People v. Shiga

Filed 4/17/19; opinion following recall of remittitur
CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE, B256009

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA097949)
v.

GREGORY YUSUKE SHIGA,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los
Angeles County, Thomas C. Falls, Judge. Affirmed in part;
reversed in part and remanded for resentencing.
Stephen M. Hinkle, under appointment by the Court of
Appeal, for Defendant and Appellant.
Kamala Harris and Xavier Becerra, Attorneys General,
Gerald A. Engler, Chief Assistant Attorney General, Lance E.

* Pursuant to California Rules of Court, rules 8.1100 and
8.1110, this opinion is certified for publication with the exception
of part C., D., E., F.1., F.3., G. and H. of the Factual and
Procedural Background, and parts A., B., C., E. and F. of the
Discussion.
Winters, Assistant Attorney General, Scott A. Taryle, Russell A.
Lehman, David E. Madeo and Pamela C. Hamanaka, Deputy
Attorneys General, for Plaintiff and Respondent.

_______________________

Defendant Gregory Yusuke Shiga was convicted of
aggravated arson, arson of a structure, arson of an inhabited
structure, possession of flammable material, and second degree
burglary arising from the 2011 burning down of St. John Vianney
Catholic Church in Hacienda Heights. The jury also found true
the special allegations the arson was caused by use of a device
designed to accelerate the fire or delay ignition; Shiga
proximately caused multiple structures to burn; and Shiga
caused property damage exceeding $3.2 million. The trial court
sentenced Shiga to an aggregate state prison term of 18 years to
life.
In the published part of the opinion, we conclude the crimes
of arson of an inhabited structure and arson of a structure under
Penal Code section 451, subdivisions (b) and (c),1 respectively, are
forms of the same offense of simple arson. Therefore, Shiga was
erroneously convicted of both crimes. We reverse Shiga’s
convictions on counts 2 and 5 and remand for the People to elect
on which count they want to proceed. Shiga also contends 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. This
contention lacks merit because a defendant can commit

1 All further undesignated references are to the Penal Code.

2
aggravated arson without necessarily committing arson, whether
of a structure or an inhabited structure.
In the unpublished part of the opinion, we address Shiga’s
contentions concerning his competence to stand trial and to
represent himself at trial. In Shiga’s initial appeal, he argued
the trial court erred in failing to conduct hearings on his
competency to represent himself and to stand trial. We agreed,
and remanded with instructions to the trial court to determine
whether it was feasible retrospectively to determine Shiga’s
mental competency at the time of trial to represent himself and
to stand trial, and if it was feasible, whether Shiga was
competent in both respects. (People v. Shiga (2016) 6 Cal.App.5th
22, 50 (Shiga I).) On remand the trial court concluded a
retrospective determination of Shiga’s competency was feasible,
and found that at the time of trial Shiga was both competent to
represent himself and to stand trial. In this reinstated appeal,
Shiga contends the trial court erred in both these determinations.
We conclude it did not.
In the unpublished portion of the opinion we also address
numerous sentencing issues. Shiga contends in his supplemental
briefing, the People concede, and we agree the trial court erred in
failing to stay his sentence on count 3 for possession of flammable
material pursuant to section 654 because this offense was based
on Shiga’s possession of the flammable materials he used to
commit aggravated arson, for which he was sentenced on count 1.
The People also concede and we agree the trial court erred
when it imposed two 5-year enhancements under section 451.1,
subdivision (a), on count 2 for the use of a device designed to
accelerate the fire (§ 451.1, subd. (a)(5)), and causing multiple
structures to burn (§ 451.1, subd. (a)(4)), because subdivision (a)

3
provides for a single enhancement “if one or more” of the bases
for the enhancement are true. Therefore, if the People elect to
proceed on count 2, the trial court may only impose one of the two
enhancements under section 451.1. We also agree, as conceded
by the People, the jury’s true finding on count 1 as to the five-
year enhancement under section 451.1, subdivision (a), must be
reversed because the enhancement only applies to a conviction
for a “felony violation of Section 451,” not aggravated arson under
section 451.5.
Finally, Shiga contends in his second supplemental briefing
the enhancement the trial court imposed on count 2 under former
section 12022.6, subdivision (a)(4), for causing damage in excess
of $3.2 million, must be stricken because the enhancement was
repealed by its own terms, effective January 1, 2018. (Former
§ 12022.6, subd. (f).) We reject this contention because the repeal
of former section 12022.6 does not apply retroactively.
We reverse Shiga’s convictions for arson on counts 2 and 5.
On remand the People should elect whether to proceed on count 2
under section 451, subdivision (c), or count 5 under section 451,
subdivision (b), and the trial court should then enter a conviction
on one of the offenses. We also reverse the jury’s true finding on
the section 451.1, subdivision (a), enhancement as to count 1. We
remand for resentencing with directions for the trial court to stay
Shiga’s sentence on count 3 for possession of flammable material
pursuant to section 654 and, if it reinstates Shiga’s conviction on
count 2, to impose only one 5-year sentence enhancement under
section 451.1, subdivision (a).

4
 FACTUAL AND PROCEDURAL BACKGROUND2

A. The Arson of the Church
On April 15, 2011 St. John Vianney Catholic Church in
Hacienda Heights was set on fire. The blaze quickly spread to an
adjacent rectory where two of the church’s priests were sleeping.
Both priests safely escaped the flames, but the firefighters were
not able to save any portion of the church.

B. The Information
An amended information charged Shiga with aggravated
arson (§ 451.5, subd. (a); count 1); arson of a structure (§ 451,
subd. (c); count 2); possession of flammable material (§ 453, subd.
(a); count 3); second degree commercial burglary (§ 459; count 4);
and arson of an inhabited structure or property (§ 451, subd. (b);
count 5). The information further alleged as to counts 1, 2, and 5,
the arson was caused by use of a device designed to accelerate the
fire or delay ignition (§ 451.1, subd. (a)(5)); as to counts 1 and 2
Shiga proximately caused multiple structures to burn (§ 451.1,
subd. (a)(4)); and as to count 2 Shiga caused property damage
exceeding $3.2 million in value (former § 12022.6, subd. (a)(4)).

2 In our discussion of the factual and procedural background
of the case, we focus on the proceedings relevant to this appeal.
We discuss the earlier proceedings in greater detail in Shiga I,
supra, 6 Cal.App.5th 22.

5
C. The Department 95 Proceedings*
In July 2012 the trial court appointed Dr. Nadim N. Karim
as a defense expert to evaluate Shiga’s competence to stand trial.
During the assessment Shiga told Dr. Karim he would be found
not guilty at trial on the arson charges “based on the evidence.”
Shiga explained, “My DNA is not on the tissue. The video is not a
clear picture. There are no fingerprints.” When Dr. Karim asked
Shiga if he had released his mental health records to his
attorney, Shiga responded, “I’m not mentally ill. I’m not using
my mental illness as a reason for this crime. [¶] . . . [¶] . . . I’m
in no position to use my mental illness as an excuse for
anything. . . . [¶] . . . How is my mental illness going to help me
at all?”
In his July 29, 2012 report, Dr. Karim described Shiga as
having symptoms of schizophrenia and opined Shiga was
incompetent to stand trial because he lacked the “sufficient
present ability in order to assist his attorney in his defense” due
to “his fixed false belief (perhaps even delusional ideation) that
he does not have a mental illness, and that his mental illness has
nothing to do with his defense.”
On July 30, 2012 defense counsel requested the trial court
declare a doubt as to Shiga’s competency to stand trial. The trial
court declared a doubt, ordered the criminal proceedings
suspended, and transferred the case to the Mental Health

* See footnote, ante, page 1.

6
Department of the Los Angeles Superior Court (Department 95)
to determine Shiga’s competency.3
The court appointed Dr. David C. Stone to assess Shiga.
Dr. Stone met with Shiga for approximately one hour on
August 28, 2012, and issued his report on October 15. Dr. Stone
opined Shiga suffered from a psychiatric disorder, most likely
chronic paranoid schizophrenia. Dr. Stone opined Shiga was able
to understand the nature of the proceedings against him, but was
not able to assist counsel in his defense in a rational manner.
Dr. Stone based his conclusion on Shiga’s denial he suffered from
schizophrenia or other mental illness, his minimization of his
symptoms, and his ambivalence about allowing his attorney to
introduce evidence of mental illness at trial. Dr. Stone noted,
“While Mr. Shiga’s intelligence helps him cover over psychotic
symptoms better than other patients, with time, the psychotic
material came out.” Dr. Stone concluded Shiga was not mentally
competent to stand trial.
On October 19, 2012, at the request of the People, the court
appointed Dr. Kory J. Knapke to evaluate Shiga. Dr. Knapke
evaluated Shiga on December 12, 2012 and issued his report the
next day. Dr. Knapke found “no clinical evidence of psychosis
during [his] clinical examination,” and stated he “was somewhat
puzzl[ed] as to why a doubt was declared concerning [Shiga’s]
competency.” Dr. Knapke opined, “I strongly believe the
defendant is competent to stand trial.”

3 The record does not reflect which judicial officer presided
over the July 30, 2012 proceeding. Judge Samantha Jessner
presided over all proceedings involving Shiga in Department 95.

7
 On December 19, 2012, in light of the conflicting opinions
rendered by Drs. Stone and Knapke, the court appointed
Dr. Sharma to evaluate Shiga. Dr. Sharma interviewed Shiga
and found “no evidence of serious mental illness.” Dr. Sharma
concluded in his brief report he “agree[d] with Dr. Knapke” that
Shiga was competent to stand trial.
On December 19, 2012 the trial court in Department 95
received the reports from Drs. Sharma and Knapke into evidence,
and it found Shiga was “presently competent to stand trial.”
Department 95 transferred Shiga’s case back to the trial court.

D. Defense Counsel’s Request for a Continuance and Shiga’s
Request To Represent Himself*
On the morning of June 19, 2013 the trial court4 held an ex
parte proceeding in camera with defense counsel to discuss
defense counsel’s request for a continuance of the trial date.
Shiga was not present because he refused to leave his jail cell.
Defense counsel sought a continuance for him to obtain the
appointment of a mental health expert and to investigate
whether Shiga had a defense based on lack of the requisite
mental state to commit aggravated arson, a specific intent crime.
Defense counsel explained Shiga was housed in the mental
health area of the jail, and Shiga’s competency to stand trial had
earlier been in doubt. More recently, defense counsel had
received Shiga’s psychiatric file from Shiga’s sister. The records
showed a diagnosis of schizophrenia and delusions. Defense

* See footnote, ante, page 1.
4 Judge Douglas Sortino.

8
counsel had also learned Shiga’s regular psychiatrist had died
sometime in the previous year.
During prior discussions between Shiga and his attorney
about the possibility of a plea of not guilty by reason of insanity,
Shiga had refused to consider an insanity plea “in any way,
shape, or form.” Defense counsel believed he would be providing
ineffective assistance of counsel if he did not fully explore a
mental health defense.
After resuming the matter in open court, the trial court
ordered Shiga to be extracted from his jail cell the same day.
When Shiga appeared that day, the court granted defense
counsel’s request for a 50-day continuance. Shiga objected to the
continuance, stating he did not want to waive time, and he
requested to represent himself. The court told Shiga another
judge would hear his motion to represent himself that afternoon,
and gave him a form containing a Faretta advisement and waiver
of right to counsel. (Faretta v. California (1975) 422 U.S. 806
(Faretta).)

E. Shiga’s Faretta Hearings*
On the afternoon of June 19, 2013 the trial court5 heard
Shiga’s motion to represent himself. The court advised Shiga
against self-representation and warned him it could be a “total
disaster.” The court explained Shiga would be disadvantaged
because he did not understand trial procedure or the rules of
evidence. Shiga responded he believed he was prepared and
wanted to “give the jury a different point of view.”

* See footnote, ante, page 1.
5 Judge Jack P. Hunt.

