Existing law, until January 1, 2024, defines the offense of aggravated arson, and defines the aggravating factors for the offense as, the person has been previously convicted of arson on one or more occasions within the past 10 years, the fire caused property damage and other losses in excess of $8,300,000, or the fire caused damage to, or the destruction of, 5 or more inhabited structures. Existing law, commencing January 1, 2024, deletes the aggravating factor of property damage and other losses in excess of $8,300,000 from the definition of aggravated arson.

This bill would increase the dollar amount of property damages and other losses required to be an aggravating factor to $10,100,000, exclusive of damage to, or destruction of, inhabited dwellings. The bill would extend the operation of the former aggravated arson offense until January 1, 2029. The bill would delay operation of the latter aggravated arson offense that deletes the threshold dollar amount of property damages and other losses as an aggravating factor until January 1, 2029. By extending the operation of law defining a crime, this bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Existing law, until January 1, 2024, defines the offense of aggravated arson, and defines the aggravating factors for the offense as, the person has been previously convicted of arson on one or more occasions within the past 10 years, the fire caused property damage and other losses in excess of $8,300,000, or the fire caused damage to, or the destruction of, 5 or more inhabited structures. Existing law, commencing January 1, 2024, deletes the aggravating factor of property damage and other losses in excess of $8,300,000 from the definition of aggravated arson.

This bill would increase the dollar amount of property damages and other losses required to be an aggravating factor to $10,100,000, exclusive of damage to, or destruction of, inhabited dwellings. The bill would extend the operation of the former aggravated arson offense until January 1, 2029. The bill would delay operation of the latter aggravated arson offense that deletes the threshold dollar amount of property damages and other losses as an aggravating factor until January 1, 2029. By extending the operation of law defining a crime, this bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Existing law, until January 1, 2024, defines the offense of aggravated arson, and defines the aggravating factors for the offense as, the person has been previously convicted of arson on one or more occasions within the past 10 years, the fire caused property damage and other losses in excess of $8,300,000, or the fire caused damage to, or the destruction of, 5 or more inhabited structures. Existing law, commencing January 1, 2024, deletes the aggravating factor of property damage and other losses in excess of $8,300,000 from the definition of aggravated arson.

This bill would increase the dollar amount of property damages and other losses required to be an aggravating factor to $10,000,000. $10,100,000, exclusive of damage to, or destruction of, inhabited dwellings. The bill would extend the operation of the former aggravated arson offense until January 1, 2029. The bill would delay operation of the latter aggravated arson offense that deletes the threshold dollar amount of property damages and other losses as an aggravating factor until January 1, 2029. By extending the operation of law defining a crime, this bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Existing law, until January 1, 2024, defines the offense of aggravated arson, and defines the aggravating factors for the offense as, the person has been previously convicted of arson on one or more occasions within the past 10 years, the fire caused property damage and other losses in excess of $8,300,000, or the fire caused damage to, or the destruction of, 5 or more inhabited structures. Existing law, commencing January 1, 2024, deletes the aggravating factor of property damage and other losses in excess of $8,300,000 from the definition of aggravated arson.

This bill would increase the dollar amount of property damages and other losses required to be an aggravating factor to $10,000,000. The bill would extend the operation of the former aggravated arson offense until January 1, 2029. The bill would delay operation of the latter aggravated arson offense that deletes the threshold dollar amount of property damages or and other losses as an aggravating factor until January 1, 2029. By extending the operation of law defining a crime, this bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Existing law, until January 1, 2024, defines the offense of aggravated arson, and defines the aggravating factors for the offense as, the person has been previously convicted of arson on one or more occasions within the past 10 years, the fire caused property damage and other losses in excess of $8,300,000, or the fire caused damage to, or the destruction of, 5 or more inhabited structures. Existing law, commencing January 1, 2024, deletes the aggravating factor of property damage and other losses in excess of $8,300,000 from the definition of aggravated arson.

This bill would extend the operation of the former aggravated arson offense until January 1, 2029. The bill would delay operation of the latter aggravated arson offense that deletes the threshold dollar amount of property damages or losses as an aggravating factor until January 1, 2029. By extending the operation of law defining a crime, this bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

 UNFINISHED BUSINESS  

Bill No: SB 281

Author: McGuire (D) and Stern (D), et al.

Amended: 6/29/23

Vote: 21

SENATE PUBLIC SAFETY COMMITTEE: 5-0, 3/21/23

AYES: Wahab, Ochoa Bogh, Bradford, Skinner, Wiener

SENATE APPROPRIATIONS COMMITTEE: 7-0, 5/18/23

AYES: Portantino, Jones, Ashby, Bradford, Seyarto, Wahab, Wiener

SENATE FLOOR: 40-0, 5/30/23

AYES: Allen, Alvarado-Gil, Archuleta, Ashby, Atkins, Becker, Blakespear, Bradford, Caballero, Cortese, Dahle, Dodd, Durazo, Eggman, Glazer, Gonzalez, Grove, Hurtado, Jones, Laird, Limón, McGuire, Menjivar, Min, Newman, Nguyen, Niello, Ochoa Bogh, Padilla, Portantino, Roth, Rubio, Seyarto, Skinner, Smallwood-Cuevas, Stern, Umberg, Wahab, Wiener, Wilk

ASSEMBLY FLOOR: 66-1, 9/12/23 (Roll call vote not available)

ASSEMBLY FLOOR: 80-0, 9/12/23 - See last page for vote

SUBJECT: Crimes: aggravated arson

SOURCE: Author

DIGEST:

This bill increases the threshold property damage and losses amount for aggravated arson from $8,300,000 to $10,100,000, and extends the operation on the aggravated arson offense factor until January 1, 2029.

Assembly Amendments

increase the threshold property damage and losses amount from $10,000,000 to $10,100,000, and specifies that this amount is exclusive of damage to, or destruction of, inhabited dwellings.

