People v. Alberts (32 Cal. App. 4th 1424, 1995)

Opinion

YEGAN, J.

Carole 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, count III). She meritoriously contends that she was improperly charged and sentenced pursuant to the general attempt statute, i.e., section 664 as opposed to the specific attempt statute for attempted arson, section 455.

Appellant worked at a McDonald’s restaurant in Simi Valley. On March 16, 1993, Suzanne Schaefer, the assistant manager at McDonald’s, terminated appellant’s employment. That evening Schaefer found a threatening note stuck into her car seat with a knife. Later that evening, Schaefer saw appellant leaving her driveway and discovered 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 because it applied to “any structure.”

The trial court ruled that appellant was properly charged because “. . . the Legislature has gone to 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 four 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 aids, counsels, or procures the burning of, any structure, forest land, or property. . . . [