People v. V.V.

Filed 6/6/11

IN THE SUPREME COURT OF CALIFORNIA

In re V.V., a Person Coming Under )
the Juvenile Court Law. )
)
)
THE PEOPLE, )
) S177654
Plaintiff and Respondent, )
) Ct.App. 2/1
v. ) B212416
)
V.V., )
) Los Angeles County
Defendant and Appellant. ) Super. Ct. No. GJ25585
____________________________________)

In re J.H., a Person Coming Under )
the Juvenile Court Law. )
)
)
THE PEOPLE, )
)
Plaintiff and Respondent, ) S179579
)
v. ) Ct.App. 2/8
) B212635
J.H., )
) Los Angeles County
Defendant and Appellant. ) Super. Ct. No. GJ25587
____________________________________)

1
 In this case, V.V. and J.H., minors, set off a firecracker on a brush-covered
hillside in Pasadena, causing a fire that burned five acres of forest land. At a
combined adjudicatory hearing, the juvenile court determined that V.V. and J.H.
had committed arson. The court found that, although they did not intend to set the
hillside on fire, the evidence satisfied the mental state required for arson.
In V.V.‘s case, the Court of Appeal affirmed the juvenile court‘s order,
finding that the evidence sufficiently established the requisite mental state of
malice because V.V. deliberately and intentionally set off a firecracker on a brush-
covered hill. In J.H.‘s case, a different division of the Court of Appeal found that
the intentional act of setting off a firecracker on a brush-covered hill without intent
to do harm is insufficient to establish the element of malice.
We conclude that under the circumstances of this case, V.V.‘s and J.H.‘s
acts of intentionally igniting and throwing a firecracker amidst dry brush on a
hillside, although done without intent to cause a fire or other harm, were sufficient
to establish the requisite malice for arson.
I. FACTS AND PROCEDURAL HISTORY
On the afternoon of July 18, 2008, V.V. and J.H. (both 17-year-olds) joined
a friend to climb a steep hill located behind a residential street in Pasadena. V.V.
lit a large firecracker, which J.H. threw onto the brush-covered hillside. The
firecracker exploded and caused a five-acre brush fire.
Abel Ramirez, a Pasadena resident, heard a ―very loud explosion‖ from his
backyard patio. He immediately saw smoke rising from the hillside and saw
flames several minutes later. Shortly thereafter, Ramirez saw three young men
running down the hill from the fire‘s point of origin. The fire was rapidly
spreading, coming within 60 to 75 feet of a residence. Ramirez called 911 to
report the fire and described the three young men. At a field show-up that day and

2
at the adjudicatory hearing, Ramirez identified V.V. and J.H. as two of the three
young men running down the hill.
Ara Moujoukian, Ramirez‘s neighbor, heard kids laughing, yelling, and
―having a good time‖ outside his house. He heard them exclaiming ―Wow,‖
―Look,‖ ―Did you see that,‖ and ―Fire.‖ Moujoukian went outside and saw three
boys laughing and ―high-fiving‖ each other. When Moujoukian asked, ―What are
you guys doing?‖ they immediately ran away. One of the three boys ―smacked‖
Moujoukian‘s car as he ran off. Moujoukian turned around and saw a fire on the
hill behind his house. He called 911 to report the fire and gave descriptions of the
three boys. At a field show-up that day and at the adjudicatory hearing,
Moujoukian identified V.V. and J.H. as two of the three boys.
Pasadena police officers responded to the 911 calls. About one-quarter
mile from the scene of the fire, they saw three people matching the description of
the suspects and detained them. Officer Brian Bozarth patted down V.V. and
found a lighter and ―a large firecracker that would be described as a cherry bomb,‖
which was about the size of a golf ball and had a fuse coming out of the top.
When Officer Bozarth discovered the firecracker, V.V. declared, ―That‘s what
caused the fire.‖ V.V. admitted that he had caused the brush fire by setting off a
firecracker on the hillside. Officer Bozarth saw a gray substance on J.H.‘s fingers
that appeared to be gunpowder from fireworks.
Firetrucks arrived and climbed three-fourths of the way up the hill. The fire
burned five acres of brush-covered hillside behind a housing development.
At the police station, Detective Jesse Carrillo read V.V. and J.H. their
Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436) and interviewed them
separately. During the interviews, V.V. and J.H. admitted that they had been
playing with firecrackers and had set the hillside on fire. They stated they had
gone to the hill with the intention of climbing it. J.H. admitted that he had brought

3
six firecrackers ―because we wanted to blow them up.‖ V.V. and the third minor
knew J.H. had the firecrackers with him. But the third minor did not want to
participate in lighting the firecrackers because he feared that someone might get
injured.
V.V. acknowledged that, although J.H. brought the firecrackers to the hill,
they both had the idea of lighting one. The minors stated that J.H. held the
firecracker, V.V. lit it with J.H.‘s lighter, and J.H. threw it. V.V. stated that they
tried to throw the firecracker onto a green area on the hillside. On the other hand,
J.H. said he told V.V. he was going to throw the firecracker onto a concrete area.
V.V. claimed that he lit the firecracker ―[j]ust to make a lot of noise,‖ and that he
did not think the green areas on the hillside would ignite. After the fire started,
they ―got kind of scared‖ because the fire could have reached them. They then
discarded the other fireworks into a sewer. The three minors ran down the hill
without stopping to report the fire to anyone.
Detective Carrillo testified that the brush fire‘s point of origin was below
the minors‘ position on the hillside. He stated that the concrete area J.H. said he
was aiming for was even further down the hillside, about 150 yards from the fire‘s
point of origin.
The Los Angeles County District Attorney filed petitions under Welfare
and Institutions Code section 602 alleging that V.V. and J.H. committed the
crimes of arson of a forest land (Pen. Code, § 451, subd. (c))1 and recklessly
causing a fire (§ 452, subd. (c)). The juvenile court found that V.V. and J.H.
understood what they were doing and that they knew ―the natural consequence
could be setting the hill on fire because they‘re trying to throw the thing into a

