NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 15F01033)
A jury convicted defendant Sumit Sagar Lal of arson of a structure (Pen. Code, § 451, subd. (c)), second degree burglary (§ 459), vandalism causing more than $400 in damage (§ 594, subd. (b)), identity theft (§ 530.5, subd. (a)), and misdemeanor receiving stolen property (§ 496, subd. (a)), as well as sustaining allegations that the arson involved a device designed to accelerate the fire (§ 451.1, subd. (a)(5)), and the damage caused by the arson exceeded $200,000 (§§ 12022.6, subd. (a)(2), 1203.045). The trial court sentenced defendant to a nine-year eight-month state prison term.
Undesignated statutory references are to the Penal Code.
On appeal, defendant contends that CALCRIM No. 1551 violates due process as it erroneously fails to instruct the jury that the section 451.1 enhancement requires that defendant personally used a device designed to accelerate the fire. He further contends that the trial court improperly directed a verdict by modifying CALCRIM No. 1551 to state that gasoline poured from a container is a device designed to accelerate the fire. Finally, he contends that, as a matter of law, gasoline poured from a container is not a device designed to accelerate a fire. We affirm.
The Prosecution Case
In August or September of 2014, Bao Her discovered that she had lost her credit card and called her bank to cancel it. She reviewed her bank statement and discovered $2,565 in unauthorized charges from a single source, a Kentucky Fried Chicken (KFC) franchise on Meadowview Road in Sacramento. She tried for several months to get relief from her bank, but failed. In January 2015, she went to the KFC and reported the unauthorized charges to the manager Debora Nicorici.
Nicorici suspected an employee used the card to pay for customers' transactions and then took a corresponding amount of cash from the till. Comparing the unauthorized transactions to the employee schedule, Nicorici determined that defendant was working the shift each time an unauthorized transaction was made. Nicorici, accompanied by her supervisor, confronted defendant about the unauthorized transactions the following day, suspending him for a week pending further investigation.
A fire was reported at the KFC on January 13, 2015 at 1:45 a.m. The fire was kept in check by the restaurant's sprinkler system until firefighters could put it out, but over $200,000 in damage was done to the building.
The fire investigator found that a security DVR had been unplugged and was hanging off a shelf by its wires. A monitor connected to a DVR was flipped on its side with the cord cut. There were some smashed computer screens in the kitchen area and some frozen food was thrown about the kitchen. A partially burned gasoline can and a red utility knife were also found in the KFC. The investigator determined the fire was an arson because every other ignition source could be ruled out, there was evidence that the fire was started by an ignitable liquid, and there were attempts to cover up the crime.
A surveillance video from the KFC was recovered. It showed three people in the KFC before the fire: a woman with a gas can, a man wearing a hoodie can be seen hopping over the counter, and a third person wearing gloves, a silver mask, and a hooded sweatshirt, also hopping over the counter.
The day after the fire, Alvaro Garcia, defendant's coworker spoke to defendant about the fire. Defendant told Garcia that he and a couple of friends set the fire to burn evidence relating to the credit card fraud. Defendant said he went into KFC and cut the cords to the surveillance system, poured gasoline on the restaurant, and set it on fire.
During a search of defendant's home, Bao's credit card was found in defendant's wallet, which was in a dresser in his bedroom. In defendant's closet was a silver mask like the one seen in the video and a pair of gloves in a dresser drawer. An investigator also found an exact duplicate of the red utility knife that was in the KFC after the fire.
Defendant's ex-girlfriend Julia Oropeza testified that on January 12, 2015, she talked to defendant on Skype between approximately 10:30 p.m. and 2:00 a.m. When police seized her phone, the Skype application was no longer on it. Oropeza explained that she had deleted the Skype application to free up extra memory for new software.
Sachindra Lal, defendant's older brother, was studying at home on the evening of January 12, 2015. He fell asleep, and, when he woke up at around 10:30 or 11:00 p.m., defendant was sitting in the living room, using a laptop. The silver mask belonged to him.
Sador Lal, defendant's father, returned home from work at 1:45 a.m. on the day of the fire. Both defendant and his brother were awake at home.
The trial court gave the following instruction on the section 451.1 enhancement, a version of CALCRIM No. 1551 modified to include a reference to pouring gasoline from a canister as a device coming under the enhancement:
"If you find the defendant guilty of arson, as charged in Count One, you must then decide whether the People have proved the additional allegation that the arson burned a structure, and was caused by use of a device designed to accelerate the fire or delay ignition.
