Opinion
Cаrole Lynne Alberts was convicted in a court trial of two counts of attempted arson of an inhabited structure (Pen. Code, §§ 664, 451, subd. (b), counts I and II,) and making a terrorist threat (Pen. Code, § 422,
Appellant worked at a McDonald’s rеstaurant in Simi Valley. On March 16, 1993, Suzanne Schaefer, the assistant manager at McDonald’s, terminated appellant’s employment. That evening Schaefеr found a threatening note stuck into her car seat with a knife. Later that evening, Schaefer saw appellant leaving her driveway and discoverеd broken eggs on the porch of her house.
The next morning, a wooden gate at Schaefer’s residence was set on fire. The fire was extinguished. That evening, Schaefer saw appellant climbing over her back fence. Then Schaefer saw a flaming blanket next to the back of her house. That fire was also extinguished.
Appellant denied being angry at her termination from McDonald’s and denied having committed any of the offenses.
Appellant brought the charging problem to the trial court’s attention and moved for dismissal. She argued that she should have been charged with violating section 455. The People argued that the charging was lawful because section 451, subdivision (b) was specific and focused on “inhabited” structures and that section 455 was general beсause it applied to “any structure.”
The trial court ruled that appellant was properly charged because “. . . the Legislature has gone tо the trouble of particularizing punishment for particular types of arson, that being arson of an inhabited structure. . . .” It sentenced appellant to the upper four-year term on count I, ten months on count II, and eight months on count III, such sentences to run consecutively, aggregating to five years and fоur months.
Section 451, subdivision (b) provides, in pertinent part: “A person is guilty of arson when he or she willfully and maliciously sets fire to or bums or causes to be burned or who аids, counsels, or procures the burning of, any structure, forest land, or property. . . . [<fl] (b) Arson that causes an inhabited structure or inhabited property to bum is a felony punishable by imprisonment in the state prison for three, five, or eight years.”
Section 455, in pertinent part provides: “Any person who willfully and maliciously attempts to set fire to or attempts to bum or to aid, counsel or рrocure the burning of any structure, forest land or property, or who commits any act preliminary thereto, or in furtherance thereof, is punishable by imprisonment in the state prison for 16 months, two or three years.”
“ ‘The problem ... is one of trying to ascertain the legislative intent . . . .’ ”
(In re Pedro T.
(1994)
There are several reasons why we are compelled to conclude that the section 455 penalty scheme is here controlling. First, “[i]t is the policy of this state to construe a penal statute as fаvorably to the defendant as its language and the circumstances of its application may reasonably permit; just as in the case of a question of fact, the defendant is entitled to the benefit of every reasonable doubt as to the true interpretation of words or the construction of language used in a statute.”
(Keeler
v.
Superior Court
(1970)
Second, section 664 expressly says that it applies “. . . where no provision is made by law for the punishment of such attempts . . . ." Herе, the Legislature has provided for the punishment of arson attempts in section 455. Were we to adopt the People’s theory, credited by the trial court, we would have to “rewrite” section 455 as follows: “Any person who willfully and maliciously attempts to set fire to or attempts to bum . . . any structure [except an inhabited dwelling] is punishable by imprisonment in the state
Third, the conduct prescribed in section 455 is “specific” and the conduct prescribed in section 664 is “general” within the meаning of the rule established by our Supreme Court in cases such as
People
v.
Gilbert
(1969)
In
In re Williamson, supra,
Here the general statute, i.e., the combinаtion of sections 664 and 451, subdivision (b) conflicts with the special statute, i.e., section 455. The term “structure” “means any building, or commercial or public tent, bridge, tunnel, оr powerplant.” (§ 450 subd. (a).) “Inhabited” means “currently being used for dwelling purposes whether occupied or not.” (§ 450, subd. (d).) A “structure” necessarily includes “inhabited structurеs” such as the one owned by the victim herein. Thus, the general statutes (§§664, 451 subd. (b)) are included in the special statute (§ 455). Since these sections cannot be reсonciled, section 455 must prevail. (People v. Wheeler, supra, 4 Cal.4th at p. 293.) 2
The judgment is modified to show that appellant was convicted of two counts of violating section 455. The sentencе is modified to show that as to
Stone (S. J.), P. J., and Gilbert, J., concurred.