Prosecution may obtain an indictment charging defendant with arson (Pen. Code, § 451) despite the fact he was already held to answer for illegal burning (Pen. Code, § 452). In July 2012, Mason threw an illegal firework into a swimming hole. It floated on the surface of the water, then exploded, shooting sparks into the air. Some of the sparks landed on dry brush and ignited a forest fire that burned 2,650 acres. He was initially charged by complaint with arson with enhanced penalties and the lesser offense of unlawful burning. At the preliminary hearing the arson charges were dismissed and he was held to answer on the lesser offense. The People did not file an information; instead they convened a grand jury and obtained an indictment charging Mason with arson. Mason moved to set aside the indictment (Pen. Code, § 995) on numerous grounds, including that the prosecution was prohibited from proceeding by indictment on the arson charges because he was still held to answer on the unlawful burning charge. When his motion was denied, Mason sought writ relief. Held: Petition for writ of prohibition or mandate denied. The prosecution may elect to start a prosecution over either by a new complaint or by indictment following a magistrate’s order of dismissal. (People v. Uhlemann (1973) 9 Cal.3d 662, 664.) Here, the magistrate’s failure to hold Mason to answer on the arson charges is the equivalent of a dismissal pursuant to section 871. (People v. Superior Court (Martinez) (1993) 19 Cal.App.4th 738, 744.) Additionally, the case was effectively dismissed because the time for filing an information had run, the prosecution represented it would not be filing an information, and Mason was not in custody. Even assuming the unlawful burning charge was not dismissed, the prosecution could proceed by way of indictment prior to dismissal of the complaint. (People v. Carrington (2009) 47 Cal.4th 145.)

Prosecutor need not affirmatively inform grand jury that a defendant was not held to answer on a charge at the preliminary hearing. Mason also argued the prosecutor failed to inform the grand jury that he was not held to answer on at the preliminary hearing on the arson charges, that the charges were dismissed, and that he was only held to answer on the lesser offense of unlawful burning. However, the grand jury was provided a transcript of the preliminary hearing and hence could have determined these things. According to the Court of Appeal, “[t]hat is sufficient.”

Prosecutor had no duty to instruct grand jury on lesser included offense absent an explicit request. The grand jury was not instructed on the lesser included offense of unlawful burning. Mason also argued that this was error. The Court of Appeal disagreed. The People have no sua sponte duty to instruct the grand jury on a lesser included offense unless the grand jury “specifically requests” an instruction on lesser included offenses. (Cummiskey v. Superior Court (1992) 3 Cal.4th 1018.) Here, three jurors asked questions showing concern about the meaning of the instruction on arson and its application to Mason, but none of the comments suggested that they were specifically requesting an instruction on lesser included offenses. Because there was no specific request, the prosecutor had no duty to instruct.

Mens rea for arson does not require an intent to cause a fire. The grand jury was instructed that it did not need to find that Mason intended to cause a forest fire. Instead, the grand jury was instructed that an act causes burning of forest land if the burning was the direct, natural, and probable consequence of the act. Mason argued this misstated the mens rea for arson. The Court of Appeal disagreed. Although section 451 provides that a person is guilty of arson if he or she “willfully and maliciously sets fire to or burns or causes to be burned . . . forest land, or property,” People v. Atkins (2001) 25 Cal.4th 76 and In re V.V. (2011) 51 Cal.4th 1020, clarified that this does not require an intent to burn the relevant property; all that is needed is an intent to do an act, the direct, natural, and highly probable consequences of which is the burning of a relevant property. Thus, the grand jury was properly instructed. The Court of Appeal also rejected Mason’s challenges to the sufficiency of the evidence. [Editor’s Note: Justice Blease dissented to express his disagreement with Atkins.]