a vacant lot is sufficient to sustain conviction for arson of forest land (Pen. Code, § 451, subd. (c)) where there was dense vegetation on other portions of the lot. Costella shot and killed Luevano, dumped the body on a vacant lot, and set it on fire. Costella was charged with murder and arson of forest land. With respect to the arson offense, the jury was instructed “Forest land means brush-covered land, cut-over land, forest, grasslands, or woods.” (See Pen. Code, § 451, subd. (b).) During deliberations, the jury asked the trial court to define “brush-covered land” but the trial court responded that there was no definition and that the jury should apply a commonsense everyday meaning. The jury convicted Costella of murder and arson of forest land. Costella appealed, arguing that there was insufficient evidence that he burned forest land. Held: Affirmed. Whether there was sufficient evidence Costella burned forest land depends on the definition of “brush-covered land,” which is a matter of statutory interpretation. When interpreting a statute, words are given their ordinary meaning, typically a dictionary definition. The dictionary definition of “brush” is “scrub vegetation” or “land covered with scrub vegetation.” “Scrub” is “a stunted tree or shrub.” The land at issue in this case qualified as “brush covered” because scrubs were scattered throughout it and portions of it (albeit not the area where the body was found) were covered with dense vegetation as evidenced by an aerial photograph and witness testimony. “Defendant argues the land must be continuously covered with brush to be considered forest land. But the fact that defendant set fire on a segment of the land where the brush was comparatively sparse should not excuse him from criminal liability for arson of forest land. There is no requirement of continuous coverage in the statute or legislative history.”

Pursuant to People v. Franklin (2016) 63 Cal.4th 261, remand is necessary to allow defendant, who was 20 years old at the time of the offense, an opportunity to create a record of youth-related mitigating factors for use at a future youth parole hearing. Costella was 20 when he murdered Luevano. He was sentenced to 40-years-to-life in prison. On appeal, he argued that Franklin requires a limited remand for him to make a record relevant to his eventual youth offender parole hearing under Penal Code section 3051, which was added by Senate Bill No. 260 after he had been sentenced. The Court of Appeal agreed. In Franklin, the court held that section 3051 (which effectively reforms the parole eligibility date of an offender’s original sentence so that the longest possible term of incarceration before parole eligibility is 25 years), rendered a lengthy juvenile’s sentence constitutional. However, the court in Franklin remanded the case to allow the defendant an opportunity to present youth related mitigating evidence for future use at a parole hearing. Section 3051 is not limited to juveniles and applies to individuals, like Costella, who were 23 years old or younger when they committed an offense. Accordingly, “a limited remand is in order for the trial court to determine whether defendant had an adequate opportunity to make a record of information relevant to his eventual youth offender parole hearing, as required by Franklin.” If not, both parties should be allowed to make such a record.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/E064374.PDF