PEOPLE v. ATKINS (1999)

Court of Appeal, Third District, California.

The PEOPLE, Plaintiff and Respondent, v. Robert Nelson ATKINS, Defendant and Appellant.

No. C029002.

Decided: August 23, 1999

Victor Blumenkrantz, by appointment of the Court of Appeal under the Central California Appellate Program, Berkeley, for Defendant and Appellant. Daniel E. Lungren and Bill Lockyer, Attorneys General, George Williamson, Chief Assistant Attorney General, Robert R. Anderson, Senior Assistant Attorney General, Mathew Chan and Kelly E. LeBel, Deputy Attorneys General, for Plaintiff and Respondent.

A jury convicted defendant Robert Nelson Atkins of arson of forest land, found he had two prior convictions that qualified as “strikes” under the three strikes law (a 1983 robbery conviction and a 1991 firearm assault conviction), and found that the 1991 conviction was a serious felony for which he had served a recent prison sentence.  (Pen.Code, §§ 451, subd. (c);  667, subds. (b)-(i);  667, subd. (a)(1);  667.5, subd. (b);  all further references to statutory sections are to the Penal Code.)

The principal issue in this appeal is whether a trier of fact may consider evidence of voluntary intoxication regarding the intent required for arson, an intent delineated in our decisions in In re Stonewall F. (1989) 208 Cal.App.3d 1054, 256 Cal.Rptr. 578 (Stonewall F.) and People v. Fabris (1995) 31 Cal.App.4th 685, 37 Cal.Rptr.2d 667 (Fabris ).   We conclude the trier of fact may consider evidence of voluntary intoxication on the issue of whether an arson defendant actually formed this intent.  (Pen.Code, § 22, subd. (b).)  The trial court essentially instructed the jury that voluntary intoxication is not a defense to the charge of arson of forest land and has no effect on defendant's liability for the crime.   The trial court consequently erred in so instructing.   We conclude this error was prejudicial and reverse.¹

BACKGROUND

On September 26, 1997, defendant told his friends Shirley Kruse and Johnny Ogle that he hated Orville Figgs and that he was going to burn down Figgs's house.

On the afternoon of September 27, 1997, defendant and his brother, David Atkins, drove by the Ponderosa Sky Ranch, where Figgs lived.   Defendant “flipped the bird” at Figgs as defendant passed by.

Later that evening (on the 27th), around 5:00 p.m., David Rudolph, who lived on Ponderosa Sky Ranch, saw David Atkins drive a white pickup truck down into the Ponderosa Sky canyon.   Rudolph could not see if there was a passenger in the pickup.   Around 9:00 p.m. that night, Rudolph saw the pickup come quickly out of the canyon by his house.   About one-half hour later, Rudolph's wife awakened him and said there was a fire.

The fire came within 150 feet of Orville Figgs's house.

A fire investigator, Alan Carlson, traced the origin of the blaze to a 10-by-10 or 10-by-12-foot area that was completely burned and black and that smelled of chainsaw mix, a mixture of motor oil and gasoline.   A soil sample taken from this area contained gasoline.

About 40 feet from the initial burn site, Carlson found defendant's wallet.   Not far from the wallet, Carlson found a fresh beer can and some tire tracks.   Nearby, Carlson also found a disposable lighter under a piece of corrugated tin and farther away he found two other beer cans (with the same freshness date as the original one found).

Defendant told Investigator Carlson that after drinking with his brother, David, throughout much of the day on which the fire occurred, the two of them drove down into the Ponderosa Sky canyon in the white pickup.   They stayed between three-and-a-half and five hours and drank some more down there.   Defendant's family had once lived in the canyon.   Defendant saw that his family's former homesite was in poor condition.   He decided to burn some of the weeds there.   He pulled some of them out and put them in an eight-inch pile in a cleared area.   He poured some chainsaw mix on the pile, placed the plastic gas jug containing the mix (that he had retrieved from David's truck) two or three feet away, and lit the pile with a disposable lighter.   The fire leaped from the pile to the gas jug and quickly got out of hand.   The jug melted.   Defendant and perhaps David tried unsuccessfully to extinguish the fire.   Then they panicked and took off.   The fire was an accident.   Defendant meant no harm.

