Arson
Category > Arson
Updated 3/5/2024Sentencing court erred in issuing a post judgment restraining order following defendant’s misdemeanor arson conviction.Defendant set fire to a palm tree next to a strip mall, and was convicted of unlawfully burning property under Penal Code section 452, subd. (d). During sentencing, the court ordered defendant to stay 100 yards away from the building next to the tree. However, section 136.2 (used by the court) was not a proper vehicle for obtaining a postjudgment restraining order, nor are there any other statutes authorizing such unlimited postjudgment restraining orders based on a defendant’s misdemeanor conviction.id: 26688
The death of a structure’s inhabitant renders that structure uninhabited for purposes of the arson statute.The evidence was insufficient to support the conviction of arson of an inhabited structure because Fessler was dead when the defendants set fire to his house and there was no evidence that anyone else lived there. The fact that the defendants may have killed Fessler before starting the fire did not change the result. The conviction was modified to arson of a structure.id: 24809
Double jeopardy precluded retrial on lesser related offense of arson after the court found insufficient evidence of an element of a structure.Defendant set fire to two motor homes he owned and was convicted of arson of an inhabited structure under Penal Code section 451, subd.(b). In the original appeal the court found there was insufficient evidence that the inhabited motor home was a “structure.” Double jeopardy principles bar retrial for arson of property and any other lesser related offense on which the jury was instructed but did not return a verdict because the guilty verdict in the arson of a structure did not determine whether defendant was guilty of arson of property. id: 24533
Evidence did not support the arson of a structure conviction under section 451, subd.(b) where defendant set fire to his motor home. Defendant’s motor home was not a “structure” as that term is defined in the arson statutes. Therefore, the evidence that defendant set fire to a motor home that caused a second inhabited motor home to catch fire was insufficient as a matter of law to support the conviction of arson of an inhabited structure. Moreover, because arson of property (Penal Code section 451, subd.(d)) is a lesser related rather than a lesser included offense, the court could not reduce the conviction to that offense. Instead, the conviction was reversed with directions to dismiss.id: 23462
The juvenile court erred by ordering the minor to register as an arsonist under section 457.1 because he was not committed to, or paroled from, the DJF. The minor was found to have committed arson, placed on probation and ordered to register as an arsonist under Penal Code section 457.1. However, the court erred by ordering registration under section 457.1 because that provision only applies to people who were committed to, or paroled from, the former California Youth Authority (now the Department of Juvenile Facilities).id: 23331
Evidence was insufficient to support the arson of an inhabited structure conviction because the motor home was a vehicle and not a “structure.”The motor home defendant was living in was not a structure. Therefore, the evidence that he set fire to the motor home was insufficient to support his conviction of arson of an inhabited structure in violation of Penal Code section 451. Moreover, arson of property under section 451, subd.(d) was not a lesser included offense of the charged crime, so the court could not reduce the conviction to that offense. The conviction was reversed with instructions for the trial court to dismiss the charge.id: 23167
Causing a fire is not arson unless the act was done willfully and maliciously.The juvenile court found the minor was guilty of arson under Penal Code section 451 after he and his friends lit a firecracker (a “cherry bomb”) in a wooded area that caused a fire and burned five acres of forest land. However, the evidence did not support the conviction because it did not show the minor caused the fire with the requisite mental state, i.e., maliciously. The court should have found him guilty of the lesser offense of unlawfully causing a fire.id: 21283
Courts retain section 1385 discretion to strike enhancement for use of accelerant in arson cases despite introductory phrase in statute.Penal Code section 451.1, subd.(a)(5) provides for a sentence enhancement if arson is committed by use of an accelerant. The statute commences with the words "Notwithstanding any other law..." Absent any indica of legislative intent, the introductory phrase does not evidence a legislative direction to divest the trial courts of discretion under Penal Code section 1385 to strike the enhancement.id: 16624
Individual apartments are not "buildings" for purposes of aggravated arson statute.Aggravated arson under Penal Code section 451.5, subd.(a)(3), requires proof that defendant set fire to "five or more inhabited structures." Section 450, subd.(a) defines a "structure" as a "building" among other things. An apartment in defendant's complex is not a "building" for the present purposes. Therefore the fire damage to six apartments does not support a conviction of aggravated arson under section 451.5, subd.(a)(3).id: 16921
