Lead Opinion
Opinion
In this case, V.V. and J.H., minors, set off a firecracker on a brush-covered hillside in Pasadena, causing a fire that burned five acres of forest land. At a combined adjudicatory hearing, the juvenile court determined that V.V. and J.H. had committed arson. The court found that, although they did not intend to set the hillside on fire, the evidence satisfied the mental state required for arson.
In V.V.’s case, the Court of Appeal affirmed the juvenile court’s order, finding that the evidence sufficiently established the requisite mental state of malice because V.V. deliberately and intentionally set off a firecracker on a brush-covered hill. In J.H.’s case, a different division of the Court of Appeal found that the intentional act of setting off a firecracker on a brush-covered hill without intent to do harm is insufficient to establish the element of malice.
We conclude that under the circumstances of this case, V.V.’s and J.H.’s acts of intentionally igniting and throwing a firecracker amid dry brush on a hillside, although done without intent to cause a fire or other harm, were sufficient to establish the requisite malice for arson.
On the afternoon of July 18, 2008, V.V. and J.H. (both 17 year olds) joined a friend to climb a steep hill located behind a residential street in Pasadena. V.V. lit a large firecracker, which J.H. threw onto the brush-covered hillside. The firecracker exploded and caused a five-acre brush fire.
Abel Ramirez, a Pasadena resident, heard a “very loud explosion” from his backyard patio. He immediately saw smoke rising from the hillside and saw flames several minutes later. Shortly thereafter, Ramirez saw three young men running down the hill from the fire’s point of origin. The fire was rapidly spreading, coming within 60 to 75 feet of a residence. Ramirez called 911 to report the fire and described the three young men. At a field showup that day and at the adjudicatory hearing, Ramirez identified V.V. and J.H. as two of the three young men running down the hill.
Ara Moujoukian, Ramirez’s neighbor, heard kids laughing, yelling, and “having a good time” outside his house. He heard them exclaiming “Wow,” “Look,” “Did you see that,” and “Fire.” Moujoukian went outside and saw three boys laughing and “high-fiving” each other. When Moujoukian asked, “What are you guys doing?” they immediately ran away. One of the three boys “smacked” Moujoukian’s car as he ran off. Moujoukian turned around and saw a fire on the hill behind his house. He called 911 to report the fire and gave descriptions of the three boys. At a field showup that day and at the adjudicatory hearing, Moujoukian identified V.V. and J.H. as two of the three boys.
Pasadena police officers responded to the 911 calls. About one-quarter mile from the scene of the fire, they saw three people matching the description of the suspects and detained them. Officer Brian Bozarth patted down V.V. and found a lighter and “a large firecracker that would be described as a cherry bomb,” which was about the size of a golf ball and had a fuse coming out of the top. When Officer Bozarth discovered the firecracker, V.V. declared, “That’s what caused the fire.” V.V. admitted that he had caused the brush fire by setting off a firecracker on the hillside. Officer Bozarth saw a gray substance on J.H.’s fingers that appeared to be gunpowder from fireworks.
Firetrucks arrived and climbed three-fourths of the way up the hill. The fire burned five acres of brush-covered hillside behind a housing development.
At the police station, Detective Jesse Carrillo read V.V. and J.H. their Miranda rights (Miranda v. Arizona (1966)
V.V. acknowledged that, although J.H. brought the firecrackers to the hill, they both had the idea of lighting one. The minors stated that J.H. held the firecracker, V.V. lit it with J.H.’s lighter, and J.H. threw it. V.V. stated that they tried to throw the firecracker onto a green area on the hillside. On the other hand, J. H. said he told V.V. he was going to throw the firecracker onto a concrete area. V.V. claimed that he lit the firecracker “[j]ust to make a lot of noise,” and that he did not think the green areas on the hillside would ignite. After the fire started, they “got kind of scared” because the fire could have reached them. They then discarded the other fireworks into a sewer. The three minors ran down the hill without stopping to report the fire to anyone.
Detective Carrillo testified that the brush fire’s point of origin was below the minors’ position on the hillside. He stated that the concrete area J. H. said he was aiming for was even further down the hillside, about 150 yards from the fire’s point of origin.
