Opinion
C082362
12-18-2017
THE PEOPLE, Plaintiff and Respondent, v. WILLIE BEE TURNER, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 15F00610)
We are called upon to decide whether a single act of setting fire can give rise to two arson convictions. Defendant Willie Bee Turner set fire to a dog carrier which held his dog and was convicted of one count of arson for burning the carrier and another for burning a sweatshirt inside the carrier. On appeal, he contends he cannot be convicted of both arson counts for his single act of setting fire to the dog carrier. We agree and will reverse one of the arson convictions.
FACTS AND PROCEEDINGS
Defendant burned a small puppy to death while the puppy was in a dog carrier that also contained a sweatshirt. Neither the carrier nor the sweater belonged to defendant, but the puppy was his.
The jury found defendant guilty of intentionally killing an animal (Pen. Code, § 597, subd. (a); Count One; unless otherwise set forth, statutory section references that follow are to the Penal Code), animal cruelty (§ 597, subd. (b); Count Two), and two counts of arson: one for setting fire to the sweatshirt inside the carrier (§ 451, subd. (d); Count Three), and one for setting fire to the carrier itself (§ 451, subd. (d); Count Four).
We note that the crime of arson does not include burning one's own property unless there is an intent to defraud or unless the fire causes injury to another person or another person's property. (See § 451, subd. (d).)
The trial court imposed an aggregate term of three years eight months, consisting of the upper term of three years for Count Four; the middle term of two years for Count Three (stayed under § 654); the middle term of two years for Count One (stayed under § 654); and a consecutive term of eight months for Count Two (one third the middle term).
DISCUSSION
I
Defendant may be convicted of only one count of arson
On appeal, defendant contends he may only be convicted of a single arson count, regardless of the number of items lost in the fire. We agree.
Only where the actus reus prohibited by the statute is committed more than once is a charge of multiple counts of violating a statute appropriate. (Wilkoff v. Superior Court (1985) 38 Cal.3d 345, 349 (Wilkoff).) For example, in Wilkoff, a single act of driving while intoxicated could give rise to only one conviction where the action caused multiple crashes and injuries. (Id. at p. 353.) The Wilkoff court explained: "the number of times the act is committed determines the number of times the statute is violated: 'The unlawful act denounced by the Vehicle Code is the "mere act of driving a vehicle upon a public highway while intoxicated"; the act is either a misdemeanor or a felony, depending on whether personal injuries result therefrom. The felony section simply "[graduates] the punishment according to the [more serious] consequences of the forbidden act." ' " (Id. at p. 349.)
Similarly, in People v. Marquez (2000) 78 Cal.App.4th 1302, 1308, a single transaction of robbing $70 in tip money from a waitress and $600 from the restaurant cash register could give rise to only one robbery conviction. The court explained: "Since the central element of robbery is force or fear, a defendant may be convicted of a separate robbery for each victim of such force or fear, even if the victims are in joint possession of the property taken. [Citations.] Here, in contrast, the defendant committed only one larceny against a single victim involving one threatened application of force and occurring at the same place and time. In these circumstances the single larceny can only support a single count of robbery." (Ibid.)
And in People v. Smith (1945) 26 Cal.2d 854, 859 (Smith), the single act of receiving stolen property that had been stolen at various times, could give rise to only one receipt of stolen property conviction. The Smith court explained, "[t]he crime of receiving stolen goods consists of either buying or receiving personal property with knowledge that it has been stolen. [Citation.] The gist of the offense is the purchase or receipt of the stolen goods with guilty knowledge but the particular ownership of the goods is not an element of the crime. Neither the legal nor moral character of the act is affected in any way by the fact that the stolen property may have belonged to several persons rather than to a single person." (Id. at pp. 858-859.)
