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Full Opinion
The PEOPLE, Plaintiff and Respondent, Robert Nelson ATKINS, Defendant and Appellant.
Supreme Court of California.
*740 Victor Blumenkrantz, Berkeley, under appointment by the Supreme Court, for Defendant and Appellant.
Daniel E. Lungren and Bill Lockyer, Attorneys General, George Williamson and David P. Druliner, Chief Assistant Attorneys General, Robert R. Anderson, Assistant Attorney General, Mathew Chan, Carlos A. Martinez and Kelly E. LeBel, Deputy Attorneys General, for Plaintiff and Respondent.
Kent S. Scheidegger and Charles L. Hobson, for Criminal Justice Legal Foundation as Amicus Curiae on behalf of Plaintiff and Respondent.
*739 CHIN, J.
Is evidence of voluntary intoxication admissible, under Penal Code section 22, on the issue of whether defendant formed the required mental state for arson (Pen.Code, § 451)?[1] We conclude that such evidence is not admissible because arson is a general intent crime. Accordingly, we reverse the judgment of the Court of Appeal.
FACTS AND PROCEDURAL HISTORY
On September 26, 1997, defendant told his friends that he hated Orville Figgs and was going to burn down Figgs's house.
On the afternoon of September 27, defendant and his brother David drove by Figgs's home on the Ponderosa Sky Ranch. Defendant "flipped the bird" at Figgs as they passed by.
Later that day, around 5:00 p.m., a neighbor saw David drive a white pickup truck into the Ponderosa Sky Ranch canyon, but could not tell if he had a passenger. Around 9:00 p.m., the same neighbor saw the pickup truck drive out of the canyon at a high rate of speed. A half-hour later, a fire was reported. Shortly after 10:00 p.m., Figgs was awakened by a neighbor. Because the fire was rapidly approaching his house, Figgs set up a fire line. The fire came within 150 feet of his house.
At 9:00 or 9:30 p.m., one of defendant's friends saw defendant at David's apartment. He was angrily throwing things around. When asked if defendant was heavily intoxicated, the friend replied, "Yes. Agitated, very agitated."
The county fire marshall, Alan Carlson, responded to the fire around 1:30 a.m. and saw a large fire rapidly spreading in the canyon below the ranch. He described fire conditions on that night as "extreme." Both the weather and the vegetation were particularly dry. The wind was blowing from 12 to 27 miles per hour, with gusts up to 50 miles per hour. The canyon had heavy brush, trees, grass, and steep sloping grades. The fire could not be controlled for three days and burned an area from 2.5 to 2.8 miles long.
The fire marshall traced the origin of the fire to an approximately 10 foot-square area that was completely burned and smelled of "chainsaw mix," a combination of oil and gasoline. A soil sample taken from that area tested positive for gasoline. *741 About 40 feet away, the marshall found defendant's wallet, which was near a recently opened beer can, and tire tracks. He also found a disposable lighter nearby and two more beer cans in other parts of the canyon. All the cans had the same expiration date.
Several days later, defendant spoke with the fire marshall. After waiving his Miranda rights [Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694), defendant told the marshall that he and his brother had spent much of the day drinking. They then drove in David's white pickup to the Ponderosa Sky Ranch canyon, where they drank some more and stayed between three and one-half to five hours. Defendant saw that the area was in poor condition and decided to burn some of the weeds. His family had once lived there. He pulled out the weeds, placed them in a small pile in a cleared area, retrieved a plastic gasoline jug from David's truck, and from the jug poured "chainsaw mix" on the pile of weeds. Defendant put the jug down a few feet away and lit the pile of weeds with a disposable lighter. The fire quickly spread to the jug and got out of hand. He and David tried to put the fire out, unsuccessfully. They panicked and fled while the jug was still burning. Defendant told the marshal that he meant no harm, claimed the fire was an accident, but admitted that he and his family had hard feelings with the Figgs family.
The marshall testified that the fire had not been started in a cleared area. The area was covered with vegetation, and there was no evidence that the fire started accidentally during a debris burn or that someone had tried to put it out. The marshall opined that the fire was intentionally set.
