Opinion
D070002
01-31-2017
THE PEOPLE, Plaintiff and Respondent, v. JON LARA DIBBLE, Defendant and Appellant.
Athena Shudde, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Alan L. Amann, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCS267467) APPEAL from a judgment of the Superior Court of San Diego County, Stephanie Sontag, Judge. Remanded with directions to modify sentence. Athena Shudde, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Alan L. Amann, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found Jon Lara Dibble guilty of three counts of premeditated attempted murder (Pen. Code, §§ 664, 187, subd. (a), 189); one count of attempted arson (§ 455); four counts of possessing flammable materials (§ 453, subd. (a)); and one count of burglary of an inhabited building (§§ 459, 460, subd. (a)). A sanity phase of the trial was then conducted, during which the jury found that Dibble was legally sane at the time of the offenses. Dibble admitted three prison priors (§§ 667.5, subd. (b), 668); one strike prior (§ 667, subds. (b)-(i)); and one serious felony prior (§§ 667, subd. (a)(1), 668, 1192.7). The trial court sentenced Dibble to an indeterminate prison term of 42 years to life, consecutive to a determinate prison term of 19 years eight months.
Unless otherwise indicated, all further statutory references are to the Penal Code.
Dibble contends (1) defense counsel offered ineffective assistance of counsel because, during the guilt phase of the trial, he failed to call the two court-appointed psychologists to testify that Dibble was suffering from substance-induced psychosis during the offenses; and (2) pursuant to section 654, the trial court should have stayed the sentences on the four counts of possessing flammable materials. (§ 453, subd. (a).) We conclude (1) Dibble has not established ineffective assistance of counsel, but (2) the trial court erred in not staying the sentences on the four convictions for possessing flammable materials pursuant to section 654. Accordingly, we direct the trial court to modify the sentence consistent with our opinion, and in all other respects we affirm the judgment.
I
FACTUAL AND PROCEDURAL BACKGROUND
On September 29, 2013, Dibble checked into room 107 of the Riveria Motel in Chula Vista at around 11:20 a.m. According to Dibble's own account, after checking into the motel, he used methamphetamine and drank at least 12 beers.
At around 2:00 a.m. on September 30, a man and woman who were staying in room 102 of the motel heard noises outside the room. When the man tried to open the door to look outside, Dibble was at the door, pulling the door in the other direction. After a short tug-of-war during which some of Dibble's body entered the room, the man asked Dibble what he was doing, and Dibble apologized and walked away. When the man tried to open the door and leave the room, he noticed that a metal cable was wrapped around the outside of the door knob, preventing him from fully opening the door until he managed to remove the cable. Upon exiting the room, the man noticed that the same metal cable was wrapped around the door knobs of three other rooms in the motel. The woman called 911 to report the disturbance and complained to the motel manager, who lived on site.
The motel manager approached Dibble, who was walking to his room. Dibble agreed to leave if he received a partial refund.
Dibble had just finished checking out of the motel when police arrived in response to the 911 call. Dibble had open beer bottles in his pants pockets and was holding a metal sign post. While questioning Dibble, the police noticed that Dibble was carrying four bottles in a plastic bag. Upon further inspection, the police discovered that the four bottles were Molotov cocktails, made from filling empty beer bottles with gasoline and inserting a wick made from pieces of a rag or a shirt.
Dibble initially told the police officers that he found the Molotov cocktails across the street and brought them with him because he thought it was not safe to leave them where they were. After Dibble was arrested and questioned the next morning at the police station, he eventually told the detective interviewing him that he had made the Molotov cocktails by going to a gas station and filling the bottles with gasoline.
In explaining why he made the Molotov cocktails, Dibble told the detective that when he was in his motel room, he thought that he heard his ex-girlfriend Claudia in room 106. He "got the impression . . . she was being . . . kidnapped" "like she [was] being . . . overpowered by men." Then, according to Dibble, when he turned off the television in his motel room, he saw an image on the screen of Claudia and the man who kidnapped her, with tape around Claudia's face. Dibble explained that Claudia was in danger and that "this has been going on for like the last six months." According to Dibble, he wanted to kill the man who had Claudia in the room, and he wanted to get Claudia out of there "[b]y force." Dibble stated, "I was getting ready to light that fuckin' place up, man[,]" and "I was gonna blow that fucking shit up." Dibble also stated, "I think there's . . . some kind of like spiritual awakenings going on . . . ." "Spiritual awakenings . . . like these guys are . . . demon possessed guys[,]" and that the people "[t]hat are controlling her . . . [t]hey're powerful man." Dibble explained that at some point while making the Molotov cocktails, he thought to himself, "What am I doing, man?" but he proceeded with his plan until confronted by the couple in room 102.
