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People v. Hood (1969) 1 Cal.3d 444 is premised upon the common sense idea that while intoxication may be allowed to negate highly complex mental states, the relatively simpler, more impulsive mental elements should be immune to a voluntary intoxication defense. (See id. at p. 458.) Arson should not be amenable to a voluntary intoxication defense because it is usually committed in an impulsive, angry mental state that intoxication makes more likely.
Arson is an unusual crime. Although classified as a crime against property (see, e.g., Pen. Code, Part I, tit. XIII, chapter 1; 4 Blackstone, Commentaries (1st ed. 1769) p. 220), arson is similar to violent crimes in many ways. Unlike most property crimes, arson poses a real risk to safety. Fire injures and kills, even if the arsonist did not intend any physical injury. (See 4 Blackstone, supra, at p. 220; Pen. Code, § 451, subd. (a) (arson which causes great bodily injury); § 189 (arson as a predicate felony for felony murder); § 190.2, subd. (a)(17)(H) (arson special circumstance for capital murder).) If arson is a property crime, it is the most violent property crime.
The mental state of the typical arson offender reflects arson's violence. A typical arson is almost never the product of pyromania (see Leong, A Psychiatric Study of Persons Charged with Arson (1992) 37 J. of Forensic Sci. 1319, 1324 (hereinafter Leong); Ritchie & Huff, Psychiatric Aspects of Arsonists (1999) 44 J. of Forensic Sci. 733, 739 (hereinafter Ritchie & Huff)), nor calculated insurance fraud. Instead, "it is often an angry impulsive act, requiring no tools other than a match or lighter, and possibly a container of gasoline." (Ritchie & Huff, supra, at p. 733.)
The motivations for most arsons betray the crime's impulsiveness. As one study noted, revenge is the most common motive for arson. (See id. at p. 735.) Similarly, another study of arsonists noted "the high frequency of vindictiveness as the principle motivation behind the fire." (Leong & Silva, Revisiting Arson from an Outpatient Forensic Perspective (1999) 44 J. Forensic Sci. 558, 562.) A study of arsonists referred to a psychiatric hospital found that instead of pyromania, there appeared to be a preponderance of contextual issues suggesting conflict, revenge, and aggressive or retaliative motives behind the crimes. (Koson & Dvoskin, Arson: A Diagnostic Study (1982) 10 Bull. Am. Acad. Psychiatry L. 39, 46-47 (hereinafter Koson & Dvoskin); see also Ritchie & Huff, supra, 44 J. Forensic Sci. at p. 738 (only 1.3% pyromaniacs).)
Intoxication is a potent fuel for the aggression underlying most arsons. Studies consistently find a strong relationship between substance abuse and arson. A Finnish study found that 86% of the examined arsonists were under the influence of alcohol when the crime was committed. (Räsänen et al., The Mental State of Arsonists as Determined by Forensic Psychiatric Examinations (1995) 23 Bull. Am. Acad. Psychiatry L. 547, 549.) A recent American study found that over 55% of the arsonists studied were under the influence of alcohol at the time of their crime, and more than 60% were under the influence of some intoxicant. (Ritchie & Huff, supra, 44 J. Forensic Sci. at p. 737.) These are not isolated examples. Other studies show smaller, but comparable numbers of intoxicated arsonists. (See, e.g., Koson & Dvoskin, supra, 10 Bull. Am. Acad. Psychiatry L. at p. 42 (57.7% intoxicated on alcohol or drugs with alcohol during arson); Leong & Silva, supra, 44 J. Forensic Sci. at p. 560.)
Arson is now understood to be "cause[d] . . . by impulsivity and loss of control by an arsonist, . . . ." (Räsänen et al., supra, 23 Bull. Am. Acad. Psychiatry L. at p. 548.) Unsurprisingly, arsonists have a high level of alcohol dependence. (See ibid.) This is particularly true for recidivist arson where
"the vast majority were accounted for by people diagnosed as either primary or secondary alcoholics, highlighting the importance of alcohol as a contributing factor in chronic or repetitive arson." (Koson & Dvoskin, supra, 10 Bull. Am. Acad. Psychiatry L. at p. 47.)
The close relationship between intoxicants and arson is explained by the impulsive, angry nature of most arsons.
