Catch a Fire – Arson and Resistance to Gentrification in Oakland (CA Penal Code 451 & 452)

On July 7, 2017, a fire tore through the Alta-Waverly building, a seven-story, mixed-use building under construction in downtown Oakland. The heat from the fire was so intense, it was picked up on local weather radar and there was significant concern that an industrial crane, which was being used during the construction, might collapse onto adjacent buildings. I could feel it on my drive to the Summit Defense Law office in Downtown Oakland.  The fire destroyed the structure at 2302 Valdez Street, at the corner of 23rd Street, threatening homes and other businesses in the residential-commercial area northwest of Lake Merritt, and displacing more than 700 local residents. The blaze comes less than two months after a very similar fire in Emeryville destroyed an apartment and retail space that was also under construction at the time. The cause of that fire was ultimately determined to be arson. Only hours after the fire was first reported, allegations of arson have already been issued by Oakland City Council, with one member posting to social media platforms that “burning down housing doesn’t help make [Oakland] housing more affordable.” But was the fire at 23rd and Valdez Streets also arson and if so, is it related to a campaign of urban terrorism aimed at preventing a perceived gentrification of Oakland?

A person can be found guilty of arson if 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.” California Penal Code § 451. The penalty for a conviction under this section of the penal code ranges from 16 months to nine years in prison. Aggravated arson, which can be charged if a person is found to have committed more than one act of arson within a ten-year period, carries a penalty of 10 years to life in prison. Even the lesser offense of unlawful or reckless burning under California Penal Code § 452, carries a potential sentence of six months to six years in state prison. And conviction under this section of the statute does not require property or forest land to catch on fire. In fact, simple charring, however slight, will suffice.

Oakland communities have undergone drastic changes over the past several years. United States Census Bureau statistics reported that 14.6 percent of Oakland residents earned an annual income of $30,000 or less. However, real estate statistics collected by agencies including Trulia and Redfin, show that between 2010 and 2014, 28 percent of Oakland residents leaving Oakland earned less than $30,000 annually – nearly double what would normally be expected from a community with the same wage map as Oakland. This trend tends to confirm that low-income people are leaving the city at disproportionately high rates. At the other end of the spectrum, Oakland residents who earned an average of $150,000 or more per year, are leaving the city at a much lower rate than expected. All of which points to cost of living being the biggest factor driving the exodus out of Oakland communities.

Breaking these statistics down to bare numbers, between 2010 and 2014, approximately 104,544 people left Oakland. At least 28 percent of those left for economic reasons, which represents approximately 14,000 people. This number does not take into account the number of people who earned more than $30,000 annually who also left the city for economic reasons, especially considering the fact that the average price of a single-family home in Oakland has now risen to $680,000, which is a 9 percent increase over the last year. The average monthly rent for a one-bedroom apartment in Oakland as of June, 2017 is $2,397, and for a two-bedroom apartment is $3,188. The exodus is not only affecting lower-income residents at a disproportionate level, it is also having a profound affect on African American residents. Since the year 2000, the city has lost 30 percent of its African American population – a concerning trend for a city that once boasted an African American population of more than 47 percent and is the birthplace of the Black Panther Party.

Oakland City Council members are quick to cry copycat with respect to this latest blaze. But arson as a method of combating perceived gentrification is not a new story in the Bay Area. In fact, several fires over the past three years at mixed-use buildings under construction have been attributed to arson, including two fires at the same building in Emeryville in May of this year. The Alta-Waverly building was purported to include 196 “market-rate” apartments and up to 31,500 square feet of retail space, with parking for residents in an underground garage. Oakland Mayor Libby Schaaf lamented the loss of “valuable units” in the “middle of a housing crisis.” But are these units really all that valuable to low- and middle-income residents? Keeping in mind that “market rate” for a two-bedroom apartment in Oakland runs well above $3,000 per month, these “market-rate” apartments are well out of reach for the more than 14,000 Oakland residents who are currently being displaced for financial reasons.

Arson is a serious offense, and serial arsonists face stiff penalties. But a pattern of arson like the fires affecting these mixed-use buildings in areas where gentrification may not be an affordable remedy for Oakland’s middle-class residents is something that Oakland city government needs to examine more closely. Arson may not be the issue here, but lack of affordable housing and forced financial exodus might be.

Summit Defense Criminal Attorneys is the Bay Area’s premiere exclusively Criminal Defense firm.  With six offices in the bay area, our criminal lawyers have successfully defended arson charges in San Mateo, Santa Clara, Alameda, San Francisco, Marin and Contra Costa counties.

Man Arrested for Arson in Novato Dealership Fires (CA Penal Code 451 and 452)

Law enforcement officials in Novato have made an arrest in an incident involving the purposeful burning of 4 vehicles on the Novato Chevrolet lot on Redwood Drive.  They were alerted to the crime as a grass fire, but after emergency vehicles responded, it was determined that the fire must have been purposeful, causing approximately $100,000 in damage to the various vehicles parked there.  The investigation continued as police released video surveillance footage of the arsonist that was collected from a business close by.  A 46-year-old man was arrested for the crime.

CA Penal Code 451 and 452 of the California Penal Code address the crime of arson.  Together, these two portions of the law make it illegal to cause a piece of property, building, or wooded area to be purposefully set on fire.  There are 2 ways, however, in which arson may be viewed, legally speaking.  First, if an individual has purposefully and maliciously set fire to any of the above, he or she may be charged with simple ‘arson.’  However, if the fire was not set on purpose, but was, in fact, accidental, then it may fall under the category of ‘reckless arson.’  Clearly, if the man in the case above is convicted, he will be convicted of arson and not reckless burning.