Dibble was charged with three counts of premeditated attempted murder (§§ 664, 187, subd. (a), 189) (counts 1-3); one count of attempted arson (§ 455) (count 4); four counts of possessing flammable materials (§ 453, subd. (a)) (counts 5-8); and one count of burglary of an inhabited building (§§ 459, 460, subd. (a)) (count 9).
During the guilt phase of the trial, defense counsel did not contest Dibble's guilt on the four counts of possessing flammable materials. Instead, defense counsel focused on the argument that Dibble was not guilty of attempted murder because he did not intend to kill any human being. Specifically, defense counsel argued that Dibble's actions were directed toward defeating what he perceived to be demons, spirits, or images on the television, not people. Defense counsel also argued that Dibble had not taken a direct step toward attempting the murders or the arson because there was evidence that he did not have the Molotov cocktails with him when he was discovered making noise outside of room 102.
The jury found Dibble guilty on all counts. Dibble admitted three prison priors (§§ 667.5, subd. (b), 668); one strike prior (§ 667, subds. (b)-(i)); and one serious felony prior (§§ 667, subd. (a)(1), 668, 1192.7).
During the sanity phase of the trial, four mental health experts testified.
Psychiatrist Sanjay Rao and psychologist Nicole Friedman, both of whom were appointed by the court to evaluate Dibble's sanity, were called as witnesses by the prosecution. Rao and Friedman both diagnosed Dibble as primarily suffering from substance-induced psychosis during the offenses, characterized by hallucinations and delusions caused by methamphetamine. Rao explained that substance-induced psychosis did not qualify as a mental disorder for the purpose of legal insanity. Moreover, Rao and Friedman opined that even if Dibble had a qualifying mental disorder, they still would not find him to be legally insane during the offenses because he understood the nature and quality of his acts and could distinguish between right and wrong. Rao and Friedman also both concluded that although Dibble appeared to be genuinely suffering from hallucinations and delusions during the offenses, Dibble may have been fabricating a delusion he explained during his interviews with Rao and Friedman, under which he described an ongoing conspiracy between the court, the prosecutor, the police and Claudia.
Psychologists Clark Clipson and Bruce Yanofsky were called as witnesses by the defense to support Dibble's legal insanity claim. Clipson and Yanofsky both diagnosed Dibble as suffering from delusional disorder that was not dependent on his methamphetamine use, but that may have been intensified by the use of drugs and alcohol, causing hallucinations related to the delusion. Clipson and Yanofsky also opined that during the offense, Dibble did not understand the nature and quality of his acts and could not distinguish between right and wrong.
The jury found Dibble to be legally sane at the time of the offenses. On the attempted murder counts, the trial court sentenced Dibble to an indeterminate prison term of 42 years to life to be served consecutive to a determinate prison term of 19 years eight months for the remaining counts.
II.
DISCUSSION
A. Dibble's Contention That Defense Counsel Offered Ineffective Assistance of Counsel During the Guilt Phase
We first consider Dibble's contention that defense counsel was ineffective during the guilt phase of trial.
According to Dibble, defense counsel provided representation below the standard of care because he did not present testimony from Rao and Friedman at the guilt phase to establish that Dibble was suffering from substance-induced psychosis during the offenses. Specifically, Dibble points out (1) the crimes of attempted premeditated murder and arson both require a finding that the defendant acted with specific intent, and (2) the crime of attempted murder requires a finding that the defendant acted with deliberation and premeditation. According to Dibble, evidence that he suffered from substance-induced psychotic disorder was "highly relevant defense evidence," which was "eminently relevant to negate specific intent and premeditation and deliberation," and provided him with "a viable, complete defense." Dibble contends that if the jury had been presented with such evidence through the testimony of Rao and Friedman, it is reasonably probable that the jury would have concluded that Dibble could not have formed the necessary specific intent and could not have engaged in premeditation and deliberation.