"A device designed to accelerate the fire means a piece of equipment or a mechanism intended, or devised, to hasten or increase the fire's progress and can include gasoline poured from a container prior to the start of a fire.
"You must decide whether the People have proved this allegation and return a separate finding.
"The People have the burden of proving this allegation beyond a reasonable doubt. If the People have not met this burden, you must find that the allegation has not been proved."
Defense counsel did not object to the instruction and did not request any clarifying language.
The jury sustained an enhancement for using a device designed to accelerate a fire, section 451.1, subdivision (a)(5). Section 451.1 states in pertinent part: "(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."
Defendant contends that the CALCRIM No. 1551 instruction on the enhancement violated his due process rights by omitting an element, that he personally used a device designed to accelerate the fire. We disagree.
Defendant need not object to an instruction that affects his substantial rights. (People v. Mackey (2015) 233 Cal.App.4th 32, 106; see § 1259.) Here, because defendant claims the trial court failed to instruct on an enhancement element, the claimed instructional error affects his substantial rights. (People v. Sengpadychith (2001) 26 Cal.4th 316, 326.) We therefore address defendant's contentions on the merits despite his failure to object to the instruction.
Resolving this claim turns on discerning the meaning of the relevant text of section 451.1. " '[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.)
Defendant relies on a trilogy of cases that starts with People v. Walker (1976) 18 Cal.3d 232 (Walker). Walker addressed former section 12022.5, which stated in pertinent part: " 'Any person who uses a firearm in the commission or attempted commission of a robbery, assault with a deadly weapon, murder, assault with intent to commit murder, rape, burglary, or kidnapping, upon conviction of such crime, shall, in addition to the punishment prescribed for the crime of which he has been convicted, be punished by imprisonment in the state prison for a period of not less than five years.' " (Walker, supra, at p. 236, fn. 1.) The issue in Walker was whether a defendant had to personally use a firearm in order to be liable for the enhancement. (Id. at pp. 235-236.)
Since the enhancement did "not expressly direct its application to particular persons or classes of persons," it was necessary for the Supreme Court in Walker to "determine the legislative intent." (Walker, supra, 18 Cal.3d at p. 240.) The Supreme Court first looked to the history of section 12022.5. In People v. Floyd (1969) 71 Cal.2d 879 (Floyd), the Supreme Court held that former section 12022, an enhancement for being armed, did not apply "in those cases where being armed was a necessary element of the crime or of the degree of the crime found to have been committed." (Walker, supra, at p. 241; Floyd, supra, at p. 883.) In People v. Chambers (1972) 7 Cal.3d 666, the Supreme Court held that section 12022.5 was enacted as a response to Floyd. (People v. Chambers, supra, at p. 672; Walker, supra, at p. 241.) Given the context of section 12022.5's enactment, the Supreme Court concluded in Walker: "This rather circumscribed legislative intent suggests that the only substantive differences in the new provision are in the limited types of felonies to which that provision is applicable and in the definition of the proscribed conduct warranting the increased punishment. There is absolutely nothing which suggests a legislative intent to enlarge the applicability of the new provision to additional categories of persons." (Walker, supra, at p. 241.) The Walker court noted that former section 12022 and similar provisions applied only when the defendant was personally armed with the weapon, and found no reason to give a different construction to former section 12022.5. (Walker, supra, at p. 241.)
The Walker court found this conclusion was consistent with general principles of derivative liability. "Generally, if a statute is intended to impose a derivative liability on some person other than the actor, there must be some legislative direction that it is to be applied to persons who do not themselves commit the proscribed act. Such a direction is found in section 31, which fixes responsibility on an aider and abettor for a crime personally committed by a confederate. But the statute which defines aiders and abettors as principals in the commission of a criminal offense does not also purport to impose additional derivative punishment grounded on an accomplice's personal conduct, as those statutes which provide for such increased punishment ' "do not define a crime or offense but relate to the penalty to be imposed under certain circumstances." ' [Citations.] Hence the rules which make an accused derivatively liable for a crime which he does not personally commit, do not at the same time impose a derivatively increased punishment by reason of the manner in which a confederate commits the crime." (Walker, supra, 18 Cal.3d at pp. 241-242.) This reinforced the Supreme Court's decision to "infer a further legislative intent to make section 12022.5 applicable to a different category of persons than that to which section 12022 is applicable, that is, to those persons who personally commit the proscribed misconduct." (Walker, supra, at p. 242, fn. omitted.) This conclusion was also consistent with the rule of lenity, whereby " 'the defendant is entitled to the benefit of every reasonable doubt as to the true interpretation of words or the construction of language used in a statute.' [Citation.]" (Id. at p. 242.)
