Opinion
H036085
09-23-2011
IN RE S. H., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. S. H., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Santa Clara County Super. Ct. No. JV36866A)
The minor, S. H., appeals from a dispositional order, following the findings by the juvenile court that he committed seven counts of arson. (Pen. Code, § 451, subd. (d).)The court declared the minor a ward of the court and ordered him committed to the enhanced ranch program for six to eight months. Upon successful completion of the program, the minor was to continue on probation. The court calculated the minor's maximum term of confinement to be seven years, with 149 days credit.
Further unspecified statutory references are to the Penal Code.
On appeal the minor argues that the juvenile court erred by finding that he committed two of the seven counts of arson. He contends that he may only be found to have committed five counts, as he ignited only five vehicles, although on two occasions, an adjacent vehicle also burned. Alternatively, if he was properly found to have committed seven counts of arson, the minor argues that section 654 prohibits punishment for those two counts, and that his maximum term of confinement must accordingly be modified to five years eight months.
For reasons that we will explain, we determine that the minor may properly be found to have committed seven counts of arson, but we conclude that section 654 precludes punishment on two of the counts. Therefore, we will modify the dispositional order to indicate that the maximum term of confinement is fixed at five years eight months, and we will affirm the order as modified.
BACKGROUND
The Petition
In March 2010, the district attorney filed a petition under Welfare and Institutions Code section 602 alleging that the minor, then age 16, committed seven counts of arson. (§ 451, subd. (d).)
The Jurisdictional Hearing Evidence
Count 6 - Bobcat Utility Vehicle
On February 12, 2010, a Campbell police officer responded to a call for service on West Rincon Avenue, near John D. Morgan Park. The officer testified that upon arriving, he "found a Bobcat utility vehicle and part of the track" or tread on the vehicle "on fire." He also smelled a "chemical odor, which was consistent with how this flame was started." There was a can of insecticide, "like an ant killer," underneath the vehicle. After the fire was put out, the officer observed burn marks on the tread where the fire had occurred. The company name on the vehicle was "Hertz Equipment Rental."
Counts 4 and 5 - Toyota Corolla and Honda Civic
On February 17, 2010, about 2:26 a.m., a Campbell police officer responded to a parking lot on West Rincon Avenue and found a Toyota Corolla fully engulfed in flames. A Honda Civic parked nearby "had damage due to its close proximity to the Corolla."
Dennis Brian Johnsen, chief arson investigator for the Santa Clara County Fire Department, testified as an expert in fire investigation. Chief Johnsen conducted an investigation of the Corolla and found that the majority of the damage was in the rear part of the car. He concluded that the fire was "purposely" set and that it "more likely" started on the outside of the vehicle. As to how the fire started, Chief Johnsen opined that a flammable liquid was introduced onto the rear exterior of the car. The "only other possibility" was that someone poured flammable liquid inside the car, in addition to pouring it on the outside.
Count 7 - Volkswagen Beetle
On February 17, 2010, the owner of a Volkswagen Beetle on West Rincon Avenue approached her car and, upon opening the door, observed smoke inside the car. She had previously left her window partially open and the doors locked.
Chief Johnsen investigated the scene and found a paper match near the driver's side front tire. He also found a paper match inside the vehicle, as well as "some remains of paper products" on the floorboard of the vehicle. The victim indicated that the papers did not belong to her. Chief Johnsen determined that "somebody probably put papers through the window and used paper matches to try and light them." However, paper does not "burn real prolific," and "[t]here wasn't enough heat to get the rest of the vehicle burning."
Counts 2 and 3 - Ford Explorer and Volkswagen Jetta
On February 19, 2010, in the early morning, a Campbell police sergeant responded to a call for service and saw two vehicles, a Ford Explorer and a Volkswagen Jetta wagon, on fire. The two vehicles were parked next to each other and behind a complex on Hollis Avenue.
Chief Johnsen conducted an investigation of the Explorer and the Jetta, and he determined that the fire "originated" in the Explorer on the passenger side rear area. The Explorer had "pretty heavy fire damage to the . . . rear interior" and the Jetta had "some fire damage" to the driver's side rear area. Johnsen concluded that the fire was "purposefully set" by someone who started the fire either on the inside of the Explorer through a broken window, or by possibly pouring a flammable liquid on the exterior and igniting it.
