APPEAL from a judgment of the Superior Court of San Diego County, William J. McGrath, Jr., Judge. Affirmed. (Super. Ct. No. SCE281618)
The opinion of the court was delivered by: Huffman, J.
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A jury convicted Eugene M. Remund of two counts of arson of an inhabited structure (Pen. Code,*fn1 § 451, subd. (b)), and one count of making a criminal threat (§ 422). At sentencing, the court found Remund's conviction for arson made him ineligible for probation (§ 1203, subd. (e)(9)). The court sentenced Remund to prison for a total term of 13 years. Remund did not object at sentencing. Remund appeals, contending the court erred by (1) determining he was ineligible for probation under section 1203, subdivision (e)(9); (2) denying his request for probation; (3) imposing the middle term for his arson conviction; and (4) imposing the upper term for the enhancement to that conviction. We affirm.
Remund married Gale in 1988. Their relationship eventually deteriorated, and Remund left the couple's home in 2006 after Gale obtained a restraining order against him. Gale filed for divorce in February of 2007.
After a year of attorney fees and still no judgment in the matter, Remund became very dissatisfied with the family law system. He decided to express his frustration by behaving criminally, and as early as May of 2008, the 76-year-old Remund began to plan an elaborate suicide. In audiotape recordings, Remund announced his plans to set fire to Gale's and her daughter Deborah's garages. He repeatedly stated he did not want to injure Gale or Deborah, instead characterizing his crime as one intended to spark debate about the family law system. Remund also said he planned to kill himself after setting the garages on fire.
At about 11:00 p.m. on June 22, 2008, Remund drove his van to Gale's house. He brought gasoline containers, a bolt gun, and signs detailing his frustration with the legal system. When he arrived, Remund hung one of the signs in Gale's front yard. He then sprayed gasoline on the garage door and lit it, setting the garage on fire.
Gale, who was asleep in bed, awoke when she heard noises outside her home. A neighbor helped her out of the house, and as she evacuated, other neighbors put out the fire. The fire did not spread to the house, in part because a small breezeway separated the garage from the house. At trial, a fire investigator testified the fire would have spread to the house if not for the neighbors' efforts.
Meanwhile, Remund, still equipped with the bolt gun, drove to Deborah's house nearby. When he arrived, he posted another sign in the front yard. He also cut a water hose so that it could not be used to douse the fire. Remund then drove his van into Deborah's attached garage, emptied almost two gallons of gasoline in and around it, and set it on fire.
Upstairs and asleep in bed, Deborah and her partner Katherine awoke when they heard the telephone ring. One of Gale's neighbors had called to tell them of the fire at Gale's house. They decided to go help Gale, but as they hastened to dress, Katherine saw their garage on fire. They ran downstairs and tried to leave through the front door, but Remund stood nearby holding the bolt gun. Katherine remembered Remund saying, "If you come out the gate, I will shoot you." Deborah and Katherine eventually left through a window and found Remund on the ground with a nail sticking out of his head. He had shot himself with the bolt gun. While Remund lay immobilized, neighbors and others worked to contain the fire before it spread to the house. Remund was then arrested.