PEOPLE v. TRITCHLER

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Court of Appeal, Fourth District, Division 1, California.

The PEOPLE, Plaintiff and Respondent, v. Joseph R. TRITCHLER et al., Defendants and Appellants.

No. D021748.

Decided: August 09, 1996

Merle N. Schneidewind, under appointment by the Court of Appeal, San Diego, and William M. McGuigan, Chula Vista, for Defendants and Appellants. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Janelle B. Davis, and Demetra P. Lewis, Deputy Attorneys General, for Plaintiff and Respondent.

Joseph R. and Michael F. Tritchler were convicted of possession of a destructive device (Pen.Code, § 12303);  possession of a destructive device or explosive near certain places (Pen.Code, § 12303.2), and transportation of a destructive device (Pen.Code, § 12303.6).   Joseph was additionally found guilty of possessing and exploding or igniting a destructive device or explosive (Pen.Code, § 12303.3);  Michael was found not guilty on that count.   Both were acquitted of assault with a deadly weapon or by means likely to produce great bodily injury (Pen.Code, § 245, subd. (a)(1)) and throwing a substance at a vehicle with the intent of doing serious bodily harm (Veh.Code, § 23110, subd. (b)).

On appeal, the Tritchlers contend their statements to the police should have been suppressed because they did not fall within the “public safety” exception to the Miranda2 rule;  the court should have severed their cases pursuant to the Aranda/Bruton3 rule;  the court permitted improper cross-examination of their defense expert;  the court misled the jury by giving instructions stating a “firecracker” containing more than 50 milligrams of pyrotechnic material was an “explosive”;  the court improperly refused an instruction a destructive device must be capable of causing injury;  and improperly refused a request to instruct the jury on the meaning of the term “weapon.”   The Tritchlers also contend their sentences constitute cruel and unusual punishment.

Joseph 4 additionally contends his convictions must be reversed because the court improperly refused to entertain objections at sidebar.

Michael additionally contends his convictions must be reversed because the court erred in denying his Wheeler5 motion based on the prosecutor's alleged use of peremptory challenges to exclude Spanish-surnamed individuals from the jury, erred in admitting shrapnel into evidence and erred in refusing his proffered instructions on destructive devices.   Michael also contends we should remand for resentencing because he was not sentenced by the same judge who presided at his trial.

We conclude the sentences imposed constitute cruel and unusual punishment under the circumstances of this case and therefore vacate the sentences.   In all other respects, we affirm.

FACTS

On December 29, 1993 about 3 a.m., Darin Comer, a security officer for a parking lot, was driving behind a tow truck to an apartment complex to remove a car.   When Comer turned onto the 1200 block of Third Avenue in Chula Vista, he saw a maroon Ford Tempo about 25 feet further down the street, driving about 5 miles an hour.   Michael was driving that Ford Tempo and Joseph was sitting in the front passenger seat.   Comer thought they might be lost.   Comer slowed down behind them;  he did not pass because the driveway to the apartment complex was near and he did not believe he could pass them and still “make the driveway.”

When Michael drove his car up onto the sidewalk, Comer passed.   Michael then returned to the street, flashed his lights, put on his brights and sped up until he was within a foot of Comer's rear bumper.   Comer sped up so the Ford Tempo would not hit him.   As Comer started to make a right turn into a driveway, Michael positioned the front of his car within six feet of the side of Comer's car.   To keep the Ford Tempo from hitting him, Comer sped up and turned into the next driveway.

As Comer braked, he saw Joseph lean his body out of the passenger window and make a flipping or flinging motion from his chest towards Comer.   Comer, believing Joseph was shooting at him, leaned over.   He then saw a big flash and heard a loud noise immediately outside his open window.

A passenger in the tow truck Comer had been following saw a “very, very bright light” and heard a “very, very loud” noise.   The light was so bright she could not see Comer's car.

Comer was not injured by the explosion and there was no damage to his car;  there was only some black powder on the side of his car which he later wiped off.   On the ground there was some cardboard which looked like a toilet paper or paper towel roll that had come undone and little pieces of the same cardboard scattered around.   There was no mark in the ground where the device exploded.

When Comer heard the Ford Tempo accelerate, he looked up and began to chase it southbound on Third Avenue.   He wrote down the license number.

Chula Vista police officer Larry Davis and his partner were about a half-block away.   Officer Davis heard an “extremely loud” noise which sounded like a loud gunshot or some kind of explosion.   The Tritchlers and Comer drove by the officers, with Comer frantically waving his arms in an attempt to get the officers' attention.   The officers spoke with Comer and then stopped the Ford Tempo.   The officers removed the Tritchlers from their car at gunpoint, handcuffed them and separated them.

Officer Davis first spoke with Joseph, asking him if he knew what caused the loud explosion.   Joseph said he did not know what the officer was talking about.   Joseph denied there were any guns or firecrackers in the car.   Officer Davis then spoke to Michael.   Michael first said the bang might have come from his muffler.   After Officer Davis suggested that “as loud as a bang as that was, if it came from his muffler, [Davis] was pretty sure that he would have known,” Officer Davis searched the car.

Officer Davis found two cardboard funnels about four to six inches long that were duct-taped to CO2 cartridges under the front passenger seat.   Officer Davis gently placed the items on the seat.   He asked Joseph about them, telling Joseph, “in essence, that if these devices were to go off and hurt someone, he would be in a lot of trouble.”   Joseph said he did not know what the officer was talking about.   He asked Michael about the devices.   Michael said they were CO2 cartridges, that he did not know what was inside of them;  all he knew was that if you threw them, they would hit the ground and “go off.”   Officer Davis questioned Joseph again.   Joseph said there was gunpowder inside the CO2 cartridges and that the cartridge was the primer.   He said “you would throw it and when it hit the ground it would go off.”

A criminalist for the San Diego County Sheriff's Department analyzed the contents of the two devices found in the Tritchler's car.   Both contained an “improvised pyrotechnic mixture;” “improvised” meaning the mixture was not available for purchase commercially, “pyrotechnic” meaning “in connection with fireworks.”   One device contained 5.10 grams of material consisting of double-based smokeless powder, magnesium metal, pyrodex, starch nitrate and bromide.   The other contained 8.91 grams of magnesium metal, phosphate, bromide, starch, chloride, sodium nitrate and sulphur.   She explained these components were also commonly found in destructive devices and explosives.

The People called a deputy sheriff assigned to the arson/explosives detail as an eyewitness and as an expert witness.   The deputy, wearing protective gear, had disassembled the two devices.   He testified a small hole was drilled in the CO2 cartridge, it was filled with an explosive mixture, a primer cap was inserted with a ball bearing placed over the cap held in place by tape or glue and then the hole was sealed with glue holding the primer in place.   The purpose of the cardboard sleeves was to make a more aerodynamic projectile when the device was launched or dropped.   He explained that the steel ball bearing would weight the device so that the end would strike the ground (or other surface) first, the compression of the steel ball bearing against the ground would strike the primer cap, the primer cap filled with a very minute amount of explosive mixture would cause a small spit of flame which would proceed into the metal container and start combustion of the explosive mixture.   The mixture would burn “so rapidly and create[ ] so much gas that it overpressurizes the container causing the container to rupture.”

The prosecution expert testified the metal CO2 cartridge “would have erupted because of the amount of powder and the composition of that powder, thus causing ․ shrapnel of speeds over 3,000 speed [sic] per second.”   These pieces of shrapnel would “come off in odd shapes and pieces and fly at 360 degrees from the point of explosion.”   The CO2 cartridge could fragment into up to 100 pieces.   It was possible for the cartridge to remain whole which could be sent “in a single unit piece off at a high velocity in any given velocity in any given direction.”   He testified it was not possible to predict how the cartridge would react in an explosion.

The prosecution expert testified the devices had the ability to injure a person due to the creation of shrapnel.   In his opinion, the devices were homemade bombs.   He noted the magnesium metal was a specialized item “and not to be added in explosives except for commercial manufacturing of high explosives.”   On cross-examination, he testified magnesium is also found in illegal Mexican fireworks, noted the cartridge was not filled with shrapnel and was not serrated in any way so as to help fragment the cartridge.   He also testified that serrated edges are “more common on heavier body containers” rather than the “thin walled” devices involved here.