Defendant acknowledged there were hard feelings between his family and the Figgs family.   Defendant also said he had “flipped off” Orville Figgs, but he made that gesture after the fire.

David Atkins largely confirmed his brother's account.   He and defendant drank throughout much of the day on which the fire occurred.   They continued drinking at the Ponderosa Sky canyon.   They went to their family's former homesite there.   All that remained of their former house was the tin roofing.   The place had sentimental significance to defendant and David.   Defendant began crying.   Defendant was concerned about the weeds on the property and began pulling them out;  he stated they should clean the place and burn the weeds.   David went to relieve himself and to grab a couple more beers.   David's last recollection is seeing defendant kick the gas jug.   Because of the drinking, David could not recall leaving the site or driving away.

On the evening of the fire, around 9:00 or 9:30 p.m., Shirley Kruse saw defendant at David's apartment.   He was mad and was throwing stuff around.   Shirley was asked at trial whether she would describe defendant as “heavily intoxicated” that evening.   She answered, “Yes. Agitated, very agitated.”

The fire investigator, Alan Carlson, found no indication that the fire had started in a cleared area, or that there had been a debris burn that had gotten out of control, or that anyone had tried to put out the fire.   Carlson concluded the fire was not an accident.

The fire burned between 2.5 and 2.8 miles of forest land.

DISCUSSION

Defendant was charged and convicted of arson of forest land.  (Pen.Code, § 451, subd. (c).)

Defendant contends the trial court erroneously instructed the jury that “in the crimes of arson of forest land charged in Count I and the lesser crimes thereto, the fact that the defendant was voluntarily intoxicated is not a defense and does not relieve defendant of responsibility for the crime.”   Defendant contends that evidence of voluntary intoxication is admissible to show that he lacked the required mental state for arson.

Section 22 governs the admissibility of evidence of voluntary intoxication on the issue of an accused's mental state.   That section provides in pertinent part:  “(b) Evidence of voluntary intoxication is admissible solely on the issue of whether or not the defendant actually formed a required specific intent․”

The issues here are (1) whether section 22 permits a trier of fact to consider evidence of voluntary intoxication on the question of whether the accused actually formed the required mental state of intent for arson, and (2) if so, what is the effect of the trial court's failure to so instruct here.

 As set forth initially by this court in Stonewall F., supra, 208 Cal.App.3d 1054, 256 Cal.Rptr. 578 and as we reaffirmed in Fabris, supra, 31 Cal.App.4th 685, 37 Cal.Rptr.2d 667, arson, as defined in section 451, requires as one of its elements an intent to set fire to or burn or cause to be burned a structure, forest land or specified property.  (Fabris, supra, at pp. 688, 698, 37 Cal.Rptr.2d 667.)   We arrived at this conclusion as follows.

We started with the definition of arson as set out in the first paragraph of section 451.   That paragraph states that “[a] person is guilty of arson when he or she willfully and maliciously sets fire to or burns or causes to be burned ․ any structure, forest land, or property.”  (Italics added.)  (Fabris, supra, 31 Cal.App.4th at p. 694, 37 Cal.Rptr.2d 667.)   “Willfully” is defined in section 7, subdivision 1. That section states in pertinent part that “[t]he word ‘willfully,’ when applied to the intent with which an act is done ․, implies simply a purpose or willingness to commit the act․”  “Maliciously” is defined in section 450, subdivision (e)-it “imports a wish to vex, defraud, annoy, or injure another person, or an intent to do a wrongful act․”

 We then substituted the definitions for the terms “willfully” and “maliciously” in the definition of arson, concluding that arson requires an intent to do the act there condemned, i.e., an intent to set fire to or burn or cause to be burned a structure, forest land or property.  (Stonewall F., supra, 208 Cal.App.3d at p. 1065, 256 Cal.Rptr. 578;  Fabris, supra, 31 Cal.App.4th at p. 699, 37 Cal.Rptr.2d 667.) ²

