PEOPLE v. TURNAGE

Filed 4/1/10

CERTIFIED FOR PARTIAL PUBLICATION^*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Yolo)

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Story continued from part I..

The People argue that there was evidence at trial from which we could conclude that defendant in fact caused sustained fear and therefore is not similarly situated with a misdemeanant violator of section 11418.1, and he therefore lacks standing to assert the claim. This argument is not well taken. The People do not provide any authority for the proposition that in a challenge to the facial constitutionality of the statute we must consider circumstances that are not part of the statutory definition of the crime and that were not the subject of any jury finding. Defendant does not contend there is anything about the particular circumstances of his offense that render his punishment a constitutional violation as applied to him (such as with claims of cruel and unusual punishment). We are unconvinced by the Peoples proposed approach, which would require us to look beyond the statutory elements of the offense [defendant] admitted. (In re J.P. (2009) 170 Cal.App.4th 1292, 1299 [rejecting Peoples argument that minor not similarly situated because facts of case showed he could have been convicted of different crime (that was not an included offense) for which all offenders receive identical treatment]; accord, People v. Ranscht (2009) 173 Cal.App.4th 1369, 1374-1375.) We thus do not need to consider defendants arguments regarding the sufficiency of the evidence to prove sustained fear.

4

The legislative history we have quoted above (ante, at p. 9) expressly noted a view that the conduct underlying sections 148.1(d) and 11418.1 were the same and warranted identical punishment. The analysis overlooked, however, the fact that a false WMD carries the same wobbler penalty as a false bomb only where there is proof of an additional element of sustained fear that justified the creation of a new nonviolent felony subject to additional punishment in the event of recidivism. In light of this, we cannot divine any plausible reason why a conviction for placing a false bomb without causing sustained fear should subject a defendant to a felony conviction under section 148.1(d) but only a misdemeanor conviction under section 11418.1 for a false WMD, given the goals that the Legislature articulated. The fear of a false WMD, given the more far-reaching effects of such devices, would generally be more severe (even in the absence of sustained fear) than only an explosive device whose destructive effects could be more easily evaded, and yet the former incurs the lesser punishment.

The People offer the tenet that courts do not require the Legislature to enact a comprehensive response to a problem and may address it in piecemeal efforts. (Hofsheier, supra, 37 Cal.4th at p. 1205.) However, as in Hofsheier, the argument does not fit this case. (Id. at p. 1206.) The People have not identified any ongoing legislative examination of nonviolent felonies to determine which address conduct that is properly the subject of additional punishment for recidivism. (Cf. ibid. [no showing of ongoing legislative fine-tuning of registration statute to eliminate distinctions between intercourse and oral copulation with minors].) Moreover, the Legislature first added the text of section 148.1(d) in 1972, and has not modified it since 1991 (when it added possession to the list of acts, and changed the definition from an intent that another person think it is a real bomb to an intent to cause fear); nor has it modified any other part of the statute since 1984, other than to add categories of peace officers to whom a false bomb report is punishable under section 148.1, subdivision (b). (Compare Stats. 1998, ch. 760,  1; Stats. 1991, ch. 503,  1, p. 2447; Stats. 1984, ch. 824,  1, pp. 2849-2850.) The 1991 revisit antedates the sea change of harsher treatment of recidivism that began in earnest in 1994 and continues to the present, and thus the rationale for treating the placement of a false bomb without sustained fear as a wobbler has eroded over time, given the legislative history of section 11418.1. (Cf. Hofsheier, supra, 37 Cal.4th at p. 1206 [harsher treatment of oral copulation arose at time when it, unlike intercourse between consenting adults, was illegal].)

Defendants felony punishment has therefore violated his right to equal protection. This leaves the question of remedy.

5

Without any authority, defendant simply asserts that we must reverse his conviction. We reject this claim. Defendants conduct is still a crime. It is merely the degree of punishment that violates his right to equal protection.

