Opinion
B162766.
10-31-2003
THE PEOPLE, Plaintiff and Respondent, v. MARGARITA PORRAS, Defendant and Appellant.
Carol S. Boyk, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan Sullivan Pithey and Allison H. Chung, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Margarita Porras, now 78 years old, currently is serving a three-year state prison sentence for burning down her house. She appeals from the judgment entered after a court trial during which the trial court found her guilty of arson of an inhabited structure (Pen. Code, § 451, subd. (b); count 1) and arson of a structure (id., § 451, subd. (c); count 2). The trial court sentenced defendant to state prison for the low term of three years on count 1 and a concurrent low term of two years on count 2, for a total of three years. We reverse defendants conviction of count 2 and otherwise affirm the judgment.
FACTS
In November 2001, defendant lived in the rear unit of a duplex in Monterey Park. The duplex previously had been a single-family dwelling. The front unit of the duplex was vacant.
On November 14, 2001, a broker, who represented the defendants lender, served defendant with an eviction notice. The broker subsequently offered defendant $500 if she would surrender possession of the property.
At about 8:00 a.m. on November 15, 2001, Marciela Herrera, a neighbor, approached defendant to ask her to retrieve a ball that Herreras nephew had thrown into defendants yard. Defendant appeared to be in a hurry. She told Herrera that she had to go to her nephews house and would return the ball later. Herrera observed defendants two dogs in defendants car. The dogs typically traveled with defendant when she left her house. A few minutes after Herrera returned home, she heard an explosion. When she opened her front door, she saw flames coming from the rear of defendants residence.
Wei Wu lived next door to defendant. At approximately 8:30 a.m., Wu heard an explosion. He immediately ran outside where he saw defendant standing next to her car but did not speak to her. Wu returned to his home and called 911. He then went back outside and saw defendant driving away.
Defendant and Wu had a contentious relationship stemming, in part, from a boundary dispute.
Fire Marshall Mark Khail of the Monterey Park Fire Department investigated the fire. He eliminated all accidental, mechanical or natural sources of ignition. He determined that the fire originated in the rear portion of the residence and was started intentionally.
In Fire Marshall Khails opinion, gasoline was the most likely source of ignition. He observed burn patterns on the wooden floor and recovered flammable liquid from the premises. The presence of burning both above and beneath the floor indicated that some type of liquid had been poured onto the floor. He detected the odor of some type of petrochemical. He also recovered a bleach container that smelled like gasoline, was melted and expanded and contained flammable liquid. He recovered a one-gallon container used to store camping stove fuel as well.
Captain Chris Fabrizio of the Monterey Park Fire Department also investigated the fire at defendants home. On November 17, 2001, defendant met with Captain Fabrizio at the fire station to discuss the fire. At that time, Captain Fabrizio noticed that defendant had facial burns and blistering, as well as singed facial hair, indicative of a flash-related burn. According to Captain Fabrizio, a person can sustain a flash-related burn by standing directly over or near ignited flammable vapors.
Defense
On November 15, 2001, defendant awoke at 6:00 or 6:20 a.m. in order to drive to Santa Clarita for business. She drove off 10 minutes later with her two dogs. Defendant did not speak to Herrera that morning and had never before met her. Defendant returned about 3:30 or 4:00 p.m. to find that her house had burned down.
Defendant denied burning down her house. She also denied receiving any notice of foreclosure proceedings against her residence, which she had owned for 38 years. She had insurance on the property. Defendant accused the fire marshal of demanding a bribe not to testify against her. In addition, defendant claimed that three people wanted to steal her house.
Sentencing
On July 16, 2002, following defendants conviction, defense counsel asked the court "to do a diagnostic through the Department of Corrections or to appoint an independent doctor, or maybe two doctors, if counsel wishes to have some input on that." This would enable the trial court to use the information it received "as a platform from which [to] . . . make a decision as to what is suitable for Mrs. Porras, as far as taking into consideration her age, and taking into consideration the fact that she has no prior criminal record and the circumstances surrounding this particular event."
