joomla visitor
FREE CONSULTATION 619-405-0063

San Diego County Charge: Out of county resident charged with felony assault and battery involving multiple victims and great bodily and serious injuries Result: Verdict, Not Guilty on All 7 counts of Assault and Battery with Great Bodily Injury and Multiple Strikes.San Diego County Charge: 69 year old man driving under the influence of methamphetamine onto oncoming traffic Result: Hung Jury and District Attorney Dismissed DUI San Diego County Charge: Mother of two evading police in hit and run charge with serious bodily injury Result: District Attorney Dismissed after Successful Line-Up Motion San Diego County Charge: Juvenile charged with running over her ex boyfriend at high school Result: Court Dismissed case after Argument Made In Mitigation San Diego County Charge: Spouse arrested for domestic violence after 911 calls and pictures of serious bodily injury Result: District Attorney Dismissed at Trial San Diego County Charge: Military member arrested for assault and battery Result: Court Dismissed after successful argument for Military Diversion San Diego Federal Charge: 19-year-old student charged with Alien Smuggling Result: Case Dismissed after negotiations with US Attorney

San Diego Arson Lawyer

The law concerning malicious arson is much more complex than just “setting something on fire.” The statute outlines what arson is, in the legal sense. It is stated, “A person is guilty of arson when he or she willfully and maliciously sets fire to or burns or causes to be burned or who aids, counsels, or procures the burning of, any structure, forest land, or property.” Cal. Penal Code Ann. § 451. There are only two applicable elements to an arson charge, however, there are multiple sub-elements that can make the charge fairly intricate. In addition, there are some defenses that may apply to certain different situations that could show that one is not guilty of arson. The penalties differ dramatically depending on the specifics of the case, but it is a felony charge. Lastly, there are some possible mitigating factors that may be applicable to the sentencing.

Understanding the Elements of an Arson Charge in San Diego

There are two applicable elements to malicious arson, “(1) You set fire to or burned a structure, forest land, or property, AND (2) you did so willfully and maliciously. Cal. Penal Code Ann. § 451. The two elements may seem pretty simple. However, in regards to the first element because there are multiple things that can be burned or set on fire that will qualify for arson it is a little more complex. In addition, the second deals with the mental state, we will have to look in depth at exactly what qualifies under this element. Both of these elements listed must be proven beyond a reasonable doubt by the prosecution in order to be guilty of this crime. Thus, the two elements of arson are, you set fire to or burned a structure, forest land, or property, and you did so willfully and maliciously.

The first element to malicious arson is that someone set fire to or burned a structure, forestland, or property.

The first element to malicious arson is that someone set fire to or burned a structure, forest land, or property. We will break this element up and look at what it means to set fire or burn. Then we will look at what structure, forest land and property, and what they encompass.

In regard to the arson rule, one sets fire to or burns something when they damage or destroy it with fire. However, they do not necessarily need to damage or destroy the entire object, burning just a portion of the object would qualify for this aspect of the element. Cal. Penal Code Ann. § 451. For an example, Dave wanted to burn his neighbor’s house down. Dave waited until late that night when he knew his neighbor was gone at work and went over to carry out the plan. However, Dave was not very good or experienced at starting fires. When he tried to burn the house down was only able to burn one side well before the fire died off. Because he still set fire to the house willfully he is still guilty of arson. It does not matter that it was only the one wall and not the entire house that was burned or set on fire. Thus, to set fire or burn a structure one must only damage a small area or more with fire.

When we look to the last part of the first element we see a list of must be burned or set on fire to count for this element and the first thing listed is a structure. thinking of a structure may think of just a building, but the law is a little more complex and broad than that. The legal definition states, “A ‘structure’ includes not just a building, but also any bridge, tunnel, power plant, or commercial or public tent.”’ Cal. Penal Code Ann. § 450. Because of this definition, we can understand that a structure embodies a multitude of different things.  As stated above even a commercial or public tent can fall within the rules meaning of structure. Therefore, a ‘structure’ includes not just a building, but also any bridge, tunnel, power plant, or commercial or public tent.

In addition to a structure, a forest can also qualify under this statute as an applicable thing to set on fire or burn. The legal definition of forest land is not quite as broad, it is stated as, meaning any brush-over land, cut over land, forest, grasslands, or woods. Cal. Penal Code Ann. § 450. The definition for forestland is pretty straightforward. This would be applicable in cases where someone maliciously sets a fire in the forest that eventually turns into an infamous California wildfire. Thus, burning or setting on fire forest land would be applicable under the first element. 

