Quick Summary: Arson is a felony offense under California statute Penal Code 451. Arson convictions can get you up to 9 years in state prison with over $50,000 in fines. Read more about arson laws in this article.
Table of Contents:
- What are arson and reckless burning?
- The details of Penal Code 451
- Punishments for violating Penal Code 451 Arson
- The details of Penal Code 452 Reckless Burning
- Punishments for violating Penal Code 452
- Wobbler Offense
- Legal Defenses for arson convictions
- Related crimes to PC 451 Arson
- Record Expungement for arson convictions
Welcome to EZ Record Clean’s California Law course. We designed this course to clear up any confusion around the California Legal System. In each article, we dive deep into each Penal Code, explaining all legal details in a clear, retainable way.
In this guide, I will tell you what you should know about California’s arson laws Penal Code 451 and 452. These laws are commonly misunderstood because of miscellaneous legal details. Let’s take a look at these details to get a better understanding of the legal descriptions, punishments, and defenses.
What are arson and reckless burning?
Arson has recently become a big concern. With insurance on buildings reaching millions of dollars, some people are burning their property to access their insurance claims. Law officials are beginning to realize how widespread insurance fraud and arson actually are.
On top of this, insurance companies are petitioning the government to impose harsher penalties on those convicted of arson.
Reckless burning is similar to arson but isn’t criminally oriented. Arson is a malicious act whereas reckless burning is caused through reckless actions. Both are illegal and come with their own unique consequences.
The details of Penal Code 451
Penal Code 451 is California’s law that defines arson. The full statute reads:
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.
(a) Arson that causes great bodily injury is a felony punishable by imprisonment in the state prison for five, seven, or nine years.
(b) Arson that causes an inhabited structure or inhabited property to burn is a felony punishable by imprisonment in the state prison for three, five, or eight years.
(c) Arson of a structure or forest land is a felony punishable by imprisonment in the state prison for two, four, or six years.
(d) Arson of property is a felony punishable by imprisonment in the state prison for 16 months, two, or three years. For purposes of this paragraph, arson of property does not include one burning or causing to be burned his or her own personal property unless there is an intent to defraud or there is injury to another person or another person’s structure, forest land, or property.
(e) In the case of any person convicted of violating this section while confined in a state prison, prison road camp, prison forestry camp, or other prison camp or prison farm, or while confined in a county jail while serving a term of imprisonment for a felony or misdemeanor conviction, any sentence imposed shall be consecutive to the sentence for which the person was then confined.
This law defines arson as maliciously and willfully burning a structure, forest land, or property1, 2. There are two elements of the crime: your state of mind and the property damaged. The prosecutor must prove these two elements of the crime to charge you with arson. If they can’t, you likely won’t be convicted.
The first element says you have to have acted maliciously and willfully. If you didn’t act with malicious intent, you didn’t commit arson.
It has been difficult for prosecutors to prove the intent of defendants in the past. Due to the destructive nature of fire, there often isn’t enough evidence to convict someone of arson.
Evidence that prosecutors might use against you in court could include:
- Gas cans in your garage
- Internet searches on how to start a fire
- Eyewitness reports
Under Penal Code 453, it is illegal to possess, manufacture, or dispose of any tools in preparation to commit arson. If you are caught preparing for an arson offense, you could be charged under both PC 451 and 453.
Penal code 453 states:
(a) Every person who possesses, manufactures, or disposes of any flammable, or combustible material or substance, or any incendiary device in an arrangement or preparation, with intent to willfully and maliciously use this material, substance, or device to set fire to or burn any structure, forest land, or property, shall be punished by imprisonment pursuant to subdivision (h) of Section 1170, or in a county jail, not exceeding one year.
(b) For the purposes of this section:
(1) “Disposes of” means to give, give away, loan, offer, offer for sale, sell, or transfer.
(2) “Incendiary device” means a device that is constructed or designed to start an incendiary fire by remote, delayed, or instant means, but no device commercially manufactured primarily for the purpose of illumination shall be deemed to be an incendiary device for the purposes of this section.
