What’s the Difference Between Arson and Recklessly Causing a Fire in California?

What’s the Difference Between Arson and Recklessly Causing a Fire in California?

January 17, 2014  •  Jerod Gunsberg, Los Angeles Criminal Defense Lawyer

As of this writing, fire crews in Los Angeles County are battling the Colby Fire near Glendora. As reported on KPCC, three men have been arrested in connection with starting this fire.  Many people assume that these men were arrested for arson, however that’s not the case.

According to the report, these men were allegedly up in the hills and tending to a campfire that went out of control when a breeze kicked up.  Yes, we are in the middle of a “megadrought “ in the LA area, and yes there have been “red flag” warnings in effect, meaning that people are not to be starting campfires in the canyons or hills.

However, none of this means that the men arrested had any intent to start this wildfire – and that’s the difference between recklessly starting a fire and arson.

Arson, punishable under California law under Penal Code 451 requires that someone intentionally cause a fire to a structure – or in this case “forested land” – with malice, meaning they did so with the intent to  “vex, annoy, or injure another person, or an intent to do a wrongful act (See Penal Code Sec. 7).

Recklessly causing a fire, punishable under Penal Code Section 452 is punishable when someone just acts recklessly.  Acting recklessly, in the eyes of the law, is different than malice. It means that a person “is aware that his or her actions present a substantial and unjustifiable risk of causing a fire, that he or she ignores that risk, and ignoring the risk is a gross deviation from what a reasonable person would have done in the same situation. (See CALCRIM 1532)


Is starting a campfire in a brush-covered canyon during a megadrought and a red flag warning reckless?  I think even the most hardcore criminal defense attorney would agree that it is.  If, in fact, this is how the fire started I would imagine that whoever is defending the person or people charged are looking for a resolution and not taking this to trial. Unless there is an issue of whether they not the police arrested the right person, this is not a good case to take to a jury.

So what kind of punishment do people face if they’re convicted of recklessly causing a fire in California?  Well…for starters, it’s what’s known as a “wobbler” meaning it can be charged as either a felony or a misdemeanor.  If I were a betting man, which I’m not, I’d say that this case is going to be filed as a felony.

So as a felony, if there’s no injuries, they would be prosecuted under subsection (c) of Penal Code Sec. 452, and they would be looking at any sentence from probation with some jail time all the way up to a state prison sentence of 16 months, two, or three years. , three, or four years.  If the fire causes “great bodily injury”, it would be punishable by two years, four years or six years in state prison.  It is important to note that per California Penal Code 1170(h), even if someone is sentenced to state prison on this charge, they are not actually sent to state prison, due to prison overcrowding this would be served in a local county jail.

The punishments for arson are much more severe. For starters, arson is a strike under California’s three strikes law. If convicted of arson the punishment would be two, four, or six years.  If there is great bodily injury, the punishment is five, seven or nine years.  And these sentences would be served in an actual state prison.

Bottom line: Don’t start fires where you’re not supposed to!

If you or a loved one are accused of arson, recklessly causing a fire or any other crime in Southern California contact The Law Offices of Jerod Gunsberg at (323) 633-3423 or via this confidential contact form.


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