Filed 8/11/15 P. v. Gao CA2/8
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION EIGHT


THE PEOPLE,                                                          B258441

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. GA090641)
         v.

XIN GAO,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County.
Cathryn F. Bougham, Judge. Affirmed in part, reversed in part and remanded for
resentencing.


      Gordon B. Scott, under appointment by the Court of Appeal, for Defendant and
Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General and Lance E. Winters, Assistant Attorney General, Margaret E. Maxwell and
Nathan Guttman, Deputy Attorneys General, for Plaintiff and Respondent.


                                       __________________________
       After a trial by jury, defendant Xin Gao was convicted of attempted arson (count
1), second degree burglary (count 2), and misdemeanor vandalism (count 3). He was
sentenced to the high term of three years in count 1. The trial court imposed the terms on
counts 2 and 3 to run concurrently with count 1. The defendant contends the trial court
committed sentencing error on count 2 by failing to stay the burglary term pursuant to
Penal Code section 654.1 The People concede error. We agree. Therefore, we reverse
and remand for resentencing only. Otherwise, the judgment is affirmed.

                              FACTUAL BACKGROUND

       Defendant lost his home in a foreclosure sale. The purchaser obtained an eviction
order and posted a notice to vacate. On the evening of August 12, 2013, the San Marino
Fire Department responded to the home on a reported smell of gas. Upon arrival,
firefighters contacted the defendant who was at the scene. He had red paint on his
clothing. The firefighters observed red paint on the exterior walls, doors and window that
was still wet. The firefighters unlocked the door with the key defendant provided. They
saw no sign of forced entry. The smell of gas was stronger inside the home. Firefighters
saw indications of attempted arson: (1) the valve on the gas line to the dryer was open,
(2) combustible materials were placed around the home, and (3) a lit candle was placed
next to the stove. Additional investigation turned up a used can of red spray paint in
defendant’s car. Subsequent forensic comparison showed the paint on the home and on
defendant’s clothing was the same type as the paint from the used can inside the car.
       Defendant testified at trial. He owned the home as an investment. However, he
was unable to rent it since 2009. On the date of the incident, defendant stated he felt a
sudden urge to see the home. He arrived sometime between 8:00 and 9:00 p.m. After
unlocking the bottom lock but before he inserted his key into the top lock, the door
swung open. This was odd since he had previously locked up the premises. Upon entry,



1      All future undesignated statutory references are to the Penal Code.


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he saw smoke and noticed a strong smell of gas. He retreated. Defendant was unable to
find the gas shut-off valve and called 911 from a neighbor’s phone.
       The jury convicted the defendant as previously indicated.

Sentencing

       At sentencing, the People argued section 654 did not apply because each offense
was a “separate transaction.” Defendant asked for probation. Alternatively, he argued
section 654 barred multiple punishments but under the mistaken belief concurrent
sentences would solve the problem.
       On August 15, 2014, the trial court sentenced defendant to three years in prison,
the high term on count 1. In choosing that term, the trial court acknowledged defendant
was in his 50’s and had no prior record. Despite that, the trial court reasoned, “. . . the
facts of this case indicate a complete disregard for human life or human safety. After
[trying to] blow up the property that was in dispute, and it didn’t work for some reason,
he stood there outside the house and opened the door allowing the firefighters to be
introduced to extreme danger and it was just good fortune that no one was hurt. [¶] . . .
[¶] . . . [¶] . . . [¶] So, based on those facts alone, an extensive preparation and
planning that he put into committing this crime, the court is going to elect on count 1
[attempted arson], the high term, which is three years.” The trial court continued: “As to
count 2, [burglary], the court elects one-third the midterm, which is eight months.” The
trial court ordered the sentences on counts 1 and 2 to run concurrently.
       Defendant timely appealed.

                                       DISCUSSION

A.     Concurrent Sentences on Counts 1 (Attempted Arson) and 2 (Burglary) Violated
       Section 654

       Section 654 generally precludes multiple punishments for a single physical act that
violates different provisions of law. (People v. Jones (2012) 54 Cal.4th 350, 358.) It also
prohibits separate punishment when several crimes are committed during an indivisible

