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People v. Barton

California Court of Appeals, Third District, Shasta
Apr 15, 2009
No. C056196 (Cal. Ct. App. Apr. 15, 2009)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. RICHARD CLIFTON BARTON, Defendant and Appellant. C056196 California Court of Appeal, Third District, Shasta April 15, 2009

NOT TO BE PUBLISHED

Super. Ct. Nos. 04F8690, 06F4661.

DAVIS, J.

Retired Associate Justice of the Court of Appeal, Third Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

In case No. 06F4661, after a bench trial, defendant Richard Clifton Barton was convicted of felony possession of a destructive device (Pen. Code, § 12303) and misdemeanor driving while his license was suspended for a prior driving under the influence conviction (Veh. Code, § 14601.2, subd. (a)). The court also found that defendant had violated his probation in case No. 04F8690 and in another case not subject to this appeal. Defendant admitted a prior strike and the court imposed a prison term of six years four months.

On appeal, defendant contends there is insufficient evidence to support his convictions and that reversal of the convictions warrants reconsideration of the revocation of probation in case No. 04F8690. We shall reverse the conviction for driving with a suspended license and otherwise affirm.

Background

On April 6, 2006, Sergeant Bryan Van Dyke of the Anderson Police Department was investigating a domestic violence allegation and looking for Larry Vick. He spotted Vick riding in a Toyota Corolla and pulled the car over. An assisting officer ran a warrant check on defendant, the driver of the Corolla, and determined that he had an outstanding felony warrant and that his license was suspended.

The officers arrested defendant and searched the car. Inside the car, they found an aluminum carbon dioxide (C02) cartridge, three to four inches long, with a piece of masking tape wrapped around it. A clay-like material, which acted like a stopper, was on the tip of the cartridge, and a white string protruded from the clay and down the side of the device.

Sergeant Van Dyke seized the device and the bomb squad was called. Evan Armstrong, a bomb squad technician who was a member of the Shasta County Sheriff’s Department bomb squad, removed the string and stopper and examined the contents of the cylinder. The C02 cylinder contained about 14.4 grams of black powder. Armstrong stated that a California regulation firecracker may contain no more than five milligrams of powder.

Although Armstrong was not formally introduced as an expert, he did state his training and experience with regard to his current position. In addition to testifying as a percipient witness, he offered opinion on the makeup of the device and the way in which it was designed to function. When the trial court rendered its verdict (see p. 5, post), it referred to Armstrong as the expert several times, and stated, at one point, that sufficient foundation had been laid to provide Armstrong with the expertise to provide the testimony he had given.

Armstrong stated that he believed the string acted as a fuse for the device. If heat were transferred to the powder inside the cylinder, the powder would ignite, and the cylinder would contain the resulting gases, leading to an explosion. The device was designed for the fuse to transfer heat to the powder, causing the explosion. The explosion would lead the cylinder to fragment, which could cause physical injury and the destruction of property.

Armstrong testified that the device could explode if a heat source lit the string or any type of fusing. Armstrong stated that standard household string, which was used on the device, was not the typical fuse he was used to seeing. Armstrong did not know if it would actually ignite the device, and he speculated in his report whether it could perform this function.

There was a question in Armstrong’s mind as to whether the string would create a heat source inside the cylinder. The ability of the fuse to ignite the powder “would depend on the circumstances and oxygen and stuff like that.” The fuse “may burn through the clay, not burn through the clay. However it might. It might burn through the clay. I don’t know.” A flame would not have to be directly applied to the powder to ignite it; exposure to a heat source could also cause the device to explode. If a cigarette lighter or other heat source was able to light the fusing, the device could “absolutely” go off.

In Armstrong’s opinion, this was a destructive device. There was no record of defendant having an explosives permit in Shasta County.

Vick testified that he had seen defendant previously make such devices. According to Vick, defendant mixed “some sort of phosphorous or something” with the powder so it would burn more slowly and act as a propellant. He would then ignite the fuse (or hook the device up to a nine-volt battery), and it would “launch like a rocket.” Vick saw defendant take the devices to Shasta Lake, where defendant attached them to the ends of fishing poles or broken arrows, ignited the devices from a battery, and launched them.

Defendant took the stand and confirmed Vick’s testimony. With regard to the device found in the Corolla, he stated that he drilled out the opening of the cylinder and filled it with gunpowder. He intended to take it to Vick’s, where he would normally get phosphorous from a road flare, mix it with the gunpowder, and attach the device to something to give it stability, such as a pole or arrow. He topped the cylinder with plumber’s epoxy to keep the gunpowder in the cylinder during transit. He used the string so he could quickly remove the epoxy stopper to access the powder. Once a device was finished, defendant would go to a safe area and ignite it with a store-bought igniter and a nine-volt battery. Defendant had launched around seven homemade devices of this type.