Joseph presented an expert, Gary Stubblefield, who had extensive military experience with weapons and explosives, including teaching in those areas.   At the time of trial, he was a private consultant.   He testified the devices were not weapons.   He characterized them as “dangerous fireworks” in the “big firecracker range.”   He testified the compounds inside the devices were low explosives meant to have a burning effect rather than a shattering effect.   He testified if one wanted a weapon to produce shrapnel, one would place a casing designed to break apart around the explosive.   He saw no indications on the CO2 cartridge of any attempt to create shrapnel.   He believed injury or property damage from the devices was not likely.

On cross-examination, the defense demolitions expert testified low explosives may be used as destructive devices and that the CO2 cartridge was “capable of shrapnelizing itself.”   He also admitted that of all the fireworks he had seen, none contained a CO2 cartridge like the devices in this case.

DISCUSSION

IStatements to the Police

The Tritchlers contend the court should have suppressed their statements made to the police because the statements were taken in violation of Miranda v. Arizona, supra, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.   Joseph additionally contends his statements were taken in violation of his Sixth Amendment right to counsel and were coerced.   The Attorney General contends the statements were properly admitted pursuant to the “public safety” exception adopted by the United States Supreme Court in New York v. Quarles (1984) 467 U.S. 649, 104 S.Ct. 2626, 81 L.Ed.2d 550.

Outside the presence of the jury, the court conducted an Evidence Code section 402 hearing.   At the hearing, Officer Davis testified about the circumstances of stopping the Tritchler brothers and questioning them about the explosion and the devices he found in the car.   He testified that when he first talked to Joseph, Joseph denied knowing what Davis was talking about, denied there were any guns or firecrackers in the car and then “made a statement similar to that he shouldn't talk to [Officer Davis] any more without talking to an attorney.”   Officer Davis testified he believed the two devices he found under the front seat of the Ford Tempo were “dangerous” and asked further questions of the Tritchlers because the devices were homemade and he was afraid they might be volatile and explode.   He stated he questioned them for “safety concerns”, which was “exactly” what he explained to each of the Tritchlers when he spoke to them.   He explained to them, “I was concerned that if we didn't know what they were or how they were used, that they could possibly go off while somebody was handling them and somebody could get hurt” and that he wanted “to try to avoid that happening.”

Officer Davis also testified the second time he talked to Michael, Michael said “they were CO2 cartridges and that all he knew is that you would throw them and they would hit the ground and they would explode, but he didn't know too much about the items, that [the officer] ․ should ask his brother, he would know more about what the items were exactly.”   Joseph then told the officer they were CO2 cartridges with gun powder inside and primer on one end, that if you threw them they would go off when they hit the ground but he did not believe they were dangerous.

On cross-examination, Officer Davis stated the Tritchlers were stopped in a commercial parking lot, no Miranda warnings were given before he questioned the Tritchlers and that about 15 minutes had elapsed before Joseph finally told him about the devices.

Joseph testified at the Evidence Code section 402 hearing.   He stated there were six to ten police officers at the scene, he was contacted six to eight times by different police officers and the questioning lasted about forty-five minutes.   He testified when he told the officers about the devices, he felt “the only choice [he] had” was to make a statement because “the way they seemed like they played [him].”   He felt if he did not tell the officers about the devices “something bad” would happen to him and that the officers would keep talking to him until he made a statement.

On cross-examination, Joseph admitted that right before he made his statement, he felt comfortable asking Officer Davis a question.   He asked Officer Davis if he was going to go to jail and Officer Davis had answered that he did not know what was going to happen, although, to Joseph, “it looked like [he] was going to go to jail.”

In New York v. Quarles, supra, 467 U.S. 649, 104 S.Ct. 2626, 81 L.Ed.2d 550, the United States Supreme Court recognized a “public safety” exception to the rule barring admission into evidence of statements taken in violation of the Miranda rule.   In Quarles, a woman told two police officers she had just been raped, described the assailant and told them he had entered a nearby supermarket carrying a gun.   When the officers apprehended the defendant in the store, he was wearing an empty shoulder holster.   One of the officers, before advising the defendant of his Miranda rights, asked where the gun was.   The defendant nodded towards some empty cartons and said “the gun is over there.”  (Id. at p. 652, 104 S.Ct. at p. 2629.)

The United States Supreme Court reversed the trial court's suppression of the defendant's statement.   The Supreme Court stated “the need for answers to questions in a situation posing a threat to the public safety outweighs the need for the prophylactic rule protecting the Fifth Amendment's privilege against self-incrimination.”  (New York v. Quarles, supra, 467 U.S. 649, 657, 104 S.Ct. 2626, 2632, 81 L.Ed.2d 550.)   Our California Supreme Court has held the “public safety” exception also applies to situations where the defendant has been advised of but has not waived his Miranda rights.   In People v. Sims (1993) 5 Cal.4th 405, 20 Cal.Rptr.2d 537, 853 P.2d 992, the defendant was arrested in a motel room.   The arresting officers had been informed there was a warrant for defendant's arrest for murder.   The defendant was believed to be armed with one or possibly two firearms, believed to be extremely dangerous and believed to have a “death wish.”  (Id. at pp. 450–451, 20 Cal.Rptr.2d 537, 853 P.2d 992.)   The court held the defendant's response to the officer's question about where the guns were located, made after Miranda warnings had been given but before the defendant had waived his rights, was admissible under the “public safety” exception.

 A finding that the “public safety” exception applies does not preclude a defendant from arguing his statement should be suppressed because it was coerced.  (New York v. Quarles, supra, 467 U.S. 649, 655, 104 S.Ct. 2626, 2631;  see also People v. Cole (1985) 165 Cal.App.3d 41, 52, 211 Cal.Rptr. 242.)

The Tritchlers contend that the public safety exception has no application here because there were no public safety concerns.   They point out the questioning began before the devices were found, the Tritchlers posed no risk because they were handcuffed and separated from their car and they were stopped in an empty parking lot.

This argument ignores other evidence.   Other evidence indicated Officer Davis had heard the noise of the explosion and believed it to be a loud gunshot or explosion and had been told about the throwing of the device by the victim before he began questioning the Tritchlers.   Thus, Officer Davis had reason to believe there might be guns or explosives in the Tritchlers' car.   He also had reasonable grounds to believe the devices found under the seat were similar to the one that had caused the earlier explosion.   The evidence indicated the devices were homemade and therefore their volatility was unknown.   They had to be removed from the scene.   Officer Davis also testified the questioning was motivated by concerns for public safety.

 This evidence of the explosion, the unknown nature of the devices found hidden under the seats and the necessity of further handling of the devices supports a conclusion a public safety threat existed which justified questioning the Tritchlers about the nature of the devices without first informing them of their Miranda rights.

Joseph contends the Quarles exception does not apply because his statements were obtained not only before he had been given his Miranda rights but after he had asserted his right to speak to an attorney.   We disagree.   As noted above, the California Supreme Court has held the public safety exception applicable to the situation where an individual has been given his Miranda rights but not yet waived them.  (See People v. Sims, supra, 5 Cal.4th 405, 20 Cal.Rptr.2d 537, 853 P.2d 992.)   The rationale for the public safety exception does not disappear merely because the individual has stated he would like to speak with an attorney;  the same public safety concerns continue.   Two federal courts have decided the public safety exception permits questioning after an individual has asserted his right to counsel.  (U.S. v. DeSantis (9th Cir.1989) 870 F.2d 536, 538;  U.S. v. Mobley (4th Cir.1994) 40 F.3d 688, 691–693.)

The DeSantis court reasoned:

“The thrust of the Quarles decision is its recognition that certain exigencies require the courts to relax rules that act as prophylactic safeguards of the right against compelled self-incrimination.   Thus, although Miranda warnings help ensure that the accused will make an informed waiver of his rights, this goal is overridden when a threat to the public safety is posed․  [T]he Court recently has made clear that the ‘prohibition on further questioning—like other aspects of Miranda—is not itself required by the Fifth Amendment's prohibition on coerced confessions, but is instead justified only by reference to its prophylactic purpose.’  [Citation.]