Lastly, the term property would also qualify for the first element if someone set fire or burned. In regard to the rule, property is defined as means any real or personal property or land. Other than a structure or forest land. This would also include things like furniture, a car, a boat, or even clothing. Cal. Penal Code Ann. § 450. It is also a necessity that the property is not personal to the person charged. This element would not be fulfilled if the property is your own, unless you were to burn it to defraud someone or someone suffers injuries from the fire. CALCRIM 1515. The definition of property is a pretty broad topic that encompasses a lot of different objects. There is even a case where a student set fire to the school’s trash can and the element was fulfilled. The element was fulfilled because the trash in the can was seen to be the school’s property. This is outlined in In re L.T. (2002) 103 Cal.App.4th 262, 264-65. Thus, the setting on fire or burning of property would fulfill the first element.

Therefore, the first element to malicious arson is that someone set fire to or burned a structure, forest land, or property.

The second element to malicious arson is that when the person completed the first element they had done so willfully and maliciously.

The second element to malicious arson is that when the person completed the first element they had done so willfully and maliciously. To see what the second element consist of we must look at the legal definition of willfully and then maliciously.

The legal definition of willfully is one commits an act willingly or on purpose. In addition, it does not matter if the person did not mean to break the law. Cal. Penal Code Ann. § 450. Willfully is the least complicated aspect of this element, it is required that the person charged. It is essentially stating that the act of burning or setting something on fire was not an accident.  For example, knocking an iron to the floor and setting the home on fire would not be a willful act because it was not on purpose. On the other hand, someone who lights a match and throws it into dried brush is someone who acted willfully because they did the act on purpose. Thus, the act must be willful in order to fulfill the second element.

In addition, to complete the second element of malicious arson the person charged with the crime must have done so maliciously. The rules definition of maliciously is, “imports a wish to vex, defraud, annoy, or injure another person, or an intent to do a wrongful act, established either by proof or presumption of law.” Cal. Penal Code Ann. § 450. The element basically calls for some kind of wrongdoing, which can be done in various ways.  Defraud is the first example given in the statute. An example of defrauding would be a person who is a small business owner would like to collect on his insurance because business has not been going well for some time now. So, one night they burn their business to the ground and hope to collect their insurance policy. This would be a classic example of defrauding someone under this element.  Also, the statute listed to annoy, this is a broad word that would seem easy to fulfill. If the fire was light to trouble another or out of spite then this could possibly be fulfilled for acting maliciously. Last was to injure. If during the course of the fire someone is hurt by it then the second element could be fulfilled. An example would be if one light another’s home on fire, and because of the fire, the neighbor suffered burns. If this happened then this element would most defiantly be fulfilled because the person who started it acted maliciously.  Thus, the act must be malicious in order to fulfill the second element of this crime.

Therefore, the second element of malicious arson is that when the person completed the first element they had done so willfully, and maliciously.

Understanding Your Legal Defenses to an Arson Charge in San Diego

If one is charged with malicious arson there are some applicable defense that may be used which could possibly have the charge dropped. One possibility is that the fire was simply an accident. In addition, another possible defense is that there is not enough evidence to convict the person. Lastly, the fire was not started by arson. If any of the possible defenses are appropriate to the certain situation then the person charged with malicious arson would not be guilty of the crime. Thus, there are possible defenses to malicious arson.

The first possible defense to malicious arson is that the fire was simply an accident

The first possible defense to malicious arson is that the fire was simply an accident. This is in relation to the second element discussed, whether the person charged had committed the act willfully and maliciously. If the fire was an accident that means the person charged cannot be charged with malicious arson because they do not have the appropriate mental state. This goes back to the past example. Where one leaves the iron on, and it falls to the floor and catches the carpet on fire and spreads to the rest of the home. One cannot be charged with malicious arson in this case because it was an accident. There may be a lesser offense that would be more applicable to this situation but not malicious arson. Another example would be a camper in the forest has a campfire in an area permitted and for some reason, the fire takes off and spreads to the trees and develops into a forest fire. The camp goer wanted the fire for warmth or to cook their food, not to start a forest fire. Because the fire was an accident, the camper is not guilty of malicious arson. The prosecution is going to have to prove beyond a reasonable doubt that the person charged purpose of this fire was malicious, not an accident.  Thus, the fire being an accident is an applicable defense to malicious arson.

In addition, another defense is that there is not enough evidence to convict the person of malicious arson.

In addition, another defense is that there is not enough evidence to convict the person of malicious arson. With the nature of fires alone, there is not much evidence. This makes sense because most evidence of the fire is destroyed through its natural process. Also, to the lack of evidence, if there are also no witnesses, then this can be very tough for the prosecution to build a case against one who is charged with malicious arson. Once again this goes back to the prosecution having to prove beyond a reasonable doubt using circumstantial evidence that the one charged caused this fire. Therefore, lack of evidence can be a possible defense when one is charged with malicious arson.