9
 The prosecutor cautioned that Shiga had refused to appear
in court on a number of occasions, causing the court to issue
extraction orders, and that discovery could not be fully redacted
before the trial was scheduled to begin in two days. When the
court warned Shiga he would be going to trial “with no tapes, no
reports,” Shiga responded he “would love to.” The court
continued the hearing on Shiga’s motion and ordered him back in
two days.
On June 21 Shiga’s Faretta hearing resumed. The trial
court6 explained to Shiga that defense counsel wanted a mental
health expert to assess him for a report that could assist his
defense and possibly spare him a life sentence. Shiga said he
understood he would not have the benefit of the report, but still
wanted to represent himself. He explained he “would like to go in
a different way to defend this trial.”
The trial court conducted a “mini Marsden” hearing,7
without the prosecutor present, to determine whether Shiga
wanted to replace his attorney. The court asked Shiga if he had
any complaints about his attorney other than his desire to
present a mental health defense, and Shiga responded he did not.
The court inquired of defense counsel if he would be willing to
forego exploration of a mental health strategy and to represent
Shiga at trial if Shiga “waive[d] effective assistance of counsel
with regard to that issue.” Defense counsel declined, saying it
would be “malpractice.” Shiga asked the court whether “using

6 Judge Thomas C. Falls presided over the continued Faretta
hearing and Shiga’s trial.
7 People v. Marsden (1970) 2 Cal.3d 118.

10
the medical records” in his defense “would be absurd.” The court
replied it was “not even remotely absurd.”
The trial court again explained to Shiga why it was unwise
for him to represent himself. Shiga stated, “I understand, your
honor. To the fullest point, I do understand, but I believe that I
have a chance in this case being able to let the jury understand
that even with all the evidence, the uncircumstantial evidence,
that it won’t pass beyond a reasonable doubt.” The court
described Shiga’s chances of winning against the district attorney
as “almost impossible.” The court suggested Shiga give his
attorney 30 days to explore a mental health defense, and then
decide about self-representation. Shiga declined and indicated he
really wanted to go to trial.
The trial court called the prosecutor back into the
courtroom. The court asked Shiga if he was willing to proceed
with his attorney in the absence of a mental health defense.
Shiga said he was not and repeated that he wished to represent
himself. The court found Shiga’s request for self-representation
was unequivocal, “not conditioned on whether or not there’s a
psych defense.” The court again advised Shiga against
representing himself and reviewed the rights Shiga was waiving.
Shiga said he understood and wanted a “speedy trial.”
After the court’s Faretta advisements, the prosecutor raised
a concern over Shiga’s competency to represent himself under
Indiana v. Edwards (2008) 554 U.S. 164 (Edwards). The
prosecutor pointed to Shiga’s prior competency hearing, history of
schizophrenia, failures to appear in court, and rejection of a
mental health defense as reasons for the court to perform a
“closer evaluation” before allowing Shiga to represent himself.
The court declined to “take a second look” at the Department 95

11
competency determination. The court found Shiga was
competent to waive his right to counsel and granted Shiga’s
Faretta motion. The trial court ordered the trial to start in three
days.
On the day of trial, prior to jury selection, the prosecutor
told the court she and defense counsel had redacted
approximately 1,000 pages of discovery, but Shiga had not had an
opportunity to review it. Shiga responded he did not need to
review the discovery because he was “already prepared.” The
trial court warned Shiga if he failed to appear during trial, his
right to self-representation would be immediately revoked.

F. The Trial
1. Jury selection*
On June 24, 2013 jury selection commenced. Shiga actively
participated in the jury selection process. At one point, the
prosecutor was inquiring of a prospective juror whether the juror
would be willing to convict Shiga if a single witness testified to
“every single element of every single crime.” The prospective
juror stated she would need more information, and would wonder
why the prosecutor did not call other witnesses on her witness
list. The prosecutor then asked the same question of the next
prospective juror, who likewise stated, “I think I need to hear
more.” The prosecutor responded, “I know you would, but you
don’t have to. . . . Once you believe beyond a reasonable doubt
that Mr. Shiga is guilty of these crimes, and that’s every element.
This one witness does it all.” Shiga asserted an objection to the
prosecutor’s statement, which the trial court sustained. The

* See footnote, ante, page 1.

12
court instructed the prosecutor to refer to a hypothetical
defendant rather than to Shiga in her statements to the
prospective jurors.
Shiga also questioned a prospective juror on whether she
had sufficient time to participate in the case because she was a
college student. The prospective juror responded that summer
school had not yet started. Shiga also inquired of another
prospective juror who indicated she was a student studying
psychology. Shiga asked how many years she had attended
college and what experience she had in the field of psychology.
The prospective juror responded she was starting her fourth year
of college and had not yet graduated in the field of psychology.
Shiga also questioned several prospective jurors about their
ability to understand English. One of the jurors was looking
away as Shiga questioned him. Shiga asked him whether this
was because he was not paying attention or he did not
understand. When the prosecutor moved to dismiss the jurors for
cause, Shiga initially argued for retention of three of the jurors,
but later stipulated to excuse some of them. Based on Shiga’s
objection, the trial court denied the prosecutor’s challenge to a
prospective juror whose first language was Vietnamese.
After Shiga exercised his first nine peremptory challenges,
the trial court commented, “I’ve been watching the jurors that
you have been excusing. I think I understand why you’re doing
what you’re doing, and I think you’re doing a fine job on jury
selection.” In total, Shiga exercised peremptory challenges to
excuse 13 prospective jurors. He excused a prospective juror who
had previously served on a jury 13 or 14 times. He later excused
a prospective juror whose husband was a retired military police
officer and whose father and uncle were retired parole officers.

13
 Shiga excused a prospective juror whose synagogue was
burned down in an act of arson. He also excused a prospective
juror who worked in a state prison and whose husband was
retired from the military; a prospective juror who had been the
victim of a violent crime; and a prospective juror who
investigated child abuse for Los Angeles County and whose
department had been the target of a terror attack.

2. The People’s case
Investigators determined the fire burned and spread
quickly due to use of an accelerant. Rolls of toilet paper, which
had been soaked in a medium petroleum distillate, were
recovered from the debris. Because every other window on one
side of the church was open, the fire was provided with oxygen,
allowing it to grow at a faster rate.
Law enforcement spoke with several individuals who had
encountered Shiga in the days and weeks preceding the fire.
Shiga had visited his former grade school teacher about two
weeks before the fire. He asked his teacher about a statue on the
church’s grounds depicting Christ’s suffering on the cross. He
told the teacher the Catholic Church had a lot of money and had
done a lot of bad things, although it had not done bad things to
him.
On April 6, 2011 Shiga entered a bible study team meeting
at the church and questioned the congregants about the Catholic
Church and the biblical basis for the pope’s authority. The same
day one of the priests saw Shiga walking down a hallway inside
the priests’ private rectory. Shiga walked past the priest and
disappeared from view. The priest was surprised to see a

14
stranger in the rectory and tried to find where he had gone. The
priest located Shiga outside, staring at the roof of the church.
Midday on April 15, 2011 a church member who was
decorating the church sanctuary saw Shiga in the sanctuary.
Shiga was walking through the sanctuary aisles and appeared to
be inspecting various alcoves and staring at the floor behind a
number of statues.
At around 11:00 that night, Shiga was sitting in a white car
parked in the church parking lot. Shiga approached three
teenage boys who were skateboarding on the church property and
told them to leave immediately. Shiga then returned to his car.
The boys continued skateboarding. A few minutes later Shiga
returned and again told the boys to leave the property. The boys
left, then returned 20 to 30 minutes later and saw the church was
in flames. Video surveillance footage from inside the church
sanctuary showed Shiga lighting a fire on the left side of the altar
at approximately 11:54 that night.
Shiga was arrested on May 14, 2012. In a cell at the
Norwalk sheriff’s station, Shiga spoke to an undercover detective
who was posing as an inmate. Transcripts of these conversations
were admitted into evidence. Shiga told the detective he had
“burned a church” and it “wasn’t an accident.” Shiga “didn’t
think people could get hurt.” He believed the church’s priests
were doing bad things to children, and thought if he burned the
church “word would get around and they’ll stop.”
Shiga explained to the detective he had stolen a weed
sprayer with a backpack attachment, a household cleaning
product, toilet paper, and a tiki torch from a home improvement
store. Shiga used these tools to set the fire. Shiga went to the
church the day of the fire and opened a number of windows so he

15
could reenter that night after the doors were locked. Shiga also
walked around the church, planning his crime. While surveying
the church’s interior, he noticed a statue, which he thought he
could douse with oil to accelerate the spreading of the fire. Shiga
also entered the rectory to investigate where the priests “do these
bad things.”
Shiga told the undercover detective he returned to the
church that night. Some people were there outside the church,
and he twice told them to leave. Once they left, Shiga entered
the church through a window. Inside the church, Shiga “opened
a couple windows” because “a fire needs air—oxygen—because it
eats the oxygen.” Shiga placed the toilet paper tissue on a large
cross, as well as next to the drapes on both sides. Shiga sprayed
the toilet paper, ceiling, and “everything” with the weed killer.
Then he lit the tiki torch and used it to set the toilet paper and
drapes on fire. Shiga said he “lit all of them and [he] exited
exactly the way [he] planned,” through another window. With
the fire burning, Shiga returned to his car and left.
Shiga was interviewed at the station by two investigating
officers.8 The trial court admitted a transcript of the interview
into evidence. When asked whether he intended to kill the
priests, Shiga responded that because the arson was at night, he
did not think anyone would be hurt. Shiga had “no intention to
hurt anybody.” The officers asked Shiga why he had entered the
church rectory. Shiga explained he wanted to see where the bad
things occurred. He described his motivation for the arson

8 Shiga waived his rights under Miranda v. Arizona (1966)
384 U.S. 436.

16
stating, “if this happened, the news will spread and [the bad
things] would stop.”
Shiga asked the officers how long a trial takes and how to
ask for a speedy trial. He asked whether a speedy trial means
“that the court starts early.” One of the officers told Shiga to ask
his attorney if he wanted a speedy trial.
When Shiga returned to his cell, he again spoke to the
undercover detective. He said, “I’m going to try to do a speedy
trial but I doubt . . . the district attorney will allow me to do a
speedy trial.” This was because “[t]hey have DNA evidence on
the toilet paper and stuff.” Shiga added that “if [the jury]
know[s] that my intention wasn’t to hurt anyone some of them
might say I’m not guilty. Because they’re gonna know I was
trying to do it for a good cause and they’re gonna say . . . I’m not
guilty. And hopefully it’s not a hung jury. Hopefully it’s a
decisive jury that will say I’m not guilty. If it’s a hung jury I have
to go back to trial again three times for a hung jury before . . . the
case gets closed.”

3. Shiga’s cross-examination of witnesses*
Los Angeles County Fire Captain Michael Ponder testified
he was on duty the night of the fire and responded to the scene to
fight the blaze. The rapid rate at which the church and rectory
burned were consistent with the use of a fire accelerant. On
cross-examination, Shiga questioned Captain Ponder about the
effects of smoke inhalation. Specifically, Shiga asked, in light of
the size of the fire, how many breaths a person inside the church
during the fire would have been able to take before losing

* See footnote, ante, page 1.