ANALYSIS:

Existing law:

1. States that a person who willfully, maliciously, deliberately, with premeditation, and with intent to cause injury to one or more persons, or to cause damage to property under circumstances likely to produce injury to one or more persons, or to cause damage to one or more structures or inhabited dwellings, sets fire to, burns, or causes to be burned, or aids, counsels, or procures the burning of any residence, structure, forest land, or property, is guilty of aggravated arson if one or more of the following aggravating factors exists:
   1. The defendant has been previously convicted of arson on one or more occasions within the past 10 years.
   2. The fire caused property damage and other losses in excess $8,300,000.
   3. The fire caused damage, or the destruction of, five or more inhabited structures. (Pen. Code, § 451.5, subd. (a).)
2. Provides that the courts shall consider the cost of fire suppression in calculating the total amount of property damage and other losses. (Pen. Code, § 451.5, subd. (a)(2)(B).)
3. States that it is the Legislature’s intent to review the monetary threshold amount within five years to consider the effects of inflation. (Pen. Code, § 451.5, subd. (a)(2)(B).)
4. States that a person who is convicted under the aggravating arson factors shall be punished by imprisonment in the state prison for 10 years to life. (Pen. Code, § 451.5, subd. (b).)
5. States that a person who is sentenced under the aggravating arson factors shall not be eligible for release on parole until 10 calendar years have elapsed. (Pen. Code, § 451.5, subd. (c).)
6. Provides that the monetary threshold factor shall remain in effect only until January 1, 2024, and as of that date is repealed. (Pen. Code, § 451.5, subd. (d).)
7. States that the deletion of the threshold of property damage and other losses shall become operative on January 1, 2024. (Pen. Code, § 451.5, subd. (d).)

This bill:

1. Increases the threshold amount for property damage and losses to qualify for aggravated arson from $8,300,000 to $10,100,000, exclusive of damage to, or destruction of, inhabited dwellings.
2. Changes the term “inhabited structures” to “inhabited dwellings” for purposes of aggravated arson.
3. Extends the operation of the aggravating arson offense requiring a specified threshold amount of property damages and losses until January 1, 2029.

Background

At the time of the aggravated arson offense’s implementation in 1995, the total monetary amount of property damage and other losses was set at $5 million. The original statute, Penal Code § 451.5, provided that: 

It is the intent of the Legislature that this paragraph be reviewed within five years to consider the effects of inflation on the dollar amount stated herein.  For that reason, this paragraph shall remain in effect only until January 1, 1999, and as of that date is repealed, unless a later enacted statute, which is enacted before January 1, 1999, deletes or extends that date.  

Because of this, the cost of inflation is to be considered by the Legislature within five years when extending the sunset on the statute and/or making changes to the monetary threshold. The statute’s sunset and monetary threshold has increased four times since 1995. The most recent sunset extension saw the threshold increase in 2014 from $7 million to $8.3 million in 2018 to account for inflation.

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: Yes

According to the Assembly Appropriations Committee, incarceration costs (General Fund) of an unknown but significant amount to the California Department of Corrections and Rehabilitation (CDCR). Standard arson is punishable by 16 months to nine years in state prison. Aggravated arson is punishable by 10 years to life in state prison. A person convicted of aggravated arson is not eligible for parole until they have served 10 years in prison, and will be kept in prison until they are found suitable for parole. The average annual cost to incarcerate one person in CDCR is approximately $106,000. If this bill results in additional convictions for aggravated arson instead of standard arson, each conviction will result in significant incarceration costs to CDCR. Actual costs will depend on the number of qualifying offenses, the number of aggravated arson convictions, and the length of each inmate’s incarceration for aggravated arson before they are paroled.

SUPPORT: (Verified 9/11/23)

Cal Fire Local 2881

California District Attorneys Association

California State Sheriffs’ Association

Lake County District Attorney’s Office

Lake County Sheriff's Office

National Insurance Crime Bureau

Peace Officers Research Association of California

Sonoma County Board of Supervisors

Sonoma County District Attorney

OPPOSITION: (Verified 9/11/23)

None received

ASSEMBLY FLOOR: 80-0, 9/12/23

AYES: Addis, Aguiar-Curry, Alanis, Alvarez, Arambula, Bains, Bauer-Kahan, Bennett, Berman, Boerner, Bonta, Bryan, Calderon, Juan Carrillo, Wendy Carrillo, Cervantes, Chen, Connolly, Megan Dahle, Davies, Dixon, Essayli, Flora, Mike Fong, Vince Fong, Friedman, Gabriel, Gallagher, Garcia, Gipson, Grayson, Haney, Hart, Holden, Hoover, Irwin, Jackson, Jones-Sawyer, Kalra, Lackey, Lee, Low, Lowenthal, Maienschein, Mathis, McCarty, McKinnor, Muratsuchi, Stephanie Nguyen, Ortega, Pacheco, Papan, Jim Patterson, Joe Patterson, Pellerin, Petrie-Norris, Quirk-Silva, Ramos, Rendon, Reyes, Luz Rivas, Rodriguez, Blanca Rubio, Sanchez, Santiago, Schiavo, Soria, Ta, Ting, Valencia, Villapudua, Waldron, Wallis, Ward, Weber, Wicks, Wilson, Wood, Zbur, Robert Rivas

Prepared by: Stella Choe / PUB. S. /

9/12/23 19:43:11

**** END ****

SENATE THIRD READING

STR Bill Id:SB 281

Author:(McGuire and Stern)

As Amended Ver:June 29, 2023

Majority vote

SUMMARY

Increases the threshold property damage amount for aggravated arson from $8.3 million to $10.1 million.

Major Provisions

1. Increases the threshold property damage amount for aggravated arson from $8.3 million to $10.1 million .
2. Excludes inhabited dwellings from calculation of the threshold amount.
3. Extends the operation of this particular aggravating factor from January 1, 2024 to January 1, 2029.

COMMENTS

According to the Author

"The alarm couldn't be louder. Our state is facing unprecedented, destructive wildfires - 14 of the largest 20 wildfires in California history have occurred just in the last decade. Megafires have threatened the way of life for millions of Californians. Some of these horribly destructive wildfires have been set by arsonists. Such as:

"The Clayton Fire in Lake County in 2016 burned tens of thousands of acres near Lower Lake and destroyed 300 structures, including 189 homes.

"The massive five-alarm fire that destroyed a Home Depot in San Jose, causing more than $17 million in damages.

"The July 2021 fire set by a Clearlake Oaks resident in Lake County that destroyed or damaged 11 buildings.