In rendering its verdict, the trial court explained that the central issue was whether the device was fused for detonation so that it could be considered an explosive device under Penal Code section 12303. After taking argument from the parties and reviewing the testimony, the court determined the string was intended to cause an explosion by transferring heat to the powder and that it would do so under certain conditions. It found Armstrong’s testimony credible, and concluded defendant’s explanation was “not credible and illogical.”

Discussion

I

Defendant contends there is insufficient evidence to support his conviction for possession of a destructive device. In support of his argument, defendant relies on Armstrong’s testimony in which he expressed uncertainty over whether the string could ignite the black powder within the device. We disagree.

On appeal, this court must determine “‘whether substantial evidence supports the conclusion of the trier of fact, not whether the evidence proves guilt beyond a reasonable doubt. [Citation omitted.] The appellate court must determine whether a reasonable trier of fact could have found the prosecution sustained its burden of proving the defendant guilty beyond a reasonable doubt.’” (People v. Johnson (1980) 26 Cal.3d 557, 576.) “In determining whether a reasonable trier of fact could have found defendant guilty beyond a reasonable doubt, the appellate court ‘must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.’” (Ibid.) For the evidence to be substantial, it must be “‘reasonable in nature, credible, and of solid value.’ [Citations.]” (Ibid.)

Penal Code section 12303 prohibits the possession of a “destructive device.” The Legislature has not provided a definition of “destructive device.” Instead, it has adopted a nonexclusive list containing a number of different types of weapons that constitute destructive devices. Among the weapons listed as destructive devices are “[a]ny bomb, grenade, explosive missile, or similar device or any launching device therefor.” (Pen. Code, § 12301, subd. (a)(2).)

Defendant relies on People v. Heideman (1976) 58 Cal.App.3d 321 (Heideman) and People v. Morse (1992) 2 Cal.App.4th 620 for the proposition that a device must have a capacity to detonate to be considered an explosive device. However, according to Heideman and Morse, a device need not be immediately capable of exploding to qualify as a destructive device. (Heideman, supra, 58 Cal.App.3d at pp. 335-336; Morse, supra, 2 Cal.App.4th at pp. 646-647 & fn. 8.)

The makings of a bomb (e.g., “‘a stick of dynamite with four batteries, mercury switch, and wiring’”) (Heideman, supra, 58 Cal.App.3d at p. 329), qualify as a destructive device even though no blasting caps necessary to detonate the dynamite are found. Ruling otherwise, the Heideman court reasoned, was contrary to legislative intent and would have ignored evidence that this particular dynamite could accidentally have detonated without a blasting cap due to its age and stage of decomposition. (Id. at p. 335 & fn. 11, p. 336.) The defendant’s claim in Heideman that it was lawful to possess a bomb without a blasting cap “is entirely without merit and contrary to the clearly expressed intent of the Legislature.” (Id. at p. 335.)

According to Armstrong’s testimony, the device in defendant’s possession was certainly capable of exploding so long as heat was transferred to the black powder. Armstrong also concluded that the string fuse could ignite the device under certain circumstances and that other applications of heat to the powder could also cause the device to explode. Because defendant’s device was as or even more immediately capable of exploding than the one in Heideman, we conclude his conviction for possession of a destructive device is supported by substantial evidence.

II

Defendant was charged with, and convicted of, violating Vehicle Code section 14601.2, subd. (a), which prohibits driving with a license suspended for a prior violation of driving under the influence.

The only evidence that defendant had a suspended license was People’s exhibit No. 6, a Department of Motor Vehicles (DMV) record. The DMV record stated that defendant’s license had been suspended pursuant to former Welfare and Institutions Code former section 11350.6 for defendant’s failure to comply with a support order.

Testimony from Sergeant Van Dyke that he heard from dispatch defendant’s license was suspended for a prior driving under the influence conviction was not admitted to prove the truth of the matter asserted.

Welfare and Institutions Code former section 11350.6 was repealed by Statutes 1999, chapter 478, section 14, and reenacted as section 17520 of the Family Code by Statutes 1999, chapter 654, section 35, without substantive change.

As there is no evidence showing defendant’s license was suspended for driving under the influence, he contends there is insufficient evidence to support his conviction under Vehicle Code section 14601.2, subdivision (a). We agree.

Admitting the evidence does not support a conviction for Vehicle Code section 14601.2, the Attorney General claims there is sufficient evidence to support a conviction under Vehicle Code section 14601.1, subdivision (a), which prohibits driving with a license which is “suspended or revoked for any reason other than those listed in [Vehicle Code] Section 14601, 14601.2, or 14601.5, if the person so driving has knowledge of the suspension or revocation.” From this, the Attorney General concludes the error at trial is not a matter of insufficient evidence, but improper statutory identification in the information, which was forfeited by defendant’s failure to object or demur to the information.

