People v. Johnson

Filed 12/13/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent,
A163941
v.
CHASITY HOPE JOHNSON, (Sonoma County
Super. Ct. Nos. SCR742965 &
Defendant and Appellant.
SCR743422)
A jury convicted appellant Chasity Hope Johnson of arson of a
structure (Pen. Code, § 451, subd. (c)), and sustained the enhancement
allegation that she had used a “device designed to accelerate the fire.” (Pen.
Code, § 451.1, subd. (a)(5)).1 The offense involved pouring whiskey onto a
structure (i.e., a house’s cat door), as well as into the house through the same
door, and lighting the whiskey on fire. The trial court sentenced Johnson to
an aggregate term of five years in state prison. On appeal, she contends that
the enhancement must be stricken because whiskey is not a “device designed
to accelerate the fire” under the enhancement statute. We disagree, and we
affirm.
1 All undesignated statutory references are to the Penal Code.
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I.
FACTUAL AND PROCEDURAL BACKGROUND
On August 6, 2021, the Sonoma County District Attorney filed an
amended information charging Johnson with one count of arson of an
inhabited structure (§ 451, subd. (b)), two felony counts and three
misdemeanor counts of animal abuse (§ 597, subd. (b)), and one count of
misdemeanor vandalism (§ 594, subd. (a)). The information further alleged
with respect to the arson charge that Johnson had used a device designed to
accelerate the fire (§ 451.1, subd. (a)(5)). For purposes of this appeal, we need
only focus on the evidence introduced at trial pertaining to the arson charge
and the related enhancement.
In December 2020, Johnson met a man (who we identify as B.P.) and
they became friends. She and B.P. spent several nights together in Santa
Rosa. They also spent time at his family’s house in Cotati, which was
unfurnished and being remodeled. The relationship soon faltered as
Johnson’s behavior became erratic and B.P. tried to distance himself from
her. During one confrontation, she broke the window of a car belonging to
B.P.’s mother.
Subsequently, B.P. received text messages from an unknown number
that he attributed to Johnson. One of the messages stated, “fuck the Cotati
house that will soon be on fire.” In a text from her own number, Johnson told
B.P. to “Stop lying or we’re going to have an explosion like no other.”
On January 6, 2021, B.P. saw Johnson outside his Cotati house. The
following day, a neighbor observed a woman matching Johnson’s description
exit a car and walk up the driveway to B.P.’s house while holding a plastic
shopping bag. About 30 minutes later, the neighbor and her husband saw
smoke coming from the back of the house and the husband called 911. B.P.
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learned of the fire and told the police that he believed Johnson had started it,
based on her prior behavior and the presence of trash at the arson scene that
B.P. associated with her. Among other things, a partially burned white
Styrofoam Cup of Noodles container was found at the scene.
The police arrested Johnson later that day and searched her vehicle.
Inside her car, investigators found Cup of Noodles containers, an open
whiskey bottle, and two torch lighters. The police verified that the whiskey
was flammable by pouring it into a bowl, lighting it on fire with the propane
torch, and holding a paper over it.
Rancho Adobe Fire District Battalion Chief/Fire Marshal Andy Taylor
was the fire marshal at the scene and testified as a fire investigation expert.
Taylor had observed pour patterns around the Cotati house’s cat door, as well
as inside the house directly through the cat door. He testified that the
patterns appeared to be the result of a deliberate act because they were not
fanned out or circular, as they would be if the liquid had spilled or leaked.
He theorized that someone “took a liquid, a flammable liquid, and reached
into the cat door and either hit the door … splashed it on the outside or
poured completely through the cat door and then ignited it.”
Taylor testified that an “accelerant” is “any kind of liquid that can
propagate a fire,” including gasoline, kerosene, or alcohol. He smelled
gasoline at the scene, however, subsequent tests with two different detectors
were negative for gasoline. He stated that these detectors do not reveal the
presence of alcohol. He also testified that whiskey, in a high enough proof, is
flammable. Although he was unable to determine the amount or type of
flammable liquid used, he ruled out the possibility of a person pouring
gasoline from a Cup of Noodles container because the gasoline would have
dissolved the Styrofoam.