An information charged defendant with arson of forest land. (§ 451, subd. (c).) The trial court instructed on arson (§ 451, subd. (c))[2] and on the lesser offenses of arson to property (§ 451, subd. (d)), unlawfully causing a fire of forest land (§ 452, subd. (c)), and misdemeanor (§ 452, subd. (d)) unlawfully causing a fire of property. It described arson and all lesser offenses as general intent crimes and further instructed that voluntary intoxication is not a defense to arson and the lesser crimes and does not relieve defendant of responsibility for the crime. The jury found defendant guilty as charged.
Defendant appealed, arguing that evidence of voluntary intoxication was admissible to show that he lacked the requisite mental state for arson. The Court of Appeal agreed. It reasoned that, as defined in its prior decisions of In re Stonewall F. (1989) 208 Cal.App.3d 1054, 256 Cal.Rptr. 578 (Stonewall F.) and People v. Fabris (1995) 31 Cal.App.4th 685, 37 Cal.Rptr.2d 667 (Fabris), the mens rea for arson is the intent to set fire to or burn or cause to be burned forest land, a specific mental state, as to which voluntary intoxication evidence is admissible under section 22, subdivision (b). The court reversed because the instruction that voluntary intoxication was not a defense to arson "denied defendant the opportunity to prove he lacked the required mental state."
We granted the People's petition for review on the issue of whether evidence of voluntary intoxication is admissible, under section 22, to negate the required mental state for arson.
*742 DISCUSSION
Section 22 provides, as relevant: "(a) No act committed by a person while in a state of voluntary intoxication is less criminal by reason of his or her having been in that condition. Evidence of voluntary intoxication shall not be admitted to negate the capacity to form any mental states for the crimes charged, including, but not limited to, purpose, intent, knowledge, premeditation, deliberation, or malice aforethought, with which the accused committed the act.
"(b) Evidence of voluntary intoxication is admissible solely on the issue of whether or not the defendant actually formed a required specific intent, or, when charged with murder, whether the defendant premeditated, deliberated, or harbored express malice aforethought."
Evidence of voluntary intoxication is inadmissible to negate the existence of general criminal intent. (People v. Whitfield (1994) 7 Cal.4th 437, 448, 27 Cal. Rptr.2d 858, 868 P.2d 272.) In People v. Hood (1969) 1 Cal.3d 444, 82 Cal.Rptr. 618, 462 P.2d 370 (Hood), we first addressed the question whether to designate a mental state as a general intent, to prohibit consideration of voluntary intoxication or a specific intent, to permit such consideration. There, we held that intoxication was relevant to negate the existence of a specific intent, but not a general intent, and that assault is a general intent crime for this purpose. (Id. at pp. 455-459, 82 Cal.Rptr. 618, 462 P.2d 370.) We stated:
"The distinction between specific and general intent crimes evolved as a judicial response to the problem of the intoxicated offender. That problem is to reconcile two competing theories of what is just in the treatment of those who commit crimes while intoxicated. On the one hand, the moral culpability of a drunken criminal is frequently less than that of a sober person effecting a like injury. On the other hand, it is commonly felt that a person who voluntarily gets drunk and while in that state commits a crime should not escape the consequences. (See Hall, General Principles of Criminal Law (2d ed.1960) p. 537.)
"Before the nineteenth century, the common law refused to give any effect to the fact that an accused committed a crime while intoxicated. The judges were apparently troubled by this rigid traditional rule, however, for there were a number of attempts during the early part of the nineteenth century to arrive at a more humane, yet workable, doctrine. The theory that these judges explored was that evidence of intoxication could be considered to negate intent, whenever intent was an element of the crime charged. As Professor Hall notes, however, such an exculpatory doctrine could eventually have undermined the traditional rule entirely, since some form of mens rea is a requisite of all but strict liability offenses. (Hall, Intoxication and Criminal Responsibility, 57 Harv.L.Rev. 1045, 1049.) To limit the operation of the doctrine and achieve a compromise between the conflicting feelings of sympathy and reprobation for the intoxicated offender, later courts both in England and this country drew a distinction between so-called specific intent and general intent crimes." (Hood, supra, 1 Cal.3d at pp. 455-456, 82 Cal.Rptr. 618, 462 P.2d 370, fn. omitted.)
