Tom

*252 While watching a small dog that belonged to his girlfriend's parents, defendant Jesse Cody Tom beat, stabbed, and strangled the dog. Defendant then covered *352 the dead dog with oil and placed it inside a barbeque. Before he could light the deceased dog on fire, however, officers arrived on scene and apprehended defendant after he fled.

A jury convicted defendant of two counts of animal cruelty ( Pen. Code, § 597, subds. (a) -count one, & (b)-count two), 1 resisting, delaying, or obstructing an officer (§ 148, subd. (a)(1)-count three), and attempted arson (§ 455-count four). The jury found true the special allegation that defendant had personally used a deadly weapon, a broken wine bottle, within the meaning of section 12022, subdivision (b)(1). At a subsequent proceeding, the court found true a prior prison allegation (§ 667.5, subd. (b)), and later sentenced defendant to an aggregate term of five years eight months in state prison.

Defendant does not dispute the facts underlying his convictions, but on appeal he contends that he could not be convicted of violating subdivision (a) and subdivision (b) of section 597, the animal cruelty statute, based on the same act. He…