17
consciousness. Captain Ponder responded, “Everybody would be
different.” When Shiga inquired whether it would be possible to
catch the person who started the fire while the fire was burning,
Captain Ponder responded, “Yes, it’s possible to catch the person
that started this fire.”
Los Angeles County Sheriff’s Sergeant Derek Yoshino
testified he responded to the church on the night of the fire and
was involved in the investigation. During direct examination, the
prosecutor asked Sergeant Yoshino, “What effect is the smoke
going to have on an individual’s confusion to get in and out of a
location?” Sergeant Yoshino responded that inhalation of toxic
fumes during a fire can cause great confusion, which can lead to
death. While Sergeant Yoshino was describing a situation where
someone had died from smoke inhalation, Shiga objected, “He
was stating that a person in past research, that he died from the
smoke. [¶] . . . [¶] . . . If he is sure about that the smoke caused
him to do that, does he know how long it took . . . how many
intakes for this smoke?” The trial court overruled the objection,
but told Shiga he could ask this question after the prosecutor
finished her examination. Shiga later declined to cross-examine
Sergeant Yoshino.
Los Angeles County Sheriff’s criminalist Iris Cruz testified
she had analyzed remnants of burned toilet paper rolls recovered
from the scene of the fire. She identified the toilet paper found at
the scene as consistent with a specific brand of toilet paper. On
cross-examination, Shiga asked Cruz whether she had personally
visited the scene of the fire. She had not. Shiga asked how she
obtained the evidence. Cruz responded it came from the trace
evidence section. Shiga later asked how long Cruz had known
the prosecutor, to which she responded they first spoke that

18
morning. Shiga also asked how long after the fire Cruz had
examined the evidence and whether Cruz had any knowledge of
the nature of the structure that was burned prior to her analysis.
Cruz responded she only knew about the fire from her
examination of the evidence and she prepared her report two
months after the fire. On recross-examination, Shiga inquired
how long Cruz had worked in her profession, to which Cruz
responded she had been in the document review section since
2008.
Douglas Guardado testified he was present on the church
property at around 11:45 on the night of the fire. He was there to
meet his friend Valerie. While he was walking between the
church and the rectory, he saw a man inside the darkened church
either opening or closing one of the church windows. On cross-
examination, Shiga asked Guardado whether he was on the
church property on the night of the fire. Guardado confirmed he
was. Shiga then asked, “[W]ho is Valerie?” Guardado said she
was a friend. Shiga asked no further questions.
Shiga cross-examined the church member who had seen
him in the sanctuary of the church on the day of the fire. Shiga
asked if she was “busy decorating” when she saw the man in the
church sanctuary. She responded that two senior members of the
decorating committee were doing most of the work, so she “was
more or less standing around” and “watching people in the
church.” Shiga also asked whether the witness believed in God,
which she stated she did.
Federal Bureau of Investigation (FBI) Special Agent Jason
Ernst testified he had investigated the church fire. He reviewed
video surveillance footage of the fire being set and searched the
site of the fire. On cross-examination, Shiga asked Ernst about

19
his education and work history. He also questioned Ernst about
the meaning of the initials “F.B.I.” and the importance of the
agency’s work. Ernst responded, “I think I’m pretty important.”
Shiga inquired whether the FBI possessed any special power or
privileges, and whether Ernst “abide[s] by the laws just like
regular citizens?” Ernst responded the FBI had the power to
arrest people for crimes against the United States, but the agents
had no special privileges. Shiga also asked whether Ernst had
conducted surveillance on him, to which Ernst responded he had.
Shiga inquired whether Ernst had observed any “different
behavior” by Shiga, to which Ernst responded Shiga was a
“normal” individual, “for the most part.”
When Shiga sought to follow up as to what Ernst meant by
“for the most part,” the trial court excused the jury and explained
to Shiga the court had instructed Ernst not to testify regarding
anything suggestive of Shiga’s criminal history, including Shiga’s
prior sexual misconduct. When asked by the trial court outside
the presence of the jury how he would describe Shiga’s interests,
Ernst explained Shiga “likes to play poker, and he’s got a
preoccupation with sexual things . . . .” Shiga indicated he
wanted the court to lift the prohibition on Ernst testifying about
Shiga’s criminal background, and he would follow up with
additional questions.
When the jury returned, Shiga, referring to himself, asked
Ernst “other than the charge that he’s charged with, do you
believe that he is [a] danger to society?” Ernst answered, “Yes, I
do.” Shiga inquired further “in what way” Ernst felt he was
dangerous. Ernst responded Shiga was “arrested on prior
occasions for several things.” Shiga continued, “But you never
looked into why he was arrested—why he did the things he did in

20
the past for his arrest[s]?” Ernst answered, “No, I didn’t look into
why he brandished a fake gun at somebody on the freeway. I did
not look into why he sexually assaulted women at Rio Hondo
College. I did not look into why he had a grand theft of labor
charge for smashing a watch and then stealing the repairs from
the guy who repaired the watch.”
Shiga continued, “[I]f this suspect did do the arson, did you
look into not only did he do this, [but] why did he do this?” Ernst
answered, “[M]y opinion based on the people I spoke to was that
you had a problem with the Catholic Church or, specifically,
priests doing bad things.” Shiga asked whether Ernst understood
his behavior, adding, “we need to understand an individual to
understand why he does certain things.” Ernst responded, “I
[have] investigated a lot of crimes, and sometimes I agree with
people’s motives, but I don’t like their methods.” Shiga agreed
and stated, “[P]eople should not do anything that would be
harmful to any other individuals.”
Shiga continued, “Like you said, Greg Shiga . . . had
interesting reasons for the things he did. [¶] Would you say you
understood the things he did . . . or was he interesting because he
did things of a reason of a different matter?” The prosecutor
objected as vague and compound, and the trial court rephrased
the question, “When you were done with your investigation, did
you believe that you understood the suspect Greg Shiga and his
motives and reasons for allegedly committing the crime?” Ernst
answered, “[O]f all the crimes I investigate, I don’t understand
why people break the law . . . . I understand people do it in
society, but I don’t understand, personally, why somebody would
do that.” Shiga stated, “[W]e understand what people do, but the

21
important thing is the actual root of why someone would do
certain things.”

4. The defense case
Shiga did not make an opening statement or closing
argument, and rested without testifying or calling any witnesses.

5. Shiga’s conviction and sentence
On July 9, 2013 the jury convicted Shiga on all counts and
found true all special allegations.9 Shiga did not submit a
sentencing memorandum. The only statement he made at his
sentencing hearing was to note the date and time.
The trial court sentenced Shiga to an aggregate state
prison term of 18 years to life. The court sentenced Shiga on
count 1 for aggravated arson to an indeterminate term of 10
years to life, plus an additional five years (upper term) for the
enhancement under section 451.1, subdivision (a)(5), for use of an
accelerant. The court selected count 3 for possession of a
flammable material as the base determinate term and imposed
the upper term of three years. On count 2 for arson of a
structure, the court imposed and stayed (§ 654) the upper term of
six years, plus four years for the enhancement under former
section 12022.6, subdivision (a)(4), the upper term of five years on
the enhancement under section 451.1, subdivision (a)(4), and the

9 The jury was not instructed and did not return a verdict on
the special allegation as to count 1 that Shiga proximately caused
multiple structures to burn (§ 451.1, subd. (a)(4)). At sentencing
the trial court noted the enhancement only applied to violations
of section 451, not section 451.5. On remand the trial court
should dismiss the allegation.

22
upper term of five years for the enhancement under section
451.1, subdivision (a)(5), for a total of 20 years.10 On count 4 for
second degree burglary, the court imposed and stayed the upper
term of three years. On count 5 for arson of an inhabited
structure or property, the court imposed and stayed the upper
term of eight years, plus the upper term of five years for the
enhancement under section 451.1, subdivision (a)(5).

G. Appellate Proceedings*
In Shiga’s first appeal we concluded the trial court “erred in
failing to recognize it was within the court’s discretion to conduct
an inquiry to determine if defendant was mentally competent to
represent himself and, if necessary, to deny the Faretta request.”
(Shiga I, supra, 6 Cal.App.5th at p. 42.) We observed there was
sufficient evidence before the trial court to raise a doubt about
Shiga’s mental competency to stand trial at the time of his
Faretta hearing. Thus, “the trial court’s failure to recognize it
was within its discretion to make further inquiry regarding
whether such evidence was substantial and/or warranted
ordering a second competency hearing was error.” (Id. at p. 44.)
We remanded for the trial court to determine the feasibility
of assessing “whether [Shiga] was competent both to represent
himself and to stand trial at the time of trial” in light of
“‘“‘“‘(1) [t]he passage of time, (2) the availability of
contemporaneous medical evidence, including medical records
and prior competency determinations, (3) any statements by the

10 The trial court’s minute order following sentencing
erroneously recorded the sentence on count 2 as 19 years.
* See footnote, ante, page 1.

23
defendant in the trial record, and (4) the availability of
individuals and trial witnesses, both experts and non-experts,
who were in a position to interact with [the] defendant before and
during trial.’”’”’” (Shiga I, supra, 6 Cal.App.5th at p. 50.)
We instructed the trial court, if it found the retrospective
determinations of competence were feasible, to perform “a fair
evaluation of all of the available evidence” to determine whether
Shiga “was mentally competent to represent himself at the time
he was tried and [whether] he was mentally competent to stand
trial.” (Shiga I, supra, 6 Cal.App.5th at p. 50.) We deferred
consideration of the remaining issues raised in Shiga’s appeal.
(Ibid.)

H. Proceedings on Remand11*
1. The trial court’s feasibility determination
On remand, the People submitted the Department 95
reports of Drs. Stone, Knapke, and Sharma; an August 26, 2011
report of Dr. Rad, concluding Shiga was competent to stand trial
in an earlier unrelated proceeding; minute orders and transcripts
from Shiga’s case showing his repeated failures to appear in
court; and transcripts from Shiga’s Faretta hearings. The People
also submitted Shiga’s medical records detailing treatment for
schizophrenia by Dr. Koichi Ichikawa from 2002-2010. The trial
court ordered Shiga’s jail medical records and all transcripts from
Shiga’s trial court proceedings be provided to the court.
On May 30, 2017 the trial court held a hearing to decide
the feasibility of retrospectively determining Shiga’s competency.

11 Shiga was represented by counsel on remand.
* See footnote, ante, page 1.

24
The court stated, “I am treating ‘feasibility’ as follows: That is
the availability of sufficient evidence to reliably determine the
defendant’s mental competence when tried earlier.” After
hearing argument of counsel, the trial court found “a
retrospective competency hearing is feasible to assess whether
the defendant was competent both to represent himself and to
stand trial at the time of trial . . . . [W]e are going to place the
defendant in a position comparable to the one he would have been
placed in prior to the original order . . . .” The court reserved its
ability to decide at a later time the determination was not
feasible if anticipated evidence proved to be unavailable or
inadequate.

2. Testimony regarding Shiga’s competency
In a series of hearings starting on July 10, 2017, the trial
court heard testimony regarding Shiga’s competency.

a. Shiga’s Sister
Shiga’s sister, Michelle Shiga Mora, testified Shiga first
showed signs of mental illness around age 18 or 19. Mora
observed Shiga had spray painted the word “freedom” on his car.
Around that time, Shiga was treated at a mental hospital. Later,
Shiga began receiving treatment from a psychiatrist. At some
point Shiga told Mora that “China” and “the government” knew
who he was. Mora visited Shiga in jail, though she did not
remember when. While in jail, Shiga told Mora he heard voices.

b. Anthony Cavalluzzi
Shiga called his former attorney, Alternate Public Defender
Anthony Cavalluzzi, to testify. Cavalluzzi represented Shiga

25
from January 10, 2013, following Shiga’s return from
Department 95, until June 21, 2013, when the trial court granted
Shiga’s Faretta motion. Cavalluzzi paid attention to Shiga’s
mental state “because it is something we pay attention to when
someone comes back from Department 95 [because] their
competency may have been restored and then lost.” Cavalluzzi
did not recall Shiga’s “condition really changing” after he
returned from Department 95.
The trial court asked Cavalluzzi whether “throughout [his]
entire representation of [Shiga]” he saw any “type of breakdown
or decompensation . . . or any sort of psychic break . . . that would
have led you to go to court and say, I have a doubt.” Cavalluzzi
had not. The court also inquired whether Cavalluzzi would have
declared a doubt as to Shiga’s competency to represent himself as
of June 21, 2013 when Shiga’s Faretta motion was granted.
Cavalluzzi responded he would not have declared a doubt.
Cavalluzzi has previously told the court at Shiga’s
preliminary hearing, after Shiga failed to come to court, Shiga
may be ready to proceed, but he was not “qualified” to represent
himself. Cavalluzzi testified this statement did not mean Shiga
was “not competent, just not qualified. Those are different
things.” Cavalluzzi explained, “. . . I don’t think anyone is really
qualified to represent themselves.” Cavalluzzi testified he “didn’t
think [Shiga] had the necessary tools to represent himself” and
Shiga did not understand legal concepts such as reasonable doubt
or trial procedure. Cavalluzzi testified that of all his clients who
requested to represent themselves during his 17 years as an
attorney, he believed Shiga “was probably the least equipped to
be able to represent himself.”

26
 Cavalluzzi discussed with Shiga prior to the preliminary
hearing presentation of a not guilty by reason of insanity defense.
Shiga refused to present any defense relying on his mental
health. Cavalluzzi believed Shiga requested to represent himself
because he did not want to waive time and wanted to go to trial
as soon as possible.

c. Ivonne De La Cruz
Deputy Public Defender Ivonne De La Cruz was Shiga’s
attorney from after the arraignment until December 2012. Shiga
frequently made requests of De La Cruz that were irrelevant to
his case, and he appeared to be masturbating during
videoconferences. In July 2012 De La Cruz had Shiga evaluated
by Dr. Karim, who found Shiga not competent to stand trial.
A paralegal retained by De La Cruz reported to her Shiga
did not want to undergo any further interviews because he did
not want any reference to schizophrenia in his case. The
paralegal also reported Shiga wanted to go to trial as soon as
possible because he believed a jury would acquit him in light of
his motivation to draw attention to the Catholic clergy’s sexual
abuse of minors. The paralegal obtained a 2011 report by
Dr. Weiguo Zhu, who concluded Shiga was misdiagnosed as
having schizophrenia, and he instead may suffer from a cocaine-
induced disorder.