We found further support for concluding that the mental state required for arson is intent when we compared the mental state required for the lesser companion offense of unlawfully causing a fire.   These two offenses-arson (§ 451) and unlawfully causing a fire (§ 452)-were enacted as part of the same legislative package.  (Stats.1979, ch. 145.)   The two offenses are essentially the same except for penalty structure and the mental state standard.  (Stonewall F., supra, 208 Cal.App.3d at p. 1064, 256 Cal.Rptr. 578.)  “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.” (§ 452, first paragraph, italics added.)   The term “recklessly” was also defined as part of this same legislative package. (§ 450, subd. (f).)  “ ‘Recklessly’ means a person is aware of [i.e. knows of] and consciously disregards a substantial and unjustifiable risk,” a risk whose disregard constitutes a gross deviation from objectively reasonable conduct. (§ 450, subd. (f);  Stonewall F., supra, 208 Cal.App.3d at p. 1067, 256 Cal.Rptr. 578.)   As we explained in Stonewall F.:  “Since recklessness, as defined, entails the subjective appreciation (i.e., by the defendant) of a substantial and unjustifiable risk amounting to a gross deviation from the reasonable standard of conduct, the only candidate for higher culpability [for the greater offense of arson with its willful and malicious mental state requirement] is the culpability standard we call intentional.”  (Stonewall F., supra, 208 Cal.App.3d at p. 1067, 256 Cal.Rptr. 578.)

In analyzing the question of whether section 22 permits a trier of fact to consider evidence of voluntary intoxication concerning whether an arson defendant actually formed this required mental state of intent, we must begin with the distinction between specific and general intent crimes.

 As our high court recently explained in People v. Mendoza (1998) 18 Cal.4th 1114, 77 Cal.Rptr.2d 428, 959 P.2d 735 (Mendoza ), in quoting the seminal decision in People v. Hood (1969) 1 Cal.3d 444, 82 Cal.Rptr. 618, 462 P.2d 370 (Hood ):  “[T]he ‘distinction between specific and general intent crimes evolved as a judicial response to the problem of the intoxicated offender.   That problem is to reconcile two competing theories of what is just in the treatment of those who commit crimes while intoxicated.   On the one hand, the moral culpability of a drunken criminal is frequently less than that of a sober person effecting a like injury.   On the other hand, it is commonly felt that a person who voluntarily gets drunk and while in that state commits a crime should not escape the consequences.’  ․   Thus, courts came to distinguish ‘between so-called specific intent and general intent crimes,’ with intoxication relevant to the former but not the latter.”  (Mendoza, supra, 18 Cal.4th at p. 1127, 77 Cal.Rptr.2d 428, 959 P.2d 735, quoting Hood, supra, 1 Cal.3d at pp. 455-456, 82 Cal.Rptr. 618, 462 P.2d 370, citation omitted.)   Distinguishing between specific and general intent crimes is a device to permit evidence of voluntary intoxication to reduce the crime to a lower degree, but not to admit such evidence if it would result in total acquittal.  (People v. Whitfield (1994) 7 Cal.4th 437, 451, 27 Cal.Rptr.2d 858, 868 P.2d 272.)

Hood distinguished specific and general intent crimes in the following manner:  “When the definition of a crime consists of only the description of a particular act, without reference to intent to do a further act or achieve a future consequence, we ask whether the defendant intended to do the proscribed act.   This intention is deemed to be a general criminal intent.   When the definition refers to defendant's intent to do some further act or achieve some additional consequence, the crime is deemed to be one of specific intent.”  (1 Cal.3d at pp. 456-457, 82 Cal.Rptr. 618, 462 P.2d 370.)

But, as Mendoza noted, “[u]sing the designations of specific or general intent ․ d[oes] not end the conceptual difficulties.   Specific and general intent have been notoriously difficult terms to define and apply․  [¶] The division of crimes into two categories, one requiring ‘general intent’ and one ‘specific intent,’ is both simplistic (some crimes have other required mental states such as knowledge) and potentially confusing.”  (18 Cal.4th at pp. 1126-1127, 77 Cal.Rptr.2d 428, 959 P.2d 735, some internal quotation marks, citation and ellipsis omitted.)   For these reasons, recent decisions have looked closely at the required mental state when considering the question of whether evidence of voluntary intoxication is admissible regarding the actual formation of that mental state.

