There are two California statutes pertaining to arson. Penal Code 451 concerns the more serious one, which is also known as “malicious arson.” This offense is always charged as a felony and is considered a violent crime. The other category is under Penal Code 452, or “reckless burning” of property, and is a “wobbler” offense and may be charged either as a felony or misdemeanor.
Malicious arson is composed of the following elements:
- The defendant set fire
- To property including any kind of structure, motor vehicle, forest land or personal property, or the defendant assisted, counseled or procured the burning of such property, and,
- It was done so willfully and maliciously
First Element–Setting Fire
When you hear of arson, most people assume it concerns the total destruction of land or of a building by fire. For purposes of committing arson under California law, however, any kind of damage, no matter how minor, satisfies this element of the offense.
Second Element—Structure, property or forest land
A structure may be an inhabited or uninhabitable residence, any kind of motor vehicle, tent, business or even a tunnel. Property includes any kind of personal property including a stamp collection, clothing, photographs, documents, appliances or furniture. Forest land refers to grass lands, wetlands, brush, trees or plains.
A qualification to this element is that the property that is burned must have belonged to someone other than yourself. However, you can still be charged and convicted if you did burn your own property with the intent to defraud someone or entity or the fire results in injuring someone or damaging someone else’s property.
Third Element—Willful and Malicious Intent
Your intent determines whether you are charged under Penal Code 451 or Penal code 452, which is reckless burning and under which you could face only misdemeanor charges. Malicious arson is a crime of specific intent where the requisite mental requirement is of willfulness, meaning purposeful or intentional conduct. Malicious implies some evil behavior but it pertains to unlawfully committing the act of burning a structure, forest land or property to:
- Injure someone
- Defraud an insurance company
- Damage someone else’s property out of spite, jealousy, annoyance, revenge or any other reason
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Malicious arson under PC 451 is a felony with state prison time. The length of your sentence depends on the circumstances of the arson and what was burned.
- 7 or 9 years if someone suffered great bodily harm
- 3, 5 or 8 years if an inhabited building was burned
- 2, 4 or 6 years if a non-inhabited structure or forest land was burned
- 16 months, 2 or 3 years if you burned your own property but someone else’s property was damaged
- Fine of up to $10,000
- Or a fine of $50,000 or twice the amount of your expected financial gain for defrauding someone or entity
- A strike on your criminal record under California’s 3-Strikes law
- Registration as an arson offender for life if convicted as an adult
Some serious or violent offenses carry enhancements or define certain conditions under which the court can impose additional fines and longer prison sentences. Under PC 451, these aggravating circumstances include any one of the following:
- Having a prior felony conviction for arson under PC 451 or 452
- A police officer, firefighter or emergency personnel suffered great bodily injury as a result of the fire
- At least 2 people suffered great bodily injury because of the fire
- More than one structure was damaged in the fire
- You used a device to delay the ignition to set the fire or to accelerate it
If any of these were present, then the court can impose another 1 to 5 years in state prison to be served consecutively, which means that it is added to your sentence and is not concurrent.
Also, the court may sentence you to a maximum term if you burned the building in retaliation for some perceived wrong committed by the owner of the building or structure. You also face a maximum term if you knew the building you were setting fire to was a place of worship such as a mosque, synagogue or church.
Finally, the court can impose a sentence of 10 years to life when you set the fire with the malicious intent to injure someone or damage an inhabited structure and any of the following circumstances exist:
- You have a prior arson conviction within the past 10 years
- The value of the property damaged by the fire and any other losses or costs associated with it including the cost of containing and extinguishing it was more than $5.650,000
- More than 5 structures were damaged
You can defend yourself against charges of arson. The following are common defenses raised by defense attorneys whose clients face arson charges.
Most defenses center around the excuse or explanation that the fire was caused by accident. If so, there was no malicious intent and the worst you might face is reckless arson under PC 452. The DA has to prove you had the willful intent to start the fire and will need proof of motive or corroborating testimonial or documentary evidence to convict you.
Some fires are caused unintentionally but the defendant created a high risk or possibility that a fire would either occur or damage other property or injure other persons. This usually involves persons who were impaired or intoxicated and allowed a camp fire to burn out of control or who passed out in an apartment while smoking. Because the individuals passed out or were too intoxicated, the argument is that they were incapable of understanding or appreciating the risk. Still, they can be prosecuted under PC 452 for reckless arson.
Lack of Sufficient Evidence
It is difficult to prove intent in starting a fire unless there is corroborating or circumstantial evidence. Such might include discovering that you did computer research on how to surreptitiously start a fire, the existence of a motive based on financial problems or revenge for being unjustly terminated from a job, finding containers of gasoline or accelerants in your garage, or witnesses who can testify they saw you running from the scene just before the fire began. Direct evidence is someone testifying that they saw you start the fire.
Circumstantial evidence is proof of a fact from which a person may reasonably infer or conclude that you committed the crime. It can be very powerful but it is not direct evidence. Reasonable alternatives for certain evidence that do not point to or infer guilt must be considered by the trier of fact.
