Opinion
C088220
04-17-2020
THE PEOPLE, Plaintiff and Respondent, v. SAMUEL CRAIG LIMA, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. CR035123)
Defendant appeals a judgment entered following his guilty plea to arson of a structure (Pen. Code, § 451, subd. (c); unless otherwise set out, statutory section references that follow are to the Penal Code), possession of flammable material (§ 453, subd. (a)), second-degree burglary (§ 459), attempted second-degree burglary (§§ 664, 459), vandalism (§ 594, subd. (a)), and, following a bench trial, the trial court finding that defendant utilized a device designed to accelerate a fire (§ 451.1, subd. (a)(5)). He argues the trial court's finding must be reversed because: (1) the enhancement only applies to devices designed to accelerate the progress or spread of a fire separate from that fire's ignition and (2) substantial evidence does not support that he either used a device or utilized combustible materials "designed to accelerate the fire" following its ignition.
We affirm the judgment.
FACTS AND PROCEEDINGS
Following defendant's guilty pleas to all but the section 451.1 enhancement against him, the veracity of that enhancement was tried to the court. The People presented three witnesses: the owner of the damaged cafe, the investigating officer, and the expert arson investigator. The People also offered two exhibits. Exhibit 1 was a DVD of a series of short surveillance videos showing defendant manipulating a pallet, bringing long grass and cardboard to the area, tearing that cardboard, and ultimately retreating in the moments before a quickly spreading fire engulfed the security camera. Exhibit 2 was a CD of photographs taken by the investigating officer depicting the burned area.
The cafe owner testified there were no grass or bushes growing outside the building, there had been one pallet located about 10 feet from the building, and he had a video surveillance system.
Detective Scott Jones testified to investigating the possible arson at the cafe, including the collection of the surveillance system. The relevant camera was motion activated and recorded defendant assembling the materials to create the fire, which was also depicted in the video. Following defendant's path going off camera, Detective Jones located "tall dry grass."
Fire Captain Specialist Silas Rojas testified "as an expert in fire investigation and the origin and ignition of fires." Captain Rojas investigated the cafe fire, including photographing the scene and sifting through the debris. Rojas observed that the fire "burned through the siding, the sheeting, damaged the insulation in the wall, . . . burned through the eaves and entered into the attic space above the business." The burn area was four feet wide, consistent with a wood pallet. Both the siding and the sheeting were made of wood. Vegetation was found within the debris that did not appear to have roots attached, and he found no roots left in the burned area.
Captain Rojas concluded based upon his experience and investigation that the fire was caused by an incendiary device, which he described as: "The wood pallet that was retrieved from the concrete slab just outside the rear door. Most of what I found from the debris was leaned against the outside [of] the building. Dry vegetation was gathered from the nearby area and was placed in or near the pallets along with the cardboard boxes." Captain Rojas opined, "The grass and cardboard was used as an accelerant to ignite the pallet." The People rested, and defendant elected not to present a separate defense case.
The People's theory as expressed through closing argument was that defendant had accelerated the fire by hastening its destruction of the building. The use of the grass, cardboard, and pallet was a "device because it is a manmade created structure made out of grasses and cardboard and a pallet, and it's design was designed to burn the building which is quite actually what it did. . . ." In contrast, defendant argued the grass, cardboard and pallet were not a "device" within the meaning of the statute. He also challenged whether there was evidence that those items were "used with a specific intent to accelerate the fire." In reply, the People elaborated that there was no reason to assemble the grass and torn cardboard and then light them with the pallet, except to ensure the lighting and robust burning of the pallet, which would then cause the building to burn. Thus, the People reasoned that the court should sustain the enhancement.
Following a stipulation of the parties submitting the matter for a written ruling, the court issued its ruling finding the enhancement true.
DISCUSSION
I
Section 451.1 Applies to Devices that Accelerate a Fire
Without Regard to Whether the Device Also Ignites the Fire
Defendant attacks the trial court's imposition of a sentencing enhancement under section 451.1 arguing the enhancement only applies to devices designed to accelerate the progress or spread of an incendiary fire separate from ignition. Defendant's argument requires we interpret the meaning of section 451.1, subdivision (a)(1). Having done so, we disagree.