3. Expert evidence regarding Shiga’s competency
a. Dr. Knapke’s 2017 Reports
Dr. Knapke prepared a report dated August 9, 2017 based
on his review of his 2012 report, Shiga’s county jail medical
records from February to August 2017, and his July 25, 2017

27
interview of Shiga. Dr. Knapke concluded Shiga was
psychiatrically stable at the time of the interview, and found no
evidence of any mental illness or disorder at the time of trial that
would have prevented him from representing himself.
Dr. Knapke described the interview as “unremarkable,”
similar to his December 2012 interview. Shiga was interactive,
made good eye contact, and gave logical, appropriate, and
articulate answers. “[H]is thought processes were linear and
organized.” He denied auditory or visual hallucinations, but
acknowledged sometimes believing people around him are “bad.”
He elicited no symptoms of paranoia or psychosis.
During the interview, Shiga “claimed that during his
trial . . . he believed that the judge in the courtroom was God. He
claimed that as a result, he did not speak during the course of his
jury trial” because “the entire trial would work out in his favor.”
Shiga claimed he did not cross-examine any witnesses. He noted
his sister bought him an “Express” brand suit for trial, which he
believed was a message from God. “[H]e believed the message
was that he needed to have a very fast trial.” Dr. Knapke noted
that in his previous report Shiga had been “insistent on having a
speedy trial throughout the course of his legal predicament, but
made no mention of any specific delusion of reference regarding
his suit or any other delusional reason for having a speedy trial.”
Dr. Knapke also noted Shiga “made no mention of God or any
other religious delusions” in December 2012.
On November 1, 2017 Dr. Knapke issued a supplemental
report, after reviewing Shiga’s jail medical records from 2012 to
2013, records from Shiga’s treatment by Dr. Ichikawa, and
transcripts of the trial and pretrial Faretta proceedings.
Dr. Knapke reported a May 2013 progress note from mental

28
health clinicians at the jail showed Shiga was compliant with
antidepressant medication, and no psychosis was noted. A jail
psychiatry progress note dated January 5, 2013 documented
Shiga’s “thought processes at that time were mostly linear and
there was no evidence of delusional thinking.” Shiga stated he
had heard voices only once, while in jail in 2009 at a time when
he had not been sleeping. While in jail, Shiga “was resistant to
taking an antipsychotic medication, stating [it] made him feel
sedated.” Dr. Knapke noted this would be a common effect of
antipsychotic medication on someone without psychotic
symptoms.
Dr. Knapke found no signs of psychotic symptoms,
psychosis, or major mental illness from his review of the voir dire
and trial transcripts. Dr. Knapke noted Shiga “appeared to be
very articulate and presented himself very well during his court
proceedings.” Dr. Knapke concluded, “I do not see any clinical
evidence that this defendant was suffering from any major
mental illness that impaired his ability to represent himself
during his trial.”
Dr. Knapke filed a second supplemental report on
January 7, 2018, documenting all the materials he had reviewed,
including the jail medical records from around the time Shiga’s
Faretta motion was granted and the trial, Shiga’s medical records
from 2002 through 2010, transcripts from the pretrial
proceedings and trial, and reports from the experts and
paralegal. Dr. Knapke opined again Shiga was competent to
stand trial and competent to represent himself at the time of his
2013 jury trial. Dr. Knapke noted as to the trial Shiga “had
appropriate courtroom demeanor, was articulate and organized
throughout the trial.”

29
 b. Dr. Stone’s 2017 Report
Dr. Stone interviewed Shiga and reviewed the same records
Dr. Knapke reviewed for his second supplemental report,
including Shiga’s jail medical records from 2012 to 2013 and trial
court transcripts. Dr. Stone issued his report on December 2,
2017, concluding Shiga was both competent to stand trial and
competent to represent himself.
Dr. Stone noted Shiga’s jail medical records from
August 31, 2012 stated he was “not hearing voices.” Another note
from October 10, 2012 indicated Shiga was compliant with
antipsychotic and antidepressant medications, although a note
from November 19, 2012 showed some missed administrations of
medication. Dr. Stone identified a January 5, 2013 psychiatric
progress note as “the most thorough entry” from the 2012 to 2013
time period. The progress note stated Shiga at times “had odd
relatedness” and a thought process that was “somewhat vague
and perseverative,” but “mostly linear.” According to the note,
“Shiga reported that he had believed the government tried to
influence him in the past, and later thought he was employed by
the government.”
During the interview, Shiga was “appropriately groomed”
and “alert and oriented,” with “spontaneous and fluent” speech.
Dr. Stone detected no delusions or mood lability. Shiga “denied
auditory hallucinations.” Dr. Stone noted that “[c]ompared to
[his] August 2012 evaluation, [he] failed to find any evidence of
thought disorder.”
Dr. Stone interviewed Shiga in detail regarding his
performance at trial. He asked Shiga why he had refused to
come to court on multiple occasions before his trial. Shiga stated

30
he “didn’t want to wait” in the holding tanks. When asked why
he told the trial court he needed only one day to present his
defense, Shiga responded, “I wanted a quick and speedy trial. I
did not want to wait in the holding tank more than 4 hours
every[]day.” He explained the process of being transported to and
from court was lengthy and gave him headaches. Dr. Stone also
asked why Shiga did not request more time to review discovery,
to which Shiga responded, “I didn’t want to be in jail.” In
response to Dr. Stone’s inquiry why Shiga objected to the request
by his appointed investigator for more time to locate and
subpoena potential witnesses, Shiga again explained he was “sick
of waiting in the tanks for the court. It was unbearable.”
Dr. Stone also questioned Shiga about his voir dire
strategy, asking, “Can you recall some of the reasons you excused
the first 9 jurors?” Shiga first stated he could not recall, then
added, “I was trying to get prettier girls. All I saw at the time
was men. I like girls. Something to look at.”
Dr. Stone asked Shiga what his purpose was during cross-
examination in asking Captain Ponder “how many breaths a
person could take if exposed to such a fire as the one at St. John
Vianney’s.” Shiga responded, “Maybe the smoke?” Shiga then
“very abruptly changed the conversation.” He told Dr. Stone he
had believed the judge was God during the trial, but added, “He
definitely isn’t God.” Shiga stated, “I thought the jury would give
me sympathy. I wasn’t competent at the time.” Shiga said he
chose a speedy trial because of a suit, but “[i]n the same breath”
repeated he chose a speedy trial to avoid spending more time in
the holding tanks.
Dr. Stone opined that in the over 100 days between when
he evaluated Shiga in August 2012 and Drs. Knapke and Sharma

31
found Shiga competent to stand trial in December 2012, “Shiga
appears to have improved substantially over that time,
through . . . medications, group therapy, absence of stimulants,
and the mere structure of the jail milieu itself.” Dr. Stone noted
jail medical records reflected that during that period Shiga “was
offered anti-psychotic medications” and was “actively
participating” in group therapy for substance abuse. Further, the
last entry in the jail treatment record before the December 2012
evaluations stated Shiga’s “‘thought process was linear’ and ‘no
delusions [were] elicited.’” In addition, Shiga’s “behavior [was]
within normal range.”12
Regarding Shiga’s competency to represent himself,
Dr. Stone opined “the strongest data, in my opinion, would have
come from an assessment at the time. But, that opportunity
having pas[sed], the second-best approach available would be to
speak with Mr. Shiga directly about what he was thinking, and
what his strategies and motivations were, to the best of his
recollection, at the time he was in trial.” Dr. Stone noted that
forensic psychiatrists are often asked to form opinions about a
person’s prior mental state, including an evaluation of whether a
defendant was not guilty by reason of insanity at the time of a
crime. Dr. Stone found there was “considerable data” from his
interview with Shiga and his review of the trial court transcripts
to support his finding Shiga was competent to represent himself
at the time of his trial.

12 Dr. Stone also noted psychotic symptoms can improve over
time with or without the aid of psychiatric medications. Further,
highly intelligent patients, such as Shiga, could “‘seal over’
symptoms [of mental illness] on their own,” whereas less
intelligent individuals “may struggle longer to suppress them.”

32
 Dr. Stone opined “there is nothing remotely delusional”
about Shiga’s desire for a speedy trial to avoid “the discomfort
and annoyance of waiting in ‘holding tanks.’” Shiga similarly
stated he declined psychological testing and moved quickly
through jury selection to avoid more unpleasant trips back and
forth to court. Further, Shiga had “voiced a belief only once that
the judge was God, quite spontaneously, in a way that seemed
intended to draw [Dr. Stone’s] attention to it.” “In the same
breath, [Shiga] referred to a suit that made him choose a speedy
trial,” before quickly repeating his original reasons of avoiding
the process of being transported to and from court. “Due to
Mr. Shiga’s own repeated statements, [Dr. Stone] formed the
opinion that [Shiga’s] alleged beliefs about the judge and suits
were certainly not predominant reasons leading him to want a
speedy trial, and also likely not credible ones.” Dr. Stone also
noted there was no reference to “Gods, nor suits, nor any
delusional statements, nor any abnormal behaviors” at any point
in the trial transcript.
Dr. Stone found the questioning by Shiga was “logical,
rational, [and] even sophisticated,” pointing to his questioning of
Captain Ponder and Sergeant Yoshino about people collapsing
from inhalation of toxic fumes. Dr. Stone believed “Shiga was
raising some defense that investigators should have found his
body there had he been the perpetrator.” He likewise found the
questioning of Cruz was logical in that he inquired how soon she
obtained the evidence after the fire and whether she visited the
site. Dr. Stone added, “There is simply no affirmative evidence of
psychosis during the trial.”
Dr. Stone concluded “within reasonable medical certain[ty],
that by the time of his trial in June and July of 2013, the

33
defendant DID understand the nature of the proceedings before
him,” Shiga “WAS able to assist counsel in the conduct of his
defense in a rational manner,” and Shiga “WAS able to represent
himself in pro per.”

4. The trial court’s competency determinations
On January 12, 2018 the trial court found Shiga was both
competent to represent himself and competent to stand trial at
the time of his trial. The trial court relied on Drs. Stone’s and
Knapke’s 2017 reports, noting the doctors were “in complete
agreement that the defendant was competent to represent
himself.”13 The court found Shiga was “a highly intelligent
motivated individual,” and noted the sophistication of Shiga’s
crime, including his planning, research, and preparation. The
court found Shiga’s strategy at trial to try to elicit sympathy from
the jury for his actions based on his motivation to bring attention
to the Catholic clergy’s sexual abuse of minors was “wrong,” but
not delusional.
The court found Shiga’s failures to appear in court were
motivated by his aversion to the transportation process and the
holding cells, not a mental illness. The court likewise found
Shiga’s alleged hypersexuality while incarcerated in a men’s jail
was not evidence of a mental illness. The court stated its belief
Shiga’s statements about the judge being God and the
significance of his sister bringing him a suit were malingering,
citing to Dr. Stone’s opinion these statements were “not credible.”

13 The trial court gave no weight to Dr. Karim’s July 2012
report because the doctor “basically said, [Shiga is] mentally ill
because he doesn’t want to do what his defense lawyer wants to
do.”

34
 Reflecting on its firsthand experience with Shiga during
the trial, the court found Shiga possessed the necessary ability to
represent himself. Shiga requested and utilized an investigator,
made logical requests for redactions of the People’s evidence, and
possessed “an amazing grasp of the evidence in this case.” Shiga
asked appropriate questions during voir dire, requested the court
excuse jurors for logical reasons, and made appropriate objections
to introduction of evidence. The court agreed with Dr. Stone’s
conclusion Shiga asked relevant questions of Captain Ponder,
Sergeant Yoshino, and Cruz relevant to his burning down of the
church and the reliability of the evidence. The trial court
concluded, “Throughout the trial, based on my own personal
observations, which are confirmed by the transcripts in this case,
there was absolutely nothing to indicate . . . the defendant was
not capable of representing himself.”
On April 9, 2018 we granted Shiga’s motion to recall the
remittitur and reinstate his notice of appeal.

