What is the standard standard of review in determining whether an arsonist's intent to set fire to a structure or property is sufficient to constitute an arson?

Defendant argues that CALCRIM No. 1520 fails to instruct on specific intent, a required element of attempted arson. We apply an independent standard of review in determining whether the instruction correctly states the law. ( People v. Posey (2004) 32 Cal.4th 193, 218, 8 Cal.Rptr.3d 551, 82 P.3d 755.)

In arguing that CALCRIM No. 1520 fails to list every element of attempted arson, defendant focuses only on the sentence describing what the prosecution must prove. In his view, the jury was instructed to "first find that the defendant committed an act in an attempt to set fire to a structure," and then "find that the defendant carried out that act with a willful and malicious mental state." But the instruction also contains definitions. It defines an "attempt to set fire or to burn " a structure or property as "plac[ing] any flammable, explosive, or combustible material or device in or around" the structure or property "with the intent to set fire to it." ( CALCRIM No. 1520.) Read in its entirety, the instruction includes the required mental state for attempted arson: the specific intent to set fire to the structure or property. The instruction further mirrors Penal Code section 455 by requiring that the defendant act willfully and maliciously. Those mental states are not inconsistent with the specific intent to set a fire. ( People v. Atkins , supra , 25 Cal.4th at p. 87, 104 Cal.Rptr.2d 738, 18 P.3d 660.) Thus, the standard jury instruction used here accurately tracked the language of Penal Code section 455 and included all elements of the offense.

[227 Cal.Rptr.3d 80]