1 

Filed 2/5/14 P. v. McGinty CA1/3 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS 

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 This opinion has not been certified for publication 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 

FIRST APPELLATE DISTRICT 

DIVISION THREE 

THE PEOPLE, 

 Plaintiff and Respondent, 

v. 

NANCY JO MCGINTY, 

 Defendant and Appellant. 

 A135201 

 (Mendocino County 

 Super. Ct. No. SCUKCRCR1116558) 

 Nancy Jo McGinty (appellant) appeals from a judgment entered after she pleaded 

no contest to attempted voluntary manslaughter (Pen. Code, §§ 664/192, subd. (a), 

count one1

) and arson of a dwelling (§ 451, subd. (b), count two) with the use of an 

accelerant (§ 451.1, subd. (a)(5)), and the trial court sentenced her to 13 years in state 

prison. She contends the trial court erred in: (1) imposing the upper term on count two; 

and (2) not staying the sentence on count one pursuant to section 654. We reject the 

contentions and affirm the judgment. 

FACTUAL AND PROCEDURAL BACKGROUND

 A felony complaint was filed March 1, 2011, charging appellant with attempted 

murder (§§ 664/187, count one) and arson of a dwelling (§ 451, subd. (b), count two). 

The complaint further charged that appellant committed arson with a device designed to 

accelerate the fire (§ 451.1, subd. (a)(5)). The complaint was based on an incident that 

took place on December 14, 2010. That night, at about 10:20 p.m., Mendocino County 

 1

All further statutory references are to the Penal Code unless otherwise stated. 
2 

Sheriff’s Office Deputies Elmore and Kendall responded to a residence regarding a 

suspicious circumstance involving a fire.2

 When Kendall arrived, he saw that the 

residence was burned and that most of the roof and walls had come down. 

 Kendall spoke with Brooktrails Fire Chief Schoeppner, who said he had been 

summoned to the location following a report of a fire and explosion. Upon arrival, he 

noticed the residence was fully engulfed in flames and that the south living room wall 

had been “basically blown out and laying against a large fir tree” that was holding the 

separated wall up. Schoeppner stated that neighbors had saved Michael Faustina—a 

disabled adult resident—from inside of the house as it was burning. Kendall knew both 

Faustina and Faustina’s mother, appellant, from prior contacts. Faustina was a 31-yearold man with a brain injury from a traffic accident. He was a quadriplegic and could not 

speak, move, or eat without assistance. 

 A neighbor who identified himself as “Zac” said that he heard the explosion and 

saw the house burning. Zac knew that Faustina was bedridden inside, so he entered with 

another neighbor in hopes of rescuing him. Zac reported that when he entered the 

residence, he saw Faustina and noticed the wood stove had a five-gallon propane tank on 

it, which he thought was “odd” and “extremely unsafe.” He was able to remove Faustina 

from the house. Faustina was transported by ambulance to a hospital. According to 

Schoeppner, Faustina appeared to have been burned and there was black soot around his 

mouth and face. 

 Neighbors said that appellant should have been home at the time of the fire and 

explosion. Kendall noticed that both of appellant’s vehicles were parked in front of the 

home. Kendall found a letter on a laptop computer inside of one of appellant’s vehicles 

that was addressed to one of her sons and read, “Alex, look at my documents and open 

new word document, it is for you. Dylan’s letter is under as I was going through boxes. 

I’m sorry I did not finish it! I love you both very much. Sorry Mom.” Kendall reviewed 

 2

The facts relating to the incident are taken from the probation officer’s report. 

The first names of the deputies and various other individuals were not included in the 

report. 
3 

the letters and found they contained explanations of various events surrounding the 

separation of her and the children’s father. Kendall also found a letter inside appellant’s 

mailbox that was addressed to Kelly Shannon of Danville, California. The letter 

contained appellant’s “last remaining money.” Based on appellant’s letters to her sons 

and to Shannon, Kendall believed appellant may have been trying to tie up loose ends 

before committing suicide via arson to her residence. Schoeppner advised that he would 

not be able to search the residence for bodies until the morning because the house was 

still “extremely hot” and unsafe to enter. 

 On December 15, 2010, Deputy Byrnes, who was also familiar with Faustina and 

appellant, went to appellant’s house to conduct a follow-up investigation. Byrnes entered 

the house and observed that the majority of the south side, including the living room, 

kitchen, hallway, rafters, and roof, had been completely burned and was open to the sky. 