Circumstantial evidence, though, is treated the same as direct evidence and can be powerful even though it is not direct evidence. If there is enough circumstantial evidence and it is convincing enough, it can convict you.
Cause of the Fire
Before you can be convicted of arson, the prosecution needs to prove that arson even took place. Experts look for certain clues to determine the origin of a fire, how it began and if certain chemicals or accelerants were used. Analyzing certain factors and making conclusions about a fire is not an exact science and experts do take shortcuts, look for evidence to support their conclusions while discounting or ignoring evidence that contradict their conclusions. A competent and knowledgeable defense attorney can effectively challenge an expert’s conclusions while introducing a defense expert who can credibly cast reasonable doubt on an incriminating report.
A conviction under PC 451 is a serious felony and a deportable offense if you are not a US citizen. It is a crime of moral turpitude. If you left the country after your conviction, you will be unable to reenter. Also, if you are a legal resident, your opportunity for naturalization is seriously compromised.
You can still seek relief from removal proceedings if you qualify for deferred action, adjustment of status or under temporary protected status. You may eligible for asylum or protection under The United Nations Convention Against Torture but you may still face considerable obstacles.
Arson is associated with other criminal offenses that are committed in either in conjunction with the destruction of property by the act of deliberate burning or which are the result of the fire:
When you commit arson with malicious intent and a fatality occurs, you can be charged and convicted of homicide under PC 187 pursuant to the felony murder rule, regardless if that was your intent. This means that if someone dies while you were in the act of committing a felony, you can be just as liable for that person’s death as if you intended to kill them. For example, if in the act of robbing someone you push the victim aside and he falls, hits his head and succumbs to the injuries, you are liable for murder.
Another example is setting fire to a car. Should the car explode and the fire spreads to a home and someone dies as a result, you face murder charges.
The court can impose any of the following sentences if a death occurs while you intentionally committed a serious felony, such as malicious arson:
- Imprisonment for 25 years to life
- Imprisonment for life without the possibility of parole
- The death sentence
If you did set the fire without malice but did so recklessly, you could still be charged with involuntary manslaughter under PC 192(b). If convicted, you face 2, 3 or 4 years in jail and a fine up to $10,000.
Reckless Arson–PC 452
The less serious crime of arson is under PC 452, or reckless arson, where the DA is unable to prove malicious intent. If you are charged under PC 451, though, your attorney might be able to plea bargain malicious arson down to reckless arson as a misdemeanor with far less onerous consequences.
Recklessness refers to conduct that is not malicious but does exhibit a callousness or indifference to the rights or safety of others. It is engaging in high risk behavior and being aware of its likelihood of causing damage or harm. Driving a car and speeding while intoxicated is an example. Regarding arson, if you start a campfire in a forest under very dry conditions or while heavily intoxicated, you are engaging in behavior that a reasonable person would perceive or understand as posing a high risk of damage to property or injury to someone.
It is also conduct that strongly deviates from that which a person exercising ordinary care would do under similar circumstances.
If charged as a misdemeanor, you face; up to either 6 months in county jail if:
- Up to 6 months if you burned an uninhabited structure or forest land
- Up to one year in county jail for damage to inhabited property
- Up to one year if the fire causing serious bodily harm
- A fine up to $1000
As a felony, you face the following sentencing possibilities:
- If the damage was to an inhabited structure or other inhabited property—2, 3 or 4 years in state prison
- If the damage was to any other structure or forest land—16 months, 2 or 3 years in state prison
- If the fire caused serious bodily harm—2, 4 or 6 years in state prison
Burglary is the act of entering someone’s home or business with the intent to commit a felony or other crime. If you are caught or arrested and you are possessing incendiaries or other fire starting materials, then you could be charged with burglary and attempted malicious arson.
Entering an inhabited dwelling under PC 459 is a felony. If it is any other structure, it is a “wobbler” and you can be charged with either a misdemeanor or a felony.
For second degree burglary as a misdemeanor, you face up to one year in county jail and a fine up to $1000.
For first degree burglary, a felony, you face 2, 4 or 6 years and a $10,000 fine as well as a strike on your criminal record.
Unlawfully entering onto someone’s land, or without their permission, is criminal trespass. If you are arrested and possess certain materials used to start a fire, you could face burglary and attempted arson charges.
You do not have to do anything to injure or damage the property in any manner as your unlawful presence alone constitutes trespass. If the DA is unable to prove your intent was to commit arson, then trespass is a possible plea bargain. It can still be a felony with jail time of 16 months, 2 or 3 years; a misdemeanor with up to 6 months in jail or an infraction. An infraction is not a crime and involves only a fine up to $250.
Insurance Fraud—PC 548-550
You commit insurance fraud if you fraudulently present a claim for damages. The classic arson case is the individual who burns down his failing business to collect the insurance proceeds. It is a felony that carries the potential of imprisonment for 2, 3 or 5 years and a fine up to $50,000. This sentence can be served in county jail pursuant to PC 1170(h).