"Arson is one of the easiest crimes to commit on the spur of the moment, needing no weapon. Gasoline is easy to obtain, and it only takes seconds to light a match to a pile of clothes or a curtain." (Ritchie & Huff, supra, 44 J. Forensic Sci. at p. 733.)
Thus one researcher has hypothesized "that people who have problems with impulse control are more likely to both set fires and to commit other uncalculated crimes." (Ibid., italics added.) Alcohol and other intoxicants are powerful fuels for the impulsive aggression at the heart of most arsons. An intoxicated person is less capable of
"exercising judgment about the social consequences of his acts or controlling his impulses toward anti-social acts. He is more likely to act rashly and impulsively and to be susceptible to passion and anger." (People v. Hood (1969) 1 Cal.3d 444, 458.)
It would therefore be "anomalous" to allow voluntary intoxication to negate the angry, impulsive mental state of arson, since it is made much more likely by intoxication. (Cf. ibid.)
Because intoxication makes arson's mental state more likely, arson should not be labeled a specific intent crime without compelling textual or historical reasons. Neither reason is present. Arson is best described as a general intent crime. The phrase "willful and malicious" does not describe an "intent to do some further act or achieve an additional consequence . . . ." (People v. Hood (1969) 1 Cal.3d 444, 457.) Arson's relatively simple mental state is much closer to the common conception of general intent rather than specific intent. Since arson's history also reflects this reality, as it is traditionally considered a general intent crime, arson cannot be characterized as a specific intent crime.
The Court of Appeal rests its contrary holding on another decision out of the Third District, In re Stonewall F. (1989) 208 Cal.App.3d 1054. Stonewall F. is an example of the maxim that the specific intent issue should be limited to cases involving intoxicated offenders or mental defenses. (See People v. Hering (1999) 20 Cal.4th 440, 446-447.) In Stonewall F., two minors set fire to a pile of leaves near a school building. The fire spread to the school, causing considerable damage. The boys were convicted of arson (Pen. Code, § 451) and made wards of the juvenile court. (Stonewall F., 208 Cal.App.3d at p. 1057.)
The problem in Stonewall F. was that while the trial court found that the minors intentionally set fire to the leaves, it also found that they did not intend to burn the school building. The building was burned
" 'recklessly, within the meaning of 450(f) of the Penal Code' because the minors had consciously disregarded a substantial and unjustifiable risk that the school would catch fire . . . the standard of culpability for unlawfully causing a fire." (Pen. Code, § 452; Stonewall F., supra, 208 Cal.App.3d at p. 1059.)
Nevertheless the trial court found "that the minors had committed the more serious crime of arson." (Ibid.)
The Stonewall F. court appropriately recognized that the trial court's findings were inconsistent with its judgment. Since Penal Code section 452 created the less culpable crime of recklessly starting a fire, the arson statute required a more culpable mental state, which the court labeled "intentional." (Id. at p. 1067.) The Court concluded
"To 'willfully and maliciously' cause the burning of a structure under section 451, subdivision (c) must mean that the burning of the structure is the end in view of the wrongful conduct, to wit intended." (Ibid.)
This ruling is the base upon which the Court of Appeal's decision in the present case rests. The Court takes the Stonewall F. definition of arson's mental element and finds that this state of mind should be negated by voluntary intoxication. (See People v. Atkins (1999) 74 Cal.App.4th 466, 471-472, review granted November 11, 1999, S082662.) Whatever the merits of Stonewall F., that case cannot support that conclusion in the present case.
Stonewall F.'s characterization of arson's mental element is hotly contested in the Courts of Appeal. Although the Third District continues to follow Stonewall F., every other Court of Appeal that has considered Stonewall F. has rejected that decision. (See People v. Bolden (1996) 44 Cal.App.4th 707, 717, citing People v. Glover (1991) 233 Cal.App.3d 1476, 1483-1484; People v. Fry (1993) 19 Cal.App.4th 1334, 1339; People v. Lee (1994) 28 Cal.App.4th 659.) Since an intent to burn the relevant structure is not found in the statutory definition of arson, Stonewall F.'s holding is at best doubtful.
Right or wrong, Stonewall F.'s holding is also inapposite to the question of whether arson is a specific intent crime. Since the trial court in Stonewall F. found that
"the act was reckless, but not intentional . . . any discussion of whether an intent not found to have existed was a 'general' or 'specific' intent can only have been and was, an archetypical example of dicta." (People v. Lopez (1993) 13 Cal.App.4th 1840, 1845, italics in original.)