Although we noted in Hood that specific and general intent have been notoriously difficult terms to define and apply, we set forth a general definition distinguishing the two intents: "When the definition of a crime consists of only the description of a particular act, without reference to intent to do a further act or achieve a future consequence, we ask whether the defendant intended to do the proscribed act. This intention is deemed to be a general criminal intent. When the definition refers to defendant's intent to do some further act or achieve some additional consequence, the crime is deemed to be one of specific intent." (Hood supra, 1 Cal.3d at pp. 456-457, 82 Cal.Rptr. 618, *743 462 P.2d 370.) The basic framework that Hood established in designating a criminal intent as either specific or general for purposes of determining the admissibility of evidence of voluntary intoxication has survived. (People v. Mendoza (1998) 18 Cal.4th 1114, 1128, 77 Cal.Rptr.2d 428, 959 P.2d 735.)
Defendant argues that arson requires the specific intent to burn the relevant structure or forest land, a mental state that may be negated by evidence of voluntary intoxication. The People argue that arson is a general intent crime with a mental state that cannot be negated by such evidence. The Courts of Appeal have disagreed on the intent requirement for arson.
In Stonewall F., supra, 208 Cal.App.3d 1054, 256 Cal.Rptr. 578, two minors set fire to a pile of leaves near a school building. The fire spread to the school, causing considerable damage. The juvenile court found that the minors intentionally set fire to the leaves, but that they did not intend to burn the school building. The court further found that the fire had been set recklessly, within the meaning of section 450, subdivision (f), and that the minors had also committed the more serious offense of arson. (§ 451.) The Court of Appeal, Third Appellate District, reasoned that, since section 452 created the less culpable crime of recklessly starting a fire (requiring a subjective awareness of the risk), the arson statute required a more culpable mental state "transcending recklessness," which the court labeled "intentional." (208 Cal.App.3d at p. 1067, 256 Cal.Rptr. 578.) It 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.) In light of the juvenile court's factual findings, the Court of Appeal reduced the finding from arson to the lesser offense of recklessly causing a fire.
In People v. Glover (1991) 233 Cal. App.3d 1476, 1479-1484, 285 Cal.Rptr. 362 (Second App. Dist., Div. Five) (Glover), the defendant invoked Stonewall F., claiming that the evidence did not support a specific intent to burn the relevant structure, a requirement for arson. The Glover court characterized Stonewall F. `s holding to be that arson is a specific intent crime (Glover, supra, at pp. 1479-1480, 285 Cal. Rptr. 362), but disagreed. It held that arson is a general intent crime, that it was not necessary for the evidence to show that the defendant possessed a specific intent to set fire to the apartment that had burned, and that it was required only that the acts that caused the apartment to burn were done willfully and maliciously. (Glover, supra, at pp. 1479, 1483-1484, 285 Cal.Rptr. 362.) Other Courts of Appeal have agreed with Glover. (People v. Lee (1994) 28 Cal.App.4th 659, 664, 33 Cal. Rptr.2d 782 [Second App. Dist., Div. Six]; People v. Fry (1993) 19 Cal.App.4th 1334, 1338-1339, 24 Cal.Rptr.2d 43 [Sixth App. Dist.][3]; People v. Lopez (1993) 13 Cal. App.4th 1840, 1845-1846, 17 Cal.Rptr.2d 317 [Fourth App. Dist., Div. One]; see People v. Bolden (1996) 44 Cal.App.4th 707, 717, 52 Cal.Rptr.2d 485 [Second App. Dist., Div. Seven; disagreeing with Stonewall F., but refraining "from detailing our own views" because issue necessarily resolved *744 under other, properly given instructions].)
