Metropolitan News-Enterprise


Friday, December 4, 2009


Page 1


Appeals Court: Blaze Sparked by Firecracker Not Arson


By STEVEN M. ELLIS, Staff Writer


This district’s Court of Appeal yesterday threw out the arson adjudication of a minor whose “cherry bomb” firecracker sparked a July 2008 blaze that burned five acres of forest land near Pasadena.

Modifying the judgment, Div. One said the then-17-year-old boy was guilty only of the lesser included offense of unlawfully causing a fire because there was no evidence he acted with malice when he lit the firecracker with friends on a hillside and then threw it, starting the fire.

Los Angeles Superior Court Referee Robert Leventer sustained an arson charge against the minor—identified as “J.H.”—and placed him on probation last year after concluding that a 2001 California Supreme Court opinion required that the boy and his friends needed only to “intend to light the firecracker” to be guilty of arson.

Leventer did so despite finding that the minors “had no intention to set the hill on fire” and were “basically good kids” who were “playing with firecrackers.” J.H. admitted igniting the firework, but said he intended to throw it toward a concrete drainage area “to make a lot of noise.”

However, Los Angeles Superior Court Judge Anthony J. Mohr, sitting on the Court of Appeal by assignment, wrote that state law and the Supreme Court’s opinion in People v. Atkins 25 Cal.4th 76 lead to “one conclusion: causing a fire is not arson unless the act that caused the fire was done willfully and maliciously.”

Penal Code Sec. 451 provides that a person is guilty of arson if he or she “willfully and maliciously sets fire to or burns or causes to be burned…any structure, forest land, or property.” In contrast, a person is guilty of the lesser included offense of unlawfully causing a fire under Sec. 452 for the same conduct if it was done “recklessly.”

In Atkins, the Supreme Court held that evidence of voluntary intoxication was not admissible on the issue of whether the defendant accused of arson of forest land formed the required mental state because arson is a general intent crime.

Mohr said that Leventer incorrectly focused on the Supreme Court’s statement in Atkins that arson “requires only an intent to do the act that causes the harm,” not “an intent to cause the resulting harm” to conclude that the minors needed only to light the firecracker.

He explained:

“But nothing in Atkins allows a court to ignore the statutory requirement that the act must be done ‘maliciously’ or to ignore the Court’s explanation of the malice requirement for arson....

“[W]hile Atkins held that the statutory term ‘malicious’ does not transform arson into a specific intent crime (so that a defendant need not intend to cause the resulting harm), Atkins in no way purported to eliminate malice as the required mental state for arson….

 “Here, the act that caused the fire consisted of lighting and throwing a firecracker, and the prosecution presented no evidence that the act was done with a wish to vex, annoy, or injure anyone or with an intent to do a wrongful act. Without such evidence, we can see no distinction between lighting a firecracker in a heavily wooded area and ‘recklessly light[ing] a match near highly combustible materials.’ ”

Justices Laurence D. Rubin and Madeleine Flier joined Mohr in his opinion.

The case is In re J.H., B212635.


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