PC 451, 452

PC 451, 452

Offense

Arson by malice, PC 451

Unlawful burning by recklessness, PC 452

Aggravated Felony (AF)

Ninth Circuit held PC 451 is not an AF as arson, but see Advice

PC 452 should not be arson but see Advice

Neither should be a COV under 18 USC 16(a)

Crime Involving Moral Turpitude (CIMT)

PC 451, 452 will  charged as CIMTs, but there are arguments against this. See Advice

Other Removal Grounds

No other removal ground.

Advice and Comments

PC 451, 452 

See endnote for citations and further discussion.1PC 451 as arson. An offense “described in” 18 USC 844(i) is an AF as arson. 8 USC 1101(a)(43)(E)(i). In other words, 8 USC 844(i) is a generic definition of arson for purposes of the categorical approach. In Togonon v. Garland, 23 F.4th 876 (9th Cir. 2022), the Ninth Circuit held that PC 451(b) is not arson because it has a broader mens rea than 844(i). Because 451(a)-(e) all share the same mens rea, no conviction under 451 can be an AF under Togonon. But because at this writing Togonon still could be reheard en banc, defenders should look for alternatives. 

The generic definition at 18 USC 844(i) punishes one who maliciously damages or destroys, or attempts to damage or destroy, by means of fire or an explosive, any building, vehicle, or other real or personal property …” In Togonon, the Ninth joined other circuits to find that “maliciously” here means the person “either intentionally damages or destroys property covered by § 844(i) or acts ‘with willful disregard of the likelihood that damage or injury would result from his or her acts.’ To act with ‘willful disregard,’ the defendant must be subjectively aware of the risk that his actions will damage or destroy property and take the actions nonetheless.” 23 F.4th at 878 (emphasis supplied).

PC 451 punishes a person who “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.” “Willfully” in PC 451 employs the general definition of “simply a purpose or willingness to commit the act, or make the omission referred to. It does not require any intent to violate law, or to injure another, or to acquire any advantage.” PC 7(1), cited in People v. Atkins, 25 Cal. 4th 76, 85 (2001). The key is the definition of maliciously. The Ninth Circuit recognized that “maliciously” for PC 451 has been held not to require a conscious disregard of a known risk, but rather to require failing a reasonable person standard. In other words, 844(i) requires a subjective awareness of the known risk while 451 does not.

The case most relevant for our analysis is the California Supreme Court’s decision in In re V.V., 51 Cal.4th 1020, 125 Cal.Rptr.3d 421, 252 P.3d 979 (2011). There, two teenagers ignited a firecracker and threw it onto a brush-covered hillside, starting a fire that burned five acres of forest land. Id., 125 Cal.Rptr.3d 421, 252 P.3d at 980–81. The evidence established that the defendants intentionally ignited the firecracker and threw it onto the hillside, but they had not intended to burn forest land. Id., 125 Cal.Rptr.3d 421, 252 P.3d at 985. The California Supreme Court upheld their juvenile adjudications under California Penal Code § 451. The court concluded that malice under § 451 requires only “a general intent to willfully commit the act of setting on fire under such circumstances that the direct, natural, and highly probable consequences would be the burning of the relevant structure or property.” Id., 125 Cal.Rptr.3d 421, 252 P.3d at 984. The defendants in V.V. did not need to “know or be subjectively aware that the fire [on the forest property] would be the probable consequence of their acts.” Id., 125 Cal.Rptr.3d 421, 252 P.3d at 985 (emphasis added). Instead, they could be convicted so long as they were aware of facts that “would lead a reasonable person to realize that the direct, natural, and highly probable consequence of igniting and throwing a firecracker into dry brush would be the burning of the hillside.” Id.

Togonon, 23 F.4th at 879.

Accordingly, the Ninth Circuit held that PC 451 is not a categorical match to 18 USC 844(i) and is not an AF as arson. See also Mason v. Superior Ct. (2015) 242 Cal. App. 4th 773, 784 (lighting firecracker and throwing it into the water of a swimming hole, where sparks still started a fire, is arson under PC 451).

PC 452 as arson. This is a preliminary analysis, and one that ICE might or might not contest.

As discussed above, 18 USC 844(i) serves as a generic definition of the aggravated felony arson. In Togonon v. Garland, 23 F.4th 876 (9th Cir. 2022), the court found that 18 USC 844(i) prohibits “maliciously” damaging certain property with fire or explosives, where maliciously means damaging the property intentionally or recklessly (conscious disregard of a known risk of damage). PC 452 punishes one who “recklessly sets fire to or burns or causes to be burned, any structure, forest land or property.”   Under PC 450(f), recklessly here “means a person is aware of and consciously disregards a substantial and unjustifiable risk that his or her act will set fire to, burn, or cause to burn a structure, forest land, or property.  The risk shall be of such a nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation.”  PC 452 offense of “unlawfully causing a fire covers reckless accidents or unintentional fires….For example, such reckless accidents or unintentional fires may include those caused by a person who recklessly lights a match near highly combustible materials.”  People v. Atkins, 25 Cal.4th at 89.  Furthermore, PC 452 is a general intent crime where the reckless act is satisfied when (1) the person does the act that presents the risk of causing the fire, and (2) the person is unaware of the risk due to voluntary intoxication.  Thus, because PC 452 employs a reasonable person standard and does not require the person to be subjectively aware of the risk, PC 452 should not be a match to the generic arson.  See CALCRIM 1530, 1531, 1532 and PC 450(f) defining reckless is include those who are unaware of the risk due to voluntary intoxication.  