1 Unless otherwise noted, all statutory references are to the Penal Code.

4
patch of green or into a cement area. So they‘re trying to avoid setting the hill on
fire.‖ The court further found that V.V. and J.H. did not intend to set the hill on
fire, but concluded that because they intentionally ignited and threw the
firecracker that caused the fire, the requisite mental state for arson was met, as
construed in People v. Atkins (2001) 25 Cal.4th 76 (Atkins). The court found the
arson allegation to be true, dismissed the lesser offense of unlawfully causing a
fire, declared V.V. and J.H. wards of the state, and placed them on home
probation.
In affirming V.V.‘s wardship order, Division One of the Court of Appeal,
Second Appellate District, in an unpublished opinion, concluded that arson‘s
malice requirement was met under Atkins. The court reasoned that ―[u]ndisputed
evidence established that V.V. intentionally ignited the firecracker with the
knowledge and intent that his companion would throw the firecracker onto the
hillside and it would explode amidst dry brush. This was not an accidental
ignition, but a deliberate and intentional act of igniting and exploding the
firecracker ‗under such circumstances that the direct, natural, and highly probable
consequences would be the burning of‘ dry brush on the hill when the firecracker
exploded. (People v. Atkins, supra, 25 Cal.4th at p. 89.)‖
In setting aside the arson finding in J.H.‘s case, Division Eight of the Court
of Appeal, Second Appellate District, in a published opinion, concluded that,
under Atkins, the act of lighting and throwing a firecracker without the intent to do
harm was not malicious conduct because it was not done with ―an intent to do a
wrongful act.‖ The court struck the arson finding as to J.H. and modified the
judgment to reflect a finding that J.H. committed the lesser offense of recklessly
causing a fire.

5
 We granted review in both cases to determine the correct application of
Atkins.2
II. DISCUSSION
V.V. and J.H. argue that there is insufficient evidence of malice, as defined
in the arson statutes (§§ 450, 451), because they lit and threw the firecracker
without intent to cause a fire or any other harm. As explained below, the evidence
supports the juvenile court‘s finding that V.V. and J.H. acted with malice.
Our review of the minors‘ substantial evidence claim is governed by the
same standard applicable to adult criminal cases. (In re Muhammed C. (2002) 95
Cal.App.4th 1325, 1328.) ―In reviewing the sufficiency of the evidence, we must
determine ‗whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt.‘ [Citation.]‖ (People v. Davis (1995) 10
Cal.4th 463, 509.) ― ‗[O]ur role on appeal is a limited one.‘ [Citation.] Under the
substantial evidence rule, we must presume in support of the judgment the
existence of every fact that the trier of fact could reasonably have deduced from
the evidence. [Citation.] Thus, if the circumstances reasonably justify the trier of
fact's findings, the opinion of the reviewing court that the circumstances might
also reasonably be reconciled with a contrary finding does not warrant reversal of
the judgment. [Citation.]‖ (People v. Medina (2009) 46 Cal.4th 913, 925, fn. 2.)
―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.) ―Willfully‖ is defined
not in the arson chapter, but in section 7, item 1: ―The word ‗willfully,‘ when

2 On the Attorney General‘s motion, we ordered the cases consolidated for
purposes of briefing, oral argument, and decision.

6
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.‖ The arson chapter defines ―maliciously‖ as involving ―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).) This is the
same definition as found in section 7, item 4, except for the inclusion of ―defraud‖
in section 450.
In Atkins, we held that arson requires only a general criminal intent and that
the specific intent to set fire to, burn, or cause to be burned the relevant structure
or forest land is not an element of arson. In reaching that conclusion, we
examined the statutory terms ―willfully‖ and ―maliciously,‖ and explained:
― ‗[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.‘ [Citation.] ‗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.]‖ ‘ [Citations.] 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 further
consequence.‘ [Citations.]‖ (Atkins, supra, 25 Cal.4th at p. 85.) Similarly, the
statutory definition of ―maliciously,‖ in the context of arson, requires no specific
intent to do a further act or achieve a future consequence. (Id. at pp. 85-86.)
Other language in the arson statute ―does not require an additional specific intent
to burn a ‗structure, forest land, or property‘ . . . .‖ (Id. at p. 86.)
In Atkins, the defendant admitted that he poured a mixture of oil and
gasoline on a pile of weeds and lit the weeds with a disposable lighter in a cleared
area in a canyon that had heavy brush, trees, and grass. He claimed that he had