Count 1 - Mazda Miata
On February 19, 2010, about 3:28 a.m., a Campbell police officer responded to a parking lot on West Rincon Avenue and saw a Mazda Miata with approximately 85 percent of its soft convertible top on fire. The officer used a dry chemical fire extinguisher to put out the flames. The "mist" from the fire extinguisher made visible "a shoe impression" on the outside of one of the vehicle's windows.
Chief Johnsen conducted an investigation of the Miata fire. He determined that the fire was deliberately set and was caused by someone placing paper and tanbark on the top of the convertible roof and igniting them. The fire burned through the roof and spread into the car.
A supervising criminalist with the Santa Clara County District Attorney's Office Crime Laboratory testified as an expert concerning shoe print identification. He determined that a pair of black Nike athletic shoes, which the laboratory received as evidence, "or any shoe with a small area of similar parallel lines[,] could have made" the footwear impression on the Miata. The criminalist admitted that he could not say "with certainty" whether the minor's shoes were the "exact shoe" that made the impression on the Miata. Millions of Nike shoes have the same pattern on the sole area, and other manufacturers who have copied Nike may have used a similar pattern. The criminalist also could not determine the size of the shoe from the impression on the Miata.
All Counts
Misty D. testified that the minor has been her friend for two years. Misty lives in the Campbell neighborhood where the fires occurred. One of the fires involved Misty's neighbor's car and Misty "had been at [her] house with" the minor. She testified that the minor did "[n]ot directly" tell her how he started the fire. Misty further denied that anyone had told her about the origin of the fires, and she denied that she and the minor had ever talked "directly" about the fires. When asked whether she had told the police that she knew who started the fire, and that she heard it from the person who did it, she responded: "I don't think that's what I said. Or if I did say it that's not what I meant." She testified that she was reluctant to talk to the police "[b]ecause any information [she] had wasn't facts. And it was just rumor and [her] assumption." When asked whether she had told the police that the minor said "he used a match because he's not going to stick his hand in [any car window] with a lighter," Misty indicated that her statement to the police "was just [her] assumption" and that the minor "never told [her] that." Misty informed the police that she wanted to remain anonymous. At the jurisdictional hearing, she testified that she did not want the minor to know that she was talking to the police. According to Misty, she talked to the police because she "didn't really have a choice."
Campbell Police Officer Darwin Okamoto testified that he spoke with Misty on February 24, 2010, and on another occasion, after the police learned that she had spoken with someone who may have started the fires. Misty reported that the minor stated that "he was walking down Rincon looking for cars with cracked windows." Regarding the Volkswagen Beetle, Misty stated that the minor had told her that he "had a water bottle filled with some flammables," and that he "would pour it in a cracked window" and "ignite it with a match." The minor also told her about a "[c]ouple of cars" on West Rincon Avenue, one car "in the Hollis area," and a "tractor." According to Officer Okamoto, Misty also reported that they were going to have a barbecue at the minor's residence but he did not have any lighter fluid. A week earlier, however, they had a barbecue and "[s]he remembered there being some lighter fluid." Officer Okamoto told Misty that he "would try to keep her identity concealed."
Officer Okamoto testified as to the address where the minor lived, which was in Campbell, California. The officer eventually obtained shoes from the minor, and those shoes were transported to the crime lab. The minor was arrested on March 4, 2010. Officer Okamoto had not investigated any reported arsons in the area of the fires since March 4, 2010.
Misty was recalled to the witness stand after Officer Okamoto testified. She denied making the statements that Officer Okamoto had testified about, and she claimed that the minor did not talk to her about the fires before she talked to the police. When asked whether she was lying when she talked to police on February 24, 2010, Misty responded, "I don't think I was intentionally lying. I think I was, kind of, spreading rumors more. And maybe making assumptions and trying to put together facts because at the time the way the cops were asking me the questions and what they were telling me was . . . that if there's anything I knew I needed to tell them because [the minor] is putting himself and other people in danger. And I was really worried. And I was under a lot of pressure at that time." Misty testified that she did not know why she told the police that the minor said certain things to her "if he didn't."
