Filed 4/13/18 P. v. Tanksley CA3
NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.



IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----




THE PEOPLE,

Plaintiff and Respondent,

v.

DIMITRI ALEXANDER TANKSLEY,

Defendant and Appellant.
C084514

(Super. Ct. No. 16FE011460)




Defendant Dimitri Alexander Tanksley appeals his conviction for unlawfully causing a fire, contending the trial court prejudicially erred in instructing the jury with an optional paragraph from the standard instruction over his objection. We agree the trial court erred, but find no prejudice and affirm.
BACKGROUND
In June 2016, Brittany Hogan was outside her home washing her car. She saw defendant sitting under a tree in the grass near the bike trail. The grass field was very dry and it was a windy day. Hogan saw defendant rummaging in his bag, then holding a piece of paper in one hand, and a lighter in the other. Hogan went inside at her mother’s request, and when she came back outside, there was a fire in the dry grass field. Defendant was walking away from the fire. Twice, he stopped, pointed at the fire, hit himself in the head, and said, “oh my god.” Defendant continued away from the area and Hogan called 911.
The fire department arrived and extinguished the fire within about five minutes. The fire investigators estimated the fire burned approximately one acre of land and could have been caused by the dry grass coming in contact with a lighter or a paper lit on fire. The fire could have started very quickly because the air was very dry and there was a light breeze.
Shortly after the fire was extinguished, Sacramento Police Officer Clayton Whitcomb stopped defendant on the bike trail. He searched his bag and found two lighters. Defendant admitted he started the fire, but had not intended to set the grass on fire. He said he liked to burn things, had lit some paper on fire, and it accidentally flew out of his hand.
Defendant had previously pled no contest to negligent discharge of a firearm.
PROCEDURAL HISTORY
Defendant was charged with unlawfully causing a fire (Pen. Code, § 452, subd. (c)); the complaint also alleged he had a prior serious felony conviction.
During the conference on jury instructions, the prosecutor requested the trial court instruct the jury with an optional paragraph from the standard version of CALCRIM No. 1532, which set forth the different mental states for arson, acting willfully and maliciously, and unlawfully causing fire, acting recklessly. Defendant objected, because defendant was not charged with arson. The trial court concluded because it was clear defendant was not being charged with arson, this additional instruction would clarify the state of mind the jury had to find, and would therefore be helpful to the jury, not misleading or confusing.
On this point, the trial court instructed the jury as follows: “The defendant is charged in Count 1 with unlawfully causing a fire in violation of Penal Code section 452.
“To prove that the defendant is guilty of this crime, the People must prove that: One, the defendant set fire to or burned forest land. And two, the defendant did so recklessly.
“A person acts recklessly when, one, he is aware that his actions present a substantial and unjustifiable risk of causing a fire; two, he ignores that risk; and three, ignoring the risk is a gross deviation from what a reasonable person would have done in the same situation.
“To set fire to or burn means to damage or destroy with fire either all or part of something, no matter how small the part.
“Forest land means brush-covered land, cut-over land, forest, grasslands, or woods.
“Arson and unlawfully causing a fire require different mental states. For arson, a person must act willfully and maliciously. For unlawfully causing a fire, a person must act recklessly.”
After approximately one hour of deliberations, the jury found defendant guilty of unlawfully causing a fire. The jury also found the prior strike allegation true. The trial court sentenced defendant to the midterm of two years, doubled pursuant to the strike, awarded him 625 days of credit for time served, and imposed various fines and fees.
DISCUSSION
Defendant contends the trial court prejudicially erred by instructing the jury with the optional language in CALCRIM No. 1532 that also describes the mental state for arson. He argues the trial court erred in failing to explain the legal definitions of the mental states of willfully or maliciously required for arson, and also erred by instructing the jury on a greater culpability than the charged offense of arson, but not the lesser culpability of negligently causing the fire. Defendant contends the error was prejudicial because it implied defendant acted recklessly.
CALCRIM No. 1532 sets forth the general elements of unlawfully causing a fire, that defendant recklessly set fire to or caused the burning of a structure, land, or property. There are also a number of optional portions of the instruction, including the one at issue here, delineating the different mental states for arson and unlawfully causing a fire, “Arson and unlawfully causing a fire require different mental states. For arson, a person must act willfully and maliciously. For unlawfully causing a fire, a person must act recklessly.” The bench notes to the instruction state, “If the defendant is also charged with arson, the court may wish to give the last bracketed paragraph, which explains the difference in intent between unlawfully causing a fire and arson. (People v. Hooper (1986) 181 Cal.App.3d 1174, 1182 [226 Cal.Rptr. 810], disapproved of in People v. Barton (1995) 12 Cal.4th 186 [47 Cal.Rptr.2d 569, 906 P.2d 531] on the point that defense counsel’s objection to instruction on lesser included offense constituted invited error; People v. Schwartz (1992) 2 Cal.App.4th 1319, 1324 [3 Cal.Rptr.2d 816].)” (CALCRIM No. 1532.)
We agree it was error for the trial court to instruct the jury with the optional language of CALCRIM No. 1532, describing the mental state for arson. “The trial court has the duty to instruct on general principles of law relevant to the issues raised by the evidence [citations] and has the correlative duty ‘to refrain from instructing on principles of law which not only are irrelevant to the issues raised by the evidence but also have the effect of confusing the jury or relieving it from making findings on relevant issues.’ ” (People v. Saddler (1979) 24 Cal.3d 671, 681; People v. McNeill (1980) 112 Cal.App.3d 330, 339.) Because defendant was not charged with arson, the mental state required for arson was irrelevant to the issues raised by the evidence. Accordingly, the trial court should have refrained from instructing the jury with the optional language of CALCRIM No. 1532 distinguishing the mental state for arson from that of unlawfully causing a fire.
Having determined the instruction was given in error, we must determine whether the error was prejudicial. Instructional error under state law is reviewed under the harmless error standard of People v. Watson (1956) 46 Cal.2d 818. (People v. Whisenhunt (2008) 44 Cal.4th 174, 214; People v. McCloud (2012) 211 Cal.App.4th 788, 803.) That is, we must determine whether it is reasonably probable defendant would have obtained a more favorable outcome had the error not occurred. (People v. Breverman (1998) 19 Cal.4th 142, 178.) We conclude it is not.
Defendant contends the error was prejudicial because the trial court stated the required mental state for arson was willfully and maliciously, but then erroneously failed to define those terms for the jury. This failure, he contends, implied defendant acted recklessly. Defendant also contends the error was prejudicial because the trial court did not distinguish the required mental state of recklessness from negligence. Again, implying the defendant acted recklessly. We do not agree that the trial court’s failure to give even more unnecessary instructions, not supported by the evidence or relevant to the issues raised by the evidence, created any implication about defendant’s conduct. Nor will we find the trial court should have given such additional irrelevant instructions. Here, the jury was properly instructed on the elements of unlawfully causing a fire, and properly instructed on the mental state for that offense, recklessness. Recklessness was the only mental state defined for the jury. The error in the instructions given did not remove an element from the jury’s consideration nor did it lower the prosecution’s burden of proof on any element. We cannot find any prejudice in the trial court’s giving of the erroneous instruction.
 
DISPOSITION
The judgment is affirmed.



/s/
Robie, J.



We concur:



/s/
Raye, P. J.



/s/
Duarte, J.