Arson is a highly serious criminal offense in California, especially considering the state's vulnerability to dangerous wildfires, as evidenced by numerous catastrophic fires in Pacific Palisades. Arson, as defined under California law, often involves intentionally setting fire to property, whether it is a structure, forest land, or other personal property.

Penal Code 451 PC is the law that prohibits arson, which is willfully and maliciously setting fire to any structure, forest land, or property. You can also be convicted for aiding, counseling, or procuring the burning of property. Arson is a felony punishable by up to 9 years in jail or state prison.

The elements of arson are detailed in California Criminal Jury Instruction (CALCRIM 1515). To be convicted, the prosecutor must prove beyond a reasonable doubt that you set fire to a structure or land, and that you acted willfully and maliciously.

A related law, California Penal Code 452 PC, makes it a crime to recklessly set fire to or burn any structure, forest land, or property. Reckless burning is typically a misdemeanor; however, aggravating factors, such as causing serious injuries, substantial property damage, or endangering human life, can result in elevated charges.

Notably, however, California law distinguishes between willful and malicious arson (PC 451) and reckless arson (PC 452); the former is a felony offense, while the latter (in most cases) is charged as a misdemeanor. What constitutes the difference between these two? Let's dive deeper.

Willful and Malicious Arson (PC 451)

Under PC 451, a person is guilty of willful and malicious arson when they intentionally and deliberately set fire to or burn property with the knowledge and intention to cause harm. This is a grave offense, with examples of willful arson including intentionally setting fire to a building, forest, or vehicle to harm others, destroy property, or commit insurance fraud. California Penal Code 451 PC states -

"A person is guilty of arson when they willfully and maliciously set fire to or burn or cause to be burned or aid, counsel, or procure 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 years, or three years. For purposes of this paragraph, arson of property does not include one burning or causing to be burned their 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."

Penalties for Willful Arson

PC 451 is always charged as a felony. The penalties for willful arson vary based on the severity of the damage caused. Some examples include:

• Arson causing great bodily injury (e.g., a person sustains serious burns) can result in imprisonment for five, seven, or nine years in state prison.
• Arson of an inhabited structure or property can lead to imprisonment for three, five, or eight years.
• Arson of a structure or forest land carries a state prison sentence of two, four, or six years.
• Arson of personal property (e.g., a vehicle or furniture) can result in 16 months, two years, or three years in state prison-but only if there is an intent to commit fraud or harm others.

It is crucial to note that under PC 451, even burning one's property could lead to willful arson charges if insurance fraud or harm to others is involved.

Reckless Arson (PC 452)

Penal Code 452 deals with the act of arson committed recklessly rather than intentionally. A person can be found guilty of reckless arson if they start a fire or cause property to burn through careless behavior, without malicious intent, but with a disregard for foreseeable risks. This type of arson, although not intentional, can still cause significant harm and constitutes a serious offense.

For example, accidentally igniting a forest fire while burning trash or leaving a campfire unattended could result in reckless arson charges. California Penal Code 452 PC says -

"A person is guilty of unlawfully causing a fire when they recklessly set fire to, burn, or cause 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 to 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 their personal property unless 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.

(f) For purposes of sentencing for a violation of this section, the fact that the offense was carried out within a merchant's premises in order to facilitate organized retail theft, as defined in Section 490.4, shall be a factor in aggravation."

Penalties for Reckless Arson

Reckless arson is typically treated as a misdemeanor, which reflects the lack of intent to cause harm. However, the law allows certain circumstances to escalate this charge to a felony, depending on the severity of the damage or injury caused, making it, in effect, a "wobbler" offense. 

However, even if reckless arson is charged as a felony, the penalties upon conviction are less severe than those for willful arson under Penal Code (PC) 451. If charged as a misdemeanor, a conviction may result in up to 6 months or 1 year in county jail.

For felony charges:

• If the fire causes great bodily injury, the offender may face state prison terms of two, four, or six years.
• If an inhabited structure or property is burned, the potential sentence is two, three, or four years in prison.
• Reckless burning of forest land or a structure carries a state prison term of 16 months, two or three years if charged as a felony.

How Penal Code 452 Has Changed

SB 1242, in its mission to combat organized retail theft, makes a significant addition to Penal Code (PC) Section 452. Under this new section, reckless burning now carries an aggravating factor if the crime occurs within a merchant's premises with the intent of furthering organized retail theft.

This addition is significant due to the increasing use of arson as a tactic in retail theft schemes, particularly in large-scale "smash-and-grab" operations. These schemes may involve setting fires or recklessly damaging property to divert attention, destroy evidence, or facilitate larger coordinated thefts.

The "aggravating factor" means prosecutors can now argue for harsher penalties in cases involving reckless burning committed within retail spaces for this purpose. This amendment explicitly recognizes the severity of using reckless burning as a tool in criminal enterprises.

Simply put, under Penal Code 452 PC, SB 1242 specifies that if a fire is intentionally set on a merchant's premises to facilitate organized retail theft, it will be considered an aggravating factor during sentencing.

This provision serves as an enhancement to the standard penalties for arson or fire-related crimes. The California legal system operates on the principle that offenses committed under specific circumstances should be subject to harsher sentences.

This aggravated penalty would apply not only to individuals directly involved in setting the fire, but also to anyone connected to the larger network of organized retail theft.

SB 1242 emphasizes that criminal behavior, particularly that which poses a threat to public safety, should not be taken lightly. Setting a fire to cover up or assist in the theft of goods is a serious offense that can lead to property damage, loss of life, and emotional trauma for the victims.

Reckless Burning Crime Elements

Penal Code 452 PC addresses "reckless burning," which occurs when someone unlawfully causes a fire by acting recklessly. Recklessness in this context refers to creating a substantial and unjustifiable risk of fire while disregarding the consequences of such behavior.

Unlike Penal Code 451 PC, which defines arson as intentional and malicious burning and is always charged as a felony, reckless burning typically involves negligence rather than criminal intent.

Common examples of reckless burning might include carelessly discarding a lit cigarette in a dry field or failing to contain a campfire securely.

Until now, penalties for reckless burning depended on the extent of the damage caused and whether the fire endangered people, homes, or wildlands. With Penal Code 452(f), however, reckless burning is elevated to a new level when it occurs within a commercial setting as part of an organized retail theft.

This distinction not only separates it from general negligence but also underscores the potential for serious public safety and economic harm.

Possible Defenses for Arson Charges

When a person faces arson charges in California, a skilled California criminal defense attorney may employ various strategies to challenge the allegations or mitigate the severity of the charges. These strategies include:

• Lack of Intent: Arguing that the defendant did not willfully or maliciously set the fire, which is a necessary element for arson convictions under PC 451.
• Mistaken Identity: Demonstrating that authorities have the wrong suspect and the defendant was not present at the scene of the crime.

Suppose there is a strong case that you did not act willfully. In that case, a skilled defense attorney may use this to negotiate a Penal Code 17(b) PC reduction, which could result in charges being reduced from felony to misdemeanor arson. These strategies include:

• Demonstrating Absence of Malicious Intent: Showing that the fire was caused by carelessness rather than deliberate harm. (I.e., qualifying for charges under PC 452 rather than PC 451.)
• Highlighting Mitigating Circumstances: Stressing factors like minimal property damage, lack of injuries, and the defendant's remorse.
• Offering Restitution: Proposing compensation for damages or losses to demonstrate accountability and reduce perceived harm.

For more information, contact our criminal defense law firm, Eisner Gorin LLP, located in Los Angeles, CA.

Related Content:

• 2025 CA Arson Law Updates
• Arson Registration Requirement
• CALCRIM No. 1515. Arson
• California Penal Code 451 PC
• California Penal Code 452 PC