“The same considerations that allow the police to dispense with providing Miranda warnings in a public safety situation also would permit them to dispense with the prophylactic safeguard that forbids initiating further questioning of an accused who requests counsel.   The court noted in Quarles:

“ ‘Procedural safeguards which deter a suspect from responding were deemed acceptable in Miranda in order to protect the Fifth Amendment privilege;  when the primary social cost of those added protections is the possibility of fewer convictions, the Miranda majority was willing to bear that cost.   Here, had Miranda warnings deterred Quarles from responding to Officer Kraft's question about the whereabouts of the gun, the cost would have been something more than merely the failure to obtain evidence useful in convicting Quarles.’  [Citation.]

“This reasoning would apply with equal force to the procedural safeguards established when the accused asks for the aid of counsel.   Society's need to procure the information about ․ a dangerous weapon is as great after, as it was before, the request for counsel.”  (U.S. v. DeSantis, supra, 870 F.2d 536, 540–541.)

 We find the analysis of the DeSantis court to be sound and adopt it as our own:  the public safety exception justified questioning Joseph about the devices after he had asserted his right to counsel.6

Finally, Joseph contends the court should have suppressed his statement describing the devices because it was coerced.

 “A statement is involuntary and, thus, inadmissible if it is obtained by threats or promises of leniency, whether express or implied.   [Citations.]   A finding of coercive police activity is a prerequisite for a finding that a confession was involuntary․”  (People v. Clark (1993) 5 Cal.4th 950, 988, 22 Cal.Rptr.2d 689, 857 P.2d 1099.)   A confession will not be rendered involuntary when the police make neither a threat nor a promise, “but simply [make] an accurate statement of the circumstances.”  (People v. Thompson (1990) 50 Cal.3d 134, 170, 266 Cal.Rptr. 309, 785 P.2d 857.)

 The voluntariness of a confession is tested by “the totality of all the surrounding circumstances—both the characteristics of the accused and the details of the interrogation.”  (Schneckloth v. Bustamonte (1973) 412 U.S. 218, 226, 93 S.Ct. 2041, 2047, 36 L.Ed.2d 854.)   The reviewing court must examine the facts and independently determine whether the prosecution met its burden of showing defendant's statements were voluntarily made.  (People v. Hill (1992) 3 Cal.4th 959, 979, 13 Cal.Rptr.2d 475, 839 P.2d 984.)

 Here, the police made no threats or promises to Joseph.   Officer Davis told Joseph he and Michael “were possibly in a little trouble, exactly what trouble [he] didn't know, but that if somebody got hurt from these devices, the chances were they would be in a lot of trouble․”   This statement was an accurate statement of the circumstances and not a threat.

While there were a number of police officers at the scene and Joseph was contacted a number of times, there was evidence indicating the entire questioning lasted only 15 minutes and Joseph did not answer Officer Davis's question immediately but asked a question of his own, seeking Officer Davis's assessment about whether Joseph would be going to jail.   Officer Davis did not threaten Joseph with jail if Joseph refused to answer;  he told Joseph he did not know what was going to happen.   Joseph was apparently comfortable enough to ask a question rather than immediately responding to the officer's question, thus tending to indicate he was not feeling coerced into answering the officer's question.

Under the totality of these circumstances, we conclude the trial court could reasonably find Joseph's statements were voluntarily made.

II–VI*

VII

Firecracker Instruction Did Not Misstate the Law

 The Tritchlers contend the court's instruction a firecracker containing more than 50 milligrams of pyrotechnic material is an “explosive” misstated the law.   We disagree.

Both Tritchlers were convicted of the reckless or malicious possession of “any destructive device or any explosive” on a public street or near private habitation (Pen.Code, § 12303.2).   Joseph was also convicted of exploding a “destructive device or any explosive with intent to injure, intimidate, or terrify, any person, or with intent to wrongfully injure or destroy any property” (Pen.Code, § 12303.3).

The trial court instructed the jury on the term “explosive” using CALJIC No. 12.56's general definition, which mirrors the definition of “explosive” contained in Health and Safety Code section 12000:

“An explosive means any substance, or combination of substances, the primary or common purpose of which is detonation or rapid combustion, and which is capable of a relatively instantaneous or rapid release of gas and heat, or any substance, the primary purpose of which, when combined with others, is to form a substance capable of a relatively instantaneous or rapid release of gas and heat.”

Section 12000 of the Health and Safety Code then goes on to give some examples of various explosives.8

The CALJIC instruction contains an additional paragraph stating:

“Explosive includes, but is not limited to _.”

The Use Note to CALJIC No. 12.56 explains this paragraph is for a specific definition and notes that in a case of a well known explosive, such as dynamite, the general paragraph defining explosives would not be necessary.   The trial court here gave the following specific definition of the term “explosive”;  the first two paragraphs mirroring Health and Safety Code section 12000, the third paragraph incorporating a regulation by the State Fire Marshal (Cal.Code Regs., tit. 19, § 980, subd. (f)(1)):

“Explosive includes, but is not limited to dynamite, nitroglycerin, picric acid, lead azide, fulminate of mercury, smokeless powder, propellant explosives, detonating primers, blasting caps, or commercial boosters, nitro carbo nitrate substances (blasting agent) as classified by the United States Department of Transportation.

“ ‘Explosives' does not include any destructive device.

“The term ‘Firecracker’ means a device consisting of an explosive pyrotechnic in an amount not to exceed 50 milligrams (.772 grains) in weight in a fused container whose primary function is to produce an audible effect.   All firecrackers are classified as ‘dangerous fireworks.’   Devices similar [in] construction to ‘firecrackers' which exceed the specified weight shall be considered as EXPLOSIVES in accordance with Health and Safety Code [section] 12000.”

The Legislature has defined the term “explosives” for the offenses of which the Tritchlers were convicted by stating the term “explosives” encompasses “any explosive defined in Section 12000 of the Health and Safety Code.”   (Pen.Code, § 12301, subd. (b).)  In Health and Safety Code section 12000, subdivision (d), the Legislature specifically provided the term “explosives” includes “[a]ny material designated as an explosive by the State Fire Marshal.”   The State Fire Marshal has adopted a regulation designating firecrackers containing over 50 milligrams of explosives to be “explosives” within the meaning of Health and Safety Code section 12000.  (Cal.Code Regs., tit. 19, §§ 980, subd. (f)(1);  986.9.)

 In construing statutes and regulations, the guiding principle is determining the intent of the regulation or statute.  (See Wells Fargo Bank v. Superior Court (1991) 53 Cal.3d 1082, 1095, 282 Cal.Rptr. 841, 811 P.2d 1025;  People v. Freeman (1988) 46 Cal.3d 419, 425, 250 Cal.Rptr. 598, 758 P.2d 1128.)   In determining the intent, a court must look first at the words of the statute or regulation, giving to the language its usual, ordinary import.  (Quintano v. Mercury Casualty Co. (1995) 11 Cal.4th 1049, 1055, 48 Cal.Rptr.2d 1, 906 P.2d 1057.)  “The words must be construed in context in light of the nature and obvious purpose of the statute where they appear.  [Citation.]”  (Decker v. City of Imperial Beach (1989) 209 Cal.App.3d 349, 354, 257 Cal.Rptr. 356.)

The Legislative intent is clear from the words used:  explosives for the purpose of the Penal Code offenses of which the Tritchlers were convicted includes not only the specifically enumerated devices and explosive materials listed in Health and Safety Code section 12000 but also materials and devices designated as explosives by the State Fire Marshal.   The State Fire Marshal has adopted regulations clearly specifying that firecrackers containing over 50 milligrams of pyrotechnic materials are “explosives.”

The Tritchlers argue the State Fire Marshal's definition was not applicable because it was contained in a chapter regulating fireworks (see Cal.Code Regs., tit. 19, § 979 et seq.) rather than in the chapter regulating explosives (see Cal.Code Regs., tit. 19, § 1550 et seq.).   We find this argument unpersuasive.

Here, although the regulation is contained in a chapter generally regulating fireworks, the words of the regulation are clear and unambiguous.   Not only do the regulations at issue state that firecrackers are explosives, they also clearly state they “shall be classified as explosives in accordance with Health and Safety Code Section 12000.”  (Cal.Code Regs., tit. 19, § 986.9.)   The intent is clear:  firecrackers containing more than 50 milligrams of pyrotechnic material are “explosives” for the purposes of Penal Code section 12301 et seq.