Lastly, an applicable defense depending on the situation would be that the fire was not started by arson.

Lastly, an applicable defense depending on the situation would be that the fire was started by not arson. Fire is a naturally occurring process, unlike most crimes which can make it difficult to find the answer to how it started and what happened. The people that investigate the “crime scene” can sometimes get to wrong hoping that they have found out how and where the fire started. That’s why it is not uncommon for the defense to have their own expert testify his thoughts and explain other possibilities that could have set the fire. Especially with older homes or buildings, there are so many wires or other pieces that can decay with age and become hazardous and even start fires. If there was a wiring issue in a home or some other natural occurrence started the fire then the person charged with malicious arson is not guilty of the crime. Thus, if the fire was not started by arson then that would be a defense to the charge.  

Therefore, there are multiple defenses when one is charged with malicious arson.

Understanding the Punishment if Convicted of Arson in San Diego Courts

The penalty for malicious arson varies depending on certain circumstances. However, “willful or malicious arson is always a felony in California law, punishable by imprisonment in California state prison.’’ Cal. Penal Code Ann. § 451. According to the statute, the lightest sentence would be sixteen months, while the harshest sentence could result in nine years. Also, if the malicious arson is of personal property then the punishment would be anywhere from sixteen months to three years in prison. If the malicious arson involves a structure or forest land, then the sentence can result in a punishment of two to six years in state prison. In addition, if the malicious arson is of an inhabited structure or inhabited property then the sentence can be anywhere from three to eight years.  Lastly, the harshest of a sentence is when the arson involves great bodily injury, with this the sentence can from five to nine years. On another note, these sentences can also include a fine up to ten thousand dollars ($10,000). Thus, the penalties for malicious arson can differ greatly depending on certain circumstances, with at least sixteen months in prison being the light end and nine years in prison being the most severe.

The Court Will Consider Mitigating Factors at Sentencing in San Diego for Arson

There are mitigating factors that may lessen the sentence of the malicious arson. These factors usually make the court feel sympathy or an understanding of the person charged. One possibility is if the person guilty has no criminal history. Another possibility is that the person charge was not malicious, but maybe they were only reckless when they caused the fire. If they were reckless then the crime may only be reckless arson. Cal. Penal Code Ann. § 452. If this is the charge it is possibly only a misdemeanor instead of the felony charge. If the charge is reduced to reckless arson the penalty is only six months in county jail and a one thousand dollar fine. However, this crime is a wobbler, which means depending on certain circumstances it still may be a felony, if someone is hurt or forest land for example. But this would be a much less harsh sentence than the original charge of malicious arson that the person faced before. Thus, there are mitigating factors and lighter charges that may reduce the punishment.

You Should Hire a San Diego Arson Criminal Lawyer to Defend You in Court

A person is guilty of arson when he or she willfully and maliciously sets fire to or burns or causes to be burned or who aids, counsels, or procures the burning of, any structure, forest land, or property. There are multiple defenses that may drop the charges. It is important to hire a San Diego lawyer that has handled many cases like these in the past. Attorney Vik Monder has represented many people in San Diego facing arson charges like these. He is a leading expert in handling arson charges in San Diego County. Attorney Vik Monder will discuss mitigation at the beginning of the case in order to get the charges dismissed before they are filed or get the charges reduced during the pre-trial negotiating stages of your case. It is very important to contact attorney Vik Monder at the early stages of your arson case because there is many things that can be done especially having attorney Vik Monder speak with the chiefs in the department handling your case.

Contact San Diego Arson Lawyer Vik Monder for a FREE consultation today at: 619-405-0063

Contact San Diego Criminal Attorney Vik Monder for a free consultation today at: 619-405-0063

San Diego Best Criminal Attorney Award

Our Practice Areas

Assault Attorney

Assault & Battery

Domestic Violence Attorney

Domestic Violence

Driving Offense Attorney

Driving Offenses

Drug Criminal Attorney

Drugs

Expungement &
Post Conviction

Firearms

San Diego Fraud Attorney

Fraud

Military Defense

Sex Criminal Attorney

Sex Crimes

San Diego Theft Attorney

Theft

San Diego Criminal Defense Attorney

5.0 stars
5.0 out of 5.0
Based on 29 reviews
San Diego, CA

You have the right to remain silent and refuse to answer questions. You have the right to consult an attorney before speaking to the police and to have an attorney present during questioning now or in the future.

Contact Us

You have the right to remain silent and refuse to answer questions. You have the right to consult an attorney before speaking to the police and to have an attorney present during questioning now or in the future.