People v. Kent W.

Opinion

CARR, J.

Appellant, a minor, appeals from an order sustaining an allegation that he committed an attempt to unlawfully set a fire (Pen. Code, §§ 452, 664; all further statutory references are to this code). We conclude this is not a crime in California and shall reverse.

Discussion

This case turns on the question of intent. There is no dispute concerning the facts underlying the charge. The minor lit a paper towel that was

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protruding from the ventilation slots on the front of a gym locker. The only question on appeal is whether when the fire fizzles out and the locker remains unscorched, the minor may be found to have committed an attempt to unlawfully cause a fire. (§§ 452, 664.)

Section 452 states: “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.”

“Recklessly” is defined in section 450, subdivision (f) as meaning “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.” In this case, we do not have a successful burning and therefore the minor was charged with attempting to violate section 452. (§ 664.) “An attempt to commit a crime consists of two elements, namely, a specific intent to commit the crime, and a direct but ineffectual act done toward its commission.” (CALJIC No. 6.00; accord

People

v.

Broussard

(1977) 76 Cal.App.3d 193, 197 [142 Cal.Rptr. 664]; see also Perkins on Criminal Law (3d ed. 1982) pp. 637-642.)

In

Broussard,

the defendant was acquitted of attempted murder and voluntary manslaughter but found guilty of attempted involuntary manslaughter. (76 Cal.App.3d at p. 196.) Analyzing the target offense of manslaughter, the Court of Appeal concluded “Involuntary manslaughter is thus inherently an unintentional killing.’’