Even general intent crimes must have some intent requirement. But intent does not automatically support the voluntary intoxication defense. Assault requires some intent, but whether that intent is an intent to commit a battery or an intent to do a violent act, assault remains a general intent crime. (Hood, supra, 1 Cal.3d at pp. 457-458.) Something more, such as an intent to do an additional act or achieve some future consequence (see id. at p. 457) coupled with compelling policy considerations (see id. at p. 458; People v. Rocha (1971) 3 Cal.3d 893, 897-898) is needed to support the specific intent label. While the court below should have followed this analytical path, it instead paralleled Stonewall F.'s reasoning, and thus came to the wrong conclusion.
People v. Glover, supra, provides the proper framework for analyzing arson's mental element. Invoking Stonewall F., the defendant in Glover claimed that arson required a specific intent to burn the structure, which she claimed the evidence did not support. (Glover, supra, 233 Cal.App.3d at p. 1479.) The Glover Court rejected defendant's argument on the grounds that arson was a general intent crime, and that there was substantial evidence of specific intent. (Ibid.) The Court's rejection of defendant's claim was based on the history of the arson statute, its text, and other courts' interpretation of arson's mental element.
The Glover Court began its analysis with the statutory history of California's arson law. Before 1872, the arson statute contained no language supporting specific intent. (See id. at p. 1480; Stats. 1856, ch. 110, §§ 4-7, pp. 131-132.) This changed with the adoption of the 1872 Penal Code, "arson is the willful and malicious burning of a building, with the intent to destroy it." (Pen. Code, former § 447 (1872).) This required a specific intent to destroy the property that was burned. (People v. Mooney (1899) 127 Cal. 339, 340.) When arson was recodified in 1929, the new primary arson statutes dropped the specific intent requirement, leaving "willfully and maliciously" as the only mental element. (See Glover, supra, 233 Cal.App.3d at p. 1480; former Pen. Code, §§ 447a, 448a, 449a (Stats. 1929, ch. 25, §§ 1, 2, 3).) Other arson-related crimes retained a specific intent requirement, however. (Glover, supra, 233 Cal.App.3d at pp. 1480-1481; former Pen. Code, §§ 450a, 451a (Stats. 1929, ch. 25 §§ 4, 5, pp. 46-47).) This basic structure, with arson defined as willful and malicious, leaving specific intent to related crimes, has remained throughout the various reformulations of the arson statutes. (See Glover, 233 Cal.App.3d at pp. 1480-1481.) When the Legislature desired for arson to have a specific intent requirement, it did so explicitly, in the 1872 Penal Code. Since the 1929 recodification, specific intent has remained separate from the basic definition of arson. (See id. at p. 1481; Pen. Code, § 451, subd. (d) (burning of one's own property not arson "of property" absent an intent of defraud); § 451.5 (aggravated arson); § 453 (possession or manufacture of combustible or incendiary device for malicious use); § 455 (placement of flammable material is attempt only if specific intent).)
Outside of the Stonewall F. line, the courts have not expanded arson's mental element. The Glover Court noted this Court's equivocation, calling arson a specific intent crime in dicta in one case, while dicta in a later case labeled it a general intent crime. (233 Cal.App.3d at p. 1481, citing People v. Ashley (1954) 42 Cal.2d 246, 264, n. 4 (specific intent) and People v. Nichols (1970) 3 Cal.3d 150, 165 (general intent).) The Courts of Appeal have been less equivocal, consistently treating arson as a general intent crime until Stonewall F. (See Glover, 233 Cal.App.3d at pp. 1481-1482.) This followed the practice of other jurisdictions which
"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." (Id. at p. 1482.)
Finally, the Glover court concluded that the statutory text counseled against finding any specific intent. The term "willfully" does not require any specific intent. (See id. at p. 1483.) This follows from the Penal Code definition of the term:
" 'willfully' when applied to the intent with which an act is done or committed, implies simply a purpose or willingness to commit the act, or make the omission referred to. It does not require any intent to violate law, or to injure another, or to acquire any advantage." (Pen. Code, § 7, subd. 1, italics added.)
Willful
"in a penal statute, require[s] only that the illegal act or omission occur 'intentionally,' without regard to motive or ignorance of the act's prohibited character." (Hale v. Morgan (1978) 22 Cal.3d 388, 396.)
