Opinion
NOT TO BE PUBLISHED
Santa Clara County Super.Ct.No. CC638459
Duffy, J.
A jury convicted defendant David Saldaña of committing the arson of an inhabited structure (Pen. Code, § 451, subd. (b)) and found true an enhancement allegation that he used an accelerant to commit the crime (§ 451.1, subd. (a)(5)). The trial court sentenced defendant to nine years in prison—five years for the crime and four for the enhancement. Defendant was ordered to pay $1,800 as a restitution fund fine (§ 1202.4, subd. (b)).
Further statutory references are to the Penal Code unless otherwise indicated.
On appeal, defendant claims that there was constitutionally insufficient evidence to support the jury’s finding that he used an accelerant in committing arson, and that his counsel’s failure to object to certain remarks by the prosecutor at closing argument constituted ineffective assistance of counsel.
We will affirm the judgment.
FACTS
I. Prosecution Case
One or more members of defendant’s extended family had reported a child-molestation by defendant’s son. The son pleaded no contest to that crime and went to prison. Thereafter defendant nursed a suspicion that certain relatives had made a false accusation and blamed them for causing his son’s imprisonment. He questioned his aunt whether his son had been framed. He also telephoned the molestation victim, an 11-year-old girl, asking for details of the sexual assault and accusing her of inventing her claim. Later, to exact revenge for his son’s prosecution and imprisonment, defendant set fire to the garage at his aunt’s residence around dawn on July 4, 2006. Defendant’s cousin and his cousin’s fiancé were asleep in the residence, to which the garage was attached. They awoke and the fiancé managed to extinguish the flames with a garden hose before the fire department arrived. A security camera belonging to a neighbor showed someone starting the fire with an accelerant. The camera’s footage was played to the jury. Defendant’s aunt, an uncle, and the molestation victim’s mother identified defendant from the videotaped footage, from photographic enlargements taken from the footage, or both. The aunt and the molestation victim’s mother testified in court about their identifications. A police officer testified that defendant was the person in a still photograph that an arson investigator showed him.
The arson investigator testified that the camera footage showed defendant pouring a substance from a five-gallon bucket and ducking out of sight, at which point the flash or a small explosion occurred, followed by fire. The investigator, testifying as an expert, concluded that a substance like gasoline had been used to start the fire. He based this view on the odor and a stain at the crime scene and the initial burst that the security camera recorded.
II. Defense Case
The defense theory was that members of defendant’s family were angry about the prosecution of defendant’s son and could have perpetrated the arson. Some of the prosecution testimony had suggested that a general family rift arose after the prosecution of defendant’s son. One prosecution witness had testified on cross-examination that another son of defendant was embittered by his brother’s prosecution and imprisonment for child molestation. Moreover, the truck was seen backing up in the videotape and defendant’s wife told an investigating police officer (who was a prosecution witness) that defendant’s truck had a non functioning reverse gear. On cross-examination by defense counsel and redirect examination by the prosecutor, however, the officer testified that he did not investigate whether the truck’s reverse gear worked.
In his case-in-chief, defendant testified. He denied setting the fire. The person in the videotape was someone else and the truck the person was driving in the videotape did not match the description of defendant’s truck. (On cross-examination, however, defendant conceded that his truck was very similar to the one seen in the security camera footage.) The reverse gear of his truck was inoperable at the time of trial and on July 4, 2006, when the arson occurred. Defendant denied being angry at his relatives, including the aunt whose house he was accused of setting alight, for causing his son’s prosecution. Rather, he was disappointed in his son for molesting a child. He never called the victim to ask about the molestation. The aunt’s in-court testimony was false.
DISCUSSION
I. Sufficiency of Evidence That Defendant Used an Accelerant in Committing Arson
Defendant claims that the jury’s finding on the enhancement allegation is constitutionally invalid because the “evidence failed to establish that [he] used a device, within the meaning of section 451.1, to accelerate the fire at the home of his aunt.” (Italics added.)
A. Standard of Review
Under the federal Constitution’s due process clause, there is sufficient evidence to support the enhancement verdict if, viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 319; People v. Alvarez (1996) 14 Cal.4th 155, 224-225 [applying the general Jackson standard to enhancement allegations].) The same standard applies under article I, section 15, of the California Constitution. (See People v. Berryman (1993) 6 Cal.4th 1048, 1083, overruled on another ground in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.) This test “does not require a court to ‘ask itself whether it believes that the evidence at the trial established [the truth of the enhancement allegation] beyond a reasonable doubt.’ [Citation.] Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the [enhancement allegation true] beyond a reasonable doubt.” (Jackson v. Virginia, supra, 443 U.S. at pp. 318-319.) “[T]he court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the [enhancement allegation true] beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578.) “The court does not, however, limit its review to the evidence favorable to the respondent. . . . ‘[O]ur task . . . is twofold. First, we must resolve the issue in the light of the whole record, i.e., the entire picture of the defendant put before the jury—and may not limit our appraisal to isolated bits of evidence selected by the respondent. Second, we must judge whether the evidence of each of the essential elements . . . is substantial; it is not enough for the respondent simply to point to ‘some’ evidence supporting the finding, for “Not every surface conflict of evidence remains substantial in the light of other facts.” ’ ” (Id. at p. 577.)