The Tritchlers argue this regulation is in conflict with statutory law, asserting:

“Health and Safety Code section 12001 expressly excludes up to five pounds of black powder from [the definition of explosives].   Thus, the legislature determined the bright-line for black powder is five pounds not fifty milligrams;  therefore, the appellant[s] did not possess an explosive because [they] did not possess at least five pounds of black powder.”

Health and Safety Code section 12001, subdivision (f)(1) exempts from Health and Safety Code section 12000's definition of explosives:

“Black powder in quantities of 25 pounds or less in the hands of a retailer having a permit ․ and in quantities of five pounds or less in the hands of all others and smokeless powder in quantities of 20 pounds or less used, possessed, stored, sold, or transported that is exempted under, or authorized by, the Federal Organized Crime Control Act of 1970․”

This subdivision does not conflict with the firecracker regulation.   The firecracker regulation concerns 50 milligrams of “pyrotechnic composition” in a “fused container.”  (Cal.Code Regs., tit. 19, § 980, subd. (f)(1).)   The statute addresses black powder or smokeless powder in bulk and not as part of some other device.   The evidence here indicated the devices contained a pyrotechnic composition which included double-based smokeless powder, magnesium metal, pyrodex, starch nitrate, bromide, phosphate, sodium nitrate and sulphur.   This case does not involve the possession, transportation or use of black powder or smokeless powder in bulk;  it involves a device containing explosive material.  Health and Safety Code section 12001, subdivision (f)(1) is not applicable here and does not exempt devices containing less than five pounds of black or smokeless powder or pyrotechnic material from the definition of “explosives” contained in Health and Safety Code section 12000 and incorporated into Penal Code section 12301.

We conclude the court's firecracker instruction was a correct statement of the law.

VIII

Firecracker Instruction Did Not Remove a Factual Matter from the Jury's Consideration**

IX

Requested Instruction—Destructive Device Must be Capable of Causing Injury

Michael contends the court erred in denying his request to instruct the jury that a destructive device must be capable of causing injury.

Michael proposed the following definition of a destructive device:

“A destructive device is a weapon, including items such as explosive bullets or shells, incendiary bullets, breakable containers containing flammable liquids with flashpoints of 150 degrees Fahrenheit and equipped with wicks;  rockets having a diameter greater than .60 inches and containing explosives or incendiary materials;  bombs, grenades, or other similar devices and launching devices therefor.

“In deciding whether an item is a destructive device, you must determine whether the device is capable of causing substantial damage to property or injury to life.   If you find the item is of such a nature, it is a destructive device.   If you have a reasonable doubt whether the item is capable of causing such damage or injury, it is not a destructive device.”  (Italics added.)

 The trial court refused the “capable of injury” instruction because it added an element to the offense which was not in the statute.   We agree with the trial court.

Penal Code section 12301 defines a “destructive device” as including any of the enumerated “weapons.”   The trial court instructed the jury pursuant to the Penal Code definition and listed weapons, eliminating those “weapons” which were clearly not applicable to the case.10  The court instructed the jury as follows:

“A destructive device includes any of the following weapons:  a projectile containing any explosive or incendiary material or any other chemical substance, including, but not limited to, that which is commonly known as tracer or incendiary ammunition, except tracer ammunition manufactured for use in shotguns;  any bomb, grenade, explosive missile, or similar device or any launching device therefor;  any rocket, rocket-propelled projectile, or similar device of a diameter greater than 0.60 inch, or any launching device therefor, and any rocket, rocket-propelled projectile, or similar device containing any explosive or incendiary material or any other chemical substance, other than the propellant for such device, except such devices as are designed primarily for emergency or distress signaling purposes;  any sealed device containing dry ice (CO2) or other chemically reactive substances assembled for the purpose of causing an explosion by a chemical reaction.”

To support his argument that a destructive device must be capable of causing substantial property damage or injury to life, Michael points out in 1970 when the Legislature enacted many of the destructive device statutes in Penal Code section 12301 et seq. and prohibited a grant of probation as urgency legislation, the Legislature explained its concern with recent bombings of buildings “which endanger many lives and cause extremely severe damage to property.”  (Stats. 1970, ch. 771, § 11, p. 1458.)   He argues that therefore the Legislature must have intended to include only destructive devices capable of causing substantial damage to property or injury to life.

 When construing a statute, “ ‘a court is not authorized to insert qualifying provisions not included and may not rewrite the statute to conform to an assumed intention which does not appear from its language.’   [Citations.]”  (Napa Valley Wine Train, Inc. v. Public Utilities Com. (1990) 50 Cal.3d 370, 381, 267 Cal.Rptr. 569, 787 P.2d 976.)   Michael essentially asked the court to insert a qualifying provision (that the destructive device be capable of causing injury or substantial property damage) and to rewrite the statute.   The trial court properly declined to do so.

The fact the Legislature acted in response to bombings of buildings which endangered lives and caused extremely severe property damage does not inexorably lead to a conclusion the Legislature intended to only punish the manufacture, possession, transportation and use only of destructive devices which were actually capable of endangering lives or causing severe property damage.   Obviously, the Legislature easily could have included such language if that was their intent, as have a number of other states.11

The Legislature may have determined that the risk posed by the manufacture, possession, transportation and throwing of destructive devices was so high that individuals should be punished regardless of whether the particular device was actually capable of causing substantial damage or injury.   In other words, the Legislature may have determined the question of punishment should not turn on whether the destructive device was a successful “bomb” or a “dud.”   A parallel exists in the world of firearm use enhancements.   The Legislative intent in enacting firearm use enhancements was clearly motivated by the danger posed by the possession or use of firearms in crimes.   The Legislature, however, did not require the firearm used in a crime be actually capable of causing harm;  the enhancements may be imposed even when the firearm was unloaded or inoperable.  (People v. Steele (1991) 235 Cal.App.3d 788, 286 Cal.Rptr. 887.)   It appears that in the destructive device statutes, the Legislature has similarly intended the statute to apply even when the destructive device is not actually capable of causing the threatened harm.

We conclude the trial court properly refused Michael's proposed instruction.

X

Definition of the Term “Weapon” ***

XI

Knowledge Requirement for Possessing a Destructive Device or Explosive

 Michael contends the court erred in refusing his proffered instructions that the crime of possessing a destructive device or explosive in certain places (Pen.Code, § 12303.2) 13 requires knowledge of the nature of the device as an element of the offense.14  He points out that on the other two counts—possession of a destructive device (Pen.Code, § 12303) and transportation of a destructive device (Pen.Code, § 12303.6)—the court instructed the jury it was necessary to find the defendant had “knowledge of its nature as a destructive device.” 15  We find Michael's argument unpersuasive.

Penal Code section 12303.2, which punishes possession of a destructive device or explosive in certain places, provides:

“Every person who recklessly or maliciously has in his possession any destructive device or any explosive on a public street or highway, in or near any theater, hall, school, college, church, hotel, other public building, or private habitation, in, on, or near any aircraft, railway passenger train, car, cable road or cable car, vessel engaged in carrying passengers for hire, or other public place ordinarily passed by human beings is guilty of a felony, and shall be punishable by imprisonment in the state prison for a period of two, four, or six years.”  (Italics added.)

Thus, the statutory definition contains the Legislature's statement of the requisite mental state, i.e., “recklessly or maliciously” possessing.   Michael's proposed instruction would interject another mental state into the crime.   The Legislature was entitled to establish the requisite mental state and to determine that the danger presented by having destructive devices in certain places, such as on public highways or near private residences, was so great that all that was required was a reckless or malicious possession rather than a specific knowledge that an item was a “destructive device.”

We conclude the court correctly instructed the jury, pursuant to CALJIC No. 12.55.2 that it was necessary to find the defendants “recklessly or maliciously” possessed the destructive device rather than have specific knowledge of its nature as a destructive device.

Similarly, Penal Code section 12303.3, explosion of a “destructive device” or “explosive” sets out the requisite mental state.  Section 12303.3 provides:

“Every person who possesses, explodes, ignites, or attempts to explode or ignite any destructive device or any explosive with intent to injure, intimidate, or terrify, any person, or with intent to wrongfully injure or destroy any property, is guilty of a felony, and shall be punished by imprisonment in the state prison for a period of three, five, or seven years.”  (Italics added.)