As the jury was instructed, the offense of premeditated attempted murder requires a finding that the defendant acted with the specific intent to kill another person, (CALCRIM No. 600), and that the defendant carefully weighed considerations for and against his choice and that he decided to kill before completing the relevant acts (CALCRIM No. 601). The offense of attempted arson requires a finding that the defendant acted with the intent to set fire to a structure or property. (CALCRIM No. 1520.)
1. Legal Requirements to Establish Ineffective Assistance of Counsel
A criminal defendant is constitutionally entitled to effective assistance of counsel. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15; Strickland v. Washington (1984) 466 U.S. 668, 684-685 (Strickland); People v. Frye (1998) 18 Cal.4th 894, 979.) To establish a denial of the right to effective assistance of counsel, a defendant must show (1) his counsel's performance was below an objective standard of reasonableness under prevailing professional norms, and (2) the deficient performance prejudiced the defendant. (Strickland, at pp. 687, 691-692; Frye, at p. 979.) "It is defendant's burden to demonstrate the inadequacy of trial counsel." (People v. Lucas (1995) 12 Cal.4th 415, 436 (Lucas).)
To show prejudice, the defendant must show "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Strickland, supra, 466 U.S. at p. 694.) "It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding." (Id. at p. 693.) "A defendant must prove prejudice that is a ' "demonstrable reality," not simply speculation.' " (People v. Fairbank (1997) 16 Cal.4th 1223, 1241.)
Further, as is important here, "[r]eviewing courts reverse convictions on direct appeal on the ground of incompetence of counsel only if the record on appeal demonstrates there could be no rational tactical purpose for counsel's omissions." (Lucas, supra, 12 Cal.4th at p. 442; see People v. Anderson (2001) 25 Cal.4th 543, 569 (Anderson).) "In the usual case, where counsel's trial tactics or strategic reasons for challenged decisions do not appear on the record, we will not find ineffective assistance of counsel on appeal unless there could be no conceivable reason for counsel's acts or omissions." (People v. Weaver (2001) 26 Cal.4th 876, 926.) "[T]actical choices presented to us on a silent record" are "better evaluated by way of a petition for writ of habeas corpus" and will be rejected on direct appeal. (People v. Mayfield (1993) 5 Cal.4th 142, 188.)
As we will explain, Dibble's argument fails for two reasons: (1) there could have been sound tactical reasons for defense counsel to decide against calling Rao and Friedman as witnesses during the guilt phase; and (2) Dibble has not established prejudice.
2. Dibble Fails to Establish Ineffective Assistance of Counsel Because Defense Counsel Could Have Had a Rational Tactical Reason for His Decision Not to Call Rao and Friedman
As noted, "[w]hen a claim of ineffective assistance is made on direct appeal, and the record does not show the reason for counsel's challenged actions or omissions, the conviction must be affirmed unless there could be no satisfactory explanation." (Anderson, supra, 25 Cal.4th at p. 569.) Here, as we will explain, defense counsel could have had a sound tactical basis for the decision not to call Rao and Friedman as witnesses during the guilt phase to establish that Dibble was unable to form the specific intent to commit arson and to kill, or to deliberate and premediate prior to attempting murder.
a. Defense Counsel Could Have Concluded That It Would Be More Harmful Than Helpful to Dibble's Case in the Guilt Phase to Call Rao and Friedman to Testify
Defense counsel could have made the sound tactical decision — borne out by the actual content of Rao and Friedman's testimony during the sanity phase — that it would be more harmful than helpful at the guilt phase to present Rao and Friedman's testimony in an attempt to show that Dibble did not form a specific intent to kill and commit arson during the offenses and did not premeditate or deliberate.