The second case that defendant relies on is People v. Cole (1982) 31 Cal.3d 568 (Cole). Cole addressed former section 12022.7, which provided in pertinent part that " '[a]ny person who, with the intent to inflict such injury, personally inflicts great bodily injury on any person other than an accomplice in the commission or attempted commission of a felony shall, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he has been convicted, be punished by an additional term of three years, unless infliction of great bodily injury is an element of the offense of which he is convicted.' " (Cole, supra, at pp. 570-571.) The Supreme Court noted that the Legislature's response to Walker was "to uniformly limit the class of persons to whom the 'use' and 'great bodily injury' enhancements are applicable to those who themselves commit the prohibited conduct." (Cole, supra, at p. 576.) This supported the Supreme Court's conclusion in Cole that "the enhancement applies only to a person who himself inflicts the injury." (Id. at p. 572.)
The final case in defendant's trilogy is People v. Piper (1986) 42 Cal.3d 471 (Piper). Piper held that former section 1192.7, subdivision (c)(8), which made "serious" any felony "in which the defendant uses a firearm" applied only if the defendant personally used the firearm. (Piper, supra, at pp. 473, 478.) The Supreme Court found the provision's text supports limiting it to instances of personal use: "Although the subdivision does not expressly speak in terms of 'personal use,' its syntax clearly suggests that it was intended to apply only to cases in which the defendant himself uses a firearm." (Id. at p. 476.) Also, "prior decisions interpreting similar 'use' language support the conclusion that subdivision (c)(8) should be construed to require a showing of personal use," most notably Walker and Cole. (Piper, supra, at p. 476.) While subdivision (c)(23) of section 1192.7 was specifically limited to the personal use of a weapon, "even if the juxtaposition of the language of subdivision (c)(23) and subdivision (c)(8) creates some ambiguity as to the reach of subdivision (c)(8), under settled principles such ambiguity must properly be resolved in favor of the defendant. [Citation.]" (Piper, supra, at p. 477.) The (c)(8) enhancement was therefore limited to instances where the defendant personally used the relevant weapon. (Id. at p. 478.)
Former section 1192.7, subdivision (c)(23) made serious " 'any felony in which the defendant personally used a dangerous or deadly weapon.' " (See Piper, supra, 42 Cal.3d at p. 475.)
Defendant likens the enhancement at issue here to those limited to personal use in Walker, Cole, and Piper. Finding that subdivision (a)(5) of section 451.1 "neither expressly authorizes vicarious liability nor expressly includes a 'personally' limitation," defendant concludes that, as in "Piper and its progeny," the enhancement should be limited "to defendants who personally engage in the proscribed conduct." Defendant additionally argues that his reading is supported by other provisions in section 451.1. Subdivision (a)(3) applies the enhancement to a defendant who "proximately caused great bodily injury to more than one victim," and subdivision (a)(4) applies it when "defendant proximately caused multiple structures to burn." Since "[p]roximately causing and personally inflicting harm are two different things" (People v. Bland (2002) 28 Cal.4th 313, 336), defendant argues that subdivision (a)(5) must be limited to personal use since " ' "[i]t is a well recognized principle of statutory construction that when the Legislature has carefully employed a term in one place and excluded it in another, it should not be implied where excluded." ' [Citation.]" (People v. Rodriguez (1999) 69 Cal.App.4th 341, 349-350.) Finally, since defendant finds that subdivision (a)(5) is ambiguous as to the issue of vicarious liability, he concludes that it should be limited to personal use under the rule of lenity.
Defendant's arguments fail because the text of section 451.1, subdivision (a)(5) shows a legislative intent to apply the enhancement to aiders and abettors as well as those who personally use the device designed to accelerate the fire. In Piper, the Supreme Court did not just find that the text of former section 1192.7, subdivision (c)(8) suggested that it was limited to defendants who personally use a firearm, it also suggested how the Legislature could have written the provision to apply more broadly. "If the broader application—which the People propose—had been intended, it is likely that the provision would have defined serious felony to include any felony 'in which a firearm is used' rather than 'in which the defendant uses a firearm.' " (Piper, supra, 42 Cal.3d at p. 476.)