The trial court noted that it "had thought about a diagnostic," but noted that "sometimes the evaluations they prepare are excellent and give me a lot of insight, and sometimes theyre not. [¶] The other consideration I have is in terms of her physical health, how transportation to Department of Corrections would impact on that." The prosecutor agreed that "having the defendant examined by a mental health expert or experts, if necessary, would be the best thing. And in conjunction with those reports and any memo that we may present to the court and argument, the court may be able to fashion the appropriate sentence based on the evidence." When the court observed that the process could be done "much more quickly if she remained in county jail," defense counsel said "[t]hats fine."
On July 23, 2002, pursuant to Evidence Code section 730, the trial court signed an order appointing Dr. Ronald R. Fairbanks, a psychologist, to examine defendant. The court directed Dr. Fairbanks to consider defendants age and physical and mental condition and to determine if defendant posed a potential threat for future criminal behavior. The court also instructed Dr. Fairbanks to determine whether supervision by a doctor or mental health provider should be a condition of probation if probation is granted.
On September 16, 2002, defendant filed a motion for an order granting probation, contending that "such an order will serve the interest of justice." The motion noted that defendant was born in 1925 and had no prior criminal record. Her "crime was committed because of a mental condition not amounting to a defense, and there is a high likelihood that the defendant would respond favorably to mental health care and treatment that would be required as a condition of probation."
Attached to the motion was the probation officers early disposition report which stated that "[w]hile the present offense is serious it is nevertheless felt that defendant is both suitable and eligible for probation." The probation officer recommended "a formal grant of probation with substantial custody time as a condition" of probation to serve as a deterrent.
The motion also was supported by a letter written by defendants daughter, Teresa Lewis, to defense counsel. Therein she mentioned that "due to her age and her lack of command of the English language," her mother had "fallen on difficult times." Ms. Lewis attributed her mothers recent problems "to her desperate financial situation last year." Ms. Lewis also noted that her mothers "mental capacity has diminished over the last 10 years, which when combined with the lack of command of the English language, has caused her to often confuse facts and dates."
Ms. Lewis further related that her mothers "age and current mental capacity make it difficult for her to live with my family." Ms. Lewis explained, however, that her mothers sister, who lived in Northern California, "has offered to let her live with her and take care of her if she is released."
Finally, the motion for grant of probation was supported by Dr. Fairbankss psychological report dated September 15, 2002. Dr. Fairbanks reported that, although defendant denied taking any psychiatric medication, she had been placed on anti-depressant medications "but she had been cheeking them and spitting them out and refusing them." Defendant claimed to have had a therapist at one time. Defendant also asserted that she was clairvoyant and that people were out to get her and were working in collusion to steal her home.
Dr. Fairbanks further reported that he spoke to defendants daughter who "went into great length about how her life with her mother was very problematic, never quite knowing whether her mother was telling the truth or inventing things or delusional." The daughter described defendant "as being very withdrawn, paranoid, blaming others constantly throughout her childhood and her adulthood as well." She stated her mother had been estranged from her relatives and had lived as a recluse. It was only recently that defendant had "befriended" her sister who lived in Northern California. The daughter also "described . . . the confusion that her mother experiences and the allegations and suspiciousness that she has had throughout her life with her mother."
Dr. Fairbanks additionally spoke to a staff nurse and reviewed some of defendants chart, which contained the following diagnosis by Dr. Diane DiCarlo: "`dementia NOS with psychosis." The nurse told Dr. Fairbanks that defendant was confused and delusional and had to be watched carefully. In addition, defendant refused her medications or tricked the staff by taking her medication and spitting it out later.
Dr. Fairbanks opined that defendant was "experiencing dementia with an added diagnosis of paranoid schizophrenia." He further noted that defendant "could be considered a risk to herself as well as to possibly others given this condition." According to Dr. Fairbanks, "wherever [defendant] resides, she will need very careful supervision so that she doesnt present a risk to herself or to others, which certainly she can be capable of." In the doctors further view, defendant "needs a conservator to kind of keep track of her." Dr. Fairbanks advocated that defendant be placed on probation but noted that defendant "will need close supervision with clearly someone saying that they will be responsible for her. She will need ongoing psychiatric consultation for medication which she is tending to refuse." Dr. Fairbanks suggested that defendant see a psychiatrist, rather than a psychologist "because of her strong need for medication." Although Dr. Fairbanks did not believe defendant to be "a major threat intentionally for anyone," he did believe that "because of her condition she can assume that you are something you are not and as a result she may try to defend herself in an aggressive way that would cause damage to others."