A court may choose between extending beneficial treatment to the disfavored class or withdrawing it from the favored class. (Hofsheier, supra, 37 Cal.4th at p. 1207.) The primary concern is to ascertain the Legislatures preferred alternative. (Ibid.) As the distinction the Legislature has drawn in section 11418.1 is its most recent explicit consideration of the punishment that a false destructive device merits, and an articulation of its general policy for when a nonviolent crime merits felony treatment, we believe defendant should have the benefit of the lenience that the Legislature has declared with respect to false WMDs that do not cause sustained fear (rather than disregarding the efforts in section 11418.1 to tailor a distinction). We therefore conclude that placing a false bomb within the meaning of section 148.1(d), which does not include the element of causing sustained fear as defined in section 11418.5, is only a misdemeanor.^[1] This conclusion does not prevent the Legislature from deciding to add sustained fear as an element of section 148.1(d) or finding some other way of keeping the punishment parallel with section 11418.1 in order to impose the same punishment on both groups of offenders. (Cf. Hofsheier, supra, 37 Cal.4th at p. 1206.)

As a result, the sentence for defendants violation of section 148.1(d) is now reduced from a minimum indeterminate term in prison of 25 years to life to no more than one year in county jail. We must remand the matter to the trial court to determine the length of his jail term on the present offense and the manner in which it wishes to structure his overall sentence.

B. Due Process

Defendant also contends the phrase any false or facsimile bomb does not adequately describe the type of object coming within its ambit. He argues that the statute is therefore unconstitutionally vague, both facially and as applied to the facts of this case.

Once again, the People contend defendant has forfeited this claim because he did not raise it in the trial court. We reject their argument for the same reasons previously stated.

1

[T]he underpinning of a vagueness challenge is the due process concept of fair warning that prevents arbitrary enforcement and gives adequate notice. (Sheena K., supra, 40 Cal.4th at p. 890.) To be unconstitutionally vague, the statute must employ terms the meaning of which causes people of common intelligence to guess what conduct is either required or prohibited. (Ibid.)

Defendant acknowledges that bomb is a term of common understanding. (People v. Dimitrov (1995) 33 Cal.App.4th 18, 25 [Persons of common intelligence know what a bomb is; rejecting claim of need for instructional definition of term as used in  12301]; People v. Quinn (1976) 57 Cal.App.3d 251, 259 [term bomb in  12301 not unconstitutionally vague].) He claims, however, that false or facsimile does not adequately limit the entire spectrum of items that are not actual bombs.

Defendant splits hairs in focusing only on the use of the term false or facsimile bomb in his claim that one reasonably cannot tell which objects are prohibited. It is not the object alone, but the object coupled with an intent to cause fear in another that is prohibited. If a person of common intelligence understands the nature of a bomb, then that person will know which objects will cause fear in another from their deceptive similarity to a bomb. Defendant or others need not fear that leaving their hats behind will be mistaken for placing a false bomb unless there is some external indication that it contains an explosive and a detonation device. We therefore reject this claim of vagueness.

2

Defendant also argues that the statute is unconstitutional for vagueness as applied to him, as he could not reasonably have known others would consider his object to be a bomb. He asserts in essence that the box at most proclaimed that it might have an explosive inside and did not give any indication of a detonation device.

People of common intelligence now live in a world where they must remove even shoes for screening in airport security because of the possibility that they could contain a concealed explosive device. We are also sadly in an era in which people have expressed their discontent with the government through the destruction of public buildings. Placing an object that at least boasts of its explosive nature near a government building would indicate to anyone of common intelligence that the object could be considered a bomb even without any external indication of a detonation device concealed within. We therefore reject this claim of vagueness.

II

A. Sufficient EvidenceBomb

Defendant argues the prosecution evidence showed only that he placed a false explosive, which is not punishable under section 148.1(d). He asserts that expert testimony regarding the features of a bomb was necessary in order to support the jurys verdict that this false explosive was a false bomb. He contends that the lay opinion[s] of other witnesses regarding whether his hoax was a bomb are insufficient to support the verdict because they lacked foundation of any prior experience with bombs. Consequently, the court erred in denying his motion to dismiss at the conclusion of the prosecution case.

This was not the actual basis of the motion to dismiss. The motion instead focused on the issue we next discuss, i.e., whether there was sufficient evidence of an intent to instill fear. We will, however, treat this simply as an argument regarding the insufficiency of the evidence.