Schoeppner told him that fire personnel had removed from the living room a five-gallon 

propane tank that was missing its shut-off valve. Schoeppner said fire personnel had 

conducted a search of the burned residence for other possible victims and had not found 

appellant. 

 Byrnes and Schoeppner entered the residence together. When they got to the 

master bathroom, Byrnes saw what appeared to be a human body lying in a fetal position 

in the bathtub. There was a blanket over the body, and there were clean, “not soot 

covered,” feet protruding from underneath the blanket. It appeared the blanket was dry 

and contained a minimal amount of soot compared to the inside of the bathroom and tub. 

The blanket appeared to move slightly up and down, as if the person underneath had 

shallow breathing. Byrnes called appellant’s name, discovered that the person was 

appellant, and summoned medical help. Appellant appeared to be fairly clean and in fair 

health, as she was able to walk and had minimal soot on her hands and face. Appellant 

had dried pine needles in her hair. Ambulance personnel transported appellant to a 

hospital. Byrnes followed the ambulance and interviewed appellant. 
4 

 Appellant told Byrnes that she was home with Faustina and her two dogs on the 

day of the incident.3 Her sister-in-law, Barbara Daughtry, who worked for her and 

helped take care of Faustina, had left the prior Thursday to visit an ill family member 

who lived out of the area. Appellant went to fill up five and seven-gallon propane tanks 

and went to buy groceries before Daughtry left because she knew she would not be able 

to leave the house for several days while Daughtry was away, as she would be taking care 

of Faustina by herself. Appellant brought the five-gallon propane tank inside the house 

and made it to the hallway, where she ended up setting it down. She then heard Faustina 

cough, so she went to his room to suction out his throat, and then to her bedroom, where 

she laid down. She then heard a loud hissing sound and got up to see that the propane 

tank, which had rolled down the hallway toward her bedroom, was on fire. The room 

filled with smoke, and she could not breathe or see. She could not get to Faustina’s room 

because the flaming propane tank was blocking the hallway. Later, she heard someone 

yell in or around Faustina’s room, but knew it could not have been him, as he could not 

talk. Because of the smoke, appellant could not find the bedroom door that led to the 

outside. She decided to lie down in the bathtub in her bathroom. She got cold and 

retrieved a dry blanket and pants from the bathroom closet. 

 Appellant denied knowing how the fire started and claimed she never left the 

house. She went on to explain personal financial and emotional problems she had been 

having with her ex-husband, Allen McGinty, and her estranged children. She explained 

the house was in foreclosure status due to Allen not helping to pay the bills. She said she 

had planned to move out of the residence on the date of the interview. Appellant denied 

consuming any alcohol or taking any drugs the evening before the fire. She said her head 

hurt and that there was something in her hair; she pulled out some pine needles from her 

hair. Byrnes asked appellant how she got them in her hair; appellant said she did not 

know. 

 3

The dogs were later found dead in the house. 
5 

 Byrnes interviewed Amy Niesen, a hospital emergency room manager. Niesen, 

who was “very familiar” with appellant and Faustina from prior contacts, said that 

appellant did not appear to be her usual self. She was usually “concerned and demanding 

of the treatment Faustina received, but did not appear genuine with her inquiry as to 

[Faustina’s] well-being.” Niesen reported that before appellant was released from the 

hospital, her son Alex had come to visit her. Niesen was at appellant’s bedside when 

appellant said to Alex, “Nobody checked on us for over a week, why do you think I did 

this?” Alex looked at appellant and began to cry. When Niesen told appellant she was 

being released, appellant said she could not leave because she was waiting for Byrnes to 

arrest her. 

 Byrnes also interviewed neighbor “Zac” regarding his rescue of Faustina. Zac 

said he knew Faustina was a quadriplegic who could not speak. On December 14, 2010, 

Zac was in his living room when he heard a large explosion and felt his house shake. He 

heard a woman yelling and a hissing sound from outside. He went outside and saw a 

glow coming from appellant’s house and knew it was on fire. Zac told his girlfriend to 

call 9-1-1 and ran to appellant’s house. Upon reaching the driveway, he saw a fire 

shooting up the wall in the corner of the living room. Zac made various attempts to gain 

access to the house and finally succeeded by kicking in a door until it partially opened. 

