APPEAL from an order of the Superior Court for the County of Los Angeles. Robert Leventer, Referee. Affirmed as modified. (Los Angeles County Super. Ct. No. GJ25587).
The opinion of the court was delivered by: Mohr, J.*fn8
CERTIFIED FOR PUBLICATION
A person is guilty of arson if he or she "willfully and maliciously sets fire to or burns or causes to be burned" any structure, forest land, or property. (Pen. Code, § 451.)*fn1 The juvenile court found a minor was guilty of arson after the minor and his friends lit a firecracker (a "cherry bomb") in a wooded area and caused a fire that burned five acres of forest land. Although the court found that the minors "had no intention to set the hill on fire" and were "basically good kids" who were "playing with firecrackers," the court concluded that, under People v. Atkins (2001) 25 Cal.4th 76 (Atkins), "[a]ll they had to do is intend to light the firecracker" in order to be guilty of arson.
We conclude the juvenile court misapplied the principles stated in Atkins, and there was no evidence that the act that caused the fire was done with the requisite mental state, i.e., maliciously. The trial court should have found the minor guilty of the lesser included offense of unlawfully causing a fire, and we modify the judgment accordingly.
FACTUAL AND PROCEDURAL BACKGROUND
On July 22, 2008, the Los Angeles County District Attorney filed a two-count petition alleging that the 17-year-old minor, J.H., came within the provisions of section 602 of the Welfare and Institutions Code, in that he committed the crime of arson of a structure or forest land, a felony (§ 451, subd. (c)) (count 1), and the crime of recklessly causing a fire of a structure or forest land, a felony (§ 452, subd. (c)) (count 2). The minor denied the allegations. After the People presented evidence on November 5, 2008, the juvenile court sustained the petition on count 1 (arson) and dismissed count 2. The court placed the minor home on probation, with six years as the maximum period of confinement.*fn2
The minor filed a timely appeal, contending the evidence was insufficient to sustain the true finding on the arson count.
The evidence showed the following. On the afternoon of July 18, 2008, Abel Ramirez, a Pasadena resident, was on his patio and heard a "very loud boom." Almost immediately thereafter, he saw smoke rising from a field on the side of a hillside behind his house, and several minutes later he saw a fire. He then spotted three young people running down the hill, one of whom was the minor. He called 911 to report the fire and later identified the minor by the clothes he was wearing. Another witness, Ara Moujoukian, heard noise in front of his house near the same location. The noise sounded like young people exhibiting "erratic behavior" and "yelling `wow, look. Look.'" He also heard laughing. He went outside to see what was happening and encountered three young people, one of whom was J.H. When he asked them what they were doing, they ran away. Then he noticed the fire on the hill behind his house and called 911. Moujoukian later identified J.H. and the others as the young people he had seen.
Officer Brian Bozarth and Sergeant Bugh responded to the scene and saw the three young people walking in the street about one-quarter of a mile from the fire. Sergeant Bugh detained the three. A patdown search of one of the three (not J.H.) disclosed a lighter and "a large firecracker that would be described as a cherry bomb," about the size of a golf ball, with a fuse coming out of the top. The individual who was searched told Officer Bozarth, referring to the firecracker, "`That's what caused the fire,'" and that "he blew one up on the hill which caused the bush to catch on fire." Bozarth also noticed that J.H. had a gray substance on his fingertips that resembled gunpowder from fireworks.
The parties stipulated that the fire prevention officer who investigated the fire would have testified that he did not find any physical evidence of an ignition source, and that the fire/burn indicators and damage to the slope were consistent with having been caused by an incendiary device such as a cherry bomb or firecracker.
Detective Jesse Carrillo interviewed J.H. and another individual. The boys indicated they had gone to the area in order to climb the hillside and then go to Chinatown to eat. They explained to Carrillo that they lit the firecracker "[j]ust to make a lot of noise," and J.H. told Carrillo that he intended to throw the firecracker toward a concrete area.*fn3 (A cement drainage area was located, Carrillo estimated, about 150 yards from the fire's origin.) When they threw the firecracker, the boys "were positioned at an area looking down to where the flash-point was...."
J.H. presented no evidence. The court heard closing arguments and made these observations:
* "Why isn't this just reckless conduct[?] If these kids didn't want to set the hill on ...