In Fabris, the Third Appellate District revisited the issue and reaffirmed its decision in Stonewall F. (Fabris, supra, 31 Cal.App.4th at p. 693, 37 Cal.Rptr.2d 667.) Applying the general test in Hood for distinguishing between general and specific intent, the court acknowledged that arson can be characterized as a general intent crime. (Fabris, at p. 697, 37 Cal.Rptr.2d 667.) It held that the trial court did not prejudicially err in describing arson, as a general intent crime as long as "the jury is correctly appraised of the elements of arsonthat the intent required is to set fire to or cause a structure to burnand there is no issue of voluntary intoxication...." (Id. at p. 698, 37 Cal.Rptr.2d 667.) Because intoxication was not an issue in Fabris, as it was with Stonewall F., the court "impl[ied] no view whether arson, as defined in section 451, is a `specific intent crime' for purposes of section 22." (Fabris, supra, 31 Cal.App.4th at p. 696, fn. 10, 37 Cal.Rptr.2d 667.)
In this case, the Third Appellate District addressed the issue that was left unanswered in Fabris. It held that the mens rea for arson, as defined in Stonewall F. and Fabristhe intent to set fire to or burn or cause to be burned forest landis a "required specific intent" for which evidence of voluntary intoxication is admissible under section 22, subdivision (b). The Court of Appeal continued to characterize arson as a general intent crime, but relied on our opinion in People v. Mendoza, supra, 18 Cal.4th at page 1131, 77 Cal. Rptr.2d 428, 959 P.2d 735 in concluding that the intent required for section 451 arson "`is closely akin to Hood's definition of specific intent, which requires proof that the defendant acted with a specific and particularly culpable mental state.'"
We agree with the People that arson requires only a general criminal intent and that the specific intent to set fire to or burn or cause to be burned the relevant structure or forest land is not an element of arson.
"Our analysis must ... begin with an examination of the statutory language describing the proscribed conduct, including any express or implied reference to a mental state." (People v. Hering (1999) 20 Cal.4th 440, 445, 84 Cal.Rptr.2d 839, 976 P.2d 210.) "A person is guilty of arson when he or she willfully and maliciously sets fire to or burns or causes to be burned or who aids, counsels, or procures the burning of, any structure, forest land, or property." (§ 451.) "Maliciously" is defined in the arson chapter as "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." (§ 450, subd. (e); see also § 7, subd. 4.) "Willfully" is not defined in the arson chapter, but in section 7, subdivision 1: "The word `willfully,' when applied to the intent with which an act is done or omitted, 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."
"[T]he terms `willful' 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." (Hale v. Morgan (1978) 22 Cal.3d 388, 396, 149 Cal.Rptr. 375, 584 P.2d 512 and cases cited therein.) "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.]'" (People v. Bell (1996) 45 Cal.App.4th 1030, 1043, 53 Cal. Rptr.2d 156; see also In re Trombley (1948) 31 Cal.2d 801, 807, 193 P.2d 734.) 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." (People v. Bell, supra, 45 Cal.App.4th at p. 1043, 53 Cal.Rptr.2d 156; see also People v. Sargent *745 (1999) 19 Cal.4th 1206, 1215, 1219, 1224, 81 Cal.Rptr.2d 835, 970 P.2d 409; People v. Colantuono (1994) 7 Cal.4th 206, 213-215, 26 Cal.Rptr.2d 908, 865 P.2d 704.)
