Jim Porter: Innocent ‘cherry bomb’ explosion can be arson? | SierraSun.com

Jim Porter: Innocent ‘cherry bomb’ explosion can be arson?

Jim Porter
Special to the Sun

TRUCKEE/TAHOE and#8212; Apropos for the week of the Fourth of July, the California Supreme Court just issued a firecracker case ruling. In fact, a and#8220;cherry bomband#8221; case, the preferred firecracker in the good ole days.

Cherry bomb

On the afternoon of July 18, 2008, V.V. and J.H., both 17-year-olds whose names shall remain top secret, climbed a steep hill behind a subdivision in Pasadena. V.V. lit a cherry bomb which J.H. threw into the brush-covered hillside below-aiming for a green grassy area or a small slab of concrete.

The firecracker hit neither. Instead it fell short, exploding in dry shrubs causing a five-acre brush fire. The boys ran down the hill yelling and#8220;fireand#8221; and quickly surrendered to a police officer driving up the hill amidst a caravan of firemen who quickly put out the blaze.

Different verdicts

The boys were charged with arson. The juvenile court judge found V.V. and J.H. guilty of arson as they intentionally ignited and threw the firecracker with a high probability it would cause a fire. The boyand#8217;s court-appointed public defenders appealed the juvie court conviction, and interestingly, one Court of Appeal found V.V. guilty and a different Court found J.H. innocent. Because of the inconsistent rulings, the Supreme Court took the case.

Arson

and#8220;A person is guilty of arson when he or she willfully and maliciously sets fire to or burns or causes to be burned or aids, counsels, or procures the burning of, any structure, forest land or property.and#8221; and#8220;Willfullyand#8221; implies simply the willingness to commit the act and not any intent to violate the law or injure another. E.g., whether I intentionally or accidentally throw a baseball through a window, I do it willfully. The boys of course argued there must be some evidence they intended to cause a fire or do some other harm or and#8220;evil result.and#8221;

Opinion

In a split decision, the Supreme Court ruled the boys were guilty of arson as they and#8220;acted with awareness of facts that would lead a reasonable person to realize that the direct, natural, and highly probable consequence of igniting and throwing a firecracker into dry bush would lead to burning of the hillside.and#8221; While V.V. and J.H. did not intend to set the hillside on fire, they knew that their intentional act created a fire hazard.

Two dissents

Justices Kennard and Werdegar disagreed, writing separate dissenting opinions. Kennard: and#8220;V.V. and J.H. did not intentionally set a fire; they exploded a cherry bomb. That act, under the circumstances in which they did it, was criminally reckless, and was therefore a Penal Code section 452 (reckless firesetting) violation. But because the fire that resulted from the explosion was accidental they were not guilty of arson.and#8221;

Werdegar wrote, and#8220;the term and#8220;maliciouslyand#8221; imports an additional element, namely, and#8220;a wish to vex (whatand#8217;s that?), defraud, annoy, or injure another person, or an intent to do a wrongful act.and#8221; The minors did not light the firecracker maliciously, nor did they intend to start a fire. I think I agree.

Justice Werdegar noted that in 1979 the Legislature enacted Penal Code section 452 which punishes and#8220;reckless behaviorand#8221; that sets fires to forest lands-to be distinguished from intentionally setting fires to forest lands.

Porter cherry bomb story

I remember my dad once (and only once) throwing a cherry bomb near a group of friends that landed in some gravel, not unlike V.V. and J.H. aiming for a green grassy area but landing in dry brush, and of course the gravel exploded like shrapnel. He spent the afternoon sheepishly patching everyone up, like the good doctor he was. Oops.

BTW, the Tahoe City and Donner Lake fireworks were spectacular.

Jim Porter is an attorney with Porter Simon, with offices in Truckee, South Lake Tahoe and Reno. He is a mediator and was the Governorand#8217;s appointee to the Fair Political Practices Commission and McPherson Commission, both involving election law and the Political Reform Act. He may be reached at porter@portersimon.com or at the firmand#8217;s website http://www.portersimon.com.