Rhodes

A jury found defendant and appellant Troy Rhodes guilty of having committed arson of an inhabited structure in violation of Penal Code section 451, subdivision (b). Three prior felony convictions were alleged, two of which were found to be true and used to enhance his sentence. He was sentenced to a total of 13 years in state prison. On this appeal from the judgment, we will affirm the conviction but remand for resentencing.

Background

The Prosecution

On May 2, 1986, David and Caroline Micke lived at a house on Placer Drive in San Leandro with their two sons. At approximately 6:30 to 7 p.m. as they were unloading laundry, the couple were in the midst of a loud argument about money. Pacific Gas and Electric (PG&E) had cut off the gas and electricity to their home due to lack of payment, and Caroline was preparing to take the children to her father’s house in Calaveras County.

At one point, Caroline stated that she was going to notify the sheriff’s department to seek their assistance in leaving peaceably. Defendant, who lived in a tool shed adjacent to the Mickes’ property, immediately came running into the house and joined the argument. He was “acting weird” and was…