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California has two laws regarding the crime of arson. Malicious burning is what is commonly associated with arson and concerns willful or intentional setting of a fire to damage or destroy someone else’s property or forest land. The other crime is that of reckless burning found under Penal Code Section 452.
Elements of Reckless Burning
To be found criminally liable for reckless burning, your actions must meet the following elements of this offense:
Recklessness is more than negligence. To be negligent means you made a mistake or your conduct fell below a certain standard of care as exercised by that of an ordinary person under similar circumstances. This would include travelling too close behind another car and colliding with it because you were unable to stop in time or you made an unsafe change. Regarding possible arson, if you left a heater on and it burned a nearby piece of paper that caught fire to the drapes, then that would be negligence and not constitute a criminal act.
To be reckless, your conduct had to be such that you exhibited a reckless disregard for the safety of others. Starting a fire in a forest during a drought with posted signs all around prohibiting it or throwing a lit cigarette on the ground at a gas station are examples of recklessly endangering others. It entails:
- Acting while being aware that your actions presented a substantial and unjustifiable risk of causing a fire and, nonetheless,
- You ignored the risk
Your actions must be considered a gross deviation from how a reasonably cautious person would have acted under similar circumstances. You may not have set out to destroy property but if your actions were incredibly irresponsible such as throwing a cigarette into a dry bed of leaves that ignites and burns down a neighborhood, it can be considered reckless burning.
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Reckless burning can be a “wobbler” offense, meaning the prosecutor can charge you with either a misdemeanor or as a felony depending upon the facts and circumstances of the case and your criminal record, if any. In matters where no structure was burned, however, it is a straight misdemeanor carrying a penalty of no more than 6 months in county jail.
But if you burned down or fire damaged a residence or business, forest land or caused serious bodily harm to someone, it becomes a wobbler offense so that either a misdemeanor or felony may be charged:
- If a structure or forest land was recklessly burned and you are charged with a felony, you face 16 months, 2 or 3 years in county jail. As a misdemeanor, it is a maximum jail sentence of 6 months.
- For reckless burning of an inhabited structure or property that was inhabited, the penalty as a felony is 2, 3 or 4 years in state prison. If a misdemeanor, it is up to one year in county jail.
- For reckless burning that causes great bodily harm to someone, you face 2, 4 or 6 years in state prison if a felony. A misdemeanor conviction is a maximum of one year in county jail.
There are defenses to a charge of reckless burning:
- An accident
This is the most prevalent defense, The DA or prosecution must prove beyond a reasonable doubt that your actions were at least reckless, or that you ignored an obviously substantial risk that your actions would cause a fire. For example, if the fire began in your home, it is unlikely the DA can prove that you were other than negligent absent evidence that it was deliberately set for financial gain or to harm someone inside. Most house fires are from ovens or burners that were not turned off or candles that ignited a blaze.
If you were intoxicated and started a camp fire in a dry area where campfires were prohibited, this would likely constitute reckless behavior. Most defenses alleging that was an accident center around the fact that anyone could have started the fire and that there was no intent in destroying property or hurting anyone and that an oversight or error led to the fire. You may also show that you tried to put out the fire but it went out of control.
- Lack of evidence
In some cases, there is simply no evidence that you either started the fire or if you did, that it was other than an accident. Most cases are built on indirect or circumstantial evidence, which are facts from which reasonable inferences may be deduced. It is evidence of a series of facts that by reason or experience is so closely associated with the fact to be proved that it may be inferred.
For instance, you just took out a $1Million dollar policy on your house and two months later it burned down under suspicious circumstances. The DA produces evidence that you were 10 months behind in house payments, lost your job and were seen running from the fire. A jury or trier of fact could surmise that you intentionally burned it down.
- Mistaken identification
Occasionally, a witness will mistakenly identify your vehicle as being at the fire scene or shortly before it was set or that you were seen fleeing the scene. A good defense attorney can usually expose holes and inconsistencies in eyewitness testimony.
- Arson was not proved
Before you can be convicted of a crime of arson, the cause must have been arson. For example, a forensic expert’s findings might be inconclusive or biased and based on conclusions with no factual basis or even fabrications. Defense experts and attorneys can challenge the state’s expert on wrongly held assumptions or conclusions as to the origin of the fire.