7
been drinking most of that day. Although the prosecution presented evidence that
he had previously threatened to burn down a nearby house, the defendant asserted
that he meant no harm and that the resultant brush fire was an accident. (Atkins,
supra, 25 Cal.4th at pp. 79-80.) We held that because arson is a general intent
crime, evidence of voluntary intoxication was not admissible on the issue of
whether the defendant formed the required mental state for arson. (Id. at pp. 79,
84.) We stated that 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.‖ (Id. at p. 86.)
Here, the evidence shows that V.V. and J.H. willfully and intentionally
ignited and threw a large firecracker onto the brush-covered hillside, that the
firecracker exploded in the dry brush, and that the explosion caused a brush fire.
Thus, the actus reus element of section 451 was met because V.V. and J.H.
willfully and intentionally committed the act that ―cause[d] to be burned . . . forest
land.‖ (§ 451.) However, V.V. and J.H. argue that their acts were not malicious.
They agree that an intent to commit the resulting harm is not an element of arson,
but argue there must be evidence they intended to cause a fire or some other harm
or ―evil result.‖
The statutory definition of arson is derived from the common law crime of
arson as a willful and malicious burning. (Atkins, supra, 25 Cal.4th at pp. 86-87.)
Although ―[m]alice as universally understood by the popular mind has its
foundation in ill-will‖ (Davis v. Hearst (1911) 160 Cal. 143, 157), it need not take
the form of malevolence or ill will. (1 Witkin & Epstein, Cal. Criminal Law (3d
ed. 2000) Crimes Against the Person, § 11, p. 213; Perkins & Boyce, Criminal
Law (3d ed. 1982) Offenses Against Habitation and Occupancy, § 2, p. 275; see
also People v. Ah Toon (1886) 68 Cal. 362, 363 [― ‗malice, in common
accept[ance], means ill-will against a person, but in its legal sense it means a

8
wrongful act, done intentionally, without just cause or excuse‘ ‖].) Malice in fact
— defined as ―a wish to vex, annoy, or injure‖ (§ 7, item 4) — consists of actual
ill will or intent to injure. (See Davis v. Hearst, supra, 160 Cal. at pp. 157-158; 1
Witkin & Epstein, Cal. Criminal Law, supra, Crimes Against the Person, § 11, p.
213.) 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.‘ ‖ (Davis v.
Hearst, supra, 160 Cal. at p. 158.) 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.‖ (See Davis v. Hearst, supra, 160 Cal. at p. 158; see
also § 450, subd. (e).) Malice in law may be ―presumed‖ or ―implied‖ from the
intentional doing of the act without justification or excuse or mitigating
circumstances. (See Davis v. Hearst, supra, 160 Cal. at p. 158; 1 Witkin &
Epstein, Cal. Criminal Law, supra, Crimes Against the Person, § 11, p. 214.)
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. (Atkins, supra, 25 Cal.4th at pp. 88-89;
accord, U.S. v. Doe (9th Cir. 1998) 136 F.3d 631, 635 [common law arson]; cf.
People v. Hayes (2004) 120 Cal.App.4th 796, 803, fn. 3 [malice will be presumed
from types of injuries (maiming) resulting from intentional acts]; People v. Nunes
(1920) 47 Cal.App. 346, 349 [same].) ― ‗An intentional act creating an obvious
fire hazard . . . done without justification . . . would certainly be malicious . . . .‘ ‖
(U.S. v. Doe, supra, 136 F.3d at p. 635, fn. 4, italics added.)
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.‖ ‘ (People v. Green [(1983) 146 Cal.App.3d 369,] 379;

9
People v. Andrews [(1965) 234 Cal.App.2d 69,] 75; 5 Am.Jur.2d [(1995)] Arson
and Related Offenses, § 7, p. 786; accord, U.S. v. Doe, supra, 136 F.3d at p. 635.)
‗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.‘ (Cf. People v. Colantuono
[(1994) 7 Cal.4th 206,] 215 [assault].) 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. (See People v. Fry [(1993) 19 Cal.App.4th 1334,] 1339;
Perkins & Boyce, Criminal Law (3d ed. 1982) Offenses Against Habitation and
Occupancy, § 2, pp. 276-277; cf. People v. Rocha [(1971) 3 Cal.3d 893,] 899
[assault]; People v. Bohmer [(1975) 46 Cal.App.3d 185,] 190 [malicious
placement of obstruction on railroad tracks].)‖ (Atkins, supra, 25 Cal.4th at pp.
88-89.)
Tracking the language with which we described arson‘s malice requirement
in Atkins, supra, 25 Cal.4th at page 89, the juvenile court stated, ―the question to
me is whether I believe that the natural and probable consequence or highly
probable consequence of lighting a firecracker on a hillside and throwing it some
distance away trying to hit a patch of green or a patch of cement . . . and then the
hill catches on fire — whether that meets the requirement of the law. And, I
guess, I think it does.‖ Thus, the juvenile court found that arson‘s malice
requirement was established in this case.3

3 Justice Werdegar‘s dissent incorrectly asserts the juvenile court failed to
find that V.V. and J.H. acted with malice. (Dis. opn. of Werdegar, J., post, at p. 3;
id. at p. 6.) In addition to expressly stating that the facts of this case ―meet[] the
requirement of the law‖ in establishing arson, the juvenile court, in sustaining the
petition‘s arson allegation, necessarily found that the element of malice was
(footnote continued on next page)

10
 Substantial evidence supports the juvenile court‘s finding of malice. V.V.
and J.H. were equal participants. Although J.H. brought large ―cherry bombs‖ to
the hill, both J.H. and V.V. had the idea of lighting one. J.H. held the firecracker
while V.V. lit it with J.H.‘s lighter. J.H. then threw the ignited firecracker into dry
brush on the hillside.
The juvenile court further found that, despite their intentional acts, V.V.
and J.H. did not intend to set the hillside on fire and tried to avoid such a
consequence. Nevertheless, the court correctly recognized ―that‘s not the issue.‖
V.V. and J.H. were not required to know or be subjectively aware that the fire
would be the probable consequence of their acts. (See U.S. v. Doe, supra, 136
F.3d at p. 635 [common law arson does not require proof of intent to burn down
building, or of knowledge this would be the probable consequence of defendant‘s
act]; cf. People v. Wyatt (2010) 48 Cal.4th 776, 781 [defendant need not know or
be subjectively aware his assaultive act is capable of causing great bodily injury];
see also People v. Hayes, supra, 120 Cal.App.4th at p. 803, fn. 3 [―[t]he second
definition — intent to do a wrongful act — has never been construed, so far as we
can determine, to require knowledge by the defendant that his or her conduct
violated social norms‖].) 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. (Cf. People v. Wyatt, supra,
48 Cal.4th at p. 781.) Here, V.V. and J.H. were aware of such facts.