Section 451.1 was enacted in 1994 (Stats. 1994, ch. 421, § 2, p. 2299), eight years after Piper was decided in 1986. The syntax of the portion of subdivision (a)(5) at issue here, "the arson was caused by use of a device designed to accelerate the fire or delay ignition" follows the suggestion in Piper. Rather than referring to the defendant using the device, the enhancement applies to any "use of a device" that causes the applicable arson for which the defendant was convicted. "The Legislature is presumed to know existing law at the time it enacts a statute [citation]." (Singh v. Superior Court (2006) 140 Cal.App.4th 387, 400.) The Legislature's decision to omit any reference to defendant using the device therefore supports our conclusion the enhancement applies beyond defendants who personally use the device to all participants in the arson.
The first part of section 451.1, subdivision (a)(5), "[t]he defendant committed arson as described in subdivision (a), (b), or (c) of Section 451," does not support a different approach. Section 451.1 generally applies to any conviction of arson under section 451. (§ 451.1, subd. (a).) The reference to defendant in subdivision (a)(5) limits that enhancement to a subset of arson convictions, arson causing great bodily injury (§ 451, subd. (a)), arson of an inhabited structure or property (§ 451, subd. (b)), and arson of a structure or forest land (§ 451, subd. (c)), while excluding arson of property (§ 451, subd. (d).) It does not refer to defendant's use of the device designed to accelerate the fire, and therefore cannot support the interpretation suggested by defendant. --------
This interpretation is supported by the enhancement's context. Every other enhancement in section 451.1 can apply to a vicariously liable defendant. As previously discussed, subdivision (a)(3) and (4) have a greater scope than defendants who personally cause the harm covered by those provisions. The text of subdivision (a)(1), which applies when "[t]he defendant has been previously convicted of a felony violation of Section 451 or 452" and subdivision (a)(2), which applies the enhancement when "[a] firefighter, peace officer, or other emergency personnel suffered great bodily injury as a result of the offense," likewise supports application to a defendant convicted of arson under a theory of vicarious liability. The text of subdivision (a)(1) through (4) thus show a legislative scheme to apply the various iterations of section 451.1 to defendants who personally commit the arson coming under the relevant enhancement and those liable under a theory of vicarious liability. The Legislature's decision to omit any reference to a defendant in subdivision (a)(5)'s operative language is consistent with this scheme.
We also reject defendant's reliance on the rule of lenity. But " ' " 'that rule applies "only if two reasonable interpretations of the statute stand in relative equipoise." [Citation.]' [Citations.]" [Citations.]' [Citation.] 'The rule of lenity does not apply every time there are two or more reasonable interpretations of a penal statute. [Citation.] Rather, the rule applies " 'only if the court can do no more than guess what the legislative body intended; there must be an egregious ambiguity and uncertainty to justify invoking the rule.' " [Citation.]' [Citation.]" (People v. Nuckles (2013) 56 Cal.4th 601, 611, italics omitted.) The provisions at issue in Walker and Piper were ambiguous only because their operative language referred to defendant without referring to whether defendant had to personally use the relevant device. (See Walker, supra, 18 Cal.3d at p. 240; Piper, supra, 42 Cal.3d at p. 476.) By contrast, the Legislature avoided that ambiguity here by omitting any reference to defendant in the operative language. There is no "egregious ambiguity" regarding whether section 451.1, subdivision (a)(5) applies to a defendant who does not personally use the device. The rule of lenity is therefore irrelevant to interpreting the provision. We accordingly reject defendant's attempt to limit it to those who personally use a device covered by the enhancement.
CALCRIM No. 1551 defines a device designed to accelerate a fire as "a piece of equipment or a mechanism intended, or devised, to hasten or increase the fire's progress." The trial court modified this portion of CALCRIM No. 1551 as follows: "A device designed to accelerate the fire means a piece of equipment or a mechanism intended, or devised, to hasten or increase the fire's progress and can include gasoline poured from a container prior to the start of a fire." Defendant contends the trial court's modification of CALCRIM No. 1551 violated his Sixth and Fourteenth Amendment rights by directing a verdict as to whether gasoline poured from a container comes within the section 451.1, subdivision (a)(5) enhancement.
"In considering a claim of instructional error we must first ascertain what the relevant law provides, and then determine what meaning the instruction given conveys. The test is whether there is a reasonable likelihood that the jury understood the instruction in a manner that violated the defendant's rights. In making this determination we consider the specific language under challenge and, if necessary, the instructions as a whole. [Citation.]" (People v. Andrade (2000) 85 Cal.App.4th 579, 585 (Andrade).)