Following numerous continuances, the sentencing hearing recommenced on September 24, 2002. Defense counsel referenced Dr. Fairbankss psychological report and his conclusion "in sort of an oblique kind of matter, she could be a danger to others, which is the criteria for the 4011.6." Defense counsel stated "it will be incumbent on the court to perhaps have the Department of Health do an evaluation of Ms. Porras. And then once we have the report from the Department of Health, then we can take the next step."
Pursuant to Penal Code section 4011.6, when it appears to a judge that the defendant "may be mentally disordered" the judge, among other things, "may cause the prisoner to be taken to a facility for 72-hour treatment and evaluation."
Defense counsel once again urged that probation was appropriate for defendant but emphasized the need for the court "to put Ms. Porras in a situation where shes going to be able to successfully complete probation." He further noted that it was "rather dubious that Ms. Porras would have the wherewithal to report to probation and to do all the things that are going to be required of her." Defense counsel then suggested that "maybe a public guardian can be appointed to supervise Ms. Porras, to help her." Defense counsel advised the court that defendant was indigent and that her elderly sister, who recently had sustained an injury, was unable to care for defendant.
The trial court noted that it had "some significant concerns" as a result of the reports it had received. Believing that a Penal Code section 4011.6 evaluation would be helpful, the trial court continued the matter once again.
At the next hearing, held on October 1, 2002, the trial court stated that it had received a letter indicating that defendant does not meet the criteria set forth in the Lanterman-Petris-Short (LPS) Act (Welf. & Inst. Code, § 5000 et seq.). The court further stated that, during a telephone conversation with the trial courts clerk, the doctor stated that a conservatorship or guardianship was appropriate, however.
"The Lanterman-Petris-Short Act . . . governs the involuntary treatment of the mentally ill in California. Enacted by the Legislature in 1967, the act includes among its goals ending the inappropriate and indefinite commitment of the mentally ill, providing prompt evaluation and treatment of persons with serious mental disorders, guaranteeing and protecting public safety, safeguarding the rights of the involuntarily committed through judicial review, and providing individualized treatment, supervision and placement services for the gravely disabled by means of a conservatorship program. [Citation.]" (Conservatorship of Susan T. (1994) 8 Cal.4th 1005, 1008-1009.)
The trial court voiced its concern that a guardianship or conservatorship would not address "the underlying mental health issues and then the safety of the community issues." It stated, "So I am concerned but fearful that we are in that sad state of affairs where I cant come up with anything other than a state prison sentence."
Defense counsel strongly disagreed, stating there were other things that could be done. Moreover, he asserted that if the court sentenced defendant to state prison it should do so based on the criteria set forth in the California Rules of Court, not because defendant could not take care of herself. When the trial court responded that it was more concerned about the safety of the community, defense counsel noted that the doctor, in concluding that defendant did not meet the LPS standards, determined that defendant was not a danger to herself or to others. Had he concluded otherwise, he would have determined that defendant met the criteria.
Defense counsel asked the court for an opportunity to have a mental health worker consult with defendant and to contact an organization that perhaps could aid defendant. The prosecutor noted that no one wanted to send defendant to prison but agreed with the trial courts assessment that the safety of the community was of paramount concern. The prosecutor stated that "based on what we know, Your Honor, I dont know for the safety of the community what other alternative there is if, in fact, the defendant is not complying with what is in this report."
At this point in the discussion, defense counsel stated emphatically: "I keep hearing the safety of the community, and just because we wash our hands and send Ms. Porras to be somebody elses ward, the community is not going to be served when Ms. Porras comes out of prison a year from now." The court agreed. Defense counsel continued: "And it disturbs me—because I get this feeling that everybody in this room, except myself, thinks that somehow we just pass the buck to somebody else, that somebody else is going to take care of her. They are not. And I know that and you know that." The court stated, "I know that quite well, and thats why Im looking for things to do here."