Introduced into evidence were various photographs, including photographs of the burned vehicles. The parties also stipulated to certain facts with respect to counts 1 through 5 and 7, including that the vehicle in each of those counts was owned by a different victim and the minor did not have any ownership interest in the vehicles. The juvenile court took judicial notice of the fact that the minor had been in custody since he was arrested on March 4, 2010.
The Court's Findings
During argument, the prosecutor contended that "five fires were intentionally set" and that "seven arsons" occurred. The prosecutor explained: "Out of those five fires the property of seven different people or corporations were burned. Because in two of those fires one vehicle burned and the car next to it also received some damage." After hearing argument from the parties, the juvenile court found true the allegations in the petition that the minor had committed seven counts of arson. (§ 451, subd. (d).)
On July 26, 2010, the juvenile court adopted the probation department's recommended disposition. The minor was declared a ward of the court and ordered committed to the Santa Clara County Juvenile Rehabilitation Facilities' enhanced ranch program for six to eight months. Upon successful completion of the program, the minor was to return to the custody of his legal guardian while on probation. The court set the minor's maximum term of confinement at seven years, and awarded the minor 149 days custody credits.
On September 22, 2010, the minor filed a notice of appeal.
DISCUSSION
Multiple Convictions
On appeal, the minor contends that the juvenile court erred by finding that he committed two counts of arson, instead of one count, when he ignited the Ford Explorer (count 2) and the resulting fire spread to the nearby Volkswagen Jetta (count 3). The minor similarly argues that the court should have found that he committed only one count of arson, not two counts, when he ignited the Toyota Corolla (count 4) and the resulting fire spread to the nearby Honda Civic (count 5). The minor asserts that "in each of those incidents, [he] committed just one criminal transaction: although two cars were burned, [his] single act and single intent may only constitute a single offense." (Underscoring omitted.)
The Attorney General responds that section 954 permits both the charging and the conviction of multiple offenses based on a single act. The Attorney General further argues that "[s]ince arson is a general intent crime, the trial court did not need to find that [the minor] specifically intended to ignite cars adjacent to the cars he set fire to . . . [in order] to find [the minor] guilty of two counts of arson. So long as [the minor] intended to ignite the fires that damaged the original two cars (the Toyota Corolla and the Ford Explorer), the court could properly find him guilty of arson for the additional proximate cars." The Attorney General cites People v. Fry (1993) 19 Cal.App.4th 1334 (Fry)as supportive of this position.
In construing section 451, the arson statute at issue here, we apply the well-settled rules governing statutory interpretation. "We begin with the fundamental premise that the objective of statutory interpretation is to ascertain and effectuate legislative intent. [Citations.] To determine legislative intent, we turn first, to the words of the statute, giving them their usual and ordinary meaning. [Citations.] When the language of the statute is clear, we need go no further. However, when the language is susceptible of more than one reasonable interpretation, we look to a variety of intrinsic aids, including the ostensible objects to be achieved, the evils to be remedied, the legislative history, public policy, contemporaneous administrative construction, and the statutory scheme of which the statute is a part. [Citations.]" (People v. Flores (2003) 30 Cal.4th 1059, 1063.) "Matters of interpreting and applying a statute are questions of law. [Citations.]" (Amdahl Corp. v. County of Santa Clara (2004) 116 Cal.App.4th 604, 611 (Amdahl Corp.).)Questions of law are reviewed under the de novo standard of review. (Ibid.)
Section 451 states that "[a] person is guilty of arson when 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." " 'Property' means real property or personal property, other than a structure or forest land." (§ 450, subd. (c).) " 'Maliciously' is defined in the arson chapter as 'a wish to vex, defraud, annoy, or injure another person, or an intent to do a wrongful act, established either by proof or presumption of law.' (§ 450, subd. (e); see also § 7, subd. 4.) 'Willfully' is not defined in the arson chapter, but in section 7, subdivision 1: 'The word "willfully," when applied to the intent with which an act is done or omitted, implies simply a purpose or willingness to commit the act, or make the omission referred to. It does not require any intent to violate law, or to injure another, or to acquire any advantage.' " (People v. Atkins (2001) 25 Cal.4th 76, 85 (Atkins))
The California Supreme Court has explained that "arson requires only a general criminal intent and that the specific intent to set fire to or burn or cause to be burned the relevant structure or forest land [or property] is not an element of arson." (Atkins, supra, 25 Cal.4th at p. 84.) "[T]he proscribed acts within the statutory definition of arson are to (1) set fire to; (2) burn; or (3) cause to be burned, any structure, forest land, or property. (§ 451.)" (Id. at p. 86.) "The statute does not require an additional specific intent to burn a 'structure, forest land, or property,' but rather requires only an intent to do the act that causes the harm. This interpretation is manifest from the fact that the statute is implicated if a person 'causes to be burned . . . any structure, forest land, or property.' [Citation.]" (Ibid.) "Thus, there must be a general intent to willfully commit the act of setting on fire under such circumstances that the direct, natural, and highly probable consequences would be the burning of the relevant structure or property. [Citations.]." (Id. at p. 89.)