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On September 13, 2021, the jury found Johnson not guilty of the
charged arson offense, but found her guilty of the lesser included offense of
arson of a structure (§ 451, subd. (c)). The jury also found true the arson
enhancement, and found her guilty of vandalism. On the prosecutor’s
motion, the trial court dismissed the animal abuse counts due to a juror
having contracted Covid-19 after the jury had reached a verdict on the other
counts.
On November 3, 2021, the trial court sentenced Johnson to five years
in prison comprised of the base term of two years, plus three years for the
section 451.1, subdivision (a)(5) enhancement. This appeal followed.
II.
DISCUSSION
A. Appellant’s Contentions And Standard of Review
Johnson challenges the imposition of the arson enhancement,
contending that whiskey does not qualify under section 451.1, subdivision
(a)(5) as a “ ‘device designed to accelerate the fire’ ” that she started. She
argues that under the subdivision’s plain language, a liquid cannot be
construed as a “ ‘device,’ ” nor is whiskey a substance that is “ ‘designed’ ” to
accelerate a fire. To resolve the proper interpretation of the enhancement
provision, we exercise de novo review. (People v. Lofchie (2014) 229
Cal.App.4th 240, 250.)
B. Penal Code Section 451.1, Subdivision (a)(5)
Section 451.1, subdivision (a)(5) provides: “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: [¶] . . . . [¶] . . . . The defendant
committed arson as described in subdivision (a), (b), or (c) of Section 451 and
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the arson was caused by use of a device designed to accelerate the fire or delay
ignition.” (Italics added.)
Resolving Johnson’s claim turns on discerning the meaning of the
relevant text of section 451.1, subdivision (a)(5). We begin with the words of
the statute and their usual and ordinary meaning, which would typically be
their dictionary definition. (People v. Gonzalez (2008) 43 Cal.4th 1118, 1126;
Hammond v. Agran (1999) 76 Cal.App.4th 1181, 1189.) Their plain meaning
controls, unless the words are ambiguous. (People v. Gonzalez, supra, at p.
1126.) “If the statute is ambiguous, we may consider a variety of extrinsic
aids, including legislative history, the statute’s purpose, and public policy.”
(Ibid.)
C. Relevant Case Law
The opinion in People v. Kurtenbach (2012) 204 Cal.App.4th 1264(Kurtenbach) is not only instructive, but mainly determinative in evaluating
Johnson’s claim. The defendant in Kurtenbach was charged with arson and a
section 451.1, subdivision (a)(5) enhancement. (Kurtenbach, supra, at p.
1278.) The prosecutor’s theory was that pouring gasoline on a house before
the arson constituted the use of a device designed to accelerate the fire.
(Ibid.) On appeal, the defendant contended that the use of gasoline did not
support imposition of the enhancement. (Id. at p. 1271.) In affirming the
conviction, the Kurtenbach court’s interpretation of section 451.1 relied
heavily on People v. Andrade (2000) 85 Cal.App.4th 579 (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, evidence existed that the defendant started a fire either by
using a Molotov cocktail or by breaking a gasoline-filled bottle by throwing it
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on the floor and then lighting a match. (Andrade, supra, 85 Cal.App.4th at
pp. 582, 585.) Finding that the phrase “device designed to accelerate the fire”
is capable of more than one meaning, the court in Andrade construed the
statutory language, an issue of first impression. (Id. at p. 585.) The court
also 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 concluded that a “ ‘device designed to
accelerate the fire’ ” “means a piece of equipment or a mechanism intended,
or devised, to hasten or increase the progress of the fire.” (Id. at p. 587.) This
definition is now fully incorporated in the jury instruction for §451.1. (See
CALCRIM No. 1551 [“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.” (Italics added.)].) At oral argument, Johnson’s counsel
asserted that whiskey cannot be considered a “mechanism” because the
dictionary defines “mechanism” as “a system of parts working together in a
machine.” While that is one definition of “mechanism,” we note that
Merriam-Webster Dictionary also defines “mechanism” as “a process or
technique for achieving a result sometimes by cooperative effort.” (Webster’s
3d Internat. Dict. (2002) p. 1401.) Likewise, the Oxford English Dictionary
possesses a definition (among others) for “mechanism” with the same
connotation: “a piece of machinery (lit. or fig.) by means of which some
particular effect is produced.” (9 Oxford English Dict. (2d ed. 1989) p. 536.)