For example, in Whitfield, supra, 7 Cal.4th 437, 27 Cal.Rptr.2d 858, 868 P.2d 272, the court concluded that evidence of voluntary intoxication was admissible, notwithstanding classification of the crime-murder in the second degree based on implied malice-as one of general intent.   Said Whitfield:  “Although implied malice may not fall literally within the Hood formulation of specific intent, the element of implied malice that requires that the defendant act with knowledge of the danger to, and in conscious disregard of, human life, is closely akin to Hood's definition of specific intent, which requires proof that the defendant acted with a specific and particularly culpable mental state.”  (Id. at p. 450, 82 Cal.Rptr. 618, 462 P.2d 370, italics added.) ³

In Reyes, supra, 52 Cal.App.4th 975, 61 Cal.Rptr.2d 39, the court noted that “[a] general intent crime may also involve a specific mental state, such as knowledge.”  (Id. at p. 983, 61 Cal.Rptr.2d 39, citation omitted.)   As an example, Reyes cited to People v. Foster (1971) 19 Cal.App.3d 649, 97 Cal.Rptr. 94.  Foster involved a charge of unlawful possession of narcotics.   In addition to proving general intent to possess the drug, Foster noted, the prosecution must prove the accused knew the material was a narcotic.  (19 Cal.App.3d at p. 655, 97 Cal.Rptr. 94.)   In determining this knowledge, Foster said, “[i]ntoxication has obvious relevance to the question of awareness, familiarity, understanding and the ability to recognize and comprehend.”  (Ibid.)

Reyes applied Foster's reasoning to the offense before it-receiving stolen property.   Although receiving stolen property is a general intent crime, one of its elements is the specific mental state of knowledge that the property is stolen.  (52 Cal.App.4th at pp. 984-985, 61 Cal.Rptr.2d 39.)   Voluntary intoxication is relevant to whether a defendant actually formed that mental state.  (Id. at pp. 983, 985, 61 Cal.Rptr.2d 39.)   Reyes therefore held “that with regard to the element of knowledge, receiving stolen property is a ‘specific intent crime’ as that term is used in section 22, subdivision (b)․”  (Id. at p. 985, 61 Cal.Rptr.2d 39.)   Consequently, Reyesconcluded the trial court had erroneously instructed the jury that receiving stolen property was solely a general intent crime to which voluntary intoxication was no defense.  (Id. at pp. 985-986, 61 Cal.Rptr.2d 39.) ⁴

Citing approvingly to Reyes, our high court in Mendoza concluded that the knowledge and intent requirement for aiding and abetting liability is a “required specific intent” for which evidence of voluntary intoxication is admissible under section 22, subdivision (b).  (18 Cal.4th at p. 1131, 77 Cal.Rptr.2d 428, 959 P.2d 735.)   The required mental state for an aider and abettor “is knowledge of the perpetrator's criminal purpose and the intent or purpose of committing, encouraging, or facilitating the commission of the target offense.”  (Id. at p. 1118, 77 Cal.Rptr.2d 428, 959 P.2d 735, italics in original.) ⁵  Quoting and adapting Whitfield, Mendoza stated:  “[A]lthough knowledge ‘may not fall literally within the Hood formulation of specific intent, the element [of aiding and abetting liability] that requires that the defendant act with knowledge of [the perpetrator's criminal intent] is closely akin to Hood 's definition of specific intent, which requires proof that the defendant acted with a specific and particularly culpable mental state.’ ”  (Id. at p. 1131, 77 Cal.Rptr.2d 428, 959 P.2d 735, quoting Whitfield, supra, 7 Cal.4th at p. 450, 27 Cal.Rptr.2d 858, 868 P.2d 272.)