(footnote continued from previous page)

established. (See Sullivan v. Louisiana (1993) 508 U.S. 275, 277-278 [in
returning guilty verdict, fact finder necessarily determines elements of crime
established by facts beyond a reasonable doubt].)

11
 Although V.V. and J.H. did not intend to set the hillside on fire, they knew
that their intentional acts created a fire hazard. J.H. told the police he attempted to
throw the firecracker onto a concrete area on the hillside, while V.V. said they
wanted to throw the firecracker onto a green area on the hillside. The juvenile
court reasonably inferred that because V.V. and J.H. tried to avoid the dry brush,
they knew a fire could result from setting off the large ―cherry bomb‖ on the
brush-covered hillside. V.V. and J.H. also told the police that the third minor did
not want to participate in lighting the firecrackers because he feared that someone
might get injured. Thus, the third minor alerted V.V. and J.H. beforehand to the
dangers of playing with firecrackers.4 Moreover, the concrete area was about 150
yards from the fire‘s point of origin and more than 150 yards away from V.V. and
J.H.. A reasonable person would not have objectively believed that a firecracker
thrown from V.V.‘s and J.H.‘s position would reach the concrete area. Thus, V.V.
and J.H. 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.

4 V.V.‘s interview with the police reflects that the third minor alerted V.V.
and J.H. to the dangers of playing with firecrackers before setting off the
firecracker on the hillside:
―[Officer]: ―Alright, so you guys climbed the mountain and then what happened?
V.V.: ―We got to the top and we‘re like and . . . we got to the top and we‘re kinda
like (unintelligible) because it is hard getting to the top.
[Officer]: ―Um-hum.
V.V.: ―We, Ivan didn’t want to because he said what if someone gets injured.
[Officer]: ―Was everyone gonna light one?
V.V.: ―No, no just one. Just to make a lot of noise. And. . .
[Officer]: Whose idea was it to light one?
V.V.: Ah, [J.H.‘s], both of us, me and [J.H.].‖

12
 Indeed, the record supports an inference that V.V. and J.H. were not
surprised or upset that the firecracker exploded in dry brush and caused a fire. Ara
Moujoukian testified that V.V. and J.H. were yelling, laughing, ―high-fiving,‖ and
seemingly having a good time moments after they realized the hillside was on
fire.5 When Moujoukian asked what they were doing, V.V. and J.H. ran away and
did not notify the authorities about the brush fire. These facts suggest that V.V.
and J.H. did not realistically expect that the thrown ―cherry bomb‖ would reach
the concrete area. From the above evidence, the juvenile court reasonably inferred
that V.V. and J.H. acted with malice.6

5 Justice Werdegar‘s dissent inaccurately asserts that the juvenile court did
not rely on Moujoukian‘s testimony about V.V.‘s and J.H.‘s laughter, yells, and
high-fiving gestures in light of the parties‘ stipulation that the witness did not tell
the police about this behavior. (Dis. opn. of Werdegar, J., post, at p. 5.) In fact,
the parties stipulated only that the interviewing officer‘s police report contained
certain statements made by Moujoukian, which did not include a description of the
above behavior. The prosecutor specifically stated, ―we‘re not including in the
stipulation as to what was exactly was told or not told‖ to the officer. The court
accepted the stipulation and never expressed or implied any doubt about
Moujoukian‘s testimony. We must presume in support of the judgment the
existence of every fact that the trier of fact could reasonably have deduced from
the evidence. (People v. Medina, supra, 46 Cal.4th at p. 925, fn. 2.)
6 In arguing that the majority opinion does not comport with the law (dis.
opn. of Werdegar, J., post, at p. 1), Justice Werdegar‘s dissent repeatedly asserts
that the majority presumes malice simply from the commission of the volitional
act that causes a fire to start. (Id. at pp. 3, 6-7.) In making these assertions, the
dissent never recognizes that, in upholding the juvenile court‘s malice finding, we
have applied the standard of malice, as stated in Atkins. (Ante, at p. 10.) There,
we stated ―[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.‖
(Atkins, supra, 25 Cal.4th at p. 89, italics added.) The unitalicized language
describes arson‘s willful requirement, or as the dissent characterizes it, the
―volitional act‖ requirement (dis. opn. of Werdegar, J., post, at p. 3), 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
(footnote continued on next page)