The Kurtenbach opinion then addressed a further application of
Andrade’s 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
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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.; cf. §18740 concerning
possession, explosion or ignition with intent to injure or intimidate that
mentions “destructive device” where §16460 then defines “destructive
device”.) 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.) Significantly, for our purposes, the Kurtenbach
court’s review of the legislative history led it to conclude “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.)
As a result, Kurtzenbach clarified: “As the use of gasoline in connection
with an arson exhibits ‘a specific intent to inflict damage’ (Andrade, supra, 85
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Cal.App.4th at p. 586) and is comparable to the use of lighter fluid to fuel a
fire, we conclude based on the legislative history of section 451.1, subdivision
(a)(5) 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).” (Id. at p. 1280.)
D. Analysis
Johnson disagrees with Kurtenbach and invites us to find, as a matter
of law, that flammable liquids do not fall within the section 451.1, subdivision
(a)(5) enhancement. We decline the invitation.
In arguing that liquids such as alcohol are excluded from the statute’s
scope, Johnson relies largely on the ultimate removal of references to
“flammable liquids” 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.) as amended 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 the term
“flammable liquids” from the offense. (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 used in the proposed sentencing enhancement that
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became section 451.1. (See ibid.; Sen. Bill. No. 1309 (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.)
Johnson argues that the evolution of this statutory language reflects an
intent to distinguish between flammable liquids, chemical agents, and
devices designed to accelerate a fire, suggesting that if flammable liquids per
se qualified as devices designed to accelerate a fire, then there would have
been no reason to list them separately. She further notes that neighboring
arson statutes draw a distinction between liquids, substances, materials, and
devices. She faults the Kurtenbach court’s analysis of the legislative history,
arguing that the removal of the term “flammable liquids” from the statutory
language most strongly indicates that the Legislature did not intend to allow
enhancement punishment for fires caused by the use of such liquids. She
also contends that the term “designed to accelerate” does not refer to the way
in which a particular defendant intended to use the device, but rather to the
device’s generally intended use.
Johnson’s analysis is inconsistent with the general purpose of the
enhancement, which is to provide 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 a flammable liquid—in that
case gasoline—on a structure to be burned shows a specific intent to harm.
We have little difficulty in concluding that using of whiskey, which contains
alcohol and is also a flammable liquid, similarly shows a specific intent to
harm.
It is true 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
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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 Johnson 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 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 [with respect to the underlying
arson offenses]. 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. 15, 1994, p. 4.) This comment shows a manifest
intent to apply the enhancement to the use of flammable liquids, supporting
the appellate courts’ conclusions in Andrade and Kurtenbach.
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 a flammable liquid to accelerate the fire found in that
case, and the one before us.
We also reject Johnson’s reliance on the rule of lenity. “ ‘ “ ‘[T]hat rule
applies “only if two reasonable interpretations of the statute stand in relative
equipoise.” [Citation.]’ [Citations.]” [Citations.]’ [Citation.] ‘The rule of
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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.) There is no “egregious ambiguity” regarding whether section
451.1, subdivision (a)(5) applies to a flammable liquid. The rule of lenity is
therefore irrelevant to interpreting the provision.
Johnson lastly contends that whiskey does not qualify as a “device
designed to accelerate the fire” because it is made to drink, not to start fires.
We are not persuaded. Whiskey is comprised of alcohol, which similar to
gasoline, is a flammable liquid. Moreover, gasoline also is not made to start
fires, but rather is intended to be used as fuel for automobiles and other
motorized machines. Yet, as established under Kurtenbach, gasoline falls
within the scope of the enhancement provision.
In sum, we conclude that the trial court did not err in imposing the
sentencing enhancement under section 451.1, subdivision (a)(5).
III.
DISPOSITION
The judgment is affirmed.
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DEVINE, J.
WE CONCUR:
MARGULIES, J.
BANKE, J.
A163941

Judge of the Contra Costa County Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
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Sonoma County Superior Court
Honorable Chris M. Honigsberg
Leah Spero, under appointment by the Court of Appeal for Defendant and
Appellant.
Rob Bonta, Attorney General of California, Lance E. Winters, Chief Assistant
Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General,
Donna Provenzano, Supervising Deputy Attorney General and Amit
Kurlekar, Deputy Attorney General for Plaintiff and Respondent.
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