"The Hopkins Fire in Mendocino County that destroyed 30 homes and burned 257 acres.

"SB 281 will ensure law enforcement maintain a valuable deterrent and a necessary penalty to arson-caused fires."

Arguments in Support

According to CalFire Local 2881, "In 2022 there were more than 150 arson arrests made in the state according to Cal Fire. These crimes are deliberately dangerous to our communities and costly to our budget.

"SB 281 would increase the dollar amount of property damages and other losses required to be an aggravating factor to $10,000,000. The bill would extend the operation of the former aggravated arson offense until January 1, 2029.

"This bill is needed to hold arsonists accountable for their crimes. These are egregious and untenable actions. Extending the operation of the former aggravated arson offense until January 1, 2029, will do just that."

Arguments in Opposition

None on file.

FISCAL COMMENTS

According to the Assembly Appropriations Committee, Incarceration costs (General Fund) of an unknown but significant amount to the California Department of Corrections and Rehabilitation (CDCR). Standard arson is punishable by 16 months to nine years in state prison. Aggravated arson is punishable by 10 years to life in state prison. A person convicted of aggravated arson is not eligible for parole until they have served 10 years in prison, and will be kept in prison until they are found suitable for parole. The average annual cost to incarcerate one person in CDCR is approximately $106,000. If this bill results in additional convictions for aggravated arson instead of standard arson, each conviction will result in significant incarceration costs to CDCR. Actual costs will depend on the number of qualifying offenses, the number of aggravated arson convictions, and the length of each inmate's incarceration for aggravated arson before they are paroled.

VOTES

SENATE FLOOR: 40-0-0

YES: Allen, Alvarado-Gil, Archuleta, Ashby, Atkins, Becker, Blakespear, Bradford, Caballero, Cortese, Dahle, Dodd, Durazo, Eggman, Glazer, Gonzalez, Grove, Hurtado, Jones, Laird, Limón, McGuire, Menjivar, Min, Newman, Nguyen, Niello, Ochoa Bogh, Padilla, Portantino, Roth, Rubio, Seyarto, Skinner, Smallwood-Cuevas, Stern, Umberg, Wahab, Wiener, Wilk

ASM PUBLIC SAFETY: 8-0-0

YES: Jones-Sawyer, Alanis, Bonta, Bryan, Lackey, Ortega, Santiago, Jackson

ASM APPROPRIATIONS: 16-0-0

YES: Holden, Megan Dahle, Bryan, Calderon, Wendy Carrillo, Dixon, Mike Fong, Hart, Lowenthal, Mathis, Papan, Pellerin, Sanchez, Soria, Weber, Wilson

UPDATED

VERSION: June 29, 2023

CONSULTANT: Sandy Uribe / PUB. S. / (916) 319-3744 FN: 0001494

Date of Hearing: August 16, 2023

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Chris Holden, Chair

SBPCA Bill Id:SB 281

Author:(McGuire) – As Amended Ver:June 29, 2023

Urgency: No State Mandated Local Program: Yes Reimbursable: No

SUMMARY:

This bill increases the dollar amount of property damage that must be caused for an incident of arson to qualify as aggravated arson.

Specifically, this bill:

1. Increases the dollar amount of property damage that qualifies as aggravated arson from $8.3 million to $10.1 million.
2. Excludes damage to inhabited dwellings from calculation of the property damage dollar amount.
3. Extends the sunset for the property damage dollar amount factor to January 1, 2029.

FISCAL EFFECT:

Incarceration costs (General Fund) of an unknown but significant amount to the California Department of Corrections and Rehabilitation (CDCR). Standard arson is punishable by 16 months to nine years in state prison. Aggravated arson is punishable by 10 years to life in state prison. A person convicted of aggravated arson is not eligible for parole until they have served 10 years in prison, and will be kept in prison until they are found suitable for parole. The average annual cost to incarcerate one person in CDCR is approximately $106,000. If this bill results in additional convictions for aggravated arson instead of standard arson, each conviction will result in significant incarceration costs to CDCR. Actual costs will depend on the number of qualifying offenses, the number of aggravated arson convictions, and the length of each inmate’s incarceration for aggravated arson before they are paroled.

COMMENTS:

1. Purpose. According to the author:

Our state is facing unprecedented, destructive wildfires - 14 of the largest 20 wildfires in California history have occurred just in the last decade. Megafires have threatened the way of life for millions of Californians. Some of these horribly destructive wildfires have been set by arsonists…SB 281 will ensure law enforcement maintain a valuable deterrent and a necessary penalty to arson-caused fires.

1. Background.

Aggravated Arson. A defendant who commits arson may be convicted of aggravated arson if one or more aggravating factors are present. Under existing law, the aggravating factors are:

• 1. The defendant has been previously convicted of arson on one or more occasions within the past 10 years.
  2. The fire caused property damage and other losses in excess of $8.3 million.
  3. The fire caused damage, or the destruction of, five or more inhabited structures.

The property damage dollar amount factor will sunset on January 1, 2024. This bill extends the sunset for this aggravating factor to January 1, 2029, increases the property damage dollar amount from $8.3 million to $10.1 million, and excludes damage to inhabited dwellings from calculation of the dollar amount. This reflects previously stated legislative intent to revisit the property damage dollar amount periodically to adjust it for inflation.

Supporters argue this bill is needed to hold offenders accountable for aggravated arson. According to Cal Fire, arrests for arson have increased significantly in recent years, from 73 arrests in 2016 to 163 arrests in 2022. However, CDCR data shows that only five people were admitted to state prison between 2013 and 2022 for aggravated arson convictions. To the extent this bill results in additional convictions for aggravated arson, it will result in increased incarceration costs, as described above.

Deterrence. Studies have shown that in most circumstances, lengthy criminal sentences do not effectively deter crime. According to the Committee on Revision of the Penal Code, a “major analysis of more than 100 studies concluded that it was a ‘criminological fact’ that incarceration is no better at reducing reoffending than noncustodial sanctions such as probation.” (Committee on Revision of the Penal Code, “Annual Report and Recommendations,” 2021.) In light of the growing cost of incarceration and its limited utility in deterring crime, both the Little Hoover Commission and the Committee on Revision of the Penal Code have encouraged sentencing reform in California, which includes limiting sentencing enhancements. Additionally, in 2014, the Little Hoover Commission highlighted several evidence-based approaches to reducing crime, including programs and treatment that address underlying factors that can contribute to crime, such as poverty, homeless, mental health issues, and substance and alcohol abuse disorders. Research has shown that, unlike lengthy prison terms, these approaches have improved public safety outcomes.