Failure to instruct on the lesser offense of recklessly causing the fire was harmless in the arson case where the jury also found defendant exploded a destructive device with the intent to injure or destroy property.Defendant was convicted of arson of a structure in violation of Penal Code section 451, subdivision (c). He argued the court erred in failing to instruct on recklessly causing a structure to be burned (section 452, subdivision (c)) as a lesser included offense. However, by also convicting defendant of section 12303.3, the jury found defendant had exploded a destructive device with the specific intent to injure or destroy property. The issue of recklessness was therefore necessarily resolved against him and any error in omitting the lesser included offense instruction was harmless. For the same reason the court did not err in refusing to instruct that willfully and maliciously mean an intent to burn the structure.id: 10479
Defendant was improperly charged with attempted arson of an inhabited structure because of the separate provision referring to attempted arson of any structure.Defendant was convicted of attempted arson of an inhabited structure in violation of Penal Code sections 664 and 451, subdivision (b). However, since there is a provision in the law for the crime of attempted arson of <U>any</U> structure (section 455), she could not properly be convicted and sentenced under the general attempt and arson of an inhabited structure statute. Defendant's sentence was modified to reflect the punishment set forth in section 455.id: 10476
Updated 2/24/2024Evidence that defendant was living in the house at the time of the fire supported the finding that it was inhabited for purposes of the arson statute. Evidence that defendant was living in the house at the time of the fire supported the finding that it was inhabited for purposes of the arson statute. id: 28156
Updated 2/23/2024Defendant was properly convicted of four counts of arson of a forest land where she started four fires on the same parcel of land that merged into one fireDefendant was convicted of four counts of arson of a forest in violation of Penal Code section 451. She argued that she should only have been convicted of one count because she set the four fires on a single parcel of land. However, because defendant set fire to and burned forest land four separate times, each time meeting the elements of section 451, she completed four separate violations of the arson statute.id: 26791
Updated 2/3/2024Whiskey qualified as a “device designed to accelerate a fire” under section 451.1(a)(5).Defendant poured whiskey into a structure and lit a fire. He was convicted of arson of a structure, and the evidence supported an enhancement for using a “device designed to accelerate the fire” under Penal Code section 451.1(a).id: 27612
Defendant was properly convicted of two arson offenses where he started a single fire.Defendant was found to have set a fire and was convicted of one count of unlawfully causing a fire that caused a structure to burn under Penal Code section 452, subd. (b), and one count of unlawfully causing a fire of a structure or forest land under section 452, subd.(c). Even though there was a single fire, subdivisions (b) and (c) of section 452 define separate offenses and neither is necessarily included in the other. As a result, the two convictions were proper under section 954.id: 26141
Evidence showed arson of a “forest land” where the burned area showed green shrubs scattered through the undeveloped plot of land. Defendant was convicted of arson of forest land under Penal Code section 451, subd. (c). He argued there was insufficient evidence that forest land was burned within the meaning of the statute. However, the area included more that just a “few weeds in a dirt lot” as defendant argued. It included bare dirt, grass and shrubs scattered over the area. The aerial photo showed green vegetation covered most of the undeveloped plot of land.id: 25225
Arson causing great bodily injury doesn’t require an intent to burn property and may be committed where a fire was the direct, natural and probable consequence of an act.Defendant was indicted by a grand jury for the arson of forest land causing great bodily injury under Penal Code sections 451 and 451, subd.(a). While on a family outing he threw a firework device into a large swimming hole that was surrounded by cliffs and forest. The incident resulted in a large forest fire. He argued the grand jury should have been instructed that arson requires an intent to burn property. However, the law supports an arson charge where, as here, the burning was the direct, natural and probable consequence of the act.id: 24413
Pouring gasoline in a structure to fuel an arson constituted the use of a device designed to accelerate the fire for purposes of the section 451.1, subd.(a)(5) enhancement.Penal Code section 451.1, subd.(a)(5) provides an enhanced term where an arson is caused by a device designed to accelerate the fire. Pouring gasoline in a structure the day before the fire constituted the use of a device for purposes of the enhancement. id: 22670
