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Criminal Defense Information for Arson (Cal. Penal Code s. 451)

  1. What is Arson?
  2. What are the necessary elements to be found guilty of Arson?
  3. What is the sentence / punishment for Arson?
  4. What are possible defenses to charges of Arson?
  1. What is Arson?

    Gas Can and Matches for Arson

    Gas Can and Matches for Arson

    Arson is the willful and malicious burning of any building, property, or forest (including brush covered land, cut-over land, forest, grasslands, or woods). Arson is also committed by anyone who aids, counsels, or pays someone to burn a building, property, or forest. Despite its onerous sound, "malicious" simply means a wish to vex, defraud, annoy, or injure another person, or an intent to do a wrongful act.

  2. What are the necessary elements to be found guilty of Arson?

    To prove the defendant committed Arson, the state must show that the defendant:

    1. Set fire to, burned, counseled, helped, or caused the burning of of a structure, forest land, or property; and
    2. Acted willfully and maliciously.
  3. What is the sentence / punishment for Arson?

    Arson is a felony, meaning it carries a sentence of more than one year in state prison (not county jail).

    If the arson caused great bodily harm, the sentence is three, five, or eight years in prison.

    If the structure that was burned was inhabited at the time of the fire but there was no great bodily injury caused, the sentence will be three, five, or eight years. For a piece of property or a structure to be "inhabited," it must simply be used for dwelling purposes—it does not have to be occupied at the time of the fire.

    If the structure was uninhabited or if the fire only destroyed property, the punishment is imprisonment in the state prison for two, four, or six years.

    Finally, if the arson convicted of arson is currently 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, the sentence imposed will be served consecutive to the sentence for which the person was then confined. Cal. Pen. Code s. 451 Opens in New Window

    Enhancements to Arson Sentences

    If:

    • the person convicted of arson has a prior conviction for arson;
    • emergency personnel suffered great bodily injury from the arson;
    • more than one person suffered great bodily harm;
    • more than one structure was burned; or
    • the arsonist used an accelerant (gasoline, kerosene, alcohol, etc.) or a device to delay the ignition of the fire,

    an additional three, four, or five years will be imposed. Cal. Pen. Code s. 451.1 Opens in New Window

    Aggravated Arson ( Cal. Pen. Code s. 451.5 Opens in New Window)

    If the arson was committed with premeditation and with intent to injure one or more persons or to damage property in a way that was likely to injure people or damage multiple structures, the arson is "aggravated" if at least one of these factors is present:

    • the arsonist has a prior conviction for arson within the past 10 years; or
    • the fire caused property damage and other losses in excess of $6,500,000.

    If the aggravated arson included item one above, the sentence will be imprisonment in the state prison for 10 years to life. If the aggravated arson included item two above, the arsonist shall not be eligible for release on parole for at least ten years.

  4. What are possible defenses to charges of Arson?

    To prove someone committed a crime, the state (through its prosecutors) must prove beyond a reasonable doubt that the defendant committed each element of the crime. Therefore, defenses to any crime start with negating one or more of the elements of the crime. Additionally, some crimes allow for "affirmative" defenses which, if the defendant can prove the defense applies, will result in a verdict of "not guilty" even if the prosecutor proves the defendant met each of the elements of the crime.

    For Arson, convincing the jury that the prosecutor failed to prove beyond a reasonable doubt that the defendant acted willfully; was malicious; took part in setting fire, counseling, advising to set fire; that the item burned was a structure, forest land, or property; etc., would be enough to get a not guilty verdict.

    If the prosecutor can prove all the elements of Arson, however, the defendant must prove that one or more justifications for his actions existed (i.e., it is the defendant's burden to prove an affirmative defense). For Arson, some of these justifications include:

    • Self-defense;
    • Defense of another;
    • Alibi;
    • Duress / Threats;
    • Necessity;
    • Accident;
    • Entrapment; and
    • Statute of Limitations.