DISCUSSION

A. The Trial Court Did Not Abuse Its Discretion in Finding a
Retrospective Determination of Shiga’s Competency Was
Feasible*
Shiga contends the trial court erred in finding it was
feasible retrospectively to determine his competency at the time
of his trial. We conclude the trial court did not abuse its
discretion in making this determination.

* See footnote, ante, page 1.

35
 A court may hold a retrospective competency hearing if it
concludes there is “sufficient evidence on which a ‘reasonable
psychiatric judgment’ of defendant’s competence . . . can be
reached.” (People v. Ary (2004) 118 Cal.App.4th 1016, 1029;
accord, People v. Lightsey (2012) 54 Cal.4th 668, 707 [“if it
remains possible to give defendant that to which he was entitled
at trial—a fair and reliable opportunity to prove his
incompetence with the assistance of counsel—a remand to
explore the feasibility of a retrospective hearing would
appropriately tailor the remedy ‘to the injury suffered from
the . . . violation [without] unnecessarily infring[ing] on
competing interests’”]; Shiga I, supra, 6 Cal.App.5th at p. 50 [“the
court must determine if there is ‘“sufficient evidence to reliably
determine . . . defendant’s mental competence when tried
earlier.”’”].) We review a trial court’s determination regarding
the feasibility of a retrospective competency hearing for an abuse
of discretion. (Ary, at p. 1029.)
In Shiga I, we directed the trial court to make its feasibility
determination in light of “‘“‘“‘(1) [t]he passage of time, (2) the
availability of contemporaneous medical evidence, including
medical records and prior competency determinations, (3) any
statements by the defendant in the trial record, and (4) the
availability of individuals and trial witnesses, both experts and
non-experts, who were in a position to interact with [the]
defendant before and during trial.’”’”’” (Shiga I, supra,
6 Cal.App.5th at p. 50, quoting People v. Lightsey, supra,
54 Cal.4th at p. 710.)
Although four years had passed since Shiga’s trial, at the
time of its feasibility determination the trial court had a
substantial amount of contemporaneous medical evidence of

36
Shiga’s competency. Shiga’s competency was evaluated by
Dr. Stone in August 2012 and by Drs. Knapke and Sharma in
December 2012. The last two evaluations were performed less
than six months before the trial in June 2013. Further, the trial
court had Shiga’s jail medical records from the time of trial. The
court also had records of Shiga’s medical treatment by
Dr. Ichikawa from 2002 to 2010.
The trial court heard testimony about Shiga’s mental state
just before trial from Shiga’s former attorney Cavalluzzi, who
represented Shiga until the trial court granted Shiga’s Faretta
motion. Cavalluzzi noted in his testimony he was attentive to
Shiga’s mental state after Shiga returned from Department 95.
In addition, because Shiga represented himself, the trial
transcripts provided a substantial record of his statements and
behavior at the time of trial. Further, although Drs. Stone and
Knapke reevaluated Shiga four years after his trial, they both
relied heavily on Shiga’s jail medical records from the relevant
period and the trial transcripts.14 Dr. Stone opined there was
“considerable data” on which to make a retrospective competency
finding, likening the task to a retrospective assessment of a
criminal defendant’s sanity at the time of his or her offense,
something forensic psychiatrists often do. Moreover, nothing in
Dr. Knapke’s report indicated he could not form a conclusion with

14 The trial court did not base its initial feasibility
determination on future testimony by Cavalluzzi or the
availability of supplemental reports from Drs. Knapke and Stone;
however, the court made clear it would revisit its determination if
the evidence proved to be inadequate during subsequent
proceedings.

37
reasonable certainty about Shiga’s competency at the time of trial
due to the passage of time.
In re Galaviz (2018) 23 Cal.App.5th 491 (Galaviz), relied on
by Shiga, is distinguishable. There, a doctor assessing the
defendant’s sanity at the time of his offense questioned his
competency to stand trial, but the trial court failed to hold a
competency hearing. (Id. at pp. 497-498.) Over 20 years after the
defendant was found not guilty by reason of insanity and
committed to a state hospital (id. at pp. 499-500), the Court of
Appeal granted the defendant’s petition for a writ of habeas
corpus challenging the trial court’s failure to hold a competency
hearing (id. at pp. 506-507). The court concluded a retrospective
competency determination was not feasible because 22 years had
passed since the defendant’s trial, the record lacked
contemporaneous medical evidence, instead including only
evaluations of his competency nine months before trial, the trial
court record included no statements by the defendant at or near
the time of trial, and the sole witness to the defendant’s behavior
at the time of trial was his attorney, who believed he was
competent. (Id. at p. 511.)
In contrast to Galaviz, the trial court here had ample
contemporaneous evidence of Shiga’s mental state at trial,
including Shiga’s jail medical records, Cavalluzzi’s testimony, the
trial court’s firsthand observations of Shiga during the trial, and
the reports of Drs. Stone and Knapke, who were able to evaluate
Shiga both in December 2012 and 2017. Accordingly, the trial
court did not abuse its discretion in determining there was
sufficient evidence upon which to make a retrospective
competency finding. (People v. Ary, supra, 118 Cal.App.4th at
p. 1029.)

38
B. Substantial Evidence Supports the Trial Court’s
Determination Shiga Was Competent To Represent Himself
at the Time of Trial*
Shiga contends substantial evidence does not support the
trial court’s determination he was competent to represent himself
at the time of his trial. We conclude the evidence was sufficient.
“[A] trial court may exercise its discretion to deny self-
representation where a defendant suffers from a severe mental
illness such that he or she is unable to perform the basic tasks
necessary to present a defense.” (People v. Mickel (2016)
2 Cal.5th 181, 208 (Mickel); accord, People v. Johnson (2012)
53 Cal.4th 519, 530 (Johnson).) “The trial court’s determination
regarding a defendant’s competence must be upheld if supported
by substantial evidence.” (Johnson, at p. 531 [substantial
evidence supported trial court’s determination defendant was not
competent to represent himself].) “Such deference is especially
appropriate when, as here, the same judge has observed the
defendant on numerous occasions.” (Ibid.; accord, Edwards,
supra, 554 U.S. at p. 177 [“The trial judge, particularly one such
as the trial judge in this case, who presided over one of Edwards’
competency hearings and his two trials, will often prove best able
to make more fine-tuned mental capacity decisions, tailored to
the individualized circumstances of a particular defendant.”].)
“The burden of proof in a retrospective hearing is on the
defendant . . . .” (People v. Rodas (2018) 6 Cal.5th 219, 240;
accord, People v. Ary (2011) 51 Cal.4th 510, 521 [defendant bears
burden in retrospective competency hearing to prove his

* See footnote, ante, page 1.

39
incompetence by a preponderance of the evidence].) “A valid
invocation of the right of self-representation ‘remains the norm
and may not be denied lightly.’” (People v. Miranda (2015)
236 Cal.App.4th 978, 988 [trial court properly granted mentally
ill defendant’s Faretta motion]; Johnson, supra, 53 Cal.4th at
p. 531 [“Trial courts must apply this standard [for denying self-
representation based on mental incompetence] cautiously.”].)
Substantial evidence supports the trial court’s conclusion
Shiga did not suffer from a severe mental illness such that he
was unable to perform the basic tasks necessary to present a
defense at the time of trial. (Mickel, supra, 2 Cal.5th at p. 208;
Johnson, supra, 53 Cal.4th at p. 530.) As the trial court
explained in finding Shiga competent to represent himself,
“Throughout the trial, based on my own personal observations,
which are confirmed by the transcripts in this case, there was
absolutely nothing to indicate . . . the defendant was not capable
of representing himself . . . .” A trial “judge’s own observations of
the defendant’s in-court behavior will . . . provide key support for
an incompetence finding . . . .” (Johnson, supra, 53 Cal.4th at
p. 531; accord, Mickel, supra, 2 Cal.5th at p. 209 [noting “[t]he
trial judge had the benefit of observing and interacting with
defendant”].)
Shiga argues he was not competent to represent himself at
trial because his denial of a mental illness led him to refuse to
present a mental health defense. As we stated in Shiga I, Shiga
“vehemently opposed appointment of a mental health expert and
asserted this opposition as his sole reason for seeking to waive
counsel.” (Shiga I, supra, 6 Cal.App.5th at p. 44.) At the Faretta
hearing, the trial court explained to Shiga that defense counsel
wanted a mental health expert to assess him for a report that

40
could assist his defense and possibly spare him a life sentence.
Shiga said he understood he would not have the benefit of the
report, but he “would like to go in a different way to defend this
trial.” But Shiga’s objection to appointment of a mental health
expert was also consistent with his repeated demand for a speedy
trial. Shiga opposed his attorney’s request for a continuance to
obtain the mental health examination on this basis. Shiga’s
former attorney Cavalluzzi testified he believed Shiga requested
to represent himself because he did not want to waive time and
wanted to go to trial as soon as possible.
Neither a desire for a speedy trial nor a disagreement over
defense strategy is necessarily indicative of mental illness, let
alone severe mental illness inhibiting performance of the basic
tasks necessary to present a defense, and both are among the
most common reasons why a defendant might choose to exercise
his or her right to self-representation. (See Mickel, supra,
2 Cal.5th at p. 209 [“[D]efendant’s decision to present no
defense—though ill-advised—was a valid exercise of his right to
control his defense.”]; People v. Taylor (2009) 47 Cal.4th 850, 865
[a self-represented defendant “convicted of a capital crime may
legitimately choose a strategy aimed at obtaining a sentence of
death”]; People v. Miranda, supra, 236 Cal.App.4th at p. 985
[trial court did not err in granting Faretta motion by defendant
with mental health issues who objected to his attorney’s request
for a continuance and sought to represent himself to protect his
right to a speedy trial].)
Shiga argues his attempted jury-nullification defense was
itself evidence of delusion. But the mere fact a defendant desires
to present a legal defense based on “fringe” beliefs that inspired
the crime does not necessarily mean a defendant is not competent

41
to represent himself. (Mickel, supra, 2 Cal.5th at p. 209.) In
Mickel, the defendant argued the trial court erred in granting his
request to represent himself at trial for the murder of a police
officer because he was mentally incompetent to do so. (Id. at
p. 204.) The defendant had sought to present the defense the
killing was a “‘necessary’ exercise of his ‘right to defend liberty’
and attempted to claim corporate immunity based on his decision
to register as a corporation.” (Id. at p. 203.) When the trial court
refused to allow the defendant to present his liberty justification,
the defendant “became ‘very emotional’ and opted, ‘in protest,’ not
to present any evidence for his case during the guilt phase.”
(Ibid.) Relying on the trial court’s assessment that the defendant
had demonstrated his competency and skill in representing
himself at trial, the Supreme Court rejected the defendant’s
argument of incompetence, reasoning “the mere fact that
defendant held fringe political beliefs that inspired his murder of
a police officer does not render him incompetent to represent
himself.” (Id. at p. 209.)
While “[j]ury nullification is contrary to our ideal of equal
justice for all” (People v. Williams (2001) 25 Cal.4th 441, 463),
such a defense strategy is far from strong evidence of mental
incompetence. (Cf. People v. Rodas, supra, 6 Cal.5th at p. 232
[substantial evidence of mental incompetence during trial existed
regarding defendant who communicated incoherently to his
counsel and asserted “paranoid theory that the videotapes the
prosecution was using against him were ‘assimilations’”]; People
v. Murdoch (2011) 194 Cal.App.4th 230, 234-235, 238 [substantial
evidence of mental incompetence during trial existed regarding
self-represented defendant who presented defense that assault
victim was an angel rather than a human being].)