13
 V.V. and J.H. claim that the evidence supports a finding only that they had
committed the offense of unlawfully causing a fire (§ 452) because their conduct
was reckless and resulted in an accidental fire. ―[T]he offense of unlawfully
causing a fire covers reckless accidents or unintentional fires, which, by definition,
is committed by a person who 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.‘ (§§ 450, subd. (f), 452.)‖ (Atkins,
supra, 25 Cal.4th at p. 89.) We disagree.
This was not an accidental or unintentional ignition. A similar situation
occurred in U.S. v. Doe, supra, 136 F.3d 631, which we cited with approval in
Atkins, supra, 25 Cal.4th at page 88. There, a juvenile intentionally set fire to
paper towels in a dispenser in the girls‘ bathroom of a school. With a lighter, the
juvenile lit one corner of a paper towel from the dispenser, let the towel burn for a
few seconds, blew out the flame, and put the burned towel in the sink. She then lit
the left corner of a paper towel protruding from the dispenser, let the flame burn
for a second, and blew it out. She lit the right corner of the same towel in the
dispenser, blew it out, and left the bathroom. The building caught fire. An
investigation revealed that the fire originated in the girls‘ bathroom. (U.S. v. Doe,
supra, 136 F.3d at pp. 633-634, 636.) In affirming the juvenile‘s arson conviction,
the court did not base its decision on whose paper towels were set on fire and left
smoldering in the bathroom. (See dis. opn. of Kennard, J., post, at p. 2.) Instead,
in construing the common law definition of arson, the court reasoned that the

(footnote continued from previous page)

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.

14
―elements of willfulness and maliciousness are established by proof that the
defendant set the fire intentionally and without justification or lawful excuse‖ with
―no suggestion that the fire started as a result of accident or negligence.‖ (U.S. v.
Doe, supra, 136 F.3d at pp. 635-636.)7
As in U.S. v. Doe, supra, 136 F.3d 631, the evidence here supports the
juvenile court‘s finding that V.V.‘s and J.H.‘s intentional conduct of setting fire to
and throwing a large ―cherry bomb‖ that exploded in dry brush, causing a fire, was
willful and malicious.8

7 In Atkins, supra, 25 Cal.4th 76, 89, we observed that ―reckless accidents or
unintentional fires may include those caused by a person who recklessly lights a
match near highly combustible materials.‖ Defendants argue that their conduct
was more akin to this type of reckless conduct. The Attorney General responds
that the affirmative acts of lighting and throwing a firecracker into dry brush is
qualitatively different from merely lighting a match near combustible materials.
She counters that more apt examples of reckless behavior would be an instance
when a person who carves open a firecracker to check for gunpowder, next to a lit
cigarette — and it explodes in a location of obvious fire danger; or a person who
lights a firecracker, but instead of throwing it, fumbles with it, and it falls on dry
brush; or a farmer who burns crops on a very windy and dry day.
In U.S. v. Doe, supra, 136 F.3d 631, the court compared the facts of that
case to other types of conduct, such as the burning of a building caused by a
smoldering cigarette butt tossed into a trash can or caused by lighted candles
placed too close to drapes. The court distinguished those hypotheticals,
commenting that ―the present case . . . is more analogous to intentionally setting
fire to the drapes and then walking away in the (erroneous) belief that the fire had
been blown out. While one can argue that that is a close case for the trier of fact,
on that evidence the trier of fact would be entitled to return a verdict of guilty.‖
(U.S. v. Doe, supra, 136 F.3d at p. 635, fn. 5.) Similarly, defendants‘ conduct here
is more analogous to intentionally throwing a lighted match on a brush-covered
hill, unsuccessfully aiming for a concrete area amidst the dry brush, and causing a
brush fire.
8 Contrary to the Justice Werdegar‘s dissent, our holding would not ―render
every unlawful fire under section 452 also an arson under section 451.‖ (Dis. opn.
of Werdegar, J., post, at p. 7.) ―That defendant‘s willful and malicious conduct
may also have been reckless does not suggest that he may not be convicted of
(footnote continued on next page)

15
 III. DISPOSITION
We affirm the judgment of the Court of Appeal relating to the arson finding
in V.V.‘s case. We reverse the judgment of the Court of Appeal relating to the
arson finding in J.H.‘s case and remand the case to that court for further
proceedings consistent with this opinion.
CHIN, J.

WE CONCUR:

CANTIL-SAKAUYE, C.J.
BAXTER, J.
CORRIGAN, J.
BANKE, J.*

(footnote continued from previous page)

arson . . . or that his culpability is the same as someone who [performs the act]
recklessly.‖ (People v. Fry (1993) 19 Cal.App.4th 1334, 1339.)

* Associate Justice of the Court of Appeal, First Appellate District, Division One,
assigned by the Chief Justice pursuant to article VI, section 6 of the California
Constitution.

16
 DISSENTING OPINION BY KENNARD, J.

One dry summer day, two teenagers lit a type of firecracker commonly
known as a ―cherry bomb‖ and threw it down a brush-covered hill. When the
cherry bomb exploded, the brush caught fire. The teenagers who threw the cherry
bomb (V.V. and J.H.) were captured and were later found guilty in juvenile court
of arson of forest land. (Pen. Code, § 451, subd. (c).)1
The majority here upholds the juvenile court‘s finding. I disagree. As
Justice Werdegar‘s dissent (which I have signed) persuasively explains, the
evidence is insufficient to show that V.V. and J.H. acted with malice, a necessary
element of the crime of arson. Instead, they were guilty only of reckless
firesetting (§ 452), which is a serious crime but not so serious as arson. I write to
comment on the majority‘s erroneous assertion that the fire started by V.V. and
J.H. was not accidentally set.
As this court explained in People v. Atkins (2001) 25 Cal.4th 76,
California‘s arson statute applies only to fires that are set deliberately, not to those
set accidentally. The statutory requirement that the defendant act willfully and
with malice, we said, ―ensures that the setting of the fire must be a deliberate and