In section 12303.3, the Legislature has stated the requisite mental state is an “intent to injure, intimidate, or terrify, any person” or an “intent to wrongfully injure or destroy any property.”   This statement of the requisite mental state is controlling and the court was not required to specifically instruct the jury it was necessary to find the defendants had knowledge of the nature of the devices as “destructive devices.”   We further note such knowledge is encompassed within the intent requirement, i.e., a person having such an intent to injure, intimidate or destroy property would necessarily have knowledge of the destructive nature of the device.16

We conclude the court properly instructed the jury on the mental element of the offenses.

XII

Cruel and Unusual Punishment

The Tritchlers contend the imposition of the minimum mandatory two-year prison term constituted cruel and unusual punishment in this case.   We agree.

 The Legislative branch is given the authority to define crimes and determine penalties for crimes subject to the constitutional prohibition against cruel and unusual punishment.  (People v. Tanner (1979) 24 Cal.3d 514, 519, fn. 3, 156 Cal.Rptr. 450, 596 P.2d 328.)   However, if the punishment proscribed by the Legislature runs afoul of the constitutional prohibition against cruel and unusual punishment, a court has authority to prevent the imposition of unconstitutional punishment.  (People v. Mora (1995) 39 Cal.App.4th 607, 615, 46 Cal.Rptr.2d 99.)

 Under the cruel or unusual punishment clause of the California Constitution, a penalty may not be imposed which is grossly disproportionate to the defendant's “ ‘personal responsibility and moral guilt.’ ”  (People v. Marshall (1990) 50 Cal.3d 907, 938, 269 Cal.Rptr. 269, 790 P.2d 676.)   A penalty offends the proscription against cruel and unusual punishment when “ ‘it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.’  [Citation.]”  (People v. Almodovar (1987) 190 Cal.App.3d 732, 739–740, 235 Cal.Rptr. 616.)   Even if the statutorily authorized punishment for a criminal offense is not unconstitutional when viewed in the abstract, the sentence imposed on a defendant convicted of that offense may nonetheless be cruel or unusual.  (People v. Dillon (1983) 34 Cal.3d 441, 479, 194 Cal.Rptr. 390, 668 P.2d 697.)

 “Whether a particular punishment is disproportionate to the offense is, of course, a question of degree.   The choice of fitting and proper penalties is not an exact science, but a legislative skill involving an appraisal of the evils to be corrected, the weighing of practical alternatives, consideration of relevant policy factors, and responsiveness to the public will;  in appropriate cases, some leeway for experimentation may also be permissible.   The judiciary, accordingly, should not interfere in this process unless a statute prescribes a penalty ‘out of all proportion to the offense’ [citations], i.e., so severe in relation to the crime as to violate the prohibition against cruel or unusual punishment.”  (In re Lynch (1972) 8 Cal.3d 410, 423–424, 105 Cal.Rptr. 217, 503 P.2d 921.)

 The Supreme Court in In re Lynch, supra, 8 Cal.3d 410, 425–427, 105 Cal.Rptr. 217, 503 P.2d 921, developed a three-pronged test to aid in determining whether a punishment is so disproportionate to the crime as to constitute cruel or unusual punishment;  “the test is not determinative, but is a tool to aid in the court's inquiry.  [Citations.]”  (People v. Almodovar, supra, 190 Cal.App.3d 732, 739, 235 Cal.Rptr. 616.)

 First, the courts examine the nature of the offense and/or the offender, including the danger each poses to society.   The courts look first to the nature of the offense and the offender as compared to the penalty, including the degree of danger presented to society.   Under this first prong, the court may also consider “the amount of gain involved, the violence or nonviolence of the crime, and whether anyone was injured in its commission” as well as “the penological purposes of the prescribed punishment.  [Citation.]”  (People v. Almodovar, supra, 190 Cal.App.3d 732, 740, 235 Cal.Rptr. 616.)   “[T]he characteristics of the offender appear to weigh more heavily in determining whether a punishment is unconstitutional as applied, rather than on its face.  [Citation.]”  (Ibid.)

 Second, the courts compare the punishment with punishments prescribed for other, more serious, offenses in the state.   When the challenged punishment is the denial of probation rather than the length of a sentence, the courts look to other provisions granting or denying probation to other offenders, bearing in mind that probation is a privilege and not a right.  (People v. Almodovar, supra, 190 Cal.App.3d 732, 742, 235 Cal.Rptr. 616.)

Third, the courts compare the punishment with punishments for the same offense in different jurisdictions.  (In re Lynch, supra, 8 Cal.3d 410, 425–427, 105 Cal.Rptr. 217, 503 P.2d 921;  People v. Weddle (1991) 1 Cal.App.4th 1190, 1196–1198, 2 Cal.Rptr.2d 714;  People v. Almodovar, supra, 190 Cal.App.3d 732, 740, 235 Cal.Rptr. 616.)   This prong is based on an assumption “the vast majority of [other] jurisdictions will have prescribed punishments for this offense that are within the constitutional limit of severity;  and if the challenged penalty is found to exceed the punishments decreed for the offense in a significant number of those jurisdictions, the disparity is a further measure of its excessiveness.”  (In re Lynch, supra, 8 Cal.3d 410, 427, 105 Cal.Rptr. 217, 503 P.2d 921.)

 These factors are not mechanically applied;  even if the second and third factors suggest a disproportionate sentence, the first factor is dispositive.  (People v. Wingo (1975) 14 Cal.3d 169, 180, 121 Cal.Rptr. 97, 534 P.2d 1001;  People v. Gayther (1980) 110 Cal.App.3d 79, 90, 167 Cal.Rptr. 700.)

(A) Nature of the Offense and Offenders

There is no doubt the offenses here in the abstract are serious and the Tritchlers do not contend otherwise.  (See People v. Westoby (1976) 63 Cal.App.3d 790, 798, 134 Cal.Rptr. 97.)   The offenses involved destructive devices and explosives which, as the Legislature recognized, have a potential for causing great destruction and injury to human life, a fact made manifest by the 1995 bombing of the federal building in Oklahoma City.   The Legislature when it adopted the mandatory prison term and other provisions relating to destructive devices and explosives as urgency legislation in 1970, stated:

“This act is an urgency statute necessary for the immediate preservation of the public peace, health, or safety within the meaning of Article IV of the Constitution and shall go into immediate effect.   The facts constituting such necessity are:

“Bombings of buildings have taken place at an increased rate recently, and in order to deter such acts, which endanger many lives and cause extremely severe damage to property, it is necessary that this act go into effect immediately.”  (Stats. 1970, ch. 771, § 11, p. 1458.)

Yet, the actual nature of the offenses in this case was very different from that contemplated by the Legislature when it adopted the mandatory prison term.

The devices were of relatively low explosive force.   There was no evidence suggesting the devices were capable of causing extremely severe damage to property.   The evidence suggested the devices were capable of causing injury only because of the possibility the CO2 cartridge might shrapnelize and might strike an individual.   There was no evidence of any shrapnel in this case.   The one device that exploded caused neither any injury nor any damage to the victim's car;  the explosion resulted only in a bright flash and a loud noise.   There was no evidence of any impact on the ground.   Despite exploding just outside the window of the victim's car, the only “damage” was a deposit of some black powder on the car which was easily wiped away.

There was no evidence suggesting the devices were highly volatile or presented any danger in their mere handling or transportation.

We further note while there was substantial evidence in the record to support the jury's finding the devices were “weapons” (and the Tritchlers do not contest otherwise), there was also evidence indicating the devices were only minimally weapons in the sense that they could not be aimed with any precision and it was uncertain whether they would cause any injury or damage.   Significantly, the jury rejected the argument the devices constituted deadly weapons as indicated by their decision to acquit the Tritchlers of the assault with a deadly weapon charges.