42
 Shiga also argues his failure adequately to present his
defense demonstrates his incompetence. Indeed, in Shiga I we
observed his “defense was virtually nonexistent.” (Shiga I, supra,
6 Cal.App.5th at p. 41.) But the question before us is not whether
Shiga represented himself well, but whether there is substantial
evidence to support the trial court’s conclusion Shiga was
competent to perform the basic tasks of self-representation at the
time of trial. The Sixth Amendment protects a defendant’s right
to represent himself, “although he may conduct his own defense
ultimately to his own detriment.” (Faretta, supra, 422 U.S. 806,
834; accord, Mickel, supra, 2 Cal.5th at p. 206 [“We have . . .
rejected claims that the fact or likelihood that an unskilled, self-
represented defendant will perform poorly in conducting his or
her own defense must defeat the Faretta right.”]; People v. Butler
(2009) 47 Cal.4th 814, 824-825, 828 [“Defendants untrained in
the law may well provide themselves with inept
representation.”].) The “basic tasks” necessary for a defense
include “organization of defense, making motions, arguing points
of law, participating in voir dire, questioning witnesses, and
addressing the court and jury.” (Edwards, supra, 554 U.S. at
pp. 175-176, citing McKaskle v. Wiggins (1984) 465 U.S. 168,
174.)
Shiga was cooperative and respectful during all trial
proceedings. He actively participated in jury selection. After
Shiga exercised his first nine peremptory challenges, the trial
court observed Shiga was doing “a fine job.” Shiga’s questioning
and requests to excuse jurors based on their education,
background, understanding of English, and experience with
similar crimes were both logical and reasonable. Shiga contends
his statement to Dr. Stone that he excused certain jurors “to get

43
prettier girls” on the jury undermines the trial court’s positive
assessment of his performance. But even if Shiga was motivated
in part by this purpose, his conduct during jury selection
demonstrates consideration of and attentiveness to the process.
While Shiga made no opening statement or closing
argument and called no witnesses, he did make use of cross-
examination to raise his theory the jury should not convict him
because he acted for good reasons and did not intend to hurt
anyone. During his questioning of FBI Special Agent Ernst,
Shiga attempted to establish he was not dangerous by asking
whether Ernst had investigated “why” Shiga had burned the
church. Ernst responded, “[M]y opinion based on the people I
spoke to was that you had a problem with the Catholic Church or,
specifically, priests doing bad things.” Later in Ernst’s cross-
examination, Shiga opined that “[p]eople should not do anything
that would be harmful to any other individuals” and “the
important thing is the actual root of why someone would do
certain things.” Shiga’s decision to allow Ernst to testify as to his
criminal history, although misguided, appears to have been an
attempt to show the jury he was not dangerous, but rather, had
good reasons to do what he did.
During trial Shiga also attempted to cast doubt on the
evidence against him. Shiga questioned criminalist Cruz about
the chain of custody of the evidence she analyzed, her
qualifications, and her relationship with the prosecutor, although
Cruz’s responses were mostly not helpful to him. Through his
cross-examination of Captain Ponder, Shiga also attempted to
suggest the actual arsonist would have been found dead or
unconscious at the scene of the fire due to inhalation of smoke.

44
 Shiga successfully sought to shield himself from juror
prejudice by requesting all references to his parole status be
redacted from his conversations with the undercover officer
posing as his cellmate and objecting to a photograph showing him
in handcuffs. The trial court agreed with Shiga on both points.
Shiga’s attention to detail on these evidentiary matters is
consistent with the competence necessary to organize and present
a defense.
As the trial court found prior to sentencing Shiga,
“Mr. Shiga was in charge of his defense in this case. He made
decisions for himself. He frankly, I believe, was fully aware of
what was going on. He had meaningful off-the-record
conversations with the D.A., Ms. Rose. Many times you asked,
Mr. Shiga, to go off the record. You discussed with the D.A.
evidence. You discussed with her some of the photos. You
discussed with her disposition of evidence, which witnesses she
was calling, what order she was calling them in. [¶] I observed
this myself. You were clearly aware of the evidence. . . .
[¶] . . . [¶] . . . You had and made arrangements with your
investigator. . . . You comported yourself extremely well during
this trial. . . . [¶] . . . [¶] . . . I observed your demeanor, your
attitude, the quality of your knowledge of the facts, most of
which, at your choice, were exhibited, frankly, outside the
presence of the jury. [¶] . . . [¶] [F]rankly, you had a better
grasp of the facts of the case and the law that pertained to your
case than most pro per defendants I have seen in my career.”
This is not to say Shiga’s performance was irreproachable.
He made irrelevant inquires of witnesses and declined to
question important witnesses altogether. As noted, he failed to
make an opening statement or closing argument. But

45
significantly, Shiga has not identified any statement or behavior
from his trial demonstrating his “‘[d]isorganized thinking, deficits
in sustaining attention and concentration, impaired expressive
abilities, anxiety, [or] other common symptoms of severe mental
illnesses.’” (Edwards, supra, 554 U.S. at p. 176; accord, Johnson,
supra, 53 Cal.4th at p. 532 [upholding trial court’s revocation of
defendant’s self-representation status where he filed numerous
“‘nonsensical motions’” and conducted himself during proceedings
in “‘a bizarre and disruptive manner’”].)
The trial court’s assessment of Shiga’s competency to
represent himself at the time of his trial is also confirmed by the
2017 reports of Drs. Knapke and Stone. Dr. Stone, who had
previously opined Shiga was not competent to stand trial, after
assessing the trial transcripts, reviewing Shiga’s jail medical
records, and interviewing Shiga at length regarding the trial,
concluded “within reasonable medical certain[ty]” Shiga was
competent at the time of trial both to represent himself and to
stand trial. Dr. Stone noted Shiga’s jail records from the time of
his trial show he received antipsychotic medications and
participated in group therapy, with “behavior within normal
range.” Dr. Stone specifically opined “there is nothing remotely
delusional” about Shiga’s desire for a speedy trial to avoid “the
discomfort and annoyance of waiting in ‘holding tanks,’” and
found Shiga’s claims he had believed the trial judge was God and
his suit was compelling him to choose a speedy trial were “likely
not credible.”
Dr. Knapke reached a similar conclusion, finding Shiga
“had appropriate courtroom demeanor, [and] was articulate and
organized throughout the trial.” Dr. Knapke “[did] not see any
clinical evidence that [Shiga] was suffering from any major

46
mental illness that impaired his ability to represent himself
during his trial.”
The trial court credited both reports, including Dr. Stone’s
view Shiga’s statements about believing the trial judge was God
were not credible. The court also found Shiga’s claim the suit he
wore at trial compelled him to choose a speedy trial was similarly
not credible because Shiga had indicated to the undercover officer
shortly after Shiga’s arrest that he wanted a speedy trial. The
testimony of Shiga’s sister, the records of Shiga’s treatment by
Dr. Ishikawa, and the report of Dr. Karim could have lent
support to a finding of incompetency, but “[i]f the trier of fact’s
findings are reasonably justified under the circumstances, the
opinion of the reviewing court that the circumstances may also be
reconciled with a contrary finding does not warrant reversal of
the judgment.” (People v. Fleming (2018) 25 Cal.App.5th 783,
788; accord, People v. Casares (2016) 62 Cal.4th 808, 823.)

C. Substantial Evidence Supports the Trial Court’s
Determination Shiga Was Competent To Stand Trial at the
Time of Trial*
Shiga also contends substantial evidence does not support
the trial court’s determination he was competent to stand trial at
the time of his trial. Competency for self-representation is
governed by a “higher standard” than competency to stand trial.
(Johnson, supra, 53 Cal.4th at p. 523.) Because we conclude
substantial evidence supports the trial court’s determination
Shiga was competent to represent himself at the time of his trial,
we also necessarily conclude substantial evidence supports the

* See footnote, ante, page 1.

47
trial court’s determination he was competent to stand trial at
that time.

D. Arson Is Not a Lesser Included Offense of Aggravated
Arson, But Shiga Was Improperly Convicted of Two Forms
of Arson
Shiga contends his convictions for arson of an inhabited
structure and arson of a structure under section 451, subdivisions
(b) and (c), respectively, must be reversed because the offenses
are lesser included offenses of aggravated arson under section
451.5.15 This contention lacks merit. But Shiga 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.

1. Arson is a single offense that may be committed in
different ways
In support of his contention arson is a single offense, Shiga
points to the language at the beginning of section 451, which

15 Former section 451.5, subdivision (a), provided, “Any
person who willfully, maliciously, deliberately, with
premeditation, and with intent to cause injury to one or more
persons or to cause damage to property under circumstances
likely to produce injury to one or more persons or to cause
damage to one or more structures or inhabited dwellings, sets fire
to, burns, or causes to be burned, or aids, counsels, or procures
the burning of any residence, structure, forest land, or property is
guilty of aggravated arson if one or more” of three enumerated
aggravating factors exists. The Legislature amended section
451.5, effective January 1, 2019. However, the amendments are
not relevant to this appeal.

48
provides, “A person is guilty of arson when he or she willfully and
maliciously sets fire to or burns or causes to be burned or who
aids, counsels, or procures the burning of, any structure, forest
land, or property.”16 The People contend arson is not a single
offense, but rather, each subdivision creates a separate offense,
including section 451, subdivision (b), which criminalizes “[a]rson
that causes an inhabited structure or inhabited property to
burn,” and section 451, subdivision (c), which criminalizes
“[a]rson of a structure or forest land.”
To determine whether the subdivisions of section 451 set
forth separate offenses or different ways of committing the same
offense of simple arson, we look to the Legislature’s intent as
reflected in the language of the statute and, if the language
permits more than one reasonable interpretation, we consider the
legislative history. (People v. Gonzalez (2014) 60 Cal.4th 533,

16 Section 451 provides in full, “A person is guilty of arson
when he or she willfully and maliciously sets fire to or burns or
causes to be burned or who aids, counsels, or procures the
burning of, any structure, forest land, or property. [¶] (a) Arson
that causes great bodily injury is a felony punishable by
imprisonment in the state prison for five, seven, or nine years.
[¶] (b) Arson that causes an inhabited structure or inhabited
property to burn is a felony punishable by imprisonment in the
state prison for three, five, or eight years. [¶] (c) Arson of a
structure or forest land is a felony punishable by imprisonment
in the state prison for two, four, or six years. [¶] (d) Arson of
property is a felony punishable by imprisonment in the state
prison for 16 months, two, or three years. For purposes of this
paragraph, arson of property does not include one burning or
causing to be burned his or her own personal property unless
there is an intent to defraud or there is injury to another person
or another person’s structure, forest land, or property.”

49
537, 539 (Gonzalez) [concluding oral copulation under former
§ 288a, subd. (f), prohibiting oral copulation of an unconscious
person, and subd. (i), prohibiting oral copulation of an intoxicated
person, describe separate offenses because “[e]ach subdivision
sets forth all the elements of a crime, and each prescribes a
specific punishment”]; see People v. White (2017) 2 Cal.5th 349,
351-352 (White) [considering legislative intent in concluding
§ 261, subd. (a)(3), prohibiting rape of intoxicated person, and
(a)(4)(A), prohibiting rape of unconscious person, described
separate offenses such that defendant may properly be convicted
of both in the same proceeding]; People v. Vidana (2016) 1 Cal.5th
632, 650 (Vidana) [relying on legislative history to conclude
larceny under § 484, subd. (a), and embezzlement under § 503 are
“different statements of the same offense”].)
As the Gonzalez court explained as to the defendant’s
multiple convictions for oral copulation, “It follows that the
determination whether subdivisions (f) and (i) of [former] section
288a define different offenses or merely describe different ways of
committing the same offense properly turns on the Legislature’s
intent in enacting these provisions, and if the Legislature meant
to define only one offense, we may not turn it into two.”
(Gonzalez, supra, 60 Cal.4th at p. 537.) To make this
determination, “‘“[w]e begin by examining the statute’s words,
giving them a plain and commonsense meaning. [Citation.] We
do not, however, consider the statutory language ‘in isolation.’
[Citation.] Rather, we look to ‘the entire substance of the
statute . . . in order to determine the scope and purpose of the
provision . . . . [Citation.]’ [Citation.] That is, we construe the
words in question ‘“in context, keeping in mind the nature and
obvious purpose of the statute . . . .” [Citation.]’ [Citation.] We

50
must harmonize ‘the various parts of a statutory enactment . . .
by considering the particular clause or section in the context of
the statutory framework as a whole.’”’ [Citation.] ‘If, however,
the statutory language is susceptible of more than one reasonable
construction, we can look to legislative history in aid of
ascertaining legislative intent.’” (Id. at pp. 537-538.)
The Supreme Court in Vidana, supra, 1 Cal.5th at page
648, in considering whether larceny under section 484,
subdivision (a), and embezzlement under section 503 are separate
offenses, first noted the two sections have different elements and
neither is a lesser included offense of the other. Further, each
section defines the elements of the offense, and thus under
Gonzalez the sections are “self-contained.” (Vidana, at p. 648.)
However, the court found the statutory scheme ambiguous
because section 484, subdivision (a), also proscribes
embezzlement. (Vidana, at p. 648.) Accordingly, the court looked
to the legislative history, and concluded it showed the Legislature
intended to create a single offense of theft, noting the 1927
amendment to section 484 “‘consolidate[d] the present crimes
known as larceny, embezzlement and obtaining property under
false pretenses, into one crime, designated as theft.’” (Vidana, at
p. 648.)
Here, in contrast to former section 288a at issue in
Gonzalez, which sets forth the complete elements of each crime of
oral copulation in the section’s subdivisions,17 the first sentence