In Fry, supra, 19 Cal.App.4th 1334, the defendant was convicted of one count of arson of a structure (§ 451, subd. (c)) and four counts of arson of property (§ 451, subd. (d)). (Fry, supra, 19 Cal.App.4th at p. 1336.) The evidence at trial established that the defendant intentionally set fire to four vehicles, and that the fire in one of the vehicles, a convertible, damaged the carport in which it was parked. (Id. at p. 1337.) On appeal, the defendant argued that there was insufficient evidence to support the conviction for arson of a structure because the trial court expressly found that he did not intend to burn the carport.
This court explained in Fry that the defendant's "conduct actually and proximately caused the carport, i.e., a structure, to be burned: setting fire to the car created a substantial and unjustifiable risk that the carport would burn, the carport did in fact burn, and its burning, as the trial court found, was the natural and probable consequence of his conduct." (Fry, supra, 19 Cal.App.4th at p. 1339, italics and fn. omitted.) In view of the trial court's implicit determination that the defendant "willfully and maliciously set fire to the car," it followed, "a fortiori, that in causing the carport to be burned, defendant acted willfully and maliciously." (Ibid.)This court therefore concluded that the defendant was properly found guilty of arson of a structure (ibid.), in addition to arson of property for the vehicle in the carport.
Here, the minor contends that his case is distinguishable from Fry because his "multiple convictions were based on a single act of arson of property, which damaged a second piece of property" (italics added), whereas in Fry, the second item damaged was a structure. The minor argues that the Legislature intended to "treat arson of a structure differently than arson of property, by enacting" section 451.1, subdivision (a)(4), which provides that a defendant who "proximately caused multiple structures to burn in any single violation of Section 451" is subject to a sentence enhancement of three, four, or five years. (§ 451.1, subd. (a)(4).) The minor contends that "[t]his enhancing statute presupposes that a single offense of arson of a structure may proximately cause burning of several structures. It follows that the Legislature must have understood that a single act of arson which proximately causes several structures to burn is a single chargeable act of arson, and thus provided additional punishment for this result - a goal which would have been unnecessary if a single act of arson could be charged as multiple counts, one for each structure damaged by that fire."
We are not persuaded by the minor's argument. First, the fact that the Legislature has provided for a sentence enhancement for a "single violation" of section 451 that "proximately caused multiple structures to burn" (§ 451.1, subd. (a)(4)) does not necessarily mean that a defendant may not be charged and convicted of separate counts under section 451 for each structure. Second, that the defendant may be charged in separate counts for proximately causing multiple structures to burn does not necessarily obviate the need for, or render superfluous, the sentence enhancement under section 451.1. Arson of a structure is punishable by two, four, or six years in prison. (§ 451, subd. (c).) If multiple structures are burned, punishment for a single violation of section 451 plus a sentence enhancement of three, four, or five years under section 451.1, subdivision (a)(4), may result in a longer period of imprisonment than punishment for multiple convictions under section 451 without any sentence enhancement.