The modified language in the instruction is taken from People v. Kurtenbach (2012) 204 Cal.App.4th 1264 (Kurtenbach). The defendant in Kurtenbach was charged with arson and a section 451.1, subdivision (a)(5) enhancement. (Kurtenbach, supra, at p. 1278.) The People's theory was that pouring gasoline on a house before the arson was the use of a device designed to accelerate the fire. (Ibid.) "The trial court instructed the jury that 'a device designed to accelerate the fire means a piece of equipment or a mechanism intended, or devised, to hasten or increase the fire's progress and can include gasoline poured from a container prior to the start of a fire.' " (Id. at pp. 1278-1279.) The jury sustained the allegation. (Id. at p. 1279.)
The defendant argued on appeal that the trial court "improperly instructed the jury that 'gasoline poured from a container prior to the start of a fire' constitutes a device designed to accelerate the fire within the meaning of section 451.1, subdivision (a)(5)." (Kurtenbach, supra, 204 Cal.App.4th at p. 1279.) The Kurtenbach court found that pouring gasoline onto a structure that was subject to an arson was, as a matter of law, the use of a device designed to accelerate a fire. Finding that the legislative intent behind section 451.1 was increasing penalties for those who commit arson who showed a specific intent to damage, the Court of Appeal concluded "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). The trial court properly instructed the jury." (Kurtenbach, supra, at p. 1280.)
As defendant admits, "extracts from appellate opinions are deemed to be correct statements of the law." (People v. Jones (1971) 19 Cal.App.3d 437, 447.) Defendant also properly points out that " ' "[i]t is dangerous to frame an instruction upon isolated extracts from the opinions of the court." ' [Citation.]" (People v. Hayes (2009) 171 Cal.App.4th 549, 558.) This concern is not present here because Kurtenbach addressed a jury instruction using the same language as the instruction here. Also inapplicable is the warning that while "appellate opinions are an important source of jury instructions, trial courts should use great care in lifting statements from opinions since such statements taken out of context may be inappropriate as a general rule of law, particularly if the facts underlying the opinion are distinguishable." (Bay Summit Community Assn. v. Shell Oil Co. (1996) 51 Cal.App.4th 762, 778, fn. 9.) This is not raised by the trial court's reliance on Kurtenbach, because that case, which involved a fire to a house fueled by gasoline (Kurtenbach, supra, 204 Cal.App.4th at p. 1271), is not meaningfully distinguished from the present case.
We also reject defendant's claim the court's use of the Kurtenbach instruction effectively directed a verdict on the enhancement.
"It has long been recognized that a trial judge 'may not direct a verdict of guilty no matter how conclusive the evidence.' [Citations.] . . . [¶] The prohibition against directed verdicts 'includes perforce situations in which the judge's instructions fall short of directing a guilty verdict but which nevertheless have the effect of so doing by eliminating other relevant considerations if the jury finds one fact to be true.' [Citation.] . . . '[N]o fact, not even an undisputed fact, may be determined by the judge.' [Citations.]" (People v. Figueroa (1986) 41 Cal.3d 714, 724 (Figueroa).) "The rule prohibiting verdicts directed against an accused emanates from the guarantee of due process and the right to a jury trial. Due process 'protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged' [citation]. It requires the state to prove ' "every ingredient of an offense beyond a reasonable doubt . . . ." ' [Citation.]" (Id. at p. 725, italics omitted.)
Figueroa, a case relied on by defendant addressed "whether the trial court, in a prosecution for the sale of unqualified securities, erred in instructing the jury that certain 'Corporation Promissory Notes' were 'securities' within the meaning of the Corporate Securities Law." (Figueroa, supra, 41 Cal.3d at p. 717.) While the definition of the term "security" was a question of law (id. at p. 733), "[w]hether a particular piece of paper meets that definition, however, is for the jury to decide." (Id. at p. 734.) The instruction therefore improperly removed an element of the offense "from the jury's consideration." (Id. at p. 741.)
In People v. Brown (1988) 46 Cal.3d 432 (Brown), the defendant was charged with murder, with the special circumstance that the victim was a peace officer engaged in the performance of his or her duties (§ 190.2, subd. (a)(7)). (Brown, supra, at p. 441.) The instruction on the special circumstance stated: " 'For the purposes of these instructions, a Garden Grove Regular Police Officer and a Garden Grove Reserve Police Officer are peace officers.' " (Id. at p. 443, italics omitted.) Our Supreme Court held this instruction did not remove an element of the special circumstance from the jury's consideration in violation of due process. It explained: "The challenged final sentence took no element from the jury; it merely instructed the jury on a point of statutory law—a point not open to dispute—that a Garden Grove police officer is a peace officer. [Citations.] The jury was left to make all essential factual determinations, including whether the victim was a Garden Grove police officer." (Id. at pp. 443-444, fn. omitted.)