17 Former section 288a, subdivision (a), defines “oral
copulation” as the “act of copulating the mouth of one person with
the sexual organ or anus of another person.” But a person does
not commit a crime if the conduct is performed with a consenting
adult. Rather, the subdivisions provide the elements of the

51
of section 451 defines the crime of arson, applicable to all
subdivisions, whereas the subdivisions specify the applicable
penalties depending on the severity of the injury. For example,
section 451, subdivision (a), provides that “[a]rson that causes
great bodily injury is a felony punishable by imprisonment in the
state prison for five, seven, or nine years.” (See § 451, subds. (b)
[arson of inhabited structure or property punishable by three,
five, or eight years], (c) [arson of a structure or forest land
punishable by two, four, or six years], (d) [arson of property with
specific exceptions punishable by 16 months or two or three
years].)
Further, under the People’s theory that each subdivision is
a separate offense, an arsonist could be punished for multiple
offenses for lighting a single fire that burns an inhabited
structure (§ 451, subd. (b)) and an uninhabited structure (§ 451,
subd. (c)). But this would be inconsistent with section 451.1,
subdivision (a)(4), which imposes a sentence enhancement where

crime, including, in addition to subdivisions (f) (oral copulation
with unconscious person) and (i) (oral copulation with intoxicated
person), oral copulation with a person under 18 years of age
(former § 288a, subd. (b)(1)) and oral copulation “accomplished
against the victim’s will by means of force, violence, duress,
menace, or fear of immediate and unlawful bodily injury on the
victim or another person” (former § 288a, subd. (c)(2)(A)).
Similarly, section 261, subdivision (a), at issue in White, defines
“[r]ape” as “an act of sexual intercourse accomplished with a
person not the spouse of the perpetrator.” But not all sexual
intercourse with a person other than a spouse is rape. Rather,
the subdivisions provide the elements of the crime of rape,
including sexual intercourse where a person is intoxicated (§ 261,
subd. (a)(3)) or unconscious (§ 261, subd. (a)(4)).

52
the arsonist causes more than one structure to burn. (§ 451.1,
subd. (a)(4) [“[A]ny person who is convicted of a felony violation of
Section 451 shall be punished by a three-, four-, or five-year
enhancement if one or more of the following circumstances is
found to be true: [¶] . . . [¶] (4) The defendant proximately
caused multiple structures to burn in any single violation of
Section 451.”].)
The legislative history also supports an interpretation of
section 451 as criminalizing a single offense of simple arson. In
1979 Senate Bill No. 116 reorganized and consolidated multiple
Penal Code sections relating to different forms of arson into
section 451.18 (People v. Atkins (2001) 25 Cal.4th 76, 87, citing
Stats. 1979, ch. 145, §§ 1-3, 7 & 8.) The bill repealed former
sections 447a (burning of a trailer coach or various dwellings),
448a (burning of barns, stables, public bridges, and other
buildings), 449a (burning of vehicles, specified farm goods, and
other personal property), 449b (burning of specified farm goods,
railroad ties, phone poles, bridges, and other structures), 449c
(burning of forest land, grain, and other property), 450a (arson
with intent to defraud the insurer), 451a (attempted arson), and
451b (setting a fire in a detention facility). (Stats. 1979, ch. 145,
§§ 1-5, 7 & 10.)
Notably, as the comments to the Senate Committee on
Judiciary on Senate Bill No. 116 state, “Under this bill, a person
would be guilty of arson when he [or she] [¶] ‘willfully and
maliciously sets fire to or burns or causes to be burned or who

18 Senate Bill No. 116 also created a new crime of “‘unlawfully
causing a fire,’” codified in section 452. (Sen. Com. on Judiciary,
Analysis on Sen. Bill No. 116 (1979-1980 Reg. Sess.) as amended
Feb. 12, 1978, p. 2.)

53
aids, counsels, or procures the burning of, any structure, forest
land or property.’” (See Sen. Com. on Judiciary, Analysis on Sen.
Bill No. 116 (1979-1980 Reg. Sess.) as amended Feb. 12, 1978,
p. 2, underscoring omitted.) Further, treatment of section 451’s
subdivisions as sentencing provisions is consistent with Senate
Bill No. 116’s amendment of section 12022.7, which provides a
sentence enhancement for offenses in which the defendant
personally inflicted great bodily injury, to exclude arson (see
§ 12022.7, subd. (g)), and the addition of the enhancement in
section 451, subdivision (a), which does not require intent to
cause great bodily injury. (See Sen. Com. on Judiciary, Analysis
on Sen. Bill No. 116, at p. 5.) This change reflected the
Legislature’s intent to “raise the sentences for arson, depending
upon the end result of the burning.” (Id. at p. 3, underscoring
omitted.)
We recognize our colleagues in the First Appellate District
recently addressed a similar issue in concluding section 452,
subdivision (b), for recklessly causing a fire to an inhabited
structure or property, and subdivision (c), for recklessly causing a
fire to a structure or forest land, defined separate offenses.19

19 Section 452 tracks the language of section 451, and
provides, “A person is guilty of unlawfully causing a fire when he
[or she] recklessly sets fire to or burns or causes to be burned,
any structure, forest land or property. [¶] (a) Unlawfully causing
a fire that causes great bodily injury is a felony punishable by
imprisonment in the state prison for two, four or six years, or by
imprisonment in the county jail for not more than one year, or by
a fine, or by both such imprisonment and fine. [¶] (b) Unlawfully
causing a fire that causes an inhabited structure or inhabited
property to burn is a felony punishable by imprisonment in the
state prison for two, three or four years, or by imprisonment in

54
(People v. Corrigan (Apr. 8, 2019, A154051) __ Cal.App.5th __
[2019 WL 1513202, *6] (Corrigan).) The Corrigan court relied on
the Supreme Court’s opinion in White, supra, 2 Cal.5th at page
357, to support its holding, noting the Supreme Court did not find
“dispositive” that the subdivisions of section 261, defining rape,
did not provide a “self-contained” definition of rape. (Corrigan, at
p. *5.) But the arson statute differs from both the rape statute at
issue in White and the oral copulation statute at issue in
Gonzalez, supra, 60 Cal.4th at pages 537, 539, in that section
451, without consideration of its subdivisions, sets forth the
complete elements of the crime of arson; former section 288a,
subdivision (a) (oral copulation), and section 261, subdivision (a)
(rape), do not. Rather, the subdivisions of the sex offense
statutes provide the elements necessary to make the sexual
conduct a crime.20 Further, the court in Corrigan did not look at

the county jail for not more than one year, or by a fine, or by both
such imprisonment and fine. [¶] (c) Unlawfully causing a fire of
a structure or forest land is a felony punishable by imprisonment
in the state prison for 16 months, two or three years, or by
imprisonment in the county jail for not more than six months, or
by a fine, or by both such imprisonment and fine. [¶]
(d) Unlawfully causing a fire of property is a misdemeanor. For
purposes of this paragraph, unlawfully causing a fire of property
does not include one burning or causing to be burned his own
personal property unless there is injury to another person or to
another person’s structure, forest land or property. . . .”
20 The court in Corrigan also relies on In re Jonathan R.
(2016) 3 Cal.App.5th 963, 971, in which the Court of Appeal
concluded section 245, subdivision (a)(1) and (4), created separate
offenses of assault with a deadly weapon and assault by means of
force likely to produce great bodily injury, respectively, because
under Gonzalez each subdivision stated the elements of the

55
the “‘statutory framework as a whole’” or legislative history in
concluding section 452 defined separate offenses of unlawfully
causing a fire. (See Vidana, supra, 1 Cal.5th at pp. 637, 648;
Gonzalez, at pp. 537-538.) We have the benefit of both.
We conclude, in light of the statutory language in sections
451 and 451.1 and section 451’s legislative history, section 451
criminalizes a single offense of arson. (See In re V.V. (2011)
51 Cal.4th 1020, 1027 [a person commits arson when he or she
“‘willfully and maliciously sets fire to or burns or causes to be
burned . . . any structure, forest land, or property’”]; People v.
Cole (2004) 33 Cal.4th 1158, 1218 [trial court did not err in
failing to instruct jury on offense of unlawfully setting a fire
where defendant had argued it was lesser included offense of
arson, explaining that “[a] person is guilty of arson when he
‘willfully and maliciously sets fire to or burns . . . any
structure . . . or property,’” but is guilty of unlawfully causing a
fire when he ‘recklessly’” sets the fire under § 452].)

offense. (Corrigan, supra, __ Cal.App.5th at p. __ [2019 WL
1513202, *5].) But the Court of Appeal in People v. Brunton
(2018) 23 Cal.App.5th 1097 declined to follow In re Jonathan R.,
noting the Supreme Court’s holding in Vidana supported
consideration of the legislative history, which the Brunton court
concluded supported its holding the Legislature did not intend by
its 2011 amendment to section 245 to create two separate
offenses of aggravated assault. (Brunton, at pp. 1106-1107.) We
likewise follow Vidana and conclude the legislative history and
statutory scheme show the Legislature intended to create a single
offense of simple arson.

56
 2. Shiga was improperly convicted of two forms of the
single offense of arson
Section 954 provides, “An accusatory pleading may charge
two or more different offenses connected together in their
commission, or different statements of the same offense or two or
more different offenses of the same class of crimes or offenses,
under separate counts . . . . The prosecution is not required to
elect between the different offenses or counts set forth in the
accusatory pleading, but the defendant may be convicted of any
number of the offenses charged. . . .” “‘The most reasonable
construction of the language in section 954 is that the statute
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.’” (Vidana, supra, 1 Cal.5th at p. 650 [defendant could
not be convicted of both grand theft by larceny and embezzlement
based on the same course of conduct]; accord, Wilkoff v. Superior
Court (1985) 38 Cal.3d 345, 349 [“[A] charge of multiple counts of
violating a statute is appropriate only where the actus reus
prohibited by the statute—the gravamen of the offense—has been
committed more than once.”]; People v. Coyle (2009)
178 Cal.App.4th 209, 217 [invalidating three murder convictions
for killing one person, where the “three counts simply alleged
alternative theories of the offense”]; cf. White, supra, 2 Cal.5th at
p. 352 [“‘[T]he two statutory subdivisions at issue here describe
different offenses, and defendant may properly be convicted of,
although not punished for, both.’”].)
Because section 451 criminalizes a single offense of arson,
under section 954 Shiga could not be convicted of both arson of an
inhabited structure under section 451, subdivision (b), and arson

57
of a structure under section 451, subdivision (c). Rather, the
convictions are based on a single actus reus, of Shiga setting a
fire in the church with a tiki torch. The People argue that
because the fire spread and burned the rectory, a separate
structure, he may properly be convicted of two counts of arson.
We disagree. Arson can be accomplished by indirectly causing a
structure, forest land, or property to burn. (See In re V.V., supra,
51 Cal.4th at p. 1024 [upholding juvenile court’s determination
minors committed arson by throwing lit firecracker into brush-
covered hillside, causing a five-acre brush fire]; People v. Hiltel
(1901) 131 Cal. 577, 579-580 [defendant properly convicted for
causing dwelling to burn where fire spread from a fire set in the
wine cellar that was not the basis of the charge].) But it does not
follow that a defendant is subject to multiple convictions for a
single act if the fire burns multiple structures or pieces of
property. To conclude otherwise would allow the arsonist who
burns one home to be subject to a separate conviction for each
piece of personal property burned inside the home.21 Our
conclusion is bolstered by the Legislature’s enactment of an
enhanced sentence in section 451.1, subdivision (a)(4), for an
arson conviction where a defendant has proximately caused
multiple structures to burn “in any single violation of Section
451.”
We reverse Shiga’s arson convictions on counts 2 and 5. On
remand the People should elect whether to proceed on count 2
under section 451, subdivision (c), or on count 5 under section

21 Section 450, subdivision (c), defines “property” to include
“real property or personal property, other than a structure or
forest land.”

58
451, subdivision (b). The trial court should then reinstate Shiga’s
conviction on the count elected by the People.

