People v. Glover

• Decision Date: 10 September 1991
• Docket Number: No. B045968,B045968
• Citation: 233 Cal.App.3d 1476,285 Cal.Rptr. 362
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Joan GLOVER, Defendant and Appellant.

Page 362

285 Cal.Rptr. 362

233 Cal.App.3d 1476

The PEOPLE, Plaintiff and Respondent, v. Joan GLOVER, Defendant and Appellant.

No. B045968.

Court of Appeal, Second District, Division 5, California.

Sept. 10, 1991.

As Modified Oct. 7, 1991.

Review Denied Dec. 12, 1991.

Jonathan P. Milberg, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant.

Daniel Lungren and John K. Van de Kamp, Attys. Gen., Richard B. Iglehart, Edward T. Fogel, Jr., Asst. Atty. Gen., John R. Gorey, Ernest Martinez, Deputy Attys. Gen., for plaintiff and respondent.

TURNER, Presiding Justice.

I. INTRODUCTION

Defendant Joan Glover appeals from a judgment of conviction for arson of an inhabited structure in violation of Penal Code section 451, subdivision (b). ¹ On appeal, defendant contends that the evidence was insufficient to support her conviction of arson of an inhabited structure because defendant did not act with the requisite specific intent to set fire to an inhabited dwelling rather than her personal property and there was instructional error. We find that no prejudicial error has occurred and, as a result, the judgment is affirmed.

II. THE FACTS

On April 17, 1987, defendant lived in apartment 25 at 1170 Murchison Street in Pomona. Previously, in September of 1986, defendant had told her former husband that "she got some insurance and that she was gonna burn her apartment up because she needed some money." Defendant met with several persons including Albert Dukes (Dukes) and asked him to start a fire with kerosene in her apartment. She never stated why she wanted the fire started. Dukes stated that defendant wanted two other residents of the apartment building out of the building at the time the fire was started.

In compliance with her instructions, Dukes started the fire by pouring kerosene over furniture which was placed in the middle of defendant's living room. He poured kerosene "all over the floor and left a trace to the back door." He then dropped a burning paper bag "onto the trace of kerosene" and the fire ignited. He fled the scene of the incident.

Shortly thereafter, Pomona firefighters arrived at defendant's apartment. An arson investigation indicated that the fire had been intentionally set within a six square foot area in the living room of the apartment. A petroleum product was used to start the fire according to an arson investigator and the carpet had burned down to the concrete through the carpet pad. Cupboards in the kitchen had been burned. When the fire ignited, the arson investigator stated that there had been a low level explosion. In the upstairs area of the apartment, there had been smoke damage or residue. Both Dukes and the fire investigator identified words that had been spray painted in the upstairs area of the apartment in an effort to make the fire look as though it was "gang related." After the fire, she applied for fire insurance proceeds and ultimately received an insurance settlement as a result of the fire.

III. DISCUSSION

A. There is substantial evidence that defendant possessed the requisite mental state to commit a violation of section 451, subdivision (b)

Defendant contends that the evidence is insufficient to support a conviction for arson of an inhabited dwelling because it is necessary that a defendant possess a specific intent to set fire to the structure. Relying upon the decision of In re Stonewall F. (1989) 208 Cal.App.3d 1054, 1066, 256 Cal.Rptr. 578, defendant argues that an essential element of the crime was the existence on defendant's part of a specific intent to set fire to the structure. Because we believe that Stonewall F. does not correctly state California law and, in any event, there was substantial evidence of a specific intent, we affirm.

First, we believe that arson remains a general intent crime. No doubt, the Court of Appeal in the decision of In re Stonewall F., supra, 208 Cal.App.3d [233 Cal.App.3d 1480] at pp. 1062-1068, 256 Cal.Rptr. 578, held that arson of an inhabited structure within the meaning of section 451, subdivision (b) was a specific intent crime. The California Supreme Court has discussed the requisite intent for an arson conviction on several occasions. Prior to the adoption of the Penal Code in 1872, California statutes did not require a specific intent as an element of the offense of arson. (Stats. 1856, ch. 110, §§ 4-7, pp. 131-132.) However, upon the adoption of the Penal Code in 1872, former section 447 was enacted to provide, "arson is the willful and malicious burning of a building, with the intent to destroy it." The Supreme Court interpreted former section 447 to require the presence of a specific intent to destroy the property that was burned. (People v. Mooney (1899) 127 Cal. 339, 340, 59 P. 761; People v. Hong (1898) 120 Cal. 685, 687, 53 P. 265; People v. De Winton (1896) 113 Cal. 403, 405, 45 P. 708.)