As with "willfully," the statutory definition of "maliciously," in the context of arson, requires no specific intent. Section 450, subdivision (e) defines "maliciously" in terms of the arson statutes as "a wish to vex, defraud, annoy, or injure another person, or an intent to do a wrongful act...." This is the same definition found in section 7, subdivision 4, except for the addition of "defraud." Outside the context of arson, the term "malicious," as used in section 7, subdivision 4, does not transform an offense into a specific intent crime. (See People v. Laster (1997) 52 Cal.App.4th 1450, 1468, 61 Cal.Rptr.2d 680 [willful and malicious discharge of firearm from motor vehicle is a general intent crime]; People v. Jischke (1996) 51 Cal.App.4th 552, 556, 59 Cal.Rptr.2d 269 [willful and malicious discharge of firearm at inhabited dwelling house is a general intent crime]; People v. Sekona (1994) 27 Cal.App.4th 443, 448, 453, 32 Cal.Rptr.2d 606 [mayhem, defined as unlawful and malicious, is a general intent crime]; People v. Froom (1980) 108 Cal.App.3d 820, 826, 166 Cal.Rptr. 786 [diminished capacity evidence inadmissible on charge of willful and malicious shooting at inhabited dwelling]; People v. Williams (1980) 102 Cal.App.3d 1018, 1029, 162 Cal.Rptr. 748 [the words "willfully" and "maliciously" are generally expressions of general criminal intent when used in a penal statute]; People v. Bohmer (1975) 46 Cal.App.3d 185, 190-191, 120 Cal.Rptr. 136 [malicious placement of obstruction on railroad track is a general intent crime].) Nor does the term "malicious" transform an offense into a specific intent crime in the context of arson. (People v. Nance (1972) 25 Cal.App.3d 925, 930, 102 Cal. Rptr. 266 [arson does not require a specific mental state which would permit defense of diminished capacity]; see also People v. Green (1983) 146 Cal.App.3d 369, 379, 194 Cal.Rptr. 128; People v. Tanner (1979) 95 Cal.App.3d 948, 955-956, 157 Cal.Rptr. 465 [citing Nance with approval]; People v. Williams (1971) 19 Cal.App.3d 339, 345-346, 96 Cal.Rptr. 848; People v. Andrews (1965) 234 Cal.App.2d 69, 75, 44 Cal.Rptr. 94.)
As relevant here, the proscribed acts within the statutory definition of arson are to: (1) set fire to; (2) burn; or (3) cause to be burned, any structure, forest land, or property. (§ 451.) Language that typically denotes specific intent crimes, such as "with the intent" to achieve or "for the purpose of achieving some further act, is absent from section 451. (People v. Hering, supra, 20 Cal.4th at p. 446, 84 Cal.Rptr.2d 839, 976 P.2d 210.) "A crime is characterized as a `general intent' crime when the required mental state entails only an intent to do the act that causes the harm; a crime is characterized as a `specific intent' crime when the required mental state entails an intent to cause the resulting harm." (People v. Davis (1995) 10 Cal.4th 463, 518-519, fn. 15, 41 Cal.Rptr.2d 826, 896 P.2d 119.) The statute does not require an additional specific intent to burn a "structure, forest land, or property," but rather requires only an intent to do the act that causes the harm. This interpretation is manifest from the fact that the statute is implicated if a person "causes to be burned ... any structure, forest land, or property." (People v. Hiltel (1901) 131 Cal. 577, 579-580, 63 P. 919 [defendant "caused" building to be burned even though he set fire to different structure].) Thus, the intent requirement for arson fits within the Hood definition of general intent, i.e., the description of the proscribed act fails to refer to an intent to do a further act or achieve a future consequence. (Hood supra, 1 Cal.3d at pp. 456-457, 82 Cal.Rptr. 618, 462 P.2d 370.)
The statutory history of California's arson law further indicates that the Legislature did not consider arson, as defined in section 451, a specific intent crime. The common law crime of arson was the "`wilful *746 and malicious burning of the dwelling house of another.'" (In re Bramble (1947) 31 Cal.2d 43, 48, 187 P.2d 411; see United States v. Doe (9th Cir.1998) 136 F.3d 631, 635 [common law crime of arson is a general intent crime].) Before 1872, the arson statute contained no language supporting specific intent as an element of the offense, but rather paralleled the common law crime of arson as a "wilful and malicious burning." (Stats. 1856, ch. 110, §§ 4-5, p. 132; In re Bramble, supra, 31 Cal.2d at pp. 48-49, 187 P.2d 411.) This changed with the adoption of the Penal Code in 1872, which provided that "[a]rson is the willful and malicious burning of a building, with intent to destroy it." (Former § 447, enacted 1872 and repealed by Stats.1929, ch. 25, § 6, p. 47; In re Bramble, supra, 31 Cal.2d at p. 49, 187 P.2d 411.) That offense required a specific intent to destroy the property that was burned. (People v. Mooney (1899) 127 Cal. 339, 340, 59 P. 761; People v. Fong Hong (1898) 120 Cal. 685, 687, 53 P. 265.)