Defense counsel noted that he did not have the report stating defendant did not meet the LPS criteria, and asked for the doctors name. The court replied, "Dr. Hough." Before defense counsel could finish saying, "I dont particularly have a very high opinion —" the court interjected, "I think that they are rushed and they just make a quick determination." Defense counsel asked the court to appoint a court-approved psychiatrist and an interpreter. The court stated that a doctor specializing in geriatric psychiatry would be best. Defense counsel believed he could find someone on the appointment list and stated his desire to tap other sources in an effort to "find someone to help this poor woman." The court continued the matter.
At the next hearing, defense counsel explained that his efforts had been futile. The only geriatric expert he could find was not on the Countys list and charged $350 per hour. When the court inquired how much it would cost, defense counsel relayed that the doctor said that in addition to a jail visit it was likely that defendant would have to undergo a series of tests to determine the degree of damage to her central nervous system due to her age and other factors. Inasmuch as it would cost "rather large sums of money" for the doctors services, defense counsel pursued other avenues.
Defense counsel also spoke with Arlene Veliz, a mental health advocate who worked with the Public Defenders Office. Ms. Veliz, who spent about two hours with defendant in the lockup, advised defense counsel that she thought defendant "is 1368"—i.e., mentally incompetent within the meaning of Penal Code section 1368. Although defense counsel did not concur with Ms. Velizs assessment, he acknowledged that defendant may have had a bad day and noted that sometimes she has difficulty listening to a question and responding with a pertinent answer.
With regard to the issue of assisted housing, Ms. Veliz informed defense counsel that persons who commit arson are among those individuals excluded from such programs. Defense counsel advised the court that his efforts to obtain the aid of Ms. Veliz yielded nothing presentable to the court and that he was "back to square one."
Defense counsel expressed his frustration. He stated "that this is a case where the interest of justice would indicate that she should be placed on probation. But the biggest problem that we have is, you know, where would she go and how would she be supervised? And thats an issue that, unfortunately, I have not been able to tackle."
The trial court thereafter sentenced defendant to state prison for the low term of three years on count 1. The court further imposed a concurrent low term of two years on count 2. In selecting the low term on count 1, the court "finds in mitigation defendants lack of record, her age at the time of the commencement of this, that it was her own property, albeit it was in foreclosure or had been foreclosed upon . . . and . . . her mental condition." The trial court was cognizant "that everything, other than her lack of record and her age, are not factors to be considered under the Rules of Court." It noted, however, that "the other factors are definitely worth considering." The court further stated it "will request, in terms of her placement that it be in a facility that is able to attend to her physical and mental needs and medical, based on geriatric conditions."
At oral argument, appellate counsel informed us that she "believe[s defendant] is now in a population of other elderly inmates."
CONTENTIONS
Defendant contends she could not be convicted of both arson of an inhabited structure and arson of a structure, in that the latter is an included offense of the former; and if the conviction for the lesser offense is not reversed, the separate sentence imposed for the lesser offense must be stayed pursuant to Penal Code section 654. She further contends that her three-year prison term constitutes cruel and unusual punishment and that the trial court abused its discretion in denying her probation and in sentencing her to state prison without ordering a diagnostic study pursuant to Penal Code section 1203.03.
For the reasons that follow, we conclude that defendants conviction of count 2, arson of a structure, must be reversed. We further conclude that defendants sentencing claims are devoid of merit.
DISCUSSION
Count 2 Must be Reversed
We first address defendants claim that she could not be convicted of both arson of an inhabited structure and arson of a structure. Defendant reasons that because an inhabited structure is necessarily a structure, arson of a structure is a necessarily included offense of arson of an inhabited structure. She maintains that she could not be convicted of both the lesser and greater offense and that her conviction of arson of a structure must therefore be reversed.
The People, on the other hand, argue that because the structure, a single family dwelling, had been converted into a duplex and the front unit was uninhabited, defendant properly was convicted of both counts of arson. More specifically, the People argue that count 1 related to arson of the inhabited rear portion of the duplex while count 2 related to arson of the uninhabited front portion of the duplex.
We conclude that defendant committed only one act of arson by setting afire an inhabited structure. We reject the argument advanced by the People, in that it rests on the faulty premise that defendant burned two separate structures. She did not.
Penal Code section 451 proscribes the crime of arson. It states in relevant part that "[a] person is guilty of arson when he or she willfully and maliciously sets fire to or burns or causes to be burned . . . any structure, forest land, or property." The term "`[s]tructure means any building, or commercial or public tent, bridge, tunnel, or powerplant." (Pen. Code, § 450, subd. (a).) The term "`[i]nhabited means currently being used for dwelling purposes whether occupied or not." (Id., § 450, subd. (d).)