Thick, black smoke bellowed out of the door opening. Zac and another neighbor, 

Francis, heard Faustina coughing. Zac crawled into the room and dragged Faustina off 

the bed. Faustina’s eyes were “wide-eyed open and appeared to be alert.” The look in 

Faustina’s eyes appeared to be “one of panic, as if Faustina knew he would die.” After 

dragging Faustina outside, Zac and Francis cleared the soot from Faustina’s mouth and 

carried him to the driveway to wait for the ambulance. Fire personnel arrived, attended 

to Faustina, and attempted to extinguish the fire. Zac did not see appellant during or after 

the fire. 

 On December 30, 2010, Byrnes met with appellant at her sister’s home in 

Danville, California. Byrnes told appellant that the evidence that had been retrieved 

during the investigation “spoke for itself.” Appellant responded, “I did it. I did not start 
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it, but I put the propane tank on the wood stove.” Appellant said she had told a 

psychiatrist she was seeing that her life had started to “spiral downward” and it had 

“got[ten] worse and worse” and she could not pull herself out of it. It “pushed her over 

the edge” when her sister-in-law “made up a story to get some time off.” 

 Appellant explained that it had been almost six years since her son had been in an 

accident, leaving him a quadriplegic. She visited Faustina in a hospital in San Jose every 

week until she brought him home in 2007. Conflict arose with her now ex-husband, 

Allen, regarding whether Faustina should be cared for in their home. On one occasion, 

Allen turned off Faustina’s oxygen tank, which resulted in domestic violence and a 

restraining order. Allen moved out of the home a few months later and her two other 

sons also eventually moved out. Appellant hired caregivers to help with Faustina but 

fired them for various reasons. She felt that medical professionals “just put Faustina in a 

bed and left him to die.” Appellant sought assistance from the county, but received no 

response. The only help she was able to get was from a sister-in-law. 

 Appellant said she was embroiled in an “extremely bitter battle” with Allen over 

financial issues, including ownership of the house and various outstanding bills. 

Appellant said Allen was not helping with the bills and that she was responsible for 

making all mortgage payments and car payments and covering all other expenses. Allen 

had also written checks against the loans, and she had just learned in November 2010 that 

the house was in foreclosure status. Allen, who was still a co-owner of the house, refused 

to sign his half of the interest over to her. Appellant said that as a result of all of the 

stress in her life, she decided she did not want to live anymore. 

 Appellant stated that she “made a plan” on December 14, 2010, after speaking 

with Faustina, who told her he did not want to go into a facility again and wished to die 

with her instead. Appellant described to Byrnes in detail how she planned to burn the 

house down. She placed a five-gallon propane tank and four or five oxygen tanks around 

the house, put Manzanita wood in the stove because she knew it would burn for a long 

time, gave Faustina two muscle relaxers to help him fall asleep, checked on him to make 

sure he was sleeping, then took four of his Percocet, a narcotic analgesic. She opened the 
7 

valves on the oxygen and propane tanks and left the wood stove door open. She turned 

one kitchen stove burner on to release propane, and laid down on her bed to sleep. 

 Appellant later awoke and realized her plan was not working, as the oxygen tanks 

were not hissing. She took some pliers and opened one of the oxygen tanks valves 

further, and oxygen came out. She put more wood in the fire and closed the door to the 

wood stove. She also turned two more kitchen burners on and placed the propane tank on 

the wood stove. She gave Faustina two more muscle relaxers, and she took four more 

Percocet. She later awoke to a hissing sound and saw something shoot down the hallway. 

At that point, the house was full of smoke and she could not breathe. She headed toward 

the glass sliding door in her bedroom, but could not remember anything that happened 

after that. The next thing she remembered was that she was going into the bathroom, 

reaching for a blanket, and covering herself up in the bathtub. She noted she had 

redwood needles in her hair, but did not remember going outside. 

 Appellant said she wanted to blow up the house because she did not want Allen to 

have it. She hoped to take her own life and “make sure nobody else got anything.” She 

believed the fire would burn everything and nobody would have to deal with cleanup. 