In People v. Runnion (1994) 30 Cal.App.4th 852, the defendant was charged with robbery, with a personal firearm use allegation. (Id. at p. 854.) The trial court omitted the portion of the instruction defining "firearm"; instead, it simply instructed that, " '[t]he word "firearm" includes handgun.' " (Id. at p. 855.) On appeal, the defendant contended this instruction relieved the state of its burden of proving the object the defendant used during the robbery was a firearm. (Id. at p. 856.) The court rejected the contention: "The court did not instruct the jury that a particular element had been established, as it would have done had it instructed the jury that People's No. 6 was a firearm or a handgun. Instead, the court merely, and correctly, instructed that the legal definition of a firearm included a handgun. The jury was left to determine whether People's No. 6, the item at issue in the case before them, was a handgun." (Ibid.)
In People v. James (1998) 62 Cal.App.4th 244, the trial court instructed the jury that manufacturing methamphetamine was a dangerous felony. (Id. at p. 271.) The appellate court affirmed. First, it held that manufacturing methamphetamine was in fact a dangerous felony. (Ibid.) Next, it held the trial court did not err in so instructing the jury. "As we held in part I, ante, manufacturing methamphetamine is an inherently dangerous felony as a matter of law. Here, the challenged instructions correctly so informed the jurors. They still had to find every factual element of the crime, including whether defendant's conduct constituted the felony of manufacturing methamphetamine, and whether her children's deaths occurred during or as a direct causal result of the commission or attempted commission of this felony. Thus, the instructions are not analogous to the one struck down in Figueroa. Rather, they are analogous to the ones upheld in Brown and Runnion. We conclude they did not take any issue of fact away from the jury." (Id. at p. 273.)
We find the instruction here analogous to those in Brown, Runnion, and James, and distinguishable from Figueroa. The challenged modification did not establish a fact at dispute in this case. Rather it reflected the law as stated in Kurtenbach. Pouring gasoline from a canister onto a structure that was subject to an arson was, as a matter of law, the use of a device designed to accelerate a fire. The other cases cited by defendant are, like Figueroa, distinguished because they involved instructions that intruded on the jury's factfinding duty. (See People v. Nava (1989) 207 Cal.App.3d 1490, 1495, 1496-1497 [error to instruct that a "bone fracture [is] a significant and substantial injury" under section 12022.7 as broken bone can be a serious injury but is not one as a matter of law]; People v. Daniels (1993) 18 Cal.App.4th 1046, 1051-1052 [instructing jury in kidnapping prosecution that "as a matter of law, 500 feet is [a] substantial [distance]" crested impermissible mandatory presumption]; Medley v. Runnels (9th Cir. 2007) 506 F.3d 857, 859, 860, 864-866 [improper to instruct on section 12022.53 enhancement that " 'a flare gun is a firearm' " where no state law establishing as a matter of law that a flare gun was a firearm].)
Since the trial court's instruction reflected the state of the law as declared without subsequent contradiction in Kurtenbach, the modified instruction did not impermissibly intrude on the jury's factfinding function.
Defendant disagrees with Kurtenbach and asks us to find, as a matter of law, that pouring gasoline from a canister does not come within the section 451.1, subdivision (a)(5) enhancement. We decline the invitation.
Kurtenbach's interpretation of section 451.1 relied heavily on Andrade, the only published case at the time addressing the meaning of the phrase " 'use of a device designed to accelerate the fire.' " (Kurtenbach, supra, 204 Cal.App.4th at p. 1279.) In Andrade, there was evidence that the defendant started a fire either by using a Molotov cocktail or by breaking a gasoline-filled bottle by throwing it on the floor and then lighting a match. (Andrade, supra, 85 Cal.App.4th at pp. 582, 585.) The defendant was charged with arson with the section 451.1, subdivision (a)(5) enhancement. (Andrade, supra, at p. 581.) The trial court instructed the jury: " 'It is further alleged that at the time of the commission of the crime charged in count 1, that the defendant used a device to accelerate the fire or delay ignition. [¶] If you find defendant guilty of the crime charged in count 1, you must determine whether or not the truth of this allegation has been proved.' " (Id. at p. 584, italics omitted.) Defendant argued on appeal "that by omitting the word 'designed' the jury did not have to determine whether he used a device that was designed to accelerate the fire, and could erroneously find the enhancement true based merely on his igniting of spilled gasoline, which according to him is not a device designed to accelerate a fire." (Id. at pp. 584-585, italics omitted.) Because the phrase "device designed to accelerate the fire" was capable of more than one meaning, the court in Andrade had to construe the statutory language, a question of first impression. (Id. at p. 585.)
