Return to CALJIC Part 14-17 – Contents
F 14.80 n1 Applicability Of Aiding & Abetting Principles To “Aids, Counsels Or Procures” Language Of Arson Statute (PC 451(c)).
CJ 14.80 (1989 Revision) informs the jury that any person who “aids, counsels or procures” the burning of a structure is guilty of arson under PC 451(c). Therefore, the instruction raises the question of whether the intent required of one who “aids, counsels or procures” the burning of a structure is the same as the intent required for traditional aiding and abetting. (See, People v. Sarkis (90) 222 CA3d 23, 28 fn 2 [272 CR 34] [recognizing but not addressing the issue].)
Certainly the elements of PC 451 must be interpreted to require the finding of criminal intent as required by PC 20. Imposition of criminal liability for one who unintentionally and/or unknowingly aided the perpetrator — at least without some additional showing such as criminal negligence — would clearly be improper. Therefore, PC 451 should be interpreted to require the same intent as required for an aider and abettor (see, People v. Beeman (84) 35 C3d 547, 556-61 [199 CR 60]) and hence CJ 3.01 should be given in conjunction with CJ 14.80 when there is evidence from which the jury could conclude that the defendant “aided, counseled or procured” the burning of a structure.
[Research Note: See FORECITE BIBLIO 14.80]
F 14.80 n2 What is the Intent Requirement for Arson? (PC 451(c)).
ALERT: See People v. Atkins (2001) 25 C4th 76, 89 [104 CR2d 738] [evidence of voluntary intoxication does not negate intent required to prove mental state for arson; arson a general intent crime, voluntary intoxication not a defense].
“A person is guilty of arson when he or she willfully and maliciously sets fire to or burns or causes to be burned or who aids, counsels, or procures the burning of, any structure, forest land, or property. (PC 451.) Felony arson is divided into the following four categories, each of which carries different prison term limits: 1) arson that causes great bodily injury (PC 451(a)); 2) arson that causes an inhabited structure or inhabited property to burn (PC 451(b)); 3) arson of a structure or forest land (PC 451(c)); 4) arson of property (PC 451(d)). On the other hand, if the fire is “recklessly” set, the crime is misdemeanor arson (PC 452).
A common sense interpretation of these statutes would require an intent to burn a structure, forest land, or property for felony arson. In fact, in People v. Tanner (79) 95 CA3d 948, 956 [157 CR 465], the court held that it was error to instruct the jury that the intent with which the act is committed is immaterial to guilt. “The effect of the instruction was to remove from the jury the question of the existence of a critical element of the offense of arson–the general intent to set fire to a building.” (Ibid; see also In re Stonewall F. (89) 208 CA3d 1054, 1062-68 [256 CR 578] [reckless burning of a structure is misdemeanor arson (PC 452) not felony arson (PC 451)]; People v. Swartz (92) 2 CA4th 1319, 1324-25 [3 CR2d 816] [burning of a car within a garage with no intent to burn the structure does not give rise to arson liability for burning an inhabited structure even though the structure did burn].)
In People v. Fabris (95) 31 CA4th 685, 698-99 [37 CR2d 667], the court held that In re Stonewall F. (89) 208 CA3d 1054, 1062-68 [256 CR 578] directly held that PC 451 requires an intent to set fire to or cause a structure to burn. However, the court noted that the addition of the terms “general” or “specific” to the intent required for arson would “add nothing to the elements of the offense. [fn omitted.]”
The intent necessary for conviction of arson under PC 451 was also addressed in People v. Lopez (93) 13 CA4th 1840, 1844-46 [17 CR2d 317].) Lopez relied upon People v. Glover (91) 233 CA3d 1476 [285 CR 362] to conclude that to violate PC 451(b), the defendant need only have the general intent to start a fire and need not have any intent to burn a structure. However, in light of the discussion above, Lopez and Glover should not be read to require only a general intent to start a fire which burned a structure. Regardless of whether it is characterized as general or specific intent, PC 451 unquestionably requires that the defendant intended to burn the structure, property or forest land which was burned. CJ 14.80 fails to convey this requirement to the jury and should be modified to do so.
In People v. Fry (93) 19 CA4th 1334, 1339 [24 CR2d 43], the Court of Appeal, in agreement with Glover and disagreement with Stonewall, held that arson does not require the specific intent to burn a particular piece of property. Rather, to convict a defendant of arson, the trier of fact must find only that the defendant acted willfully and maliciously in setting fire to, burning, or causing to be burned a structure, forest land, or property. Consequently, whether the defendant committed arson of a structure, as opposed to unlawful burning, depends only on whether the defendant willfully and maliciously performed the acts that caused the structure to burn. If the burning was willful and malicious, then it is arson (PC 451); if it was reckless, then it is an unlawful burning (PC 452).
In People v. Lee (94) 28 CA4th 659, 664 [33 CR2d 782], the court noted the recent split of authority on the intent required for arson. But the court held that arson is a general intent crime and that the terms “willfully” and “maliciously” conveyed no more than an intent to do a wrongful act. (See also People v. Bolden (96) 44 CA4th 707, 717 [52 CR2d 485] [arson does not require an intent to burn the structure].) However, this analysis fails to recognize that willfulness and criminal intent–even if general–require the defendant to knowingly commit the act which the statute prohibits. (See FORECITE F 1.20a and F 3.30a.) Since the act prohibited by PC 451 is “the burning of, any structure, forest land, or property” the defendant must knowingly commit such an act.
See also FORECITE F 1.20a regarding requirement of knowledge included in “willfulness” element.
