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Filed 9/11/24 P. v. Heard CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Tehama)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

SHANE MICHAEL HEARD,

Defendant and Appellant.

C098963

(Super. Ct. No. 22CR-002548)

Defendant pleaded guilty to two counts of arson of forest land and admitted he had 

previously been convicted of a serious felony and arson. At sentencing, defendant asked 

the trial court to dismiss the prior serious felony conviction, two sentencing 

enhancements, and an allegation that defendant committed the arson during a state of 

emergency. The trial court declined defendant’s requests and sentenced him to 23 years 

in prison, including a concurrent sentence for the second arson count. 
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Defendant contends the trial court abused its discretion by declining to dismiss the 

prior serious felony conviction, the enhancements, and the state of emergency allegation. 

The People ask us to remand for resentencing, contending the trial court lacked discretion 

to impose concurrent sentences because defendant committed the two arsons three days 

apart and Penal Code section 667, subdivision (c)(6) requires consecutive sentences when 

a defendant has a prior serious felony conviction and “there is a current conviction for 

more than one felony count not committed on the same occasion, and not arising from the 

same set of operative facts.” (Statutory section citations that follow are found in the 

Penal Code unless otherwise stated.) We agree that the trial court could not impose 

concurrent sentences without first striking the prior serious felony conviction.

Because the trial court misunderstood its sentencing discretion and imposed an 

unauthorized sentence, we will vacate defendant’s sentence and remand for the court to 

reconsider its sentencing choices. As we are vacating defendant’s sentence, we need not 

address his contention that the court abused its discretion.

FACTS AND HISTORY OF THE PROCEEDINGS

The People charged defendant with 37 felonies and a misdemeanor based on a 

series of 13 fires defendant started on the side of various roads in Tehama County. 

Pursuant to a negotiated plea, defendant pleaded guilty to two counts of arson of forest 

land. (§ 451, subd. (c).) Defendant admitted setting the first fire on October 10, 2022,

and the second on October 13, 2022. Defendant admitted committing the first arson

during a state of emergency. (§ 454.) Defendant also admitted he had previously been 

convicted of arson, which counted as a prior serious felony conviction under both section

667, subdivisions (b) through (i) (a prior “strike” conviction) and section 667, subdivision 

(a), and counted as a prior felony arson conviction under section 451.1, subdivision 

(a)(1). 
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At sentencing, defendant asked the trial court to dismiss the prior strike 

conviction; the five-year sentence enhancement for the prior serious felony conviction;

the three-, four-, or five-year sentence enhancement for the prior arson conviction; and 

the finding that defendant committed the arson during a state of emergency, which 

defendant considered an enhancement. As mitigating factors, defendant argued he did 

not have an extensive criminal record, he suffered from mental health conditions 

including substance abuse, he had suffered childhood trauma, he had considerable family 

support, and his prior strike conviction occurred 18 years ago. Defendant also pointed to 

six statutory mitigating factors in section 1385, subdivision (c)(3): multiple 

enhancements were alleged in the case, the application of an enhancement could result in 

a sentence of over 20 years, the offense was connected to mental illness and childhood 

trauma, the offense was not a violent felony under the applicable statute, and the prior 

conviction was more than five years old. 

The People responded that the trial court should not dismiss the prior strike 

conviction despite its age because defendant had committed several crimes in the interim 

and his repeated acts of starting a fire in dangerous conditions showed “callous disregard 

for life and property.” The People also argued the court should not dismiss the 

enhancements because doing so would endanger public safety. At the hearing, a battalion 

chief with the Department of Forestry and Fire Protection testified that defendant had 

started fires near homes at a time when fire response personnel were “stretched thin,” 

which meant each of the fires had “the potential to spread, cause massive destruction, loss 

of life, loss of property, loss of natural resources.” 

The presentence report prepared by the probation officer indicated that the 

sentences for each count of arson should be imposed consecutively because the two 

“crimes and their objectives were independent of each other” and the “crimes were 

committed at different times and separate places which indicates a pattern of aberrant 
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behavior.” (See Cal. Rules of Court, rule 4.425(a)(1), (3).) The People likewise argued 

the sentences should be imposed consecutively. 

After considering the parties’ arguments and evidence, the trial court declined 

defendant’s requests to strike the prior strike conviction, the enhancements, and the state 

of emergency admission. The court did “not find that striking the prior strike in this case 

would be in furtherance of justice and, again, the nature of this offense, the seriousness, 

as well as the multiple arsons, and all the factors I’ve considered, leads me to the decision 

that the prior strike is appropriate. That the spirit of the three-strikes law would not be 

violated in this case. In fact, it appears as though this type of repeat offender -- in other 

words, arson back in 2005 and arsons now -- is something the law was written to try to 

prevent.” With regard to the enhancements, the court found that dismissing the 

enhancements would endanger public safety because “this is specifically a more 

dangerous situation where a repeat arsonist sets multiple fires after being convicted of 

arson” and “it did not appear through the evidence today or the probation report that the 

defendant acknowledged the danger that he caused.” 

