1551. Arson Enhancements
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/one or more of the following additional allegations):
<Alternative A—monetary gain>
[The defendant intended to obtain monetary gain when (he/she) committed the arson.]
<Alternative B—injury to firefighter, peace officer, or EMT>
[(A/An) (firefighter[,]/ peace officer[,]/ [or] emergency worker) suffered great bodily injury as a result of the arson.]
<Alternative C—great bodily injury to more than one person>
[The defendant caused great bodily injury to more than one person during the commission of the arson.]
<Alternative D—multiple structures burned>
[The defendant caused multiple structures to burn during the commission of the arson.]
<Alternative E—device designed to accelerate fire>
[The arson (caused great bodily injury[,]/ [or] caused an inhabited structure or inhabited property to burn[,]/ [or] burned a structure or forest land), and was caused by use of a device designed to accelerate the fire or delay ignition.]
[A person who is employed as a police officer by <insert name of agency that employs police officer> is a peace officer.]
[A person employed by <insert name of agency that employs peace officer, e.g., "the Department of Fish and Game"> is a peace officer if <insert description of facts necessary to make employee a peace officer, e.g., "designated by the director of the agency as a peace officer">.]
[A firefighter includes anyone who is an officer, employee, or member of a (governmentally operated (fire department/fire protection or firefighting agency) in this state/federal fire department/federal fire protection or firefighting agency), whether or not he or she is paid for his or her services.]
[An emergency worker includes an emergency medical technician. An emergency medical technician is someone who holds a valid certificate under the Health and Safety Code as an emergency medical technician.]
[Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm.]
[A (structure/ [or] property) is inhabited if someone lives there and either is present or has left but intends to return.]
[A (structure/ [or] property) 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 (structure/ [or] property) is not inhabited if the former residents have moved out and do not intend to return, even if some personal property remains inside.]
[A device designed to accelerate the fire means a piece of equipment or a mechanism intended, or devised, to hasten or increase the fire's progress.]
[In order to prove that the defendant caused (great bodily injury to more than one person/ [or] more than one structure to burn), the People must prove that:
1. A reasonable person in the defendant's position would have foreseen that committing arson could begin a chain of events likely to result in (great bodily injury to more than one person/ [or] the burning of more than one structure);
2. The commission of arson was a direct and substantial factor in causing (great bodily injury to more than one person/ [or] the burning of more than one structure);
3. The (great bodily injury to more than one person/ [or the] burning of more than one structure) would not have happened if the defendant had not committed arson.]
[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.]
The People have the burden of proving (this/each) allegation beyond a reasonable doubt. If the People have not met this burden, you must find that the allegation has not been proved.
The court has a sua sponte duty to give an instruction defining the elements of the sentencing enhancement.
The reference to "arson" in the first paragraph refers to all crimes charged under Penal Code section 451, including arson of a structure, forest land, or property (see CALCRIM No. 1515), arson causing great bodily injury (see CALCRIM No. 1501), and arson of an inhabited structure (see CALCRIM No. 1502). It does not refer to aggravated arson under Penal Code section 451.5 (see CALCRIM No. 1500).
Give one of the bracketed alternatives, A-E, depending on the enhancement alleged.
If the defendant is charged with a qualifying prior conviction under Penal Code section 451.1(a)(1), 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.
Give all relevant bracketed definitions, based on the enhancement alleged.
The jury must determine whether the alleged victim is a peace officer. (People v. Brown (1988) 46 Cal.3d 432, 444-445 [250 Cal.Rptr. 604, 758 P.2d 1135].) The court may instruct the jury on the appropriate definition of "peace officer" from the statute (e.g., "a Garden Grove Regular Police Officer and a Garden Grove Reserve Police Officer are peace officers"). (Ibid.) However, the court may not instruct the jury that the alleged victim was a peace officer as a matter of law (e.g., "Officer Reed was a peace officer"). (Ibid.) If the alleged victim is a police officer, give the bracketed sentence that begins with "A person employed as a police officer." If the alleged victim is another type of peace officer, give the bracketed sentence that begins with "A person employed by."
Give the bracketed paragraph that begins with "In order to prove that the defendant caused" if the prosecution alleges that the defendant caused great bodily injury to multiple people or caused multiple structures to burn. (Pen. Code, § 451.1(a)(5); see Pen. Code, § 451(a)-(c).)
Give the bracketed sentence that begins with "You must decide whether the People have proved" if the same enhancement is alleged for multiple counts of arson.
Elements. Pen. Code, §§ 451.1, 456(b).
Device Designed to Accelerate Fire Defined. People v. Andrade (2000) 85 Cal.App.4th 579, 587 [102 Cal.Rptr.2d 254].
Peace Officer Defined. Pen. Code, § 830 et seq.
Firefighter Defined. Pen. Code, § 245.1.
Emergency Medical Technician Defined. Health & Saf. Code, §§ 1797.80-1797.84.
Duty to Define Proximate Cause. See People v. Bland (2002) 28 Cal.4th 313, 334-335 [121 Cal.Rptr.2d 546, 48 P.3d 1107] [in context of firearm enhancement].
3 Witkin & Epstein, California Criminal Law (3d ed. 2000) Punishment, § 307.
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).
Discretion to Strike Enhancement
The trial court retains discretion under Penal Code section 1385 to strike an arson sentence enhancement. (People v. Wilson (2002) 95 Cal.App.4th
198, 203 [115 Cal.Rptr.2d 355] [enhancement for use of an accelerant under Pen. Code, § 451.1(a)(5)].)
(New January 2006)