CA Penal Code 451 & 452

Arson

What is Arson?

Under California Penal Code 451, the legal definition of arson consists of the following elements of the crime:

  • To set fire to or burn a structure, forest land, or property; AND
  • To do so willfully and maliciously.

It is important to note that anyone who aids, counsels, or procures the burning of or the intent to burn anything can also be tried for arson.

I. Definitions of Terms

In order to understand arson, it is important to recognize what the terms stated in the definition really mean here:

Willfully and Maliciously

To act “willfully” is to commit an act willingly or on purpose, regardless of whether or not you knew what you were doing.

To act “maliciously” means to intentionally commit a wrongful act while wishing to vex, defraud, annoy, or injure another person.i

To set fire to or burn

When you damage or destroy something with fire, you can be charged for arson. Whether it is an entire building or a small door in the building, anything that is set on fire counts as being destroyed by fire.

Structure, Forest Land, Property

A “structure” is any building, commercial or public, as well as tents, bridges, tunnels, or power plants. ii
“Forest Land” means any brush-covered land, cut-over land, forest, grasslands, or woods. iii

“Property” can either be real property or personal property that is not a structure or forest land, such as furniture, cars, boats, clothing.iv

Different types of Arson

In the state of California, arson can be categorized into varying specific types of arson crimes.

  1. Malicious arson

Under CA Penal Code 451, a person can only be found guilty of “malicious arson” if the prosecutor can prove the following:

  • You set fire to or burn a structure, forest land, or property; AND
  • You did so maliciously and willfully.

If the suspect did not have this intent, then he/she may be charged instead with—or may be able to plea bargain down to—“reckless arson.”

Example: Diego is constantly bullied at school. Out of anger and resentment, he decides to burn down his high school building at night (after everyone has left). He sets the fire, but due to his lack of experience in sustaining fires, it eventually dies and the only piece of property that is damaged by the time the fire goes out is the carpet in a small classroom.

It is clear that Diego has committed arson—malicious arson, to be exact—even though most of the entire school property is still perfectly intact and undamaged.

  1. Aggravated Arson

“Aggravated Arson” is an additional allegation to the crime of arson. Under CA Penal Code 451.5, any person who commits arson deliberately, with premeditation, and with the intent to cause injury to someone else or the intent to cause damage to property in order to injure another person is guilty of aggravated arson if any of the following aggravating factors exists:

  1. The defendant has been previously convicted of arson within the past 10 years;
  2. The fire caused property damage and other losses in excess of seven million dollars ($7,000,000); OR if
  3. The fire caused damage to, or the destruction of, five or more inhabited structures v
  1. Reckless Arson

This type of arson occurs when someone unlawfully, or “recklessly”, sets fire to a structure, forest-land, or property. vi For the purposes of Penal Code 452, acting “recklessly” means:

  1. You are aware of your actions and that they may present risk of causing a fire,
  2. You ignore that risk, and
  3. Doing so is unlawful and unusual compared to how a reasonable person would act differently given the same situation.

It is important to note that acting “recklessly” is not equivalent to acting carelessly or negligently. Thus, accidents do happen, and that’s okay as that doesn’t make a person guilty of reckless arson. But behaving with a complete disregard for safety may constitute recklessness.

Example: You throw a lit cigarette into a bush and it consequently catches on fire. You are well aware that you A) shouldn’t have littered, and B) shouldn’t have tossed a burning cigarette anywhere without butting it out first.

Penalties

In California, each type of arson has its own set of consequences, depending on factors such as:

  • Which type of arson you are convicted of,
  • The nature of the property that was burned and the damages,
  • Whether any people were injured, and
  • Your criminal history.

I. Malicious Arson – Penal Code 451

Willful or malicious arson is always a felony under California law. Depending on where the arson was committed, the potential prison terms for this felony include:

  • Personal property – 16 months, two years or three years;
  • Structure or forest land – Two, four, or six years;
  • Inhabited structure/property – Three, five, or eight years; and
  • Great Bodily Injury – Five, seven, or nine years.

In addition to the prison sentencing, an arson felon may face further punishment of up to $50,000 in fines if the crime was not committed for any pecuniary gain. If the prosecutor is able to prove that financial gain was either a motive or actually distributed to the felon, then twice the amount of the actual or anticipated gain may be charged against the defendant. viii

Lastly, a malicious arson conviction is deemed a “strike” on one’s criminal record under California’s Three Strikes Law. ix

II. Reckless Arson – Penal Code 452

Considered as a “wobbler,” reckless arson can be charged as either a misdemeanor or a felony depending on the circumstances. The potential sentences for the different types of reckless arson are:

  • Great bodily injury is punishable by a misdemeanor imprisonment in county jail for up to one (1) year, or by a felony imprisonment in state prison for two, four, or six years, and/or by a fine.
  • Inhabited structure/property is punishable by a misdemeanor imprisonment in county jail for up to one (1) year, or by a felony imprisonment for two, three or four years, and/or by a fine.
  • A structure or forest land is punishable by a misdemeanor imprisonment in county jail for up to six months, or by a felony imprisonment in state prison for 16 months, two or three years, and/or by a fine.
  • Personal property is punishable by a misdemeanor imprisonment in county jail for up to six months and/or a fine of up to $1,000.