The Los Angeles County District Attorney filed petitions under Welfare and Institutions Code section 602 alleging that V.V. and J.H. committed the crimes of arson of a forest land (Pen. Code, § 451, subd. (c))
In affirming V.V.’s wardship order, Division One of the Court of Appeal, Second Appellate District, in an unpublished opinion, concluded that arson’s malice requirement was met under Atkins. The court reasoned that “[undisputed evidence established that V.V. intentionally ignited the firecracker with
In setting aside the arson finding in J.H.’s case, Division Eight of the Court of Appeal, Second Appellate District, in a published opinion, concluded that, under Atkins, the act of lighting and throwing a firecracker without the intent to do harm was not malicious conduct because it was not done with “an intent to do a wrongful act.” The court struck the arson finding as to J.H. and modified the judgment to reflect a finding that J.H. committed the lesser offense of recklessly causing a fire.
We granted review in both cases to determine the correct application of Atkins.
II. DISCUSSION
V.V. and J.H. argue that there is insufficient evidence of malice, as defined in the arson statutes (§§ 450, 451), because they lit and threw the firecracker without intent to cause a fire or any other harm. As explained below, the evidence supports the juvenile court’s finding that V.V. and J.H. acted with malice.
Our review of the minors’ substantial evidence claim is governed by the same standard applicable to adult criminal cases. (In re Muhammed C. (2002)
In Atkins, we held that arson requires only a general criminal intent and that the specific intent to set fire to, bum, or cause to be burned the relevant structure or forest land is not an element of arson. In reaching that conclusion, we examined the statutory terms “willfully” and “maliciously,” and explained: “ ‘[T]he terms “willM” or “willfully,” when applied in a penal statute, require only that the illegal act or omission occur “intentionally,” without regard to motive or ignorance of the act’s prohibited character.’ [Citation.] ‘Willfully implies no evil intent; “ ‘it implies that the person knows what he is doing, intends to do what he is doing and is a free agent.’ [Citation.]” ’ [Citations.] The use of the word ‘willfully’ in a penal statute usually defines a general criminal intent, absent other statutory language that requires ‘an intent to do a further act or achieve a future consequence.’ [Citations.]” (Atkins, supra,
In Atkins, the defendant admitted that he poured a mixture of oil and gasoline on a pile of weeds and lit the weeds with a disposable lighter in a cleared area in a canyon that had heavy bmsh, trees, and grass. He claimed that he had been drinking most of that day. Although the prosecution presented evidence that he had previously threatened to bum down a nearby house, the defendant asserted that he meant no harm and that the resultant bmsh fire was an accident. (Atkins, supra, 25 Cal.4th at pp. 79-80.) We held that because arson is a general intent crime, evidence of voluntary intoxication was not admissible on the issue of whether the defendant formed the required mental state for arson. (Id. at pp. 79, 84.) We stated that the arson statute does not require the intent to cause the resulting harm, but “rather requires only [a general] intent to do the act that causes the harm.” (Id. at p. 86.)
The statutory definition of arson is derived from the common law crime of arson as a willful and malicious burning. (Atkins, supra, 25 Cal.4th at pp. 86-87.) Although “[m]alice as universally understood by the popular mind has its foundation in ill-will” (Davis v. Hearst (1911)
In determining whether the second type of malice (“intent to do a wrongful act”) is established for arson, malice will be presumed or implied from the deliberate and intentional ignition or act of setting a fire without a legal justification, excuse, or claim of right. (Atkins, supra, 25 Cal.4th at pp. 88-89; accord, U.S. v. Doe (9th Cir. 1998)
Tracking the language with which we described arson’s malice requirement in Atkins, supra,
Substantial evidence supports the juvenile court’s finding of malice. V.V. and J.H. were equal participants. Although J.H. brought large “cherry bombs” to the hill, both J.H. and V.V. had the idea of lighting one. J.H. held the firecracker while V.V. lit it with J.H.’s lighter. J.H. then threw the ignited firecracker into dry brush on the hillside.
Although V.V. and J.H. did not intend to set the hillside on fire, they knew that their intentional acts created a fire hazard. J.H. told the police he attempted to throw the firecracker onto a concrete area on the hillside, while V.V. said they wanted to throw the firecracker onto a green area on the hillside. The juvenile court reasonably inferred that because V.V. and J.H. tried to avoid the dry brush, they knew a fire could result from setting off the large “cherry bomb” on the brush-covered hillside. V.V. and J.H. also told the police that the third minor did not want to participate in lighting the firecrackers because he feared that someone might get injured. Thus, the third minor alerted V.V. and J.H. beforehand to the dangers of playing with firecrackers.