1. Prior Legislation. SB 896 (McGuire), Chapter 619, Statutes of 2018, increased the dollar amount of property damage that qualifies as aggravated arson from $7 million to $8.3 million and extended the sunset for that aggravated arson factor until January 1, 2024.

Analysis Prepared by: Annika Carlson / APPR. / (916) 319-2081

Date of Hearing: June 27, 2023

Chief Counsel: Sandy Uribe

ASSEMBLY COMMITTEE ON PUBLIC SAFETY

Reginald Byron Jones-Sawyer, Sr., Chair

SBPCA Bill Id:SB 281

Author:(McGuire) – As Amended Ver:May 18, 2023

As Proposed to be Amended in Committee

SUMMARY: Increases the threshold property damage amount for aggravated arson from $8,300,000 to $10,100,000. Specifically, this bill:

1. Increases the threshold property damage amount for aggravated arson from $8,300,000 to $10,100,000.
   
2. Excludes inhabited dwellings from calculation of the threshold amount.
   
3. Extends the operation of this particular aggravating factor from January 1, 2024 to January 1, 2029.

EXISTING LAW:

1. States that a person who willfully, maliciously, deliberately, with premeditation, and with intent to cause injury to one or more persons, or to cause damage to property under circumstances likely to produce injury to one or more persons, or to cause damage to one or more structures or inhabited dwellings, sets fire to, burns, or causes to be burned, or aids, counsels, or procures the burning of any residence, structure, forest land, or property, is guilty of aggravated arson if one or more of the following aggravating factors exists:
   1. The defendant has been previously convicted of arson on one or more occasions within the past 10 years;
   2. The fire caused property damage and other losses in excess of $8,300,000; or,
   3. The fire caused damage, or the destruction of, five or more inhabited structures. (Pen. Code, § 451.5, subd. (a).)
2. Provides that the courts shall consider the cost of fire suppression in calculating the total amount of property damage and other losses. (Pen. Code, § 451.5, subd. (a)(2)(B).)
3. States the legislature’s intent to review the monetary threshold amount within five years to consider the effects of inflation. (Pen. Code, § 451.5, subd. (a)(2)(B).)
   
4. Punishes a person who is convicted of aggravated arson by imprisonment in the state prison for 10 years to life. (Pen. Code, § 451.5, subd. (b).)
   
5. States that a person who is sentenced under the aggravating arson factors shall not be eligible for release on parole until 10 calendar years have elapsed. (Pen. Code, § 451.5, subd. (c).)
   
6. Repeals the monetary threshold factor on January 1, 2024. (Pen. Code, § 451.5, subd. (d).)
   

FISCAL EFFECT: Unknown

COMMENTS:

1. Author's Statement: According to the author, “The alarm couldn't be louder. Our state is facing unprecedented, destructive wildfires - 14 of the largest 20 wildfires in California history have occurred just in the last decade. Megafires have threatened the way of life for millions of Californians. Some of these horribly destructive wildfires have been set by arsonists. Such as:
   
   “The Clayton Fire in Lake County in 2016 burned tens of thousands of acres near Lower Lake and destroyed 300 structures, including 189 homes.
   
   “The massive five-alarm fire that destroyed a Home Depot in San Jose, causing more than $17 million in damages.
   

“The July 2021 fire set by a Clearlake Oaks resident in Lake County that destroyed or damaged 11 buildings.

“The Hopkins Fire in Mendocino County that destroyed 30 homes and burned 257 acres.

“SB 281 will ensure law enforcement maintain a valuable deterrent and a necessary penalty to arson-caused fires.”

1. Aggravated Arson Monetary Threshold: The aggravated arson statute, Penal Code section 451.5, became effective in 1995 through enactment of SB 1309 (Craven), Chapter 421, Statutes of 1994. The original statute contained a five-year sunset provision which stated that the purpose of the provision was to allow the Legislature to consider the effects of inflation on the property damage/losses threshold in the law. At the time of the aggravated arson offense’s implementation in 1995, the total monetary amount of property damage and other losses was set at $5 million.
   
   Because of this, the cost of inflation is to be considered by the legislature within five years when extending the sunset on the statute and/or making changes to the monetary threshold. The statute’s sunset and monetary threshold has increased several times since 1995. The most recent sunset extension saw the threshold increase in 2014 from $7 million to $8.3 million in 2018 to account for inflation. According to the U.S. Bureau of Labor Statistics, $5 million in 1994 equates to roughly $10.1 million in 2023. (See CPI Inflation Calculator, https://www.bls.gov/data/inflation_calculator.htm)
   
   This bill raises the dollar limits required to trigger the statute to account for inflation from $8.3 million to $10.1 million. Additionally, the bill establishes a sunset date of January 1, 2029 for this excessive damage factor.
   
   It should be noted that the sunset date does not apply to the crime of aggravated arson generally; it only applies to the excessive damages/losses factor. If this bill were not enacted, effective January 1, 2024, a person could still be found guilty of aggravated arson based on the other two factors, namely that the defendant had suffered a prior conviction for arson within the past 10 years or that the current offense caused damage to five or more inhabited dwellings.
   
2. Research on the Deterrent Effect and Impact on State Prisons: The author contends the excessive damage factor for aggravated arson is an important law enforcement tool in the fight against arson. The punishment for aggravated arson is 10 years to life in state prison. A person sentenced under the statute is not eligible for parole until 10 calendar years have passed. (Pen. Code, § 451.5, subds. (b) & (c).)
   