(3) “Incendiary fire” means a fire that is deliberately ignited under circumstances in which a person knows that the fire should not be ignited.
(c) Subdivision (a) does not prohibit the authorized use or possession of any material, substance or device described therein by a member of the armed forces of the United States or by firemen, police officers, peace officers, or law enforcement officers authorized by the properly constituted authorities; nor does that subdivision prohibit the use or possession of any material, substance or device described therein when used solely for scientific research or educational purposes, or for disposal of brush under permit as provided for in Section 4494 of the Public Resources Code, or for any other lawful burning. Subdivision (a) does not prohibit the manufacture or disposal of an incendiary device for the parties or purposes described in this subdivision.
The second element of the crime says that you must have burned another person’s structure, forest land, or property. The word “burn” means damaging or destroying something with fire3. No matter how severe the damage, if you used fire, it was arson. This means that something as little as charring a wood plank is considered arson.
This element also consists of burning another person’s property. Examples of the different property protected under California’s arson laws include:
- Structure – any home, apartment building, business, commercial building, bridge, or public tent
- Forest Land – any forest, grassland, woods, bush-covered or cut-over land
- Property – and personal property that isn’t forest land. This could include clothing4, furniture, or trash5.
*Arson does not include your personal property unless it was with the intent to defraud or if someone was injured by the fire.
Also note that fixtures within a building may satisfy as an integral part of the structure. This means that if you set fire to a fixture within a building6, it will be considered “arson to a structure.”
Punishments for violating Penal Code 451 Arson
Arson convictions are always charged as a felony. The specific legal penalties depend on the type of property damaged and if someone was injured.
Felony
Since arson is a felony, you will serve your sentence in state prison and not county jail. The length of your sentence will depend on the type of land and if someone was injured.
Arson to personal property could get you up to 3 years while arson to a structure or forest land can get you up to 6 years in state prison. Additionally, if the fire caused damage to an inhabited building or caused great bodily injury to someone, you could face up to 8 years or 9 years respectively.
Immigration Consequences
Under immigration laws, certain criminal convictions could lead to deportation. These crimes are considered “laws of moral turpitude.”
Arson is a crime categorized under the laws of moral turpitude. This means if you are an immigrant convicted of arson, you face deportation and being labeled as inadmissible. “Inadmissible” means you are no longer permitted to enter or remain in the United States.
Aggravated Arson
Under Penal code 451.5, Aggravated Arson is maliciously and intentionally using fire to injure another person. The law states:
(a) A 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 eight million three hundred thousand dollars ($8,300,000).
(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.
(b) A person who is convicted under subdivision (a) shall be punished by imprisonment in the state prison for 10 years to life.
(c) A person who is sentenced under subdivision (b) shall not be eligible for release on parole until 10 calendar years have elapsed.
(d) This section shall~~.~~ remain in effect only until January 1, 2024, and as of that date is repealed.
This is a serious crime that comes with harsher penalties than those of arson convictions. This is just one of many circumstances that could earn you enhanced sentencing terms.
Sentence Enhancements
Sentencing enhancements impose harsher penalties under certain circumstances. These circumstances include:
- You have prior felony convictions
- A peace officer was serious injured during the fire
- At least 2 people were seriously injured by the fire
- More than one structure was damaged by the fire
- You used a device to delay the ignition to set or accelerate the fire
Under these circumstances, the court can impose another 1 to 5 years on top of your base sentence. The court may also sentence you to a max term if you started the fire as revenge on the property owner.
Felony arson convictions can also come with fines of up to $50,000 or twice the amount of damages. Since this is a serious felony, it will also be counted as a “strike” under California’s Three Strikes Law. You will also be required to register as an arson offender for the rest of your life.
The details of Penal Code 452 Reckless Burning
If you didn’t start the fire maliciously, you can’t be convicted of arson. However, you can still be charged for reckless burning under PC 452. Reckless Burning is a lower-level crime that comes with less harsh punishments. The law states:
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.