1 All statutory citations are to the Penal Code.

1
intentional act, as distinguished from an accidental or unintentional ignition or act
of setting a fire.‖ (Id. at p. 88.) By contrast, we said, the crime of reckless
firesetting (§ 452) ―covers reckless accidents or unintentional fires [caused by] a
person who 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.‘ ‖ (Atkins at p. 89, quoting §§ 450, subd. (f), 452.)
Here, the court commissioner hearing the matter expressly found that V.V.
and J.H. did not intend to set the fire that resulted when the cherry bomb exploded
on the hillside. Nevertheless, the majority concludes: ―This was not an accidental
or unintentional ignition.‖ (Maj. opn., ante, at p. 14.) The majority‘s only
explanation for that bald assertion is to say that the facts here are comparable to
those of U.S. v. Doe (9th Cir. 1998) 136 F.3d 631 (Doe), a case cited with
approval in People v. Atkins, supra, 25 Cal.4th at page 88. In Doe, a juvenile
intentionally set fire to several paper towels from a dispenser in a school restroom.
Although she blew out the flame, sparks remained, which eventually set the
building on fire. The federal Court of Appeals upheld the juvenile‘s arson
conviction, reasoning that she had acted maliciously because she ―set the fire
intentionally and without justification or lawful excuse.‖ (Doe, supra, at pp. 635-
636.)
But the facts here are not comparable to those of Doe, supra, 136 F.3d 631.
The minor in Doe intentionally and illegally set fire to the school’s property (the
paper towels) and the fire thereafter spread. Intentionally setting that fire was the
illegal act that furnished the requisite malice to support the arson conviction in that
case. Here, by contrast, V.V. and J.H. did not intentionally set a fire; they
exploded a cherry bomb. That act, under the circumstances in which they did it,
was criminally reckless, and it therefore violated section 452 (reckless firesetting).
But because the fire that resulted from the explosion was accidental, they were not

2
guilty of arson of forest land, the offense the court commissioner found them to
have committed.
In short, V.V. and J.H. performed three intentional acts which, in
combination, resulted in the hillside being set ablaze: (1) they lit a match; (2) they
used the match to light the fuse to a cherry bomb; and (3) they flung the cherry
bomb down the hillside just before it exploded. The first and second of these acts
were innocuous and entirely proper, assuming it was legally permissible to use
fireworks in the area where they were standing (an assumption unrebutted by the
record in this case); the third act was criminally reckless. But by committing the
third act, V.V. and J.H. did not deliberately set a fire. Although a fire resulted
from that act, that fire was an accident: As V.V. told the police officer that
questioned him, they set off the cherry bomb ―[j]ust to make a lot of noise.‖ They
therefore did not act maliciously, and thus were not guilty of violating section
451‘s subdivision (c) (arson of forest land).

KENNARD, J.

3
 DISSENTING OPINION BY WERDEGAR, J.

The majority opinion, in my view, comports with neither the facts nor the
law. Accordingly, I respectfully dissent.
The minors in this case played with fireworks on the edge of the Angeles
National Forest shortly after July 4th, when fireworks were plentiful and the brush
was dry. Their reckless conduct would, if committed by adults, have constituted
the felony of unlawfully causing a fire. (See Pen. Code, § 452.)1 Contrary to the
majority, however, the minors‘ conduct did not amount to arson. (§ 451.)
A person is guilty of arson when he or she ―willfully and maliciously sets
fire to . . . forest land . . . .‖ (§ 451.) ―Willfully,‖ for all practical purposes, means
nothing more than that the prohibited act was intentionally done. (See People v.
Atkins (2001) 25 Cal.4th 76, 85 (Atkins).) The term ―implies simply a purpose or
willingness to commit the act . . . . It does not require any intent to violate law, or
to injure another . . . .‖ (§ 7, par. 1.) There is no dispute that the minors willfully
— that is intentionally — lit the firecracker that started the fire. In contrast, the
term ―maliciously‖ imports an additional element, namely, ―a wish to vex,

1 All further citations to statutes are to the Penal Code.

1
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).)
The court commissioner who conducted the juvenile hearing in this case
expressly found the minors did not intend to set the hillside on fire. He believed
the dispositive question was simply whether ―the natural and probable
consequence or highly probable consequence of lighting a firecracker on a hillside
and throwing it some distance away trying to hit a patch of green or a patch of
cement‖ satisfied the statutory definition of arson. (§ 451.) Certainly the minors
lit the firecracker ―willfully‖ (ibid.); the act was clearly volitional. But nothing in
the record justifies the majority‘s conclusion the minors also lit the firecracker
―maliciously.‖ (Ibid.) No evidence was introduced to show the minors had ―a
wish to vex, defraud, annoy, or injure another person, or an intent to do a wrongful
act . . . .‖ (§ 450, subd. (e), italics added.) The only evidence concerning the
minors‘ purpose in lighting fireworks comes from their statements to police and
reflects nothing more than a common youthful enthusiasm for loud noises.2 Had
the minors lit fireworks in violation of an ordinance prohibiting them, their
conduct would certainly have been ―wrongful,‖ and thus malicious (§ 450, subd.
(e)), but the People do not claim the minors violated any such ordinance.
The majority offers various analytical paths to the conclusion that the
minors acted with malice. I find all of them unsupportable. At one point, the
majority seems to presume malice ―from the deliberate and intentional ignition or