The Court of Appeal first summarized the statutory history of the section 451.1 enhancement. "Section 451.1 was enacted in 1994 as part of urgency legislation creating new arson-related offenses and enhancements and amending various statutes for the purpose of increasing the penalties for arson. (Stats. 1994, ch. 421, § 2, p. 2299, eff. Sept. 7, 1994, enacting Sen. Bill No. 1309 (1993-1994 Reg. Sess.) (hereafter Senate Bill No. 1309).) Section 7 of Senate Bill No. 1309 provides: 'This act is an urgency statute necessary for the immediate preservation of the public peace, health, or safety within the meaning of Article IV of the Constitution and shall go into immediate effect. The facts constituting the necessity are: [¶] In order to establish a meaningful deterrent to the increase in the incidence of arson throughout the state and to reduce the devastation created therefrom, it is necessary that this act take effect immediately.' In addition to adding the section 451.1 enhancement, Senate Bill No. 1309 added section 451.5 establishing the offense of aggravated arson punishable by a state prison term of 10 years to life, added section 452.1 establishing a sentence enhancement for persons convicted of unlawfully causing a fire (§ 452) if certain factual circumstances are found, and amended sections 451, 454 and 1203.06. (Stats. 1994, ch. 421, §§ 1, 3, 4, 5, 6, p. 2299, eff. Sept. 7, 1994.) Supporters of Senate Bill No. 1309 argued, ' "This bill would 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 Assem. Com., Analysis of Sen. Bill No. 1309 (1993-1994 Reg. Sess.) as introduced Jan. 14, 1994, pp. 5-6 [the express purpose of the bill according to the sponsor].)" (Andrade, supra, 85 Cal.App.4th at pp. 585-586, fn. omitted.)
From this, the Court of Appeal found that the clear "purpose of section 451.1 is to deter arson by increasing the penalties for arsonists who exhibit a specific intent to inflict damage by causing the arson by use of a device designed to accelerate the fire." (Andrade, supra, 85 Cal.App.4th at p. 586.) It found that the phrase " 'device designed to accelerate the fire' " had no technical legal meaning. (Id. at p. 587.) Surveying dictionary definitions of the operative words, the Andrade court found " 'device designed to accelerate the fire' [citation] means a piece of equipment or a mechanism intended, or devised, to hasten or increase the progress of the fire." (Id. at p. 587.) While the instruction erred because the jury could find "that defendant used a device to accelerate the fire without finding that such use caused the arson" (id. at p. 588), the error was harmless beyond a reasonable doubt because the undisputed evidence showed "that defendant intended the bottle containing the accelerant gasoline to serve as a missile or projectile, whose purpose was to disperse the accelerant at a distance farther away from him and/or over a greater surface area than could be otherwise achieved." (Id. at p. 589.)
Kurtenbach addressed a potential extension of Andrade's legislative analysis. "Because Andrade involved the unique situation of a glass bottle thrown down and broken to disperse gasoline, it did not decide the more basic question presented here, namely whether using gasoline to fuel a fire—no matter how it is contained or dispersed—constitutes the use of a device designed to accelerate the fire." (Kurtenbach, supra, 204 Cal.App.4th at p. 1280.) Since it was "unclear from the statutory language whether the Legislature intended to include gasoline within the scope of devices designed to accelerate a fire," the Kurtenbach court turned to the legislative history to aid its interpretation. (Ibid.)
Kurtenbach built its analysis on the foundation laid in Andrade. Noting the Andrade court's finding that the purpose of section 451.1 was to increase punishment for arsonists who show a specific intent to cause damage, the court in Kurtenbach found that "[b]ecause 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." (Kurtenbach, supra, 204 Cal.App.4th at p. 1280.) The Court of Appeal's "review of the legislative history confirms that the Legislature understood the use of a flammable liquid, such as gasoline, in connection with an arson, to constitute the use of a device designed to accelerate the fire within the meaning of the sentencing enhancement. Specifically, when discussing the types of conduct that would come within the sentencing enhancements created by the bill, an Assembly committee analysis referred to the act of setting a fire and 'using lighter-fluid to accelerate that fire.' (Assem. Com. on Public Safety, Analysis of Sen. Bill No. 1309 (1993-1994 Reg. Sess.) as amended Aug. 10, 1994, p. 5.)" (Kurtenbach, supra, at p. 1280.)
