Filed 12/14/17 In re A.M. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA



In re A.M., a Person Coming Under the Juvenile Court Law.

THE PEOPLE,

Plaintiff and Respondent,

v.

A.M.,

Defendant and Appellant.
D071798


(Super. Ct. No. J236208)

APPEAL from a judgment of the Superior Court of San Diego County, Browder A. Willis III, Judge. Affirmed.
Steven J. Carroll, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Tami Hennick and Paige B. Hazard, Deputy Attorneys General, for Plaintiff and Respondent.

I
INTRODUCTION
A.M. appeals from a juvenile court adjudication finding true allegations he committed arson of property (Pen. Code, § 451, subd. (d)). He contends we must reverse the true finding because there is insufficient evidence to support the malice element of the offense. He further contends the court abused its discretion by denying his motion to reduce the true finding to a misdemeanor under Esteybar v. Municipal Court for Long Beach Judicial Dist. (1971) 5 Cal.3d 119 (Esteybar).
We conclude substantial evidence showed A.M. acted with malice by deliberately lighting a fire on private property when he knew doing so was wrong, and then leaving the fire unattended. We further conclude the court lacked the authority to reduce the true finding to a misdemeanor under the Esteybar case because arson of property is not an offense punishable as either a felony or a misdemeanor. Finally, we conclude the court did not abuse its discretion by failing to modify the offense under section 1181, subdivision (6), to the lesser included misdemeanor offense of unlawfully causing a fire to property because the evidence showed A.M. committed the greater offense and not the lesser offense. Accordingly, we affirm the judgment.
II
BACKGROUND
Thirteen-year-old A.M. lived in a group home on private residential property. One summer evening, someone notified a staff member of a fire on the front lawn. The staff member investigated and saw a small fire burning near a window two feet from the home. The fire was inside a rectangle of bricks apparently constructed to contain it and there was a chair positioned next to it. The staff member extinguished the fire by pouring three 32-ounce cups of water on it. The first cup of water doused the flames, and after the second cup of water the fire no longer smoldered. The staff member concluded A.M. started the fire based on its location just outside of A.M.'s bedroom window, A.M.'s absence from the home, and the statements of the other residents. The staff member called 911.
A.M. returned to the home within the next five minutes. After admitting he lit the fire because he wanted a bonfire, he went to bed.
A deputy sheriff went to the home to investigate. He smelled the fire and saw the burnt ground with the bricks placed around it. There was no indication of burning outside the ring of bricks. There were some jugs behind the chair, but the deputy did not notice whether they contained water.
After speaking with the staff member, the deputy went to A.M.'s room to interview him. On a dresser, the deputy saw a soda bottle with a slightly charred paper towel inside of it, which the deputy believed to be a Molotov cocktail. The bottle smelled of cologne, which the deputy knew was flammable and could cause the paper towel to burn hotter and faster.
The deputy asked A.M. a series of questions to establish A.M. knew right from wrong. A.M. stated his parents had taught him the difference between right and wrong. A.M. identified helping an old lady cross the street as an example of something right, and murdering someone as an example of something wrong. A.M. admitted he knew committing arson and making an incendiary device was wrong "the whole time I've been here," which was about a year, and he knew it was wrong when he committed the offenses.
The deputy then questioned A.M. about the soda bottle and the fire. Regarding the soda bottle, A.M. said he was trying to replicate something he saw on television where someone had stuck a cloth in a bottle of vodka, lit the cloth on fire, and then threw the bottle. A.M. said he held the soda bottle out the window and tried to light it, but when the flames would not ignite, he doused them. Regarding the fire, A.M. said he lit it to look cool and to warm up. He created the ring of bricks to contain the fire.
III
DISCUSSION
A
A.M. contends there was insufficient evidence to support the arson true finding because there was insufficient evidence of malice. "Our review of [a minor's] substantial evidence claim is governed by the same standard applicable to adult criminal cases. [Citation.] 'In reviewing the sufficiency of the evidence, we must determine "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." [Citation.]' [Citation.] ' "[O]ur role on appeal is a limited one." [Citation.] Under the substantial evidence rule, we must presume in support of the judgment the existence of every fact that the trier of fact could reasonably have deduced from the evidence. [Citation.] Thus, if the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant reversal of the judgment.' " (In re V.V. (2011) 51 Cal.4th 1020, 1026 (V.V.).)