Defendants claim regarding the need for expert testimony is in essence a rehash of his argument that the term false or facsimile bomb is vague. Jurors of common understanding comprehend that a false bomb must appear to be a device capable of exploding upon the triggering of its fuse. As a result, the jurors were capable of determining by themselves whether the testimony establishing that C-4 is an explosive (including defendants own admission to that effect) demonstrated that defendant placed a false bomb, without either expert or lay opinion testimony to that effect.

B. Sufficient EvidenceIntent

Coming to the actual basis of defendants motion to acquit, he reiterates that the prosecution produced insufficient evidence of his intent to induce fear in another. In this regard, he relies on the innocuous circumstances of the object and its placement, the absence of any particular animus toward the YCCC or any of its employees, the lack of any extreme reaction on the part of YCCC employees, his availability for police questioning afterward, and his self-serving assertion of intending only a joke. The argument lacks merit.

Regarding the appearance and placement of the false bomb, we have already noted that in the present day one can rationally fear that the most innocuous of objectseven shoesmight be a bomb. We have reviewed the pictures of defendants box in the record. While it might not appear threatening of itself, the context of the placement of a box labeled with the name of an explosive and a flag near the entrance to the unguarded parking lot of a government facility allows for a rational inference that he intended to scare employees driving through the gate. Indeed, even the bomb expert was wary of the object.

It is not necessary that defendant have an animus toward any person in particular at the YCCC. His particular reliance on People v. Lake (2007) 156 Cal.App.4th Supp. 1, 9, for this proposition is not well-placed, as the solicitation statute at issue in that case required knowledge of the likely presence at the proposed location of third parties whom the solicited acts would offend.^[2] In any event, there was evidence of his irrational need to scare off unspecified individuals at the YCCC in particular, and apparent hostility to county offices in general, as demonstrated in the imaginary rifle incident and his glaring at the police officer at the intersection.

His efforts to minimize the response at the YCCC to his joke are unavailing. Both the YCCC and the police treated the object as a bomb, as did the bomb expert.

This leaves his failure to flee the area after placing the bomb, his cooperative response to police questioning, and his disavowal of any intent to scare anyone. We are not obligated to accept his self-serving disavowals of an intent to scare, particularly in light of his admissions of his perceived difficulties with officers that he needed to scare.

III

As we have reduced defendants present conviction to a misdemeanor, he no longer satisfies the criterion of incurring a present felony conviction ( 667, subd. (c)), required to impose an indeterminate life sentence on it ( 667, subd. (e)(2)(a)(ii)). This moots his claim regarding the sufficiency of the evidence to support the finding that his 1985 guilty plea satisfies the additional criterion of prior qualifying convictions. ( 667, subd. (d).)

IV

Defendant asserts that if we reverse his conviction for placing a false bomb, then we must vacate the finding of a violation of probation and remand because it is not clear whether the court based its finding on the mere fact of his conviction rather than on the evidence adduced at trial. (Compare People v. McNeal (1979) 90 Cal.App.3d 830, 840, fn. 3 [where court affirmatively indicates it relied on evidence rather than mere fact of conviction, no need to vacate and remand finding of probation violation]; People v. Hayko (1970) 7 Cal.App.3d 604, 611 [only specified basis for finding of probation violation was fact of conviction; must vacate and remand].)

As we have already stated, defendant is not entitled to a reversal of his conviction. We therefore reject this argument.^[3]

DISPOSITION

The judgment of conviction is affirmed. The sentence is vacated, and the matter remanded for sentencing on the violation of section 148.1(d) as a misdemeanor.

RAYE , Acting P. J.

We concur:

BUTZ , J.

CANTIL-SAKAUYE , J.

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^* Pursuant to California Rules of Court, rule 8.1110, this opinion is certified for publication with the exception of parts IB, IIA, IIB, III, and IV of the Discussion.

^[1] We do not decide whether the People may seek a special jury finding of sustained fear in order to punish the offense as a felony.

^[2] We do not need to respond to his remaining citations to other cases involving other crimes and the insufficiency of evidence of intent in those appellate records. (State Compensation Ins. Fund v. Brown (1995) 32 Cal.App.4th 188, 202 & fn. 5.)

^[3] The recent amendments to Penal Code section 4019 do not operate to modify defendants entitlement to credit, as he had prior convictions for a serious or violent felony. (Pen. Code, 4019, subds. (b)(2) & (c)(2); Stats. 2009, 3d Ex. Sess., ch. 28, 50.)