"Willfully implies no evil intent; 'it implies that a person knows what he is doing,' intends to do what he is doing, and is a free agent." (People v. Bell (1996) 45 Cal.App.4th 1030, 1043, quoting Castro v. Superior Court (1970) 9 Cal.App.3d 675, 701-702, internal quotation marks omitted.) Therefore "willfully and knowingly" usually does not imply a specific intent absent other statutory language that requires "an intent to do a future act or achieve a future consequence." (Ibid.)
"Malicious" also does not transform arson into a specific intent crime. As the Glover court noted, that there is ample authority for the position that "a defendant who acts maliciously need not possess a specific intent." (233 Cal.App.3d at p. 1483, citing People v. Froom (1980) 108 Cal.App.3d 820, 826; People v. Bohmer (1975) 46 Cal.App.3d 185, 190-191; People v. Garcia (1970) 5 Cal.App.3d 15, 18-19.) As with "willfully," the Penal Code makes clear that "maliciously" requires no specific intent in the context of arson.
" 'Maliciously' imports a wish to vex, defraud, annoy, or injure another person or an intent to do a wrongful act, established either by proof or presumption of law.' " (Pen. Code, § 450, subd. (e).)
This is the same definition found in Penal Code section 7, subdivision 4, except for the addition of "defraud." (Review of Selected 1979 California Legislation (1980) 11 Pac. L.J. 412, 413.)
The word "malice" is used in various ways by the criminal law. Its meaning for the purpose of defining murder (see Pen. Code, §§ 187, 188) is very different from its everyday meaning or how malice is defined in other crimes. (See People v. Conley (1966) 64 Cal.2d 310, 320, overruled on other grounds in People v. Saille (1991) 54 Cal.3d 1103, 1114; Hobson, Reforming California's Homicide Law (1996) 23 Pepp. L.Rev. 495, 496-497.) The definition of malice found in the arson law does not involve any specific intent. The one case before Stonewall F. that derived specific intent from arson's malice requirement (People v. McCree (1954) 128 Cal.App.2d 196, 202) is wrong, and has not been followed. (See Bohmer, supra, 46 Cal.App.3d at p. 191; People v. Tanner (1979) 95 Cal.App.3d 948, 955-956.) As Justice Kaus understood, in contrast to McCree, Stonewall F., and the decision below,
"[i]t has been consistently held, however, that 'When related to the crime of arson, the word 'malice' denotes nothing more than a deliberate and intentional firing of a building, . . . as contrasted with an accidental or unintentional ignition thereof; in short a fire of incendiary origin.' " (Tanner, supra, 95 Cal.App.3d at p. 955, quoting People v. Andrews (1965) 234 Cal.App.2d 69, 75.)
This is a "general intent to set fire to the building." (Tanner, 95 Cal.App.3d at p. 956, italics added.)
Glover's conclusion, that arson is a general intent crime (233 Cal.App.3d at pp. 1483-1484), is inescapable. History, an overwhelming weight of authority, and most importantly, the relevant statutory text, all show that arson's mental element should not be negated by voluntary intoxication.
Defendant, the court below, and Stonewall F. attempt to infer a specific intent for arson from the reckless burning crime. Penal Code section 452 states:
"Any person is guilty of unlawfully causing a fire when he recklessly sets fire to or burns or causes to be burned any structure, forest land or property."
Recklessly is defined as
"aware of and consciously disregards a substantial and unjustifiable risk that his or her act will set fire to, burn, or cause to burn a structure, forest land, or property." (Pen. Code, § 450, subd. (f).)
Disregarding the risk must be a "gross deviation" from the reasonable person standard, and recklessness cannot be negated by voluntary intoxication. (See ibid.)
Since arson is the more serious crime, it should have a more culpable mental element than the recklessness of Penal Code section 452. From this common sense proposition it is inferred that the more culpable mental element must be a form of specific intent. (See AB at pp. 39-40, 52-53; Stonewall F., supra, 208 Cal.App.3d at pp. 1066-1067.) This is a non sequitur. The logic only supports an inference of general intent, not specific intent.