III. Aggravated Arson

Under California law, an arsonist faces an additional and consecutive sentence of one, two, or three-years in state prison if any of the following circumstances exist:

  1. The defendant has a prior conviction for malicious or reckless arson within the past ten years;
  2. A firefighter, peace officer, or other emergency personnel suffered Great Bodily Injury as a result;
  3. Two or more people suffer from Great Bodily Injury as a result; or
  4. Multiple structures were burned.

However, if the prosecutor can prove that you committed arson

  1. intending to injure other people or damage an inhabited structure,
  2. while you had a prior arson conviction within the past ten years,
  3. the fire damaged property and other losses in excess of seven million dollars, AND
  4. damaged five or more inhabited structures,

Then you face a state prison sentence of ten years to life. xv

Furthermore, there are other circumstantial “aggravating factors” that can determine a prolonged sentence, such as arson being expressed in the form of a “hate crime.”

Example: You set fire to your apartment because your landlord is evicting you. Or you set fire to a religiously affiliated structure of worship out of hate.

IV. Registration as a Convicted California Arson Offender

In addition to the corresponding penalties, anyone who is convicted of

  • Malicious arson or attempted malicious arson,
  • Aggravated arson resulting in a minimum ten-year prison sentence, arson in the state of California is required to register as a California convicted arson offender
  • Possessing, manufacturing, or disposing of any flammable/combustible material or of any incendiary device in connection with the arson charge

in the state of California will be required to register as a California convicted arson offender. xvi

Thus, similar to an individual registered as a sex offender, the convicted arsonist must routinely update his/her local law enforcement agency regarding to his/her whereabouts.

Since November 30, 1994, those who are convicted as adults will be registered for life. However, the duration for registration may also depend on the age of the arsonist at the time of the conviction as well as the date.

There are separate misdemeanor offenses of an arsonist failing to properly register that may lead to a jail sentence of over 90 days and up to 1 year. xvii

Legal defenses

An experienced attorney should present the most appropriate defenses to any arson crime charge for you due to the strict and severe penalties that may result. In any case, there are several different ways one can alleviate such offenses.

The fire was an accident

If you can prove that the fire was unintentional and the result of an accident, then you cannot be found guilty of arson. In order for the prosecution to convict you of arson or reckless burning, they must prove that you acted maliciously or recklessly.

You were falsely accused, wrongfully arrested, or mistakenly identified

If someone else committed the arson and you were blamed, or if eyewitnesses have mistakenly named you as the culprit of another person’s arson actions, then you can make the claim that you weren’t behind the arson. Or if law enforcement arrests you without a probable cause for arrest, then you can make the claim that there was an unlawful arrest.

Insufficient evidence

Due to the nature of the process of arson, most prosecutors understand that arson can only reasonably be committed by deliberate preparation often times involving the use of some fire-starting device. This “circumstantial evidence” is necessary to build proof against the defendant, and without much circumstantial evidence, it would be difficult for the prosecutor to make his/her case.

A fire is not always started by arson

As stated before, arson requires a very specific plan of action and must be thoroughly investigated to determine whether or not the fire was indeed started by arson. As special forensic units are responsible for finding conclusions, they may not always be right in their findings.

We Want to Help

If you or a loved one is being charged with Arson, we invite you to contact us immediately for a free case review. Schedule an appointment to meet with us in person, or feel free to submit an evaluation online and we will get in contact with you ASAP. We can provide a free consultation in our office, or by phone. Our experienced and assiduous attorneys will be sure to fight until the end to reduce or drop your charges completely.

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References

i California Penal Code 450(e). "Maliciously" imports a wish to vex, defraud, annoy, or injure another person, or an intent to do a wrongful act, established either by proof or presumption of law.

ii California Penal Code 450(a). A "Structure" means any building, or commercial or public tent, bridge, tunnel, or powerplant.

iii California Penal Code 450(b). "Forest land" means any brush covered land, cut-over land, forest, grasslands, or woods.

iv California Penal Code 450(c) "Property" means real property or personal property, other than a structure or forest land.

v California Penal Code 451.5(a) Any person who willfully, maliciously, deliberately, with premeditation, and with intent to cause injury to one or more persons or to cause damage to property under circumstances likely to produce injury to one or more persons or to cause damage to one or more structures or inhabited dwellings, sets fire to, burns, or causes to be burned, or aids, counsels, or procures the burning of any residence, structure, forest land, or property is guilty of aggravated arson if one or more of the following aggravating factors exists: (1) The defendant has been previously convicted of arson on one or more occasions within the past 10 years. (2)(A) The fire caused property damage and other losses in excess of seven million dollars ($7,000,000).(B) In calculating the total amount of property damage and other losses under subparagraph (A), the court shall consider the cost of fire suppression. It is the intent of the Legislature that this paragraph be reviewed within five years to consider the effects of inflation on the dollar amount stated herein. (3) The fire caused damage to, or the destruction of, five or more inhabited structures.

