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

Judicial Council of California Criminal Jury Instructions (2020 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

[3A. The fire caused property damage and other losses exceeding $8.3

million[, including the cost of fire suppression].]

[OR]

[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).

ARSON CALCRIM No. 1500

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Page last updated October 2020