Arson and Unlawfully Causing a Fire (Penal Codes sections 451 and 452)

California Penal code section 451 makes it a felony to willfully and maliciously set fire to or burn any structure, forest land, or other property. Penal Code section 452 makes it a misdemeanor or felony when someone causes a fire due to their reckless behavior. The charge of arson or unlawfully causing a fire can apply to any damage to a structure, forest land, or other property caused by fire, no matter how slight that damage is1.

Arson is prosecuted based upon the severity of the offense and the intent of the defendant. The penalties can range from a fine all the way to the death penalty if the arson caused the death of another 2.

Whether you are charged with the misdemeanor crime of unlawfully causing a fire that results in relatively minor damage to property or more serious felony arson charges, you need to consult with an experienced Orange County arson defense lawyer immediately. The punishment for arson can be severe. Depending upon the circumstances, the charges can often be mitigated or defeated. An experienced attorney understands the requisite elements of the crime and is able to investigate whether the prosecution has the evidence that all those elements were satisfied. If the elements are not satisfied, an experienced attorney can work to get the charges dismissed. If the charges stand up to scrutiny, an experienced attorney can work for a conviction on a lesser offense or to mitigate the sentence.

I am an experienced arson defense attorney in Orange County with proven results and I promise to vigorously defend your rights under the law. I have successfully3 defended hundreds of clients, including those charged with arson. Contact me at any time to set up a confidential consultation without charge. I will work with you and your family to provide a fee structure that best suits your circumstances.

Arson - Penal Code Section 451

One can also be charged with this crime even if he or she did not actually commit the act but counseled, helped, or caused someone else to commit the arson. What follows applies not only to an individual who actually committed the arson but to any individual who is charged with aiding and abetting an arson.

In order to be charged with this crime, the prosecution must prove that the defendant acted willfully and maliciously; both conditions must be proved. That means that the act was committed willingly or on purpose4 and the act was committed with an intent to do a wrongful act or with the unlawful intent to defraud, annoy, or injure another5. If someone, for example, accidentally started a fire, it is not arson because that person did not commit the act on purpose. However, if the accidental fire was caused by reckless behavior, a person can be charged with unlawfully causing a fire under Penal Code section 452. Section 452 is discussed in more detail below.

One cannot be charged with arson if he or she causes his or her own personal property to burn unless that property was burned with the intent to defraud or if there is injury to another person as a result of the arson6. Thus, for example, if someone causes his or her own property to burn with the intent to collect on an insurance policy, he or she could be charged not only with arson, but also under the fraud statute.

Simple Arson

Simple arson, which is an act of arson that did not cause the burning of an inhabited structure and/or did not cause great bodily injury to another person, is a felony punishable by imprisonment in state prison for two, four, or six years if the arson was of a structure or forest land and for 16 months, two, or three years if the arson was of any other property7. Penal Code section 450 defines a "structure" as "any building, or commercial or public tent," "forest land" as " any brush covered land, cut-over land, forest, grasslands, or woods" and "property" as any real or personal property that is not a structure or forest land. Under this section, for example, a house would be a "structure;" a car would be "property."

Arson of an Inhabited Structure

If the arson caused the burning of an inhabited structure, the penalty is more severe. This felony conviction is punishable by imprisonment in state prison for three, five, or eight years8. A structure is considered inhabited if someone lives there. The person or persons who live in the structure do not need to be present at the time of the arson for this condition to be met9. As an Orange County arson defense attorney, I can help you fight this type of charge.

Arson Causing Great Bodily Injury

Arson that causes great bodily injury to another person is a serious felony punishable by imprisonment in the state prison for five, seven, or nine years10. Great bodily injury is an injury that is more than minor or moderate; it must be a significant or substantial physical injury11. There is a fine line between an injury that is significant or substantial and one that is moderate and it is up to the judge or jury to make that determination12.

