People v. Nguyen CA4/1

Filed 3/28/22 P. v. Nguyen CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Calif ornia Rules of Court, rule 8.1115(a), prohibits courts and parties f rom citing or relying on opinions not certif ied f or publication or
ordered published, except as specif ied by rule 8.1115(b). This opinion has not been certif ied f or publication or or dered published f or
purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D078477

Plaintiff and Respondent,

v. (Super. Ct. No. SCD286028)

THIEN DUC NGUYEN,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County,
Michael S. Groch, Judge. Reversed.
Aurora E. Bewicke, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Michael
Pulos and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and
Respondent.
 A jury found Thien Duc Nguyen guilty of committing arson of an

inhabited structure or inhabited property (Pen. Code, § 451, subd. (b)).1 The
trial court sentenced Nguyen to a three-year prison term.
Nguyen makes a series of arguments challenging the jury instructions
and the trial court’s evidentiary rulings. He also contends that the
prosecutor committed prosecutorial error, and that the trial court erred in
declining to order mental health diversion (§ 1001.36). We conclude that the
trial court prejudicially erred by failing to properly instruct the jury on the
concept of malice in law in response to questions asked by the jury during
deliberations. We accordingly reverse the judgment.
I.
FACTUAL AND PROCEDURAL BACKGROUND
On the afternoon of April 24, 2020, the fire department responded to a
fire inside the home where Nguyen was living. The fire started in the home’s
bathroom and burned most of a bathroom vanity. The fire also caused
damage to adjacent rooms and to the ceiling of an outside patio overhang
connected to the house. When authorities responded to the fire, Nguyen was
found sitting under a tree a few blocks away with three lighters in his
pockets. Nguyen was taken to the police station for questioning and
voluntarily gave a statement to a police detective, during which he stated
that he brought fire from an outside fire into his bathroom in order to burn
“evil” and “spirits,” but that the fire got out of control because he failed to
keep an eye on it or put it out with water.
Nguyen was charged with one count of arson of an inhabited structure
or inhabited property (§ 451, subd. (b)).

1 Unless otherwise indicated, all further statutory references are to the
Penal Code.
2
 At trial, the jury heard testimony that the home where Nguyen lived
had been sold by Nguyen’s sister in January 2020, and that the man who
bought the property was in the process of trying to get Nguyen to move out of
the house. The gas and electricity in the house were turned off. As the new
owner testified, in February 2020, he posted a notice on the house informing
Nguyen that he was required to move out in 30 days, and at some point he
spoke personally with Nguyen telling him he needed to leave. According to
the new owner, a court case to obtain an order evicting Nguyen from the
home was still pending, as its resolution had been delayed during the
pandemic.
The jury also heard testimony from a building inspector with the City
of San Diego’s code enforcement division who visited Nguyen’s home on at
least two occasions. On April 1, 2020, the building inspector told Nguyen he
had to leave the house due to building code violations and substandard
conditions. Nguyen responded that he was not leaving and that he owned the
house. On April 17, 2020, the building inspector again visited and spoke with
Nguyen. On that date, Nguyen was burning brush and branches in the
backyard. The inspector told Nguyen to extinguish the fire, and Nguyen did
so by using a garden hose. The building inspector testified that on that date,
Nguyen calmly said “he was not leaving the place until he burns it down.”
During trial, the prosecutor played Nguyen’s interview with the police

detective.2 Nguyen told the police that he had lived at the house for 11
years. His father and sister had moved out several months earlier. Nguyen
was aware that his sister was planning to sell the house, but he stated that

2 Because Nguyen’s first language is not English and because of the
mumbling nature of his speech, Nguyen’s statements during the interview
are sometimes unclear and unintelligible.
3
his sister needed his permission because the house was his, and he
complained that he had not gotten any money from a sale of the house.
Nguyen acknowledged that he had received notice that he had to vacate the
house, but his response was “that’s my house.”
Nguyen said that he brought fire into the bathroom because “I tried to
burn something,” “I want to burn something,” but then forgot to put the fire
out with water. Nguyen stated, “I walk away, then the fire start up.”
Nguyen explained that when he saw the fire burning, he went to find a friend
with a phone to call the fire department. Nguyen’s friend was not home, so
he sat down away from the scene so he didn’t have to deal with the
firefighters and police officers who had responded.
When the detective inquired about what Nguyen wanted to burn inside
the house, Nguyen explained he wanted to burn “something evil,” “evil stuff,”
“spirits.” “I just light some fire, burn some evil.” Nguyen said that he was
burning a fire outside his house to boil water due to the lack of utilities at the
house, and he brought some of that fire inside the house. “I bring the fire
from outside, inside.” According to Nguyen, he had done the same thing in
the bathroom three or four times before.
When the detective asked Nguyen whether he wanted to burn down his
house, the following exchange occurred:
“[Q:] And you wanted to burn something. Did you want to burn
the house down?

“[A:] Yeah, sometimes.

“[Q:] Why?

“[A:] Because I just have too much.

“[Q:] Because of why?

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 “[A:] Too much bullshit in the house.

“[Q:] Okay. You want to tell me about what’s been going on with
the house?

“[A:] That’s my house. (Unintelligible) anything.

“[Q:] You own the house.

“[A:] Yeah.

“[Q:] Why would you burn a house down that you own, though,
sir?

“[A:] That’s why I’m crazy. Why I’m burn the house?
(Unintelligible) I live (unintelligible) house.

“[Q:] That’s what you told me.

“[A:] Um-hm.

“[Q:] Okay.

“[A:] You think you going to burn your house?”