B. Analysis
Subdivision (a) of section 451.1 provides, as relevant here, that “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 . . . (b) . . . of Section 451 and the arson was caused by use of a device designed to accelerate the fire or delay ignition.”
Relying on People v. Andrade (2000) 85 Cal.App.4th 579, defendant argues that gasoline is not a “device” within the meaning of section 451.1 and therefore the jury’s finding is invalid for want of sufficient evidence. In Andrade, the court found that the Legislature had called for increased punishment when the actor uses “a piece of equipment or a mechanism intended, or devised, to hasten or increase the progress of the fire.” (Id. at p. 587.) Defendant argues that gasoline is neither equipment nor a mechanism, but merely a substance, and notes that Andrade also stated that the defendant in that case “did more than use a match to ignite poured gasoline, [but instead] used a device to accelerate the fire.” (Id. at p. 590.) The People assert in turn that under a series of dictionary definitions gasoline itself qualifies as a device or mechanism to accelerate a fire. “Spreading an accelerant, i.e., gasoline, around an inhabited dwelling is a mechanism” within the meaning of section 451.1, subdivision (a)(5), “since it is the process responsible for hastening or increasing the progress of a fire.”
We agree with the People. One definition of device is a “mechanism.” (Webster’s Third New Internat. Dict. (1993) p. 618, col. 3.) In turn, two definitions for a mechanism are “the fundamental physical or chemical processes involved in or responsible for an action, reaction, or other natural phenomenon” (id. at p. 1401, col. 2) and “a sequence of steps in a chemical reaction” (ibid.). Combustion, i.e., burning, of course is often associated with the chemical process of rapid oxidation. (See id. at p. 453, col. 1.) In this case the process consisted of the rapid oxidation of gasoline to release heat and facilitate the fire. In light of these definitions, we are satisfied that gasoline is an accelerant within the meaning of section 451.1.
In Andrade the device was, rather than gasoline itself, “a piece of equipment” (People v. Andrade, supra, 85 Cal.App.4th at p. 587) used to accelerate the fire, namely a “gasoline-filled bottle . . . designed to accelerate the fire” (id. at pp. 589-590). It may be argued that the statutory use of the term “designed” (§ 451.1, subd. (a)(5)) creates a requirement that the fire be accelerated by use of a physical object meant to facilitate arson, and that gasoline itself does not fit within that definition because, unlike the Molotov cocktail at issue in Andrade, it is not designed to commit arson. But we do not read the statutory language that narrowly. “[D]esigned” (ibid.) refers not just to physical creations such as drawings, blueprints, and objects constructed for particular purposes, but also to the mental state of purpose or intent. “ ‘Design’ is defined in relevant part as ‘. . . to conceive and plan out in the mind[;] . . . to have as a purpose: intend . . . .’ ” (Andrade, at p. 587.) In our view, the term “designed” in section 451.1 refers to a culpable mental state as well as to tangible objects.
Because the jury received solid evidence that defendant used gasoline at the arson location to achieve his purpose of accelerating the fire, we find unavailing his claim that the evidence was insufficient to find true the enhancement allegation.
II. Ineffective Assistance of Counsel
Defendant claims that he received constitutionally ineffective assistance of counsel because counsel failed to object to remarks by the prosecutor at closing argument. We do not agree.
A claim of ineffective assistance of counsel in violation of the Sixth Amendment to the United States Constitution entails deficient performance under an objective standard of professional reasonableness and prejudice under a test of reasonable probability of an adverse effect on the outcome. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 694.) To the extent that defendant also presents a claim under article I, section 15 of the California Constitution, the Strickland standards also apply. (E.g., People v. Waidla (2000) 22 Cal.4th 690, 718.)
Defendant asserts that the prosecutor committed misconduct by misstating the law regarding the enhancement allegation during closing argument.
The prosecutor argued, “the accelerant is defined in the instruction. An accelerant is equipment or a mechanism . . . intended or devised to hasten the fire’s progress. . . . [¶] . . . [¶] . . . In this case the mechanism is gasoline. Mechanism means method. . . . It’s simply a method or means. Gasoline was used in this case.”
Defense counsel did not object to the foregoing remarks.
It is misconduct for a prosecutor to misstate the law (see People v. Ramos (1984) 37 Cal.3d 136, 154), and there is no requirement that “a prosecutor must act with a culpable state of mind. A more apt description of the transgression is prosecutorial error.” (People v. Hill, supra, 17 Cal.4th at p. 823, fn. 1.)
The prosecutor, however, did not misstate the law. Gasoline was indeed the mechanism used to hasten the fire’s progress. If defense counsel had objected to the prosecutor’s remark, counsel’s action would have been unavailing. “Representation does not become deficient for failing to make meritless objections. There was no . . . reason to object . . . .” (People v. Ochoa (1998) 19 Cal.4th 353, 463.) Accordingly, there was no deficient performance by defense counsel, and hence no ineffective assistance of counsel.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Mihara, Acting P. J., McAdams, J.