Rao's opinions, as ultimately described during the sanity phase, did not contain any information suggesting that Dibble was unable to form a specific intent or to premeditate and deliberate due to substance-induced psychotic disorder. Rao did testify that methamphetamine can cause hallucinations, delusions, agitation and disorganized thinking, and he described Dibble's hallucinations and delusions about Claudia being kidnapped and held in the motel as a manifestation of that substance-induced psychosis. However, Rao did not suggest that the psychosis prevented Dibble from planning his acts and forming an intent. On the contrary, according to Rao, Dibble explained to him that he had a specific intent to blow up the motel while he was hallucinating and experiencing delusions. "I remember him saying that he wanted to blow up the motel the day of the crime when he was describing his recollection of events. At that time, he was . . . experiencing perceptual distortions, meaning . . . Claudia . . . was next door and he was trying to figure out a way to help her or save her. And he . . . told me that the only way that he can think of doing that was to blow up the motel." Further, Rao expressed the view that Dibble's actions were conscious and goal driven. "[H]e knew what he was doing. He set out to ignite this motel. He recognized that he wanted to help a perceived person at the time. He recognized he didn't want to hurt other people even though he was doing so. He admitted to that in various statements to various people. I think it's pretty clear that he understood that." This evidence would undermine an argument that Dibble lacked specific intent and did not premeditate or deliberate.
Similarly, Friedman's opinions, as presented during her sanity phase testimony, did not support an argument that Dibble lacked the required mental state to commit attempted arson and attempted murder. Friedman opined that Dibble was suffering from substance-induced psychotic disorder during the offenses which caused him to hallucinate and experience delusions. However, Friedman did not suggest that because of this condition, Dibble was unable to form specific intent or deliberate and premeditate. Indeed, Friedman explained that someone experiencing delusions does not go into an unconscious state in which they do not know what they are doing; that would be a separate condition, called a dissociative state. Friedman opined that despite Dibble's substance-induced psychosis, Dibble "was aware of the ramifications of his behavior and what he was doing at the time, in terms of the gasoline, ingesting substances, [and] his behavior," and "[h]e seemed very much aware of his actions."
In short, as the People persuasively argue, defense counsel could have made a reasonable tactical decision against presenting Rao's and Friedman's testimony during the guilt phase to establish that Dibble was suffering from methamphetamine-induced delusions and hallucinations, because "far from negating intent, such testimony would have confirmed it by explaining to the jury why [Dibble] made the Molotov cocktails and cabled the motel room doors . . . . [Dibble's] claimed delusions supplied the jury with the motive for [Dibble's] conduct." (Italics added.)
Dibble also argues that Rao's and Friedman's opinions would have been helpful to establishing that he was unable to form specific intent and to premeditate and to deliberate because they would have "legitimized" Dibble's claim to have experienced hallucinations and delusions due to his methamphetamine use. However, in light of the other drawbacks of calling Rao and Friedman to testify, defense counsel could reasonably have made the tactical decision not to call Rao and Friedman to establish that ingestion of methamphetamine can cause hallucinations and delusions because their testimony was not necessary for that purpose. Specifically, the jury heard evidence that methamphetamine can cause psychosis during the testimony of an officer with expertise on the effects of methamphetamine, who explained that that the use of methamphetamine can cause hallucinations.
b. Defense Counsel Could Reasonably Conclude That It Would Undermine Dibble's Case in the Sanity Phase If Rao and Friedman Testified During the Guilt Phase
As a second tactical reason for deciding against presenting Rao's and Friedman's testimony during the guilt phase, defense counsel could have determined that it would be harmful to Dibble's case during the sanity phase to rely on Rao's and Friedman's testimony during the guilt phase.
Because defense counsel expressly conceded that Dibble was guilty as charged in counts 5 through 8 of possessing flammable materials (§ 453, subd. (a)), it was almost certain that there would be a sanity phase of the trial. Defense counsel therefore had a strong interest in maintaining a viable case for that proceeding regardless of the precise outcome of the guilt phase.
As we have explained, the issues for the jury to resolve during the sanity phase were (1) whether Dibble was suffering from a qualifying mental disease or defect during the offenses, and (2) whether Dibble was unable to understand the nature and quality of his acts or unable to distinguish right from wrong. (CALCRIM No. 3450.) Rao and Friedman both reached opinions adverse to Dibble on those issues, concluding that (1) Dibble was suffering from substance-induced psychosis during the offenses, which does not qualify as a mental disease or defect for purposes of legal insanity, and (2) Dibble understood the nature and quality of his acts and could distinguish right from wrong. Defense counsel could reasonably have determined that to maximize the chances of prevailing in the sanity phase, it was important for him to discredit Rao's and Friedman's opinions. However, offering Rao and Friedman as witnesses in the guilt phase would have endorsed their diagnosis of substance-induced psychosis and would have given credence to Rao's and Friedman's opinions.
