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FIREWORKS: When Celebrating Freedom is a Felony

Posted by Joseph Tully | Jul 01, 2022

Arson and Fireworks

Accidental, careless, reckless, malicious? If you mis-use fireworks you can and will be held accountable for charring a lawn, or an inferno in the forest. There is even a California Arson Offender Registry! Notice Arson is in the CA penal code as 451.

This article explores the connection between fireworks and arson charges. Click here for our previous post about Fireworks and the Second Amendment. Be safe and sane out there.

Fourth of July is just around the corner, and it is hard to imagine this holiday without fireworks. Pyrotechnic displays are a nation-wide tradition and fireworks sales skyrocket during this time of the year. While many celebrations go incident free, improper handling of fireworks can end up in prosecution. Technically, if you light fireworks and cause a fire, you can be liable and charged with arson. Arson is a felony under California law and a strike on your record for the Three Strikes law. 

Arson is crime under California Penal Code 451, and its legal definition consists of two elements:

    • To set fire to or burn a structure, forest land, or property; AND
    • To do so willfully and maliciously.

Anyone who aids, counsels, or procures the burning of or the intent to burn anything can also be tried for arson. 

A conviction for Arson is a punishable by a sentence of up to 9 years in state prison. To better understand arson, it is important to explore the concepts behind the elements of the crime.

  • Willfully and Maliciously

Someone commits an act willfully when he or she does it willingly or on purpose, regardless of whether or not you knew what you were doing.

To act “maliciously” means to intentionally commit a wrongful act or acts with the unlawful intent while wishing to vex, defraud, annoy, or injure another person.

Note that an accused can still be convicted of arson, per Penal Code 452, even if he does not act willfully and maliciously. This code section applies to “reckless” burning. It says it is a crime for a person to recklessly set fire to or burn any structure, forest land, or property. “Recklessly” is a lower standard than willfully and maliciously. A person acts “recklessly” if:

  • he is aware that his actions could present a substantial and unjustifiable risk of causing a fire,
  • he ignores that risk, and
  • doing so is a gross deviation from how a reasonable person would act in the same situation.

It is important to note that acting “recklessly” is not equivalent to acting carelessly or negligently. Thus, accidents do happen, and that's okay as that doesn't make a person guilty of arson for reckless burning. But behaving with a complete disregard for safety may constitute recklessness.

  • To set fire to or burn

To set fire to or burn by means of fire is to damage or destroy with fire either all or part of something, no matter how small the part. The simple charring of wood is sufficient evidence of a “fire or burn.” Whether it is an entire building or a small door in the building, anything that is set on fire counts as being destroyed by fire.

  • Structure, Forest Land, Property

A “structure” is any building, commercial or public, as well as tents, bridges, tunnels, or power plants. Arson fire damage to fixtures within a building may fall into the category of a “structure” if the fixtures are an integral part of the building.
“Forest Land” means any brush-covered land, cut-over land, forest land, grasslands, or woods. 

“Property” can either be real property or personal property that is not a structure or forest land, such as furniture, cars, boats, clothing and even trash.

Note that arson of property does not include a person burning his own personal property. This is unless the burning was done with an intent to defraud, or someone was injured in the building.

  • Registration as a Convicted California Arson Offender

In addition to the corresponding penalties, anyone who is convicted of

  • Malicious arson or attempted malicious arson,
  • Aggravated arson resulting in a minimum ten-year prison sentence,
  • Possessing, manufacturing, or disposing of any flammable/combustible material or of any incendiary device in connection with the arson charge

in the state of California will be required to register as a California convicted arson offender.

Thus, similar to an individual registered as a sex offender, the convicted arsonist must routinely update their local law enforcement agency regarding to their whereabouts.

Since November 30, 1994, those who are convicted as adults will be registered for life. However, the duration for registration may also depend on the age of the arsonist at the time of the conviction as well as the date of the conviction.

There are separate misdemeanor offenses of an arsonist failing to properly register that may lead to a jail sentence of over 90 days and up to 1 year.

