Arson

The statements contained in this article are not legal advice, and they should not be taken as legal advice. The statements are only meant to provide general information, and they do not pertain to any specific legal situation you may face.

Arson is the willful and malicious, or reckless, burning of a building, land, or other property. Depending on the intent of the defendant, arson may be prosecuted as a felony or a misdemeanor.

A charge of arson carries very significant consequences, including serious prison time and a lifetime requirement of registration as a convicted arsonist. Additionally, if someone was injured as a result of the arson, or if certain amounts of property were damaged, the penalties may increase significantly. If someone died as a result of the arson, murder charges may be filed against the person who started the fire.

With such significant consequences to a conviction of arson that affect the convicted person for the rest of his/her life, no defendant should take an arson charge on alone. It is important to have a skilled attorney who knows the laws on arson and is experienced in representing clients who face the charge.

The attorneys at McDowell Defense have years of experience representing clients who face very serious criminal charges, including arson. They know how to examine a charge of arson, investigate the facts, dissect the evidence in great detail, and fight to obtain the best outcome possible for the client. If you or a loved one face a charge of arson, call McDowell Defense and schedule a free consultation with one of our attorneys at 213-401-2322.

Understanding Arson Charges
As stated above, arson may be charged as a felony or a misdemeanor. If the arson was committed willfully and maliciously (meaning on purpose), it is charged as a felony. If the arson was committed recklessly, it may be charged as a misdemeanor.

Felony Arson: Willfully and Maliciously
Felony arson is covered under California Penal Code section 451 (PC 451). PC 451 states that “(a) person is guilty of arson when he or she willfully and maliciously sets fire to or burns or causes to be burned or who aids, counsels, or procures the burning of, any structure, forest land, or property.”
One caveat, however, is that a person is not guilty of arson for setting fire to his/her own personal property* unless:
S/he did so with an intent to defraud (for instance, an insurance company)
Another person is injured
Another person’s structure, forest land, or property is damaged
*Personal property does not include a structure, such as your home.

Penalties for Willful and Malicious Arson under PC 451
The penalties for willful and malicious arson depend on what the fire damaged.
Willful and Malicious Arson Caused Great Bodily Injury
5, 7, or 9 years in State Prison
Willful and Malicious Arson Caused Inhabited Structure or Inhabited Property to Burn
3, 5, or 8 years in State Prison
Arson of Structure or Forest Land
2, 4, or 6 years in State Prison
(d) Arson of Property (Not your own personal property)
16 months, 2 years, or 3 years in State Prison
Willful and Malicious Arson While Incarcerated
Any sentence imposed is consecutive to the one being served

Penalty Enhancements for Willful and Malicious Arson
In addition to the penalties listed above, a person convicted of arson faces a 3, 4, or 5-year enhancement if any of the following apply:
The defendant has a prior felony arson conviction.
A firefighter, peace officer, or other emergency personnel suffered great bodily injury as a result of the arson.
The defendant proximately caused great bodily injury to more than one victim in any single violation of section 451 (felony arson).
The defendant proximately caused multiple structures to burn in any single violation of section 451.
The defendant committed arson as described in subdivision (a), (b), or (c) of section 451 and the arson was caused by use of a device designed to accelerate the fire or delay ignition.
In order for any of these enhancements to apply, the existence of any fact required for such enhancement shall be alleged in the accusatory pleading and either admitted by the defendant in open court or found to be true by the trier of fact.

Aggravated Arson
PC 451.5 covers aggravated arson, and it says that any person who commits arson
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
Is guilty of Aggravated Arson if one or more of the following aggravating factors exists:
The defendant has been previously convicted of arson on one or more occasions within the past 10 years.
The fire cause property damage and other losses in excess of six million five hundred thousand dollars ($6,500,000). This amount includes the cost of fire suppression, and it may change over time with inflation.
The fire caused damage to, or the destruction of, five or more inhabited structures.

Penalties for Aggravated Arson
Any person found guilty of Aggravated Arson under PC 451.5 shall be imprisoned for 10 years to life, and is not eligible for parole until 10 calendar years have elapsed.

Reckless Arson
Under PC 452, a person is guilty of reckless arson when s/he recklessly sets fire to or burns or causes to be burned any structure, forest land, or property.

Definition of “Recklessly”
“Recklessly” means a person is aware of and consciously disregards a substantial and unjustifiable risk that his or her act will set fire to, burn, or cause to burn a structure, forest land, or property. Basically, this is a risk that no reasonable person would take under the circumstances. Voluntary intoxication is not an excuse to reckless arson.

Penalties for Reckless Arson
Depending on the circumstances, reckless arson may be prosecuted as a felony or a misdemeanor.
Reckless Arson that Causes Great Bodily Injury - Felony
2, 4, or 6 years in State Prison
Reckless Arson that Causes Inhabited Structure/Property to Burn - Felony
2, 3, or 4 years in State Prison
OR
Up to 1 year in county jail
AND/OR
A fine
Reckless Arson of Forest Land - Felony
16 months, 2 years, or 3 years in State Prison
OR
Up to 6 months in county jail
AND/OR
A fine
Reckless Arson of Other Property - Misdemeanor

Reckless Arson While in Incarcerated
Any sentence imposed is consecutive to the one being served.