Although a statute must be interpretative in the context of its legislative scheme (see People v. Valladoli (1996) 13 Cal.4th 590, 599), this particular inference does not support rewriting the definition of arson. Whether arson is a specific intent crime must be answered in the text of the arson statute, not by supplying an allegedly missing element to an idealized statutory scheme imagined by defendant or the Third District. The fact that a crime requires a greater mental state than recklessness does not transform it into a specific intent crime, rather than general intent. Thus, while assault with a deadly weapon (Pen. Code, § 245) cannot be committed recklessly, "it does not follow, however, that assault with a deadly weapon should be classified as a specific intent crime." (People v. Rocha (1971) 3 Cal.3d 893, 898.) The fact that reckless burning is a lesser included offense of arson is equally irrelevant. Rape is a general intent crime (see People v. Osband (1996) 13 Cal.4th 622, 685), attempted rape, a lesser included offense of rape (see People v. Soto (1999) 21 Cal.4th 512, 518) is a specific intent crime. (See People v. Marshall (1997) 15 Cal.4th 1, 36.)
If the Legislature meant for arson to have a specific intent it would have done so explicitly, instead of relying on the courts to supply a missing mental element not found in the statutory text. People v. Mooney, supra, demonstrates this point. That case involved an arson prosecution under the 1872 arson statute, which contained an "intent to destroy" in its text. (See 127 Cal. at p. 340.) The jury instruction referred to the willful and malicious element of arson, but contained no direct reference to any specific intent to burn or destroy. (Ibid.)
"The words 'willfully, unlawfully, feloniously, and maliciously' were properly used in the information, but they are not sufficient. Such words import only that criminal intent which is a necessary part of every felony or other crime, but they do not necessarily include the specific purpose to destroy the building which is an element of the crime of arson." (Ibid., italics added.)
The fact that the Penal Code specifically excludes voluntary intoxication from negating the recklessness mental element of unlawfully causing a fire (Pen. Code, §§ 450, subd. (f), 452) does not change the analysis. Unlawfully causing a fire was a new crime added by the 1979 recodification of arson. (See Review of Selected 1979 California Legislation (1980) 11 Pac. L.J. 412, 414.) Since this crime had no interpretive history, the Legislature chose to inform the courts that this crime was not to be negated by any intoxication-based defense. This was unnecessary for arson because courts traditionally did not allow voluntary intoxication to negate arson's mental element of willful and malicious. (See supra at p. 25; and also id. at 412, n. 29 (noting similar rejection of diminished capacity defense).) Section 450's definition of recklessness is simply too slender a reed to support the contrary weight of legislative history, prior judicial interpretation, and text.
Confusion over arson and voluntary intoxication is understandable. Arson is prone to proof by circumstantial evidence. (See People v. Beagle (1972) 6 Cal.3d 441, 449.)(4) Therefore factors such as defendant's motive can be very important to determining his or her culpability for a burning. (See People v. Green (1983) 146 Cal.App.3d 369, 376-377.) The fact that one can infer defendant's intent from his or her conduct does not, however, transform general intent into specific intent. (People v. Hood, supra, 1 Cal.3d at pp. 458-459, fn. 7.)
The difference between arson and unlawfully setting a fire is accident. Arson's malice requirement ensures that the firing was intentional, as opposed to the reckless accidents that create liability under Penal Code section 452. (See Tanner, supra, 95 Cal.App.3d at p. 955 (intention v. accidental).) This intent is not an intent to burn the relevant structure or property. (See People v. Fry (1993) 19 Cal.App.4th 1334, 1339.) Even if this intent is somewhat more than bare general intent, it is not the specific intent that can be negated by voluntary intoxication. (See id. at pp. 1338-1339.) "Willful and malicious" contains no "intent to do a further act or achieve a future consequence." (See Hood, supra, 1 Cal.3d at pp. 456-457.)
In addition to being good law, this conclusion makes good sense. Arson typically is a crime of violence directed at property. (See Part II, supra.) It is the type of crime that is much more likely committed by the intoxicated offender, making it a prime candidate for the general intent label. (See supra at p. 11.) The fact that most jurisdictions agree with this approach reinforces the wisdom of the conclusion of every Court of Appeal outside the Third District. (See Glover, supra, 233 Cal.App.3d at p. 1482.) Arson's mental element should not be subject to negation by the alcohol that fuels its violent fire.
The decision of the Court of Appeal for the Third District should be reversed.
August 24, 2000
Respectfully Submitted,
Charles L. Hobson
Attorney for Amicus Curiae|
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4. The main holding of Beagle was abrogated by Proposition 8.
(See Cal. Const., art. I, § 28, subd. (f).)