3. Arson of a structure and arson of an inhabited
structure are not lesser included offenses of
aggravated arson
“‘[I]t is generally permissible to convict a defendant of
multiple charges arising from a single act or course of conduct.
[Citations.] However, a “judicially created exception to this rule
prohibits multiple convictions based on necessarily included
offenses.”’” (People v. Delgado (2017) 2 Cal.5th 544, 570, italics
omitted (Delgado); accord, People v. Cady (2016) 7 Cal.App.5th
134, 139-140 (Cady).) “When a defendant is found guilty of both
a greater and a necessarily lesser included offense arising out of
the same act or course of conduct, and the evidence supports the
verdict on the greater offense, that conviction is controlling, and
the conviction of the lesser offense must be reversed.” (People v.
Sanders (2012) 55 Cal.4th 731, 736; accord, Cady, at pp. 139-
140.)
“‘In deciding whether multiple conviction is proper, a court
should consider only the statutory elements.’ [Citation.] ‘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.’ [Citation.] In other
words, ‘“[i]f a crime cannot be committed without also necessarily
committing a lesser offense, the latter is a lesser included offense
within the former.”’” (Delgado, supra, 2 Cal.5th at p. 570; accord,
Cady, supra, 7 Cal.App.5th at p. 140.) “This determination is
made in the abstract . . . . The evidence introduced at trial is

59
irrelevant to this determination.” (People v. Chaney (2005)
131 Cal.App.4th 253, 256.)
As the Court of Appeal in Cady reasoned, there are some
scenarios under which “a defendant convicted of violating
[Vehicle Code] section 23153, subdivision (f) by driving under the
combined influence of alcohol and drugs would not have
consumed enough alcohol to cause impairment had the alcohol
been consumed by itself.” (Cady, supra, 7 Cal.App.5th at p. 143.)
Thus, “[b]ecause a person does not necessarily violate [Vehicle
Code section] 23153, subdivision (a) when he or she violates
[section] 23153, subdivision (f), we conclude under the elements
test that the crime of driving under the influence of alcohol
causing injury [citation] is not a lesser included offense of the
crime of driving under the combined influence of alcohol and a
drug causing injury [citation].” (Cady, at p. 144.)
A person commits aggravated arson under section 451.5,
subdivision (a), if he or she burns “any residence, structure, forest
land, or property.” As discussed, section 450, subdivision (c),
defines “property” to include both real and personal property. As
to simple arson, however, section 451, subdivision (d), provides
that “arson of property does not include one burning or causing to
be burned his or her own personal property unless there is an
intent to defraud or there is injury to another person or another
person’s structure, forest land, or property.” Thus, a defendant
can commit aggravated arson by burning his or her own personal
property with the intent to cause injury to a person or to property
under circumstances likely to injure a person as set forth in
section 451.5, without necessarily committing arson under
section 451, if the defendant does not intend to defraud and the
arson does not actually cause injury to another person or another

60
person’s structure, forest land, or property. Therefore, the
offense of arson under section 451 is not a lesser included offense
of aggravated arson. (Delgado, supra, 2 Cal.5th at p. 570; Cady,
supra, 7 Cal.App.5th at p. 140.)22

E. The Repeal of Former Section 12022.6 Does Not Apply
Retroactively*
Shiga contends we should strike the enhancement the trial
court imposed on count 2 pursuant to former section 12022.6,
subdivision (a)(4),23 because the Legislature repealed the section,

22 Shiga also relies on the language in People v. Muszynski
(2002) 100 Cal.App.4th 672, 684, that “simple arson under section
451, which involves the willful and malicious burning of any
structure, is a lesser included offense of aggravated arson . . . .”
However, Muszynski did not involve a determination of whether
the defendant could be convicted of both aggravated arson under
section 451.5 and arson under section 451. Rather, after the
court concluded insufficient evidence supported the defendant’s
conviction of aggravated arson under section 451.5, subdivision
(a)(3), for causing damage to five or more inhabited structures,
because the jury had been instructed that simple arson was a
lesser included offense, the court “reduce[d] defendant’s
conviction to arson causing great bodily injury, a lesser included
offense.” (Muszynski, at p. 684.) Notably, the Muszynski court
did not analyze the relationship between sections 451 and 451.5
under the elements test applicable here. To the extent
Muszynski can be read to bar a conviction for section 451 as a
lesser included offense of aggravated arson, we disagree with our
colleagues in the Sixth Appellate District.
* See footnote, ante, page 1.
23 Former section 12022.6, subdivision (a)(4), provided:
“When any person takes, damages, or destroys any property in

61
effective January 1, 2018, and as of that date his case was still
pending on appeal. The People respond that under the Supreme
Court’s decision in In re Pedro T. (1994) 8 Cal.4th 1041
(Pedro T.), the presence of a sunset provision in former section
12022.6 shows the Legislature’s intent the repeal not apply
retroactively. We agree with the People.
At the time Shiga was convicted, former section 12022.6,
subdivision (a)(4), provided that “[i]f the loss exceeds three
million two hundred thousand dollars ($3,200,000), the court, in
addition and consecutive to the punishment prescribed for the
felony or attempted felony of which the defendant has been
convicted, shall impose an additional term of four years.” As
noted by Shiga, on January 1, 2018 former section 12022.6 was
repealed by its own terms pursuant to former section 12022.6,
subdivision (f), which provided, “It is the intent of the Legislature
that the provisions of this section be reviewed within 10 years to
consider the effects of inflation on the additional terms imposed.
For that reason this section shall remain in effect only until
January 1, 2018, and as of that date is repealed unless a later
enacted statute, which is enacted before January 1, 2018, deletes
or extends that date.” Former section 12022.6 had no saving

the commission or attempted commission of a felony, with the
intent to cause that taking, damage, or destruction, the court
shall impose an additional term as follows: [¶] . . . [¶] . . . If the
loss exceeds three million two hundred thousand dollars
($3,200,000), the court, in addition and consecutive to the
punishment prescribed for the felony or attempted felony of
which the defendant has been convicted, shall impose an
additional term of four years.”

62
clause limiting the scope of the repeal. Further, the Legislature
has not enacted a new version of section 12022.6.
Shiga urges us to strike the enhancement pursuant to In re
Estrada, which held that when the Legislature amends a statute
to lessen the punishment, in the absence of a saving clause, “[t]he
amendatory act imposing the lighter punishment can be applied
constitutionally to acts committed before its passage provided the
judgment convicting the defendant of the act is not final.” (In re
Estrada (1965) 63 Cal.2d 740, 745, 747 (Estrada).) However, in
Pedro T., the Supreme Court distinguished its earlier holding in
Estrada with respect to a Vehicle Code sentencing provision with
a sunset clause, explaining, “We believe the very nature of a
sunset clause, as an experiment in enhanced penalties,
establishes—in the absence of evidence of a contrary legislative
purpose—a legislative intent the enhanced punishment apply to
offenses committed throughout its effective period.” (Pedro T.,
supra, 8 Cal.4th at p. 1049.) The court concluded in light of the
sunset provision, the Legislature intended the enhanced
punishment to apply throughout the section’s effective period.
(Ibid.)
We likewise read the express sunset provision in former
section 12022.6, subdivision (f), to reflect the Legislature’s intent
to apply the enhancement through the effective period of the
provision. To hold otherwise would lead to the absurd result that
the specified sunset provision of January 1, 2018 would be
replaced by a sunset provision that depends on when a
defendant’s sentence becomes final. Further, as the Supreme
Court in Pedro T. noted, “[A] rule that retroactively lessened the
sentence imposed on an offender pursuant to a sunset clause
would provide a motive for delay and manipulation in criminal

63
proceedings. When the Legislature signals, years in advance, its
intention to reduce the punishment for an offense, defendant and
counsel have a strong incentive to delay the finality of a
judgment in the hope of eventually receiving the lessened,
postsunset term.” (Pedro T., supra, 8 Cal.4th at pp. 1046-1047.)
In addition, as the Legislature stated in amending former
section 12022.6, “It is the intent of the Legislature that the
amendments to Section 12022.6 of the Penal Code by this act
apply prospectively only and shall not be interpreted to benefit
any defendant who committed any crime or received any sentence
before the effective date of this act.” (Stats. 2007, ch. 420, § 2.)
The Legislature therefore made clear its intent the enhancement
applied only prospectively, and conversely, in former section
12022.6, subdivision (f), the provisions continue through the
effective date of the sunset provision. Shiga has not pointed to
any evidence of legislative intent to the contrary.24

24 The holding in People v. Nasalga (1996) 12 Cal.4th 784,
relied on by Shiga, is not to the contrary. In Nasalga, the
Supreme Court applied the reasoning of Estrada to conclude the
1992 amendment to former section 12022.6, subdivisions (a) and
(b), which increased the amount of loss required for the sentence
enhancement, applied retroactively to the defendant’s sentence
because it was not yet final. (Nasalga, at p. 797.) In contrast to
Pedro T., former section 12022.6’s sunset provision was not at
issue in People v. Nasalga. The court also distinguished Pedro T.
on the basis “the Legislature clearly indicated that its intent in
enacting the statute in effect when the minor committed the
crime was to punish offenders more harshly in order to address
the threat to the public posed by an increase in vehicle thefts.”
(Nasalga, at p. 796.) Here, by contrast, we have no explicit
statement of legislative intent other than the sunset provision,

64
F. The People Concede Error on the Remaining Issues*
Shiga contends the trial erred by failing to stay his
sentence on count 3 for possession of flammable material
pursuant to section 654 because count 3 was based on Shiga’s
possession of the flammable materials he used to commit the
offense of aggravated arson for which the trial court imposed a
sentence on count 1. As the People concede, Shiga is correct.
(People v. Corpening (2016) 2 Cal.5th 307, 311 [§ 654 bars
multiple punishment for “a course of conduct encompassing
several acts pursued with a single objective”]; People v. Jackson
(2016) 1 Cal.5th 269, 354 [“‘“‘If all of the offenses were incident to
one objective, the defendant may be punished for any one of such
offenses but not for more than one.’”’”].)
The People also concede the trial erred when it imposed two
5-year enhancements under section 451.1, subdivision (a), as to
count 2. Section 451.1, subdivision (a), provides “any person who
is convicted of a felony violation of Section 451 shall be punished
by a three-, four-, or five-year enhancement if one or more of the
following circumstances is found to be true: [¶] . . . [¶] (4) The
defendant proximately caused multiple structures to burn in any
single violation of Section 451. [¶] (5) . . . [T]he arson was caused
by use of a device designed to accelerate the fire or delay
ignition.” As to count 2 for arson of structure in violation of
section 451, subdivision (c), the jury found true the alleged
circumstances Shiga proximately caused multiple structures to

which we read to reflect the Legislature’s desire that the
enhancement remain in effect through January 1, 2018.
* See footnote, ante, page 1.

65
burn, and the arson was caused by use of an accelerant or device
to delay ignition. The trial court imposed two 5-year
enhancements based on the two true findings. However, section
451.1, subdivision (a), provides for a single enhancement “if one
or more” of the enumerated circumstances is found to be true.
Thus, only one 5-year enhancement under section 451.1,
subdivision (a), was authorized as to count 2.
Finally, the People concede the trial court erred when it
imposed a five-year enhancement under section 451.1,
subdivision (a), as to count 1 for aggravated arson in violation of
section 451.5. Section 451.1, subdivision (a), by its plain terms
applies only to convictions for a “felony violation of Section 451.”
It has no application to convictions under section 451.5. Thus,
the jury’s true finding on the section 451.1, subdivision (a),
enhancement allegation as to count 1 is reversed.25

DISPOSITION

We reverse Shiga’s convictions for arson on counts 2 and 5
and remand for the trial court to enter a conviction on one of the
offenses under section 451, as elected by the People. We also
reverse the jury’s true finding on the section 451.1, subdivision
(a), enhancement as to count 1. We remand for resentencing with
directions for the trial court (1) to stay Shiga’s sentence on count

25 Although Shiga did not raise these sentencing errors in the
trial court, “[a] claim that a sentence is unauthorized may be
raised for the first time on appeal, and is subject to correction
whenever the error comes to the attention of the reviewing court.”
(People v. Barnwell (2007) 41 Cal.4th 1038, 1048, fn. 7; accord,
People v. Dotson (1997) 16 Cal.4th 547, 554.)

66
3 for possession of flammable material pursuant to section 654
and, (2) if it reinstates Shiga’s conviction on count 2, to impose
only one 5-year sentence enhancement under section 451.1,
subdivision (a).

FEUER, J.
WE CONCUR:

PERLUSS, P. J.

ZELON, J.

67