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Although intentionally set fires are of course not unique to California, the state’s historically destructive and deadly 2017 wildfire season is a sobering reminder that human activity causes nearly 90% of those.

Many wildfires, like fires in homes and businesses, are started accidentally.

However, the California Department of Forestry and Fire Protection records show that since 2007, arson was determined to be the cause in one out of every five California wildfires. More than 1,000 wildfires were intentionally set in 2016.

Though the stories were later discredited, in October several websites, including Breitbart News, reported that prosecutors were about to file felony aggravated arson charges against an illegal immigrant said to have intentionally started a northern California wildfire that killed more than 40 people.

Given the danger to property and life posed by fire, it is not surprising that California law treats arson as a serious crime.

Under the state Penal Code, the offense is defined as either:

  • Willfully and maliciously
  • Recklessly setting fire to real or personal property

However, virtually any sort of real or personal property can be involved, regardless of value.

In some cases, even burning one’s own property can result in an arson charge.

Penal Code 451 PC

The Penal Code defines a “willful” act as one which is intentional.

Neither intent to violate any law or to cause an injury or harm is required.

An act is “malicious” if it is intended to harm another person or his or her property.

For all intents, therefore, fire is arson if it is set deliberately and some harm is likely to result.

As to whether an act is “reckless”, while California courts have adopted a number of definitions in various contexts, each contains two elements:

  • An awareness that the act is highly likely to result in dangerous consequences; and
  • A deliberate disregard of the probability of harm

As such, while proof that a fire resulted from simple negligence will be sufficient to recover damages in a civil action, it will not support a criminal charge of arson.

Regardless of whether the defendant is charged with willful and deliberate or reckless arson (also known as “reckless burning”), a conviction will have very serious consequences, including imprisonment and significant fines.

The sentence imposed will ordinarily take into account the type and value of the property burned, the extent of the damage, and the presence of any injuries.

An act of willful and intentional or reckless burning that causes death may result in a murder charge.

Additional (or “enhanced”) penalties may also be imposed for so-called aggravated arson, that is, where:

  • The defendant has a previous conviction for felony malicious or reckless arson
  • A firefighter or other responder incurs a significant or substantial physical injury as a result of the fire
  • Multiple persons suffer great bodily injury as a result of the fire
  • Multiple structures are burned
  • The defendant used an accelerant (often motor vehicle fuel) or a delayed ignition device.

If you are facing either an arson or “reckless burning” charge in the San Diego area, you will need help from a criminal defense lawyer with experience in arson cases.

An attorney at the Law Offices of Kerry L. Armstrong, APLC can evaluate the strength of the state’s case and of any potential defenses.

Be sure your rights are protected – fill out the contact form to the right or call us directly at (619) 234-2300.

Author Photo

Kerry L. Armstrong


Attorney Kerry Armstrong opened up his law firm in June 2007. Mr. Armstrong attended Thomas Jefferson School of Law, San Diego, California, and received his B.S. from Middle Tennessee State University. Kerry L. Armstrong became certified by the State Bar of California’s Board of Legal Specialization for criminal law in August 2020, making him one of the few criminal defense attorneys with a criminal law legal specialization certificate in San Diego County.  Between 2014 – 2019, Mr. Armstrong was selected for inclusion in the California Super Lawyers list, an honor only awarded to 5% of the nation’s attorneys.

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