In his trial testimony, the detective stated that he understood Nguyen
to be expressing during this exchange that “he was not crazy,” and “[i]f he
burned his house, he wouldn’t have a place to live.”
A fire engineer for the City of San Diego who investigated the fire at
Nguyen’s residence testified about the result of his investigation. He also
described the photographs that he took of the scene, which were displayed for
the jury. As the fire engineer explained, he determined that the fire started
at the right-side base of the bathroom vanity when an open flame came into
contact with it. He also described finding burned pieces of vegetation such as
branches and twigs that had been on top of the vanity when it burned, and
there was a half-burned palm frond in the bathroom. As shown by the

5
photographs of the scene, and as described by the fire engineer, a collection of
still-unburned sticks and branches were located on the left side of the
bathroom vanity between it and the toilet. The vanity burned almost all of
the way to the ground.
The fire engineer testified that he classified the fire as “incendiary,”
which he defined as “a fire intentionally ignited in a place and at a time
where there should not be a fire.” (Italics added.) He also explained that “the
cause of the fire was an open flame device that was brought in contact with

the vegetation that was in the bathroom.” 3 Although the fire engineer did
not determine the source of the open flame, he agreed that a burning branch
was one type of open flame. He also agreed that the fire scene was consistent
with burning vegetation being brought into the house from outside, left on
top of the vanity, and then falling over between the vanity and the wall.
After engaging in deliberations, during which the trial court responded
to multiple questions about the malice element of arson, the jury found
Nguyen guilty of arson of an inhabited structure or property (§ 451, subd.
(b)). The trial court sentenced Nguyen to a lower-term prison sentence of

three years.4

3 The fire engineer also stated, “I determined the cause was the heat
source the open flame was intentionally brought into contact with.” (Italics
added.)
4 On April 19, 2021, Nguyen filed a motion to augment the appellate
record, which we granted in part and denied in part. As relevant here, we
denied the motion with respect to San Diego City Council Resolution No.
21177, ordering that we would construe the motion as a request for judicial
notice to be considered concurrently with the appeal. We hereby deny the
request for judicial notice, as it is not relevant to the grounds upon which we
resolve this appeal. (Jordache Enterprises, Inc. v. Brobeck, Phleger &
Harrison (1998) 18 Cal.4th 739, 748, fn. 6 [declining to take judicial notice of
materials not “necessary, helpful, or relevant”].)
6
 II.
DISCUSSION
A. Nguyen’s Challenge to the Instructions on the Element of Malice
We begin with an issue that is dispositive to this appeal: Nguyen’s
challenge to the jury instructions on the malice requirement for arson.
As we will explain, although the jury was instructed with the standard
instruction on the elements of arson of an inhabited structure, the jury was
additionally instructed in response to a series of questions that it asked
during deliberations. Those additional instructions were erroneous because
they failed to adequately define the technical legal terms used in the
instructions, even though a clear definition of malice in law, which would
have been highly relevant to the jury’s deliberations, is contained in our
Supreme Court’s case law and should have been provided to the jury.
1. Applicable Legal Standards for Arson
We commence our discussion with the applicable legal standards for
the offense with which Nguyen was charged.
The offense of arson of an inhabited structure or inhabited property is
set forth in section 451, subdivision (b), as follows: “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. . . . [¶] (b) Arson that causes an inhabited structure
or inhabited property to burn is a felony punishable by imprisonment in the
state prison for three, five, or eight years.” (§ 451, subd. (b), italics added.)
The crime of unlawful burning of an inhabited structure or inhabited
property is a lesser included offense, and the jury was also instructed on that
offense. The relevant statute states: “A person is guilty of unlawfully
causing a fire when he recklessly sets fire to or burns or causes to be burned,

7
any structure, forest land or property. . . . [¶] (b) Unlawfully causing a fire
that causes an inhabited structure or inhabited property to burn is a felony
punishable by imprisonment in the state prison for two, three or four years,
or by imprisonment in the county jail for not more than one year, or by a fine,
or by both such imprisonment and fine.” (§ 452, subd. (b), italics added.)
The fundamental difference between the lesser and greater offenses is
that the lesser offense is committed “recklessly,” while the greater offense is
committed “willfully and maliciously.” (In re Stonewall F. (1989) 208
Cal.App.3d 1054, 1060 & fn. 4 [discussing similarities and differences in the
two statutes]; see also CALCRIM No. 1532 [“[Arson and unlawfully causing a
fire require different mental states. For arson, a person must act willfully
and maliciously. For unlawfully causing a fire, a person must act
recklessly.]”].)
The terms “willfully,” “maliciously,” and “recklessly” as used in these
provisions are defined by statute. “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.” (§ 7, subd. (1).) “ ‘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.” (§ 450, subd. (e).) “ ‘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. 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. . . .”
(§ 450, subd. (f).)

8
 Our Supreme Court has further defined the terms “willfully” and
“maliciously” as they are used in the crime of arson.
With respect to the term “willfully,” “the arson statute does not require
the intent to cause the resulting harm, but ‘rather requires only [a general]
intent to do the act that causes the harm.’ ” (In re V.V. (2011) 51 Cal.4th
1020, 1027 (V.V.).) Thus, for example, in V.V., when minors intentionally
threw a lit firecracker onto dry brush, which led to a fire, the minors acted
willfully, even though they may not have intended to start a fire. (Id. at
p. 1028.) “[T]he actus reus element of section 451 was met because [the
minors] willfully and intentionally committed the act that ‘cause[d] to be
burned . . . forest land.’ (§ 451.)” (V.V., at p. 1028.)
The main issue in V.V. was whether the minors acted maliciously,
rather than recklessly, in causing the fire. (V.V., supra, 51 Cal.4th at
pp. 1030-1031.) Our Supreme Court provided an extensive discussion of that
issue, drawing heavily on its prior opinion in People v. Atkins (2001) 25
Cal.4th 76 (Atkins).
“Malice in fact—defined as ‘a wish to vex, annoy, or injure’ (§ 7,
item 4)—consists of actual ill will or intent to injure. [Citations.]
However, ‘ “[t]here is still another malice, the presumption of the
existence of which is raised by the law in certain cases upon
certain proofs.” ’ [Citation.] This type of malice—malice in law—
is defined in section 7, item 4 as ‘an intent to do a wrongful act,
established either by proof or presumption of law.’ [Citations.]
Malice in law may be ‘presumed’ or ‘implied’ from the intentional
doing of the act without justification or excuse or mitigating
circumstances. [Citations.]