Indeed, the record supports an inference that V.V. and J.H. were not surprised or upset that the firecracker exploded in dry brush and caused a fire. Ara Moujoukian testified that V.V. and J.H. were yelling, laughing, “high-flying,” and seemingly having a good time moments after they realized the hillside was on fire.
V.V. and J.H. claim that the evidence supports a finding only that they had committed the offense of unlawfully causing a fire (§ 452) because their conduct was reckless and resulted in an accidental fire. “[T]he offense of unlawfully causing a fire covers reckless accidents or unintentional fires, which, by definition, is committed by a person who is ‘aware of and consciously disregards a substantial and unjustifiable risk that his or her act
This was not an accidental or unintentional ignition. A similar situation occurred in U.S. v. Doe, supra,
As in U.S. v. Doe, supra,
III. DISPOSITION
We affirm the judgment of the Court of Appeal relating to the arson finding in V.V.’s case. We reverse the judgment of the Court of Appeal relating to the arson finding in J.H.’s case and remand the case to that court for further proceedings consistent with this opinion.
Cantil-Sakauye, C. J., Baxter, J., Corrigan, J., and Banke, J.,
Notes
Unless otherwise noted, all statutory references are to the Penal Code.
On the Attorney General’s motion, we ordered the cases consolidated for purposes of briefing, oral argument, and decision.
Justice Werdegar’s dissent incorrectly asserts the juvenile court failed to find that V.V. and J.H. acted with malice. (Dis. opn. of Werdegar, J., post, at p. 1036; id. at p. 1038.) In addition to expressly stating that the facts of this case “meet[] the requirement of the law” in establishing arson, the juvenile court, in sustaining the petition’s arson allegation, necessarily found that the element of malice was established. (See Sullivan v. Louisiana (1993)
V.V.’s interview with the police reflects that the third minor alerted V.V. and J.H. to the dangers of playing with firecrackers before setting off the firecracker on the hillside:
“[Officer]: Alright, so you guys climbed the mountain and then what happened?
“V.V.: We got to the top and we’re like and ... we got to the top and we’re kinda like (unintelligible) because it is hard getting to the top.
“[Officer]: Um-hum.
“V.V.: We, Ivan didn’t want to because he said what if someone gets injured.
“[Officer]: Was everyone gonna light one?
“V.V.: No, no just one. Just to make a lot of noise. And . . .
“[Officer]: Whose idea was it to light one?
“V.V.: Ah, [J.H.’s], both of us, me and [J.H.].”
Justice Werdegar’s dissent inaccurately asserts that the juvenile court did not rely on Moujoukian’s testimony about V.V.’s and J.H.’s laughter, yells, and high-living gestures in light of the parties’ stipulation that the witness did not tell the police about this behavior. (Dis. opn. of Werdegar, J., post, at p. 1037.) In fact, the parties stipulated only that the interviewing officer’s police report contained certain statements made by Moujoukian, which did not include a description of the above behavior. The prosecutor specifically stated, “we’re not including in the stipulation as to what was exactly was told or not told” to the officer. The court accepted the stipulation and never expressed or implied any doubt about Moujoukian’s testimony. We must presume in support of the judgment the existence of every fact that the trier of fact could reasonably have deduced from the evidence. (People v. Medina, supra,
In arguing that the majority opinion does not comport with the law (dis. opn. of Werdegar, J., post, at p. 1034), Justice Werdegar’s dissent repeatedly asserts that the majority presumes malice simply from the commission of the volitional act that causes a fire to start. (Id. at pp. 1035, 1037-1039.) In making these assertions, the dissent never recognizes that, in upholding the juvenile court’s malice finding, we have applied the standard of malice as stated in Atkins. (Ante, at p. 1029.) There, we stated “[T]here must be a general intent to willfully commit the act of setting on fire under such circumstances that the direct, natural, and highly probable consequences would be the burning of the relevant structure or property” (Atkins, supra,
In Atkins, supra, 25 Cal.4tfh 76, 89, we observed that “reckless accidents or unintentional fires may include. those caused by a person who recklessly lights a match near highly combustible materials.” Defendants argue that their conduct was more akin to this type of reckless conduct. The Attorney General responds that the affirmative acts of lighting and throwing a firecracker into dry brush is qualitatively different from merely lighting a match near combustible materials. She counters that more apt examples of reckless behavior would be an instance of a person who carves open a firecracker to check for gunpowder, next to a lit cigarette—and it explodes in a location of obvious fire danger; or a person who lights a firecracker, but instead of throwing it, fumbles with it, and it falls on dry brush; or a farmer who bums crops on a very windy and dry day.