Byrnes asked appellant how she communicated with Faustina. Appellant explained that 

Faustina responds by blinking twice to answer “yes,” and once to answer “no.” She said 

she asked him specific questions and advised him she was going to end her life. She told 

him her plan and asked him if he thought it would work. Faustina answered yes. When 

she asked him if he wanted to go to a facility or die with her, his responses indicated that 

he wanted to die with her. Appellant said she knew she “had to pay” for what she had 

done but did not want to go to prison for the rest of her life. She wished to see Faustina 

and start a new chapter in her life. She hoped to find a group home for Faustina in the 

Bay Area, where more resources were available, and where her two sisters lived. 

Appellant planned to find employment and housing in the Bay Area. 

 Byrnes later reviewed Faustina’s medical reports, which showed he had been 

administered four liters of oxygen. Emergency medical technicians “performed oral 

suctioning and tracheal suctioning with a large amount of soot and burned material 
8 

removed from the oral cavity and the tracheostomy.” Faustina had “evidence of soot and 

partial-thickness burns around the face, as well as soot on the dorsum and of the hands.” 

“[D]ue to significant smoke inhalation, elevated carboxyhemoglobin, and significant 

amounts of carbonaceous material in his oropharynx and tracheostomy tube, there was a 

concern of burns to the lungs and possible pulmonary injury.” As a result, Faustina was 

transferred to St. Francis Burn Center via Reach Air ambulance. 

 Appellant pleaded no contest to attempted voluntary manslaughter and arson, and 

to using a fire accelerant. On March 28, 2012, the trial court sentenced appellant to 13 

years in state prison, consisting of the upper term of eight years on the arson account, a 

consecutive four years for the use of an accelerant, and an additional consecutive one 

year term for the attempted voluntary manslaughter count. Appellant filed a timely 

notice of appeal. 

DISCUSSION

Upper Term 

 Appellant contends the trial court erred in imposing the upper term on the arson 

count. We disagree. 

 The trial court has wide discretion in weighing aggravating and mitigating factors. 

(People v. Avalos (1996) 47 Cal.App.4th 1569, 1582.) The weighing of these factors by 

the sentencing court involves a flexible analysis, not a rigid numerical approach, and it is 

not necessary for the court to discuss each factor individually. (People v. Thornton

(1985) 167 Cal.App.3d 72, 77; People v. Evans (1983) 141 Cal.App.3d 1019, 1022.) A 

reviewing court must presume in favor of the trial court’s exercise of sentencing 

discretion, absent a clear showing by appellant that the sentence was capricious, arbitrary 

or irrational. (People v. Giminez (1975) 14 Cal.3d 68, 72.) Moreover, the power of the 

reviewing court in determining the sufficiency of the evidence to support the findings of 

the trial court begins and ends with a determination as to whether there is any substantial 

evidence, contradicted or uncontradicted, that will support such conclusions or findings. 

(People v. Gragg (1989) 216 Cal.App.3d 32, 46.) Because a sentencing court need only 

find an aggravating factor by a preponderance of the evidence, any credible, solid 
9 

evidence appearing in the record will necessarily be substantial enough to support the 

lower court’s exercise of discretion as to sentencing factors in aggravation and 

mitigation. (See People v. Preyer (1985) 164 Cal.App.3d 568, 577.) If such evidence 

appears on the record, then the reviewing court must uphold the lower court’s finding 

against appellant’s challenge. (People v. Giminez, supra, 14 Cal.3d at pp. 72–73; People 

v. Preyer, supra, 164 Cal.App.3d at p. 577.) 

 Here, there was ample evidence supporting the trial court’s finding that there were 

aggravating factors that justified the upper term on the arson count. Appellant’s actions 

placed numerous individuals at great risk, including her quadriplegic son who she knew 

could not protect himself in any way, numerous firefighters, the neighbors who went 

inside to save her son, and other neighbors whose homes and lives could have been 

destroyed by the explosion and subsequent conflagration. Appellant also blew up the 

house, causing great financial damage, and admitted she did so in order to prevent her exhusband from getting possession of the house, and to “make sure nobody else got 

anything.” Moreover, she did not add just a little accelerant to start the fire; rather, she 

turned on oxygen tanks and propane tanks in order to blow the roof and the walls off of 

her house. It was also a calculated crime, as she planned the fire by purchasing propane 

gas, placing propane tanks strategically inside the house, and filling the stove with 

Manzanita wood, which she knew would burn for a long time. Finally, appellant initially 

denied any culpability for the offense, making up a story about inadvertently leaving a 

propane tank inside the house and having no idea how the fire started. She later said she 

started the fire and intended to kill herself as well, but there was evidence suggesting this 

was not true and that she had left the home before or during the fire, as there were pine 

needles in her hair and minimal soot on her. 