“Recklessly” should be held the mens rea for causing a fire at all, so that PC 452 prohibits recklessly/unintentionally lighting a fire. That is broader than 18 USC 844(i), which prohibits intentionally or recklessly damaging property with a fire. The plain language of 452 and its subsections indicate that PC 452 prohibits recklessly causing the fire, without intending to. Section 452 punishes one who recklessly “causes to be burned … any structure, forest land, or property.” This language is identical to PC 451. Interpreting the same phrase in PC 451, the California Supreme Court stated, “The statute does not require an additional specific intent to burn a ‘structure, forest land, or property,’ but rather requires only an intent to do the act that causes the harm. This interpretation is manifest from the fact that the statute is implicated if a person ‘causes to be burned … any structure, forest land, or property.’” People v. Atkins (2001) 25 Cal. 4th 76, 86. The Court noted that specific intent to destroy property was included in arson statutes in 1872 but this was dropped in 1929. Id. See also People v. Morse (2004)116 Cal. App. 4th 1160, 1163. See also, e.g., People v. Hooper (1986) 181 Cal. App. 3d 1174, 1183 (where the defense asserted that the fire was started recklessly and without intention, because a cigarette or burning paper blew out of the car window, it was error (although for other reasons, not reversible error) to fail to give instruction for PC 452) and see People v. Atkins, 25 Cal. 4th at 88 (“[T]he lesser offense [PC 452] requires mere recklessness; arson [PC 451] requires the general intent to perform the criminal act.”).

On a more foundational note, the Supreme Court held that state arson statutes can be held aggravated felonies as analogues to 18 USC 844(i), despite lacking the federal jurisdictional element in that statute. Luna Torres v. Lynch, 578 U.S. 452 (2016).

PC 451, 452 as a COV. A COV is an AF if a year or more is imposed. 8 USC § 1101(a)(43)(F). Crime of violence is defined for immigration purposes at 18 USC 16 as: “(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or prop­erty of another, or (b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” The Supreme Court in Dimaya found 18 USC 16(b) to be unconstitutional, so that only 16(a) defines a COV now. See discussion at PC 207.

Before 18 USC 16(b) was struck down, PC 451, 452 were considered COVs as causing a “substantial risk” of force under 16(b), as long as the fire damaged another’s property rather than the person’s own. See, e.g., Jordison v. Gonzales, 501 F.3d 1134, 1135 (9th Cir. 2007) (PC 452 is divisible as a COV to the extent it includes one’s own property), Cabrera-Arucha v. Holder, 378 F. App’x 662, 664 (9th Cir. 2010) (PC 451 is divisible on same basis). Those decisions are struck down by Dimaya. 

There is no precedent discussing whether 451 or 452 (involving property that is not one’s own) is a COV under 18 USC 16(a). Because PC 451and 452 involve a mens rea of recklessness or lesser mens rea as to starting the fire neither offense should be found to have the required element of use of intentional, aggressive force against person or property. (In fact, some circuits found that recklessly causing a dangerous fire was not a COV under 18 USC 16(b). See, e.g., Tran v. Gonzales, 414 F.3d 464, 472–73 (3d Cir. 2005).) If they were to be held a COV, that still would not apply to burning one’s own property.

PC 451, 452 as CIMTs. Regarding PC 451, it has long been held that intentional arson is a CIMT. See Rodriguez-Rodriguez v. INS, 52 F.3d 238, 239 (9th Cir. 1995) (noting, “That arson necessarily involves moral turpitude is undisputed.”); Matter of S-, 3 I&N Dec. 617 (BIA 1949) (attempted arson is a CIMT) (distinguishing reckless conduct from intentionally setting a fire). However, arson of one’s own property may not be a CIMT. See, e.g., discussion in Rosa Pena v. Sessions, 882 F.3d 284 (1st Cir. 2018). 

But advocates have a strong argument that “willfully and maliciously” causing a fire under PC 451 is not a CIMT. In finding that PC 451 is a general intent crime, the California Supreme Court stated that willfully under California law “implies simply a purpose or willingness to commit the act, or make the omission referred to. It does not require any intent to violate law, or to injure another, or to acquire any advantage.”