2 V.V. told police that he and J.H. had lit the firecracker ―just to make a lot of
noise.‖ J.H. explained he had gotten the fireworks on ―July, 4th of July. And . . .
there was a bunch of fireworks in Compton and I just saw some guys, like a
[round] of guys throwing some fireworks. Boom! And they were like exploding
and it was like wow!‖

2
act of setting a fire without a legal justification, excuse, or claim of right.‖ (Maj.
opn., ante, at p. 9, italics added.) This approach has two problems. First, the
minors did not intend to set a fire at all, as the commissioner expressly held, let
alone maliciously. What they intended was to explode a firecracker. The majority
does not argue the minors committed arson by setting fire to the firecracker, as
that view of the facts would implicate not the general prohibition of arson (§ 451),
but a different provision punishing those who set fire to their own property and
thereby cause injury to forest land (§ 451, subd. (d)). Second, the authority the
majority offers as support (Atkins, supra, 25 Cal.4th 76, 88-89) for presuming
malice under these circumstances provides no support. What we actually stated in
Atkins is that ―[a]rson‘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.‘ ‖ (Id., at p. 88, quoting 5 Am.Jur.2d (1995) Arson and Related
Offenses, § 7, p. 786, italics added.) Malice thus requires, in addition to an
intentional (i.e., volitional, willful) act, a wrongful one. Or, to quote the relevant
California statute, ―a wish to vex, defraud, annoy, or injure another person, or an
intent to do a wrongful act . . . .‖ (§ 450, subd. (e).) Today, the majority ignores
the requirement of wrongfulness and presumes malice simply from the
commission of the volitional act that causes a fire to start, thus eviscerating the
statutory requirement of malice.
Later in its opinion, trying another approach, the majority asserts the
commissioner found the minors acted with malice. (Maj. opn., ante, at p. 10.)
Had he done so, he would on this record have erred. But in fact, the commissioner
made no such finding; like the majority, he presumed malice simply from the

3
lighting and throwing of the firecracker.3 The record discloses the only aspect of
the mental state required for arson to which the commissioner directed his
attention was the holding of Atkins, supra, 25 Cal.4th 76, 84, that arson does not
require ―the specific intent to set fire to or burn or cause to be burned the relevant
structure or forest land . . . .‖ He made no effort to determine whether the minors
had acted, in the words of the statute, with ―a wish to vex, defraud, annoy, or
injure another person, or an intent to do a wrongful act . . . .‖ (§ 450, subd. (e).)
The commissioner may have proceeded as he did from a misreading of
Atkins, supra, 25 Cal.4th 76, where the defendant deliberately ignited a fire in
weeds near the house of a man he had declared he hated, resulting in the burning
of an entire canyon. Rejecting the defendant‘s argument that arson requires the
specific intent to burn the relevant structure or forest land, thus allowing a defense
of voluntary intoxication, we concluded 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.‖ (Id., at
p. 84.) In this context of the defendant‘s deliberate setting of fire to weeds, which
in turn ignited a canyon, we explained that ―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.‖ (Id., at p. 89, italics added.)

3 The commissioner explained his ruling in these words: ―The question to
me is whether I believe that the natural and probable consequence or highly
probable consequence of lighting a firecracker on a hillside and throwing it some
distance away trying to hit a patch of green or a patch of cement. So it does not
cause the hill to catch on fire and then the hill catches on fire whether that meets
the requirement of the law. And, I guess, I think it does. That‘s notwithstanding
the fact that I don‘t believe the kids had any intention to set the hill on fire; that‘s
not the issue.‖

4
 Now embracing the commissioner‘s misreading of Atkins, supra, 25 Cal.4th
76, the majority describes the italicized language quoted above as ―describ[ing]
arson‘s malice requirement . . . .‖ (Maj. opn., ante, at p. 10.) To the contrary,
Atkins repeatedly describes the element of malice as requiring something in
addition to the intent to commit the volitional act that starts a fire, namely, ― ‗a
wish to vex, defraud, annoy, or injure another person, or an intent to do a wrongful
act . . . .‘ ‖ (Atkins, at p. 85, quoting § 450, subd. (e); see also Atkins, at p. 88.)4
This additional element was present in Atkins; it is not present here.
The majority‘s effort to demonstrate the evidence in this case would have
supported a finding of malice is unconvincing. First, relying on the testimony of
one of the two homeowners who reported the fire, the majority states the minors
―were yelling, laughing, ‗high-fiving,‘ and seemingly having a good time
moments after they realized the hillside was on fire.‖ (Maj. opn., ante, at p. 13.)
What the majority overlooks is that the commissioner did not rely on this
testimony, after the parties stipulated and the commissioner acknowledged the
witness had mentioned no such behavior when interviewed by police.5 Instead of
relying on disputed circumstantial evidence of the minors‘ mental state, the
commissioner as noted simply presumed malice from the fact they had lit and
thrown a firecracker. Second, the majority states that a third minor, who did not
want to participate in lighting fireworks, had ―feared that someone might get

4 ―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.‘ [Citation.]‖ (Atkins, supra, 25 Cal.4th 76, 88.)
5 Similarly, although the majority asserts the minors ―were not surprised or
upset that the firecracker exploded in dry brush and caused a fire‖ (maj. opn., ante,
at p. 13), the minors actually stated they were ―scared‖ (V.V.) and ―terrified‖
(J.H.).

