Filed 4/8/19
                             CERTIFIED FOR PUBLICATION

               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                FIRST APPELLATE DISTRICT

                                        DIVISION ONE


THE PEOPLE,
        Plaintiff and Respondent,
                                                    A154051
v.
JOSHUA CORRIGAN,                                    (Mendocino County
                                                    Super. Ct. No.
        Defendant and Appellant.                    SCUK-CRCR-14-80086-002)



        After a shed in which he was manufacturing drugs exploded, defendant Joshua
Corrigan pleaded no contest to four charges, including one count of unlawfully causing a
fire that caused an inhabited structure or inhabited property to burn under Penal Code 1
section 452, subdivision (b) and one count of unlawfully causing a fire of a structure or
forest land under subdivision (c) of that statute. The trial court sentenced him to seven
years in prison, including a one-year term for the first section 452 conviction and a stayed
two-year term for the other. On appeal, Corrigan contends, and the Attorney General
concedes, that under section 954 he could be convicted of either of these counts, but not
both, because they were based on a single fire. Although we agree with the parties that
the convictions were based on the same act or course of conduct, we conclude that both
convictions were nonetheless authorized under section 954. We therefore affirm.




        1
            All further statutory references are to the Penal Code unless otherwise noted.


                                                1
                                          I.
                                FACTUAL AND PROCEDURAL
                                     BACKGROUND
       Corrigan stored butane and other items in a wooden shed on an acquaintance’s
Ukiah property for the purpose of manufacturing “butane honey oil,” a form of
concentrated cannabis. 2 (See People v. Bergen (2008) 166 Cal.App.4th 161, 164.) On
November 5, 2014, another friend stopped by the shed to purchase marijuana from
Corrigan. When Corrigan lit a cigarette, the shed exploded, burning both men. An
assault rifle was later located underneath the shed.
       After the preliminary hearing, which did not occur until almost three years later,
Corrigan was charged with four felony counts: unlawfully causing a fire that caused an
inhabited structure or inhabited property to burn, unlawfully causing a fire of a structure
or forest land, unlawfully manufacturing butane honey oil, with an accompanying
allegation that he did so while armed, and possession of an assault rifle. 3 He pleaded no
contest to all four counts under an open plea for which his maximum exposure was nine
years and eight months in prison.
       In March 2018, the trial court sentenced Corrigan to a total term of seven years in
prison, composed of a term of five years for unlawfully manufacturing butane honey oil,
a consecutive term of one year for doing so while armed, and a consecutive term of one
year for unlawfully causing a fire at an inhabited property. A two-year term for the count
of unlawfully causing a fire of property and a two-year term for the count of possession
of an assault rifle were imposed and stayed.
       Corrigan appealed but did not seek a certificate of probable cause. He then sought
permission in this court to seek a belated certificate of probable cause. The Attorney

       2
        The facts in this paragraph are drawn from the transcript of the preliminary
hearing, which Corrigan stipulated provided the factual basis for his plea.
       3
         The charges were brought under sections 452, subdivisions (b) (fire causing
inhabited structure or inhabited property to burn) and (c) (fire of structure or forest land),
30605, subdivision (a) (possession of assault rifle), and Health and Safety Code
section 11379.6, subdivision (a) (manufacture of controlled substance). The arming
allegation was made under section 12022, subdivision (a)(1).


                                               2
General did not oppose relief, based on the constructive filing doctrine, and we granted
the request. Corrigan then successfully sought a certificate of probable cause on the
section 954 issue he now raises.
                                              II.
                                          DISCUSSION
       Corrigan claims that he could be convicted of only one of the section 452 charges
because subdivisions (b) and (c) constitute different statements of the same offense.
Alternatively, he claims that multiple convictions were prohibited because subdivision (c)
is a lesser included offense of subdivision (b). The Attorney General agrees with both
contentions, but we agree with neither.
       A.     General Legal Standards.
       Under section 452, “[a] person is guilty of unlawfully causing a fire when he [or
she] recklessly sets fire to or burns or causes to be burned, any structure, forest land or
property.” Under subdivision (b), “[u]nlawfully causing a fire that causes an inhabited
structure or inhabited property to burn is a felony punishable by imprisonment in the state
prison for two, three or four years, or by imprisonment in the county jail for not more
than one year, or by a fine, or by both such imprisonment and fine.” And under
subdivision (c), “[u]nlawfully causing a fire of a structure or forest land is a felony
punishable by imprisonment in the state prison for 16 months, two or three years, or by
imprisonment in the county jail for not more than six months, or by a fine, or by both
such imprisonment and fine.”
       As relevant here, section 954 provides, “An accusatory pleading may charge two
or more different offenses connected together in their commission, or different statements
of the same offense or two or more different offenses of the same class of crimes or
offenses, under separate counts . . . . The prosecution is not required to elect between the
different offenses or counts set forth in the accusatory pleading, but the defendant may be
convicted of any number of the offenses charged.” But while under section 954 a
defendant generally may be charged with and convicted of any number of offenses,
section 654 prohibits the defendant from being punished under more than one provision