The terms ‘willful’ or ‘willfully,’ when applied in a penal statute, require only that the illegal act or omission occur ‘intentionally,’ without regard to motive or ignorance of the act’s prohibited character.” “Willfully implies no evil intent; ‘ “it implies that the person knows what he is doing, intends to do what he is doing and is a free agent.” The use of the word “willfully” in a penal statute usually defines a general criminal intent, absent other statutory language that requires “an intent to do a further act or achieve a future consequence.”

People v. Atkins (2001) 25 Cal. 4th 76, 85 (citations omitted)

Regarding “maliciously,” as discussed above, in Togonon v. Garland, 23 F.4th 876 (9th Cir. 2022) the Ninth Circuit held that “maliciously” in PC 451 includes an act that a reasonable person would have known would have the natural and probable consequence of causing property to burn.  Negligence is not a CIMT. Therefore PC 251 intent is overbroad and indivisible and should not be held a CIMT.  See also J-A-M-B-, AXXX XXX 662 (BIA July 12, 2018) (unpublished) (arson under Cal. Penal Code section 451(d) is not divisible and categorically not a CIMT because it is a general intent crime that does not require an intent to cause injury or damage) (Grant, Kendall Clark, Guendelsberger).

Section 452 involves reckless conduct. Under PC 450(f), for this purpose recklessness also employs the “reasonable person standard,” and should not be a CIMT.

PC 451 as arson. 18 USC 844(i) supplies a generic definition of arson, per 8 USC 1101(a)(43)(E)(i). The Ninth Circuit held that PC 451(b) is not arson because the mens rea does not match 844(i), in Togonon v. Garland (2022). Because PC 451(a)-(e) all have the same mens rea, no conviction under 451 should be an AF under Togonon. 

18 USC 844(i) prohibits “maliciously” damaging property etc. by fire or explosive. In Togonon the Ninth found that “maliciously” here means damaging the property either intentionally, or with conscious disregard of a known risk, i.e., recklessly. The court found that in PC 451 requires a willful act, but does not require a conscious disregard of a known risk of damage (despite the term ‘malicious’ in the statute). Instead the court found that PC 451 requires awareness of circumstances where a reasonable person would have known that the natural and probable consequence would cause damage to property. Therefore 451(b) is not an AF as arson.

PC 452 as arson. Federal arson requires maliciously causing damage, meaning either an intentional causation of damage, or a subjective awareness and conscious disregard of the known risk of causing damage. See definition of arson above. PC 452, however, requires recklessly causing a fire, but does not require a subjective awareness of the risk of damage from the fire. Thus, PC 452 is overbroad and should never be arson. However, ICE could contest this, and PC 452 could use additional analysis to strengthen the defense. See endnote.

PC 451, 452 as a COV. A COV, defined at 18 USC 16(a) to include using force against person or property of another, is an AF if a year or more is imposed. 8 USC § 1101(a)(43)(F). PC 451, 452 were considered COVs under 18 USC 16(b), but 18 USC 16(b) has been held unconstitutional. Now only 18 USC 16(a) defines a COV. 

There is no precedent on 451, 452 as a COV under 16(a). Because they involve a mens rea less than recklessness when it comes to the risk of causing damage, and recklessness itself is not a COV, arguably neither offense has the required use of intentional, aggressive force against person or property. See above endnote and see discussion of COV at PC 207. 

Both 451 and 452 can include burning the person’s own property. That is not a COV under 18 USC 16, which only covers the “property of another.”

Alternatives: To more surely avoid an AF as arson, see felonies such as PC 459 1st or 2nd degree, or 594, which may take 1 year or more without being an AF. If needed couple with H&S C 13001 (negligence), PC 136.1(b)(1) consecutive (8 months sentence), 370. Also consider Pub. Res. Code §§ 4421, 4422, 4427, 4435.

PC 451, 452 as CIMT. An offense is a CIMT if it has as an element either evil intent, or recklessness defined as conscious disregard of an imminent risk of causing death or serious injury. Matter of Leal (BIA 2012). Because courts generally have held that arson is a CIMT, defenders should conservatively assume 451 and 452 will be CIMTs, but removal defense advocates have arguments.

While PC 451 requires the person to “maliciously” cause a fire, here maliciously means merely to knowingly and unlawfully ignite a fire, without evil intent (even intent to vex or annoy) or desire to cause harm or gain benefit, but under circumstances where a reasonable person would have known of the risk that it could cause harm, i.e., a standard like criminal negligence. For example, teenagers who started a fire when they set off a cherry bomb near a dry hillside were guilty of PC 451, when they did not know that this risked a damaging fire, but a reasonable person would have known. 

PC 452 prohibits setting the fire “recklessly,” which here means accidentally, but with a conscious disregard of a substantial risk in a gross deviation from a reasonable person standard. P.C. § 450(f). This is not a CIMT under Leal because it does not involve conscious disregard of a subjectively known risk of harm (as opposed to igniting a fire), or if it does, because the harm risked is not imminent death or serious injury. But this may be contested. See above endnote.

2023-07-31T23:27:18+00:00Updated July 31st, 2023|