“In determining whether the second type of malice (‘intent to do a
wrongful act’) is established for arson, malice will be presumed or
implied from the deliberate and intentional ignition or act of
setting a fire without a legal justification, excuse, or claim of
right. [Citations.] ‘ “An intentional act creating an obvious fire

9
 hazard . . . done without justification . . . would certainly be
malicious. . . .” ’ [Citation.]

“As we stated in Atkins, arson’s ‘willful and malice requirement
ensures that the setting of the fire must be a deliberate and
intentional act, as distinguished from an accidental or
unintentional ignition or act of setting a fire; “ ‘in short, a fire of
incendiary origin.’ ” [Citations.] “Because the offensive or
dangerous character of the defendant’s conduct, by virtue of its
nature, contemplates such injury, a general criminal intent to
commit the act suffices to establish the requisite mental state.”
[Citation.] Thus, there must be a general intent to willfully
commit the act of setting on fire under such circumstances that
the direct, natural, and highly probable consequences would be
the burning of the relevant structure or property.’ [Citations.]”
(V.V., supra, 51 Cal.4th at pp. 1028-1029, italics omitted and
added.)

Applying this definition of malice to the case before it, our Supreme
Court stated that “[a] defendant may be guilty of arson if he or she acts with
awareness of facts that would lead a reasonable person to realize that the
direct, natural, and highly probable consequence of igniting and throwing a
firecracker into dry brush would be the burning of the hillside.” (V.V., supra,
51 Cal.4th at p. 1030, italics added.) The court explained that the minors
“were aware of facts that would lead a reasonable person to realize that the
direct, natural, and highly probable consequence of throwing a lit ‘cherry
bomb’ from their location would be its landing in the dry brush short of the
concrete area and causing a fire,” and thus “the juvenile court reasonably
inferred that [the minors] acted with malice.” (Id. at p. 1031.)
In V.V., two justices dissented, including Justice Werdegar, who took
the position that the majority had improperly presumed malice simply from
the commission of the intentional act that causes a fire to start. (V.V., supra,

10
51 Cal.4th at pp. 1033-1039 (dis. opns. of Kennard, J., and Werdegar, J.).)5
In responding to Justice Werdegar’s dissent, the majority again explained the
definition of malice. “ ‘[T]here must be a general intent to willfully commit
the act of setting on fire under such circumstances that the direct, natural,
and highly probable consequences would be the burning of the relevant
structure or property.’ [Citation.] The unitalicized language describes arson’s
willful requirement . . . , i.e., that the act of setting fire to, of burning, or that
causes to be burned (§ 451) is intentional. The italicized language describes
arson’s malice requirement, i.e., that the willful and intentional act is
committed under circumstances that create an obvious fire hazard. Thus, a
willful act that causes a fire without further evidence of the underlying
circumstances would be insufficient to establish malice.” (V.V., at p. 1031,
fn. 6.)
2. Relevant Jury Instructions
The jury was instructed with CALCRIM No. 1502 regarding the crime
of arson of an inhabited structure or inhabited property.
“The defendant is charged in Count 1 with arson that burned an
inhabited structure or inhabited property, in violation of Penal
Code section 451(b).

“To prove that the defendant is guilty of this crime, the People
must prove that:

5 We note that in Mason v. Superior Court (2015) 242 Cal.App.4th 773,
Acting Presiding Justice Blease authored an extensive dissent to his own
majority opinion, in which he criticized V.V.’s and Atkin’s description of the
mental state for arson, making similar points as Justice Werdegar’s dissent
in V.V. (Mason, at pp. 791-802 (dis. opn. of Blease, Acting P. J.).) Nguyen
argues that to the extent we are required to reach the issue, we should adopt
the view set forth in Mason. We do not address the issue, as it is unnecessary
for us to do so to resolve this appeal. We are in any event bound by the law of
arson as interpreted by our Supreme Court in V.V. and Atkins. (Auto Equity
Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
11
 “1. The defendant set fire to or burned or counseled, or helped, or
caused the burning of a structure or property;

“2. He acted willfully and maliciously;

“AND

“3. The fire burned an inhabited structure or inhabited property.

“To set fire to or burn means to damage or destroy with fire
either all or part of something, no matter how small the part.

“Someone commits an act willfully when he or she does it
willingly or on purpose.

“Someone acts maliciously when he or she intentionally does a
wrongful act or when he or she acts with the unlawful intent to
defraud, annoy, or injure someone else.

“A structure is any building.

“A structure or property is inhabited if someone uses it as a
dwelling, whether or not someone is inside at the time of the fire.
An inhabited structure or inhabited property does not include the
land on which it is located.

“Property means personal property or land other than forest
land.” (Italics added.)

Additional instruction on the elements of the offense were given in
response to two different jury notes.
First, during deliberations, the jury asked for clarification regarding
the requirement that the defendant act maliciously. “We need/looking for
clarification on ‘Intentionally does a wrongful act.’ We need additional legal
definition of this part of ‘Malicious.’ What is a wrongful act? What does this
mean?” To paraphrase using the terminology employed in V.V., supra, 51
Cal.4th 1020, the jury was asking for a legal definition of “malice in law.”

12
 After a lengthy discussion with counsel, the trial court gave the
following response: “For a violation of PC 451(b), a wrongful act is setting
fire to, or burning, or counseling, or helping, or causing the burning of a
structure or property without any legal justification or excuse or claim of
right.” (Italics added.)
This instruction was comprised of the words defining the first element
of the offense of arson as set forth in CALCRIM No. 1502 (i.e., “[t]he
defendant set fire to or burned or counseled, or helped, or caused the burning
of a structure or property”), followed by one of the formulations for malice in
law set forth in V.V. Specifically, the instruction drew from V.V.’s statement
that malice in law “will be presumed or implied from the deliberate and
intentional ignition or act of setting a fire without a legal justification, excuse,
or claim of right.” (V.V., supra, 51 Cal.4th at p. 1028, italics added.) The
trial court did not instruct with the other formulation for malice in law that
V.V. repeated multiple times and relied upon in its analysis, namely, that the
fire must be set “ ‘under such circumstances that the direct, natural, and
highly probable consequences would be the burning of the relevant structure
or property.’ ” (Id. at pp. 1029, 1031, fn. 6, italics omitted.)
After further deliberation, the jury indicated that it was unable to
reach a verdict, with 11 votes for guilty, and one vote for not guilty. Certain
members of the jury indicated upon inquiry by the trial court that additional
information might be helpful in reaching a verdict, and the trial court
directed the jury to compose a note listing the information that would be
helpful. The jury then sent the following note:
“1) Can you provide the legal definition of (or what can/should
be considered when determining) ‘Intentionally.’

