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Name: People v. Rubino
Case #: H042666
Court: CA Court of Appeal
District 6 DCA
Opinion Date: 12/12/2017

Read in its entirety, the attempted arson instruction sufficiently defined the mental state required for the offense, which is the intent to set fire to the structure or property. Rubino was caught on video surveillance placing combustible material and fluid into the metal drop box of the office of the mobile home park where he lived. He also lit a rolled up piece of paper and placed it into the drop box. At his trial on arson charges, Rubino testified he staged the arson attack on the manager’s office but did not intend to cause harm. He was convicted of attempted arson. On appeal he argued the attempted arson instruction (CALCRIM No. 1520) fails to instruct on the specific intent required for the crime. Held: Affirmed. The trial court instructed the jury with CALCRIM No. 1520, which sets forth as elements of attempted arson that the defendant attempted to set fire to or burn a structure or property and that he acted willfully and maliciously. It defined “attempt” as the act of placing any flammable, explosive, or combustible material in or around the property with the intent to set fire to it. Read in its entirety, the instruction includes the required mental state of specific intent: the intent to set fire to the structure or property. The California Supreme Court has recognized the placement of flammable material in or about a structure as attempted arson when done with the specific intent to willfully and maliciously set fire to the structure. This accords with the general attempt statute, which states that an attempt to commit a crime consists of a specific intent to commit the crime, and a direct but ineffectual act done towards its commission (Pen. Code, § 21a). The instruction is not erroneous.

CALCRIM No. 1520 is not ambiguous in defining the mental state for attempted arson. Rubino argued that CALCRIM No. 1520 is ambiguous in defining the specific intent required for attempted arson. However, the instruction provides that a person attempts to set fire or burn a structure or property when he places flammable, combustible or explosive material in or around it with the intent to set fire to it. The “it” referred to is the property, and this is not ambiguous. In any event, there is no reasonable likelihood the jury misunderstood the instruction.

The fact the jury may not have received a copy of the attempted arson instruction did not prejudice defendant. Rubino pointed out that the set of instructions in the clerk’s transcript did not contain CALCRIM No. 1520 on attempted arson, and this meant the jury did not receive a copy of that instruction. The Court of Appeal did not necessarily reach the same conclusion based on the record, although it found there was an incomplete set of jury instructions in the clerk’s transcript. The trial court must either provide the jury with a set of written instructions or advise them the instructions are available if requested (Pen. Code, § 1093, subd. (f)). But failure to do so does not implicate any provision of the state or federal Constitution. Even if the jury did not receive a complete set of instructions in this case, there is no reasonable probability of a result more favorable to Rubino in the absence of this error.

The full opinion is available on the court’s website here: