Can Arson Be Charged as a Misdemeanor in California?

By San Diego Attorney on December 20, 2020

Given the nature of California’s relationship with wildfires and fireworks, our court systems often bring harsh charges down on people who start fires. An arson conviction can result in a lengthy prison sentence on top of hefty fines and restitution for any property damage. While in the majority of cases, starting a fire can be charged as a felony, there are situations where your charge can be reduced to a misdemeanor.

How Serious Is an Arson Charge?

Under California Penal Code 451 PC, a defendant can be charged with arson if he or she “willfully and maliciously sets fire to or burns” any structure, property, or forest, or if he or she helps someone else set a dangerous fire. In almost every scenario, arson charges can result in a felony conviction that can include:

• Committing great bodily injury while committing arson: Imprisonment in a state prison for up to five, seven, or nine years.
• Burning an inhabited structure or property: Imprisonment in a state prison for up to three, five, or eight years.
• Committing arson in a forest: Imprisonment in a state prison for up to two, four, or six years.
• Burning any property, inhabited or uninhabited: Imprisonment in a state prison for up to 16 months, two, or three years.

Note that these charges do not include any specific fines, but they can include $10,000 in fines in accordance with a felony offense and restitution to any victims who lost property as a result of the arson. They can also be enhanced by California’s Three Strike Laws, if the crime injured a peace officer or public servant, or if multiple people were injured or multiple structures were damaged. This can add up to three, four, or five years to a standard arson sentence.

Arson vs. Reckless Burning

Arson and reckless burning are California’s two arson laws, each with its own unique but similar legal definitions. While arson must involve “willfully and maliciously” burning property, a defendant can be charged with reckless burning if he or she “recklessly sets fire to or burns or causes to be burned, any structure, forest land or property,” according to California Penal Code 452.

The key difference between these two charges is whether the suspect started a fire “willfully and maliciously” or “recklessly.” Malicious acts are treated much more harshly by California courts, especially arson, but a prosecutor cannot bring an arson charge against someone who accidentally started a fire. Reckless burning, in contrast to arson, can involve:

• Flicking a cigarette out a car window
• Failing to safely douse coals at a campsite
• Unsafely using a lighter or match near flammable liquids, such as a gas station or dangerous chemicals
• Burning documents in a trash can at work
• Starting a fire in your backyard during high winds

Generally, reckless burning involves some level of awareness about the dangers surrounding your actions. For example, if you made every effort to douse a campfire but a loose spark caused a fire, it may be more difficult for the prosecution to charge you with reckless burning.

Unlike arson, reckless burning is a wobbler in California, which means you can face a lesser misdemeanor charge or a harsh felony charge, depending on the nature of the fire. Reckless burning charges can lead to:

• Reckless burning that causes great bodily injury: Either a misdemeanor charge of up to one year in a county jail or a felony charge of two, four, or six years in a California state prison, plus additional fines.
• Reckless burning of an inhabited structure or inhabited property: Either a misdemeanor charge of up to one year in a county jail or a felony charge of two, three, or four years in a California state prison, plus additional fines.
• Reckless burning of a structure or forest land: Either a misdemeanor charge of up to six months in a county jail or a felony charge of 16 months, two, or three years in a California state prison, plus additional fines.
• Reckless burning of uninhabited property: Misdemeanor charge of six months in a county jail, plus fines.

Ultimately, reducing an arson charge down to a reckless burning charge can drastically decrease the amount of time you may have to serve in prison. In addition, if you contact the skilled San Diego criminal defense lawyer at jD LAW, we can work to get your charges dropped altogether. Your charges are largely dependent on if anyone was injured, how much property damage was involved, and the intentions behind the fire. With more than 30 years of experience, our law firm can thoroughly investigate your case and advocate for the lowest possible sentence. If you have been charged with arson or reckless burning in San Diego or North County, call our office at (760) 630-2000 and schedule a free consultation to discuss your defense strategy.