“2) The difference of opinion is whether he acted maliciously.
Could we obtain more information OR hear arguments on this.

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 “3) Can we ask for the attorney’s [sic] to argue for/against the
defendant’s credibility.”

The first and second question on the list both pertained to the issue of
whether Nguyen acted maliciously. The first question was directed to that
issue because it asked about the term “intentionally,” which appears in
CALCRIM No. 1502 only in the statement that “[s]omeone acts maliciously
when he or she intentionally does a wrongful act.” The second question
expressly asked about the issue of malice.
After further conferring with counsel, the trial court responded as
follows:
“1. Arson of an inhabited structure, as charged in Count 1,
requires general intent; it does not require a specific intent to
burn a structure or property, but rather requires only an intent
to do the act that causes the harm. It is not required that he or
she intend to break the law.

“2. Arson and unlawfully causing a fire require different
mental states. For arson, a person must act willfully and
maliciously. For unlawfully causing a fire, a person must act
recklessly. Someone acts maliciously when he or she intentionally
does a wrongful act (such as setting fire to or burning or causing
the burning of a structure or property without legal justification,
excuse, or claim of right) or when he or she acts with the unlawful
intent to defraud, annoy or injure someone else.

“3. Regarding witness credibility, the credibility of every
person who makes a statement that is received as evidence
should be considered in evaluating what weight to attach. Please
see instruction 226 for examples of factors the jury may wish to
consider. You alone must judge the credibility of every witness.”
(Italics added.)

In giving this second supplemental instruction to the jury, the trial
court did not provide any additional instruction that it had not already given
to the jury as to how to decide whether Nguyen acted maliciously. The

14
instruction merely repeated from the earlier supplemental instruction that a
malicious act includes a wrongful act “without . . . legal justification or excuse
or claim of right,” and it restated the already-given language from CALCRIM
No. 1502 that a person also acts maliciously (i.e., with malice in fact) “when
he or she acts with the unlawful intent to defraud, annoy, or injure someone
else.” As before, the trial court did not provide the jury with the definition of
malice in law that is repeated multiple times in V.V. and that our Supreme
Court relied upon for its analysis in that case. (V.V., supra, 51 Cal.4th at
p. 1031, fn. 6 [the fire must be set “ ‘under such circumstances that the direct,
natural, and highly probable consequences would be the burning of the

relevant structure or property’ ” (italics omitted)].)6
After receiving this second round of supplemental instructions, the jury
reached a verdict.
3. The Supplemental Instructions Failed to Adequately Define the
Terms “Legal Justification, Excuse, or Claim of Right”
Nguyen contends that the supplemental instructions the trial court
gave the jury on the element of malice were in error because they did not

adequately define the legal terminology employed in the instructions. 7

6 Throughout the discussion regarding how to respond to the jury’s two
notes, neither defense counsel, the prosecutor, nor the trial court raised the
possibility of clarifying the concept of malice in law by instructing the jury
that acting maliciously as required for the crime of arson includes setting a
fire “ ‘under such circumstances that the direct, natural, and highly probable
consequences would be the burning of the relevant structure or property.’ ”
(V.V., supra, 51 Cal.4th at p. 1031, fn. 6.)

7 Although the issues were raised in Nguyen’s opening appellate brief,
neither of the parties’ original appellate briefing adequately discussed the
issue of whether the trial court’s supplemental instructions either:
(1) erroneously failed to define technical legal terminology; or (2) improperly

15
 As Nguyen argues, it was improper to give the supplemental
instructions on malice “without also providing the jury with additional
instructions on how to analyze whether Mr. Nguyen may have had a ‘legal
justification, excuse, or claim of right’ to ‘set[ ] fire to . . . a structure or
property.’ ” (Italics omitted.) According to Nguyen, “[t]he trial court cannot
be said to have fulfilled its duty to instruct the jury ‘on general principles of
law that are closely and openly connected to the facts and that are necessary
for the jury’s understanding of the case’ . . . by defining malice according to
the absence of factors of which the jury had received no instructions on how
to analyze.” He argues that “the court should have delivered an instruction
explaining what a ‘claim of right’ or legal justification is, in the context of
burning property or causing property to be burned.”8 The People respond
that no further definition was warranted because “appellant did not proceed
on a ‘claim of right’ theory (which is not a valid defense to arson of an
inhabited dwelling) and because the term ‘legal justification’ has a clear

shifted the burden of proof to Nguyen to prove legal justification, excuse or
claim of right. We accordingly requested that the parties submit
supplemental briefing on those issues.

