SERIES 1500 ARSON
F 1502 Arson: Inhabited Structure (PC 451(b))
TABLE OF CONTENTS
F 1502.1 Titles And Identification Of Parties
F 1502.1 Inst 1 Arson: Inhabited Structure—Title
F 1502.1 Inst 2 Identification Of Prosecution And Defendant
F 1502.2 Arson: Inhabited Structure—Tailoring To Facts: Persons, Places, Things And Theories
F 1502.2 Inst 1 Tailoring To Facts; Separate Enumeration Of Combined Elements;
F 1502.3 Arson: Inhabited Structure—Language That Is Argumentative, Confusing, Etc.
F 1502.3 Inst 1 Willfully: Argumentative
F 1502.4 Arson: Inhabited Structure—Burden Of Proof Issues
F 1502.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
F 1502.5 Arson: Inhabited Structure—Elements And Definitions
F 1502.5 Inst 1 Separate Enumeration Of Combined Elements: Willfully And Maliciously
F 1502.5 Inst 2 Defendant “Caused” Burning: Specification Of Causation Definition And Elements
F 1502.5 Inst 3 Incorporation Of Definitions: “Structure,” “Forest Land” And “Property”
F 1502.5 Inst 4 Willfully: Knowledge
F 1502.5 Inst 5 Instruction Required On Elements Of Aiding And Abetting
F 1502.6 Arson: Inhabited Structure—Defense Theories
F 1502.6 Inst 1 Inhabited Structure: Pinpoint Instruction
F 1502.6 Inst 2 Presence Of Personal Property Not Alone Sufficient To Prove Structure Was Inhabited
F 1502.7 Arson: Inhabited Structure—Preliminary Fact Issues [Reserved]
F 1502.8 Arson: Inhabited Structure—Unanimity/Duplicity/Multiplicity [Reserved]
F 1502.9 Arson: Inhabited Structure—Lesser Offense Issues [Reserved]
F 1502 Notes
F 1502 Note 1 Arson: Inhabited Structure—CALCRIM Cross-References And Research Notes
Return to Series 1500 Table of Contents.
F 1502.1 Titles And Identification Of Parties
F 1502.1 Inst 1 Arson: Inhabited Structure—Title
See generally FORECITE F 200.1.2 Note 2, CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.
F 1502.1 Inst 2 Identification Of Prosecution And Defendant
See generally FORECITE F 100.2 Note 1and CALCRIM Motion Bank # CCM-005 and CALCRIM Motion Bank # CCM-006.
F 1502.2Arson: Inhabited Structure—Tailoring To Facts: Persons, Places, Things And Theories
F 1502.2 Inst 1 Tailoring To Facts; Separate Enumeration Of Combined Elements; Incorporation Of Definition
*Modify CC 1502, Element 3 and add Element 4, as follows [added language is underlined; deleted language is stricken]:
3. The fire burned an inhabited structure. _______________ <specify or describe structure burned>;
AND
4. At the time it burned _______________ <specify or describe structure burned> [someone] _______________ <name of inhabitant> lived there;
AND
A. Was present;
[OR]
B. Had left but intended to return and continue living there.
[Delete paragraph 7.]
Points and Authorities
Occupant Who Is Not Present Must Intend To Return And Continue Living In The Structure—In People v. Jones (1988) 199 CA3d 543, 548, 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 (1983) 142 CA3d 481, 483-84, 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 (1983) 144 CA3d 832, 838.)
Thus, if the occupants intend to return for purposes other than living in the structure—e.g., to get the rest of their personal belongings—then the structure is not inhabited.
Tailoring To Facts—People And Places—See FORECITE F 400.2 Inst 1.
Tailoring To Facts: Prosecution Theories—See FORECITE F 400.2 Inst 1.
Separate Enumeration Of Combined Elements—See FORECITE F 3500.2 Inst 1.
Incorporation Of Definition—See FORECITE F 417.5 Inst 2.
F 1502.3 Arson: Inhabited Structure—Language That Is Argumentative, Confusing, Etc.