                                              3
for a single act or omission. Thus, “[w]hile section 654 prohibits multiple punishment,”
under section 954 “it is generally permissible to convict a defendant of multiple charges
arising from a single act or course of conduct.” (People v. Sanders (2012) 55 Cal.4th
731, 736 (Sanders).)
       In arguing that he could be convicted of only one of the section 452 charges,
Corrigan relies on two exceptions to this general rule. First, “a ‘judicially created
exception . . . prohibits multiple convictions based on necessarily included offenses.’ ”
(Sanders, supra, 55 Cal.4th at p. 736.) Second, although section 954 “ ‘authorizes
multiple convictions for different or distinct offenses, [it] does not permit multiple
convictions for a different statement of the same offense when it is based on the same act
or course of conduct.’ ” (People v. Vidana (2016) 1 Cal.5th 632, 650 (Vidana).) The
issue whether multiple convictions are permissible under section 954 is reviewed de
novo. (People v. Villegas (2012) 205 Cal.App.4th 642, 646.)
       B.     The Exception for Necessarily Included Offenses Does Not Apply.
       We begin by addressing the simpler issue of whether “[u]nlawfully causing a fire
of a structure or forest land” under section 452, subdivision (c) is a necessarily included
offense of “[u]nlawfully causing a fire that causes an inhabited structure or inhabited
property to burn” under subdivision (b) of the statute. To determine whether one offense
is necessarily included in another for purposes of section 954, “ ‘a court should consider
only the statutory elements.’ [Citation.] ‘Under the elements test, if the statutory
elements of the greater offense include all of the statutory elements of the lesser offense,
the latter is necessarily included in the former.’ [Citation.] In other words, ‘ “[i]f a crime
cannot be committed without also necessarily committing a lesser offense, the latter is a
lesser included offense within the former.” ’ ” (Sanders, supra, 55 Cal.4th at p. 737.)
       Corrigan claims, and the Attorney General agrees, that “[t]he only difference
between [subdivisions (b) and (c) of section 452] is the heightened requirement under
subdivision (b) that the structure or property be inhabited.” We are not persuaded.
Under the elements test, we consider the entire statutory provision describing the crime,
not “the underlying facts of the case or the language of the accusatory pleading.”


                                              4
(Sanders, supra, 55 Cal.4th at p. 739.) In doing so, we determine whether it is possible
“[i]n the abstract” to violate one provision without violating the other. (Ibid.; see also
People v. Ortega (1998) 19 Cal.4th 686, 692.) An application of this test to section 452
reveals that it is possible in the abstract to violate subdivision (b), which penalizes
burning “an inhabited structure or inhabited property,” without violating subdivision (c),
which penalizes burning “a structure or forest land.” True enough, as the parties suggest,
it is not possible to burn an inhabited structure under subdivision (b) without also burning
a structure under subdivision (c). But setting a fire that causes an inhabited vehicle, such
as a camper, to burn violates subdivision (b) because a vehicle is property, yet it does not
violate subdivision (c) because a vehicle is neither a structure nor forest land. (See § 450,
subd. (c) [defining “property”].) Because it is therefore possible in the abstract to violate
one provision without violating the other, the exception for multiple convictions of
necessarily included offenses does not apply.
       C.     The Two Subdivisions Define Different Offenses.
       Accordingly, we turn to consider whether the second exception applies on the
basis that subdivisions (b) and (c) “define different offenses [instead of] merely
describ[ing] different ways of committing the same offense,” an issue that “properly turns
on the Legislature’s intent in enacting these provisions.” (People v. Gonzalez (2014) 60
Cal.4th 533, 537 (Gonzalez); see Vidana, supra, 1 Cal.5th at p. 650.) We focus on the
statutory language, giving the words “ ‘ “a plain and commonsense meaning” ’ ” and
construing them “ ‘ “ ‘ “in context, keeping in mind the nature and obvious purpose of the
statute.” ’ ” ’ ” (Gonzalez, at p. 537; see Vidana, at p. 638.)
       For reasons we shall explain, we conclude that the exception does not apply
because subdivisions (b) and (c) define different offenses. Our analysis is guided by
three recent Supreme Court decisions that have considered whether analogous statutory
schemes define different offenses. The first one, Gonzalez, considered whether a
defendant could be convicted under both subdivisions (f) and (i) of former section 288a