 The trial court relied on many of the above aggravating factors in imposing the 

upper term of eight years on the arson count. The court added that while “the 

background to the events that occurred . . . would cause anybody to have great empathy 

with [appellant],” it did not mitigate her unjustifiable actions. The court believed 

appellant had “delud[ed] [her]self to think that [her son] . . . could have entered into a 
10 

reasonable, rational, and informed decision” to die, and that even if she had truly believed 

her son wished to die, “the manner that [she] chose to accomplish” the objective placed 

numerous people at great risk. The court also noted that appellant “could have made life 

more difficult for [her] son,” who “could have been gravely injured.” 

 Even a single aggravating factor “is sufficient to impose an aggravated sentence 

where the aggravating factor outweighs the cumulative effect of all mitigating factors, 

justifying the upper prison term when viewed in light of general sentencing 

objectives . . . .” (People v. Nevill (1985) 167 Cal.App.3d 198, 202.) Here, in light of the 

fact that the offense involved great violence, disclosing a high degree of callousness (Cal. 

Rules of Court, rule 4.421(a)(1)), the victim was particularly vulnerable 

(rule 4.421(a)(3)), the manner in which the crime was carried out indicates a great deal of 

planning and sophistication (rule 4.421(a)(8)), the crime involved damage of great 

monetary value (rule 4.421(a)(9)), and appellant engaged in violent conduct, indicating a 

serious danger to society (rule 4.421(b)(1)), we conclude the trial court properly imposed 

the upper term. 

Section 654

 Appellant contends the trial court erred in not staying the sentence on count one 

pursuant to section 654. We disagree. 

 Section 654 provides: “An act or omission that is punishable in different ways by 

different provisions of law shall be punished under the provision that provides for the 

longest potential term of imprisonment, but in no case shall the act or omission be 

punished under more than one provision. In determining whether the facts call for the 

application of section 654, the threshold inquiry is to determine the defendant’s objective 

and intent. If all the offenses are incident to one objective, the defendant may be 

punished for any one of them, but not for more than one. (People v. Coleman (1989) 48 

Cal.3d 112, 162.) Whether a defendant acted with a singular intent and objective is a 

question of fact for the trial court and the court’s finding will not be disturbed if it is 

supported by substantial evidence. (People v. Avalos, supra, 47 Cal.App.4th at p. 1583.) 

The “intent and objective” test is not applied broadly for purposes of section 654. Thus, 
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where a defendant entertained multiple criminal objectives that were independent of and 

not merely incidental to each other, the trial court may impose punishment for 

independent violations committed in pursuit of each objective even though the violations 

shared common acts or were parts of an otherwise indivisible course of conduct. (People 

v. Akins (1997) 56 Cal.App.4th 331, 338–339; see also People v. Hicks (1993) 6 Cal.4th 

784, 790.) 

 Here, the trial court properly sentenced appellant. In imposing a consecutive term, 

the court noted, “[a]nd I think this deserves sentencing as a consecutive term rather than a 

concurrent because you still—if your intent had been to take your own life and to do that 

by means of arson or by burning the building, there was still no need—you could have 

accomplished that without attempting to kill your son Michael as well. In my mind, even 

though it’s related to arson in that they both used the same means, it’s still a separate 

action on your part, the attempted voluntary manslaughter.” Appellant harbored separate 

intents and objectives when she committed the arson and the attempted manslaughter. 

The arson conviction was based on her plan of killing herself and/or destroying the house 

so that her ex-husband would not be able to have the house. She described the animosity 

between her and her ex-husband at length and admitted she “[blew] up the house” at least 

in part because she did not want him to have it. The attempted voluntary manslaughter 

conviction was based on her objective to kill her son. Because she had distinct intents 

and objectives in committing the two crimes, her convictions were based on separate acts 

that were not part of an indivisible course of conduct. (People v. Douglas (1995) 39 

Cal.App.4th 1385, 1393; People v. Evers (1992) 10 Cal.App.4th 588, 602–603.) There 

was no error. 

DISPOSITION

 The judgment is affirmed. 
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 _________________________ 

 McGuiness, P.J. 

We concur: 

_________________________ 

Siggins, J. 

_________________________ 

Jenkins, J.