Our interpretation is supported by the legislative history of Senate Bill No. 1309 (1993-1994 Reg. Sess.), which added section 451.1, subdivision (a)(4) to the Penal Code along with several other arson-related provisions. For example, we observe that an analysis of Senate Bill No. 1309 states as follows: "4. General intent [¶] Because arson is a general intent crime, i.e. there is no requirement that the arsonist specifically intended to burn any particular structure, any intentional burning which causes the burning of a structure is considered arson of that structure. Thus, if one intentionally sets fire to some object between two houses, and that fire causes a charring of the exterior walls of the two houses, that person would be guilty of the arson of two inhabited structures. [¶] 5. Multiple counts - existing law [¶] Under existing law, arson of two inhabited structures may be prosecuted as two separate counts of arson." (Sen. Com. on Judiciary, Analysis of Sen. Bill No. 1309 (1993-1994 Reg. Sess.) as amended May 2, 1994, pp. 7-8, italics added.) Another analysis states, "Multiple counts of arson are punishable at the full lower, middle, or upper term for one count, the base term, and one-third the middle term for each additional count, to a maximum of double the length of the middle term." (Assem. Floor Analysis of Sen. Bill No. 1309 (1993-1994 Reg. Sess.) as amended Aug. 26, 1994, p. 1.) These analyses suggest (1) the Legislature understood the setting of one fire that causes the burning of two structures may be prosecuted as two separate counts of arson, and (2) multiple arson convictions may result in punishment for the full term for one count, but only one-third the middle term for an additional count. If multiple structures are burned, but the crime is charged as a single count, punishment for the single count plus the sentence enhancement proposed in Senate Bill No. 1309 and ultimately added as section 451.1, subdivision (a)(4) may result in a longer period of imprisonment than punishment for multiple convictions under section 451 without any sentence enhancement. The minor fails to identify anything in the legislative history of section 451.1, subdivision (a)(4) that supports his argument that the Legislature believed the setting of a single fire that proximately causes several structures to burn may be charged as one count of arson only and that the enhancement in that subdivision was provided for "this result."
We requested and received supplemental briefing from the parties regarding the legislative history of section 451.1, subdivision (a)(4). We take judicial notice of the two analyses from which we have quoted. (Evid. Code, §§ 452, subd. (c), 455, 459.)
In support of his argument that he may be charged and convicted of only five counts of arson, not seven counts, the minor also quotes People v. Bauer (1969) 1 Cal.3d 368 (Bauer), at page 378, which states, "Where . . . offenses arising out of the same transaction are not crimes of violence but involve crimes against property interests of several persons, this court has recognized that only single punishment is permissible." Bauer, however, involved the proscription against double punishment under section 654, which we will discuss below.
The minor also cites People v. Smith (1945) 26 Cal.2d 854 (Smith)and People v. Roberts (1953) 40 Cal.2d 483 (Roberts) for the proposition that "a single act, performed with a single intent, must constitute a single offense." Neither case contains such a broad statement and neither case involved arson.
In Smith, the defendant was convicted of three counts of receiving stolen property (§ 496). (Smith, supra, 26 Cal.2d at pp. 855-856.) The Smith court explained that the "gist" of the offense of receiving stolen goods "is the purchase or receipt of the stolen goods with guilty knowledge" and that "the particular ownership of the goods is not an element of the crime." (Smith, supra, 26 Cal.2d at p. 859.) Thus, the defendant's receipt of several stolen items in a single transaction constituted only a single offense, regardless of the number of individuals who owned the items. (Id. at pp. 858, 859.) In the present case, the "gist" of the offense of arson includes not only setting fire to or burning, but "caus[ing] to be burned" any property. (§ 451; see Atkins, supra, 25 Cal.4th at p. 86.)
In Roberts, the defendant was convicted of one count each of possessing, transporting, and selling heroin under former Health and Safety Code section 11500, which prohibited the possession, transportation, and sale of narcotics. (Roberts, supra, 40 Cal.2d at p. 486.) The Roberts court stated that " 'cooperative acts constituting but one offense when committed by the same person at the same time, when combined, charge but one crime and but one punishment can be inflicted.' [Citations.]" (Id. at p. 491.) In the case before it, the Roberts court concluded that "the only possession and transportation of heroin shown were those necessarily incident to its sale," and thus the convictions for possession and transportation had to be reversed. (Ibid.)Later California Supreme Court decisions, however, have implicitly overruled this conclusion in Roberts. (See People v. Pearson (1986) 42 Cal.3d 351, 359 [recognizing that, in order to avoid multiple punishment for the same conduct, some earlier decisions had reversed multiple convictions while others had stayed multiple punishments, and approving the later cases which "reaffirmed that section 654 bars multiple punishment, not multiple conviction"]; In re Adams (1975) 14 Cal.3d 629, 636 [upholding five convictions for transporting illegal drugs based on the simultaneous transportation of five different drugs, and explaining that "section 654 prohibits multiple punishment, not multiple convictions"]; see also People v. Lopez (1992) 11 Cal.App.4th 844 [relying on post -Roberts Supreme Court precedents and determining that when the same course of conduct constitutes several offenses incident to one objective, the defendant is subject to multiple convictions, though only one punishment, and thus the defendant was properly convicted of both transporting and selling the same drug in the same transaction].)
