Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. Richard J. Hanscom, Judge. (Retired judge of the San Diego Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) No. RIF149373
Jan B. Norman, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, and Emily R. Hanks, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
RAMIREZ P. J.
A jury convicted defendant and appellant Anthony Alan Davis of possessing an incendiary device with intent to burn a structure (Pen. Code, § 453, subd. (a) (count 2)) and arson of an inhabited structure (§ 451, subd. (b) (count 3)). The trial court sentenced him to three years in state prison for the arson and 16 months concurrent for using an incendiary device. The concurrent term was selected because the possession of the incendiary device was “part and parcel of the arson.” Defendant contends, and the People concede, that the sentence for possessing an incendiary device should have been stayed pursuant to section 654. We modify the judgment to stay the sentence on count 2 and direct the trial court to amend the judgment accordingly.
Undesignated statutory references are to the Penal Code.
BACKGROUND
On the night of April 4, 2009, defendant vandalized his wife’s residence and placed a lit candle under a couch. The combination of the candle and the couch created an incendiary device. The residence was rendered uninhabitable by the arson.
DISCUSSION
Defendant contends committing the arson was the only purpose for the incendiary device; thus, there was only one indivisible course of conduct. The People agree because there was no evidence that defendant had a “different intent or objective in using the incendiary device and committing arson.” We agree with both parties.
“Section 654 precludes multiple punishment for a single act or omission, or an indivisible course of conduct. [Citations.] If, for example, a defendant suffers two convictions, punishment for one of which is precluded by section 654, that section requires the sentence for one conviction to be imposed, and the other imposed and then stayed. [Citation.] Section 654 does not allow any multiple punishment, including either concurrent or consecutive sentences. [Citation.]” (People v. Deloza (1998) 18 Cal.4th 585, 591-592.) In determining whether the facts call for the application of section 654, the threshold inquiry is to determine the defendant’s objective and intent. (People v. Coleman (1989) 48 Cal.3d 112, 162.) When a court sentences a defendant to separate terms, it makes an implicit determination that the defendant held more than one criminal objective. (People v. Osband (1996) 13 Cal.4th 622, 730-731.) “A trial court’s implied finding that a defendant harbored a separate intent and objective for each offense will be upheld on appeal if it is supported by substantial evidence.” (People v. Blake (1998) 68 Cal.App.4th 509, 512.)
The incendiary device was created through the combination of the candle and the couch; thus, the device was only possessed by defendant as he was initiating the arson. There is no evidence that defendant harbored a separate intent and objective in his possession of the incendiary device than he harbored in his commission of arson. Accordingly, the concurrent sentence for possessing an incendiary device with intent to burn a structure should have been stayed pursuant to section 654.
DISPOSITION
The judgment is modified to stay the sentence on count 2 (§ 453, subd. (a)) pursuant to section 654. The superior court clerk is directed to prepare a minute order to reflect the modified judgment, to amend the abstract of judgment, and to forward copies of both to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.
We concur: HOLLENHORST J., CODRINGTON J.