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A jury convicted Gabriel Anthony Cardwell of grand theft and burglary by use of an acetylene torch, among other crimes, after Cardwell took over $24,000 in merchandise from a Murrieta Best Buy store. Cardwell appealed, arguing that the burglary by acetylene torch conviction should be reversed. The Fourth Appellate District agreed, and reversed the conviction this week.
Here’s why this appeal is interesting.
Cardwell used an acetylene torch to cut a large hole cut in a side steel door leading into the Best Buy store. His conviction was reversed because California law penalizes entering a building and opening a safe, vault, or secure place with an acetylene torch. Cardwell, by contrast, used the acetylene torch to break into the building, but not into a safe, vault, or secure place within the building. His crime was missing the critical "and."
Prosecutors initially charged Cardwell with run-of-the-mill burglary: entering into the store with intent to commit larceny. Then they got greedy -- or perhaps overly-excited at the prospect of prosecuting a blow torch crime -- and amended the felony complaint to charge Cardwell with burglary by use of an acetylene torch.
The Fourth Appellate District ruled that the acetylene torch statute isn't triggered unless the defendant is inside a building when the he "opens or attempts to open any vault, safe, or other secure place" with a blow torch. If, as the state argued, the statute applied to a defendant's initial entry of the building using a device listed in the statute, the word "enters" in the statute "would be rendered mere surplusage."
Cardwell will not, however, walk free in the Best Buy burglary. Though his conviction was reversed, the Fourth Appellate District remanded the case to allow Cardwell to be tried for breaking into the Murrieta Best Buy.
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