Defendant was properly convicted of arson causing injury under Penal Code section 451, subd.(a) even though it was the accomplice who was injured. Evidence was sufficient to support defendant’s conviction for arson causing great bodily injury where the injury was suffered by the accomplice who started the fire and defendant was the person who planned the arson and was not present at the time.id: 22669
The trial court did not prejudicially err by failing to instruct on aiding and abetting even though the prosecutor argued defendant helped another person start the fire.The trial court did not prejudicially err by not instructing on aiding and abetting in an arson case which applied to persons who set the fire or who helped set the fire even though the prosecutor argued the latter theory to the jury. Any error was harmless where the jury found defendant knew the perpetrator was going to set the fire.id: 22668
Evidence supported attempted arson where defendant stood in a police station with a can of gasoline and a lighter. Substantial evidence supported defendant’s conviction for attempted arson where he stood inside of a police station with an almost full gas can, two wet cloth strips smelling of gasoline, and a lighter in hand. id: 20365
The trial court did not prejudicially err by failing to instruct that one who burns his own property does not commit arson because the car was community property and his wife had a one-half interest.Defendant was convicted of the murder of his wife as well as arson for burning her car. He argued the car was community property and the court should have instructed the jury that setting fire to one's own property is a defense to arson. However, defendant's interest in the community property was limited to what he owned before the murder. His wife's equal interest in the property remained protected against defendant's crimes. Any error in failing to instruct as defendant suggests, was harmless.id: 19874
Defendant was properly convicted of possessing an incendiary device with an intent to torch his own property.Defendant was convicted of possessing an incendiary device in violation of Penal Code section 453, subd.(a). He argued that one cannot be convicted under that provision for having an incendiary device with an intent to torch one's own property. However, section 453 does not require an intent to affect the property of another.id: 17778
All arsonists at the scene may be convicted under the felony-murder rule where one of the coconspirators caught fire and burned to death.Felony murder liability for any death in the course of an arson attaches to all accomplices in the felony at least where, as here, one or more of the surviving accomplices were present at the scene and active participants in the crime.id: 17635
Burning of trash at school qualified as arson.A minor burned cardboard inside of a trash can located at her school. She argued her rights were violated when the court sustained an arson allegation against her because the trash was not property of another for purposes of arson. However, trash constitutes property under Penal Code section 451, subd.(d), and the crime of arson only required proof that the property the minor burned did not belong to her.
id: 17045
Evidence of burning of wall-to-wall carpeting supported the conviction for arson of an inhabited structure.Defendant argued the evidence was insufficient to support the conviction of arson of an inhabited structure because although the fire had burned through the carpeting the wood flooring beneath the carpet was not burned However, the jury could reasonably find the wall-to-wall carpeting was a fixture and an integral part of the structure. Therefore, evidence the wall-to-wall carpeting was burned by the fire was ample evidence of arson of an inhabited structure to support the conviction under Penal Code section 451, subdivision (b).id: 10478
Pouring gasoline on cars in a garage and then lighting the area supported the conviction of arson of a structure.Defendant poured gasoline on several cars and portions of the garage surrounding the cars. He then lit the entire area. The evidence supported his conviction of arson of a structure pursuant to Penal Code section 451, subdivision (c). However, the evidence also supported a finding that he only intended to set fire to the cars. Therefore, the court erred in failing to instruct sua sponte on the lesser included offense of unlawfully causing a fire to a structure pursuant to section 452, subdivision (c).id: 10480
Trial court did not err in instructing that arson requires a general criminal intent.Defendant argued that the trial court prejudicially erred in instructing the jury that arson requires a general criminal intent. However, the jury was properly instructed that arson, as defined in Penal Code section 451, requires an intent to set fire to or burn or cause to be burned a structure, forest land, or specified property. Moreover, an instruction on general intent, also given the jury was consistent with the instruction as delivered.id: 10481
