Arson by malice, PC 451
Unlawful burning by reckless disregard of known risk, PC 452
Aggravated Felony (AF)
Assume 451, 452 are AFs as analogues to 18 USC 844(i), even without 1 yr imposed.1See discussion of state analogues to this federal arson statute in Luna Torres v. Lynch, 136 S.Ct. 1619 (2016) and see NIPNLG, Practice Alert: Luna-Torres v. Lynch (May 2016) available at http://nipnlg.org/PDFs/practitioners/practice_advisories/crim/2016_20May_luna-torres-alert.pdf. This is a bad plea. See Advice
Crime Involving Moral Turpitude (CIMT)
Other Removal Grounds
No other removal ground.
Advice and Comments
AF as arson. To avoid this see:
— Felonies such as 591, 594, 459 (which may take 1 yr or more without being an AF), perhaps coupled with H&S C 13001 (negligence), PC 136.1(b)(1) consecutive, 370, or
— PC 453, not secure but better than 451, 452.
— Imm counsel can investigate argument that 452 recklessness is not equivalent to federal malice.2Although 18 USC § 844(i) requires malice and Penal Code § 452 requires recklessness, ICE will argue that they are a categorical match. At least some federal courts define malice in the context of § 844(i) to include “willful disregard of the likelihood that damage or injury would result.” U.S. v. Gullett, 75 F.3d 941, 947 (4th Cir. 1996). Cal. Penal Code § 450(f) defines reckless for purposes of § 452 as follows: “‘Recklessly’ 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 nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation. A person who creates such a risk but is unaware thereof solely by reason of voluntary intoxication also acts recklessly with respect thereto.” Immigration counsel can investigate whether the state definition is broader, based on the inclusion of inebriated behavior or some other factor.
AF as a COV if 1 yr imposed.
— 452 has not been held a COV because it can involve recklessness, but the Supreme Court may change this rule in 2020. See discussion of Borden v. U.S. at PC 207.
— 451(d) includes burning one’s own personal property if certain conditions present including intent to defraud; and by its terms should include burning one’s own real property even without these conditions. These are not COVs because not against the property of others.3A COV as defined at 18 USC § 16 requires violence against personal property of another, not oneself. But 451 and 452 remain dangerous because they may be AFs as federal arson analogues, per above.