Posted on September 7, 2015
California Penal Code § 452: Reckless Burning
Unlawful causing a fire is also known as “Reckless Burning” which is a lesser offense to the crime of arson. The difference between reckless burning and arson is your state of mind. In other words, if you intended to burn property or a forest, then the prosecutor will most likely charge you with arson since you harbored the intent to burn. However, if you were aware of a substantial risk that your conduct could cause burning to property or a forest, then the appropriate charge would be reckless burning. There is a fine line between the two charges. In most cases, defense attorneys argue for the lesser charge of reckless burning which carries substantially less exposure. It is important that if you’ve been arrested, charged, or under investigation for reckless burning, you should not make any statement to police and contact Los Angeles Arson Defense Attorney John Rogers right away. Most of the time, prosecutors prove you “intended to burn” a structure for instance, based on your own incriminating statements to fire investigators. Without you making a statement, proving you intended to burn becomes more challenging for the prosecutor and often times leads to an advantageous outcome.
Unlawful causing a fire is formally defined under Penal Code § 452 which provides, “A person is guilty of unlawfully causing a fire when he recklessly sets fire to or burns or causes to be burned, any structure, forest land or property.” Contrary to popular belief, reckless burning does not require property or forest land to catch on fire. Indeed, simple charring, however slight, will suffice to complete this charge. For example, throwing out a cigarette in someone else’s home and the wall gets charred. Although no actual fire erupted from the cigarette, simple charring will complete the crime of reckless burning as well as arson. In addition, if you’re charged with reckless burning of a structure, the burning must occur on the “structure” or objects affixed to the structure. For instance, burning a couch will not suffice for this charge. Furthermore, Arson/reckless burning cases are usually prosecuted by a specially assigned prosecutor. Due to the very nature of the charge and the possibility of substantial damage or great bodily injury, prosecutors and police treat these cases extremely serious. In fact, most judges often request the defendant be examined by a psychiatrist.
Reckless burning is a “wobbler” offense which means the prosecutor holds discretion to charge someone with a felony or misdemeanor. Factors the prosecutor will consider are: 1) your prior criminal record; 2) the amount or level of damages; 3) the risk of harm or death to others that could have come about; 4) the opinion of the fire investigator(s); 5) whether anyone was harmed or received bodily injury. Fortunately, if you’re ultimately convicted of reckless burning as a felony, you may be eligible to reduce your felony to a misdemeanor after successful completion of probation.
Elements to Reckless Burning
In order for you to be convicted of unlawfully causing a fire under P.C. § 452, the prosecutor must prove each element beyond a reasonable doubt:
1. Defendant set fire to, or burned, or caused the burning of a structure, forest land, or property
2. Defendant did so recklessly
• Your conduct did not rise to the level of recklessness but was grossly negligent or caused by ordinary negligence or by simple/innocent accident.
• The damages to the property, structure, or forest land did not result in charring or burning.
• The overall circumstances are appropriately labeled as misdemeanor conduct versus felony conduct.
• You did not commit the offense and are wrongly accused by another person. Perhaps there could be issues concerning witness identification mistakenly identifying you as the culprit.
• The evidence against you was unlawfully obtained in violation of your search and seizure rights under the Fourth Amendment of the United States Constitution.
• Your statements were illegally obtained in violation of your Miranda rights under the Fifth Amendment of the United States Constitution.
If convicted of reckless burning as a misdemeanor, you face up to 1 year in the county jail along with court fines and fees. Additionally, tbe ordered to complete arson counseling and possibly anger management and possibly seek therhe court will impose a restitution amount to be paid for the damages. Furthermore, you apy on a monthly or weekly basis.
The punishment for reckless burning as a felony depends on a number of variables. Pursuant to Penal Code § 452(b), you face a state prison sentence of 2, 3, or 4 years in California state prison. If someone suffered great bodily injury as a result of the burning, under Penal Code § 452(a), you face 2, 4, or 6 years in California state prison. If the burning was to forest land only, then pursuant to Penal Code § 452(c), you face 16 months, 2, or 3 years in prison.
