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People v. Billa10/3/2002
CERTIFIED FOR PARTIAL PUBLICATION
In a plan to collect on an insurance policy, defendant Vikram Gill Billa and two accomplices set fire to defendant's truck. As they were doing so, one of the accomplices was severely burned and later died. Defendant was sentenced to state prison after a jury found him guilty of second degree murder (Pen. Code, §§ 187, 189; further section references are to the Penal Code unless otherwise specified), arson causing great bodily injury (§ 451, subd. (a)), and making a false or fraudulent insurance claim (§ 550, subd. (a)(4)).
Defendant raises numerous challenges to his convictions and sentence. His primary claim of error is that, under the rationale of People v. Ferlin (1928) 203 Cal. 587 (hereafter Ferlin) and decisions that have followed Ferlin, he cannot be held liable for murder based upon the accidental death of an accomplice to arson. As we shall explain in the published portion of this opinion, the Ferlin rule does not apply to the facts of this case. Because defendant was present and an active participant in the dangerous felony of arson that caused the accomplice's death, he is liable under the felony-murder rule. For reasons that follow, we also reject defendant's other arguments against application of the felony-murder rule.
In the unpublished parts of this opinion, we conclude that the sentence imposed for a fraudulent insurance claim must be stayed pursuant to section 654, and that defendant is entitled to one additional day of presentence conduct credit.
Accordingly, we will modify the judgment and affirm as modified.
FACTS
In April 1997, defendant bought a truck identified as a Freightliner model FLD 120 tractor. To do so, he entered into a conditional sale contract by which he borrowed the sum of $17,927.08. After he obtained insurance coverage for liability, damage to the truck, and damage to any trailer or cargo he might be hauling, defendant began working as an independent owner/operator for Divine and Company Trucking (hereafter Divine Trucking).
By August 1997, defendant was experiencing difficulties, and both he and Divine Trucking were notified that defendant's insurance was to be cancelled for nonpayment. Defendant last drove for Divine Trucking on August 22, 1997; the company required its owner/operators to carry insurance with the company as an additional insured, and its dispatcher told defendant that he would not be allowed to drive for the company after August 22, at least until he corrected his insurance problem. It also appears the Department of Motor Vehicles suspended defendant's driver's license.
On August 15, 1997, defendant contacted John Kilgus of Associates Insurance Company to purchase physical damage insurance for the truck. Defendant asked for the insurance coverage to commence on August 15, 1997, with the first premium due on August 26 to coincide with his next payday. Defendant did not purchase liability or cargo insurance, which Divine Trucking would require for a return to work.
On August 26, 1997, defendant drove his truck to the Yuba City home of his friend, Parmod Kumar. At some point, Kumar's brother-in-law, Manoj Bhardwaj, joined them. Later that night, the trio drove toward Sacramento with defendant and Bhardwaj in defendant's truck and Kumar following in his car. Near the City of Wheatland, defendant drove his truck onto a gravel road. He drove down the road about two-tenths of a mile and around a bend. There, the evidence establishes, defendant, Kumar, and Bhardwaj set the truck on fire.
In burning the truck, the trio used a fuel oil, either kerosene or diesel. During the event, Bhardwaj somehow
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