                                              5
based on the same act. 4 (Gonzalez, supra, 60 Cal.4th at p. 536.) Subdivision (a) of
former section 288a “defines oral copulation as ‘the act of copulating the mouth of one
person with the sexual organ or anus of another person.’ Subdivision (f) provides: ‘Any
person who commits an act of oral copulation, and the victim is at the time unconscious
of the nature of the act and this is known to the person committing the act, shall be
punished by imprisonment in the state prison for a period of three, six, or eight years. . . .’
Subdivision (i) provides: ‘Any person who commits an act of oral copulation, where the
victim is prevented from resisting by any intoxicating or anesthetic substance, or any
controlled substance, and this condition was known, or reasonably should have been
known by the accused, shall be punished by imprisonment in the state prison for a period
of three, six, or eight years.’ ” (Gonzalez, at p. 538.)
       The Supreme Court characterized former section 288a as thus “defin[ing] what
conduct constitutes the act of oral copulation” in subdivision (a) and then, in
subdivisions (b) through (k), “defin[ing] various ways the act may be criminal. Each
subdivision sets forth all the elements of a crime, and each prescribes a specific
punishment. Not all of these punishments are the same. That each subdivision of
[former] section 288a was drafted to be self-contained supports the view that each
describes an independent offense, and therefore section 954 is no impediment to a
defendant’s conviction under more than one such subdivision for a single act.”
(Gonzalez, supra, 60 Cal.4th at p. 539.)
       In the second case, Vidana, the Supreme Court held that larceny under
section 484, subdivision (a) and embezzlement under section 503 are different statements
of the same offense and cannot support multiple convictions based on the same act or
course of conduct. (Vidana, supra, 1 Cal.5th at pp. 647-648.) After observing it was not
definitive that “[l]arceny and embezzlement have different elements and neither is a
lesser included offense of the other,” the Court pointed out that the larceny statute also
prohibited embezzlement. The Court further pointed out that, to the extent there was
       4
         Former section 288a was recently amended and renumbered as section 287.
(Stats. 2018, ch. 423, § 49.)


                                               6
ambiguity, the legislative history of section 484 revealed an “obvious intent . . . to create
a single crime of theft.” (Vidana, at p. 648.) And lastly, the Court found it significant
that “[l]arceny under section 484[, subdivision (a)] and embezzlement under section 503
also generally have the same punishment.” (Id. at pp. 648-649.)
       Finally, in the third case, People v. White (2017) 2 Cal.5th 349 (White), the
Supreme Court applied Gonzalez—the case involving oral copulation under former
section 288a—to hold that a defendant could be convicted of both rape of an intoxicated
person under section 261, subdivision (a)(3) and rape of an unconscious person under
section 261, subdivision (a)(4)(A) based on the same act or course of conduct. (White, at
pp. 351-352.) In relevant part, section 261 provides: “(a) Rape is an act of sexual
intercourse accomplished with a person not the spouse of the perpetrator, under any of
the following circumstances: [¶] . . . [¶] (3) Where a person is prevented from resisting by
any intoxicating or anesthetic substance, or any controlled substance, and this condition
was known, or reasonably should have been known by the accused. [¶] (4) Where a
person is at the time unconscious of the nature of the act, and this is known to the
accused. As used in this paragraph, ‘unconscious of the nature of the act’ means
incapable of resisting because the victim meets any one of the following conditions: [¶]
(A) Was unconscious or asleep.”
       In Gonzalez, the Supreme Court had “distinguished People v. Craig (1941)
17 Cal.2d 453 (Craig), which . . . held that the different subdivisions of former
section 261 do not define different offenses,” on the basis that those subdivisions did not
each include all the elements of the crime or prescribe specific and varying punishments.
(White, supra, 2 Cal.5th at p. 354; Gonzalez, supra, 60 Cal.4th at p. 539.) In White, the
Court went further and overruled Craig, concluding that the different subdivisions of
section 261 define different offenses. (White, at p. 359.) The Court acknowledged that,
unlike former section 288a and the statutes defining the two other “major sex offenses” of
sodomy and sexual penetration, “[s]ection 261’s subdivisions are not self-contained” in
that the statute “defines and uses the word ‘[r]ape but once.” (White, at p. 357.) But the
Court determined that this structural difference did not “indicate[] a legislative intent to


