Tuesday, July 20, 2010
C.A.: Man Who Ignited Neighbor’s Home Guilty of Attempted Burglary
By STEVEN M. ELLIS, Staff Writer
This district’s Court of Appeal yesterday upheld a La Crescenta man’s attempted burglary conviction for spraying gasoline vapor into a crawlspace under his neighbors’ home from his own property and then setting it on fire by extending a pole with a flame at its end.
Div. Three ruled that substantial evidence supported Gary Glazier’s conviction under the burglary-by-instrument doctrine for setting the home ablaze in May 2004 while it was being remodeled.
Writing for the court, Presiding Justice Joan D. Klein said that limitations on the doctrine intended to keep from expanding the burglary statute “to absurd proportions” did not apply because the entry violated the possessory interest of Albert Artsvelyan and his family and posed danger to them, even though they were not present.
Glazier was caught on tape spraying the vapor and igniting it by security cameras Artsvelyan installed after a number of disturbing events occurred which he attributed to Glazer.
The family had been unable to establish a friendly relationship with Glazier after moving into the neighborhood in 1998, and in 2000 their dog died of kidney failure after the Artsvelyans found antifreeze-soaked dog biscuits in their yard, dog food that did not belong to them and a pile of melted chocolate.
In February 2004, the Artsvelyans’ house was set on fire while they were asleep inside, and the family and a detective who investigated the fire suspected Glazier, but a jury was unable to reach a verdict when he was tried for arson.
Search of Property
A search of Glazier’s property after the May 2004 fire revealed a paint sprayer containing burnt gasoline and PVC pipes long enough to reach the Artsvelyans’ home from his property.
A jury found Glazier guilty of arson, attempted first degree burglary and possession of flammable material, and he was sentenced to eight years in prison on the first count while sentences on the latter two were stayed.
On appeal, he challenged the attempted burglary conviction, arguing he should not have been convicted under the burglary-by-instrument doctrine. Penal Code Sec. 459 defines first degree burglary as entering a building with “intent to commit a grand or petit larceny or any felony,” and the doctrine provides that a burglary may be committed by using an instrument solely to effect entry or to accomplish the intended larceny or felony.
Sec. 460 provides that a burglary of “an inhabited dwelling house” is first degree burglary.
Glazier pointed to the case of People v. Davis (1998) 18 Cal.4th 712, in which the California Supreme Court ruled that a defendant’s insertion of a forged check into the security chute at the walk-up window of a check-cashing business involved an “instrument,” but was not burglary.
Ruling that the critical issue was whether a defendant’s conduct was the type of entry the burglary statute was intended to prevent, and that the statute’s fundamental purpose was to protect an occupant’s possessory interest in the safe habitation of a building, the high court said such an interest was not present in the case of a check-cashing window or in a similar case involving introduction of a stolen ATM card into an ATM machine.
“It is important to establish reasonable limits as to what constitutes an entry by means of an instrument for purposes of the burglary statute,” the Davis court held. “Otherwise the scope of the burglary statute could be expanded to absurd proportions.”
But Klein—after rejecting Glazer’s argument that the burglary-by-instrument doctrine was limited to larceny—said that Glazer’s intrusion into the Artsvelyans’ home constituted an entry under the burglary statute and Davis because it interfered with their possessory interest and could have caused them danger. She also opined that the fact that they were not home did not alter the building’s character as an inhabited dwelling.
“Glazier’s intrusion into the Artsvelyans’ crawlspace was the type of entry the burglary statute was intended to prevent,” Klein wrote. “As such, it is not the kind of burglary-by-instrument case Davis was worried might be used to expand section 459 to absurd proportions.”
Justices H. Walter Croskey and Patti S. Kitching joined Klein in her opinion.
The case is People v. Glazier, 10 S.O.S. 4125.
Copyright 2010, Metropolitan News Company