8 In his opening appellate brief, Nguyen suggests that to explain the
concept of “legal justification” and “claim of right,” the trial court should have
“explained that, in assessing malice, the jury was to consider the fact that
individuals are not prohibited from burning their own property or property
they believe to be theirs, unless they are acting with the specific intent to
defraud.” In the supplemental briefing we requested on the instructional
issue, Nguyen states that, in addition, the trial court should have instructed
that “the prosecution was required to prove Mr. Nguyen caused/set fire to
property ‘ “ ‘under such circumstances that the direct, natural, and highly
probable consequences would be the burning of the relevant structure
. . . .’ ” ’ ” (Bolding omitted.)
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meaning.” The People do not identify the purportedly “clear meaning” of
“ ‘legal justification.’ ”
We begin our analysis with the legal principles governing the trial
court’s duty to instruct the jury. “Even without a request, a trial court is
obliged to instruct on ‘ “general principles of law that are commonly or closely
and openly connected to the facts before the court and that are necessary for
the jury’s understanding of the case” ’ [citation], or put more concisely, on
‘ “general legal principles raised by the evidence and necessary for the jury’s
understanding of the case.” ’ ” (People v. Delgado (2013) 56 Cal.4th 480, 488.)
“The trial court has a duty to help the jury understand the legal principles
the jury is asked to apply. [Citation.] In particular, under section 1138 the
court must attempt ‘to clear up any instructional confusion expressed by the
jury.’ ” (People v. Giardino (2000) 82 Cal.App.4th 454, 465.) Although “[a]
court has no sua sponte duty to define terms that are commonly understood
by those familiar with the English language, . . . it does have a duty to define
terms that have a technical meaning peculiar to the law. [Citations.]
‘[T]erms are held to require clarification by the trial court when their
statutory definition differs from the meaning that might be ascribed to the
same terms in common parlance.’ ” (People v. Bland (2002) 28 Cal.4th 313,
334 (Bland).) “A word or phrase having a technical, legal meaning requiring
clarification by the court is one that has a definition that differs from its
nonlegal meaning.” (People v. Estrada (1995) 11 Cal.4th 568, 574.) “A claim
of instructional error is reviewed de novo.” (People v. Mitchell (2019) 7
Cal.5th 561, 579.)
Here, the trial court responded to the jury’s questions about malice in
law by stating that “a wrongful act is setting fire to, or burning, or
counseling, or helping, or causing the burning of a structure or property

17
without any legal justification or excuse or claim of right.” (Italics added).
When the jury again asked about malice in law, the trial court repeated that
instruction by stating that “[s]omeone acts maliciously when he or she
intentionally does a wrongful act (such as setting fire to or burning or causing
the burning of a structure or property without legal justification, excuse, or
claim of right) . . . .” (Italics added.)
The jury was not instructed on how to determine whether Nguyen
caused a fire “without legal justification, excuse, or claim of right.” As we will
explain, in the context of a criminal prosecution, none of those terms has a
“ ‘meaning that might be ascribed to the same terms in common parlance.’ ”
(Bland, supra, 28 Cal.4th at p. 334.)
a. Justification and Excuse
The terms “justification” and “excuse” describe a broad range of legal
concepts that differ, in part, based on the underlying criminal act at issue.
For example, case law has explained that, in the context of homicide, “excuse
is best exemplified by accident or misfortune (. . . § 195), and justification is
exemplified by the concept of self-defense (. . . §§ 197-198), although these are
not the exclusive bases for excuse or justification.” (People v. Frye (1992) 7
Cal.App.4th 1148, 1155.) Self-defense is also a justification for assault and
other assaultive crimes. (People v. Minifie (1996) 13 Cal.4th 1055, 1064;
People v. Adrian (1982) 135 Cal.App.3d 335, 340.) Moreover, crimes may be
excused or justified based on a defense of necessity or duress (People v.
Saavedra (2007) 156 Cal.App.4th 561, 567), although case law does not
consistently categorize those doctrines (People v. Verlinde (2002) 100
Cal.App.4th 1146, 1164 [describing necessity as an excuse]; People v. Heath
(1989) 207 Cal.App.3d 892, 900-901 [describing necessity as a justification]).

18
 Indeed, there is controversy in the legal literature about how to
categorize any particular defense as either a justification or an excuse.
(Gabriel J. Chin, Unjustified: The Practical Irrelevance of the
Justification/Excuse Distinction (2009) 43 U. Mich. J.L. Reform 79, 82
[“Scholars . . . disagree about categorization as justification or excuse of many
individual defenses, including duress, provocation, and others.”].) As one
professor has observed, “Any legal system must pause before making its most
important decisions rest on precise application of concepts that lack accepted
definitions and appear difficult, perhaps impossible, to administer.” (Ibid.)
One judicial opinion, relying on its own review of the existing scholarly
commentary, suggested that “[j]ustification declares the allegedly criminal
act legal; excuse admits the act’s criminality but declares the allegedly
criminal actor not to be worthy of blame. [Citations.] Therefore, justification
requires an objective evaluation of the allegedly criminal act; excuse requires
only a subjective evaluation of the allegedly criminal state of mind.” (People
v. Aris (1989) 215 Cal.App.3d 1178, 1196, disapproved on other grounds in
People v. Humphrey (1996) 13 Cal.4th 1073, 1089.)
Due to the broad range of justifications and excuses, juries are
routinely instructed on the precise requirements for finding a particular
justification or excuse to be applicable. (See, e.g., CALCRIM No. 3402
[“Duress or Threats”]; CALCRIM No. 3403 [“Necessity”]; CALCRIM No. 3404
[“Accident”]; CALCRIM No. 3406 [“Mistake of Fact”]; CALCRIM No. 3408
[“Entrapment”]; CALCRIM No. 3470 [“Right to Self-Defense or Defense of
Another (Non-Homicide)”].) Moreover, consistent with the breadth of existing
justifications and excuses, instructions on the burden of proof for those
justifications or excuses differ depending on the particular concept at issue.
(See, e.g., CALCRIM No. 3403 [for necessity, “[t]he defendant has the burden