   According the U.S. Department of Justice, “Laws and policies designed to deter crime by focusing mainly on increasing the severity of punishment are ineffective partly because criminals know little about the sanctions for specific crimes. More severe punishments do not ‘chasten’ individuals convicted of crimes, and prisons may exacerbate recidivism.” (National Institute of Justice, U.S. Department of Justice, Five Things About Deterrence (June 5, 2016) https://nij.ojp.gov/topics/articles/five-things-about-deterrence)

In a 2014 report, the Little Hoover Commission also addressed the disconnect between science and sentencing – that is, putting away offenders for increasingly longer periods of time, with no evidence that lengthy incarceration, for many, brings any additional public safety benefit. (Little Hoover Commission, Sensible Sentencing for a Safer California (2014) at p. 4 https://lhc.ca.gov/sites/lhc.ca.gov/files/Reports/219/Report219.pdf .) Additionally, the Commission also explained how California’s sentencing structure and enhancements contributed to a 20-year state prison building boom: “California policymakers enacted hundreds of laws increasing sentence length, adding sentence enhancements and creating new sentencing laws. The end result was that every new prison the state built was quickly filled to capacity.” (Id. at p. 9.)

CDCR has informed this committee that from 2013 through 2022 there were the following number of yearly admissions for aggravated arson convictions:

It appears that given the few number of admissions to prison for aggravated arson, this law does not have much of a deterrent effect.

1. Equity Impact of Existing Law: The provision of law elevating the crime of arson to aggravated arson based on the value of damages and/or costs of fire suppression favors some victims of arson over others, namely wealthy homeowners. For example, a person need only set fire to the house of one person if that house is valued at over $10 million dollars to be charged with aggravated arson, but if the value of the home is less than that, then the offender would have to destroy or damage five or more houses. This has the practical effect of treating fire victims differently, even though loss of one’s home is equally devastating no matter the value, and arguable more so for a less economically advantaged person who might not have sufficient fire insurance.
   
   To address this inequality, as proposed to be amended in committee, this bill would exclude inhabited dwellings from the monetary threshold aggravating factor. Inhabited dwellings would still be considered under the separate subdivision that can elevate an arson to aggravated arson if five or more dwellings are burned.
   
2. Argument in Support: According to CalFire Local 2881, “In 2022 there were more than 150 arson arrests made in the state according to Cal Fire. These crimes are deliberately dangerous to our communities and costly to our budget.
   
   “SB 281 would increase the dollar amount of property damages and other losses required to be an aggravating factor to $10,000,000. The bill would extend the operation of the former aggravated arson offense until January 1, 2029.
   
   “This bill is needed to hold arsonists accountable for their crimes. These are egregious and untenable actions. Extending the operation of the former aggravated arson offense until January 1, 2029, will do just that.”
   
3. Prior Legislation:
   
   1. SB 896 (McGuire), Chapter 619, Statutes of 2018, extended the operation of the aggravated arson offense until January 1, 2024, and increased the threshold of property damage and other losses constituting an aggravating factor for aggravated arson to $8,300,000.
      
   2. SB 930 (Berryhill), Chapter 481, Statutes of 2014, extended the sunset on the threshold damage provisions of the aggravated arson statute until January 1, 2019 and increased the threshold amount of property damage to $6.5 million.
      
   3. AB 27 (Jeffries), Chapter 71, Statutes of 2009, extended the sunset on the threshold damage provisions of the aggravated arson statute until January 1, 2014 and increased the threshold amount of property damage to $7 million.
      
   4. AB 1907 (Pacheco), Chapter 135, Statutes of 2004, extended the sunset on the threshold damage provisions of the aggravated arson statute until January 1, 2010 and increased the threshold amount of property damage from $5 million to $5.65 million.
      
   5. SB 555 (Karnette), Chapter 518, Statutes of 1999, reinstated the $5 million damages provision for the crime of aggravated arson and extended the sunset date.
      
   6. SB 1309 (Craven), Chapter 421, Statutes of 1994, enacted the aggravated arson statute.
      

REGISTERED SUPPORT / OPPOSITION:

Support

Cal Fire Local 2881

California District Attorneys Association

California State Sheriffs' Association

Lake County District Attorney's Office

Lake County Sheriff's Office

National Insurance Crime Bureau

Peace Officers Research Association of California (PORAC)

Sonoma County Board of Supervisors

Sonoma County District Attorney

Opposition

None submitted.

Analysis Prepared by: Sandy Uribe / PUB. S. / (916) 319-3744

 THIRD READING  

Bill No: SB 281

Author: McGuire (D) and Stern (D), et al.

Amended: 5/18/23

Vote: 21

SENATE PUBLIC SAFETY COMMITTEE: 5-0, 3/21/23

AYES: Wahab, Ochoa Bogh, Bradford, Skinner, Wiener

SENATE APPROPRIATIONS COMMITTEE: 7-0, 5/18/23

AYES: Portantino, Jones, Ashby, Bradford, Seyarto, Wahab, Wiener

SUBJECT: Crimes: aggravated arson

SOURCE: Author

DIGEST:

This bill increases the threshold property damage and losses amount for aggravated arson from $8,300,000 to $10,000,000 and extends the operation on the aggravated arson offense factor until January 1, 2029.

ANALYSIS:

Existing law:

1. States that a person who willfully, maliciously, deliberately, with premeditation, and with intent to cause injury to one or more persons, or to cause damage to property under circumstances likely to produce injury to one or more persons, or to cause damage to one or more structures or inhabited dwellings, sets fire to, burns, or causes to be burned, or aids, counsels, or procures the burning of any residence, structure, forest land, or property, is guilty of aggravated arson if one or more of the following aggravating factors exists:
   1. The defendant has been previously convicted of arson on one or more occasions within the past 10 years.
   2. The fire caused property damage and other losses in excess of eight million three hundred thousand dollars ($8,300,000).
   3. The fire caused damage, or the destruction of, five or more inhabited structures. (Pen. Code, § 451.5, subd. (a).)
2. Provides that the courts shall consider the cost of fire suppression in calculating the total amount of property damage and other losses. (Pen. Code, § 451.5, subd. (a)(2)(B).)
3. States that it is the legislature’s intent to review the monetary threshold amount within five years to consider the effects of inflation. (Pen. Code, § 451.5, subd. (a)(2)(B).)
4. States that a person who is convicted under the aggravating arson factors shall be punished by imprisonment in the state prison for 10 years to life. (Pen. Code, § 451.5, subd. (b).)
5. States that a person who is sentenced under the aggravating arson factors shall not be eligible for release on parole until 10 calendar years have elapsed. (Pen. Code, § 451.5, subd. (c).)
6. Providing the monetary threshold factor shall remain in effect only until January 1, 2024, and as of that date is repealed. (Pen. Code, § 451.5, subd. (d).)
7. States that the deletion of the threshold of property damage and other losses shall become operative on January 1, 2024. (Pen. Code, § 451.5, subd. (d).)

