People v. Rubino
H042666
| Cal. Ct. App. | Dec 12, 2017Background
- In Sept. 2013 surveillance showed Rubino approach a drop box multiple times, place items including open miniature bottles, partially burned envelopes, and a lit paper into the box; gasoline odor and residue were found in the box and on seized items.
- An arson investigator observed soot and gasoline residue; liquid from a gas can at Rubino’s home tested positive for gasoline.
- Rubino testified he staged a fake arson to prompt an investigation by the district attorney’s office (to support a lawsuit), claimed he used only small amounts of gasoline and filled bottles with water to prevent a real fire, and denied intent to damage property.
- He did not disclose at the scene or to investigators that the act was staged, and no corroborating letter to the DA was introduced.
- A jury convicted Rubino of attempted arson (Pen. Code § 455); the trial court suspended sentence and imposed probation including one year jail.
Issues
| Issue | People’s Argument | Rubino’s Argument | Held |
|---|---|---|---|
| Whether CALCRIM No. 1520 omits the specific intent element of attempted arson | The instruction (read as a whole) includes the specific intent element by defining attempt as placing flammable material in/around a structure "with the intent to set fire to it." | CALCRIM 1520 is deficient/ambiguous because the instruction’s wording could allow conviction for intent to burn the flammable object (envelope) rather than the structure/property; thus it fails to instruct on specific intent. | Court held the instruction, read in full, includes the required specific intent to set fire to the structure/property and accurately tracks Penal Code § 455. |
| Whether the instruction’s pronoun "it" is ambiguous such that jurors could misunderstand the target of intent | The prosecutor’s closing clarified "it" referred to the structure/property; instruction read in context is coherent. | The second "it" could grammatically refer to the flammable material/device rather than the structure/property, causing ambiguity. | Court found the only sensible antecedent is the structure/property; even if ambiguous, prosecutor and defense counsel clarified the meaning and any ambiguity was not reasonably likely to prejudice the jury. |
| Whether failure to provide a written copy of CALCRIM No. 1520 to the jury (record unclear) prejudiced Rubino | Any omission was clerical or not shown; instructions were read aloud and counsel discussed the intent element; no reasonable probability of a different outcome. | The jury may not have received the written instruction, increasing risk of misunderstanding a critical element (specific intent). | Court applied Watson standard for nonconstitutional error and found no prejudice—no reasonable probability of a more favorable outcome. |
Key Cases Cited
- People v. Atkins, 25 Cal.4th 76 (recognizing placement of flammable material with specific intent to burn is attempted arson)
- People v. Posey, 32 Cal.4th 193 (instructive standard-of-review principles for jury instructions)
- Estelle v. McGuire, 502 U.S. 62 (reviewing whether ambiguous jury instructions are reasonably likely to have been misapplied)
- People v. Young, 34 Cal.4th 1149 (same standard for evaluating jury instruction ambiguity)
- People v. Samayoa, 15 Cal.4th 795 (failure to provide written instructions reviewed under state law; not a federal constitutional error)
- People v. Cooley, 14 Cal.App.4th 1394 (same principle on written instruction provision)
- People v. Watson, 46 Cal.2d 818 (standard for prejudice review of nonconstitutional errors)