The defendant is charged [in Count ______] with arson.
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.
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).]
[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.]
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.
If it is also alleged that the fire caused great bodily injury or burned an inhabited structure or property, see CALCRIM No. 1501, Arson: Great Bodily Injury and CALCRIM No. 1502, Arson: Inhabited Structure.
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.
Structure, Forest Land, and Maliciously Defined. Pen. Code, § 450; see People v. Labaer (2001) 88 Cal.App.4th 289, 293-294 [105 Cal.Rptr.2d 629] ["structure" does not require finished or completed building].
General Intent Crime. People v. Atkins (2001) 25 Cal.4th 76, 83-84, 86 [104 Cal.Rptr.2d 738, 18 P.3d 660] [evidence of voluntary intoxication not admissible to negate mental state].
Property Defined. In re L.T. (2002) 103 Cal.App.4th 262, 264-265 [126 Cal.Rptr.2d 778].
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].
2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against Property, §§ 238-242.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 143, Crimes Against Property, § 143.11 (Matthew Bender).
Lesser Included Offenses
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].
Fire damage to fixtures within a building may satisfy the burning requirement if the fixtures are an integral part of the structure. (In re Jesse L. (1990) 221 Cal.App.3d 161, 167-168 [270 Cal.Rptr. 389]; People v. Lee (1994) 24 Cal.App.4th 1773, 1778 [30 Cal.Rptr.2d 224] [whether wall-to-wall carpeting is a fixture is question of fact for jury].)
Arson includes burning a victim's clothing. (People v. Reese (1986) 182 Cal.App.3d 737, 739-740 [227 Cal.Rptr. 526].)
Burning trash that does not belong to the defendant is arson. There is no requirement for arson that the property belong to anyone. (In re L.T. (2002) 103 Cal.App.4th 262, 264 [126 Cal.Rptr.2d 778].)
(New January 2006)