 As we shall explain, applying these principles from Whitfield, Reyes, and Mendoza leads to but one conclusion-under section 22, subdivision (b), evidence of voluntary intoxication is admissible in an arson trial on the issue of whether the defendant actually formed the required intent to set fire to or burn or cause to be burned a structure, forest land or specified property.

Essentially, Whitfield, Reyes and Mendoza specify that evidence of voluntary intoxication is admissible to show that a required mental state was not actually formed when that mental state is an element of the crime.   Whitfield characterizes section 22, subdivision (b) in the following terms:  “[S]ection 22, subdivision (b), ․ specifies when evidence of voluntary intoxication is admissible with regard to the question whether a defendant formed a required mental state.”  (7 Cal.4th at pp. 450-451, 27 Cal.Rptr.2d 858, 868 P.2d 272, italics added;  see also Mendoza, supra, 18 Cal.4th at p. 1126, fn. 3, 77 Cal.Rptr.2d 428, 959 P.2d 735, quoting People v. Horton (1995) 11 Cal.4th 1068, 1119, 47 Cal.Rptr.2d 516, 906 P.2d 478 [“ ‘[E]vidence of voluntary intoxication is relevant to the extent it bears upon the question whether the defendant actually had the requisite specific mental state required for commission of the crimes at issue.’ ”], italics deleted.)   As Fabris makes clear, the intent to set fire to or burn or cause to be burned a structure, forest land or certain property is an element of section 451 arson.  (31 Cal.App.4th at p. 698, 37 Cal.Rptr.2d 667.)

Whitfield, Reyes and Mendoza conclude that evidence of voluntary intoxication can be admissible under section 22, subdivision (b), on the required mental states of knowledge or conscious disregard.   The section 451 arson intent set forth in Stonewall F. and Fabris is a more “specific and particularly culpable mental state” than knowledge and conscious disregard.  (See Stonewall F., supra, 208 Cal.App.3d at p. 1067, 256 Cal.Rptr. 578;  see also Whitfield, supra, 7 Cal.4th at p. 450, 27 Cal.Rptr.2d 858, 868 P.2d 272.)   The Legislature has explicitly stated that evidence of voluntary intoxication is inadmissible to negate the knowledge/conscious disregard-based mental state of “reckless” required for the lesser companion offense of unlawfully causing a fire. (§ 450, subd. (f) [“A person who creates [the substantial and unjustifiable risk required for unlawfully causing a fire] but is unaware thereof solely by reason of voluntary intoxication also acts recklessly with respect thereto”];  § 452;  see Stonewall F., supra, 208 Cal.App.3d at p. 1067, 256 Cal.Rptr. 578.)   Tellingly, the Legislature, in the same legislative package, did not foreclose the admissibility of voluntary intoxication evidence regarding the intent-based mental state of “willful and malicious” required for the greater offense of arson.  (See §§ 450, 451.)

 Fabris did conclude that, “applying the Hood criteria [of general versus specific intent], arson can be categorized as a general intent crime.”  (31 Cal.App.4th at p. 697, 37 Cal.Rptr.2d 667.)   But, as Reyes explains, “[a] general intent crime may also involve a specific mental state [subject to section 22, subdivision (b) ]․”  (52 Cal.App.4th at p. 983, 61 Cal.Rptr.2d 39.)   To quote and adapt Whitfield, as Mendoza did:  “Although [an intent to set fire to or burn or cause to be burned a structure, forest land or specified property] may not fall literally within the Hood formulation of specific intent, [the intent required for section 451 arson] ․ is closely akin to Hood 's definition of specific intent, which requires proof that the defendant acted with a specific and particularly culpable mental state.”  (Whitfield, supra, 7 Cal.4th at p. 450, 27 Cal.Rptr.2d 858, 868 P.2d 272;  see also Mendoza, supra, 18 Cal.4th at p. 1131, 77 Cal.Rptr.2d 428, 959 P.2d 735.) ⁶

 Finally, allowing evidence of voluntary intoxication here can reduce the crime to a lesser offense (unlawfully causing a fire), but cannot result in total acquittal.  (See § 450, subd. (f) [voluntary intoxication irrelevant to the mental state of “reckless” required for the lesser offense of unlawfully causing a fire];  § 452;  see also Whitfield, supra, 7 Cal.4th at p. 451, 27 Cal.Rptr.2d 858, 868 P.2d 272.)