19
of proving this defense by a preponderance of the evidence”]; CALCRIM No.
3408 [“If the defendant has proved that it is more likely than not that
(he/she) . . . was entrapped, you must find (him/her) not guilty . . . .”];
CALCRIM No. 3470 [for self-defense, “[t]he People have the burden of
proving beyond a reasonable doubt that the defendant did not act in lawful
(self-defense/ [or] defense of another)”]; CALCRIM No. 3402 [“The People
must prove beyond a reasonable doubt that the defendant did not act under
duress.”]; CALCRIM No. 3405 [for offenses involving a parent or guardian’s
use of force against a child, “[t]he People must prove beyond a reasonable
doubt that the (force/ [or] method of punishment) used was not justifiable.”].)
Based on this background, we do not agree with the People that “the
term ‘legal justification’ has a clear meaning” that would be understood by a
jury, and we reach the same conclusion for the closely-related term “excuse.”
b. Claim of Right
The term “claim of right” also does not have a common meaning that
would be understood by a layperson. That phrase refers to a common law
doctrine developed in the context of property crimes. Specifically, “[t]he
claim-of-right defense provides that a defendant’s good faith belief, even if
mistakenly held, that he has a right or claim to property he takes from
another negates the felonious intent necessary for conviction of theft or
robbery.” (People v. Tufunga (1999) 21 Cal.4th 935, 938; see also CALCRIM
No. 1863 [“Defense to Theft or Robbery: Claim of Right”].) That meaning
would not be known to someone without a background in the law. Further,
we have located no case law or commentary applying a claim-of-right defense
in the context of arson, and the parties have identified no such authority.
Thus, a reasonable juror cannot have been expected to understand how to

20
determine whether Nguyen set fire to his home “without a . . . claim of

right.”9

9 We have also looked to the source for the trial court’s supplemental
instructions in an attempt to define the terms “legal justification,” “excuse,”
and “claim of right” to determine whether those terms have a commonly
understood meaning. The trial court’s supplemental instructions were based
on V.V.’s statement that “malice will be presumed or implied from the
deliberate and intentional ignition or act of setting a fire without a legal
justification, excuse, or claim of right.” (V.V., supra, 51 Cal.4th at p. 1028.)
V.V.’s language was derived from our Supreme Court’s Atkins opinion, which
quoted from the American Jurisprudence Second treatise: “Arson’s malice
requirement ensures that the act is ‘done with a design to do an intentional
wrongful act . . . without any legal justification, excuse or claim of right.’ (5
Am.Jur.2d (1995) Arson and Related Offenses, § 7, p. 786.)” (Atkins, supra,
25 Cal.4th at p. 88.) However, reference to that treatise does not provide
clarification of the meaning of those terms for the purpose of defining malice
in the context of arson. In the 1995 version of the American Jurisprudence
Second treatise cited in Atkins, the two cases cited to support the statement
quoted are State v. Eubanks (N.C.Ct.App. 1986) 349 S.E.2d 884, and In re
Appeal in Pima County Juvenile Action No. J-37390-1 (Ariz.Ct.App. 1977)
570 P.2d 206. (5 Am.Jur.2d (1995) Arson and Related Offenses, § 7, p. 786,
fn. 52.) Without citation, or further explanation of the terminology used,
those cases both state that for a burning to be willful and malicious in the
law of arson, it “must simply be done voluntarily and without excuse or
justification and without any bona fide claim of right.” (State v. Eubanks, at
p. 885; In re Appeal in Pima County Juvenile Action No. J-37390-1, at p. 209.)
It has been observed that “to ‘instruct juries by the use of quotations from
appellate opinions taken out of context is to court disaster.’ ” (People v.
Southard (2021) 62 Cal.App.5th 424, 436.) That principle is doubly true here
because the trial court relied on language from V.V., which was not designed
to be used as a jury instruction, and which itself was derived from a treatise
that provided little support or explanation for its statement.
21
 c. Our Supreme Court Has Provided Guidance as to the
Circumstances Under Which a Person May Be Found
to Have Set a Fire Without Legal Justification,
Excuse, or Claim of Right
Because “legal justification,” “excuse,” and “claim of right” as used by
the trial court had “a technical meaning peculiar to the law” (Bland, supra,
28 Cal.4th at p. 334), without additional instruction on the meaning of those
terms, Nguyen’s jurors could not have understood the circumstances in which
a person wrongfully performs an intentional act that causes an unintended
destructive fire.
The jurors should not have been left to struggle with the meaning of
the undefined legal terminology, particularly when they repeatedly asked the
trial court for help. Case law provides clear guidelines for how a finder of fact
should make a determination as to whether someone lacks legal justification
for setting a fire, and those guidelines are directly applicable here.
Specifically, in V.V., our Supreme Court explained that a person who sets a
fire may be presumed to act maliciously if that person willfully commits the
act of setting on fire “ ‘under such circumstances that the direct, natural, and
highly probable consequences would be the burning of the relevant structure
or property.’ ” (V.V., supra, 51 Cal.4th at pp. 1029, 1031, fn. 6, italics
omitted.) Put simply, someone who sets a fire under those circumstances acts
without legal justification and thus does a “wrongful act” constituting malice

in law.10

10 In describing the legal standard for determining whether a person
lacks legal justification for willfully setting a fire, we do not intend to
foreclose other possible legal justifications or excuses that are not unique to
arson. For example, a circumstance may arise in which a person commits
arson under necessity or duress, and that person should be able to assert
those defenses even if “ ‘the direct, natural, and highly probable

22
 As we have explained, a trial court has a duty to instruct on “ ‘ “general
principles of law . . . that are necessary for the jury’s understanding of the
case” ’ ” (Delgado, supra, 56 Cal.4th at p. 488), and “to define terms that have
a technical meaning peculiar to the law” (Bland, supra, 28 Cal.4th at p. 334).
Applying those principles here, the trial court erred in instructing the jury
that a person acts maliciously by intentionally “setting fire to or burning or
causing the burning of a structure or property without legal justification,
excuse, or claim of right,” without further instructing the jury on how to
determine whether a person intentionally sets a fire without legal
justification. To fulfill its instructional duty, the trial court should have
instructed the jury that a person who sets a fire may be presumed to act
maliciously, and therefore without legal justification, if that person willfully
commits the act of setting on fire “ ‘under such circumstances that the direct,
natural, and highly probable consequences would be the burning of the
relevant structure or property.’ ” (V.V., supra, 51 Cal.4th at pp. 1029, 1031,

fn. 6, italics omitted.)11

consequences’ ” of the person’s willful conduct “ ‘would be the burning of the
relevant structure or property.’ ” (V.V., supra, 51 Cal.4th at pp. 1029, 1031,
fn. 6, italics omitted.)

