Filed 2/3/16 P. v. Quang CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G049784

         v.                                                            (Super. Ct. No. 12CF3471)

THANH VAN QUANG,                                                       OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County, Steven
D. Bromberg, Judge. Affirmed in part, reversed in part, and remanded for resentencing.
                   Christopher Nalls, 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, Arlene A. Sevidal and
Alastair J. Agcaoili, Deputy Attorneys General, for Plaintiff and Respondent.
              Appellant Thanh Van Quang was convicted of arson of an inhabited
structure for setting his motel room on fire. At trial, the evidence established the fire
occurred after appellant poured gasoline in the room, but the exact cause of the fire could
not be determined. Either appellant intentionally ignited the gasoline with a cigarette
lighter, or combustion resulted when the vapors from the gasoline came into contact with
the pilot light of the furnace in the room. Appellant contends that under these
circumstances the jury should have been required to agree unanimously on the precise
factual basis for his conviction. We disagree with that contention. However, as
respondent concedes, the trial court erroneously believed it lacked authority to dismiss a
sentence enhancement. Therefore, we will reverse appellant’s punishment on the
enhancement and remand the matter for resentencing. In all other respects, we affirm.
                                           FACTS
              On Friday, November 30, 2012, appellant was renting a second-story room
at the Pueblo Motel in Santa Ana. Appellant was paid up through the weekend, but that
afternoon he got into an argument with motel manager Myung Cha for having
unauthorized guests in his room, and Cha told appellant he would have to leave the
motel. Appellant got very angry and cursed Cha, but nothing more transpired at that
point; appellant’s guests left his room, and Cha returned to his office.
              A short time later, appellant walked down to the corner gas station and
bought a gallon-size gasoline container. He then filled the container with gasoline and
took it back to his motel room. For the next twenty minutes, appellant removed clothing
from his room and placed it on the walkway in front of his door. Then he reentered the
room and closed the door. A minute later, an explosion occurred inside the room, and
appellant was blown through the door and onto the walkway. Torched and tattered as he
was, appellant gathered himself and headed toward the exit. However, Cha stopped him
and called the police. In speaking with investigators, appellant initially blamed the fire
on Cha, insisting he had nothing to do with it. However, appellant eventually admitted

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having gasoline and a cigarette lighter inside his room. He claimed he had planned on
using the gasoline to burn his clothes out in the parking lot.
               Captain Brian Young of the Orange County Fire Authority testified
regarding the cause of the fire. He said gasoline vapors were detected on clothing
remnants and debris inside the room, indicating gasoline was poured throughout a wide
area. Indeed, appellant would have had to virtually empty his entire gasoline canister to
generate the sort of explosion that occurred. In Young’s opinion, there were two possible
sources of the fire: 1) The gasoline vapors came into contact with the pilot light of the
room’s furnace, or 2) the gasoline was ignited by an opened-flame device such as a
cigarette lighter.
               Appellant was charged with violating Penal Code section 451, which states:
“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.” For purposes of this section, malice means the intent to do a
wrongful act or to “vex, defraud, annoy or injure another person.” (Pen. Code, § 450,
subd. (e).) Thus, “‘“[a]n intentional act creating an obvious fire hazard . . . done without
justification . . . would certainly be malicious.”’ [Citation.]” (In re V.V. (2011) 51
Cal.4th 1020, 1028.) In fact, to satisfy the mens rea for arson, the evidence need only
show the defendant willfully intended to start a 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. 1029.)
               That being the case, the prosecutor argued it did not matter whether
appellant intentionally started the fire with his cigarette lighter or whether the furnace’s
pilot light sparked the blaze. The prosecutor contended appellant was guilty of arson
because his intentional act of pouring gasoline throughout the room created a direct,
natural and highly probable risk of fire. Defense counsel did not dispute whether
appellant poured gasoline in his motel room. However, he claimed appellant did not