We also note in the probation report, Michael and Joseph stated they believed the devices were homemade fireworks made in Mexico.   Michael stated he bought the devices in a shopping center in Chula Vista and was told they were rockets;  when you threw them in the air, they came down on their ballbearing and detonated the powder which caused them to shoot up in the air.   He bought them to celebrate New Year's Eve and had them in his car on December 29, 1993, the night of the offenses.   Neither Michael nor Joseph realized the rockets were potentially destructive, given their relatively small size and belief they were fireworks.   Michael stated he was surprised and frightened at the noise of the blast.

As to the nature of the offenders, we note while neither of the Tritchlers was particularly young (Joseph was 27 years old, Michael 30 years old), this appears to have been an isolated incident.   Joseph had only one misdemeanor arrest in 1990 (cutting tires on a friend's car, Pen.Code, § 594, subd. (a), (b)(4)) which had not been pursued at the time of trial in this case.   Michael had no prior criminal record.   We also note he was not the individual who threw the device.

The probation department, but for the statutory ineligibility, would have recommended a grant of probation for the Tritchlers.   Numerous relatives and friends submitted letters in support of Michael and Joseph at the time of sentencing, attesting to their generally good characters.

(B) Other Offenses in California

Under this second prong, we compare the punishment to the offense here, i.e., a prohibition against probation, to other more serious offenses in California.

As noted previously, the offenses here, in the abstract, are very serious;  there are few more serious crimes.   When considered in the abstract, there is no gross disproportionality in prohibiting probation for the Penal Code offenses involving destructive devices and explosives compared to other more serious crimes in California since few other offenses in California have a greater potential for severe damage and serious injury.

On the other hand, we note the distinction between what is a “firework” 17 in California and what is an “explosive” or a “destructive device” is not altogether clear;  there are three separate statutory schemes that cover “destructive devices/explosives” (Pen.Code, § 12301 et seq.), “high explosives” (Health & Saf.Code, § 12000 et seq.) and “fireworks” (Health & Saf.Code, § 12500 et seq.) as well as two separate sets of regulations covering “explosives” (Cal.Code of Regs., tit. 19, § 1550 et seq.) and “fireworks” (Cal.Code of Regs., tit. 19, § 979 et seq.).   There is, necessarily, some overlap between these various statutory and regulatory schemes.   The Penal Code offenses include “explosives” which are regulated under the “high explosives” statutes and regulations.   The “fireworks” statutes include devices which “explode.”   This overlap is apparent in the testimony of the prosecution's expert.   The expert testified the devices here contained an “improvised pyrotechnic mixture” and while he believed the devices were “homemade bombs,” the expert also acknowledged that “pyrotechnic” is a term used in connection with fireworks.

The offenses here could have been charged under the other statutory schemes.   If these offenses had been charged as illegal possession or discharge of a firework with a likelihood of injury, the Tritchlers would have faced only misdemeanor convictions and would have been eligible for probation.   (Health & Saf.Code, §§ 12677, 12680, 12700.)   If the Tritchlers had been charged with unlawful possession of explosives under the “high explosive” statutes, they would have faced felony convictions but not mandatory prison terms.  (Health & Saf.Code, §§ 12305, 12401.)

While the Penal Code destructive device/explosive statutes clearly represent serious offenses justifying the denial of probation in comparison to other more serious (and less serious) offenses denying probation, we note the actual offenses, could have been characterized as coming under Health and Safety Code statutes which would have permitted probation and, in the case of the fireworks offenses, involved substantially lesser punishment.

(C) Similar Offenses in Other Jurisdictions

Our research has disclosed that while several states have potentially more severe punishments for offenses similar to the ones of which the Tritchlers were convicted,18 only two states, Hawaii and New York, appear to prohibit a grant of probation.19

The Hawaii statute, section 134–8, provides:

“(a) The manufacture, possession, sale, barter, trade, gift, transfer, or acquisition of any of the following is prohibited:  assault pistols, except as provided by section 134–4(e);  automatic firearms;  rifles with barrel lengths less than sixteen inches;  shotguns with barrel lengths less than eighteen inches;  cannons;  mufflers, silencers, or devices for deadening or muffling the sound of discharged firearms;  hand grenades, dynamite, blasting caps, bombs, or bombshells, or other explosives;  or any type of ammunition or any projectile component thereof coated with teflon or any other similar coating designed primarily to enhance its capability to penetrate metal or pierce protective armor;  and any type of ammunition or any projectile component thereof designed or intended to explode or segment upon impact with its target.

“(b) Any person who installs, removes, or alters a firearm part with the intent to convert the firearm to an automatic firearm shall be deemed to have manufactured an automatic firearm in violation of subsection (a).

“(c) The manufacture, possession, sale, barter, trade, gift, transfer, or acquisition of detachable ammunition magazines with a capacity in excess of ten rounds which are designed for or capable of use with a pistol is prohibited.   This subsection shall not apply to magazines originally designed to accept more than ten rounds of ammunition which have been modified to accept no more than ten rounds and which are not capable of being readily restored to a capacity of more than ten rounds.

“(d) Any person violating subsection (a) or (b) shall be guilty of a class C felony and shall be imprisoned for a term of five years without probation.   Any person violating subsection (c) shall be guilty of a misdemeanor except when a detachable magazine prohibited under this section is possessed while inserted into a pistol in which case the person shall be guilty of a class C felony.”   (Hawaii Rev.Stats.Ann., § 134–8, italics added.)

It is unclear, however, whether the device here would have met Hawaii's definition of an “explosive” or “bomb.”   Our research has failed to uncover any statutory definition of either term;  definitions are not included either in the chapter addressing firearms and ammunition where section 134–8 is located or in a chapter addressing safety in the workplace, including requirements relating to permits, transportation, storage, sale, etc. of explosives.  (See Hawaii Rev.Stats.Ann., § 396–9.)   It is possible the devices here could have fallen within Hawaii's definition of fireworks which does not, like California, provide that “firecrackers” containing over 50 milligrams of pyrotechnic composition are “explosives.”  (Hawaii Rev.Stats.Ann., § 132D–2.) 20

We have found only one case addressing the no probation requirement of the Hawaiian statute.  (See State of Hawaii v. Scott (1987) 69 Haw. 458 [746 P.2d 976].)   In that case the defendant pleaded guilty to violating the statute;  the exact nature of the offense is not set forth in the opinion and the opinion on appeal deals only with the issue of whether a “suspension of sentence” is the same as a grant of probation and thus prohibited by the statute;  the issue of cruel and unusual punishment did not arise in the case.

In New York, an individual is guilty of “criminal possession of a dangerous weapon in the first degree when he possesses any explosive substance with intent to use the same unlawfully against the person or property of another.”  (N.Y.Penal Law Ann., § 265.04.)   Criminal possession of a weapon in the first degree is a class B violent felony.  (N.Y.Penal Law Ann., §§ 265.04, 70.02, subd. 1.(a).)  New York does not appear to allow probation for a class B violent felony.21  An individual is guilty of criminal possession of a weapon in the third degree “when ․ [h]e possesses any explosive or incendiary bomb, bombshell․”  (N.Y.Penal Law Ann., § 265.02, subd. (2).)  Criminal possession of a weapon in the third degree is a class D felony for which probation is available.  (N.Y.Penal Law Ann., §§ 265.02, 65.00.)

The New York courts have narrowly construed these provisions.   For example, they have held a “molotov cocktail” is not an “explosive substance” within the meaning of the first degree criminal possession of a weapon statute;  possession of a molotov cocktail is an “incendiary bomb” which could be punished as third degree criminal possession of a weapon.  (See People v. McCrawford (1975) 47 A.D.2d 318 [366 N.Y.S.2d 424];  People v. Sullivan (1972) 39 A.D.2d 631 [331 N.Y.S.2d 298].)   The courts have also held that items “which are usually and ordinarily called fireworks” are not “explosive substances” within the meaning of the first degree criminal possession of a weapon statute.  (People v. Santorelli (1978) 95 Misc.2d 886, 889, 408 N.Y.S.2d 893, 895.)   Finally, we note the New York courts have apparently adopted the following definition of the term “bomb”:  “ ‘A bomb is generally described as a container filled with an explosive substance that is capable of causing physical injury or property damage by concussion.   There are various kinds of specialized bombs, e.g. incendiary bombs, smoke bombs and gas bombs․' ”  (People v. Santorelli, supra, 95 Misc.2d 886, 889, 408 N.Y.S.2d 893, 895, italics added.)

