People v. Magana

• Decision Date: 22 October 2020
• Docket Number: Court of Appeals No. 17CA0807
• Citation: 490 P.3d 948
• Court: Colorado Court of Appeals
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee and Cross-Appellant, v. Christopher MAGANA, Defendant-Appellant and Cross-Appellee.

490 P.3d 948

The PEOPLE of the State of Colorado, Plaintiff-Appellee and Cross-Appellant,

v.Christopher MAGANA, Defendant-Appellant and Cross-Appellee.

Court of Appeals No. 17CA0807

Colorado Court of Appeals, Division V.

Announced October 22, 2020

Philip J. Weiser, Attorney General, Carmen Moraleda, Senior Assistant Attorney General, Denver, Colorado; Peter A. Weir, District Attorney, Colleen R. Lamb, Appellate Deputy District Attorney, Golden, Colorado, for Plaintiff-Appellee and Cross-Appellant

Megan A. Ring, Colorado State Public Defender, Rachel K. Mercer, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant and Cross-Appellee

Opinion by JUDGE WELLING

¶ 1 Defendant, Christopher Magana, appeals the judgment of conviction entered on jury verdicts finding him guilty of eighteen counts of arson and one count of criminal mischief based upon his single act of setting a car on fire — a fire that spread to another car and to a duplex that was occupied by fourteen people.

¶ 2 This appeal presents two issues of first impression in Colorado. First, we consider the proper unit of prosecution in an arson case. In doing so, we reject Magana's contention that, based on his one act of arson, he can only be convicted of one count of first degree arson (regardless of the number of buildings or occupied structures he damaged or destroyed); one count of second degree arson (regardless of the number of people whose cars he damaged or destroyed); and one count of fourth degree arson (regardless of the number of persons he placed in danger of death or serious bodily injury). Instead, we conclude that (1) Magana's two convictions for first degree arson (for the burning of a duplex) don't violate double jeopardy because the unit of prosecution under the statute allows for multiple convictions based on the number of buildings/occupied structures burned or caused to be burned by defendant; (2) his two convictions for second degree arson (for the burning of two cars belonging to two different people) don't violate double jeopardy because the unit of prosecution under the statute allows for multiple convictions where distinct property belonging to different people was set on fire, burned, or caused to be burned by defendant; and (3) his fourteen convictions for fourth degree arson (for placing fourteen people in danger of death or serious bodily injury) don't violate double jeopardy because the unit of prosecution under the statute allows for multiple convictions based on the number of victims placed in danger of death or serious bodily injury by defendant.

¶ 3 Second, we reject Magana's contention that, because it's also an element of first degree arson, use of fire can't also be the basis for a crime of violence sentence enhancement. Instead, we conclude that first degree arson with fire may be charged, and a defendant may be convicted of a crime of violence under section 18-1.3-406, C.R.S. 2019, where, as here, the prosecution proved to the jury beyond a reasonable doubt that the fire used by the defendant was capable of producing death or serious bodily injury.

¶ 4 For the reasons explained below, we affirm all of Magana's convictions except his conviction for criminal mischief (which we vacate), and we remand the case to the trial court to resentence Magana for first degree arson in accord with the jury's crime of violence finding.

I. Background

¶ 5 The victims in this case were a family of five and a family of nine who lived in two apartments within a duplex in Lakewood, Colorado. Around 3 a.m. one morning, the families awoke to a loud noise and discovered that two cars in the driveway of their duplex were on fire: a Dodge Charger belonging to M.S-N., a member of the family of nine, and a white Toyota Corolla belonging to a member of the family of five. The families safely exited the duplex as the fire spread to the duplex and caused extensive damage to both units.

¶ 6 M.S-N. suspected her ex-boyfriend, Magana, of setting the fire. He had previously indicated he would do so, had acted violently toward her, and had been repeatedly texting her in the hours before the fire. Magana initially denied any involvement in the fire, but phone records placed him near the duplex when the fire started, and he later admitted setting fire to the Dodge Charger.

¶ 7 Magana was charged and convicted of eighteen counts of arson. He was charged and convicted of one count of first degree arson for each apartment damaged by the fire. He was charged and convicted of one count of second degree arson for each car damaged by the fire. And when the duplex caught fire, it endangered all fourteen people inside, so he was charged and convicted of one count of fourth degree arson for each person endangered by the fire.

¶ 8 The People tried Magana on the counts described above, plus fourteen counts of attempted murder in the first degree and a lesser included offense of criminal mischief. The jury acquitted him of the attempted murder charges but found him guilty of all other counts.