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commit arson because he did not light the gasoline on fire or intend for the room to burn.
Rather, he simply wanted to burn his clothes out in the parking lot.
              The jury returned a general verdict of guilty on the arson count. It was not
required to agree unanimously on the precise factual basis for its decision.
                                       DISCUSSION
                          Failure to Give Unanimity Instruction
              Appellant contends the trial court should have given the jury a unanimity
instruction because there were two factually-distinct theories as to how the fire could
have started, i.e., the cigarette lighter theory and the pilot light theory. However, we do
not believe a unanimity instruction was required in this case.
              “In California, a jury verdict in a criminal case must be unanimous.
[Citation.] Thus, our Constitution requires that each individual juror be convinced,
beyond a reasonable doubt, that the defendant committed the specific offense he is
charged with. [Citation.] Therefore, when the evidence suggests more than one discrete
crime, either: (1) the prosecution must elect among the crimes; or (2) the trial court must
instruct the jury that it must unanimously agree that the defendant committed the same
criminal act. [Citations.] The unanimity instruction must be given sua sponte, even in
the absence of a defense request to give the instruction. [Citations.]” (People v.
Hernandez (2013) 217 Cal.App.4th 559, 569.)
              However, a unanimity instruction is not required simply because the
prosecution presents different theories of liability to the jury. As our Supreme Court has
explained, “The jury must agree on a ‘particular crime’ [citation]; it would be
unacceptable if some jurors believed the defendant guilty of one crime and other jurors
believed [the defendant] guilty of another. But unanimity as to exactly how the crime
was committed is not required. Thus, the unanimity instruction is appropriate ‘when
conviction on a single count could be based on two or more discrete criminal events,’ but
not ‘where multiple theories or acts may form the basis of a guilty verdict on one discrete

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criminal event.’ [Citation.] In deciding whether to give the instruction, the trial court
must ask whether (1) there is a risk the jury may divide on two discrete crimes and not
agree on any particular crime, or (2) the evidence merely presents the possibility the jury
may divide, or be uncertain, as to the exact way the defendant is guilty of a single
discrete crime. In the first situation, but not the second, it should give the unanimity
instruction.” (People v. Russo (2001) 25 Cal.4th 1124, 1134-1135.)
               Appellant asserts this case involves the first situation. In his view, a
unanimity instruction was required because some of the jurors may have believed he
poured the gasoline in his room without malice but was guilty of arson for setting the
gasoline on fire with his cigarette lighter, while other jurors may have rejected the lighter
theory and believed the gasoline pouring itself was indicative of malicious intent. In
other words, appellant believes a unanimity instruction was required to ensure the jurors
all agreed on which act – the pouring of the gasoline or the lighting of the gasoline –
formed the basis of his culpability.
              Appellant’s argument makes sense in theory, but the evidence does not
support his central premise that some of the jurors may have reasonably believed he
lacked malice when he poured the gasoline throughout his motel room. Prior to the
pouring, appellant was involved in a heated argument with motel manager Cha. Cha told
appellant he would have to vacate his room for violating the guest policy, and appellant
was very upset over the situation. As a way of expressing his displeasure, appellant
promptly obtained a gallon of gasoline and doused his room with it, which led to the fiery
explosion.
              Assuming some of the jurors believed appellant started the fire with his
lighter, it is unfathomable to think these same jurors could somehow conclude appellant
lacked malice when he poured the gasoline moments earlier. The sequence and timing of
the events simply does not lend support to the theory that appellant could have lighted but
not poured the gasoline with the requisite malicious intent. Rather, the evidence firmly

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established appellant harbored the requisite intent at the time he poured the gasoline.
Therefore, it is immaterial whether he started the fire with his lighter or it was caused by
the pilot light’s exposure to the gasoline vapors. Because the gasoline pouring amounted
to a singular criminal act upon which his culpability rested, the trial court did not err in
failing to give a unanimity instruction.
                                   Sentence Enhancement
              The jury found true an enhancement allegation that appellant used an
accelerant in committing arson. (Pen. Code, § 451.1, subd. (a)(5).) At sentencing, the
trial court was initially inclined to strike punishment for the enhancement. But after the
prosecutor reminded the court the enhancement is couched in mandatory terms, the court
changed its mind and imposed a three-year enhancement. This shows the court believed
it lacked authority to strike punishment for the enhancement.
              However, pursuant to Penal Code section 1385, courts have broad authority
to strike punishment for an enhancement in the interests of justice, even when the
enhancement is otherwise mandatory. (Pen. Code, § 1385, subd. (a), (c).) Because the
accelerant enhancement is devoid of language divesting the trial court of such authority,
the court possessed the power to strike punishment for the enhancement in this case.
(People v. Wilson (2002) 95 Cal.App.4th 198, 203.)
              The parties are in full agreement on that point. The only dispute is to
whether we should carry out the trial court’s initial intent to strike punishment for the
enhancement or remand the matter for resentencing. In light of the fact Penal Code
section 1385 requires the trial court to state its reasons for invoking that section –
something the trial court failed do in this case – we believe it is best to remand the matter
so the trial court can comply with this mandate. (See People v. Bonnetta (2009) 46
Cal.4th 143, 153.)




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                                     DISPOSITION
               Appellant’s sentence on the Penal Code section 451.1 enhancement is
reversed and the matter is remanded for resentencing. In all other respects, the judgment
is affirmed.



                                                BEDSWORTH, J.

WE CONCUR:



O’LEARY, P. J.



RYLAARSDAM, J.




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