A similar result obtains here. As applicable to defendant, "[a] person is guilty of arson when he . . . willfully and maliciously sets fire to or burns or causes to be burned . . . property." (§ 451.) Arson generally does not include burning one's own property, though arson is committed when the property burned does not belong to the defendant. (In re L.T. (2002) 103 Cal.App.4th 262, 264-265 ["The Penal Code definition of property that is applicable to the arson statute contains no requirement that the object belong to anyone"].) And here, defendant completed a single act: setting fire to property, not his own. Accordingly, he may only be convicted of a single count of arson.
The People, however, maintain that Wilkoff, Marquez, and Smith are distinguishable in that they did not involve arson. The People aver that the actus reus is not limited to setting fire to property, but can include, inter alia, causing property to be burned. The People assert that because arson's actus reus is not simply setting fire to — but may include causing to be burned — it is materially different from robbery, where the actus reus is the taking of property. As we understand the argument here, the People suggest that the defendant committed the crime of arson in two different ways by (1) setting the animal carrier on fire and (2) by "causing" the sweatshirt to be burned this giving rise to two separate arsons. We do not accept that argument.
While arson can be accomplished in several ways, it does not follow that burning an animal carrier and causing to be burned a sweatshirt inside constitutes two separate criminal acts of arson. By such logic, setting fire to a home could give rise to a separate arson conviction for each item burned within the home; that setting a fire in a forest could give rise to a separate arson conviction for each structure burned during the course of the fire. One commits arson by unlawfully setting something on fire or causing the setting of that fire, that is, by committing a single unlawful act of setting fire to an object or causing that fire, regardless of what is later consumed as a result of that fire. The actus reus of the crime is setting or causing a fire; just as the actus reus for robbery is taking another's property against his will by force or fear and just as the actus reus underlying the crime of vehicular manslaughter while intoxicated is driving while intoxicated. The consequences of those acts does not give rise to separate crimes.
Our reasoning is supported by the fact that section 451.1 imposes additional punishment where a single violation of section 451 proximately causes multiple structures to burn. (§ 451.1; see also Wilkoff, supra, 38 Cal.3d at p. 349 [noting that driving intoxicated is a misdemeanor or a felony, depending on whether personal injuries result therefrom, thus more serious consequences of the act can graduate punishment].)
Finally, the People further maintain that multiple arson convictions are permissible under section 954, which permits a prosecutor to, inter alia, charge "different statements of the same offense" and obtain convictions for them. (§ 954.) In support, the People cite People v. Montoya (2004) 33 Cal.4th 1031, 1034 ["In California, a single act or course of conduct by a defendant can lead to convictions 'of any number of the offenses charged' "; italics omitted] and People v. Muhammad (2007) 157 Cal.App.4th 484, 490 [except for necessarily included offenses, "multiple charges and multiple convictions can be based on a single criminal act, if the charges allege separate offenses"]. But neither Montoya nor Muhammad support the People's position. Montoya considered whether unlawful taking of a vehicle is a lesser included offense of carjacking for purposes of the prohibition on multiple convictions for necessarily included offenses. (Montoya, at pp. 1033.) Muhammad, similarly, considered whether two subdivisions of the stalking statute defined separate offenses. (Muhammad, at pp. 490, 494.) Neither case indicates a single act of setting fire may give rise to two arson convictions — nor do the People offer authority to support such a reading of section 954. Our authorities and discussion set forth above necessarily rejects the People's argument.
II
The abstract of judgment must be corrected
The People separately contend that the abstract of judgment should be corrected to reflect the oral judgment. We agree.
On Count Four, the trial court imposed the upper term of three years. Yet the abstract of judgment reflects the three-year term as the middle term. We will order the abstract corrected.
DISPOSITION
Defendant's conviction on Count Three (arson) is reversed. The judgment is otherwise affirmed. The trial court is directed to prepare an amended abstract of judgment reflecting this disposition and correcting Count Four (arson) to reflect that the upper term was imposed. The trial court is further directed to forward a certified copy to the Department of Corrections and Rehabilitation.
HULL, J.
We concur:
BLEASE, Acting P. J.
MAURO, J.