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SUMMARY OF FACTS AND CASE

On September 26, 1977, the defendant set fire to land near Orville Figgs' house in the Ponderosa Sky Ranch. (Appellant's Answer Brief ("AB") at pp. 4, 8-9.) He had been drinking that day. (Id. at p. 8.) He had been angry with Figgs. (See id. at p. 9.) The fire was not controlled for three days and burned around 2.5 to 2.8 miles of forest land. (Id. at p. 5.)

Defendant was charged with arson of forest land (Pen. Code, § 451, subd. (c)(1)), with an allegation of two prior strikes under the Three Strikes law. (§ 667, subd. (a)(1).) (AB at p. 1.) The first trial ended in a hung jury, but defendant was convicted on retrial. (See id. at pp. 1-2.) At the second trial, the trial court instructed the jury that "the fact that the defendant was voluntarily intoxicated is not a defense and does not relieve defendant of responsibility for the crime." (Ibid.) The Third District Court of Appeal reversed, holding that arson was amenable to a voluntary intoxication defense and that there was insufficient evidence to support one of the prior conviction findings. (Id. at pp. 2-3.) This Court granted review on November 17, 1999. (Id. at p. 3.)

SUMMARY OF ARGUMENT

The best solution to the intoxicated offender dilemma is still the proper application of People v. Hood. Although the specific intent doctrine created a more lenient approach to the intoxicated offender, this must not be confused with indulgence. Hood reflects the necessary compromise between sympathy and reprobation towards the intoxicated offender. That compromise must be analyzed in the context of the relative merits of these interests.

An examination of voluntary intoxication demonstrates that this defense should be applied sparingly. Voluntary intoxication poses a considerable threat to public safety, as there is a close relationship between intoxication and crime. The traditional explanation for this relationship, that intoxication lowers inhibitions, has come under strong attack. Other factors, including cultural norms about intoxication, help explain why the intoxicated commit so many crimes. Any loosening of the voluntary intoxication defense may thus create crime by signaling that the culture accepts otherwise criminal conduct by intoxicated individuals. Since intoxication in fact almost never negates mens rea, the list of specific intent crimes should be expanded very rarely, if ever.

Hood applies these principles. The decision moves the analytical focus away from talismanic terms in the definition of the crime, to the policy behind the specific intent doctrine. Under Hood, the voluntary intoxication defense is reserved for the crimes that have particularly complex mental states. In ambiguous cases, the effect of intoxication on human behavior is controlling. If intoxication makes the crime more likely to be committed, then it should not be given the specific intent label.

Although this Court initially followed Hood's path, it strayed somewhat in People v. Whitfield. Whitfield's holding that voluntary intoxication can negate implied malice murder was quickly abrogated by the Legislature. The swift overturning of Whitfield not only changed Whitfield's result, the decision's relatively lenient abstract approach to the intoxicated offender cannot stand. The Court has implicitly recognized this in its subsequent interpretation of Penal Code section 22, which follows the path set out in Hood.

Voluntary intoxication makes a person more likely to commit arson. Although classified as a property crime, modern research shows that arson is primarily an angry, impulsive act. This makes it much more like a violent crime than the typical property crime. The anger behind most arsons is often fueled by intoxication, as studies consistently find a strong relationship between substance abuse and arson. It would therefore be anomalous to allow voluntary intoxication to negate the angry, impulsive mental state of arson.

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. The primary precedent for treating arson as a specific intent crime, In re Stonewall F., has been rejected by every other court of appeal that has considered it outside the Third District.

Arson's statutory history supports the general intent argument. Although the arson statute had an explicit specific intent requirement, that language was dropped in the 1929 recodification of arson. Since then, arson's mental element has been "willful and malicious," with specific intent relegated to ancillary crimes.

The term "willfully and maliciously" does not support any specific intent. "Willful" has never meant more than a general intent to do the proscribed act. It requires no intent to violate the law, injure another, or acquire any advantage. "Malicious" is no better for the defendant. This specialized legal term, when used in the context of arson, means intentional as opposed to accidental. It is a general intent to set fire to a building.

History, an overwhelming weight of authority, and the relevant statutory text all support the conclusion that arson is a general intent crime. The fact that the lesser crime of reckless burning is not negated by voluntary intoxication does not change this conclusion. As Hood recognized, even though a crime cannot be committed recklessly, it can still be a general intent crime. Reckless burning's status as a lesser included offense of arson is no more relevant. For example, rape is a general intent crime, but the lesser offense of attempted rape is a specific intent crime.

The difference between arson and unlawfully setting a fire is accident. Arson's malice requirement ensures that the firing is intentional as opposed to accidental. Even if this is somewhat more than bare general intent, it is not the specific intent that can be negated by voluntary intoxication.

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