Filed 12/12/17
                          CERTIFIED FOR PUBLICATION

             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                             SIXTH APPELLATE DISTRICT

THE PEOPLE,                                        H042666
                                                  (Santa Clara County
        Plaintiff and Respondent,                  Super. Ct. No. C1364973)

        v.

JOSEPH EUGENE RUBINO,

        Defendant and Appellant.


        A jury convicted Joseph Eugene Rubino of attempted arson. (Pen. Code, § 455.)
His appeal focuses solely on the standard jury instruction for that offense, CALCRIM
No. 1520. He argues the instruction is constitutionally deficient because it is ambiguous
and fails to instruct on specific intent, and that he was prejudiced by the deficiencies. For
the reasons stated here, we find the instruction sound and will affirm the judgment.

                               I.        BACKGROUND
        In 2013, defendant had lived in the Casa Del Lago mobile home park in San Jose
for several years. The property manager noticed a strong odor of gasoline when she
arrived at her on-site office on September 3, 2013. She determined the odor was emitting
from a metal drop box accessible to the outside through a wall slot. Liquid spilled onto
the floor as she opened the box. Three envelopes each containing an open miniature
liquor bottle, a partially burned rolled up envelope, and a match or matches were inside
the box. The manager used a towel to absorb about a half inch of liquid remaining in the
box, which she described as gasoline. She contacted the police after reviewing
surveillance videos from the previous night, which showed defendant approaching the
drop box five times in various dress and placing objects in the slot. The fifth time
defendant rolled a piece of paper, lit it, placed the flaming paper inside the box, jumped
back, and ran away quickly. He returned a sixth time and looked into the drop box
through the slot.
       A responding police officer noticed an overwhelming smell of gasoline as he
entered the manager’s office, and an arson investigator smelled gasoline when he entered
the office two days later. The investigator observed soot deposits on the interior surfaces
of the drop box, and residual liquid inside the miniature bottles. He collected the
envelopes and bottles in airtight containers designed to trap vapors, and seized a gas can
from defendant’s driveway. The investigator testified that the fire had resulted in only
superficial damage because of insufficient air in the drop box. But there had been
potential for the fire to damage the box and spread to the building walls, as the box was
not constructed to contain a fire.
       A criminalist testified that gasoline residue was present in the evidence containers
holding the miniature bottles and charred envelopes. She smelled a strong odor of
gasoline when she opened each container as if she had spilled gasoline on her hands at a
gas station, even though she opened the containers under a fume hood designed to
remove fumes. Liquid from the gas can seized from defendant’s driveway tested positive
for gasoline.
       Defendant testified that he had many conflicts with the mobile home park
management, and in early 2013 he filed a lawsuit against the mobile home park because
he believed management was improperly withholding his rent payments and trying to
defraud him of insurance money. At the same time, he had complained to the district
attorney’s office about the mobile home park’s eviction procedure. He felt the district
attorney’s office had not taken him seriously, and he decided to file a lawsuit against that
office for failing to act on his complaint. To support that lawsuit, defendant decided to
stage a crime for the district attorney’s office to investigate. By showing that the office


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would investigate some crimes but not his, defendant felt he could prove he was being
treated unfairly.
       Defendant testified that he staged an arson attack at the manager’s office, but he
did not intend to cause harm. He knew he would be captured on camera, and he dressed
in costume to clown around and make the district attorney look ridiculous, not to hide his
identity. He removed a small amount of gasoline from the rim of an automobile
carburetor and put it on the edges of the envelopes to smell like someone had tried to start
a fire, and he filled the miniature bottles with water to prevent a fire from starting. He
threw a lit piece of paper into the drop box to simulate a fire, which he would not have
done had the box not been enclosed because he did not intend to cause damage.
       Defendant did not tell the responding officers or the fire investigator that his arson
attempt was a fake when questioned about the incident. When asked, he denied being the
person photographed placing items in the drop box. Defendant claimed he had sent a
letter to the district attorney’s office explaining what he had done, but no such letter was
introduced at trial.
       Defendant was found guilty, imposition of sentence was suspended, and he was
ordered to complete three years’ formal probation with conditions that included one year
in county jail.

