1500. Aggravated Arson
If you find the defendant guilty of arson [as charged in Count[s] ______], you must then decide whether[, for each crime of arson,] the People have proved the additional allegation that the arson was aggravated. [You must decide whether the People have proved this allegation for each crime of arson and return a separate finding for each crime of arson.]
To prove this allegation, the People must prove that:
1. The defendant acted willfully, maliciously, deliberately, and with premeditation;
2. The defendant acted with intent to injure one or more persons, or to damage property under circumstances likely to injure one or more persons, or to damage one or more structures or inhabited dwellings(;/.)
<Alternative 3A—loss exceeding 5.65 million dollars>
[3A. The fire caused property damage and other losses exceeding 5,650,000 million dollars[, including the cost of fire suppression].]
<Alternative 3B—destroyed 5 or more inhabited structures>
[3B. The fire damaged or destroyed five or more inhabited structures.]]
Someone commits an act willfully when he or she does it willingly or on purpose.
Someone acts maliciously when he or she intentionally does a wrongful act or when he or she acts with the unlawful intent to disturb, defraud, annoy, or injure someone else.
The defendant acted deliberately if (he/she) carefully weighed the considerations for and against (his/her) choice and, knowing the consequences, decided to commit the arson. The defendant acted with premeditation if (he/she) decided to commit the arson before committing the act that caused the arson.
[The length of time the person spends considering whether to commit arson does not alone determine whether the arson is deliberate and premeditated. The amount of time required for deliberation and premeditation may vary from person to person and according to the circumstances. A decision to commit arson made rashly, impulsively, or without careful consideration of the choice and its consequences is not deliberate and premeditated. On the other hand, a cold, calculated decision to commit arson can be reached quickly. The test is the extent of the reflection, not the length of time.]
[A (dwelling/ [or] structure) is inhabited if someone lives there and either is present or has left but intends to return.]
[A (dwelling/ [or] structure) is inhabited if someone used it as a dwelling and left only because a natural or other disaster caused him or her to leave.]
[A (dwelling/ [or] structure) is not inhabited if the former residents have moved out and do not intend to return, even if some personal property remains inside.]
[A dwelling includes any (structure/garage/office/ ) that is attached to the house and functionally connected with it.]
The People have the burden of proving each allegation beyond a reasonable doubt. If the People have not met this burden, you must find that the allegation has not been proved.
The court has a sua sponte duty to give an instruction defining the elements of the sentencing factor if the defendant is charged with aggravated arson.
If the prosecution alleges that the fire caused more than 5.65 million dollars in damage, give alternative A in element 3. If the prosecution alleges that the fire damaged five or more inhabited structures, give alternative B in element 3.
If the prosecution alleges that the defendant was previously convicted of arson within ten years of the current offense, give elements 1 and 2 only. The court must also give either CALCRIM No. 3100, Prior Conviction: Nonbifurcated Trial, or CALCRIM No. 3101, Prior Conviction: Bifurcated Trial, unless the defendant has stipulated to the truth of the prior conviction.
The definitions of "deliberation" and "premeditation" and the bracketed paragraph that begins with "The length of time" are derived from the first degree murder instruction because no recorded case construes their meaning in the context of Penal Code section 451.5. (See CALCRIM No. 521, Murder: Degrees.)
Give the bracketed definitions of inhabited dwelling or structure if relevant.
If there is an issue as to whether the fire caused the property damage, give CALCRIM No. 240, Causation.
Elements. Pen. Code, § 451.5.
Inhabitation Defined. Pen. Code, § 459.
House Not Inhabited Means Former Residents Not Returning. People v. Cardona (1983) 142 Cal.App.3d 481, 483 [191 Cal.Rptr. 109].
1 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against Property, § 239.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 143, Crimes Against Property, § 143.11 (Matthew Bender).
See the Related Issues section to CALCRIM No. 1515, Arson.
(New January 2006)