 We conclude that evidence of voluntary intoxication is admissible under section 22, subdivision (b), on the issue of whether a defendant charged with section 451 arson actually formed the required intent to set fire to or burn or cause to be burned a structure, forest land or specified property.   Now we must determine how this conclusion plays out on the facts before us.

As the trial court recognized by instructing on voluntary intoxication, there was sufficient evidence of voluntary intoxication presented here.   Defendant told Investigator Carlson that he had been drinking with his brother, David, throughout much of the day on which the fire occurred, including shortly before or at the time of the fire.   David corroborated defendant's statement and said this drinking had caused things to be “pretty hazy” to him.   From Kruse's testimony, one can conclude that defendant appeared “heavily intoxicated” to her not long after the fire had started.

The trial court instructed the jury that “[i]t is the general rule that no act committed by a person while in a state of voluntary intoxication is less criminal by reason of this condition.   Thus, in the crime[ ] of arson of forest land charged in Count I ․, the fact that the defendant was voluntarily intoxicated is not a defense and does not relieve defendant of responsibility for the crime.” ⁷  (CT 107;  RT 324)

The term “forest land” is defined in the arson statute as “any brush covered land, cut-over land, forest, grasslands, or woods.” (§ 450, subd. (b).)  Thus, to be convicted of arson of forest land, defendant had to intend to set fire to or burn or cause to be burned any brush covered land, cutover land, forest, grasslands, or woods.

There is sufficient evidence that defendant set fire, in a cleared area, to a pile of weeds he had pulled at his old family homesite (amidst an otherwise forested canyon) in a sentimental attempt to clean up that site.   There is also sufficient evidence that defendant was voluntarily intoxicated at this time.   Nevertheless, the trial court instructed the jury that arson of forest land is a general intent crime to which voluntary intoxication has no relevance.   The trial court erred in doing so.   The question is whether this error prejudiced defendant.   We must conclude it did.

The trial court in Reyes instructed similarly on a charge of receiving stolen property-that it was a general intent crime to which voluntary intoxication was no defense.   The appellate court in Reyes reversed, concluding that such instruction (and the foreclosure of intoxication evidence) unfairly denied the defendant there the opportunity to prove he lacked the requisite mental state-knowledge that the property was stolen.  (52 Cal.App.4th at pp. 981, 985-986, 61 Cal.Rptr.2d 39.)   We must reach a similar conclusion and disposition.   The trial court's instruction here unfairly denied defendant the opportunity to prove he lacked the required mental state-the intent to set fire to or burn or cause to be burned “forest land,” that is, “any brush covered land, cut-over land, forest, grasslands, or woods.” (§ 450, subd. (b);  Fabris, supra, 31 Cal.App.4th at pp. 688, 698, 37 Cal.Rptr.2d 667;  Stonewall, supra, 208 Cal.App.3d at p. 1065, 256 Cal.Rptr. 578.)

DISPOSITION

The judgment is reversed.⁸

FOOTNOTES

1.   See footnote *, ante.

2.   An intent to set fire to, or burn, or caused to be burned, a structure, forest land or property all comprise the same mental state.   Intending to set fire to or burn a structure involves the intent that the structure burn.   Similarly, to intend to cause a structure to be burned is to intend that the structure burn.  (Fabris, supra, 31 Cal.App.4th at pp. 694-695, 37 Cal.Rptr.2d 667.)

3.   The holding in Whitfield was superseded by a 1995 amendment to section 22, subdivision (b), stating that evidence of voluntary intoxication is no longer admissible on the issue of implied malice aforethought.  (Stats.1995, ch. 793, § 1.) Nevertheless, Whitfield 's analysis remains relevant to the admissibility of evidence of voluntary intoxication.  (People v. Reyes (1997) 52 Cal.App.4th 975, 984, fn. 6, 61 Cal.Rptr.2d 39 (Reyes ).)