“A person cannot be convicted of an offense (other than a necessarily included offense) not charged against him by indictment or information, whether or not there was evidence at his trial to show that he had committed that offense.” (In re Hess (1955) 45 Cal.2d 171, 174-175.) This rule is a fundamental component of due process, which “requires that an accused be advised of the charges against him in order that he may have a reasonable opportunity to prepare and present his defense and not be taken by surprise by evidence offered at his trial.” (Id. at p. 175.)

“Under California law, a lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser. [Citations.]” (People v. Birks (1998) 19 Cal.4th 108, 117-118.) As we have already discussed, Vehicle Code section 14601.1 specifically excludes violations of section 14601.2 from its ambit. It is therefore clear that section 14601.1 is not a lesser included offense of the charged crime, Vehicle Code section 14601.2.

The Attorney General, citing People v. Sandoval (2006) 140 Cal.App.4th 111, 132, argues defendant was not prejudiced by his being prosecuted under the wrong statute as “[m]ere error in statutory reference in an information does not invalidate the conviction.” Sandoval does not stand for the proposition that a defendant can be convicted of an uncharged offense. It holds that defects in the plea’s form are not grounds for reversal in the absence of prejudice to the defendant, and a criminal judgment may be based on an information that has been orally amended. (Sandoval, supra, at p. 132.) Nothing in the record shows any mention of defendant’s potential liability under section 14601.1, nor is there a written or oral amendment of the information to that effect.

The Attorney General asserts defendant’s claim is forfeited because “defendant must demur to the information or otherwise raise the issue in the trial court,” citing People v. Jenkins (2000) 22 Cal.4th 900, 1000. In Jenkins, the Supreme Court did not address the claim before us, only holding defendant’s claim that conditions of his confinement impaired his ability to aid his defense was forfeited by his failure to raise the issue at trial. (Id. at pp. 999-1000.) It is true that a failure to demur to a charging allegation for lack of specificity or uncertainty waives any objection to the sufficiency of the information. (People v. Holt (1997) 15 Cal.4th 619, 672.) However, the error here is not an uncertain or unspecific information, but rather an information that charged a crime that was not proved at trial.

This error is fundamental to defendant’s right to a fair trial. “No principle of procedural due process is more clearly established than that notice of the specific charge, and a chance to be heard in a trial of the issues raised by that charge, if desired, are among the constitutional rights of every accused in a criminal proceeding in all courts, state or federal.” (Cole v. Arkansas (1948) 333 U.S. 196, 201 [92 L.Ed. 644].) “The due process requirement that provides the basis for the inability of a court to convict a defendant of an uncharged offense not included as a lesser offense within the charged offense renders the court without jurisdiction to convict defendant of a different offense.” (In re Johnny V. (1978) 85 Cal.App.3d 120, 136.) Therefore, “[w]hen a defendant pleads not guilty, the court lacks jurisdiction to convict him of an offense that is neither charged nor necessarily included in the alleged crime. [Citations].” (People v. West (1970) 3 Cal.3d 595, 612.)

An error rendering a court without jurisdiction to act is not subject to forfeiture. (In re Harris (1993) 5 Cal.4th 813, 836-837.) We conclude defendant’s failure to raise this issue before the trial court has not forfeited his claim on appeal, and we shall reverse the conviction in count 2 for driving with a license suspended for a prior driving under the influence conviction. (Veh. Code, § 14601.2, subd. (a).)

III

Defendant contends that if we reverse his conviction for possession of a destructive device we should remand the revocation of probation in case No. 04F8690. Although we reverse defendant’s misdemeanor conviction for driving with a suspended license, we affirm his felony conviction for possession of a destructive device, making a remand unnecessary. Since the court imposed a concurrent jail term for driving with a suspended license, a remand for resentencing is also unnecessary.

Disposition

Defendant’s conviction in count 2 of Shasta County case No. 06F4661 for driving while his license was suspended for a prior driving under the influence conviction (Veh. Code, § 14601.2, subd. (a)), is reversed. The judgment is otherwise affirmed. The trial court is directed to prepare an amended abstract of judgment and to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.

We concur: SCOTLAND, P. J. BLEASE, J.


Summaries of

People v. Barton

California Court of Appeals, Third District, Shasta
Apr 15, 2009
No. C056196 (Cal. Ct. App. Apr. 15, 2009)
Case details for

People v. Barton

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. RICHARD CLIFTON BARTON, Defendant…

Court:California Court of Appeals, Third District, Shasta

Date published: Apr 15, 2009

Citations

No. C056196 (Cal. Ct. App. Apr. 15, 2009)