People v. Andrade
| Decision Date | 15 December 2000 |
| Citation | 85 Cal.App.4th 579,102 Cal.Rptr.2d 254 |
| Court | California Court of Appeals Court of Appeals |
| Parties | (Cal.App. 1 Dist. 2000) THE PEOPLE, Plaintiff and Respondent, v. DEVON RAY ANDRADE, Defendant and Appellant. A088553 Filed |
Trial Judge Anne Boulaine, Judge
Defendant/Appellant Counsel John Doyle, under appointment by the First District Court of Appeal
Plaintiff/Respondent Counsel, Bill Lockyer, Attorney General,
David P. Druliner, Ronald A. Bass, Assistant Attorneys General, Richard Rochman,
Martin S. Kaye, Deputy Attorneys General
CERTIFIED FOR PARTIAL PUBLICATION1
Devon Ray Andrade appeals his conviction by jury trial of arson of a structure with use of a device designed to accelerate a fire (Pen. Code,2 451, subd. (c), 451.1, subd. (a)(5)) (count 1); two counts of second degree burglary ( 459) (counts 2, 8); two counts of possession of flammable or combustible material ( 453, subd. (a)) (counts 3, 7); misdemeanor vandalism ( 594, subd. (a)) (count 4); attempted arson ( 455) (count 5); arson of property ( 451, subd. (d)) (count 6); assault with a deadly weapon ( 245, subd. (a)(1)) (count 9); and making a terrorist threat ( 422) (count 13). He raises claims of instructional, evidentiary, and sentencing error, and insufficiency of the evidence. He also argues that interruption of the trial for competency proceedings violated his rights to due process, fair trial, and the expeditious disposition of his case.
At approximately 2:30 a.m. on November 29, 1997, defendant smashed the glass front door of and entered Impostors, a jewelry store located on the ground floor of a semi-high-rise building on Geary Street in San Francisco. According to eyewitness Victor Zacca, once inside the store defendant shattered two or three glass display cases, pulled a liquid-filled glass beverage bottle with a cloth protruding from it out of his backpack, and lit the cloth, causing flames to quickly erupt on the floor around him. He then threw the bottle against the display case. According to eyewitness Charles Davis, after defendant threw what appeared to be a liquid-filled juice bottle several times, the bottle broke on the floor, after which defendant walked forward and threw a match causing the entire back wall up the ceiling to erupt in flames. Defendant then left the store. Davis and another person used portable fire extinguishers to put out the fires.
Davis and Zacca selected defendant's photograph from a photo lineup as depicting the person they saw damage and set fire to the Impostors store.
San Francisco Fire Captain Thomas Ryan responded to the scene and noted that there had been several fires in different locations inside Impostors, indicating that the fires did not start naturally or accidentally, but were set. Ryan noted scorching, but not charring, on the rear floor, and testified that the floor had "some evidence of burning." He identified a "little bit of charring" on a photograph of the store floor. Ryan opined that a flammable liquid, i.e., an accelerant, had been used in setting the fires in the Impostors store.
Lieutenant Lawrence Wright of the San Francisco Fire Department's Bureau of Fire Investigation arrived at the fire scene shortly after the other firefighters. Wright noticed actual charring of the hardwood floor. There was also charring of the molding around several nearby display cases, indicative of burning associated with an ignitable or flammable liquid such as gasoline. Wright also smelled gasoline and noted a plastic container obviously involved in the fires. Gasoline was present on the hardwood floor and in the remains of the plastic container. Wright, testifying as an expert on the cause and origin of the fires, opined that the fires were incendiary, i.e., deliberately set and initiated and accelerated with gasoline, explaining that an accelerant is defined as any material, often a liquid, used to either enhance or spread a fire, and that gasoline is a known accelerant. Wright also opined that the first origin of fire was the area adjacent to the charred hardwood floor.
On the afternoon of November 30, 1997, Denise La Lande, Drew Taylor, and Louis Schuman were working as security agents in the men's department of the Macy's store located on Stockton Street in downtown San Francisco. At about 3:00 p.m. Taylor and Schuman saw, via a security camera, defendant enter the store carrying a backpack, remove the price tag from a pair of sunglasses, and place them on his head. La Lande recognized defendant as someone she had seen in the Macy's men's department the day before. After placing the sunglasses on his head defendant went to other departments within the store where he was observed in what appeared to be shoplifting activity. At one point La Lande observed defendant inside a fitting room seated next to a balled up silver chain with very large, thick links.
According to Taylor and salesperson Jan Navaro, at about 4:00 p.m. defendant approached Navaro's counter, inquired about some cufflinks in the display case, rolled a store gift box into a torch, removed a jar containing clear liquid from his backpack, and splashed some of the liquid on the torch and on the floor. He then lit the torch and threatened to kill Navaro if she came near him. Flames erupted on the floor where the liquid was spilled and on the adjacent display case. Defendant then threw the jar, which broke at the fragrance counter, and used the chain he was seen with in the fitting room to smash a glass display case.
La Lande corroborated Taylor's testimony that defendant threw a bottle containing liquid at the fragrance counter, and that the bottle broke and the liquid spilled on the floor. She said defendant then poured the contents of another bottle onto the smashed display case and ignited the area with the torch, causing the display case to erupt in flames.
Schuman testified that when he tried to grab defendant from behind, he (Schuman) slipped, injuring his knee. Defendant then thrust the lit torch toward Schuman, setting his pants leg and back on fire. Schuman suffered a torn quadriceps tendon but no burns.
Defendant was arrested at the scene. A bottle containing gasoline and matches were found in defendant's pants pockets, and a bottle with liquid and a gas can were found in defendant's backpack. The cardboard torch, several containers, and the chain were recovered from the fire scene. Residue from the bottles and containers found at the scene tested positive for gasoline. Wright opined that the Macy's fire was an incendiary fire accelerated with gasoline.
Defendant first contends that the court's instructions on arson of a structure erroneously failed to instruct the jury on "what is required to constitute the burning of a structure."
Defendant was charged in count 1 with arson of a structure pursuant to section 451, which provides: "A person is guilty of arson when he . . . willfully and maliciously sets fire to or burns or causes to be burned . . . any structure . . . ." He was charged in count 6 with arson of property pursuant to section 451, which provides: "A person is guilty of arson when he . . . willfully and maliciously sets fire to or burns or causes to be burned . . . any . . . property."
At the request of both parties the court orally instructed the jury pursuant to CALJIC No. 14.80: 3 4
Following an unreported bench conference the court further instructed the jury:
Pursuant to CALJIC No. 14.89 the court orally instructed the jury:
Pursuant to CALJIC No. 14.91 the court orally instructed the jury:
Defendant argues, and the People concede, that CALJIC No. 14.91 defines "setting fire to" or "burning" only in terms of "property" and not in terms of a "structure." Defendant argues that the instructions given did not require the jury to find that the structure of Impostors was consumed by fire or charred in order to constitute arson of a...
To continue reading
Request your trial