                                II.        DISCUSSION
       Penal Code section 455, subdivision (a) prohibits any person from “willfully and
maliciously attempt[ing] to set fire to or attempt[ing] to burn or to aid, counsel or procure
the burning of any structure, forest land or property, or [from] commit[ting] any act
preliminary thereto, or in furtherance thereof.” Subdivision (b) of Penal Code
section 455 states: “The placing or distributing of any flammable, explosive or
combustible material or substance, or any device in or about any structure, forest land or
property in an arrangement or preparation with intent to eventually willfully and


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maliciously set fire to or burn same, or to procure the setting fire to or burning of the
same shall, for the purposes of this act constitute an attempt to burn such structure, forest
land or property.” The California Supreme Court has recognized the placement of
flammable material in or about a structure as attempted arson when done with the specific
intent to willfully and maliciously set fire to the structure. (People v. Atkins (2001) 25
Cal.4th 76, 87.) That observation accords with the general attempt statute, which
provides that “[a]n attempt to commit a crime consists of two elements: a specific intent
to commit the crime, and a direct but ineffectual act done toward its commission.” (Pen.
Code, § 21a.)
       CALCRIM No. 1520 is the standard jury instruction for attempted arson approved
by the California Judicial Council. (Cal. Rules of Court, rule 2.1015(a).) The instruction
states in its entirety: “The defendant is charged [in Count ___] with the crime of
attempted arson [in violation of Penal Code section 455]. [¶] To prove that the
defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant
attempted to set fire to or burn [or counseled, helped, or caused the attempted burning of]
(a structure/forest land/property); [¶] AND [¶] 2. (He/She) acted willfully and
maliciously. [¶] A person attempts to set fire to or burn (a structure/forest land/property)
when he or she places any flammable, explosive, or combustible material or device in or
around it with the intent to set fire to it. [¶] Someone commits an act willfully when he
or she does it willingly or on purpose. [¶] Someone acts maliciously when he or she
intentionally does a wrongful act or when he or she acts with the unlawful intent to
defraud, annoy, or injure someone else. [¶] [A structure is any
(building/bridge/tunnel/power plant/commercial or public tent).] [¶] [Forest land is any
brush-covered land, cut-over land, forest, grasslands, or woods.] [¶] [Property means
personal property or land other than forest land.]” (Italics, uppercase, and bracketed
content in original.)


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       The trial court instructed the jury using CALCRIM No. 1520, as follows: “The
elements of attempted arson, the charged crime, are as follows: The defendant is charged
in Count 1 with the crime of attempted arson, in violation of Penal Code section 455. To
prove that the defendant is guilty of this crime, the People must prove that: 1, the
defendant attempted to set fire to or burn a structure or property; and 2, he acted willfully
and maliciously. [¶] Some definitions: [¶] A person attempts to set fire to or burn a
structure or property when he or she places any flammable, explosive, or combustible
material [or] device in or around it with the intent to set fire to it. [¶] Someone commits
an act willfully when he or she does it willingly or on purpose. [¶] Someone acts
maliciously when he or she intentionally does a wrongful act. [¶] A structure is any
building. [¶] Property means personal property belonging to another.”

A. CALCRIM NO. 1520 INSTRUCTS ON SPECIFIC INTENT
       Defendant argues that CALCRIM No. 1520 fails to instruct on specific intent, a
required element of attempted arson. We apply an independent standard of review in
determining whether the instruction correctly states the law. (People v. Posey (2004)
32 Cal.4th 193, 218.)
       In arguing that CALCRIM No. 1520 fails to list every element of attempted arson,
defendant focuses only on the sentence describing what the prosecution must prove. In
his view, the jury was instructed to “first find that the defendant committed an act in an
attempt to set fire to a structure,” and then “find that the defendant carried out that act
with a willful and malicious mental state.” But the instruction also contains definitions.
It defines an “attempt to set fire or to burn” a structure or property as “plac[ing] any
flammable, explosive, or combustible material or device in or around” the structure or
property “with the intent to set fire to it.” (CALCRIM No. 1520.) Read in its entirety,
the instruction includes the required mental state for attempted arson: the specific intent
to set fire to the structure or property. The instruction further mirrors Penal Code


                                               5
section 455 by requiring that the defendant act willfully and maliciously. Those mental
states are not inconsistent with the specific intent to set a fire. (People v. Atkins, supra,
25 Cal.4th at p. 87.) Thus, the standard jury instruction used here accurately tracked the
language of Penal Code section 455 and included all elements of the offense.

B. CALCRIM NO. 1520 IS NOT AMBIGUOUS
       Arguing that the definition of an “attempt” in CALCRIM No. 1520 is ambiguous,
defendant takes issue with the second occurrence of the word “it” in the sentence defining
an attempt, as instructed by the court: “A person attempts to set fire to or burn a structure
or property when he or she places any flammable, explosive, or combustible material or
device in or around it with the intent to set fire to it.” According to defendant, the second
it does not have a clear noun antecedent, and could refer to either “a structure or
property” or “any flammable, explosive, or combustible material or device.” According
to defendant, the jury could have convicted him by finding he intended to set fire only to
the envelope but not the property or structure owned by the mobile home park.
       In our view, the only logical noun antecedent to the pronoun at issue here is the
phrase “a structure or property.” The sentence introduces “a structure or property” as the
object of “to set fire to or burn.” The sentence then describes an attempt as “plac[ing]
any flammable, explosive, or combustible material or device in or around it with the
intent to set fire to it.” The logical antecedent to the first it is “a structure or property,” as
it would be nonsensical to place a flammable material or device in or around itself. The
logical antecedent to the second it is the same “structure or property,” as nothing in the
sentence suggests that the same pronoun refers to different objects or that the antecedent
has changed.
       Even assuming this ambiguity in the instruction’s definition of an attempt, it is not
reasonably likely the jury misunderstood or misapplied the specific intent element here.
(Estelle v. McGuire (1991) 502 U.S. 62, 72 [the reviewing court determines whether it is