This bill:

1. Increases the threshold amount for property damage and losses to qualify for aggravated arson from $8,300,000 to $10,000,000.
2. Extends the operation of the aggravating arson offense requiring a specified threshold amount of property damages and losses until January 1, 2029.

Background

At the time of the aggravated arson offense’s implementation in 1995, the total monetary amount of property damage and other losses was set at $5 million. The original statute, Penal Code § 451.5, provided that: 

It is the intent of the Legislature that this paragraph be reviewed within five years to consider the effects of inflation on the dollar amount stated herein.  For that reason, this paragraph shall remain in effect only until January 1, 1999, and as of that date is repealed, unless a later enacted statute, which is enacted before January 1, 1999, deletes or extends that date.  

Because of this, the cost of inflation is to be considered by the legislature within five years when extending the sunset on the statute and/or making changes to the monetary threshold. The statute’s sunset and monetary threshold has increased four times since 1995. The most recent sunset extension saw the threshold increase in 2014 from $7 million to $8.3 million in 2018 to account for inflation.

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: Yes

According to the Senate Appropriations Committee, unknown, substantial increase in costs to the Department of Corrections and Rehabilitation (CDCR) for longer commitments to state prison for persons found guilty of committing aggravated arson, as opposed to a standard arson offense (General Fund).

SUPPORT: (Verified 5/18/23)

California District Attorneys Association

California State Sheriffs’ Association

Cal Fire Local 2881

Lake County District Attorney’s Office

Lake County Sheriff's Office

National Insurance Crime Bureau

Sonoma County Board of Supervisors

Sonoma County District Attorney

OPPOSITION: (Verified 5/18/23)

None received

Prepared by: Stella Choe / PUB. S. /

5/23/23 12:00:13

**** END ****

SENATE COMMITTEE ON

Senator Anthony Portantino, Chair

2023 - 2024 Regular Session

SB 281 (McGuire) - Crimes: aggravated arson

Bill Summary:

SB 281 extends until January 1, 2029, the operation of a provision of law that makes property damage and losses in excess of $8,300,000 an aggravating factor in an arson offense.

*********** ANALYSIS ADDENDUM – SUSPENSE FILE ***********

The following information is revised to reflect amendments

adopted by the committee on May 18, 2023

Fiscal Impact:

Unknown, substantial increase in costs to the Department of Corrections and Rehabilitation (CDCR) for longer commitments to state prison for persons found guilty of committing aggravated arson, as opposed to a standard arson offense (General Fund).

Committee Amendments:

Increase the threshold amount for the aggravating factor to apply to $10,000,000.

-- END --

SENATE COMMITTEE ON APPROPRIATIONS

Senator Anthony Portantino, Chair

2023 - 2024 Regular Session

SB 281 (McGuire) - Crimes: aggravated arson

Bill Summary:

SB 281 extends until January 1, 2029, the operation of a provision of law that makes property damage and losses in excess of $8,300,000 an aggravating factor in an arson offense.

Fiscal Impact:

Unknown, substantial increase in costs to the Department of Corrections and Rehabilitation (CDCR) for longer commitments to state prison for persons found guilty of committing aggravated arson, as opposed to a standard arson offense (General Fund). See Staff Comments for additional details.

Background:

Since 1995, California has recognized the offense of aggravated arson in addition to “standard” arson. Standard arson can be punished by a variety of terms, depending on whether the arson caused great bodily injury, burned an inhabited building or structure, burned forest land, or simply burned property. The least serious standard arson offenses are punishable by 16 months, two, or three years in state prison. The most serious standard arson offenses are punished by five, seven, or nine years in state prison.

Aggravated arson requires a showing that the defendant intended to cause injury or intended to damage property under circumstances likely to produce injury, and on a showing of one or more of the following factors:

• The defendant has been previously convicted of arson on one or more occasions within the past 10 years;
• The fire caused property damage and other losses in excess of $8,300,000; or,
• The fire caused damage to, or the destruction of, five or more inhabited structures.

A person who is found guilty of aggravated arson is subject to a sentence of ten years to life in state prison.

Cal Fire Law Enforcement maintains statistics relating to the number of arson arrests from 2016 to 2022 . The arson chart provided by Cal Fire displays that arson has significantly increased during these years, with 73 arrests in 2016 to 163 arrests in 2022, or about a 222% increase. Among these arrests, the author has recognized several notable cases that resulted in an aggravated arson charge:

• In April 2022 in San Jose, Dyllin Jaycruz Gogue faced ten felony counts including aggravated arson, arson of an inhabited structure or property, and grand theft, plus three petty theft misdemeanors, for starting a five-alarm fire at a Home Depot, charging documents show.
• In August 2022 in Clearlake Oaks, the defendant faced charges of aggravated arson, arson of an inhabited structure, causing a fire of an inhabited structure, possessing material for arson, and threatening to commit a crime. Causing the destruction or damage of 11 buildings. The defendant are also being charged with being under the influence of a controlled substance and carrying a concealed dirk/dagger in another matter.
• In 2016, Lake County suffered through the Clayton Fire that burned tens of thousands of acres near Lower Lake and destroyed 320 structures, including 188 homes. Clearlake resident Damin Pashilk was arrested and is in jail for igniting the destructive Clayton Fire, which devastated the lives of hundreds of Californians. The estimated cost of the fire was $19,743,079.79 .
• In November 2017, Jeffery Cameron Schmid was sentenced to the maximum penalty for an aggravated arson charge and four other counts of felony arson of forest land. The Minerva Fire, Toll Fire, Squirrel Fire, Rhinehart Meadows Fire, and 89’er Fire encompassed these charges. The Minerva Fire itself burned 4,310 acres and took 163 days to contain; contributing to the third most destructive wildfire season in California.

Proposed Law:

Extends the aggravated arson factor of property damage and losses in excess of $8,300,000 until January 1, 2029.