The punishment for arson varies depending upon what the arsonist sets fire to or burns. "Arson that causes an inhabited structure . . . to burn is a felony punishable by imprisonment in state prison for three, five, or eight years." (Pen. Code, § 451, subd. (b).) "Arson of a structure or forest land is a felony punishable by imprisonment in the state prison for two, four, or six years." (Id., § 451, subd. (c).) Penal Code section 451 thus differentiates between arson of a structure and arson of an uninhabited structure only for purposes of punishment. Both are arson as that crime is defined in section 451.
In this case, the evidence reveals that defendant committed a single act of arson by setting fire to a single inhabited structure. That the structure had been a single family dwelling since converted into a duplex is inconsequential. People v. Muszynski (2002) 100 Cal.App.4th 672 is instructive.
Defendant Muszynski started a fire in his apartment. The fire spread to other apartment units, severely damaging six of them and moderately damaging others. The People charged defendant Muszynski with, and a jury convicted defendant of, aggravated arson, a violation of People Code section 451.5. (People v. Muszynski, supra, 100 Cal.App.4th at pp. 674, 675-676.) Subdivision (a) of that statutory provision states that "[a]ny 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: [¶] . . . [¶] (3) The fire caused damage to, or the destruction of, five or more inhabited structures."
On appeal, defendant Muszynski challenged the sufficiency of the evidence to support his conviction of aggravated arson under Penal Code section 451.5, subd. (a)(3). (People v. Muszynski, supra, 100 Cal.App.4th at p. 678.) He argued that an apartment in a complex is not a building and therefore does not constitute a structure as that term is defined in Penal Code section 450, subdivision (a). (Muszynski, supra, at p. 678.) The People, in turn, argued that the term building should be construed broadly to include individual apartments within a complex. (Ibid.)
The appellate court agreed with defendant and rejected the expansive construction proposed by the People. The court adopted the common and ordinary meaning of the word "building" and concluded that "[u]nder this meaning, an apartment in defendants complex is not a building." (People v. Muszynski, supra, 100 Cal.App.4th at p. 683.) The court observed that "building usually describes a covered structure that stands predominately by itself and appears more separate and distinct from any other structure than connected to and a part of another structure. [¶] This understanding of building supports defendants position. None of the individual apartments in defendants complex projects an identity that is more separate and distinct from the complex than connected to it. . . . [T]he apartments were not separately constructed and later joined together. Rather, the entire complex appears to have been built as a single entity, comprising multiple units. Each unit constitutes an integral part of the whole complex. None could be removed without compromising the integrity of the complex because the fundamental elements of each unit—walls, ceilings, floors—are structurally inseparable from the whole. Moreover, none of the units has an external shape or identity that is independent of the shape and identity of the entire complex." (Id. at pp. 679-680.)
By the Peoples own account, defendants house was a single family residence (and thus a single structure) that had been converted into a duplex. Each unit therefore was an "integral part of the whole [structure]." (People v. Muszynski, supra, 100 Cal.App.4th at p. 680.) Indeed, counts 1 and 2 both alleged arson of the same address in Monterey Park. Defendant lived in the rear unit. The front unit, which formerly had been rented to a couple, was not occupied at the time of the fire.
In this case, defendant set fire to a single structure. Although not fully occupied, the structure was used for dwelling purposes. It consequently was an inhabited structure within the meaning of Penal Code sections 450 and 451. We therefore conclude that defendants conviction on count 2 of arson of a structure, a violation of Penal Code section 451, subdivision (c), must be reversed. In light of this conclusion, we need not reach the merits of defendants Penal Code section 654 argument.
People v. Labaer (2001) 88 Cal.App.4th 289 does not support the Peoples position that both conviction should be upheld.
Cruel and Unusual Punishment
We reject outright defendants assertion that her three-year sentence shocks the conscience and violates constitutional proscriptions against cruel and unusual punishment. Absent probation, which for reasons detailed below properly was denied, three years was the lowest possible prison term defendant could have received. Defendants reliance on cases denouncing life sentences as cruel and unusual punishment is misplaced.
