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Name: People v. Andrade
Case #: A088553
Court: CA Court of Appeal
District 1 DCA
Division: 5
Opinion Date: 12/15/2000
Subsequent History: None

In light of the legislative history of Penal Code section 451.1, subdivision (a)(5), an enhancement to an arson charge for the use of a device designed to accelerate the fire or delay ignition, these words should be given their plain meaning rather than a technical one peculiar to the law. The plain meaning of the statute addresses the use of a piece of equipment or a mechanism intended, or devised, to hasten or increase the progress of a fire. Accordingly, the omission of the word “designed” from the jury instruction relieved the prosecution of the burden of proving, beyond a reasonable doubt, that the device used to cause the arson was designed to accelerate the fire. The instruction, as given, could have permitted the jury to find the enhancement true even though the defendant did not cause an arson by using a device that was specifically intended for the purpose of accelerating the fire. Moreover, although the parties did not raise this issue, the instruction also failed to inform the jury that it had to find that the arson was caused by the use of the accelerant, and this was also error. Noting that the issue of which standard of prejudice applies to an error in instructing on an enhancement is currently on review in the California Supreme Court in People v. Marshall (2000) 83 Cal.App.4th 186 (review granted Nov. 29, 2000, S091666), the Court of Appeal concluded that this error was harmless under People v. Watson (1956) 46 Cal.2d 818, or under the higher standard of Chapman v. California (1967) 386 U.S. 18. Here, the jury could not have reasonably concluded, beyond a reasonable doubt, that the gasoline-filled bottle, which after being thrown, broke and expelled and dispersed gasoline, a fire accelerant, which was then ignited, was not a device designed to accelerate the fire, or that the fire here was not caused by appellant’s use of the device.