  • Cases of Arson Provoked by Fireworks

Even though the letter of the law requires a “malicious” act in order to constitute arson, as per usual, there is a long history of case law coming down to us from our California appellate courts where they simply IGNORE the requirement of that one act “maliciously.” This means that you can be liable for a fire caused by a firework during the 4th of July and can be prosecuted for felony arson, given a strike, and made to register for life even if you didn't mean to start a fire. In fact, this law can be used against you if you merely charr your friend's driveway, dirt field, or a public roadway while safely lighting off celebratory fireworks this year.

Let's look at some California appellate court cases which can and will be used against you in a court of law:

  • In re V.V (2011) 51 Cal.4th 1020

In this 2010 case, two minors set off a firecracker on a brush-covered hillside in Pasadena, causing a fire that burned five acres of forest land. The juvenile court determined that V.V. and J.H. had committed arson. The court found that, although they did not intend to set the hillside on fire, the evidence satisfied the mental state required for arson.

On an appeal the Supreme Court of California reaffirmed that acts of intentionally igniting and throwing a firecracker amidst dry brush on a hillside, although done without intent to cause a fire or other harm, were sufficient to establish the requisite malice for arson.

In other words, even acknowledging that the two minors didn't intend to cause a fire or harm, the court judged the fire was maliciously caused. 

  • Mason v. Superior Court (The People) (2015) 242 Cal.App.4th 773

In this case Byron Craig Mason, in 2012 lit a large firework and threw it in a swimming hole surrounded by cliffs, forest, and grassland. The firework was an illegal device designed to shoot flares into the air. It floated briefly, then exploded, shooting sparks into the air, one of which landed in dry brush 27 feet above the hole, causing a fire that burned 2,650 acres of grassland and forest. 

He was indicted by a grand jury charging him with arson of an inhabited structure and arson that causes great bodily injury.

Byron appealed and tried to argue that arson requires an intent to burn a property, that when he set off the firework he was on an outing with his wife and children to a swimming hole, into which the firework was thrown and did not intend to cause a forest and grassland fire. He claims that his conduct amounted at most to the lesser offense of unlawfully causing a fire. In other words, he argued that he was guilty of recklessly causing a fire under Penal code section 452, which is not a strike and which does not require lifetime registration, not maliciously starting a fire under Penal code section 451, which is a strike and does require lifetime registration.

The Court of Appeal for the Third District of California decided that there was probable cause to believe that the natural and highly probable consequence of the act of igniting and throwing a large, unlawful, aerial firework into the swimming hole in the middle of a forest and grassland in extreme fire conditions would be the burning of the forest land.

  • People v. Padilla (Oct. 6, 2020, B302649) ___ Cal.App.2d ___

On October 1, 2018, Bernstein Yao left his apartment at the Hacienda Gardens in Rowland Heights to buy whiskey for a party he was hosting. Yao saw Frank Padilla and another man standing by a dumpster in the carport, which was separated from the apartment building by a driveway. As he walked past Frank Padilla, Yao saw defendant throw lit firecrackers near the dumpster “many times.”

Yao drove to a nearby store. When he returned a few minutes later, Padilla and the other man were still in the carport. Defendant threw three to five more firecrackers near the dumpster. Yao returned to his apartment and, about 20 minutes later, saw that a fire had erupted in the carport where he had observed defendant throwing the firecrackers.

Frank Padilla was charged with one count of arson of the property of another and five counts of vandalism causing over $400 in damage. Frank was convicted, and his appeal was denied even though he argued that the mental state required for arson was not present.

While it is good that we have protection against people who cause fires, both intentionally and recklessly, the laws should not be so broad that behavior that most would consider lawful is also included. Here, the law for 451 malicious arson would include anyone who singes, blackens, or chars someone else's property. This means that if you are at someone else's house for Fourth of July, you'd better let them light the fireworks, and make sure it's on their own property because, due to Appellate court who almost always seem to do whatever they can to expand the definition of criminal behavior. Otherwise, if you safely light fireworks which ends singes, blackens, or chars someone else's property, this can include gravel, dirt, cement, asphalt, green grass, etc. you could be charged in a court of law with a felony strike. If you don't believe me, look up the law for yourself. Here's the jury instruction:

About the Author

Joseph Tully

Founding Partner, Criminal Law Specialist Our founding attorney, Joseph Tully, is sought out for his expert legal advice throughout California. With over 20 years of experience as a criminal lawyer, in 1000+ felony and other cases, Tully served as felony trial counsel as a public defender before...