Burn patterns on the floor and counter within the building established the burning of a structure.Acknowledging that the evidence supported the burning of property within the structure in violation of Penal Code section 451, subdivision (d), appellant argued there was insufficient evidence present to establish that a structure was burned as required by subdivision (c). However, evidence of burn patters on the floor of the building and the bottom edge of the counter and on the face of the doors was sufficient evidence of a violation of section 451, subdivision (c).id: 10482
Arson of an inhabited dwelling is a general intent crime.Defendant was convicted of arson of an inhabited structure pursuant to Penal Code section 451, subd. (b). Contrary to defendant's argument, the instant provision requires only a general intent. Even if arson were not a general intent crime, there was sufficient evidence of a specific intent to do more than simply burn personal property as asserted by defendant. Coupled with her statement to her former husband that she was gonna burn her apartment up, the manner in which she directed that the fire be started so that it was inevitable that there be a burning throughout the apartment constituted substantial evidence of a specific intent to burn the inhabited apartment dwelling.id: 10472
Arson of an inhabited structure or property is a general intent crime.Defendant who was convicted of arson argued that he lacked the specific intent to burn a structure as prohibited by Penal Code section 451, subdivision (b), and that his intent was to kill himself. However, arson of a structure is a general intent crime. Moreover, there was no evidence to support his theory that he somehow intended to kill himself without burning the house.id: 10473
Court did not err in failing to instruct on misdemeanor arson where the evidence did not support a finding of recklessness.Defendant was charged with arson of an inhabited structure in violation of Penal Code section 451, subd. (b). He argued the court erred in failing to instruct sua sponte on unlawfully causing a fire as a lesser included offense. He argued the evidence of a possible accident as well as the evidence of his own intoxication supported the giving of the instruction. The instruction on the lesser offense must be given if there was evidence the fire had been caused by recklessness. The evidence in the instant case showed that the fire was either accidental (which would have exonerated defendant) or was felony arson committed by another. The court did not err in failing to instruct on the lesser offense.id: 10474
Court did not err in instructing that arson is a general intent crime.Defendant argued the court erred in failing to instruct the jury that arson is a specific intent crime. However, the court did not err in instructing with CALJIC 3.30 that arson was a general intent crime. Even assuming it was error not to instruct on specific rather than general intent, the error was harmless where the jury found defendant intentionally set the fire.id: 10475
Defendant who acted willfully and maliciously was properly convicted of arson of a structure despite the court's comment that defendant did not intend for the carport to burn.Defendant argued that because the trial court expressly found that he did not intend to burn the carport, his conviction for arson of a structure, i.e., the carport, cannot stand and that at most he may properly remain convicted of only the lesser offense of unlawfully causing a fire. However, the record supported a finding that in causing the carport to be burned defendant acted willfully and maliciously. Thus he was properly convicted of arson of a structure. The court's comments that defendant did not specifically intend for the carport to burn are of no legal import on the issue of guilt.id: 10477
Evidence of voluntary intoxication is not admissible under Penal Code section 22 to negate the required mental state for arson.Evidence of voluntary intoxication is not admissible under Penal Code section 22, on the issue of whether defendant formed the required mental state for arson because arson is a general intent crime.id: 9898
Stripped-down mobile home with four sides and a middle wall, was a structure for arson purposes.Defendant was convicted of arson of a structure. Substantial evidence supported the jury's implied finding that the subject matter of the fire, a stripped-down mobile home, was a "structure" within the meaning of Penal Code section 451, subd.(c).id: 9899
About Pat Ford
Pat Ford is a criminal defense lawyer in San Diego who works on appeals in some of the most difficult cases around the state. He has a great record for success and integrity. Pat has also published a criminal case law digest since 1984 that's used by judges and lawyers around the state. He also speaks and writes articles for criminal lawyers as well as consumers interested in the law. The consumer-related articles are intended to be informative but do not constitute legal advice.
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Exclusion of 18-25 year-olds from the youthful offender provisions of section 3051 did not violate equal protection. Penal Code section 3051 establishes a parole eligibility hearing for juveniles convicted of special circumstance murder and sentenced to life without the possibility of parole. Excluding persons 18-25 from the youthful offender parole hearing provision did not violate equal protection principles.id: 27245