When arson was recodified in 1929, section 447 was repealed (Stats.1929, ch. 25, § 6, p. 47), and the new primary arson statutes (former §§ 447a, 448a, & 449a) dropped the specific intent requirement, leaving "wilfully and maliciously" as the only mental element. (Stats.1929, ch. 25, §§ 1-3, p. 46; see Glover, supra, 233 Cal. App.3d at p. 1480 & fn. 3, 285 Cal.Rptr. 362 [setting forth statutory language of former §§ 447a, 448a, & 449a].) Other arson-related crimes (former §§ 450a & 451a), as part of the 1929 enactment, contained a specific intent requirement. (Stats.1929, ch. 25, § 4, p. 46.) Former section 450a prohibited arson when done "with intent to injure or defraud the insurer." Former section 451a prohibited the placing of a "flammable, explosive or combustible material" in a building "with intent to eventually wilfully and maliciously set fire to or burn same." (Stats.1929, ch. 25, § 5, p. 47; see Glover, supra, 233 Cal.App.3d at pp. 1480-1481 & fn. 4, 285 Cal.Rptr. 362 [sets forth statutory language of former §§ 450a & 451a].)
In 1979, sections 447a, 448a, 449a, and 450a were repealed and section 451 was added to the Penal Code. (Stats.1979, ch. 145, §§ 1-3, 7, p. 338.) The basic language in former sections 447a, 448a, and 449a, "Any person who wilfully and maliciously sets fire to or burns or causes to be burned ...," was retained in section 451. (See Stats.1979, ch. 145, § 8, p. 338.) Also, section 451a was amended and renumbered; it is currently section 455. (Stats. 1979, ch. 145, § 9, p. 339.)
Since the 1929 recodification, specific intent has remained separate from the basic definition of arson as willful and malicious. (See §§ 451, subd. (d) [burning of one's own property not arson "of property" absent an intent to defraud] 451.5 [aggravated arson], 453 [possession or manufacture of combustible material or incendiary device with intent to willfully and maliciously use], 455 [placement of flammable material in or about structure is an attempt only when done with intent to eventually willfully and maliciously set fire to it].)
Also, as part of the 1979 recodification of the arson statutes, the Legislature enacted section 452, which created the crime of recklessly causing a fire, and section 450, which defined various terms, including "recklessly" (§ 450, subd. (f)) and "maliciously" (§ 450, subd. (e)).[4] (Stats.1979, ch. 145, §§ 6, 11, pp. 338-339.) Section 452 provides, in pertinent part, that, "A 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." Section 450, subdivision (f) states: "`Recklessly' means a person is 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. *747 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. A person who creates such a risk but is unaware thereof solely by reason of voluntary intoxication also acts recklessly with respect thereto."
Defendant reasons that, since arson is the more serious crime, it should have a more culpable mental state than the recklessness requirement of section 452. From that premise, he infers that the more culpable mental state of arson must be a specific intent. However, the lesser offense requires mere recklessness; arson requires the general intent to perform the criminal act. This is a continuum that does not support specific intent. The fact that a crime requires a greater mental state than recklessness does not mean that it is a specific intent crime, rather than a general intent crime. (People v. Rocha (1971) 3 Cal.3d 893, 898, 92 Cal.Rptr. 172, 479 P.2d 372 [although assault cannot be committed recklessly, "[i]t does not follow, however, that assault with a deadly weapon should be classified as a specific intent crime"].) The fact that reckless burning is a lesser offense of arson is also not dispositive. For example, attempted rape, a specific intent crime, is a lesser included offense of rape, a general intent crime. (People v. Osband (1996)