" '[T]he fundamental purpose of statutory construction is to ascertain the intent of the lawmakers so as to effectuate the purpose of the law.' [Citation.] As with any question of statutory interpretation, the best indication of legislative intent appears in the language of the enactment. [Citation.] Further, 'we do not construe statutes in isolation, but rather read every statute "with reference to the entire scheme of law of which it is a part so that the whole may be harmonized and retain effectiveness." ' [Citations.]" (Peracchi v. Superior Court (2003) 30 Cal.4th 1245, 1253.) We interpret words in context, give them their plain and ordinary meaning, and avoid constructions that would render words surplusage. (People v. Loeun (1997) 17 Cal.4th 1, 9.) Where the language of the statute is unclear, we may look to the legislative history to ascertain the legislature's intent. (Klein v. United State of America (2010) 50 Cal.4th 68, 77; People v. Kurtenbach (2012) 204 Cal.App.4th 1264, 1280 (Kurtenbach).)
Section 451.1, subdivision (a)(5) provides: "(a) Notwithstanding any other law, any person who is convicted of a felony violation of Section 451 shall be punished by a three-, four-, or five-year enhancement if one or more of the following circumstances is found to be true: [¶] . . . [¶] (5) The defendant committed arson as described in subdivision (a), (b), or (c) of Section 451 and the arson was caused by use of a device designed to accelerate the fire or delay ignition." Nothing in this language suggests that a device which ignites, but at the same time also accelerates the fire, is exempt from the enhancement's purview. It simply does not speak to it. Because the breadth of the language in the statute is unclear, we will examine the legislative history. (Klein v. United State of America, supra, 50 Cal.4th at p. 77; Kurtenbach, supra, 204 Cal.App.4th at p. 1280.)
The legislative history does not define a "device designed to accelerate a fire," nor does it discuss whether such a "device" should include the assembly of escalating incendiary materials as was used in this case. Nonetheless, this history does reflect that the implicated conduct would include those who utilized lighter fluid to accelerate a fire (Kurtenbach, supra, 204 Cal.App.4th at p. 1280) and that among the purposes of section 451.1 was increasing the "penalties for the worst arsonists who exhibit a specific intent to inflict damage or who in fact inflict serious damage. . . ." (Sen. Com. Analysis, Jan. 13, 1993, (1993-1994 Reg. Sess.) p. 6; Kurtenbach, at p. 1279.) The court in Kurtenbach utilized this history to determine that an individual who used gasoline to help fuel a fire, regardless of how it was contained or dispersed, had utilized a device designed to accelerate a fire within the meaning of the statute. (Kurtenbach, at pp. 1279-1280.) It did so, reasoning that the use of gasoline in an arson both exhibited an " 'intent to inflict damage' " and was "comparable to the use of lighter fluid to fuel a fire." (Id. at p. 1280.)
Implicitly, this suggests that the statute does not require that the device designed to accelerate the fire be separate from the source of ignition. Otherwise, a Molatov cocktail would not be an accelerant under the enhancement. Clearly, this is not true. (Kurtenbach, supra, 204 Cal.App.4th at pp. 1279-1280; People v. Andrade (2000) 85 Cal.App.4th 579, 585 (Andrade).) We further find that whether a device utilized to ignite a fire also accelerated that fire within the meaning of section 451.1, subdivision (a)(5) is a question of fact for the fact finder.
There remains the issue of just what a "device" is for purposes of section 451.1, subdivision (a)(5). There is only one other published case considering the meaning of this subdivision.
In Andrade, supra, 85 Cal.App.4th at pages 584-585, the court considered whether omitting the word "designed" from the jury instructions could have allowed the jury to find the section 451.1 enhancement true based upon his igniting spilled gasoline, which defendant argued was not a device designed to accelerate a fire. This required the court to consider the meaning of a "device designed to accelerate the fire." (Andrade, at p. 585.) Because nothing within the statute or any other authorities suggested that "the Legislature intended the phrase to have a technical or special meaning" the court looked at the plain meaning. (Id. at p. 587.)