11 Nguyen also argues that aside from failing to define the relevant legal
terminology, the trial court’s supplemental instructions on the issue of malice
were flawed because the jury could have understood them to improperly shift
the burden of proof to the defense to establish a legal justification, excuse, or
claim of right. Specifically, Nguyen argues that “by defining maliciousness as
the carrying out of any intentional act without legal justification, the jurors
may well have concluded that any intentional act equaled an act carried out
with malice, as a matter of law, unless the defendant affirmatively proved he
had a legal right to burn, for example, his own (real or personal) property.”
The absence of a legal justification, excuse or claim of right is part of the
element of malice in instances where the People proceed under a theory of

23
B. The Error Was Prejudicial
Having concluded that the trial court erred in its formulation of the
supplemental jury instructions, we examine whether the error was
prejudicial.
“ ‘ “[M]isdirection of the jury, including incorrect, ambiguous,
conflicting, or wrongly omitted instructions that do not amount to federal
constitutional error are reviewed under the harmless error standard
articulated” in [People v. Watson (1956) 46 Cal.2d 818, 836].’ [Citations.]
‘[U]nder Watson, a defendant must show it is reasonably probable a more
favorable result would have been obtained absent the error.’ ” (People v.
Beltran (2013) 56 Cal.4th 935, 955.) “ ‘ “ ‘[A] “probability” in this context does
not mean more likely than not, but merely a reasonable chance, more than an

malice in law, because a person does not act with malice in law unless a fire
is intentionally set without legal justification, excuse, or claim of right. (V.V.,
supra, 51 Cal.4th at p. 1028.) Thus, it was the People’s burden to prove that
Nguyen acted without legal justification, excuse, or claim of right. (See
People v. Neidinger (2006) 40 Cal.4th 67, 72-73 [“it is constitutionally
permissible to place on the defendant the burden of proving affirmative
defenses by a preponderance of the evidence” only “as long as the defendant
is not required to negate an element of the offense” (italics added)].) In our
assessment, it is a close question whether, in light of the other jury
instructions on the burden of proof, there is a reasonable likelihood that the
jury might have read the supplemental instructions to assign the burden of
proof to Nguyen to prove a legal justification, excuse, or claim of right.
(People v. Mills (2012) 55 Cal.4th 663, 677 [instructions erroneously shift the
burden if, when read as a whole, “ ‘there is a “ ‘reasonable likelihood that the
jury has applied the challenged instruction in a way’ that violates the
Constitution.” ’ ”].) However, in light of our conclusion that prejudicial error
occurred due to the trial court’s failure to properly define “legal justification,
excuse, or claim of right” in explaining the doctrine of malice in law, we need
not, and do not, resolve the question of whether the supplemental
instructions may also have impermissibly shifted the burden of proof on the
element of malice.
24
abstract possibility.’ ” ’ ” (People v. Wilkins (2013) 56 Cal.4th 333, 351
(Wilkins).)
As an initial matter, we note that the People attempted to prove that
Nguyen acted maliciously by arguing that the jury could rely on either of two
possible theories of malice: malice in law or malice in fact. Specifically, the
People argued: (1) the evidence supported a finding of malice in fact because
Nguyen was angry and wanted to burn down the house to annoy the person

who bought the house;12 and (2) the evidence supported a finding of malice in
law because “[t]his is somebody who was trying to start a fire without a legal

justified or excusable reason; therefore, it’s a wrongful act.”13

12 Specifically, the prosecutor argued, “Well, we know that the defendant
was frustrated. We know that he was angry and upset about the situation
with his house. He had been told by . . . the new owner, that he needed to
vacate the premises. He had also been told by . . . code enforcement, that he
needed to leave due to health and safety concerns, that it was no longer an
inhabitable dwelling. He was angry. You can hear it when he was talking to
[the detective] about the situation involving the selling of his house. He’s
upset. . . . So he certainly was acting with the intent to defraud, annoy, or
injure if—at the very least, with the intent to annoy the new land owners, get
back at the people who were trying to hurt him, who were trying to get him
out of that house.”

13 On malice in law, the prosecutor argued, “Well, no one has a legal
justification for starting a fire anywhere that it doesn’t belong, especially
here in the state of California. That poses a risk to everyone. So there’s no
legal justification for starting a fire anywhere that it does not belong, such as
a fire pit, a fire place, a barbecue, et cetera. There is no legal justification for
starting this fire. There’s no excuse for starting a fire next to the toilet in a
bathroom. The defense will likely tell you that the defendant was living in
squalor and he had to heat water. You can use your own common sense and
logic and recognize that there were no pots and pans in there. There was
nothing to indicate that this was being used for an innocuous or innocent
purpose. This is somebody who was trying to start a fire without a legal

25
 The jury’s questions during deliberations suggested that at least one
juror was not convinced that the People had proven malice in fact, and that
the jury therefore wanted further instruction to be able to determine whether
the People had proven malice in law. Specifically, the first jury question
focused on the concept of a “wrongful act” in the definition of malice in law.
“We need/looking for clarification on ‘Intentionally does a wrongful act.’ We
need additional legal definition of this part of ‘Malicious.’ What is a wrongful
act? What does this mean?” The second set of questions asked about the
term “intentionally” that appears in the malice in law instruction, and also
requested further instruction or argument on whether Nguyen “acted
maliciously.” Based on the jury’s questions, despite the People’s attempt to
establish malice in fact, we have no doubt that the trial court’s supplemental
instructions on malice in law were directly relevant to the issue that was

preventing the jury from reaching a verdict. 14
When the instructional error consists of failing to define technical legal
terminology, “[t]o determine whether the error was prejudicial we must
decide what instruction the court should have given” to assess whether a

justified or excusable reason; therefore, it’s a wrongful act, a wrongful act
which satisfies the maliciousness requirement.”

