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People v. Magana.

2020 COA 148. No. 17CA0807. Criminal Law—Arson—Prosecutorial Misconduct—Double Jeopardy—Unit of Prosecution—Criminal Mischief—Merger—Mandatory Sentences for Violent Crimes.    

October 22, 2020


Defendant set fire to his girlfriend’s vehicle, which was located in the driveway of the duplex where she lived with her family of nine. A family of five also resided in the duplex. The fire spread to another vehicle and caused extensive damage to both duplex units. Defendant was charged and convicted of one count of first degree arson for each apartment damaged by the fire; one count of second degree arson for each car damaged by the fire; and one count of fourth degree arson for each person endangered by the fire. Defendant was also convicted of the lesser included offense of criminal mischief.

On appeal, defendant contended that the first degree arson convictions should be reversed because there was insufficient evidence for the jury to conclude that he knowingly caused the duplex to be burned. However, defendant was aware that his conduct in igniting a car in three places close to the duplex was almost certain to set fire to the duplex. Therefore, the evidence was sufficient.

Defendant also contended that the prosecutor committed misconduct and violated his due process rights by misstating the definition of “knowingly” during closing argument. Viewed in context, the prosecutor’s statement didn’t constitute misconduct because the prosecutor accurately stated the definition of “knowingly,” the comment was isolated, and the jurors were given instructions that accurately stated the law. Therefore, any possible misconduct was harmless beyond a reasonable doubt.

Defendant further argued that the trial court violated his right to be free from double jeopardy by entering multiple convictions for first, second, and fourth degree arson, because the unit of prosecution for each level of arson depends on the number of acts that he committed, not the number of premises or vehicles that were burned or the number of persons endangered. The unit of prosecution for first degree arson permits a separate conviction for each building or structure burned or destroyed; for second degree arson, the unit of prosecution permits separate convictions where distinct property belonging to different people was damaged or destroyed; and for fourth degree arson, the unit of prosecution permits a separate conviction for each person placed in danger of death or serious bodily injury. Accordingly, the trial court didn’t err in entering 14 convictions, and defendant’s right to be free from double jeopardy wasn’t violated.

Defendant also argued, and the People conceded, that the trial court erred by failing to merge his conviction for criminal mischief into one of his convictions for first degree arson because criminal mischief is a lesser included offense of first degree arson.

On cross-appeal, the People contended that the trial court imposed an illegal sentence when it refused to sentence defendant pursuant to the crime of violence statute for his first degree arson convictions notwithstanding the jury’s findings that both offenses involved the use of a deadly weapon. The first degree arson statute permits the same evidence to support an element and a crime of violence sentence enhancer where the prosecution proves to the jury beyond a reasonable doubt that the fire set by the defendant was capable of producing death or serious bodily injury. Therefore, the trial court imposed an illegal sentence by refusing to sentence defendant under the crime of violence act in accordance with the jury’s findings.

The conviction for criminal mischief was vacated but the other convictions were affirmed. The case was remanded for resentencing and correction of the mittimus.

Official Colorado Court of Appeals proceedings can be found at the Colorado Court of Appeals website.

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