Related Legislation:

• SB 896 (McGuire, Ch. 619, Stats. 2018) extended the operation of the aggravated arson offense until January 1, 2024, and increased the threshold of property damage and other losses constituting an aggravating factor for aggravated arson to $8,300,000.
• SB 930 (Berryhill, Ch. 96, Stats. 2014) extended the sunset date on the aggravated arson offense to January 1, 2019 and increased the threshold amount of required property damage from $6.5 million to $7 million.
• AB 27 (Jeffries, Ch. 71, Stats. 2009) extended the sunset date on the aggravated arson offense to January 1, 2014 and increased the threshold amount of required property damage from $5.65 million to $6.5 million.
• AB 1995 (Jeffries, 2008) would have extended the sunset date on the aggravated arson offense to January 1, 2014 and increased the threshold amount of required property damage from $5.65 million to $6.5 million. AB 1995 was held on the Suspense File of this Committee.
• AB 1907 (Pacheco, Ch. 135, Stats. 2004) extended the sunset date on the aggravated arson offense to January 1, 2010 and increased the threshold amount of required property damage from $5 million to $5.65 million.

Staff Comments:

The fiscal impact of this bill cannot be known with certainty, as the actual impact will depend on a number of factors, including, but not limited to, the frequency of aggravated arson offenses committed in the future, prosecutorial discretion, the criminal history of the defendant, and the factors unique to each case. The proposed 2022-23 per capita cost to house a person in a state prison is $104,079 annually, with an annual marginal rate per inmate of approximately $10,000. As of December 31, 2022 there were 10 people in state prison with an aggravated arson conviction. Although there were no new commitments for aggravated arson in 2022, as noted by the author, Dyllin Gogue is currently facing an aggravated arson charge in Santa Clara Superior Court.

Staff notes that when the aggravated arson offense was initially enacted in 1995, the total amount of property damage and other losses was set at $5 million. Penal Code Section 451.5 then stated, “It is the intent of the Legislature that this paragraph be reviewed within five years to consider the effects of inflation on the dollar amount stated herein. For that reason, this paragraph shall remain in effect only until January 1, 1999, and as of that date is repealed, unless a later enacted statute, which is enacted before January 1, 1999, deletes or extends that date.” Each of the prior iterations of this bill increased the threshold dollar amount, consistent with inflation. For that reason, the author may wish to consider an increase in the threshold amount. According to the United States Bureau of Labor Statistics, $8.3 million in September, 2018 – when SB 896 was signed into law – is equivalent to approximately $9.9 million as of February 2023.

Recommended Amendments:

Increase the threshold amount to $10 million, consistent with prior legislative intent.

-- END --

SENATE COMMITTEE ON PUBLIC SAFETY

Senator Aisha Wahab, Chair

2023 - 2024 Regular

Bill No: SB 281 Hearing Date: March 21, 2023

Subject: Crimes: aggravated arson

HISTORY

Source: Author

Prior Legislation: SB 896 (McGuire), Ch. 619, Stats. 2018

SB 930 (Berryhill), Ch. 96, Stats. 2014

AB 27 (Jeffries), Ch. 71, Stats. 2009

SB 1907 (Pacheco), Ch. 135, Stats. 2004

SB 555 (Karnette), Ch. 518, Stats. 1999

SB 1309 (Craven), Ch. 421, Stats.1994

Support: California District Attorneys Association; California State Sheriffs’ Association; Lake County District Attorney’s Office; Lake County Sheriff's Office; Cal Fire Local 2881; Sonoma County Board of Supervisors; Sonoma County District Attorney

Opposition: None known

PURPOSE

The purpose of this bill is to extend the operation on the aggravated arson offense factor where a fire causes property damage and losses in excess of $8,300,000 until January 1, 2029. This bill also delays the operation of the offense that deletes the threshold dollar amount of property damages and losses as an aggravating factor until January 1, 2029.

Existing law states that a person who willfully, maliciously, deliberately, with premeditation, and with intent to cause injury to one or more persons, or to cause damage to property under circumstances likely to produce injury to one or more persons, or to cause damage to one or more structures or inhabited dwellings, sets fire to, burns, or causes to be burned, or aids, counsels, or procures the burning of any residence, structure, forest land, or property, is guilty of aggravated arson if one or more of the following aggravating factors exists (Pen. Code § 451.5, subd. (a).):

• The defendant has been previously convicted of arson on one or more occasions within the past 10 years.
• The fire caused property damage and other losses in excess of eight million three hundred thousand dollars ($8,300,000).
• The fire caused damage, or the destruction of, five or more inhabited structures. (Pen. Code, § 451.5, subd. (a).)

Existing law provides that the courts shall consider the cost of fire suppression in calculating the total amount of property damage and other losses. (Pen. Code, § 451.5, subd. (a)(2)(B).)

Existing law states that it is the legislature’s intent to review the monetary threshold amount within five years to consider the effects of inflation. (Pen. Code, § 451.5, subd. (a)(2)(B).)

Existing law states that a person who is convicted under the aggravating arson factors shall be punished by imprisonment in the state prison for 10 years to life. (Pen. Code, § 451.5, subd. (b).)

Existing law states that a person who is sentenced under the aggravating arson factors shall not be eligible for release on parole until 10 calendar years have elapsed. (Pen. Code, § 451.5, subd. (c).)

Existing law providing the monetary threshold factor shall remain in effect only until January 1, 2024, and as of that date is repealed. (Pen. Code, § 451.5, subd. (d).)

Existing law states that the deletion of the threshold of property damage and other losses shall become operative on January 1, 2024. (Pen. Code, § 451.5, subd. (d).)

This bill extends the former aggravating arson offenses until January 1, 2029, and delays the operation of the latter aggravating arson offense that deletes the threshold dollar amount of property damage and other losses as an aggravating factor until January 1, 2029.

COMMENTS

1. Need for This Bill

The author states:

The alarm couldn’t be louder. Our state is facing unprecedented, destructive wildfires – 14 of the largest 20 wildfires in California history have occurred just in the last decade. Megafires have threatened the way of life for millions of Californians. Some of these horribly destructive wildfires have been set by arsonists. Such as:

• The Clayton Fire in Lake County in 2016 burned tens of thousands of acres near Lower Lake and destroyed 300 structures, including 189 homes.
• The massive five-alarm fire that destroyed a Home Depot in San Jose, causing more than $17 million in damages.
• The July 2021 fire set by a Clearlake Oaks resident in Lake County that destroyed or damaged 11 buildings.
• The Hopkins Fire in Mendocino County that destroyed 30 homes and burned 257 acres.