Aggravated Arson

Under Penal Code section 451.1(a)(1-5), arson charges can be enhanced by a number of conditions. These conditions constitute "aggravated arson" and if convicted on any of these aggravated conditions, a defendant is not eligible for a grant of probation13. When a charge is enhanced, the defendant charged faces punishment in addition to the penalties imposed for the crime. If a person charged with arson has a previous felony arson conviction, the penalty may be enhanced by an additional three, four, or five years imprisonment. This same enhancement can also be imposed if the arson caused great bodily injury to a first responder, or if the arson caused great bodily injury to more than one person or damaged multiple structures. The same enhancement will apply to a person who is charged with using an accelerant or time delay device to start the fire.

In addition, the judge may consider other aggravating conditions and while these conditions do not add an additional penalty they may be considered by the court in sentencing and will make a defendant convicted under these aggravating conditions ineligible for probation. These conditions are: arson in retaliation against and owner or occupant of a structure or property14 or arson on a place of worship15.

It is also "aggravated arson" when the defendant is accused of an arson specifically set with the intention to injure others or cause damage likely to injure others when the defendant has been previously convicted of arson within the past ten years or if the damage exceeds $6,500,000.00 or the fire caused damage to five or more inhabited structures16. The penalties under either of these conditions is imprisonment in state prison for ten years to life17 with no opportunity for a grant of probation. An arson defense lawyer in Orange County may make a difference to the outcome of your case. 

Unlawfully Causing a Fire - Penal Code Section 452

If a person acts recklessly but did not intend to cause a structure, forest, or other property to burn, he or she can still be charged with unlawfully causing a fire under Penal Code section 45218. This can still be a serious charge even though the person did not mean to start a fire.

In order to be found to act "recklessly," it must be proven that the person took a substantial and unjustifiable risk, knowing that his or her act could cause a structure, forest, or other personal property to burn but he or she chose to consciously disregard the potential consequence of his or her act. The risky behavior must be objectively risky, that is, a reasonable person would consider the behavior outside the norm of prudent behavior in similar circumstances19. Voluntary intoxication is not an excuse for the risky behavior20.

The penalties for unlawfully causing a fire to property without the intent to do so but due to reckless behavior can be a misdemeanor with a relatively light county jail sentence, fine, and/or probation to a serious felony21. If the fire caused damage only to property, it is a misdemeanor. However, if the reckless behavior caused an inhabited structure or property to burn, it is what is known as a "wobbler22" and is punishable as a felony or a misdemeanor. with a potential sentence of imprisonment in state prison for two, three, or four years or, if convicted as a misdemeanor, punishable by imprisonment in county jail for up to one year or a fine23. When a person causes great bodily injury to another as a result of unlawfully causing a fire, it too is a "wobbler" with a potential sentence of imprisonment in state prison for two, four, or six years or imprisonment in county jail for up to a year and/or a fine24.

1People v. Haggerty (1873) 46 Cal. 354, 355
2 Penal Code §§ 189 and 190
3 I consider a successful defense as one where I have obtained a dismissal, a reduced charge/conviction, and/or a lower sentence than that sought by the prosecutor.
4 Judicial Council of California Criminal Jury Instructions ("CALCRIM") No. 1502
5 Penal Code §450(e); Judicial Council of California Criminal Jury Instructions ("CALCRIM") No. 1502
6 Penal Code §451(d)
7 Penal Code §451(d)
8 Penal Code §451(b)
9 Penal Code §450(d)
10 Penal Code §451(a)
11 Judicial Council of California Criminal Jury Instructions ("CALCRIM") No. 1501
12 People v. Escobar (1992) 3 Cal.4th 740, 752.
13 Penal Code §1203.6(3)
14 Penal Code §1170.78
15 Penal Code §1170.78(b)
16 Penal Code §451.5 (a)(1-3)
17 Penal Code §451.5(b)
18 "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." (Penal Code §452.)
19 Penal Code §450(f).
20 Penal Code §450(f).
21 Penal Code §452 (d)
22 A "wobbler" is a crime that is punishable as a misdemeanor or felony at the discretion of the court. (Penal Code §17(b).)
23 Penal Code §452(b)
24 Penal Code §452(a)

California Criminal Defense Lawyer Blog - Arson
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