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reasonably likely a jury misapplied an ambiguous instructions]; People v. Young (2005)
34 Cal.4th 1149, 1202 [same].) The prosecutor specifically told the jury that the word it
referred to a structure or property, and the required intent was the specific intent to set
fire to that structure or property: “So a person attempts to set fire to or burn a structure or
property when he places a flammable material in or around it, and what it is is a structure
or property. So a flammable material placed in or around a structure or property with
intent to set fire to that structure or property.” (Italics added.) Later the prosecutor
addressed this sentence in the instruction again: “I’m going to direct you back again to
the instruction. It says: ‘A person attempts to set fire to or burn a structure or property
when he places any --’ emphasis on ‘any --’ ‘any flammable material in or around the
property or structure with the intent to set fire to this property or structure.’ ” (Italics
added.)
       Counsel for defendant explained in his closing argument also that the instruction
did not permit a conviction unless the jury found specific intent to set fire to another
person’s property: “The element that’s important here is what is his intent? What is his
intent? And it’s not the intent to do everything that he said that he did, light an object,
put objects inside of another person’s property, put a match or a lit envelope inside there.
That’s not the intent we’re talking about, as I think [the prosecutor] aptly explained. It’s
the intent to set fire to the other person’s property that matters.” (Italics added.)
Counsel did not contest the other elements of the offense, and he concluded his argument
by stressing that the prosecution had failed to establish defendant’s intent to burn the lock
box or the mobile home park’s property. We find no instructional error.

C. PREJUDICE
       To buttress his prejudice argument, defendant asserts that the jury did not receive a
copy of CALCRIM No. 1520. We do not necessarily draw that conclusion from this
record. An incomplete set of jury instructions is included in the clerk’s transcript with a


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face sheet titled “Jury Instructions Provided to the Jury.” That set of instructions does not
include CALCRIM No. 1520, CALCRIM No. 251 (union of act and intent), and
CALCRIM No. 3550 (pre deliberation), which we know from the reporter’s transcript
were among the instructions read to the jury before deliberations commenced. We also
know from the reporter’s transcript that the trial court intended to provide the jury with a
complete set of instructions, as the jury was told it would receive the entire set to use in
the jury room. Given that the missing instructions were read to the jury and the court was
never alerted to any missing instructions during deliberations, it is possible all written
instructions were provided to the jury but some were later lost or inadvertently omitted
from the record on appeal due to clerk error.
       Penal Code section 1093, subdivision (f) provides that the court either give the
jury a copy of the written instructions upon deliberations or advise the jury of the
availability of the written instructions. Failure to comply with that mandate does not
implicate any provision of the state or federal Constitution. (People v. Samayoa (1997)
15 Cal.4th 795, 845; People v. Cooley (1993) 14 Cal.App.4th 1394, 1399.) Any failure to
provide written instructions would therefore be reviewed for prejudice under People v.
Watson (1956) 46 Cal.2d 818. Even if we were to assume that the jury did not receive a
complete set of instructions in written form, we see no reasonable probability of an
outcome more favorable for defendant absent that error. The reporter’s transcript
confirms that the court and counsel recited the instructions accurately. Whether
defendant was shown to have had the requisite specific intent was the single issue
disputed at trial and was thoroughly addressed by the court and counsel.

                              III.         DISPOSITION
       The judgment is affirmed.




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                               ____________________________________
                               Grover, J.




WE CONCUR:




____________________________
Elia, Acting P. J.




____________________________
Premo, J.




H042666 - People v. Rubino
Trial Court:                         Santa Clara County Superior Court,
                                     Case No.: C1364973

Trial Judge:                         Hon. Ron M. Del Pozzo

Attorneys for Plaintiff/Respondent   Xavier Becerra
The People:                           Attorney General of California
                                     Gerald A. Engler
                                      Chief Assistant Attorney General
                                     Jeffrey M. Laurence
                                      Senior Assistant Attorney General
                                     Seth K. Schalit
                                      Supervising Deputy Attorney General .
                                     William M. Kuimelis
                                      Deputy Attorney General

Attorneys for Defendant/Appellant    Michael Sampson
Joseph Eugene Rubino:                 Attorney at Law
                                      Under Appointment by the Court of
                                      Appeal