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course of conduct. (People v. Correa (2012) 54 Cal.4th 331, 336; People v. Ortiz (2012)
208 Cal.App.4th 1354, 1377.) Two exceptions are recognized: (1) acts of violence
against separate victims and (2) multiple criminal objectives which are independent of
and not merely incidental to each other. (People v. Martin (2005) 133 Cal.App.4th 776,
781 et seq.) Under section 654, if, as in this case, the attempted arson was the basis of
the illegal entry constituting the crime of burglary, absent evidence the defendant entered
the home with a separate criminal objective from the attempted arson, he may not be
separately punished.2 (People v. Williams (1971) 19 Cal.App.3d 339, 342, 345, 349
[section 654 bars multiple punishment on convictions for arson and second degree
burglary based on evidence that the defendant was one of several people who broke into a
high school, poured gasoline in the building and lit it on fire.].)
       When section 654 applies, the trial court should assess all counts arising out of the
same course of conduct, impose sentence on the offense that provides for the longest
potential term, then impose and stay execution of sentence on all other counts, with the
stay to become permanent upon the completion of the term not stayed. (People v. Duff
(2010) 50 Cal.4th 787, 796; People v. McCoy (2012) 208 Cal.App.4th 1333, 1338;
People v. Alford (2010) 180 Cal.App.4th 1463, 1466 (Alford); People v. Cantrell (2009)
175 Cal.App.4th 1161, 1164 (Cantrell).) Staying the actual imposition of sentence or
imposing a concurrent sentence are both inadequate to comply with section 654. (Alford,
at p. 1468.)
       In this case, the defendant committed burglary with the intent to commit arson.
The evidence discloses no other intent. Section 654 applied. Thus, the trial court erred
when it imposed concurrent sentences. (People v. Williams, supra, 19 Cal.App.3d at
p. 1473.) Attempted arson and burglary carry the same maximum terms.3 Under section

2      Burglary is not a violent crime unless there is a finding that the defendant
committed great bodily injury or personally used a firearm during the commission of the
burglary. (People v. Centers (1999) 73 Cal.App.4th 84, 99.)

3      Attempted arson is punishable by 16 months, two or three years in state prison.
(§ 455, subd. (a).) Second degree burglary is punishable by no more than one year in

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654, the trial court could have chosen either count on which to impose the un-stayed
term. There was no error in choosing count 1. However, the choice and manner of
imposing the term on count 2 constituted error. First, choosing one-third of the middle
term is appropriate only when a consecutive sentence is imposed under section 1170.1,
subdivision (a). Second, when section 654 bars multiple punishments, a concurrent term
may not be imposed.

B.     The Proper Appellate Remedy

       Defendant and the People both request remand with directions to the trial court to
stay sentence on the burglary count. They agree that the one-third-the-midterm rule
applies only to a consecutive sentence, not to a sentence stayed pursuant to section 654.
(See Cantrell, supra, 175 Cal.App.4th at p. 1164; § 1170.1.)4
       The appellate court has authority to correct an unauthorized sentence, including a
sentence that violates section 654. (§ 1260; Cantrell, supra, 175 Cal.App.4th at p. 1165;
Alford, supra, 180 Cal.App.4th 1463.) In Alford, supra, the trial court failed to impose
but merely stayed the imposition of sentence on a conviction of grand theft, believing this
complied with section 654. The appellate court modified the judgment by imposing the
two-year midterm, reasoning that it was “undoubtedly the sentence the trial court would
have imposed, because the grand theft involved essentially the same conduct as the



county jail or 16 months, two or three years in state prison. (§§ 461, subd (b), 1170,
subd. (h).)

4      In Cantrell, the defendant was convicted of first degree burglary and attempted
second degree robbery. The trial court sentenced the defendant to two years (the one year
low term doubled) on the attempted robbery count; pursuant to section 654, it stayed that
sentence. On appeal, the defendant argued the sentence on the attempted robbery should
have been one-third of the two-year midterm pursuant to section1170.1. The appellate
court held the one-third-the-midterm rule was inapplicable to a stayed sentence. But,
because the low term for attempted robbery was 18 months, not one year, it modified the
defendant’s sentence to 32 months (the 18 month low term doubled) stayed under
section 654. (Id. at p. 1164.)

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burglary.” (Id. at p. 1473.) The Alford court explained that it could remand for
resentencing, but “[t]he futility and expense of such a course militates against it.” (Ibid.)
       Here, we cannot discern what sentence the trial court would have imposed. In
such a case, the appropriate remedy is to remand the case for resentencing on count 2.

                                      DISPOSITION

       The sentence imposed on count 2 is vacated. The matter is remanded for the trial
court to exercise its discretion in choosing the term and resentencing the defendant
consistent with section 654. In all other respects, the judgment is affirmed.




                                                  OHTA, J.*
WE CONCUR:



              BIGELOW, P. J.



              GRIMES, J.




*
        Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

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