The trial court sentenced defendant to the middle term of seven years in prison for 

the first count of arson of forest land, with the sentencing triad elevated because 

defendant committed the arson during a state of emergency. (§ 454, subd. (b).) The 

court doubled this term to 14 years in prison due to the prior strike conviction. The court 

imposed a five-year sentence enhancement for the prior serious felony conviction and 

selected the middle term four-year sentence enhancement for the prior arson conviction. 

For the second arson count, the court imposed the middle term sentence of four years in 

prison, doubled to eight years due to the prior strike conviction. The court imposed the 

sentence to run concurrent to the first count, explaining: “The Court understands that 

there is a valid argument to sentence the defendant consecutively. I don’t think I'm 

bound to sentence him concurrently; however, the Court’s choosing the totality of the 

circumstances and the interest of justice to sentence the defendant concurrently. . . .” 
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Defendant timely appealed from the judgment. 

DISCUSSION

As noted above, we agree with the People that we must vacate defendant’s 

sentence and remand for resentencing because the trial court did not understand that it 

lacked the discretion to impose concurrent sentences for the two arson counts once the 

court had declined to dismiss the prior strike conviction.

Our Supreme Court has described “the mandatory consecutive-sentencing 

provision” in section 667, subdivision (c)(6) as follows: “If there are two or more current 

felony convictions ‘not committed on the same occasion,’ i.e., not committed within 

close temporal and spacial proximity of one another, and ‘not arising from the same set 

of operative facts,’ i.e., not sharing common acts or criminal conduct that serves to 

establish the elements of the current felony offenses of which defendant stands convicted, 

then ‘the court shall sentence the defendant consecutively on each count’ pursuant to 

subdivision (c)(6). Conversely, where a sentencing court determines that two or more 

current felony convictions were either ‘committed on the same occasion’ or ‘aris[e] from 

the same set of operative facts’ as we have construed those terms in Deloza and the 

instant case, consecutive sentencing is not required under the three strikes law, but is 

permissible in the trial court’s sound discretion.” (People v. Lawrence (2000) 24 Cal.4th

219, 233.)

In People v. Lawrence, our Supreme Court noted that “two criminal episodes were 

separated spacially by at least one to three city blocks, and temporally by two to three or 

more minutes,” could not have been “committed on the same occasion,” under section 

667, subdivision (c)(6). (Lawrence, supra, 24 Cal.4th at p. 234; see id. at p. 229 [“ ‘The 

phrase “committed on the same occasion” is commonly understood to refer to at least a 

close temporal and spatial proximity between two events’ ”].) The court also explained 

that “where the elements of the original crime have been satisfied, any crime 
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subsequently committed will not arise from the same set of operative facts underlying the 

completed crime; rather such crime is necessarily committed at a different time.” (Id. at 

p. 232.)

Here, the trial court did not make a finding as to whether the two arsons were 

“committed on the same occasion” or “ar[ose] from the same set of operative facts,” but 

the undisputed evidence supports only a finding they did not. Specifically, defendant 

admitted he started the two fires three days apart. This means that, as a matter of law, the 

two arson convictions were not “committed on the same occasion” and did not “arise 

from the same set of operative facts.” In these circumstances, section 667, subdivision 

(c)(6) required the trial court to impose consecutive sentences, unless the court dismissed 

the prior strike conviction, which would make section 667, subdivision (c)(6) 

inapplicable. The court did not dismiss the prior strike conviction, so it lacked the 

discretion to impose concurrent sentences.

The People concede remand is appropriate, and we agree. “[O]n remand for 

resentencing ‘a full resentencing as to all counts is appropriate, so the trial court can 

exercise its sentencing discretion in light of the changed circumstances.’ ” (People v. 

Buycks (2018) 5 Cal.5th 857, 893.) “This rule is justified because an aggregate prison 

term is not a series of separate independent terms, but one term made up of 

interdependent components. The invalidity of one component infects the entire scheme.” 

(People v. Hill (1986) 185 Cal.App.3d 831, 834.) We need not address defendant’s 

arguments that the trial court abused its discretion because the trial court will be 

exercising its discretion anew in changed circumstances on remand. Defendant should 

make his arguments to the trial court in the first instance.

DISPOSITION

Defendant’s sentence is vacated, and the matter is remanded to the trial court for 
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resentencing. The judgment is otherwise affirmed. 

 

HULL, Acting P. J.

We concur:

 

BOULWARE EURIE, J.

 

WISEMAN, J.



 Retired Associate Justice of the Court of Appeal, Fifth Appellate District, assigned by

the Chief Justice pursuant to article VI, section 6 of the California Constitution.