In 1929, the arson statutes were recodified and section 447 was repealed. (Stats.1929, ch. 25, § 6, p. 46.) ² The definition of three forms of arson described in new section 447a, 448a, and 449a required that the perpetrator of the offense act "wilfully and maliciously." (Stats.1929, ch. 25, §§ 1, 2, 3, p. 46.) ³ Other sections of the 1929 enactment prohibited arson when done with the "intent to injure or defraud the insurer" or by placing a "flammable, explosive or combustible material" in a building "with the intent to eventually willfully and maliciously set [a] fire" did retain an intent requirement. (Stats.1929, ch. 25, §§ 4, 5, pp. 46-47.) ⁴ These two latter sections which contained an "intent" requirement were codified as former sections 450a and 451a. In 1979, section 450a was repealed and the current provisions of section 451, subdivision (b), the offense of which defendant has been convicted, was added to the Penal Code. Section 451a was amended in 1979 and renumbered and is currently found in section 455. (Stats.1979, ch. 145, §§ 3, 7, 9, pp. 337-339.) Of the current arson statutes codified in sections 451-457.1, only sections 453 and 455 contain a requirement that a person possess a particular intent. ⁵

Since 1899, despite the substantial changes in the arson provisions of the Penal Code, the California Supreme Court has only commented in dicta concerning the issue of whether there is a requirement that a specific intent exist before the crime of arson may be committed. For example, in People v. Ashley (1954) 42 Cal.2d 246, 264, fn. 4, 267 P.2d 271, the Supreme Court noted that arson was a specific intent crime. This discussion in Ashley did not focus upon any particular section of the Penal Code. On the other hand, in People v. Nichols (1970) 3 Cal.3d 150, 165, 89 Cal.Rptr. 721, 474 P.2d 673, the Supreme Court stated in dicta that arson was a general intent offense.

Prior to the decision of In re Stonewall F., the Courts of Appeal in this state have consistently held that there is no requirement of a specific intent in an arson prosecution. (People v. Tanner (1979) 95 Cal.App.3d 948, 956-958, 157 Cal.Rptr. 465; People v. Nance (1972) 25 Cal.App.3d 925, 930-931, 102 Cal.Rptr. 266; People v. Bowman (1966) 240 Cal.App.2d 358, 386-387, 49 Cal.Rptr. 772; People v. Woods (1958) 157 Cal.App.2d 617, 622-623, 321 P.2d 477.) Other jurisdictions have without exception concluded that there is no specific intent requirement in order to commit the crime of arson unless an arson statute requires the existence of a particular intention. ⁶ (State v. O'Farrell (Me.1976) 355 A.2d 396, 398; State v. Kinlaw (1977) 150 N.J.Super. 70, 374 A.2d 1233, 1235; State v. Nelson (1977) 17 Wash.App. 66, 561 P.2d 1093, 1095; Myers v. State (Ind.App.1981) 422 N.E.2d 745, 750; De Bettencourt v. State (1981) 48 Md.App. 447, 428 A.2d 476, 481-484; Veverka v. Cash (Iowa 1982) 318 N.W.2d 447, 450; Linehan v. State (Fla.App.1983) 442 So.2d 244, 248-249; State v. Simmons (La.1983) 443 So.2d 512, 521; Dean v. State (Wyo.1983) 668 P.2d 639, 643.) In some states, an arson statute requires a specific intent as an element of the crime of arson or one of its related offenses and the statutory language has been interpreted to require that there be more than a mere general intent to commit the crime. (Prejean v. State (Tex.App.1986) 704 S.W.2d 119, 121; People v. Keech (1983) 121 Misc.2d 368, 467 N.Y.S.2d 786, 788; State v. Walker (1984) 138 Ariz. 491, 675 P.2d 1310, 1313.)

The Arizona Supreme Court's interpretation of its arson statute in State v. Vickers (1984) 138 Ariz. 450, 675 P.2d 710, 711, and in State v. Walker, supra, 675 P.2d at p. 1313, is consistent with the general rule utilized by state courts in determining whether an arson statute requires a specific intent. Prior to the enactment of a new arson statute by the Arizona Legislature effective October 1, 1978, all that was necessary for a defendant to be convicted of arson was to possess a general criminal intent. (State v. Scott (App.1978) 118 Ariz. 383, 576 P.2d 1383, 1385.) However, when the Arizona arson statute was reenacted effective October 1, 1978, and there was a new requirement of a particular intent, the Arizona courts began to require the existence of a specific intent as the requisite mental state in order for there to be an arson conviction. The general rule of law throughout the countryhas been that unless a jurisdiction's arson statute requires a particular intent, arson is a general intent crime. (United States v. Acevedo-Velez (Ct.Mil.App.1983) 17 M.J. 1, 2-6; 5 Am.Jur.2d, Arson, § 10, 807; 6A C.J.S., Arson, § 2, 219-224.)

In evaluating whether a crime under California law requires a specific or general intent, the California Supreme Court has held that unless the crime defines a specific intent, the offense is a general offense crime. In People v. Hood (1969) 1 Cal.3d 444, 456-457, 82 Cal.Rptr. 618, 462 P.2d 370, the California Supreme Court held: "When the definition of a crime consists of only the description of a particular act, without...