                                              7
permit multiple convictions for the various subdivisions concerning oral copulation,
sodomy, or sexual penetration while forbidding multiple convictions for the otherwise
analogous provisions of rape. Substantively, the provisions regarding the four major sex
crimes parallel each other,” because “[t]he conduct and mental state of the perpetrator
and the characteristics of the victim that . . . transform these sexual acts into crimes are
essentially identical.” (Ibid.) As further support for its conclusion, the Court noted that
“different sections of the Penal Code provide sentencing consequences that are different
for some forms of rape than for others.” (Id. at p. 358.)
       In our case, Corrigan argues that subdivisions (b) and (c) of section 452 are
different statements of the same offense by contrasting them to the provisions of former
section 288a that Gonzalez addressed. He argues that unlike the Gonzalez provisions, the
subdivisions here “are not self-contained” because neither of them “contains the
necessary elements to convict a person for violating the statute. Notably missing . . . [is]
the element[] that the defendant acted recklessly in causing the fire.” (See Gonzalez,
supra, 60 Cal.4th at p. 539.) This argument might have had more force before White:
former section 288a, subdivision (a) merely defines what the act of “oral copulation”
consists of, whereas the first portion of section 452 defines when a person is guilty of
“unlawfully causing a fire,” including the required mind state. But even if the various
subdivisions of section 452 are not “self-contained” in this sense, White makes clear that
this factor is not dispositive. (White, supra, 2 Cal.5th at p. 357.)
       Instead, other aspects of section 452 lead us to conclude that, like the statutes at
issue in Gonzalez and White, it sets forth different offenses rather than different
statements of the same offense. Most significantly, each of the four subdivisions that
prohibits an unlawfully-caused fire is limited to a particular result—“great bodily injury,”
the burning of “an inhabited structure or inhabited property,” “a fire of a structure or
forest land,” and “a fire of property”—and sets forth a different punishment. (§ 452,
subds. (a)-(d).) Thus, causing the burning of an inhabited structure or inhabited property
causes a different type of injury, and exposes a defendant to a longer prison term, than
does causing a fire of a structure or forest land. (§ 452, subds. (b) & (c).) These


                                               8
characteristics strongly suggest that the two provisions define different offenses. (See In
re Jonathan R. (2016) 3 Cal.App.5th 963, 971 [interpreting Gonzalez to have “held, in
effect, that the Legislature is deemed to have intended to create separate offenses
whenever a statute isolates violations with separate elements and punishments in separate
subdivisions”]; cf. In re C.D. (2017) 18 Cal.App.5th 1021, 1027-1029 [distinguishing
Jonathan R. on basis of different statutory structure].)
       In addition, as discussed above, subdivisions (b) and (c) “differ in their necessary
elements . . . and neither offense is included within the other,” also suggesting that they
define separate offenses. (Gonzalez, supra, 60 Cal.4th at p. 539.) We recognize that,
under Vidana, this factor is also not determinative, but in that case other factors that are
absent here weighed in favor of concluding that the larceny and embezzlement provisions
constitute different statements of the same offense, including that violations “generally
have the same punishment.” (Vidana, supra, 1 Cal.5th at pp. 647-648.) Moreover,
Vidana involved another statute that equates “larceny, embezzlement or stealing” to
“theft” (§ 490a), as well as a distinct expression of legislative intent to “ ‘consolidate[]
the present crimes known as larceny, embezzlement and obtaining property under false
pretenses, into one crime, designated as theft.’ ” (Vidana, supra, 1 Cal.5th at p. 648.)
Neither party here has pointed us to any similarly clear expression of an intent for
unlawfully causing a fire to be considered the same offense regardless of the resulting
injury and despite the differing punishments. Although the case law cited by the parties
contains stray references to “the crime” or “the offense” of unlawfully causing a fire
(e.g., People v. Atkins (2001) 25 Cal.4th 76, 87, 89), such use of the singular outside the
section 954 context is of little significance. (Kinsman v. Unocal Corp. (2005) 37 Cal.4th
659, 680 [“ ‘It is axiomatic that language in a judicial opinion is to be understood in
accordance with the facts and issues before the court. An opinion is not authority for
propositions not considered.’ ”].) For example, White held that section 261 defines
multiple offenses for purposes of section 954, yet it is common to refer to “the crime” or
“the offense” of rape. (E.g., People v. Brooks (2017) 3 Cal.5th 1, 74; People v. Lewis
(2009) 46 Cal.4th 1255, 1301.)


                                               9
       In short, we conclude that subdivisions (b) and (c) of section 452 define separate
offenses and that neither is necessarily included in the other. As a result, section 954 did
not bar Corrigan’s convictions under both provisions.
                                            III.
                                       DISPOSITION
       The judgment is affirmed.




                                             10
                                  _________________________
                                  Humes, P.J.




WE CONCUR:




_________________________
Margulies, J.




_________________________
Banke, J.




People v. Corrigan A154051


                             11
Trial Court:

       Superior Court of the County of Mendocino



Trial Judge:

       Hon. Cindee F. Mayfield



Counsel for Defendant and Appellant:

       Patricia L. Brisbois, under appointment by the Court of Appeal


Counsel for Plaintiff and Respondent:

       Xavier Becerra, Attorney General

       Gerald A. Engler, Chief Assistant Attorney General

       Jeffrey M. Laurence, Senior Assistant Attorney General

       René A Chacón, Supervising Deputy Attorney General

       Julia Y. Je, Deputy Attorney General




People v. Corrigan A154051




                                           12