In U.S. v. Doe, supra,
Contrary to the Justice Werdegar’s dissent, our holding would not “render every unlawful fire under section 452 also an arson under section 451.” (Dis. opn. of Werdegar, J., post, at p. 1039.) “[T]hat defendant’s willful and malicious conduct may also have been reckless does not suggest that he may not be convicted of arson ... or that his culpability is the same as someone who [performs the act] recklessly . . . .” (People v. Fry, supra,
Associate Justice of the Court of Appeal, First Appellate District, Division One, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Dissenting Opinion
One dry summer day, two teenagers lit a type of firecracker commonly known as a “cherry bomb” and threw it down a brush-covered hill. When the cherry bomb exploded, the brush caught fire. The teenagers who threw the cherry bomb (V.V. and J.H.) were captured and were later found guilty in juvenile court of arson of forest land. (Pen. Code, §451, subd. (c).)
The majority here upholds the juvenile court’s finding. I disagree. As Justice Werdegar’s dissent (which I have signed) persuasively explains, the evidence is insufficient to show that V.V. and J.H. acted with malice, a necessary element of the crime of arson. Instead, they were guilty only of reckless fire setting (§ 452), which is a serious crime but not so serious as arson. I write to comment on the majority’s erroneous assertion that the fire started by V.V. and J.H. was not accidentally set.
As this court explained in People v. Atkins (2001)
Here, the court commissioner hearing the matter expressly found that V.V. and J.H. did not intend to set the fire that resulted when the cherry bomb exploded on the hillside. Nevertheless, the majority concludes: “This was not an accidental or unintentional ignition.” (Maj. opn., ante, at p. 1032.) The majority’s only explanation for that bald assertion is to say that the facts here are comparable to those of U.S. v. Doe (9th Cir. 1998)
But the facts here are not comparable to those of Doe, supra,
In short, V.V. and J.H. performed three intentional acts which, in combination, resulted in the hillside being set ablaze: (1) they lit a lighter; (2) they used the lighter to light the fuse to a cherry bomb; and (3) they flung the cherry bomb down the hillside just before it exploded. The first and second of these acts were innocuous and entirely proper, assuming it was legally permissible to use fireworks in the area where they were standing (an assumption unrebutted by the record in this case); the third act was criminally reckless. But by committing the third act, V.V. and J.H. did not deliberately set a fire. Although a fire resulted from that act, that fire was an accident: As V.V. told the police officer that questioned him, they set off the cherry bomb “□just to make a lot of noise.” They therefore did not act maliciously, and thus were not guilty of violating section 451’s subdivision (c) (arson of forest land).
All statutory citations are to the Penal Code.
Dissenting Opinion
majority opinion, in my view, comports with neither the facts nor the law. Accordingly, I respectfully dissent.
A person is guilty of arson when he or she “willfully and maliciously sets fire to . . . forest land . . . .” (§ 451.) “Willfully,” for all practical purposes, means nothing more than that the prohibited act was intentionally done. (See People v. Atkins (2001)
The court commissioner who conducted the juvenile hearing in this case expressly found the minors did not intend to set the hillside on fire. He believed the dispositive question was simply whether “the natural and probable consequence or highly probable consequence of lighting a firecracker on a hillside and throwing it some distance away trying to hit a patch of green or a patch of cement” satisfied the statutory definition of arson. (§ 451.) Certainly the minors lit the firecracker “willfully” the act was clearly volitional. But nothing in the record justifies the majority’s conclusion the minors also lit the firecracker “maliciously.” No evidence was introduced to show the minors had “a wish to vex, defraud, annoy, or injure another person, or an intent to do a wrongful act . . . .” (§ 450, subd. (e), italics added.) The only evidence concerning the minors’ purpose in lighting fireworks comes from their statements to police and reflects nothing more than a common youthful enthusiasm for loud noises.
The majority offers various analytical paths to the conclusion that the minors acted with malice. I find all of them unsupportable. At one point, the
Later in its opinion, trying another approach, the majority asserts the commissioner found the minors acted with malice. (Maj. opn., ante, at p. 1029.) Had he done so, he would on this record have erred. But in fact, the commissioner made no such finding; like the majority, he presumed malice simply from the lighting and throwing of the firecracker.