(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.
(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.
(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.
(d) Unlawfully causing a fire of property is a misdemeanor. For purposes of this paragraph, unlawfully causing a fire of property does not include one burning or causing to be burned his own personal property unless there is injury to another person or to another person’s structure, forest land or property.
(e) In the case of any person convicted of violating this section while confined in a state prison, prison road camp, prison forestry camp, or other prison camp or prison farm, or while confined in a county jail while serving a term of imprisonment for a felony or misdemeanor conviction, any sentence imposed shall be consecutive to the sentence for which the person was then confined.
Reckless burning is defined as causing a fire through reckless action. California defines “reckless” as being aware of the consequences of your actions, ignoring those consequences, and acting anyways.
*Reckless actions are not the same as carelessness or negligence. This is acting in a way that disregards the consequences of your actions.
If you caused a fire by acting recklessly, you will likely be charged under PC 452 instead of PC 451. However, true accidents, like forgetting to turn the stove off, do not make you guilty of either.
The difference between PC 451 and PC 452 is your state of mind. If you acted maliciously and deliberately, you committed arson. However, if you started a fire by deviating from how a reasonable person would act, you committed reckless burning.
With the help of an attorney, it is usually preferable to reduce arson charges down to reckless burning charges. This can decrease the amount of time you serve in prison and looks better on your criminal record.
Your eligibility is dependent on if someone was injured, the extent of damages, and your intentions behind the fire.
Punishments for violating Penal Code 452
Sentencing terms under PC 452 are typically less harsh than those under PC 451. Reckless burning is a misdemeanor or wobbler offense.
As a misdemeanor, you could face up to 6 months in county jail with a $1,000 fine. However, if the burning damages a structure, forest land, or causes great bodily injury to someone, it becomes a wobbler offense.
Wobbler Offense
Wobbler offenses can be charged as a misdemeanor or a felony. It’s the prosecutor’s choice on which one to charge. This is generally based on your criminal history and the circumstances of your case.
Punishments for wobbler reckless burning offenses are set up similar to arson convictions. They are based on the type of property.
A misdemeanor will get you up to 6 months in county jail for damage to a structure or forest land. If the property was inhabited or the fire caused great bodily injury to someone, you could face up to 1 year.
A felony is punishable by up to 3 years in state prison for a structure or forest land and 4 years for an inhabited property. If the fire caused great bodily injury to someone, you could face up to 6 years under a felony conviction.
Legal Defenses for arson convictions
Legal defenses can be used to prove your innocence against arson charges. Below are the most common legal defenses used in arson and reckless burning cases.
Accidental Act
Remember, you can only be convicted of arson if you acted willfully. If the fire was an accident, you are not guilty under Penal code 451. Proving this can lead you to receive less severe punishments or no punishment at all. However, although you shouldn’t be charged in criminal courts, you will likely be charged under civil court. This usually ends in you paying restitution for damages caused by the fire.
Not Arson
If the fire was started by a natural cause, like lightning or a wildfire, it wasn’t arson. You can show your innocence by showing that the fire was started by something else other than your own actions.
No Intent to Defraud
Remember, arson doesn’t cover your personal property unless it is with the intent to defraud or harm another person. California defines fraud as trying to trick another person. If you tried to “trick” an insurance company into giving you money by setting your personal property on fire, that was arson.
However, if there was no intent to defraud, you are not guilty of arson. Thus, you can try to prove your innocence in court by showing you didn’t have malicious intent.
Insufficient Evidence
The most common problem prosecutors face with arson convictions is insufficient evidence. Due to the destructive nature of fire, there is rarely any evidence of misconduct. This is where fire and arson investigators come in.
These investigators examine the fire scene to identify and collect any evidence that could prove you guilty. Many times, they aren’t able to find anything so the prosecutor is forced to press charges with insufficient evidence.