As the jury was instructed, a finding of legal insanity requires that the defendant had "a mental disease or defect" but a "temporary mental condition caused by the recent use of drugs or intoxicants is not legal insanity" and a mental disease or defect caused by long term use of drugs or intoxicants that remains after the effect of substances has worn off does not provide a basis for legal insanity unless combined with another mental disease or defect. (CALCRIM No. 3450) Further, Rao testified that substance-induced psychotic disorder does not qualify for a mental disease or defect for the purpose of legal insanity.
In sum, we conclude that Dibble has not established ineffective assistance of counsel because defense counsel could have had sound tactical reasons for deciding against presenting Rao's and Friedman's diagnosis of substance-induced psychotic disorder during the guilt phase.
3. Dibble Has Not Established Prejudice
To establish ineffective assistance of counsel, Dibble would also have to show that "there is a reasonable probability" that had defense counsel presented Rao's and Friedman's testimony during the guilt phase, Dibble would have received a more favorable outcome in that proceeding. (Strickland, supra, 466 U.S. at p. 694.) However, in light of the facts discussed above, Dibble is unable to make such a showing.
Specifically, as we have explained, Dibble has not identified anything in Rao's and Friedman's opinions that would have been helpful in establishing that he lacked specific intent and acted without premeditation and deliberation. Instead, Rao and Friedman both believed that Dibble knew what he was doing, and thus their testimony would likely have supported the People's case, not Dibble's case, on the issue of specific intent and premeditation and deliberation. Therefore, we perceive no reasonable probability that Rao's and Friedman's testimony at the guilt phase would have offered any evidence on the issue of specific intent and premeditation and deliberation that would have favorably changed the outcome at trial for Dibble. B. The Sentence on the Convictions for Possessing Flammable Materials in Counts 5 Through 8 Should Have Been Stayed Under Section 654
The final issue we consider is whether the sentence that the trial court imposed on counts 5 through 8 for possessing flammable materials should have been stayed pursuant to section 654.
Based on Dibble's possession of four Molotov cocktails, he was convicted in counts 5 through 8 of four counts of possessing flammable materials in violation of section 453, subdivision (a). The trial court imposed a total prison term of 32 months for those four convictions, running the terms for counts 5 through 8 concurrently.
Dibble's determinate prison term was a total of 19 years eight months based on the concurrent 32-month term for counts 5 through 8, and 17 additional years for prison priors (§§ 667.5, subd. (b), 668) and a serious felony prior (§§ 667, subd. (a)(1), 668, 1192.7).
In imposing sentence, the trial court decided to stay the sentences on the burglary and attempted arson counts under section 654 as based on the same conduct as the attempted murder counts. However, the trial court considered and rejected defense counsel's argument that the sentence for counts 5 through 8 should be stayed pursuant to section 654. In so doing, the trial court concluded that the convictions for possessing flammable material were based on conduct separate from the attempted murder counts because Dibble "abandoned his scheme to burn down the motel, but then he went and got the Molotov cocktails after." The trial court was presumably referring to evidence that Dibble carried the Molotov cocktails with him after he had decided to check out of the motel and was found with them in his possession when questioned by the police near the motel office.
Under section 654, "[a]n act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. . . ." (§ 654, subd. (a).) "[S]ection 654 applies not only where there was but one act in the ordinary sense, but also where there was a course of conduct which violated more than one statute but nevertheless constituted an indivisible transaction. [Citation.] . . . [Citation.] If all the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one." (People v. Perez (1979) 23 Cal.3d 545, 551, italics added (Perez).) "If . . . [a] defendant harbored 'multiple criminal objectives,' which were independent of and not merely incidental to each other, he may be punished for each statutory violation committed in pursuit of each objective, 'even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.' " (People v. Harrison (1989) 48 Cal.3d 321, 335.) The application of section 654 thus "turns on the defendant's objective in violating" multiple statutory provisions. (People v. Britt (2004) 32 Cal.4th 944, 952.) Where the commission of one offense is merely " 'a means toward the objective of the commission of the other,' " section 654 prohibits separate punishments for the two offenses. (Britt, at p. 953.) Where "section 654 prohibits multiple punishment, the trial court must stay execution of sentence on the convictions for which multiple punishment is prohibited." (People v. Reed (2006) 38 Cal.4th 1224, 1227.)