[Research Note: See FORECITE BIBLIO 14.80]
F 14.80 n3 Arson: Definition Of Great Bodily Injury (PC 451(c)).
The definition of great bodily injury in CJ 14.80 omits the following language which is included in the CJ 17.20 definition: “Minor, trivial or moderate injuries do not constitute great bodily injury.”
[Research Note: See FORECITE BIBLIO 14.80]
F 14.80 n4 Voluntary Intoxication Does Not Negate The Mental State Required For Arson (PC 451(c)).
ALERT: People v. Atkins (2001) 25 C4th 76, 89 [104 CR2d 738] held that evidence of voluntary intoxication does not negate requisite intent required to prove mental state for arson because arson is a general intent crime to which voluntary intoxication not a defense.
F 14.80 n5 Arson: “Willfully” Requires Knowledge Of Consequences.
See FORECITE F 1.20a.
F 14.80 n6 Attempted Arson Must Be Prosecuted Under PC 455.
In People v. Alberts (95) 32 CA4th 1424 [37 CR2d 401], the court held that attempted arson must be prosecuted under PC 455 which is a specific statute codifying the crime of attempted arson. The defendant may not be charged and sentenced by applying PC 664, the general attempt statute, to PC 451(b).
F 14.80 n7 Voluntary Intoxication May Negate The Mental State Required For Arson (PC 451(c)).
See FORECITE F 14.80 n4.
F 14.80 n8 Arson: Definition Of “Structure” (PC 451(c)).
(See People v. Labaer (2001) 88 CA4th 289, 293 [105 CR2d 629] [stripped-down mobile home is a “structure” within the meaning of the arson statute].)
F 14.80 n9 THIS ENTRY HAS BEEN DELETED.
F 14.80 n10 THIS ENTRY HAS BEEN DELETED.
F 14.80 n11 THIS ENTRY HAS BEEN DELETED.
F 14.80a
Arson: Definition Of Inhabited Structure
(PC 451)
*To be added at end of CJ 14.80:
An inhabited structure is one which is currently being used for dwelling purposes. It is inhabited although the occupants are temporarily absent, so long as the occupants intend to continue living in the structure. [If the occupants do not intend to continue living in the structure, it is uninhabited even if the occupants have left property in or around the structure.]
Points and Authorities
Despite the fact that the term inhabited is expressly defined in PC 450(d), the CALJIC instruction on arson contains no definition of inhabited dwelling. Certainly, the term “inhabited” is not specific enough to assume that the jury would properly interpret the term absent more specific definition. (See CJ 9.03 and CJ 14.52, defining inhabited dwelling for purposes of PC 246 and PC 459 prosecutions; see also FORECITE F 9.03a and FORECITE F 14.52a.)
Moreover, the question of what constitutes occupancy also requires specific definition. In People v. Jones (88) 199 CA3d 543, 548 [245 CR 85], the court interpreted the “currently used” requirement of PC 451(b) to require that the prosecution prove that the current occupants of the dwelling intend to continue living there in order for the dwelling to remain “inhabited” during their temporary absence.
This interpretation is consistent with the construction given to the same statutory language in the burglary statute. (PC 459.) For example, in People v. Cardona (83) 142 CA3d 481, 483-84 [191 CR 109], the court held that the house was not inhabited after the tenants moved out intending never to return even though the term of their tenancy had not yet expired and they had not completed moving all their belongings out of the house. “Where … the residents have moved out without the intent to return, the house becomes uninhabited, i.e., it is no longer being used for dwelling purposes.” (Id. at 482-84; see also People v. Guthrie (83) 144 CA3d 832, 838 [193 CR 54].)
Accordingly, the jury should be instructed on the statutory definition of “inhabited” and should further be informed of the judicial construction requiring an intent of the occupant to return to live in the structure. (See Rucker & Overland, California Criminal Forms & Instructions § 43:76A.)
Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII(C).]
NOTES
For additional discussion of the term “inhabited” see FORECITE F 9.03a and FORECITE F 14.52a.
RESEARCH NOTES
See Annotation, Vacancy or nonoccupancy of building as affecting its character as “dwelling” as regards arson, 44 ALR2d 1456 and Later Case Service.
F 14.80b
Arson: Burning Of Fixtures
(PC 451)
*Add to CJ 14.80:
Whether an item of personal property which is burned within a structure has become a fixture — thus making the burning arson — is a question of fact to be determined by the jury from the evidence.
Points and Authorities
(People v. Lee (94) 24 CA4th 1773, 1777 [30 CR2d 224].) The test is the following: “‘It must … appear from the nature of the chattel that if used for the purpose for which it was designed it would naturally and necessarily be annexed to and become a permanent and integral part of some realty; in other words, that it would become essential to the ordinary and convenient use of the property to which it was annexed.’ [Citation.]” (Lee, 24 CA4th at 1777.)
Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII(C).]
F 14.80c
Arson Sentence Enhancement:
Requirement Of Device Designed To Accelerate
The Fire Or Delay Ignition
(PC 451.1(a)(5))
*Add to CJ 14.80:
It is alleged in Count ____ that the defendant caused the arson charged in Count ____ by use of a device designed to accelerate the fire or delay ignition.
If you find the defendant guilty of the crime charged in Count ____, you must determine whether the defendant in causing the arson used a device designed to accelerate the fire or delay ignition.
Points and Authorities
People v. Andrade (2000) 85 CA4th 579 [102 CR2d 254] [omission of “designed” from instruction regarding arson-sentence enhancement is not prejudicial error].