This makes it difficult for them to prove you started the fire without direct or circumstantial evidence. Direct evidence would be like someone testifying that they saw you start the fire. Circumstantial evidence could be something like your browser history showing research into how to start a fire without getting caught.
Without this important evidence, it is difficult for the prosecutor to press charges. You can use insufficient evidence as a defense in court to prove your innocence.
Insanity
California law defines “legally insane” as having a mental disease or defect that makes you incapable of understanding the consequences of your actions. If you were “legally insane” when starting the fire, you could use this as a defense in court. This will typically end in you being admitted to a state mental hospital instead of prison. In this scenario, your case will be dismissed and all charges will be dropped.
Violation of Your Rights
If the police do an illegal search of your house or car, this is a violation of your rights. They must have probable cause to search you. Without this, any evidence that they seized through a violation of your rights, can be dismissed from the case. This means that evidence will not be used against you in court.
This defense is considered “technical” because it does not prove your innocence. This defense merely defends against certain evidence being used against you.
Duress
Duress is defined as using force, coercion, threats, or psychological pressure to get someone to act against their will. IF you were under duress when you started the fire, you were not acting out of your own free will. If you can prove this, the court will treat you accordingly. This means you will likely not be found guilty under PC 451 since you were being forced to act against your will.
Related crimes to PC 451 Arson
Arson is commonly charged along with other crimes. If convicted of arson, you can expect additional sentencing under different California statutes. It is wise to understand the following charges that you might be convicted of along with arson.
First-Degree Murder – PC 187
If you started the fire with the intent to kill someone, you’ll likely be charged with first-degree murder. Under Penal Code 187, first-degree murder is deliberately attempting to kill someone. If it is concluded that you started the fire with the intent to kill someone, you likely face serious sentencing terms on top of your arson conviction.
Burglary – PC 459
A burglary occurs when you enter a residential or commercial building with the intent to commit a felony or theft inside. Since arson is a felony, these convictions often go with each other. If you entered another person’s property with the intent to commit arson, you could be prosecuted under PC 451 and PC 459.
Trespass – PC 602
Penal Code 602 defines trespassing as entering someone’s property without their permission. If you entered another person’s property and started a fire, you could be charged for arson and trespassing. Trespassing is different from burglary based on your state of mind. More specifically, when you had ill intent.
If you walked onto another person’s property with ill intent, it was likely burglary. However, if you formed ill intent after entering another person’s property, it was likely trespassing. Trespassing is commonly charged along with arson convictions.
Vandalism – PC 594
Under PC 594, Vandalism is damaging, destroying, or defacing another person’s property. Technically, if you use fire to cause damage to someone else’s property, you are likely committing arson and vandalism.
Hate Crimes – PC 422
If you commit an offense while motivated by a bias against the victim, you committed a hate crime. Hate crimes are serious offenses that come with enhanced penalties. An example of a hate crime would be attempting to burn down a church or synagogue. If you are caught using fire to commit a hate crime, you will likely be charged under PC 422 and PC 451.
Record Expungement for arson convictions
If you were convicted of arson, you are entitled to an expungement as long as you completed probation and your jail term. An expungement will remove your criminal conviction from your record. This removes it from the public eye so that potential employers and landlords can’t see it. Under Penal Code 1203.4, an expungement most long-term penalties arising out of a conviction.
Contact our expungement attorneys today. We can help you remove arson convictions from your record. Our attorneys have decades of experience in helping people get their records cleared. Give us a call today or fill out our free online assessment to see if you qualify.
Footnotes
- Structure, Forest Land, and Maliciously Definitions – Penal Code 450; People v. Labaer (2001)
- Property Definition – In re L.T. (2002)
- To Burn Definition – People v. Haggerty (1873); In re Jesse L. (1990)
- Property includes clothing – People v. Reese (1986)
- Property includes trash – In re L.T. (2002)
- Fixtures – In re Jesse L. (1990); People v. Lee (1994)