California arson penalties may range widely.  There are several different factors that dictate the severity of any particular arson sentence.  For example, the kind of property that has been destroyed, whether or not the fire was set on purpose, and whether or not another person sustained injuries due to the fire are all considered during the sentencing phase.  While reckless arson is usually considered a misdemeanor, all willful arson cases are treated as felonies under California law.  If convicted, an individual may expect to spend up to 9 years in state prison, depending on whether or not there are aggravating factors.


San Jose Arsonist Pleads Guilty, Gets 40 Years (CA Penal Code 451 and 452)

At the beginning of this year, there were dozens of fires set in residential areas of San Jose and local law enforcement officials were investigating the case.  For 4 days in January, various structures in the area were mysteriously burned, including a church, houses, and a large warehouse.  Now, a 49-year-old man (name withheld to preserve the accused’s privacy) has been charged with 4 counts of attempted arson and 9 counts of actual arson, to which he has pled guilty.

California laws concerning arson (CA Penal Code 451 and 452) are quite clear.  Anyone purposefully and maliciously setting fire to property, structures, or forested land could be accused of this crime.  Normally, ‘reckless’ burning (a fire that is set, not with malicious intent, but with a certain amount of disregard for the safety of others, perhaps) is normally treated as a misdemeanor.  However, arson is more usually considered a ‘wobbler,’ meaning that it is up to a prosecutor’s discretion as to whether to treat it as a misdemeanor or as a felony.  It should be noted, however, that malicious destruction of property by fire is always considered a felony in the state of California.

Sentencing and penalties for malicious arson are strict and harsh; you will, at the very least, end up paying a $10,000 fine.  More than this, you could spend up to 3 years in prison if you purposefully and with ill intent set fire to someone else’s property.  If the fire destroyed any forested lands, you could spend up to 6 years in state prison and, if you burned down a building that is usually inhabited, you could spend p to 8 years in prison.  There are additional penalties for causing a fire during which an individual is harmed or killed.


Two Men Arrested for Arson in Alameda (CA Penal Code 450 – 452)

27-year-old man John Doe (name withheld in order to protect the privacy of the accused) is, by all accounts, a non-violent sort.  Sure, his friends say, he’s political, he fights for animal rights and is a strict vegan.  Yet, he has strangely been arrested in conjunction with several damaging fires set in the Alameda area.  The other person arrested for this crime (name withheld in order to protect the privacy of the accused), a homeless fellow who seems to have no connection whatsoever to John Doe.  Alameda residents, especially those who have attended the open mic nights that guitar player John Doe hosts, are shocked and angry at his arrest.  As for the fires themselves, one was set in a trash bin, others were more serious, including a large home being set ablaze and 5 businesses in another area of Alameda.  It is estimated that $3 million in damages resulted.

In California, a person is charged with arson (CA Penal Code 450-452) when they purposefully, and with malice, set fire to a structure, another person’s property, or a forest.  You could also be charged with California arson if you ‘recklessly’ set fire to any of the aforementioned things (referred to as ‘reckless arson’).  If you are convicted of ‘reckless arson,’ you will only be charged with a misdemeanor offense.  On the other hand, if you have set fire to a building, to a forest, or have caused serious injury to another human being, then arson becomes a ‘wobbler,’ meaning that it is up to the prosecuting attorney to determine whether they will treat it as a misdemeanor or as a felony.  A ‘malicious arson’ conviction (always a felony) will end in anywhere from 16 months to 7 years in prison, depending on what kind of structure or forest has been burned.  It may also cost you a $10,000 fine.  “Reckless arson,’ contrariwise, may result in a longer sentence and heavier fines.


Concord Resident Arrested For Arson in Contra Costa County (CA Penal Code §451)

Concord resident, Julie Tenpenny (48) was arrested this month on suspicion of starting a grass fire in Martinez. It seems that Tenpenny used a lighter to set small fires near Alhambra Hills Drive.  Law enforcement officials say that they received phoned-in tips about the woman starting as early as 5pm on Sunday evening.  When they went to investigate, they found Tenpenny – uncooperative and seemingly under the influence of drugs.  Why she started the small fires, which did require the Contra Costa County Fire Department to drop some water from their helicopters in order to extinguish the minor blaze, is still a mystery.  Because Tenpenny refused to cooperate – even getting into a struggle with the arresting officers – she was charged with both arson and being under the influence of drugs.

In the state of California, there are two sections of the Penal Code that could apply to cases such as Tenpenny’s: arson (CA Penal Code §451) and “reckless burning (CA Penal Code §452).  There is a significant difference between these two charges: arson is done intentionally, whereas reckless burning may occur when, for example, someone accidentally causes a fire after dropping a lit cigarette.  Tenpenny has been charged with arson because the police suspect that she was purposefully using a lighter to set the small fires.  Bail in this case has been set at $75,000 and this indicates that Tenpenny has most likely been charged with felony arson.  The crime of arson is taken so seriously in California that there are even special “fire investigators” who act as part of a larger task force to solve crimes of this nature. Being charged with either arson or reckless burning does not depend upon whether or not damage was done to persons or to property. In Tenpenny’s case, no real damage was done and the fire was quickly stifled.  However, if prosecutors can prove that she purposefully and “maliciously” set the hilly area on fire, she can still be subjected to psychological evaluation before sentencing and may spend anywhere from 3 to 9 years in state prison and pay up to $60,000 in fines.