vi California Penal Code 452. A person is guilty of unlawfully causing a fire when he recklessly sets fire to or burns or causes to be burned, any structure, forest land or property.

vii See California Penal Code sections 451(a)-(d)

viii Penal Code 456 PC -- Fine upon felony conviction [for arson]; fine based upon pecuniary gain; amounts. (“ (a) Upon conviction for any felony violation of this chapter [California arson laws], in addition to the penalty prescribed, the court may impose a fine not to exceed fifty thousand dollars ($50,000) unless a greater amount is provided by law. (b) When any person is convicted of a violation of any provision of this chapter and the reason he committed the violation was for pecuniary gain, in addition to the penalty prescribed and instead of the fine provided in subdivision (a), the court may impose a fine of twice the anticipated or actual gross gain.”)

ix See article classified under “Three Strikes Law”

x Penal Code 452(a). Unlawfully causing a fire that causes great bodily injury is a felony punishable by imprisonment in the state prison for two, four or six years, or by imprisonment in the county jail for not more than one year, or by a fine, or by both such imprisonment and fine.

xi Penal Code 452(b). Unlawfully causing a fire that causes an inhabited structure or inhabited property to burn is a felony punishable by imprisonment in the state prison for two, three or four years, or by imprisonment in the county jail for not more than one year, or by a fine, or by both such imprisonment and fine.

xii Penal Code 452(c) Unlawfully causing a fire of a structure or forest land is a felony punishable by imprisonment in the state prison for 16 months, two or three years, or by imprisonment in the county jail for not more than six months, or by a fine, or by both such imprisonment and fine.

xiii See Penal Code 452.

xiv California Penal Code 452.1(a) Notwithstanding any other law, any person who is convicted of a felony violation of Section 452 shall be punished by a one-, two-, or three-year enhancement for each of the following circumstances that is found to be true:(1) The defendant has been previously convicted of a felony violation of Section 451 or 452. (2) A firefighter, peace officer, or other emergency personnel suffered great bodily injury as a result of the offense. The additional term provided by this subdivision shall be imposed whenever applicable, including any instance in which there is a violation of subdivision (a) of Section 452. (3) The defendant proximately caused great bodily injury to more than one victim in any single violation of Section 452. The additional term provided by this subdivision shall be imposed whenever applicable, including any instance in which there is a violation of subdivision (a) of Section 452. (4) The defendant proximately caused multiple structures to burn in any single violation of Section 452.

xv Penal Code 451.5(b) Any person who is convicted under subdivision (a) shall be punished by imprisonment in the state prison for 10 years to life.

xvi California Penal Code 457.1 PC -- Arson and attempted arson; persons convicted of arson; registration while residing California [Registration after arson conviction]. (“(a) As used in this section, “arson” means a violation of Section 451, 451.5, or 453, and attempted arson, which includes, but is not limited to, a violation of Section 455. (b)(1) Every person described in paragraph (2), (3), and (4), for the periods specified therein, shall, while residing in, or if the person has no residence, while located in California, be required to, within 14 days of coming into, or changing the person's residence or location within any city, county, city and county, or campus wherein the person temporarily resides, or if the person has no residence, is located: (A) Register with the chief of police of the city where the person is residing, or if the person has no residence, where the person is located. (B) Register with the sheriff of the county where the person is residing, or if the person has no residence, where the person is located in an unincorporated area or city that has no police department. (C) In addition to (A) or (B) above, register with the chief of police of a campus of the University of California, the California State University, or community college where the person is residing, or if the person has no residence, where the person is located upon the campus or any of its facilities. (2) Any person who, on or after November 30, 1994, is convicted in any court in this state of arson or attempted arson shall be required to register, in accordance with the provisions of this section, for the rest of his or her life. (3) Any person who, having committed the offense of arson or attempted arson, and after having been adjudicated a ward of the juvenile court on or after January 1, 1993, is discharged or paroled from the Department of the Youth Authority shall be required to register, in accordance with the provisions of this section, until that person attains the age of 25 years, or until the person has his or her records sealed pursuant to Section 781 of the Welfare and Institutions Code, whichever comes first. (4) Any person convicted of the offense of arson or attempted arson on or after January 1, 1985, through November 29, 1994, inclusive, in any court of this state, shall be required to register, in accordance with the provisions of this section, for a period of five years commencing, in the case where the person was confined for the offense, from the date of their release from confinement, or in the case where the person was not confined for the offense, from the date of sentencing or discharge, if that person was ordered by the court at the time that person was sentenced to register as an arson offender. The law enforcement agencies shall make registration information available to the chief fire official of a legally organized fire department or fire protection district having local jurisdiction where the person resides.”)

xvii California Penal Code 457.1(h) Any person required to register under this section who violates any of the provisions thereof is guilty of a misdemeanor. Any person who has been convicted of arson or attempted arson and who is required to register under this section who willfully violates any of the provisions thereof is guilty of a misdemeanor and shall be sentenced to serve a term of not less than 90 days nor more than one year in a county jail. In no event does the court have the power to absolve a person who willfully violates this section from the obligation of spending at least 90 days of confinement in a county jail and of completing probation of at least one year.”

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