The commissioner may have proceeded as he did from a misreading of Atkins, supra,
Now embracing the commissioner’s misreading of Atkins, supra,
The majority’s effort to demonstrate the evidence in this case would have supported a finding of malice is unconvincing. First, relying on the testimony of one of the two homeowners who reported the fire, the majority states the minors “were yelling, laughing, ‘high-fiving,’ and seemingly having a good time moments after they realized the hillside was on fire.” (Maj. opn., ante, at p. 1031.) What the majority overlooks is that the commissioner did not rely on this testimony, after the parties stipulated and the commissioner acknowledged the witness had mentioned no such behavior when interviewed by police.
In short, I find no substantial evidence in the record to support the finding of malice the arson statute requires but the commissioner failed to make. Nor, absent such evidence, can I agree with the majority that malice may be presumed simply from the doing of a volitional act that is not inherently or necessarily “wrongful” (§ 450, subd. (e)) or done with “a wish to vex, defraud, annoy, or injure another person . . .” (ibid.).
The majority’s determination the minors committed arson is particularly inappropriate in light of section 452, which the Legislature enacted in 1979 specifically to punish reckless behavior that sets fire to forest lands. Under section 452, “[a] person is guilty of unlawfully causing a fire when he recklessly sets fire to or bums or causes to be burned, any stmcture, forest land or property.” The term “recklessly,” in this context, “means a person is aware of and consciously disregards a substantial and unjustifiable risk that his or her act will set fire to, bum, or cause to bum a stmcture, forest land, or property. The risk shall be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation.” (§ 450, subd. (f).) The enrolled bill report on the legislation that became section 452 cited carelessness with fireworks as a paradigmatic example of conduct the Legislature intended to reach.
To presume malice from nothing more than the volitional act that causes a fire to start could render every unlawful fire under section 452 also an arson under section 451. The Legislature, which we assume does not perform idle acts or enact superfluous legislation (e.g., Imperial Merchant Services, Inc. v. Hunt (2009)
In summary, I find the majority’s reasoning and conclusion unsupportable. Accordingly, I dissent.
All further citations to statutes are to the Penal Code.
V.V. told police that he and J.H. had lit the firecracker “just to make a lot of noise.” J.H. explained he had gotten the fireworks on “July, 4th of July. And . . . there was a bunch of fireworks in Compton and I just saw some guys, like a [round] of guys throwing some fireworks. Boom! And they were like exploding and it was like wow!”
The commissioner explained his ruling in these words: “The question to me is whether I believe that the natural and probable consequence or highly probable consequence of lighting a firecracker on a hillside and throwing it some distance away trying to hit a patch of green or a patch of cement. So it does not cause the hill to catch on fire and then the hill catches on fire whether that meets the requirement of the law. And, I guess, I think it does. That’s notwithstanding the fact that I don’t believe the kids had any intention to set the hill on fire; that’s not the issue.”
“Arson’s malice requirement ensures that the act is ‘done with a design to do an intentional wrongful act . . . without any legal justification, excuse or claim of right.’ [Citation.]” (Atkins, supra, 25 Cal.4th 76, 88.)
Similarly, although the majority asserts the minors “were not surprised or upset that the firecracker exploded in dry brush and caused a fire” (maj. opn., ante, at p. 1031), the minors actually stated they were “scared” (V.V.) and “terrified” (J.H.).
J.H. told police: “After that we were like, ‘Dude, we should just give ourselves in cause we did it.’ He’s like, and someone might get hurt. We were like damn, we started a fire.” (Italics added.)
J.H.: “And when we got down there, we were like, ‘Dude, we, we should just . . .’ like ’cause like even if . . . like we knew the cops were coming and we, like, we didn’t even ran, like we ran at first and then we were like, ‘Dude, naw. We’re gonna stop and we’re gonna give ourselves in.’ And then like when the cops came, we were just like stop them and were like ok yeah we did it. It was us. He didn’t even ask us anything. We were like, ‘we started the fire, it was us.’ ”
At the juvenile court hearing, the People did not call as a witness the police sergeant who first encountered and spoke with the minors after the fire started. The later arriving officer who did testify acknowledged he did not know what the minors and the sergeant had said to one another.
“For example, though unintended, a fire which results from gross carelessness would qualify (such as playing with matches or fireworks or unattended campfires).” (Health & Welf. Agency, Enrolled Bill Rep. on Sen. Bill No. 116 (1979-1980 Reg. Sess.) June 2, 1979, p. 1.)