People v. Morse3/5/2004
A stop and search of Timothy Douglas Morse's car revealed a Molotov cocktail in the trunk that, Morse admitted, he had made and meant to use to fix his car or, failing that, to torch it. A jury found him guilty of possessing an incendiary device in violation of Penal Code section 453, subdivision (a) (unspecified further section references are to that code), and the court found true a bifurcated allegation of a prison-term prior for driving under the influence (DUI) (§ 667.5, subd. (b); Veh.Code, § 23153, subd. (a)). Sentenced to a midterm of two years for the offense plus one for the prior, Morse appeals. We find no error and affirm the judgment.
BACKGROUND
The trial testimony came entirely from the arresting officer, Stuart Tan of the Vacaville Police Department, and Morse. Tan responded at 12:30 p.m. on November 29, 2002, to a radio dispatch for a Dundee Court address in Vacaville and, seeing a man (Morse) drive off as he got there, had a fellow officer, Larsen, stop the car, a 1988 Toyota Cressida. Tan went to the stop site, a short distance away, and did a search of the car. In the trunk, along with a tool belt and various tools, he found what he believed was an incendiary device--a Frappuccino bottle about two-thirds full of a goldish liquid that looked like gasoline. A piece of cloth stuck partly out through the top and the rest went down into the liquid. The device was wrapped in a knotted plastic bag, and the bag was inside a plastic bucket. Turning toward Morse, who was resting against Larson's car, Tan held up the item and asked, "What is this?" Morse told him it was "for fixing his car." When Tan gave him a puzzled look, Morse explained that he had been working on his car because it wasn't running right, was becoming frustrated with fixing it, and was going to use the device "to burn up his car." He said he had made the *1162 device himself and that it contained gasoline. After being placed under arrest for having the device, Morse spoke twice more about it, once there and once at the police station, staying with "the same story," that he was frustrated with his car: "He'd been working on it for some time. Couldn't get it to run right. So he made this device to burn up his car." Tan was not sure whether Morse was joking, Morse having smiled a couple times during the conversation, and so "asked him several times if he was serious" about what he meant to do with the device. Tan asked at least three times, including once at the station when confirming that this was Morse's official statement.
Morse's testimony, implicitly rejected by the jury, was that he made the device only "to prime the carburetor of a car, to fix it, start it," that he was not serious about burning anything up with it, and that he said that because it "resembled" an incendiary device and Tan "was going to think what he wanted to anyways." Morse claimed "hands-on experience" but no formal training in mechanics. Conceding on cross-examination that he didn't know whether his 1988 Toyota had a carburetor or, instead, had fuel injection, he maintained that the gasoline was to fix another car of his, a van he had been working on earlier that same week. He could not say whether the van was a 90's, 80's or 70's model, but he thought it was a Dodge and had a carburetor (although he could not say what kind). After equivocating on whether he knew gas was highly volatile **11 and could be ignited by a lit cigarette, he admitted being there when a friend, Robert Pulido, dropped a lighter while siphoning gas for Morse's vehicle and ignited a Hertz truck.
Tan testified in rebuttal that Morse had never said anything to him about working on a van or using the device for anything beyond burning up his Toyota.
DISCUSSION
I. Intent to Torch One's Own "Property"
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