Andrade noted that Webster's Dictionary defined the word " 'Device' . . . in relevant part as '1: something devised or contrived: as . . . f: piece of equipment or a mechanism designed to serve a special purpose or perform a special function.' (Webster's 9th New Collegiate Dict. (1987) p. 347.)" (Andrade, supra, 85 Cal.App.4th at p. 587.) " 'Design' [was] defined in relevant part as '1 A: to conceive and plan out in the mind[;] b: to have as a purpose: intend[;] c: to devise for a specific function or end . . . .' (Webster's 9th New Collegiate Dict., supra, p. 343.)" (Ibid.) Finally, " 'Accelerate' [was] defined in relevant part as '1: to bring about at an earlier time[;] 2: to cause to move faster[;] 3 a: to hasten the progress or development of[;] b: increase . . . .' (Websters 9th New Collegiate Dict., supra, p. 48.)" (Ibid.)
Considering the legislative history and these definitions, the court concluded, " 'device designed to accelerate the fire' (§ 451.1, subd. (a)(5)) means a piece of equipment or a mechanism intended, or devised, to hasten or increase the progress of the fire." (Andrade, supra, 85 Cal.App.4th at p. 587.) Andrade did not speak to the limits of what may constitute such a device. Rather, it determined that either using a Molotov cocktail or dispersing gasoline by breaking a bottle, which was then lit on fire, constituted a device designed to accelerate a fire. (Id. at pp. 585, 589.)
Factually speaking, the simple use of gasoline to fuel a fire in Kurtenbach is closer aligned to defendant's use of escalating incendiary materials. If using gasoline to fuel a fire qualifies as a device intended to hasten or increase the progress of a fire (Kurtenbach, supra, 204 Cal.App.4th at pp. 1279-1280), then too may utilizing escalating incendiary materials designed to hasten that fire's development and progress. (See Andrade, supra, 85 Cal.App.4th at p. 587.) Notably, both exhibit a specific intent to inflict damage (Kurtenbach, at pp. 1279-1280) and create a fire more powerful and destructive than it may otherwise have resulted. This operates to "hasten or increase the progress of the fire," thus accelerating it within the meaning of section 451.1, subdivision (a)(5). (Andrade, at p. 587.)
II
The Enhancement is Supported by Substantial Evidence
Having concluded that the use of escalating incendiary materials to create a more robust fire could constitute a device within the meaning of section 451.1, subdivision (a)(5), we will next review the trial court's true finding for the sufficiency of the evidence. (See People v. Frausto (2009) 180 Cal.App.4th 890, 897 ["We review the sufficiency of the evidence to support [an] enhancement according to accepted rules of appellate review: we view the record in the light most favorable to the prosecution and may not reverse the judgment if any rational trier of fact could have found the essential elements of the enhancement beyond a reasonable doubt"].)
Defendant argues substantial evidence does not support that he either used a device or utilized combustible materials "designed to accelerate the fire" following its ignition.
We take these issues out of order. First, as previously discussed, we find no requirement in the statute or its legislative history that the combustible materials be designed to accelerate the fire following its ignition. Second, we concur with the trial court's reasoning that the use here of escalating incendiary materials in concert to create the robust fire that hastened the burning of the cafe qualifies as a device to accelerate the fire for purposes of section 451.1, subdivision (a)(5).
The trial court found: "[I]n combining the three substances in a horizontal series of two accelerants (the easily lit dry grass, and the less easily lit cardboard) designed to hasten the development of an ignition of the pallet into [a] full flaming fire. The result was: a design causing a fire to begin and rapidly accelerate from an easily-ignited substance to a second, more difficult to ignite substance, and ending with sufficient fire power to ignite a difficult to ignite third substance. The resulting fire burning the pallet against the building was by the contrived combination of three items composing a device for which the only reasonable function was an accelerated and growing series of ignitions leading to the ultimate ignition of the building against which it was placed. In this context the grass, cardboard, and pallet are of no functional difference from a glass bottle, flammable liquid, and a strip of cloth. Both combinations only require a match or lighter to set in motion."