5
injured‖ and thus ―alerted V.V. and J.H. beforehand to the dangers of playing with
firecrackers.‖ (Maj. opn., ante, at p. 12.) While J.H. did tell police the third minor
feared someone might get hurt, the third minor mentioned injury due to fire only
after the fire started, as part of the minors‘ discussion about whether they should
turn themselves in to the authorities.6 Finally, the majority asserts the minors ―ran
away and did not notify the authorities about the brush fire.‖ (Maj. opn., ante, at
p. 13.) This statement, too, mischaracterizes the record. The minors, who had no
cell phone and no prior involvement with the criminal justice system, ran down the
hill and immediately volunteered to the first officer they encountered their role in
starting the fire.7
In short, I find no substantial evidence in the record to support the finding
of malice the arson statute requires but the commissioner failed to make. Nor,
absent such evidence, can I agree with the majority that malice may be presumed
simply from the doing of a volitional act that is not inherently or necessarily
―wrongful‖ (§ 450, subd. (e)) or done with ―a wish to vex, defraud, annoy, or
injure another person . . .‖ (ibid.).

6 J.H. told police: ―After that we were like, ‗Dude, we should just give
ourselves in cause we did it.‘ He’s like, and someone might get hurt. We were
like damn, we started a fire.‖ (Italics added.)
7 J.H.: ―And when we got down there, we were like, ‗Dude, we, we should
just . . .‘ like ‗cause like even if . . . like we knew the cops were coming and we,
like, we didn‘t even ran, like we ran at first and then we were like, ‗Dude, naw.
We‘re gonna stop and we‘re gonna give ourselves in.‘ And then like when the
cops came, we were just like stop them and were like ok yeah we did it. It was us.
He didn‘t even ask us anything. We were like, ‗we started the fire, it was us.‖
At the juvenile court hearing, the People did not call as a witness the police
sergeant who first encountered and spoke with the minors after the fire started.
The later arriving officer who did testify acknowledged he did not know what the
minors and the sergeant had said to one another.

6
 The majority‘s determination the minors committed arson is particularly
inappropriate in light of section 452, which the Legislature enacted in 1979
specifically to punish reckless behavior that sets fire to forest lands. Under section
452, ―[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.‖ The
term ―recklessly,‖ in this context, ―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).) The enrolled bill report on the legislation that became section
452 cited carelessness with fireworks as a paradigmatic example of conduct the
Legislature intended to reach.8 (See generally Conservatorship of Whitley (2010)
50 Cal.4th 1206, 1218, fn. 3 [enrolled bill reports properly considered as evidence
of legislative intent].)
To presume malice from nothing more than the volitional act that causes a
fire to start could render every unlawful fire under section 452 also an arson under
section 451. The Legislature, which we assume does not perform idle acts or
enact superfluous legislation (e.g., Imperial Merchant Services, Inc. v. Hunt
(2009) 47 Cal.4th 381, 390), could not have intended this result. Evidently
anxious to avoid any such logical, albeit extreme, extension of its holding, the
majority offers hypothetical fire-starting scenarios to demonstrate that not all

8 ―For example, though unintended, a fire which results from gross
carelessness would qualify (such as playing with matches or fireworks or
unattended campfires).‖ (Health & Welf. Agency, Enrolled Bill Rep. on Sen. Bill
No. 116 (1979-1980 Reg. Sess.) June 2, 1979, p. 1.)

7
recklessly started fires will qualify as arson. I find the scenarios either contrived
and implausible, as that of ―a person who carves open a firecracker to check for
gunpowder, next to a lit cigarette‖ (maj. opn., ante, at p. 15, fn. 7), or practically
indistinguishable from the case before us, as that of ―a person who lights a
firecracker, but instead of throwing it, fumbles with it, and it falls on dry brush‖
(ibid.). To attribute special significance to the fact a firecracker is thrown, as the
majority does, seems odd, because one does not ordinarily continue to hold a
firecracker that is about to explode. Had the minors deliberately thrown the
firecracker into dry brush, the throwing might have had special significance. But
the commissioner expressly found the minors had not intended to set a fire and
expressly based his ruling on the assumption they were ―trying to hit a patch of
green or a patch of cement.‖
In summary, I find the majority‘s reasoning and conclusion unsupportable.
Accordingly, I dissent.
WERDEGAR, J.

8
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion In re V.V. and In re J.H.
__________________________________________________________________________________

Unpublished Opinion XXX NP opn. filed 9/24/09 – 2d Dist., Div. 1 (In re V.V.)
Original Appeal
Original Proceeding
Review Granted XXX 179 Cal.App.4th 1337 (In re J.H.)
Rehearing Granted

__________________________________________________________________________________

Opinion No. S177654 and S179579
Date Filed: June 6, 2011
__________________________________________________________________________________

Court: Superior
County: Los Angeles
Judge: Robert Leventer, Juvenile Court Referee

__________________________________________________________________________________

Counsel:

Laini Millar Melnick, under appointment by the Supreme Court, for Defendant and Appellant V.V.

Nancy L. Tetreault, under appointment by the Supreme Court, and Holly Jackson, under appointment by
the Court of Appeal, for Defendant and Appellant J.H.

Edmund G. Brown, Jr., and Kamala G. Harris, Attorneys General, Dane R. Gillette, Chief Assistant
Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lance E. Winters, Susan D.
Martynec, Paul M. Roadarmel, Jr., and Robert M. Snider, Deputy Attorneys General, for Plaintiff and
Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Laini Millar Melnick
610 Anacapa Street
Santa Barbara, CA 93101
(805) 564-7025

Nancy L. Tetreault
346 No. Larchmont Boulevard
Los Angeles, CA 90004
(310) 832-6233

Robert M. Snider
Deputy Attorney General
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
(213) 897-2387