Penalty Enhancements to Reckless Arson
Any person who is convicted of felony reckless arson faces a 1, 2, or 3-year enhancement to his/her sentence if any of the following is true:
The defendant has previously been convicted of felony arson under PC 451 or 452.
A firefighter, peace officer, or other emergency personnel suffered great bodily injury as a result of the offense.
The defendant proximately caused great bodily injury to more than one victim in any single act of reckless arson.
The defendant proximately caused multiple structures to burn in any single act of reckless arson.
In order for any of these enhancements to apply, the existence of any fact required for such enhancement shall be alleged in the accusatory pleading and either admitted by the defendant in open court or found to be true by the trier of fact.

Possession, Manufacture, Disposal of Flammable or Combustible Material or Incendiary Device with Intent to Willfully and Maliciously Use it to Commit Arson

PC 453 sanctions the possession, manufacture, or disposal of any flammable or combustible material or substance, or any incendiary device in an arrangement or preparation, with intent to commit arson. Any person found to possess, manufacture, or dispose of such substance or device shall be imprisoned under PC 1170, or in a county jail for up to one year.

“Disposes of”
Under PC 453, to dispose of such material means to do any of the following with such material or device:
Give
Give away
Loan
Offer
Offer for sale
Sell
Transfer

“Incendiary Device”
An “incendiary device” is a device that is constructed or designed to start an incendiary fire by remote, delayed, or instant means.
No device commercially manufactured primarily for the purpose of illumination shall be deemed to be an incendiary device.

“Incendiary Fire”
An “incendiary fire” is a fire that is deliberately ignited under circumstances in which a person knows that the fire should not be ignited.

Authorized possession and use of these materials for military, law enforcement, scientific, or educational purposes are not prohibited.

Additional Fines for Any Felony Arson Conviction
In addition to any of the above penalties the court imposes for an arson conviction, the court may also impose an additional fine of up to $50,000.
If, however, the convicted defendant committed the arson for a monetary gain, the additional fine the court may impose, the fine may be twice the anticipated or actual gross gain.
Psychiatric or Psychological Examination
For any arson conviction, the court may order that the convicted defendant submit to a psychiatric or psychological examination.

Registration as an Arsonist Under PC 457.1
Similarly to how a convicted sex offender must register under PC 290, a person convicted of arson under PC 451, 451.5, or 453, or of attempted arson under PC 455, must register with the chief of police in the city in which s/he resides, or with the sheriff of the county in which the person resides.
This also requires any arson convict without a residence to register with such police chief or sheriff in the city or county in which s/he is located, or with the chief of police of a University of California, California State University, or community college if the arson convict is located on a campus or any of its facilities.

If the arson or attempted arson conviction went through after November 30, 1994, the convicted person must register for the rest of his/her life.
Failure to register as a convicted arsonist under PC 457.1 is a separate misdemeanor with penalties of up to 1 year in county jail.

Extinguishing Your Duty to Register
If you are convicted of misdemeanor malicious arson or misdemeanor possession, manufacture, or disposal of flammable/incendiary materials/device, your attorney may be able to have your conviction expunged. This would relieve you of your duty to register as a convicted arsonist.
Similarly, if you are convicted of felony arson, your attorney may be able to help you obtain a Certificate of Rehabilitation. This would also relieve you of your duty to register as a convicted arsonist.

Defending Against a Charge of Arson in California
With such severe penalties that come from a conviction of arson in California, it is important to have a skilled, experienced, and qualified attorney to help you fight the charges. Your attorney must understand the charges and know how to identify the strongest defenses in your individual case.
Common powerful defenses against a charge of arson in California include:

Accidental Fire
Because the prosecution must prove that you either maliciously or recklessly started a fire to convict you of arson, it is a defense if the fire started because of a simple accident. If you can prove that the fire was the result of an accident rather than malice or recklessness, you cannot be convicted of arson.
However, a fire that results from your unawareness of a risk while voluntarily intoxicated (drunk or high on drugs, voluntarily), the defense of accident is not available against a charge of reckless arson.

Insufficient Evidence
Evidence to prove arson is often circumstantial, which means a lot of guess work is involved in solving how the fire started. Fires often destroy evidence. Unless someone witnessed you start the fire, it may be difficult for the prosecution to gather enough evidence to prove you started the fire.

Falsely Accused
There are many reasons why a person may be falsely accused of arson. A skilled defense attorney will investigate all of the facts in order to find a false accusation.

Mistaken Identity
Similarly to a false accusation, there are many reasons why you may be mistakenly identified as the person who started a fire. For instance, someone who looks like you may have been seen leaving the fire. A skilled defense attorney will investigate the facts to prove that you have an alibi and were not present at the scene of the fire.

Alternative Cause of Fire (Not by Arson)
In order to prove a defendant is guilty of arson, the prosecution must first prove the fire was actually caused by arson. Investigators and experts working for the prosecution will point to certain indicators and claim they are signs of arson. The experienced attorneys at McDowell Defense, however, know how to effectively cross-examine these prosecution experts. Furthermore, experts working for the defense can explain how typical signs of arson can also be explained by some other cause of the fire.

What to do if you face charges of Arson in California
Arson is a serious criminal charge that carries high penalties, including very significant prison time. Arson is not a charge that you want to take on alone. If you have been charged with Arson in California, you need an experienced, skilled, and dedicated defense attorney to help you fight the charges and obtain the best possible result in your case. Call McDowell Defense at (213) 401-2322 for a free consultation with one of our attorneys and find out how we can help you to fight your charges of arson.