Criminal Law

1502. Arson: Inhabited Structure

The defendant is charged [in Count ______] with arson that burned an inhabited structure.

To prove that the defendant is guilty of this crime, the People must prove that:

1. The defendant set fire to or burned [or (counseled[,]/ [or] helped[,]/ [or] caused) the burning of] (a structure/forest land/property);

2. (he/she) acted willfully and maliciously;


3. The fire burned an inhabited structure.

To set fire to or burn means to damage or destroy with fire either all or part of something, no matter how small the part.

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 defraud, annoy, or injure someone else.

A structure is any (building/bridge/tunnel/power plant/commercial or public tent.)

A structure is inhabited if someone lives there and either is present or has left but intends to return.

[Forest land means brush-covered land, cut-over land, forest, grasslands, or woods.]

[Property means personal property or land other than forest land.]

[A person does not commit arson if the only thing burned is his or her own personal property, unless he or she acts with the intent to defraud, or the fire also injures someone else or someone else's structure, forest land, or property.]

Bench Notes

Instructional Duty

The court has a sua sponte duty to give an instruction defining the elements of the crime.

If the prosecution's theory is that the defendant did not set the fire but "counseled," "helped," or "caused" the fire, the court has a sua sponte duty to instruct on aiding and abetting. (People v. Sarkis (1990) 222 Cal.App.3d 23, 28 [272 Cal.Rptr. 34].) See CALCRIM Nos. 400-403.

Related Instructions

If attempted arson is charged, do not instruct generally on attempts but give CALCRIM No. 1520, Attempted Arson. (Pen. Code, § 455.)


Elements. Pen. Code, § 451(b).

Inhabited Defined. Pen. Code, § 450; People v. Jones (1988) 199 Cal.App.3d 543 [245 Cal.Rptr. 85].

Structure, Forest Land, and Maliciously Defined. Pen. Code, § 450.

To Burn Defined. People v. Haggerty (1873) 46 Cal. 354, 355; In re Jesse L. (1990) 221 Cal.App.3d 161, 166-167 [270 Cal.Rptr. 389].

Secondary Sources

2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against Property, § 238-242.

5 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 91, Sentencing, § 91.47[1] (Matthew Bender).

6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 143, Crimes Against Property, § 143.11 (Matthew Bender).

Lesser Included Offenses

Arson. Pen. Code, § 451.

Attempted Arson. Pen. Code, § 455.

Unlawfully Causing a Fire. People v. Hooper (1986) 181 Cal.App.3d 1174, 1182 [226 Cal.Rptr. 810], disapproved of in People v. Barton (1995) 12 Cal.4th 186 [47 Cal.Rptr.2d 569, 906 P.2d 531] on its holding that failure to instruct on this crime as a lesser included offense of arson was invited error because defense counsel objected to such instruction; People v. Schwartz (1992) 2 Cal.App.4th 1319, 1324 [3 Cal.Rptr.2d 816].

Related Issues


Defendant's conviction for arson of an inhabited structure was proper where he set fire to his estranged wife's apartment several days after she had vacated it. Although his wife's apartment was not occupied, it was in a large apartment building where many people lived; it was, therefore, occupied for purposes of the arson statute. (People v. Green (1983) 146 Cal.App.3d 369, 378-379 [194 Cal.Rptr. 128].)

(New January 2006)