Probation
Rule 4.414 of the California Rules of Court contains a nonexclusive list of criteria to be considered by the trial court when deciding whether or not to grant probation. This list sets forth factors pertaining to the crime, as well as factors pertaining to the individual defendant being sentenced. Defendant maintains that the trial court failed to consider all these criteria but rather focused solely on its concern for the public safety. This assertion is not at all borne out by the record.
The cold hard facts are that defendant is indigent and has no family willing or able to care for her. She suffers from dementia and paranoid schizophrenia. She is in need of ongoing psychiatric consultation and medication, which she refuses to take. In addition, she could be considered a risk to herself and to others. Her mental illness has the potential of causing her to act aggressively toward someone whose actions or conduct she misperceives. Although the preference of all concerned had been to place defendant on probation, defendant needed assistance and close supervision in order to comply with the conditions of probation. Despite her trial counsels most fervent efforts, however, he was unable to secure the assistance defendant needed. Probation therefore was not a viable sentencing choice.
Probation shall not be granted to a person who commits arson of an inhabited structure in violation Penal Code section 451, subdivision (b), unless the interests of justice otherwise would be served. (Pen. Code, § 1203, subd. (e)(9).)
The trial court is to be commended for giving defense counsel the time he needed to attempt to secure assistance for his client.
Defendants lack of "[a]bility to comply with reasonable terms of probation as indicated by the defendants age, . . . health, mental faculties, . . . [and] family background and ties" and "[t]he likelihood that if not imprisoned the defendant will be a danger to others" (Cal. Rules of Court, rule 4.414(b)(4), (8)) are facts relating to the defendant that justified the trial courts decision to deny probation. In addition, the need to protect society was a legitimate sentencing objective considered by the trial court when determining the appropriate disposition. (Cal. Rules of Court, rule 4.410(a)(1), (2).) Under these circumstances, the trial court did not abuse its discretion in denying defendant probation. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 979; People v. Groomes (1993) 14 Cal.App.4th 84, 87.)
Diagnostic Study
Finally, we turn to defendants assertion that the trial court abused its discretion in sentencing her to state prison without first ordering a diagnostic study pursuant to Penal Code section 1203.03. No abuse of discretion has been demonstrated.
A trial court has discretion to order a defendant placed temporarily in a diagnostic facility prior to sentencing for a period not to exceed 90 days "[i]n any case in which a defendant is convicted of an offense punishable by imprisonment in the state prison . . . [and in which] it concludes that a just disposition of the case requires such diagnosis and treatment services." (Pen. Code, § 1203.03, subd. (a).) The trial court abuses its discretion if its ruling exceeds the bounds of reason. (People v. Lawrence (1985) 172 Cal.App.3d 1069, 1075; People v. Myers (1984) 157 Cal.App.3d 1162, 1169.)
In this case, following a discussion with the trial court, defense counsel elected to forego a diagnostic study in favor of a more speedy evaluation by an independent doctor. Having done so, defendant cannot now complain that a diagnostic study should have been ordered. In any event, defendant does not suggest what new information, if any, a diagnostic study would have revealed to the trial court. Consequently, she has made no showing that the trial courts sentencing choices were made without the benefit of pertinent information. Inasmuch as defendant has failed to demonstrate that a diagnostic study was essential to a just disposition of the case, she has failed to prove that the trial court abused its discretion in failing to order one.
After defendant filed her notice of appeal, her appellate counsel filed in the trial court a motion to recall defendants sentence pursuant to Penal Code section 1170, subdivision (d). As one alternative, counsel asked the court to refer defendant to the Department of Corrections for a diagnostic study pursuant to section 1203.03. The trial court denied defendants motion. That defendant did not file a separate appeal from the trial courts post-judgment order is understandable, in that an order denying a defendants motion to recall a sentence is not appealable. (People v. Pritchett (1993) 20 Cal.App.4th 190, 194; accord, People v. Gillispie (1997) 60 Cal.App.4th 429, 433, fn. 4.)
DISPOSITION
Defendants conviction of count 2, arson of a structure, is reversed, and the sentence imposed for that offense is stricken. In all other respects, the judgment is affirmed.
We concur: ORTEGA, J. and MALLANO, J.