14 The People argue in their supplemental briefing that any instructional
error on malice in law was harmless because “the evidence overwhelmingly
established that [Nguyen] intentionally (and thus with malice) lit the house
on fire.” The People point to the evidence that they contend establishes that
Nguyen wanted to burn down the house. As we understand the argument,
the People take the position that the evidence of malice in fact was so strong
that any error in the instructions on malice in law could not have been
prejudicial. We reject the argument. As we have explained, the jury’s
questions established that at least one of the jurors was focused solely on
malice in law, implying that malice in fact had already been rejected as a
possible basis for finding that Nguyen acted with malice in setting the fire.
26
different outcome is reasonably probable under that instruction. (Bland,
supra, 28 Cal.4th at p. 335.) Here, as we have explained, in response to the
jury’s questions about malice in law, the trial court should have instructed
that a person commits a wrongful act when that person willfully performs the
act of setting a fire “ ‘under such circumstances that the direct, natural, and
highly probable consequences would be the burning of the relevant structure
or property.’ ” (V.V., supra, 51 Cal.4th at pp. 1029, 1031, fn. 6, italics
omitted.) If the trial court had done so, the jury would have had guidance
about how to determine whether Nguyen set a fire without legal justification,
excuse, or claim of right for the purpose of deciding whether the People met
their burden of proof for malice in law.
It is clear from the record that the jury was hung on the issue of malice
in law. As we will explain, had the jury been instructed that malice in law
exists when someone intentionally sets a fire “ ‘under such circumstances
that the direct, natural, and highly probable consequences would be the
burning of the relevant structure or property’ ” (V.V., supra, 51 Cal.4th at
pp. 1029, 1031, fn. 6, italics omitted), there is “ ‘ “ ‘a reasonable chance, more
than an abstract possibility’ ” ’ ” (Wilkins, supra, 56 Cal.4th at p. 351) that
the hold-out juror would not have concluded that the People met their burden
to prove malice in law.
The evidence at trial about what happened in the bathroom of Nguyen’s
house was sparse. Due to a language barrier and mumbled speech, Nguyen’s
statement to the detective is difficult to understand. However, Nguyen
appears to have admitted that he took burning vegetation into the bathroom
from his backyard cooking fire to burn evil spirits. He also described walking
away and failing to put out the fire with water. Nguyen further described

27
having done the same thing in the bathroom three or four times before,
apparently without causing the house to burn.
The fire engineer attempted to reconstruct what happened in the
bathroom by examining the scene after the fact, but the results were limited.
He was able to determine that the fire started at the right-side base of the
bathroom vanity when an open flame came into contact with it, and that
there were burned pieces of vegetation such as branches or twigs that had
been on top of the vanity when it burned. He agreed that the fire could have
been caused from burning vegetation being brought into the house from
outside, left on top of the vanity, and then falling over between the vanity
and the wall.
Defense counsel focused on these facts in his closing argument. As
defense counsel told the jury, Nguyen did not act maliciously because he “was
burning evil spirits and . . . he did not mean to light the bathroom on fire.”
According to defense counsel, there was no question that Nguyen acted
recklessly by bringing burning vegetation into the bathroom to burn evil
spirits and then leaving it unattended, but he did not act maliciously. Thus,
defense counsel advocated that the jury should find Nguyen guilty of the
lesser included offense of unlawfully causing a fire of an inhabited structure
(§ 452, subd. (b)), which requires only recklessness, and that it should find
him not guilty of the greater offense of arson of an inhabited structure, which

requires malice.15

15 The jury was instructed that for the lesser included offense of
unlawfully causing a fire of an inhabited structure (§ 452, subd. (b)), “[a]
person acts recklessly when (1) he or she is aware that his actions present a
substantial and unjustifiable risk of causing a fire, (2) he or she ignores that
risk, and (3) ignoring the risk is a gross deviation from what a reasonable
person would have done in the same situation.”
28
 Based on this trial record, a rational juror could conclude that the only
scenario that the People proved beyond a reasonable doubt was that Nguyen
brought some burning vegetation into the bathroom with the intention of
smoking out evil spirits, but he failed to keep a close eye on the burning
vegetation on top of the vanity. Further, Nguyen may have performed the
same activity several times before without incident, although on this occasion
the vegetation may have unexpectedly fallen down and caused the bathroom
vanity to catch on fire. This is precisely the scenario advocated by defense
counsel. If correctly instructed, it would be reasonable for a juror to conclude
that such a scenario amounted to recklessness because there was “a
substantial and unjustifiable risk of causing a fire,” but that without further
information, the People did not prove that “the direct, natural, and highly
probable consequences would be the burning of the relevant structure or
property.’ ” (V.V., supra, 51 Cal.4th at pp. 1029, 1031, fn. 6, italics omitted.)
In sum, due to the sparse evidence of what occurred in Nguyen’s
bathroom, a finder of fact could conclude that the People did not meet their
burden to prove that Nguyen intentionally set a fire “ ‘under such
circumstances that the direct, natural, and highly probable consequences
would be the burning of the relevant structure or property’ ” (V.V., supra, 51
Cal.4th at pp. 1029, 1031, fn. 6, italics omitted), rather than under
circumstances suggesting recklessness. Indeed, as our Supreme Court has
observed, a finding of malice in law requires sufficient evidence of the
underlying circumstances to allow a jury to conclude that the fire was set
“ ‘under such circumstances that the direct, natural, and highly probable
consequences would be the burning of the relevant structure or property.’ ”
(Ibid.) As our Supreme Court has stated, “a willful act that causes a fire

29
without further evidence of the underlying circumstances would be insufficient
to establish malice.” (Id. at p. 1031, fn. 6, italics added.)
We accordingly conclude that the trial court’s instructional error was
prejudicial, as there is a reasonable probability that Nguyen would have
obtained a more favorable result, at least in the form of a hung jury, had the
trial court instructed the jury with our Supreme Court’s language from V.V.
describing malice in law. (See People v. Soojian (2010) 190 Cal.App.4th 491,

520-521 [a hung jury is a more favorable result than a guilty verdict].)16
DISPOSITION
The judgment is reversed, and this matter is remanded for further
proceedings consistent with this opinion.

IRION, J.

WE CONCUR:

McCONNELL, P. J.

HALLER, J.

16 As we are reversing the judgment based on the instructional error, we
need not reach Nguyen’s other arguments for reversal.
30