Many fires are determined to be of unknown origin or there simply is not enough evidence to show that anyone started the fire.
- It was your property
Arson is not committed if you set fire, intentionally or not, to your own property unless you did so to defraud an insurance company. If you set the fire recklessly to your own property and it spreads and damages someone else’s property or causes great bodily harm to another person, then you may face charges under PC 452.
Under PC 1203.4, convictions for misdemeanors and a number of various felony convictions are eligible for expungement. In situations under PC 452 where defendants are charged with a misdemeanor, then the conviction is eligible for expungement. If it is a felony conviction and state prison time was served, you are not eligible but other post-conviction relief is available.
Malicious burning is the intentional or willful act of setting fire to damage or destroy a structure, residence or forest land, or to injure or kill someone, and usually out of revenge or to defraud an insurance company. Of course there are individuals who do it for to satisfy a psychological urge.
This is a felony under all circumstances and a crime of moral turpitude, exposing a non-US citizen to deportation or other immigration problems. You may be sentenced to the following state prison terms:
- Arson of personal property—16 months, 2 or 3 years
- Arson of a structure or forest land—2, 4 or 6 years
- Arson of inhabited residence or structure—3, 5 or 8 years
- Arson that causes great bodily injury—5, 7 or 9 years
- Registration as a convicted arson offender
- An additional term of 1 to 5 years to be served consecutively if the arson injured a firefighter or other emergency personnel; if multiple structures were burned or multiple persons suffered great bodily injury; the fire was aimed at a place of worship; you had prior felony conviction for arson; or you used some device to ignite the fire
- An additional term of 10 years to life if the arson targeted persons in an inhabited dwelling and you had a prior felony arson conviction within the past 10 years; or the fire damaged at least 5 inhabited structures
You also face a fine of up to $10,000 that is increased to up to $50,000 or twice the amount you would have obtained if the arson was done for financial gain such as insurance fraud.
First degree murder is premeditated murder or that willfully or intended to kill another person. You can also be convicted of first degree murder even if you did not intend to kill anyone but you committed a felony offense that resulted in someone’s death under the California felony murder rule.
The possible sentence for a conviction under PC 187 is:
- 25 years to life in prison
- Life imprisonment without the possibility of parole
- Death penalty
Malicious burning that resulted in a death exposes you to either life imprisonment without parole or the death penalty.
Criminal trespass is being on someone else’s property without consent. You could face both trespass and malicious or reckless burning charges if you are unlawfully on someone’s property and set fire to it.
Trespass is typically charged as a misdemeanor and a penalty of up to 6 months and/or a fine up to $1000. But if you trespassed with the intent to injure someone such as by setting a fire, it is a felony with a sentence of 16 months, 2 or 3 years in jail.
Illegally entering another person’s property with the intent to commit a felony is burglary. It is usually to steal property or cash but it includes setting fire to the property so that the offense is malicious arson coupled with burglary.
If you enter a building other than an inhabited home, it becomes a wobbler offense.
But for entering a residence unlawfully, it is a felony carrying up to 6 years in state prison. For burglarizing a store or office, or commercial burglary, you face county jail of up to 3 years if a felony (stealing property valued at more than $950). If the property is $950 or less, you face either up to one year in jail if a misdemeanor or up to 3 years if a felony.
If you deliberately set a fire with the intent to collect the insurance coverage, you commit a felony. Possible penalties include imprisonment of 2, 3 or 5 years and a fine up to $50,000.
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- To set ﬁre to or burn means to damage or destroy with ﬁre either all or part of something, no matter how small the part. [↩]
- Forest land means brush covered land, cut-over land, forest, grasslands, or woods.[CALCRIM 1532] [↩]
- [A person acts recklessly when (1) he or she is aware that his or her actions present a substantial and unjustiﬁable risk of causing a ﬁre, (2) he or she ignores that risk, and (3) ignoring the risk is a gross deviation from what a reasonable person would have done in the same situation. Arson and unlawfully causing a ﬁre require different mental states. For arson, a person must act willfully and maliciously. For unlawfully causing a ﬁre, a person must act recklessly.[CALCRIM 1532 (2017)] [↩]