It appears the devices here could be encompassed within New York's definition of fireworks,22 rather than the definition of “explosive substance” since the devices appeared to be “prepared for the purpose of producing a visible or an audible effect” (N.Y.Penal Law Ann., § 270.00, subd. 1.) and there was no evidence indicating the devices were capable of causing injury or physical damage by concussion;  the evidence indicated the devices had only potential for causing injury or damage due to possible shrapnelization or through the device remaining whole and striking a person or object.

The Attorney General points out that some states prohibit a grant of probation when an explosive or destructive device, i.e., a deadly weapon, is used to commit a criminal offense.23  These statutes do not offer much assistance in this case because:  (1) this case does not involve the use of a destructive device or explosive to commit another crime;  and (2) the jury here implicitly rejected a finding the devices constituted deadly weapons (by acquitting Joseph of assault with a deadly weapon).

Thus, with the exception of California, Hawaii and New York, all other jurisdictions permit a grant of probation and, as for Hawaii and New York, it is unclear whether the devices here would be included within the offenses for which probation is prohibited.

Additionally, we note in a number of other states the devices here apparently might not meet the definition of a destructive device or prohibited explosive or might be classified as a firework.24

(D) Analysis

 In this case, the devices are quite different in nature from those contemplated by the Legislature when it enacted the Penal Code offenses and prohibited a grant of probation.   The devices were not the “bombs” “which endanger many lives and cause extremely severe damage to property” (Stats. 1970 ch. 771, § 11, p. 1458) which motivated the prohibition on probation.   The devices here were small, of a pyrotechnic composition and only marginally weapons.   There was neither injury nor damage in this case.   The conduct could have been prosecuted under code sections which permit probation and/or significantly less incarceration.   Only two other states, Hawaii and New York, even arguably prohibit probation in a similar situation and even in those states the devices here might have been classified as “fireworks” and not “bombs.”   This was an isolated incident and the offenders had either no or de minimis prior criminal records.

Under these circumstances, we conclude the imposition of a mandatory prison term was grossly out of all proportion to the offenses committed.   Denial of probation in this case shocks the conscience and offends fundamental notions of human dignity.   Accordingly, we vacate the sentences and remand to allow the court, in its discretion, to grant probation to the Tritchlers.25

DISPOSITION

The sentences are vacated and the cause remanded for resentencing.   In all other respects, the judgments are affirmed.

FOOTNOTES

2.   Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.

3.   Bruton v. United States (1968) 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476;  People v. Aranda (1965) 63 Cal.2d 518, 47 Cal.Rptr. 353, 407 P.2d 265.

4.   We intend no disrespect by the use of the Tritchler's first names;  we use them only for the sake of convenience in distinguishing between the brothers.

5.   People v. Wheeler (1978) 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748.

6.   Joseph attempts to distinguish DeSantis on the basis that in that case, as in Quarles, the police were attempting to obtain information about the location of a weapon while here the police continued questioning after the devices had been located.   This argument, however, ignores that the exact nature of the devices was unknown—as opposed to the firearms in Quarles and DeSantis —and mere discovery of the devices did not render them harmless or diminish the public safety concerns.

FOOTNOTE.   See footnote 1, ante.

8.   Health and Safety Code section 12000 provides, in full:  “For the purposes of this part, ‘explosives' means any substance, or combination of substances, the primary or common purpose of which is detonation or rapid combustion, and which is capable of a relatively instantaneous or rapid release of gas and heat, or any substance, the primary purpose of which, when combined with others, is to form a substance capable of a relatively instantaneous or rapid release of gas and heat.  ‘Explosives' includes, but is not limited to, any of the following:“(a) Dynamite, nitroglycerine, picric acid, lead azide, fulminate of mercury, black powder, smokeless powder, propellant explosives, detonating primers, blasting caps, or commercial boosters.“(b) Substances determined to be class A and class B explosives as classified by the United States Department of Transportation.“(c) Nitro carbo nitrate substances (blasting agent) as classified by the United States Department of Transportation.“(d) Any material designated as an explosive by the State Fire Marshal.   The designation shall be made pursuant to the classification standards established by the United States Department of Transportation.   The State Fire Marshal shall adopt regulations in accordance with Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code to establish procedures for the classification and designation of explosive materials or explosive devices that are not under the jurisdiction of the United States Department of Transportation.“(e) Certain class C explosives as designated by the United States Department of Transportation when listed in regulations adopted by the State Fire Marshal.“For the purposes of this part, ‘explosives' does not include any destructive device, as defined in Section 12301 of the Penal Code, nor does it include ammunition or small arms primers manufactured for use in shotguns, rifles, and pistols.”

FOOTNOTE.   See footnote 1, ante.

10.   The court's instruction includes the devices as listed in subsections (1), (2), (4) and (6) of section 12301, subdivision (a).   The remaining subdivisions are as follows:  “(a) The term ‘destructive device,’ as used in this chapter, shall include any of the following weapons:“․“(3) Any weapon of a caliber greater than 0.60 caliber which fires fixed ammunition, or any ammunition therefor, other than a shotgun (smooth or rifled bore) conforming to the definition of a ‘destructive device’ found in subsection (b) of Section 179.11 of Title 27 of the Code of Federal Regulations, shotgun ammunition (single projectile or shot), antique rifle, or an antique cannon.   For purposes of this section, the term ‘antique cannon’ means any cannon manufactured before January 1, 1899, which has been rendered incapable of firing or for which ammunition is no longer manufactured in the United States and is not readily available in the ordinary channels of commercial trade.   The term ‘antique rifle’ means a firearm conforming to the definition of an ‘antique firearm’ in Section 179.11 of Title 27 of the Code of Federal Regulations.“․“(5) Any breakable container which contains a flammable liquid with a flashpoint of 150 degrees Fahrenheit or less and has a wick or similar device capable of being ignited, other than a device which is commercially manufactured primarily for the purpose of illumination.”

11.   (See, e.g., Colo.Rev.Stats.Ann., § 9–7–103, subd. (3) [explosive must be “capable of producing destructive effects on contiguous objects”];  Fla.Stats.Ann., § 790.001, subd. (4) [destructive device must be “capable of causing bodily harm or property damage”];  Ga.Stats., § 16–7–80, subds. (4)(A), (8) [“destructive device” includes any explosive which “has been configured as a bomb”;  an “explosive” must be “capable of causing injury to persons or damage to property” and excludes common fireworks];  Ill.Compiled Stats.Ann., ch. 225, para. 210/1003, subd. (c) [explosives do not include “manufactured articles, including, but not limited to ․ fire crackers ․ when the individual units contain explosives in such limited quantity and of such nature or in such packing that it is impossible to produce a simultaneous or destructive explosion of such units which would be injurious to life, limb or property.”];   Minn.Stats.Ann., § 609.668, subd. (a) [explosive device or bomb must be “capable of producing destructive effects”];  N.C.Gen.Stats., § 14–50.1 [“explosive” device or material requires the instrument or substance be “capable of being used for destructive explosive ․ purposes against persons or property”];  Ohio Rev.Code Ann., § 2923.11, subd. (H) [explosive device is a device “designed or specially adapted to cause physical harm to persons or property”];  Wash.Rev.Code Ann., § 70.74.010, subd. (3) [explosive must be “capable of producing destructive effects on contiguous objects or of destroying life or limb”];  Wyoming Stat. 1977, § 6–3–111, subd. (a)(i) [“explosive” must be “capable of producing destructive effects on nearby objects, or of destroying life or limb”];  see also Ark.Code of 1987, Ann., § 5–73–104, subd. (a) [crime of possession of prohibited weapon includes bomb “or other implement for the infliction of serious physical injury or death which serves no common lawful purpose”];  Mo.Stats.Ann., § 571.010, subd. (4) [“explosive weapon” means any explosive bomb “or similar device designed or adapted for the purpose of inflicting death, serious physical injury, or substantial property damage”].)

FOOTNOTE.   See footnote 1, ante.

13.   Michael also sought similar instructions as to the Penal Code section 12303.3 offense but since he was acquitted of that offense, no further discussion is necessary.