Defendant relies primarily on the language found in the initial draft of the bill, Senate Bill No. 1309 that enacted section 451.1. The first draft of Senate Bill No. 1309 created the crime of aggravated arson, punishable by life in prison without possibility of parole, under certain aggravated circumstances including, "[t]he fire . . . was started using flammable liquids, other chemical agents intended to accelerate the fire, or a device designed to accelerate the fire or delay ignition." (Sen. Bill No. 1309, (1993-1994 Reg. Sess.) § 3; see also Sen. Com. on Judiciary, Analysis of Sen. Bill No. 1309 (1993-1994 Reg. Sess.) April 4, 1994, p. 3.) This provision remained part of the proposed crime of aggravated arson until the bill was amended on May 2, 1994, which deleted it as an element of the crime. (Sen. Com. on Judiciary, Analysis of Sen. Bill No. 1309 (1993-1994 Reg. Sess.) as amended May 2, 1994, p. 3.) In this, and all subsequent versions of the bill, the reference to "flammable liquids" was omitted, and the reference to "a device designed to accelerate the fire or delay ignition" was now in the proposed sentencing enhancement that became section 451.1. (See ibid.; Sen. Bill. No. 1309, 3d reading (1993-1994 Reg. Sess.) as amended Aug. 26, 1994, at p. 2; Assem. Com. on Public Safety, Analysis of Sen. Bill No. 1309 (1993-1994 Reg. Sess.) as amended Aug. 10, 1994, p. 2.)
Defendant argues that the early deletion of the reference to flammable liquids and chemical agents in the bill indicates that the Legislature did not intend to allow enhancement punishment for "fires caused by the use of flammable liquids and chemical agents." He also finds that the use of the term "or" in the original bill indicates that a fire "started with flammable liquids, other chemical agents" were distinct categories from the phrase "a device designed to accelerate the fire or delay ignition." As to the Assembly Committee on Public Safety analysis mentioned in Kurtenbach, defendant claims that "this comment may well have been in reference to the earlier version of the statute that specifically mentioned 'flammable liquids' and 'other chemical agents.' " Finally, he argues that pouring gasoline from a canister does not come within the common definition of the term " 'device,' " a " 'piece of equipment or a mechanism designed to serve a special purpose or perform a special function.' [Citation.]" (Andrade, supra, 85 Cal.App.4th at p. 587.)
Defendant's analysis is inconsistent with the general purpose of the enhancement, providing enhancement punishment for arsonists who exhibit a specific intent to harm. As the Kurtenbach court correctly concluded, the act of using a container to spread gasoline on a structure to be burned shows a specific intent to harm.
We also agree with Kurtenbach's reliance on the Assembly Committee on Public Safety analysis quoted in that case. The committee analysis addressed the proportionality of the proposed enhancements as follows: "This bill creates new enhancements . . . . They may be subject to the same proportionality questions discussed . . . above. For example, a person who sets fire to a building, seriously injuring several people in that building, is subject to the same three, four, or five year enhancement as a person who sets fire to a box full of old magazines, using lighter-fluid to accelerate that fire, but injuring nobody." (Assem. Com. on Public Safety, Analysis of Sen. Bill No. 1309 (1993-1994 Reg. Sess.) as amended Aug. 10, 1994, p. 5.) This shows a manifest intent to apply the enhancement to the use of flammable liquids as allowed in Andrade and Kurtenbach. Defendant's claim that the analysis must refer to the initial version of the bill is wrong, as the enhancement was added in a later version, when the reference to flammable liquids was deleted from the bill.
It is true, as defendant points out, that "[t]he fact that the Legislature chose to omit a provision from the final version of a statute which was included in an earlier version constitutes strong evidence that the act as adopted should not be construed to incorporate the original provision. [Citation.]" (Central Delta Water Agency v. State Water Resources Control Bd. (1993) 17 Cal.App.4th 621, 634.) However, this principle cannot help defendant here. The reference to flammable liquids was not deleted from the enhancement that became section 451.1, but from the much more serious aggravated arson statute that was punished by life without parole in the initial version, and by 10 years to life when enacted. (§ 451.5, subd. (b).)
We agree with the Kurtenbach court that it is not clear from the statutory language whether the Legislature intended to include gasoline within the devices subject to the section 451.1, subdivision (a)(5) enhancement. Our review of the legislative history of the provision puts us in agreement with Kurtenbach; the Legislature intended for the enhancement to apply to the use of gasoline to accelerate a fire found in that case and the one before us.
The judgment is affirmed.
NICHOLSON, J. We concur: BLEASE, Acting P. J. BUTZ, J.