In support of the argument that he may be charged and convicted of only five counts of arson, the minor cites Wilkoff v. Superior Court (1985) 38 Cal.3d 345 (Wilkoff), for the proposition that "a charge of multiple counts of violating a statute is appropriate only where the actus reus prohibited by the statute—the gravamen of the offense—has been committed more than once." (Id. at p. 349.) In Wilkoff, the court analyzed former Vehicle Code section 23153, which made it unlawful for a person, while under the influence or while having a blood alcohol level of .10 or higher, " 'to drive a vehicle and, when so driving, do any act forbidden by law or neglect any duty imposed by law in the driving of the vehicle, which act or neglect proximately causes death or bodily injury to any person other than the driver.' " (Wilkoff, supra, 38 Cal.3d at p. 347.) The Wilkoff court explained that "the act prohibited by section 23153 is defined in terms of an act of driving: the driving of a vehicle while intoxicated and, when so driving, violating any law relating to the driving of a vehicle. The actus reus of the offense does not include causing bodily injury. Rather, where bodily injury proximately results from the prohibited act, the offense is elevated from a misdemeanor to a felony." (Id. at p. 352.) The court ultimately concluded that "one instance of driving under the influence which causes injury to several persons is chargeable as only one count of driving under the influence." (Id. at p. 353.)
Here, contrary to the minor's implication, the actus reus of the instant offense is not limited to setting fire to property. "[T]he proscribed acts within the statutory definition of arson" include "to (1) set fire to; (2) burn; or (3) cause to be burned, any structure, forest land, or property. (§ 451.)" (Atkins, supra, 25 Cal.4th at p. 86, italics added.) Consequently, where, as in this case, a minor sets fire to one vehicle and that act causes to be burned a second vehicle, it may be properly alleged and found true that the minor committed two counts of arson. (§ 451.)
Accordingly, we determine that the juvenile court properly found true the allegations that the minor had committed seven counts of arson.
Section 654The minor alternatively contends that "[a] single act that burns two cars can only be punished once under the restrictions of Penal Code section 654," and thus his "maximum period of custody must be calculated without inclusion of the terms for two of the arson counts." Thus, instead of the seven years set by the juvenile court, the minor calculates his maximum term of confinement as five years eight months.
The Attorney General agrees that the juvenile court "should have based its maximum term of confinement on five counts of arson, rather than seven counts of arson, in accordance with Penal Code section 654's prohibition on multiple punishments."
Section 654 provides in relevant part: "An 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).) Section 654 " 'precludes multiple punishment for a single act or for a course of conduct comprising indivisible acts.' " (People v. Spirlin (2000) 81 Cal.App.4th 119, 129 (Spirlin).)The California Supreme Court has stated that "[a]lthough section 654 does not expressly preclude double punishment when an act gives rise to more than one violation of the same Penal Code section . . . , it is settled that the basic principle it enunciates precludes double punishment in such cases also. [Citations.]" (Neal v. State of California (1960) 55 Cal.2d 11, 18, fn. 1 (Neal); accord, People v. Gbadebo-Soda (1989) 215 Cal.App.3d 1371, 1375, quoting Neal.)
In People v. Correa (2008) 161 Cal.App.4th 980, review granted July 9, 2008, S163273, the California Supreme Court ordered supplemental briefing on, among other things, whether it should reconsider its statement in Neal, supra, 55 Cal.2d at page 18, footnote 1, and instead conclude that section 654 does not govern multiple convictions of the same provision of law.