SB 281 will ensure law enforcement maintain a valuable deterrent and a necessary penalty to arson-caused fires.

2. Aggravated Arson Monetary Threshold

At the time of the aggravated arson offense’s implementation in 1995, the total monetary amount of property damage and other losses was set at $5 million. The original statute, Penal Code § 451.5, provided that: 

It is the intent of the Legislature that this paragraph be reviewed within five years to consider the effects of inflation on the dollar amount stated herein.  For that reason, this paragraph shall remain in effect only until January 1, 1999, and as of that date is repealed, unless a later enacted statute, which is enacted before January 1, 1999, deletes or extends that date.  

Because of this, the cost of inflation is to be considered by the legislature within five years when extending the sunset on the statute and/or making changes to the monetary threshold. The statute’s sunset and monetary threshold has increased four times since 1995. The most recent sunset extension saw the threshold increase in 2014 from $7 million to $8.3 million in 2018 to account for inflation. 

However, this bill provides no changes to the monetary threshold and maintains the $8.3 million standard. According to the U.S. Bureau of Labor Statistics, $8.3 million in 2018 equates to roughly $10 million in 2023^[1]. The author may need to consider altering the existing threshold number to account for increased inflation since 2018.

3. Fires in California

Cal Fire Law Enforcement maintains statistics relating to the number of arson arrests from 2016 to 2022^[2]. The arson chart provided by Cal Fire displays that arson has significantly increased during these years, with 73 arrests in 2016 to 163 arrests in 2022, or about a 222% increase. Among these arrests, the author has recognized several notable cases that resulted in an aggravated arson charge:

1. In April 2022 in San Jose, Dyllin Jaycruz Gogue faced ten felony counts including aggravated arson, arson of an inhabited structure or property, and grand theft, plus three petty theft misdemeanors, for starting a five-alarm fire at a Home Depot, charging documents show^[3].
2. In August 2022 in Clear Lake Oaks, the defendant faced charges of aggravated arson, arson of an inhabited structure, causing a fire of an inhabited structure, possessing material for arson, and threatening to commit a crime. Causing the destruction or damage of 11 buildings. The defendant are also being charged with being under the influence of a controlled substance and carrying a concealed dirk/dagger in another matter^[4].
3. In 2016, Lake County suffered through the Clayton Fire that burned tens of thousands of acres near Lower Lake and destroyed 320 structures, including 188 homes. Clearlake resident Damin Pashilk was arrested and is in jail for igniting the destructive Clayton Fire, which devastated the lives of hundreds of Californians. The estimated cost of the fire was $19,743,079.79^[5].
4. In November 2017, Jeffery Cameron Schmid was sentenced to the maximum penalty for an aggravated arson charge and four other counts of felony arson of forest land^[6]. The Minerva Fire, Toll Fire, Squirrel Fire, Rhinehart Meadows Fire, and 89’er Fire encompassed these charges. The Minerva Fire itself burned 4,310 acres and took 163 days to contain; contributing to the third most destructive wildfire season in California^[7].

The author and supporters assert that by extending the sunset of this statute, law enforcement and prosecutors will continue to have the necessary and valuable tools to handle the most dangerous arsonists in California that risk lives and cause a strain on local governments and first responders.

4. Argument in Support:

According to the California’s District Attorneys Association:

Aggravated arson requires a defendant to act with premeditation and is limited to repeat and serial arsonists. It is also limited to the most serious and devastating arsons – those that damage or destroy multiple homes or that cause more than $8.3 million in property damage and fire suppression costs. The current version of P.C. 451.5 is scheduled to sunset on January 1, 2024, which means that the part of aggravated arson that applies to fires that cause extensive property damage and require major costs to suppress will be eliminated from the statute. Deliberately set fires continue to be a major problem in California, and therefore it is vital that prosecutors and judges continue to have the ability to address aggravated arson conduct.

In Plumas County in 2017, an offender was convicted of aggravated arson and four other arson counts for the Minerva fire, the Toll fire, the Squirrel fire, the Rhinehart Meadows fire, and the 89’er fire, and was ordered to pay over $25 million in restitution.

In Monterey County, an offender was convicted in 2022 for the 2020 Big Sur Dolan fire that seriously injured a firefighter, destroyed multiple structures, including ten residences, burned over 124,000 acres, and killed a dozen endangered California condors.

Cal Fire Law Enforcement statistics also show that arson arrests have increased significantly from 2016 to 2022. (https://www.fire.ca.gov)

These examples highlight the continued need to be able to target individuals who start fires that cause extensive property damage and require major costs to suppress.

-- END –

1. “CPI Inflation Calculator,” accessed February 21, 2023, https://www.bls.gov/data/inflation_calculator.htm ↑

2. “Statistics,” accessed March 14, 2023, https://www.fire.ca.gov/our-impact/statistics ↑

3. “San Jose Home Depot fire: Man charged with arson in connection with massive fire,” accessed February 22, 2023, https://www.cnn.com/2022/04/20/us/san-jose-arson-theft-home-depot/index.html ↑

4. “Judge holds Clearlake Oaks woman to answer arson charges,” accessed February 23, 2023, https://www.record-bee.com/2022/08/25/judge-holds-clearlake-oaks-woman-to-answer-arson-charges/ ↑

5. “Cal Fire officials discuss firefighting costs, testing of potential ignition sources in Clayton fire preliminary hearing,” accessed February 2023, 2023, https://www.lakeconews.com/news/60204-cal-fire-officials-discuss-firefighting-cost-testing-of-potential-ignition-sources-in-clayton-fire-preliminary-hearing ↑

6. “Man who set five Plumas forest fires sentenced to prison,” accessed March 9, 2023, https://www.sacbee.com/news/local/crime/article182640946.html ↑

7. “Minerva Fire Incident Report,” accessed February 23, 2023, https://www.fire.ca.gov/incidents/2017/7/29/minerva-fire/ ↑