A state appeals court Thursday ordered the case against a German national convicted of setting dozens of fires in Hollywood, West Hollywood and the San Fernando Valley to be sent back for a judge to determine if he qualifies for a mental health diversion program that could eventually lead to the dismissal of the charges against him.
The three-justice panel from California's 2nd District Court of Appeal cited "significant evidence presented at trial'' of Harry Burkhart's "mental illness'' in ordering his conviction on 49 felony charges to be conditionally reversed and directed Los Angeles Superior Court Judge George G. Lomeli to conduct a hearing on whether the 33-year-old man qualifies for the diversion program.
"If the trial court exercises its discretion to grant diversion and Burkhart completes diversion, the trial court shall dismiss the charges,'' Associate Justice Gail Ruderman Feuer wrote on behalf of the panel. "If the court determines Burkhart is ineligible for diversion or exercises its discretion not to grant diversion, or if Burkhart is not successful in completing diversion, Burkhart's convictions and sentence shall be reinstated.''
Burkhart was convicted in September 2016 of 25 counts of arson of
property, 18 counts of arson of an inhabited dwelling and two counts each of
possession of an incendiary device, attempted arson and arson of a structure.
The first jury to hear the case deadlocked on whether he was sane or insane at
the time he committed the crimes.
The second jury to consider the issue of sanity found in 2018 that he was sane at the time of the crimes committed between Dec. 30, 2011, and Jan. 2, 2012.
Lomeli subsequently sentenced Burkhart to 33 years and four months in state prison.
The appellate panel's 24-page ruling notes that the judge could order Burkhart into an approved mental health treatment program for up to two years if six criteria are met that are required under state law -- which went into effect after his conviction -- and if the judge is satisfied that the defendant's specialized mental health treatment needs will be met by an inpatient or outpatient mental health program.
"If the defendant commits an additional offense or otherwise performs unsatisfactorily in the diversion program, the trial court may reinstate the criminal proceedings,'' the panel ruled.
At Burkhart's March 2018 sentencing, the judge said Burkhart had mental problems from a very young age. But Lomeli said he was convinced that the defendant "indeed knew of his wrongdoing at the time he committed the crimes, legally and morally.''
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Most of the blazes were started under vehicles parked in carports or near homes, but one vehicle was set on fire Dec. 30 in the parking lot of a shopping center in Hollywood and another at a complex nearby on New Year's Eve.
Three victims who had been impacted by the fires spoke during Burkhart's sentencing in a downtown Los Angeles courtroom.
"... If I had woken up 30 seconds later, I might not be here to speak,'' Cynthia Cobb told the judge.
Another victim, Matthew King, said, "It was by nothing shy of the grace of God that no one was killed.''
Sarah Kramer -- whose car was destroyed in one of the blazes -- told the judge that she was grateful she wasn't inside as it burned.
"While it was an older-model car, it was still the best car I could ever own,'' she said. "What an extremely selfish and vulgar expression this crime was ... I'm still recovering from the setback all these years later.''
Deputy District Attorney James Falco -- who called Burkhart's arson spree "an act of domestic terrorism'' -- cited planning, preparation and "strategic placement of devices that literally almost cost people their lives.''
"He picked under the cover of darkness when the people are sleeping and most vulnerable and most susceptible to potential loss of life and he should not be rewarded for the fact that no one was seriously injured or killed,'' the prosecutor said.
Burkhart's trial attorney, Steve Schoenfield, told the judge that he believed that anyone involved in the case realizes that "Harry's been under the complete domination and psychological control of his mother, Dorothee Burkhart,'' who did not want her son to accept the judge's earlier offer of a 23-year prison term.
The defense lawyer said he understood the danger, pain and anxiety the fires had caused.
"But for some reason nobody was hurt at all except financially and psychologically, and I think that means something in the end,'' Burkhart's attorney told the judge.
The defense lawyer told jurors Burkhart is mentally ill and developmentally disabled and has been hospitalized on numerous occasions for psychiatric illnesses, including once just four months before the arsons began, despite the defendant's own protestations to authorities that he is not mentally ill.
Being separated from his mother after her arrest in the United States in connection with a fraud case against her in Germany "meant the whole world was going to come to an end'' and resulted in a "perfect storm,'' Schoenfield said, telling the panel that setting the fires was "how he acted out.''
"It's clear that what he did was irrational, lashing out at people that were not involved'' in the criminal case involving his mother, the defense attorney said.
Deputy District Attorney Joy Roberts -- who handled the case with Falco -- countered that Burkhart knew the difference between right and wrong when he set more than 40 fires in less than a week.
The prosecutor said Burkhart's "arson rampage'' was spurred by a desire for revenge for his mother's arrest, calling the attacks "methodical,'' "premeditated'' and "done under the cover of night'' in areas where he could quickly set fires and then escape without being detected.
"The evidence will show he hated America,'' Roberts told jurors. "He told his mother he wanted to roast America ... Roasting America is exactly what he did.''
The arson spree began a day after Burkhart had an angry outburst in a federal courtroom while there to see his mother, Roberts said. The prosecutor told jurors the defendant was repeatedly seen on surveillance video buying supplies to start fires and did not show any signs of a psychotic break.