F 1502.3 Inst 1 Willfully: Argumentative
See FORECITE F 820.3 Inst 1.
F 1502.4 Arson: Inhabited Structure—Burden Of Proof Issues
F 1502.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
See FORECITE F 400.4 Inst 1.
F 1502.5 Arson: Inhabited Structure—Elements And Definitions
F 1502.5 Inst 1 Separate Enumeration Of Combined Elements: Willfully And Maliciously
See FORECITE F 1501.5 Inst 1.
F 1502.5 Inst 2 Defendant “Caused” Burning: Specification Of Causation Definition And Elements
See FORECITE F 1501.5 Inst 2.
F 1502.5 Inst 3 Incorporation Of Definitions: “Structure,” “Forest Land” And “Property”
*Modify CC 1502, Element 1, as follows [added language is underlined; deleted language is stricken]:
See FORECITE F 1501.5 Inst 3.
F 1502.5 Inst 4 Willfully: Knowledge
See FORECITE F 820.5 Inst 1.
F 1502.5 Inst 5 Instruction Required On Elements Of Aiding And Abetting
*Modify CC 1502 as follows:
[Add elements of aiding and abetting]
Points and Authorities
CALCRIM 1502 informs the jury that any person who “counseled” or “helped” 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 (1990) 222 CA3d 23, 28 fn 2 [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 (1984) 35 C3d 547, 556-61), and hence CC 400 et seq. should be given in conjunction with CC 1502 when there is evidence from which the jury could conclude that the defendant “aided, counseled or procured” the burning of a structure. [See also FORECITE F 400 et seq.]
[Research Note: See FORECITE BIBLIO 14.80.]
CALJIC NOTE: See FORECITE F 14.80 n1.
F 1502.6 Arson: Inhabited Structure—Defense Theories
F 1502.6 Inst 1Inhabited Structure: Pinpoint Instruction
*Add to CC 1502:
The prosecution must prove that the defendant burned an inhabited structure. The defendant contends that the structure [allegedly] burned was not inhabited because _______________ <name(s) of alleged occupant(s)> [had left and did not intend to live there anymore] [did not live there]. The prosecution must prove that _______________ <name(s) of alleged occupant(s)> [lived in the structure] [had left but intended to return and continue living there]. The defendant does not need to prove that _______________ <name(s) of alleged occupant(s)> [did not live in the [allegedly] burned structure] [no longer intended to live there]. If you have a reasonable doubt about whether _______________ <name(s) of alleged occupant(s)> [intended to return and continue living in the [allegedly] burned building, you must find the defendant not guilty.
Points and Authorities
See FORECITE F 315.1.2 Inst 2.
NOTES
For additional discussion of the term “inhabited” see FORECITE F 1701.2 Inst 1; F 9.03a and FORECITE F 1500.5 Inst 4; F 14.52a.
RESEARCH NOTES
See Annotation, Vacancy or non-occupancy of building as affecting its character as “dwelling” as regards arson, 44 ALR2d 1456 and Later Case Service.
F 1502.6 Inst 2 Presence Of Personal Property Not Alone Sufficient To Prove Structure Was Inhabited
See FORECITE F 1551.4 Inst 2.
F 1502.7 Arson: Inhabited Structure—Preliminary Fact Issues [Reserved]
F 1502.8 Arson: Inhabited Structure—Unanimity/Duplicity/Multiplicity [Reserved]
F 1502.9 Arson: Inhabited Structure—Lesser Offense Issues [Reserved]
F 1502 NOTES
F 1502 Note 1 Arson: Inhabited Structure—CALCRIM Cross-References And Research Notes
CALCRIM Cross-References:
CALCRIM 1500 [Aggravated Arson]
CALCRIM 1501 [Arson: Great Bodily Injury]
Research Notes:
See CLARAWEB Forum, Arson—Series 1500.
Annotation, Vacancy or non-occupancy of building as affecting its character as “dwelling” as regards arson, 44 ALR2d 1456 and Later Case Service.
