Judge Admits He Erred in Acquitting 3 Men of Arson : Courts: He then sentences two of them, who had pleaded guilty in a related case, to six times the recommended term.

A Ventura County Superior Court judge said Friday that he erred last month when he acquitted three men of arson in the videotaped burning of a portable toilet.

After admitting he was wrong, Judge Charles R. McGrath sentenced two of the men, who had pleaded guilty in a related case of videotaped vandalism, to 90 days in jail--six times the sentence recommended by a probation investigator.

The judge’s unusual admission came after he heard evidence that the two men had lied at their arson trial April 3. They were accused of burning down the outhouse at a Ventura construction site as part of a series of destructive pranks that they captured on videotape and showed to friends.

At the trial, John Daniels, 23, admitted that he dropped a flare into the outhouse tank in February, 1990. But he said he was trying to extinguish the flare, not start a fire. Co-defendant David Cotner, 20, testified that he stayed in the car and did not know of any plan to put the flare into the tank.

But at Friday’s sentencing hearing, a Ventura police detective testified that the third defendant, 22-year-old Daniel Berg, had told police that the three men had “made a mutual decision to light the toilet.”

Deputy Dist. Atty. Richard E. Simon said the detective’s testimony was not admissible at the trial for legal reasons but could be considered under the more liberal rules of a sentencing hearing.

In acquitting the men--a decision that McGrath described Friday as “a very close call”--he said he had relied in part on their testimony.

“I am now satisfied that the fire was intentional,” the judge said. “It is obvious to me now that I did make a mistake at the trial.”

McGrath could not undo the acquittal. But he said the law allowed him to consider the truthfulness of the two men’s testimony when he sentenced them for the criminal mischief that they admitted, which occurred at a Fotomat booth where Cotner worked.

The judge agreed to Simon’s request for 90 days in jail rather than the 15 recommended by a probation investigator. He also placed the men on three years of probation. The maximum sentence for criminal mischief is 180 days in jail.

McGrath also heard testimony from a woman whose parked car suffered $4,000 damage when fire-extinguisher foam was squirted through a crack in the sun roof. That incident also was recorded on the videotape, accompanied by the theme song from “Singin’ in the Rain.”

McGrath said he had no authority to order restitution in that case, which occurred in the Century City area of Los Angeles. Simon said he has been in contact with Los Angeles authorities and said they expressed interest in filing charges in the car vandalism.

Simon had severely criticized McGrath for acquitting the men, saying the judge had given them a license to commit dangerous acts of destruction. On Friday, however, he commended McGrath for being willing to admit a mistake.

“I really do respect the fact that he said, ‘Yeah, I was wrong,’ ” Simon said.

Daniels’ attorney, Ronald E. Landers, speculated that the judge “wanted to throw the D.A. a bone” after being criticized for the arson acquittal. Keith M. Carter, who represented Cotner, said the sentence was harsh in light of the probation investigator’s recommendation.

The sentence was stayed until June 6 after both attorneys said they would try to qualify their clients for the work furlough program, which would allow them to work at their normal jobs while spending nights in county custody.

Neither defendant appeared upset by the sentence. “Overall, the judge was very objective and fair,” Daniels said.

Cotner said the past year has been “an unutterably horrid experience in terms of time and cost. . . . I’m glad it’s almost over.”