1531. Unlawfully Causing a Fire: Inhabited Structure
The defendant is charged [in Count ______] with unlawfully causing a fire 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 caused the burning of] (a structure/forest land/property);
2. The defendant did so recklessly;
3. The fire burned an inhabited structure.
<Alternative A—Recklessness: General Definition>
[A person acts recklessly when (1) he or she is aware that his or her actions present a substantial and unjustifiable risk of causing a fire, (2) he or she ignores that risk, and (3) ignoring the risk is a gross deviation from what a reasonable person would have done in the same situation.]
<Alternative B—Recklessness: Voluntary Intoxication>
[A person acts recklessly when (1) he or she does an act that presents a substantial and unjustifiable risk of causing a fire but (2) he or she is unaware of the risk because he or she is voluntarily intoxicated. Intoxication is voluntary if the defendant willingly used any intoxicating drink, drug, or other substance knowing that it could produce an intoxicating effect.]
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.
A structure is a (building/bridge/tunnel/power plant/commercial or public tent).
A structure is inhabited if someone lives there and either (a) is present or (b) 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 unlawfully cause a fire 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 another person or another person's structure, forest land, or property.]
[Arson and unlawfully causing a fire require different mental states. For arson, a person must act willfully and maliciously. For unlawfully causing a fire, a person must act recklessly.]
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 rather "aided, counseled or procured" 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.
Depending upon the theory of recklessness the prosecutor is alleging, the court should instruct with alternative A or B.
If the defendant is also charged with arson, the court may wish to give the last bracketed paragraph, which explains the difference in intent between unlawfully causing a fire and arson. (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 the point that defense counsel's objection to instruction on lesser included offense constituted invited error]; People v. Schwartz (1992) 2 Cal.App.4th 1319, 1324 [3 Cal.Rptr.2d 916].)
Elements. Pen. Code, § 452.
Inhabited Defined. Pen. Code, § 450; People v. Guthrie (1983) 144 Cal.App.3d 832, 838, 848 [193 Cal.Rptr. 54]; People v. Jones (1988) 199 Cal.App.3d 543 [245 Cal.Rptr. 85].
Structure, Forest Land Defined. Pen. Code, § 450.
Difference Between This Crime and Arson. People v. Hooper (1986) 181 Cal.App.3d 1174, 1182 [226 Cal.Rptr. 810].
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.
5 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 91, Sentencing, § 91.47 (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 143, Crimes Against Property, § 143.11 (Matthew Bender).
Lesser Included Offenses
Unlawfully Causing a Fire. Pen. Code, § 452.
(New January 2006)