## Facts

- An office building was entered three times in one night: twice to steal items of little value, and a third time when the building was burned, allegedly to destroy fingerprints.
- The fire caused at least $275,000 in damage and substantial disruption and inconvenience to the building’s tenants.
- Kenny Wayne Takencareof and Jeffrey Don Blomdahl were among several participants linked to the entries.
- Takencareof and Blomdahl were each charged with two counts of burglary and one count of arson arising from the three alleged entries.
- During trial, Takencareof pleaded guilty to the first burglary count; the jury acquitted him on the second burglary count and the arson count.
- The jury convicted Blomdahl on the first burglary count but could not reach verdicts on the second burglary and arson counts; the court declared a mistrial on those counts and later dismissed them in the interest of justice.
- At Takencareof’s sentencing, the trial court denied probation and imposed a prison sentence, citing factors such as multiple victims, substantial financial loss, and disruption of lives—factors that largely reflected the arson-related damage despite the acquittal.
- Takencareof appealed, arguing the sentencing court improperly relied on the arson as a basis to deny probation.

## Issues

1. May a trial court deny probation for a burglary conviction by relying on the harm caused by an arson when the jury acquitted the defendant of arson?

## Decision

- The Court of Appeal held the sentencing court erred by denying probation based on treating Takencareof as though he committed the arson despite the jury’s acquittal.
- The court set aside the probation denial and sentence and remanded for resentencing/probation reconsideration consistent with the acquittal.

## Legal Principles

- A sentencing court has broad discretion to consider a wide range of information when deciding probation and selecting a sentence.
- That discretion does not extend to denying probation (or increasing punishment) by treating the defendant as guilty of a separate offense of which the defendant was acquitted.
- When the stated reasons for denying probation depend on losses or disruption attributable to an acquitted offense, the sentence cannot stand unless the court bases its decision on lawful factors tied to the conviction and supported by the record.

## Conclusion

Because Takencareof was convicted only of burglary and acquitted of arson, the trial court could not deny probation by relying on the arson-related losses and disruption as though the arson had been proved; the Court of Appeal therefore vacated the sentence and remanded for a new sentencing/probation determination consistent with the acquittal.


People v. Takencareof, 119 Cal. App. 3d 492 (1981)