4.   At the time of trial in Reyes, former section 22, subdivision (b), provided in pertinent part:  “Evidence of voluntary intoxication is admissible solely on the issue of whether or not the defendant actually formed a required specific intent, ․ when a specific intent crime is charged.”  (Stats.1982, ch. 893, § 2, pp. 3317-3318.)   In 1995, section 22, subdivision (b) was amended (effective January 1, 1996) and now states in pertinent part:  “Evidence of voluntary intoxication is admissible solely on the issue of whether or not the defendant actually formed a required specific intent․”Reyes had to confront the pre-amended version of section 22, subdivision (b), that contained the clause “when a specific intent crime is charged.”   That is why Reyes referred to receiving stolen property as a “specific intent crime” for purposes of section 22, subdivision (b).  (52 Cal.App.4th at p. 985, 61 Cal.Rptr.2d 39.)   Our decision in Fabris was also issued before section 22, subdivision (b) was amended in 1995.   In a footnote in Fabris, we stated that “[s]ection 22 [subdivision (b) ] provides for the admissibility of evidence of voluntary intoxication only when the offense is a ‘specific intent crime.’ ”  (31 Cal.App.4th at p. 696, fn. 10, 37 Cal.Rptr.2d 667.)   We also stated in that Fabris footnote:  “Here, as in Stonewall F., we imply no view whether arson, as defined in section 451, is a ‘specific intent crime’ for purposes of section 22.”  (Ibid.) Reyes stated that the 1995-amended section 22, subdivision (b) (which, as noted, is still the current version) “now permits the admission of evidence of voluntary intoxication on the issue of whether or not the defendant actually formed a required specific intent, without regard to whether the charged crime is a specific intent crime or a general intent crime.”  (52 Cal.App.4th at p. 982, fn. 5, 61 Cal.Rptr.2d 39.)

5.   Mendoza stated that it could not mechanically divide an aider and abettor's mental state into knowledge and intent for intoxication admissibility purposes.  (18 Cal.4th at p. 1131, 77 Cal.Rptr.2d 428, 959 P.2d 735.)  “One cannot intend to help someone do something without knowing what that person meant to do.”  (Ibid.)

6.   Stonewall is criticized in People v. Glover (1991) 233 Cal.App.3d 1476, 285 Cal.Rptr. 362, People v. Lopez (1993) 13 Cal.App.4th 1840, 17 Cal.Rptr.2d 317, People v. Fry (1993) 19 Cal.App.4th 1334, 24 Cal.Rptr.2d 43, and People v. Lee (1994) 28 Cal.App.4th 659, 33 Cal.Rptr.2d 782, as departing from precedent in holding that arson is a specific intent crime.  (See also People v. Bolden (1996) 44 Cal.App.4th 707, 52 Cal.Rptr.2d 485.)In Fabris, we explained that such criticism is misinformed.  (31 Cal.App.4th at p. 693, 37 Cal.Rptr.2d 667.)  Stonewall F. did not characterize arson as a specific intent crime.  (Ibid.;  see Stonewall F., supra, 208 Cal.App.3d at pp. 1063-1064, fn. 8, 256 Cal.Rptr. 578.) Indeed, in Fabris, we noted that arson can be categorized as a general intent crime by applying the Hood criteria distinguishing general from specific intent crimes.  (31 Cal.App.4th at p. 697, 37 Cal.Rptr.2d 667.)   We also explained that this criticism did not say what, if anything, must be intended (even if arson is a general intent crime), what the terms “willfully” and “maliciously” mean as used in the definition of arson, or in what way arson differs from the lesser companion offense of unlawfully causing a fire.  (Id. at p. 696, 37 Cal.Rptr.2d 667, see also pp. 697-698, 37 Cal.Rptr.2d 667.)

7.   The trial court also instructed that voluntary intoxication is not a defense and does not relieve defendant of responsibility for the lesser crime of unlawfully causing a fire.   That instruction is correct. (§§ 450, subd. (f);  452.)

8.   See footnote *, ante.

DAVIS, J.

SIMS, Acting P.J., and RAYE, J., concur.