14.   The trial court instructed the jury on the Penal Code section 12303.2 offense, in pertinent part, as follows:  “Every person who recklessly or maliciously has in his possession any destructive device or any explosive in a public street or highway, in or near any public building or private habitation, or in, on, or near any other public place ordinarily passed by human beings, is guilty of a violation of Section 12303.2 of the Penal Code, a crime.“Maliciously means a wish to vex, annoy or injure another person, or an intent to do a wrongful act.   However, there need be no actual intent to physically injure, intimidate or terrify others.“Recklessly means an intentional act done with a conscious disregard of the rights and safety of others.“In order to prove such crime, each of the following elements must be proved:“1. A person recklessly or maliciously possessed a destructive device or explosive in a public street or highway;  and“2. Such destructive device or explosive was in or near any public building or private habitation;  or was in, on, or near any other public place ordinarily passed by human beings.”

15.   Penal Code section 12303 states:  “Any person ․ who, within this state, possesses any destructive device, other than fixed ammunition of a caliber greater than .60 caliber, except as provided by this chapter, is guilty of a public offense․”The court instructed the jury that in order to convict the Tritchlers of violating Penal Code section 12303, “each of the following elements must be proved:  [¶] 1. A person within California exercised control or the right to control a destructive device;  [¶] 2. Such person had knowledge of the presence and of its nature as a destructive device.”  (Italics added.)Penal Code section 12303.6 states:  “Any person ․ who, within this state, ․ knowingly transports any destructive device, other than fixed ammunition of a caliber greater than .60 caliber, except as provided by this chapter, is guilty of a felony․”  (Italics added.)The court instructed the jury in order to convict the Tritchlers of violating Penal Code section 12303.6, “each of the following elements must be proved:  [¶] 1. A person within California transported a destructive device;  and [¶] 2. Such person did so knowingly, that is, with knowledge of its nature as a destructive device.”  (Italics added.)

16.   We also note that as to the other two counts, where the court instructed the jury it was necessary to find the defendant had knowledge of the devices' nature as a destructive device, involved only “destructive devices” and not “explosives.”

17.   Fireworks are defined as “any device containing chemical elements and chemical compounds capable of burning independently of the oxygen of the atmosphere and producing audible, visual, mechanical, or thermal effects which are useful as pyrotechnic devices or for entertainment.  [¶] The term ‘fireworks' includes, but is not limited to, devices designated by the manufacturer as fireworks, torpedoes, skyrockets, roman candles, rockets, Daygo bombs, sparklers, party poppers, paper caps, chasers, fountains, smoke sparks, aerial bombs, and firework kits.”   (Health & Saf.Code, § 12511.)“ ‘Pyrotechnic device’ means any combination of materials, including pyrotechnic compositions, which, by the agency of fire, produce an audible, visual, mechanical or thermal effect designed and intended to be useful for industrial, agricultural, personal safety, or educational purposes.  [¶] The term ‘pyrotechnic device’ includes, but is not limited to, agricultural and wildlife fireworks, model rockets, exempt fireworks, emergency signaling devices, and special effects.”  (Health & Saf.Code, § 12526.)

18.   (See, e.g., La.Rev.Stats., § 54.3, subd. E. (up to 20 years hard labor for possession of a bomb or explosives);  Maryland Code Ann.1957, art. 27, § 139B, subd. (c). [up to 20 years imprisonment for possession of destructive explosive devices];  Mass.Stats., ch. 266, § 102 (up to 20 years imprisonment for possession with intent to use explosives).)

19.   We note Georgia prohibits a grant of probation if a person violated the statutes relating to bombs and explosives when there was an “intent to cause death or bodily injury to another or to cause physical damage to any public building which would require an expenditure of more than $500.00 to repair.”  (Ga.Stats., § 16–7–88, subd. (a).)  Here, since the Tritchlers were acquitted of the charges alleging an intent to injure the offenses here did not involve any potential damage to public buildings this statute would not apply to them had the offenses been committed in Georgia.

20.   Hawaii Revised Statutes Annotated, section 132D–2 defines “fireworks” as “any combustible or explosive composition, or any substance or combination of substances, or article prepared for the purpose of producing a visible or audible effect by combustion, explosion, deflagration or detonation and classified as common or special fireworks by the United States Bureau of Explosives or contained in the Regulations of the United States Department of Transportation and designated as UN 0335 1.3G or UN 0336 1.4G.”   The statute excludes firecrackers containing over 50 milligrams of pyrotechnic composition from its definition of “non-aerial common fireworks” but does not exclude such firecrackers from the definitions of “special fireworks” or “fireworks” generally.

21.   (See N.Y.Penal Law Ann., § 60.05, subd. 3. (stating persons convicted of class B violent felonies must be sentenced to imprisonment in accordance with N.Y.Penal Law Ann., § 70.02);  N.Y.Penal Law Ann., § 70.02, subds. 2., 3.(a), 4. (providing authorized sentence for persons convicted of a class B violent sentence is an indeterminate term of imprisonment with a maximum sentence of six to twenty-five years and a minimum term of at least one-half the maximum term);  N.Y.Penal Law Ann., § 65.00 (generally governing probation and not specifically authorizing a grant of probation for a Class B violent felony).)

22.   New York defines the term “fireworks” as including “any blank cartridge, blank cartridge pistol, or toy cannon in which explosives are used, firecrackers, torpedoes, skyrockets, Roman candles, bombs, sparklers or other combustible or explosive of like construction, or any preparation containing any explosive or inflammable compound or any tablets or other device commonly used and sold as fireworks containing nitrates, chlorates, oxalates, sulphides of lead, barium, antimony, arsenic, mercury, nitroglycerine, phosphorus or any compound containing any of the same or other explosives, or any substance or combination of substances, or article prepared for the purpose of producing a visible or an audible effect by combustion, explosion, deflagration or detonation, or other device containing any explosive substance.   The provisions of this definition however, shall not be deemed to include (1) flares of the type used by railroads or any warning lights commonly known as red flares, or marine distress signals of a type approved by the United States coast guard or (2) toy pistols, toy canes, toy guns or other devices in which paper caps containing twenty-five hundredths grains or less of explosive compound are used, providing they are so constructed that the hand cannot come in contact with the cap when in place for use, and toy pistol paper caps which contain less than twenty-hundredths grains of explosive mixture, the sale and use of which shall be permitted at all times, or (3) bank security devices which contain not more than fifty grams of any compound or substance or any combination thereof, together with an igniter not exceeding 0.2 gram, capable of producing a lachrymating and/or visible or audible effect, where such device is stored or used only by banks, national banking associations, trust companies, savings banks, savings and loan associations, industrial banks, or credit unions, or by any manufacturer, wholesaler, dealer, jobber or common carrier for such devices and where the total storage on any one premise does not exceed one hundred devices.”   (N.Y.Penal Law Ann., § 270.00, subd. 1.)

23.   (See, e.g., Ariz.Rev.Stats.Ann., § 13–604, subd.  (F) [prohibiting probation when an individual commits a class 4 felony involving the use or exhibition of a dangerous instrument];  R.I.Gen.Laws, § 11–47–3 [statute prohibiting probation when a person commits a crime of violence while armed with an explosive substance].)

24.   (See, e.g., Alaska Stats., § 18.72.100 [“salable fireworks” includes roman candles, helicopter type rockets up to 20 grams of pyrotechnic material, though note “salable fireworks” includes only firecrackers with soft casings with up to 2 grains of pyrotechnic material;  firecrackers with greater pyrotechnic material are classified as dangerous fireworks];  Idaho Code, § 39–2609, subds. (a), (c) [“dangerous fireworks” includes firecrackers, cherry bombs, mines, skyrockets and rockets];  Neb.Rev.Stats. of 1943, § 28–1213, subd. (4) providing the term “explosives” includes firecrackers or devices containing more than 130 milligrams of explosive composition;  Vermont Stats.Ann., tit. 20 § 3131;  West. Virginia Code 1966, § 29–3–23;  see also statutes cited in fn. 11, supra.)

25.   We do not address Michael's contention we must remand for resentencing because he was not sentenced by the same judge who presided at his trial.   This issue has been mooted by our decision to remand on cruel and unusual punishment grounds.

KREMER, Presiding Justice.

NARES and McDONALD, JJ., concur.

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