We find substantial evidence supports the trial court's conclusion that the grass, cardboard, and pallet were utilized as a device to create a robust fire so as to hasten the ignition and ultimate burning of the cafe. (People v. Frausto, supra 180 Cal.App.4th at p. 897.) The evidence presented at trial taken in the most favorable light established that defendant gathered and assembled incendiary materials which he placed against the exterior wall of the cafe building. These materials together were intended to accelerate the burning of the building by making the fire more intense than it otherwise would have been. Defendant ignited those materials, and the cascading series of ignitions produced a robust fire.
While not expressly stated by the lower court, it is evident that the creation of that robust fire accelerated or hastened the burning of the outer wall of the cafe. (Kurtenbach, supra, 204 Cal.App.4th at p. 1279 ["a ' "device designed to accelerate the fire" (§ 451.1, subd. (a)(5)) means a piece of equipment or a mechanism intended, or devised, to hasten or increase the progress of the fire' "].) As shown on the security camera footage, less than a minute passed between the lighting of the fire and the flames reaching the security camera located under the eaves of the roof, which failed shortly thereafter. Further, the fire burned through the siding, sheeting, and eaves. It entered the attic space of the building and damaged the insulation. We also find that substantial evidence supports the trial court's conclusion that defendant harbored the specific intent to accelerate the fire. There is no other reasonable conclusion for defendant's assembly of the escalating incendiary materials that he then lit on fire.
DISPOSITION
The judgment is affirmed.
/s/_________
HULL, Acting P. J. I concur: /s/_________
MAURO, J.
Renner, J., Dissenting.
I respectfully dissent. The majority's conclusion allows an enhanced penalty any time a defendant builds a fire using ordinary methods and effectively eliminates the distinction between the underlying offense and the enhancement. Interpreting the enhancement statute in this manner frustrates the Legislature's goal of providing extra punishment for the "worst arsonists."
Penal Code section 451.1, subdivision (a)(5) provides for an enhanced sentence of three, four, or five years where: "The defendant committed arson as described in subdivision (a), (b), or (c) of Section 451, and the arson was caused by use of a device designed to accelerate the fire or delay ignition." (Italics added.) Section 451.1 does not define the phrase, "device designed to accelerate the fire." However, the Court of Appeal for the First District, Division 5, has concluded, based on dictionary definitions of the words, "device," "design," and "accelerate," that a " 'device designed to accelerate the fire' (§ 451.1, subd. (a)(5)) means a piece of equipment or a mechanism intended, or devised, to hasten or increase the progress of the fire." (People v. Andrade (2000) 85 Cal.App.4th 579, 587 (Andrade).) Relying on Andrade, the Court of Appeal for the Fourth District, Division 1, has determined that "the act of pouring gasoline in a structure in connection with an arson is the 'use of a device designed to accelerate the fire' within the meaning of section 451.1, subdivision (a)(5)." (People v. Kurtenbach (2012) 204 Cal.App.4th 1264, 1280 (Kurtenbach).) The majority's interpretation of section 451.1, subdivision (a)(5) extends the enhancement still further, equating the use of "escalating incendiary materials" to set a fire with the "use of a device designed to accelerate the fire." (Maj. opn., ante, at p. 7.) Such an interpretation brings all but the most unusual fire setting behavior within reach of the enhancement, in clear contravention of the Legislature's intent.
Undesignated statutory references are to the Penal Code.
Section 451.1 was designed to " 'increase the penalties for the worst arsonists who exhibit a specific intent to inflict damage or who in fact inflict serious damage or who commit a repeat offense and pose a continuing threat to society.' " (Sen. Floor Analysis of Sen. Bill No. 1309, Aug. 26, 1994, p. 4; quoting Com., Bill Analysis of Sen. Bill No. 1309 (1993-1994 Reg. Sess.), as introduced Jan. 14, 1994, p. 5.) To that end, section 451.1 provides for enhanced penalties where: (1) the defendant has previously been convicted of a violation of section 451 or 452 (§ 451.1, subd. (a)(1)); (2) the offense causes great bodily injury to a firefighter, peace officer, or other emergency personnel (§ 451.1, subd. (a)(2)); (3) the offense causes great bodily injury to more than one victim (§ 451.1, subd. (a)(3)); (4) the defendant proximately causes multiple structures to burn (§ 451.1, subd. (a)(4)); or (5) the defendant commits arson as described in section 451, subdivision (a), (b), or (c), "and the arson was caused by use of a device designed to accelerate the fire or delay ignition" (§451.1, subd. (a)(5)).
