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Name: People v. Kurtenbach
Case #: D058933
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 04/12/2012

Consecutive sentence for concealing an event affecting an insurance benefit is not barred by Penal Code section 654 where the act occurred at a time subsequent to the other offense (arson) and was thus “a course of conduct divisible in time.” Appellant’s residence was destroyed by arson. The arsonist, who was allegedly recruited by appellant to burn the house, was killed in an explosion. Appellant was found guilty of conspiracy to commit arson and concealing an event affecting an insurance benefit, among other offenses. His consecutive sentence for failing to disclose an event affecting an insurance benefit was not barred by Penal Code section 654 because this offense occurred at a time subsequent to the arson. A course of conduct which is divisible in time, even though it is directed towards one objective, may result in multiple convictions and punishments. The defendant has an opportunity to reflect between the time each offense is committed and chooses to renew his intent. However, appellant’s sentence for vandalism to a neighbor’s house which occurred as a result of the fire, was precluded by section 654. Appellant’s intent was to burn down his house; the damage to his neighbor’s house was collateral to that intent. Both offenses were therefore incident to one intent and constituted one indivisible transaction.

There was no prejudicial error resulting from the trial court’s failure to instruct on aiding and abetting. Penal Code section 451 provides that a person is guilty of arson when he or she willfully and maliciously burns, or aids, counsels or procures the burning of a structure. The prosecution here relied on the theory appellant “counseled” or “caused” the fire. Without deciding whether aiding and abetting instructions are required when the prosecution relies upon the theory a defendant aided or procured the burning of a structure, the court found any error harmless. In convicting appellant of conspiracy to commit arson the jury found appellant did agree with the arsonist to burn the structure. In addition, the instruction for the arson count required the jury to find appellant acted maliciously and willfully.

The offense of failing to disclose an event affecting an insurance benefit (Pen. Code, § 550, subd. (b)(3)) does not violate the privilege against self incrimination. Appellant’s conviction for failing to disclose an event affecting an insurance benefit was based on his failure to inform his insurance carrier that the burning of his house resulted from arson. A self-incrimination defense is not available when the incriminating disclosure required by a statute is “required for compelling reasons unrelated to criminal law enforcement” and is part of a regulatory scheme. The disclosure required does not target a highly selected group suspected of criminal activities and will not usually require incriminating information. This is a regulatory statute involving insurance claims, essentially a legal activity, and was enacted for a compelling purpose other than to force disclosure of information to be used in criminal prosecutions. Finally, the testimony was not compelled, which is a prerequisite to a Fifth Amendment claim, as applying for an insurance benefit is a voluntary act.