"A person is guilty of arson when he or she willfully and maliciously sets fire to or burns or causes to be burned or who aids, counsels, or procures the burning of, any structure, forest land, or property." (§ 451; V.V., supra, 51 Cal.4th at p. 1027.) "Maliciously" in the Penal Code means either "a wish to vex, defraud, annoy or injure," known as malice in fact, or "an intent to do a wrongful act, established either by proof or presumption of law," known as malice in law. (§ 450, subd. (e); V.V., at p. 1028.) Malice in law fulfills the malice requirement for arson. Thus, in the context of arson, "malice will be presumed or implied from the deliberate and intentional ignition or act of setting a fire without a legal justification, excuse, or claim of right." (V.V., at p. 1028.) "[T]here must be a general intent to willfully commit the act of setting on fire under such circumstances that the direct, natural, and highly probable consequences would be the burning of the relevant structure or property." (Id. at p. 1029.)
Here, the evidence showed A.M. deliberately set a fire a few feet from the group home because he wanted to look cool and have a bonfire. He knew setting the fire was wrong and, although he created a makeshift fire pit and apparently had water jugs nearby, he left the fire untended. The court could reasonably find from this evidence A.M. willfully set the fire under circumstances the direct, natural, and highly probable consequences of which would be the burning of the group home's property. Accordingly, we conclude there is substantial evidence to support the court's true finding A.M. committed arson.
B
1
After the court found true the allegations of arson, A.M. orally moved, ostensibly under the Esteybar case, to have the charges reduced to a misdemeanor because A.M.'s conduct did not rise to the level of a felony. The court denied the motion, finding A.M.'s conduct in starting the fire was felonious because of his acts leading up to it, specifically his curiosity and experimentation with fire, and because he left the fire unattended.
A.M. contends the court erred in denying his motion because in reaching its decision the court failed to consider A.M.'s age and unstable family life and improperly relied on the circumstances surrounding the making of the Molotov cocktail. We are not persuaded by this contention.
2
a
To the extent A.M. sought a reduction of the charge under the Esteybar case, the court had no discretion to grant the motion. Under the Esteybar case, if an offense is punishable as either a felony or a misdemeanor, the court has the discretion to designate the offense a misdemeanor. (Esteybar, supra, 5 Cal.3d at pp. 125–126; § 17, subd. (b)(2).) However, this rule is not applicable in this case because arson of property is only punishable as a felony. (§ 451, subd. (d).)
b
For the first time on appeal, in response to arguments by the People, A.M. suggests he sought modification of the arson charge under section 1181, subdivision (6), to the lesser included misdemeanor offense of unlawfully causing a fire of property. (See § 452, subd. (d); People v. Hooper (1986) 181 Cal.App.3d 1174, 1182, disapproved on another ground in People v. Barton (1995) 12 Cal.4th 186, 198, fn. 7). However, nothing in the record indicates this was the ground for A.M.'s oral motion. In addition, A.M. has not established an oral motion was the proper means of asserting this ground for relief.
Assuming, without deciding, A.M. made a proper request for modification under section 1181, subdivision (6), we conclude the court did not abuse its discretion by failing to grant the motion on this ground. Section 1181, provides, "When a verdict has been rendered or a finding made against the defendant, the court may, upon his application, grant a new trial, in the following cases only: [¶] ... [¶] 6. When the verdict or finding is contrary to law or evidence, but if the evidence shows the defendant to be not guilty of the degree of the crime of which he was convicted, but guilty of a lesser degree thereof, or of a lesser crime included therein, the court may modify the verdict, finding or judgment accordingly without granting or ordering a new trial ... ." (Italics added.)
Applying this statute, the court only had the discretion to modify the true finding to unlawfully causing a fire to property if the evidence showed A.M. committed that offense and did not commit arson of property. (§ 1181, subd. (6).) The critical distinction between the two offenses is the mental state required to commit them. (People v. Hooper, supra, 181 Cal.App.3d at p. 1181.) The mental state required for arson of property is willfulness and maliciousness. (Ibid.) The mental state required for unlawfully causing a fire to property is recklessness. (Ibid.) As discussed in part III.A, ante, the evidence in this case, including A.M.'s experimentation before actually setting the fire, showed A.M. acted willfully and maliciously and, therefore, committed arson of property. Thus, the court did not abuse its discretion by failing to modify the offense to unlawfully causing a fire to property.


IV
DISPOSITION
The judgment is affirmed.



MCCONNELL, P. J.

WE CONCUR:



HUFFMAN, J.



O'ROURKE, J.