Defendant was improperly convicted of both arson of an inhabited structure and arson of a structure under Penal Code section 451, subdivisions (b) and (c) because they are forms of the same offense of simple arson. Shiga was convicted of aggravated arson (Pen. Code, § 451.5), arson of an inhabited structure (Pen. Code, § 451, subd. (b)), and arson of a structure (Pen. Code, § 451, subd. (c)), among other charges, for the burning of a church and neighboring structures, causing over $3.2 million in property damage. Shiga appealed and the court addressed whether he was improperly convicted of two counts of arson under section 451, subdivisions (b) and (c), because section 451 defines a single crime of simple arson. Held: Reversed in part and remanded. Penal Code section 954 authorizes multiple convictions for different or distinct offenses, but 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.) In light of the statutory language in sections 451 and 451.1 (which addresses circumstances that, if found true, require an enhanced sentence when a person is convicted of arson under section 451), and section 451’s legislative history, section 451 criminalizes a single offense of arson. This court disagreed with the rationale and holding in People v. Corrigan (2019) 34 Cal.App.5th 14, which the California Supreme Court depublished after the opinion in this case was issued. Here, the convictions under section 451, subdivisions (b) and (c) are based on a single actus reus—Shiga setting a fire in the church with a tiki torch. The convictions for both counts were reversed and the case remanded for the trial court to enter a conviction on one of the offenses.

Arson of a structure and arson of an inhabited structure are not lesser included offenses of aggravated arson. Shiga also argued his convictions for arson of an inhabited structure and arson of a structure must be reversed because the offenses are lesser included offenses of aggravated arson under section 451.5. The Court of Appeal disagreed. 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. A conviction for arson under section 451 is not a lesser included offense of aggravated arson under section 451.5 because there are circumstances in which a defendant could be found guilty of aggravated arson without being found guilty of simple arson. Therefore, the offense of arson under section 451 is not a lesser included offense of aggravated arson.

The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/archive/B256009A.PDF