II. Issues on Appeal

¶ 9 Magana raises four issues on appeal. First, he contends that there was insufficient evidence to support his convictions for first degree arson. Second, he contends that the prosecutor engaged in prosecutorial misconduct by misstating the definition of "knowingly" during closing argument. Third, he contends that the unit of prosecution for arson is the number of fires set, so his convictions for multiple counts of first, second, and fourth degree arson violated his right to be free from double jeopardy. Fourth, he contends that his criminal mischief conviction should have been merged into one of his arson convictions.

¶ 10 The People cross-appeal, contending that the trial court erred in refusing to sentence Magana pursuant to the crime of violence statute notwithstanding the jury's finding that both crimes involved the use of a deadly weapon.

¶ 11 We address each issue, in turn, below.

A. Sufficiency of the Evidence

¶ 12 Magana first contends his convictions for first degree arson should be reversed because there was insufficient evidence for the jury to conclude that he knowingly caused the duplex to be burned. We are not persuaded.

1. Standard of Review

¶ 13 We review sufficiency of the evidence claims de novo to determine "whether the relevant evidence, both direct and circumstantial, when viewed as a whole and in the light most favorable to the prosecution, is substantial and sufficient to support a conclusion by a reasonable mind that the defendant is guilty of the charge beyond a reasonable doubt." People v. Donald , 2020 CO 24, ¶ 25, 461 P.3d 4 (quoting People v. Bennett , 183 Colo. 125, 130, 515 P.2d 466, 469 (1973) ). We may not reweigh the evidence or substitute our judgment for that of the jury, People v. Rivas , 77 P.3d 882, 891 (Colo. App. 2003), and we must "give the prosecution the benefit of every reasonable inference which might be fairly drawn from the evidence," People v. Perez , 2016 CO 12, ¶ 25, 367 P.3d 695 (quoting People v. Gonzales , 666 P.2d 123, 128 (Colo. 1983) ).

2. Applicable Law

¶ 14 A person commits first degree arson if he "knowingly sets fire to, burns, causes to be burned, or by the use of any explosive damages or destroys, or causes to be damaged or destroyed, any building or occupied structure of another without his consent." § 18-4-102(1), C.R.S. 2019. The mental state of "knowingly" is defined as follows:

A person acts "knowingly" or "willfully" with respect to conduct or to a circumstance described by a statute defining an offense when he is aware that his conduct is of such nature or that such circumstance exists. A person acts "knowingly" or "willfully", with respect to a result of his conduct, when he is aware that his conduct is practically certain to cause the result.

§ 18-1-501(6), C.R.S. 2019.

¶ 15 The People asserted at trial that Magana knowingly caused the duplex to be burned. This theory addressed the result of his conduct, which, under section 18-1-501(6), only required that he was aware that his conduct was practically certain to cause the duplex to catch on fire. The term "[p]ractical certainty" has been used interchangeably with the phrase "more than merely a probable result." People v. Marcy , 628 P.2d 69, 79 (Colo. 1981) (quoting People v. DelGuidice , 199 Colo. 41, 44, 606 P.2d 840, 842 (1979) ).

3. Analysis

¶ 16 We conclude the following evidence was sufficient to support Magana's convictions for first degree arson:

• The People's experts testified that there were three points of ignition on the Dodge. In other words, Magana set the Dodge on fire in three places.

• The Dodge was parked in the driveway just two and a half feet from the front of the garage of the duplex.

• One of the fires Magana set was started on the front hood of the car, close to the duplex. Although the hood of the car wasn't directly under the eaves of the duplex, it was close enough to set the eaves on fire, and the People's experts explained how the fire resulted in extensive damage to the duplex and endangered the residents.

¶ 17 A reasonable person hearing this evidence could conclude that Magana was aware that his conduct in igniting a car in three places that close to the duplex was practically certain to cause the duplex to catch on fire. Hence, we conclude there was sufficient evidence to show he knowingly caused the duplex to be burned.

¶ 18 Magana contends that because the People relied on experts to explain how the fire transferred from the Dodge to the duplex — and those experts couldn't definitively explain exactly how it transferred — there was necessarily insufficient evidence for the jury to conclude that Magana — a lay person without any such expertise — could have acted "knowingly" with respect to the burning of the duplex. We aren't persuaded.

¶ 19 The experts weren't uncertain as to whether the fire from the Dodge caused the duplex to catch on fire; they just weren't certain about exactly how it happened because...