" ' "Whether a course of criminal conduct is divisible . . . depends on the intent and objective of the actor." [Citations.] "If all the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, defendant may be found to have harbored a single intent and therefore may be punished only once." [Citation.]' [Citation.]" (Spirlin, supra, 81 Cal.App.4th at p. 129; People v. Latimer (1993) 5 Cal.4th 1203, 1207-1208; Neal, supra, 55 Cal.2d at p. 19.) However, if the defendant harbored "multiple or simultaneous objectives, independent of and not merely incidental to each other, the defendant may be punished for each violation committed in pursuit of each objective even though the violations share common acts or were parts of an otherwise indivisible course of conduct. [Citation.]" (People v. Cleveland (2001) 87 Cal.App.4th 263, 267-268; see also People v. Solis (2001) 90 Cal.App.4th 1002, 1021; People v. Alvarado (2001) 87 Cal.App.4th 178, 196.)
The determination of whether section 654 applies in a given case is a question of fact for the trial court, which is vested with broad latitude in making its determination. (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312 (Hutchins).)Its findings will not be reversed on appeal if there is any substantial evidence to support them. (Ibid.; see also People v. Nelson (1989) 211 Cal.App.3d 634, 638 [an implied finding by the trial court that the defendant's crimes are divisible must be upheld if supported by the evidence].) We review the trial court's determination in the light most favorable to the respondent and presume the existence of every fact the trial court could reasonably deduce from the evidence. (Hutchins, supra, 90 Cal.App.4th at pp. 1312-1313.)
In this case, the evidence at the jurisdictional hearing established that the Ford Explorer (count 2) and the Volkswagen Jetta (count 3) were parked next to each other and that the fire "originated" in the Explorer. Similarly, the evidence established that the Toyota Corolla (count 4) and the Honda Civic (count 5) were parked near each other and that the Civic "had damage due to its close proximity to the Corolla." There was no evidence indicating that the Jetta burned because of an act by the minor that was separate from him setting fire to the Explorer, and there was no evidence indicating that the Civic burned because of an act by the minor that was separate from him setting fire to the Corolla. There was also no evidence that the minor had independent criminal objectives with respect to setting the Explorer on fire and causing the burning of the Jetta, or independent criminal objectives with respect to setting the Corolla on fire and causing the burning of the Civic. We therefore determine that section 654 precludes punishment for one of the arson counts in each instance. (Fry, supra, 19 Cal.App.4th at p. 1340.)
In reaching this conclusion, we agree with the minor that the multiple victim exception to section 654 does not apply in this case. The multiple victim exception applies " 'where . . . one act has two results each of which is an act of violence against the person of a separate individual.' [Citations.]" (Neal, supra, 55 Cal.2d at pp. 20-21, italics added; see also People v. Centers (1999) 73 Cal.App.4th 84, 99(Centers).)In other words, a defendant " ' "may be convicted and punished for each crime of violence committed against a different victim." [Citations.]' " (Centers, supra, at p. 99.) In People v. Clark (1990) 50 Cal.3d 583 (Clark), the defendant was convicted of, among other things, one count of arson, one count of murder, and two counts of attempted murder. (Id. at p. 593.) "The arson, murder, and attempted murders were committed by the act of igniting the fires in the victims' home." (Id. at p. 637.) The court determined that the punishment imposed for the arson count should be stayed pursuant to section 654. The court further determined that "[b]ecause the commission of arson is an act of violence that is likely to cause harm to more than one person, however, section 654 does not prohibit punishment for each of the attempted murders and the murder. (Neal[, supra, at pp.] 20-21.)" (Clark, supra, 50 Cal.3d at p. 637.) In the present case, unlike in Clark, there is no evidence that any victim suffered personal injuries as a result of the minor's arsons, nor was there any evidence that the arsons were a means for committing, or an attempt to commit, a crime of violence against the person of another.
Accordingly, we agree with the Attorney General's concession that section 654 precludes punishment for two of the seven counts of arson that the minor was found to have committed. Based on the application of section 654 to two of the counts, the Attorney General does not disagree with the minor's calculation of the maximum term of confinement. We agree that five years eight months is the correct calculation.
DISPOSITION
The dispositional order of July 26, 2010, is modified to indicate that the maximum term of confinement is fixed at five years eight months. As so modified, the order is affirmed.
BAMATTRE-MANOUKIAN, ACTING P.J. WE CONCUR: DUFFY, J. WALSH J.
Judge of the Santa Clara County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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