Arson: Is Whiskey an Accelerant, Sentence Enhancement?

In December 2020, Chasity Hope Johnson met a man, B.P., and they became friends.  She and B.P. spent several nights together in Santa Rosa.  They also spent time at the 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, Johnson broke a window of a car belonging to B.P.’s mother.

Subsequently, B.P. received text messages from Johnson that were threatening.  One said, “Fuck the Cotati house that will soon be on fire.” 

On January 6, 2021, B.P. saw Johnson outside his Cotati house.  The following day, a neighbor saw a woman fitting Johnson’s description exit a car and walk up the driveway to the Cotati 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 so they called 911.

When B.P. was notified of the fire, he told police he believed Johnson started it, based on her prior behavior and trash found at the arson scene.  Among the items found were a partially burned white Styrofoam Cup of Noodles container.

The police later arrested Johnson and searched her car.  In her car they found Cup of Noodles containers, an open whiskey bottle and two torch lighters.  The police verified that the whiskey was flammable by pouring a little into a bowl and lighting it on fire with the torch lighters.

Rancho Adobe Fire District fire marshals investigated the fire and found pour patterns around the Cotati house’s cat door as well as directly inside the house, poured through the cat door.  An officer testified that he believed the pour patterns were a deliberate act because they were not circular or fanned out as in a drip or leak.  The theorized that someone took a liquid and deliberately poured it around the cat door and inside the house and then ignited it.

The officer testified that an accelerant could be “any kind of liquid that can propagate a fire, including gasoline, kerosene or alcohol.”  He also testified that whiskey, in a high enough proof (alcohol content), is flammable.

In September 2021, a jury in Sonoma County Superior Court found Ms. Johnson not guilty of arson, but found her guilty of the lesser included offense of arson of a structure (Penal Code § 451(c)).  The jury also found true the arson enhancement, based on a finding that she poured whiskey into a Cup of Noodles Styrofoam cup and then pouring it inside the home through the cat door and around the outside of the house before lighting it on fire.  The jury also found her found her guilty of vandalism.

In November 2021, the judge sentenced Johnson to five years in state prison, comprised of two years for the base term, plus three years for the section 451(a)(5) enhancement.

Ms. Johnson then appealed the sentence to the First Appellate District Court, arguing that the three-year accelerant enhancement must be stricken because whiskey is not a “device designed to accelerate the fire” under the enhancement statute, which provides for a three to five year enhancement.

The First Appellate District Court affirmed the trial court, explaining that a device designed to accelerate “means a piece of equipment or a mechanism intended, or devised, to hasten or increase the progress of the fire.”  People v. Andrade (2000) 85 Cal. App. 4th 579.

In Andrade, evidence existed that defendant started a fire by either 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.  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 585.  The court also found that the phrase “device designed to accelerate the fire” had no technical legal meaning.  Id. at 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 587.

At oral argument, Johnson’s attorney argued that whiskey cannot be considered a “mechanism” because the dictionary defines “mechanism” as “a system of parts working together in a machine.”  The court responded by acknowledging that this is one definition of mechanism, but Merriam-Webster Dictionary also defines “mechanism” as a “process or technique for achieving a result sometimes by cooperative effort.”

The court in People v. Kurtenbach (2012) 204 Cal.App.4th 1264 then extended Andrade to include gasoline as a mechanism because it was a device used to accelerate a fire and its use “exhibits a specific intent to inflict damage” and therefore is within the meaning of Penal Code § 451.1(a)(5).  Id. at 1280.

The First Appellate District therefore denied the appeal and affirmed the trial court, finding that whiskey, like gasoline, was used in this case with the specific intent to inflict damage.

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