What does “Reckless” mean?
As mentioned previously, the difference between arson and reckless burning is your mental state. The California Jury Instructions defines reckless conduct as, “A person acts recklessly when (1) he or she is aware that his or her actions present a substantial and unjustifiable risk of causing a fire, (2) he or she ignores that risk, and (3) ignoring the risk is a gross deviation from what a reasonable person would have done in the same situation.” In order words, you did not intend any actual burning but your conduct created a high degree of risk that burning was likely to occur – i.e., lighting fireworks in a home.
When someone is arrested for a crime, the police gather the evidence and draft a police report explaining the circumstances for your arrest. Afterwards, their report is submitted to a filing prosecutor for review to determine whether formal charges should be filed against you. When appropriate, the Law Offices of John D. Rogers will submit a mitigation package containing certificates, character letters, additional evidence such as photographs and/or witness statements in an effort to have the prosecutor reject the case completely or mitigate your exposure to a misdemeanor versus a felony offense. Most of the time, the police do not question additional witnesses or omit collecting pertinent evidence in your favor. By submitting a mitigation package, this ensures the filing prosecutor is aware and has knowledge of all the evidence and circumstances of your case prior to filing charges. The pre-filing mitigation approach must be done as soon as possible and the longer one waits, then the chances of reducing your exposure or getting the case rejected completely decreases by the day.
Reduction to a Misdemeanor
As indicated above, reckless burning is a wobbler offense which means the prosecutor may elect to file charges as a misdemeanor or felony. In the event you are convicted of a felony, you may be eligible to reduce your felony to a misdemeanor pursuant to Penal Code § 17(b). There are certain limitations however. For instance, your conviction must not have resulted in your serving time in California state prison. In addition, you must have completed all terms and conditions of your sentence – e.g., jail time, paid all outstanding fines and fees, completed all classes and orders from the court. Furthermore, and usually the most important, the court will consider whether you completed probation with any violations. If you have been convicted of felony reckless burning, then contact the Law Offices of John D. Rogers for a free consultation about reducing your felony to a misdemeanor.
A conviction for unlawfully causing a fire is eligible to be expunged so long as certain conditions have been satisfied. For instance, your conviction cannot have resulted in you serving time in state prison and you must have completed all the terms of your sentence. Expunging your record requires a specified petition governed under California Penal Code § 1203.4. When your expungement petition is granted, the court withdraws its finding of guilt, enters a not guilty plea, and the court dismisses the case pursuant to P.C. § 1203.4. From that moment forward, you will be release from all “penalties and disabilities” resulting from your conviction. Obtaining a dismissal under 1203.4 has a number of benefits namely in the private employment sector. If you have been convicted of unlawfully causing a fire, contact the Law Offices of John D. Rogers for a free consultation concerning your eligibility in expunging your record.
Dan was upset over his recent break up with his girlfriend. He dug through his closet to find all items and letters which reminded him of his girlfriend. Dan then placed all the items into a steel trash bin in his leased apartment kitchen. Dan poured kerosene over all the items in the bin. He lit a match and threw it in the steel bin in relief. The items caught on fire and the fire grew bigger than Dan expected. The fire ultimately burned the ceiling but luckily did not catch fire. Dan put out the fire quickly with a bucket of water. Due to a substantial amount of smoke, a neighbor called 911 thinking that Dan’s apartment caught on fire. In this case, Dan would not be charged with arson because he did not harbor the intent to burn the structure of his apartment. However, the police and prosecutor would likely charge Dan with reckless burning because his conduct of burning in his kitchen after pouring kerosene created a substantial risk that a burning of the structure would likely occur.
• Penal Code § 451: Arson
• Penal Code § 594: Vandalism
Contact Us for a Free Consultation
If you have been arrested, charged, or are under investigation for unlawful causing a fire, then contact Los Angeles Criminal Defense Attorney John Rogers at the Law Offices of John D. Rogers. Call 877-888-9820 for a free confidential consultation concerning your right and defenses.