We apply a substantial evidence standard of review when determining whether section 654 applies. "The determination of whether there was more than one objective is a factual determination, which will not be reversed on appeal unless unsupported by the evidence presented at trial." (People v. Saffle (1992) 4 Cal.App.4th 434, 438; see also People v. Osband (1996) 13 Cal.4th 622, 730 [approving substantial evidence standard of review as stated in Saffle].)
The crime of possessing flammable materials is committed when the defendant "possesses, manufactures, or disposes of any flammable, or combustible material or substance, or any incendiary device in an arrangement or preparation, with intent to willfully and maliciously use this material, substance, or device to set fire to or burn any structure, forest land, or property . . . ." (§ 453, subd. (a), italics added.) Thus, Dibble violated this provision by possessing the Molotov cocktails only to the extent he continued to possess the Molotov cocktails with the intent to set fire to or burn something. (People v. Diamond (1969) 2 Cal.App.3d 860, 863 ["mere possession of a flammable explosive or combustible material, substance or device is not a crime . . . ; to constitute a crime, such possession must be accompanied by a specific intent to willfully and maliciously burn buildings or property"].)
There can be no reasonable dispute based on the evidence that Dibble's initial possession of the Molotov cocktails was for the purpose of carrying out his intent to set fire to the motel rooms and kill the people inside. Thus, to the extent that the convictions for possessing flammable materials were based on Dibble's acts while he still had the intent to burn the motel, section 654 would apply because Dibble possessed the Molotov cocktails as part of the same objective that gave rise to the attempted murder charges, namely to set fire to the motel rooms. (Perez, supra, 23 Cal.3d at p. 551 [§ 654 applies when "all the offenses were incident to one objective" (italics added)].) The People do not take issue with this conclusion.
As we have explained, however, the trial court concluded that section 654 did not apply because Dibble retook possession of the Molotov cocktails after he abandoned his attempt to set fire to the motel rooms. The People endorse this logic in their briefing, arguing that section 654 does not apply to counts 5 through 8 because Dibble "retook possession of the Molotov cocktails after [he] had already abandoned his intent to burn down the motel."
However, this logic is flawed because, as we have noted, Dibble could not have possessed flammable materials in violation of section 453, subdivision (a) unless he possessed those materials with the intent to set fire to or burn something. Under the factual scenario presented at trial, although Dibble possessed the Molotov cocktails outside of the motel office when the police were questioning him, it is undisputed that he had abandoned his intent to set fire to the motel rooms by that time and had checked out of the motel. There was no substantial evidence at trial to support a finding that Dibble still intended to use the Molotov cocktails to set fire to something else other than the motel when he retook possession of them after abandoning his attempt to burn down the motel. Therefore, under the evidence presented at trial, the only time that Dibble could have possessed the Molotov cocktails with the intent to set fire to or burn something in violation of section 453, subdivision (a) was during the same indivisible transaction that gave rise to his conviction for attempted murder. (Perez, supra, 23 Cal.3d at p. 551 [§ 654 applies when a course of conduct "constituted an indivisible transaction"].) In that circumstance, section 654 applies.
The People suggest that we can infer that Dibble retained an intent to set fire to something else with the Molotov cocktails based solely on the fact that Dibble previously had an intent to burn the motel and "[a] Molotov cocktail is by design a highly incendiary device." We reject the argument. Substantial evidence does not support a finding that Dibble intended to burn something else after abandoning his intent to burn the motel. --------
In sum, we conclude that because Dibble was necessarily convicted of violating section 453, subdivision (a) in counts 5 through 8 based on the same indivisible transaction and the same course of conduct that gave rise to the attempted murder convictions in counts 1 through 3, the trial court erred in determining that section 654 did not apply to counts 5 through 8. We will therefore direct the trial court to modify the sentence by staying execution of the sentence for counts 5 through 8.
DISPOSITION
The matter is remanded with directions for the trial court to modify the sentence by staying the sentence imposed on counts 5 through 8, as required by section 654, and to forward an amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects the judgment is affirmed.
IRION, J. WE CONCUR: BENKE, Acting P. J. NARES, J.