From the placement of subsection (a)(5) alongside subsections reaching arson caused by repeat offenders, arson causing great bodily injury to first responders or multiple victims, and arson causing damage to multiple structures, the Legislature can be presumed to have intended, by the phrase "device designed to accelerate the fire," to reach fire setting behavior by the "worst arsonists," responsible for the most dangerous and destructive fires. (See Kurntenbach, supra, 204 Cal.App.4th at p. 1280 ["Because gasoline is used in connection with an arson to increase the strength and destructive power of the fire, it is consistent with the legislative intent to view the use of gasoline in connection with an arson as the use of a device designed to accelerate a fire within the meaning of the sentencing enhancement"].) Whatever else the Legislature may have intended by the words, "device designed to accelerate the fire," their appearance in a statute designed to reach the most serious arson offenses, by the worst offenders, indicates they must mean something more than merely setting fire to a structure. (§ 451, subd. (c); see also People v. Drennan (2000) 84 Cal.App.4th 1349, 1355 ["The rule of statutory construction, noscitur a sociis, a word takes meaning from the company it keeps, is useful here. 'A word of uncertain meaning may be known from its associates and its meaning "enlarged or restrained by reference to the object of the whole clause in which it is used" ' "].) The majority's opinion reads this "something more" out of the statute, and thereby frustrates the Legislature's clearly expressed intent.
This problem is brought into bold relief by the majority's reliance on the concept of "escalating incendiary materials." (Maj. opn., ante, at p. 7.) The majority characterizes defendant's arrangement of dried grass, torn cardboard, and a wooden pallet as "escalating incendiary materials," which are then deemed to constitute "a device designed to accelerate the fire." (Maj. opn, ante, at p. 7.) But most successful fires will involve some combination of tinder (dried grass), kindling (torn cardboard), and fuel (the wooden pallet). (See Department of the Army, The Official U.S. Army Survival Handbook (2017) p. 102 [explaining that successful "firecraft" requires tinder ("dry material that ignites with little heat"), kindling ("readily combustible material that you add to the burning tinder") and fuel ("less combustible material that burns slowly and steadily once ignited"].) And even the trial court recognized that a fire would have been unlikely to result from the use of a single combustible element (e.g., dried grass), without simultaneous use of the others (e.g., the torn cardboard and wooden pallet). Indeed, the trial court specifically found that dried grass, "being prone to burning quickly on being lit," would have "quickly gone to ashes," while the wooden pallet, though longer-burning, was "not a reasonably-designed ignitor of the building because it is rare that one could set it aflame with application of a match." Thus, the record supports the conclusion that an arrangement of "escalating incendiary materials" was necessary to set fire to the structure in the first place, such that no violation of section 451, subdivision (c) would have been possible but for the use of the supposed "device." By contrast, no evidence supports the conclusion that the use of dried grass, torn cardboard, and a wooden pallet contributed to the creation of a dangerous or destructive fire, of the type that could or should subject defendant—a first time offender—to an enhanced sentence.
Fairly read, the record demonstrates only that defendant set fire to a structure using ordinary combustible materials and a conventional fire setting method. Although the dictionary definitions of "device," "design," and "accelerate" can be stretched to encompass defendant's use of dried grass, torn cardboard, and a wooden pallet, the same can be said of almost any use of combustible materials resulting in a deliberate burning. Such an interpretation would collapse the enhancement into the underlying offense and undermine the legislative purpose in imposing the most serious penalties on the "worst arsonists." I would reverse the enhancement.
/s/_________
RENNER, J.