Opinion
G057549
09-21-2020
THE PEOPLE, Plaintiff and Respondent, v. SALEH ALI, Defendant and Appellant.
Tanya Dellaca, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Felicity Senoski, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 18NF2637) OPINION Appeal from a judgment of the Superior Court of Orange County, Michael A. Leversen, Judge. Affirmed as modified. Tanya Dellaca, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Felicity Senoski, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted defendant Saleh Ali of two counts of possession of a destructive device with intent to injure, intimidate, or terrify a person, or destroy property of another (Pen. Code, § 18740 (counts 1 & 2)), along with several related felonies, and found true allegations he had previously suffered two serious or violent felony "strike" convictions (§§ 667, subds. (d) & (e)(2)(A), 1170.12, subds. (b) & (c)(2)(A)). The court sentenced defendant to 19 years and four months in prison.
All statutory references are to the Penal Code.
Defendant argues the convictions on counts 1 and 2 must be reversed because there was no substantial evidence he possessed the devices with the specific intent to intimidate or injure another or destroy the property of another. We disagree.
Defendant also argues and the People concede he is entitled to an additional 160 additional presentence conduct credits because his current offenses are not violent felonies. We agree.
We modify the judgment accordingly and affirm the judgment as modified.
FACTS
Defendant was pulled over by the Brea police for expired registration while driving along Imperial Highway, near downtown Brea and the Brea mall. During the traffic stop, defendant gave the police officer his driver's license, which the officer discovered was suspended. Because he then intended to tow the car, the police officer detained defendant and conducted an inventory search of the car.
During the search, the police officer found two small objects (the devices), one approximately baseball-sized, and one smaller, each with rectangular stems protruding from their tops. The police officer also found a large box of matches in the car. While inspecting the smaller of the two devices, the police officer discovered that it contained red powder, which he believed to be match heads. Upon consultation with his partner, the officer arrested defendant and called the Orange County bomb squad.
When members of the bomb squad arrived, they moved the devices to a nearby dumpster alcove for safety and disassembled them. The material inside was discovered to be match head material and (in the larger device only) ground up charcoal. Later laboratory testing conducted by the FBI confirmed that the material was potassium-chlorate-based match head material. Each device was fashioned from a glass container with an epoxy coating, which adhered pieces of metal shrapnel to the sides.
At trial, the prosecution offered unrebutted expert testimony from a trained officer of the Orange County bomb squad that the "sole purpose" of shrapnel is to make a device "more destructive." The expert also testified the shrapnel would not be visible in an explosion; it would move "faster than you could see it." The prosecution also offered testimony of a police officer from Oceanside, who had encountered defendant several months earlier. During that encounter, defendant told the officer "for all [the officer] knew, [defendant] could be making bombs out of his car."
At sentencing, defendant was awarded 217 days of credit for time served, representing 189 actual days and 28 local conduct days, based upon the 15 percent limitation to local conduct days set forth in section 2933.1.
DISCUSSION
1. Sufficiency of Evidence on Counts 1 and 2
Defendant argues the convictions on counts 1 and 2 must be reversed because there was insufficient evidence he possessed the devices with the requisite specific "intent to injure, intimidate, or terrify any person, or with intent to wrongfully injure or destroy any property . . . ." (§ 18740, italics added.) Section 18740 "seeks to punish and thereby discourage possession or ignition of explosives which are intended to injure other people but don't succeed in injuring them, which intend to terrorize or intimidate other people but do not injure them, or to injure or destroy other persons' property." (People v. Godwin (1995) 31 Cal.App.4th 1112, 1118 [interpreting predecessor statute, section 12303.3].)
"In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Bolin (1998) 18 Cal.4th 297, 331.) "Reversal on this ground is unwarranted unless it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].'" (Ibid.) "[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (Jackson v. Virginia (1979) 443 U.S. 307, 319; People v. Johnson (1980) 26 Cal.3d 557, 576.)
"'Substantial evidence includes circumstantial evidence and any reasonable inferences drawn from that evidence.'" (People v. Brooks (2017) 3 Cal.5th 1, 57.) "'[I]f the circumstances reasonably justify the jury's findings, the reviewing court may not reverse the judgment merely because it believes that the circumstances might also support a contrary finding.'" (People v. Thompson (2010) 49 Cal.4th 79, 114.) Intent can be proven through circumstantial evidence. (§ 29.2, subd. (a).)
The unrebutted expert testimony at trial was that the sole purpose of the shrapnel adhered to the outside of the devices was to make them more destructive, i.e., more injurious to people and damaging to property. The shrapnel also could not be seen in an explosion, as it would be moving too fast to be seen. In other words, the design of the devices reflected intent to cause harm. From this fact alone, the jury could reasonably have inferred defendant intended the devices to be exploded and to thereby cause injury to people and damage to property, or to threaten someone with them.
But there was more. As noted above, defendant also told an Oceanside police officer that he might be "making bombs out of his car." Defendant also transported the devices in his car through a crowded downtown urban center. While it is true there was no evidence presented of any immediate, specific target for the devices, such evidence is not necessary to prove the requisite intent. It suffices that there was evidence defendant intended in making and possessing the devices to injure or terrorize some other person or damage some other person's property.
These facts are sufficient to support the jury's finding of intent.
2. Presentence Conduct Credits
The court awarded defendant 28 days of presentence conduct credits for 189 days actually served in local custody, based upon section 2933.1, which limits such credits for anyone convicted of a violent felony to a maximum of 15 percent of the time actually served. The "violent felonies" to which section 2933.1 applies are listed in section 667.5, subdivision (c).
Defendant contends, the People concede, and we agree, none of the offenses for which he was convicted are listed as violent felonies in section 667.5, subdivision (c), and, accordingly, the trial court's application of section 2933.1 was erroneous. Defendant was entitled to 188 days of presentence conduct credits (not 28).
DISPOSITION
The judgment is modified to award defendant a total of 377 days of presentence credits, consisting of 189 days of actual custody credit plus 188 days of conduct credit. In all other respects, the judgment is affirmed.
THOMPSON, J. WE CONCUR: ARONSON, ACTING P. J. GOETHALS, J.