CALCRIM No. 1500. Aggravated Arson (Pen. Code, § 451.5)

Judicial Council of California Criminal Jury Instructions (2023 edition)

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A. ARSON
(i) Aggravated
1500.Aggravated Arson (Pen. Code, § 451.5)
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;
[AND]
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(;/.)
[AND
<Alternative 3A - loss exceeding $8.3 million>
[3A. The fire caused property damage and other losses exceeding $8.3
million[, including the cost of fire suppression].]
[OR]
<Alternative 3B - destroyed five 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.
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[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.
New January 2006; Revised August 2015, April 2020
BENCH NOTES
Instructional Duty
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 8.3 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.)
CALCRIM No. 1500 ARSON
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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.
AUTHORITY
• Enhancement. 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].
LESSER INCLUDED OFFENSES
Arson under section 451 is not a lesser included offense of aggravated arson.
(People v. Shiga (2019) 34 Cal.App.5th 466, 483 [246 Cal.Rptr.3d 198].)
RELATED ISSUES
See the Related Issues section to CALCRIM No. 1515, Arson.
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against
Property §§ 268-273.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 143, Crimes
Against Property, § 143.11 (Matthew Bender).
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