P. v. Turnage















Filed 6/18/13 P.
v. Turnage CA3













NOT TO BE PUBLISHED







California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.











IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE
DISTRICT

(Yolo)

----




>

THE PEOPLE, Plaintiff and Respondent, v. BARRY ALLEN TURNAGE, Defendant and Appellant.

C059887 (Super. Ct. Nos. 065019, 041665) ORDER MODIFYING OPINION AND DENYING REHEARING [NO CHANGE IN JUDGMENT]

THE COURT:



It is ordered that the
opinion filed herein on May 22, 2013, be modified
as follows:



Part III, beginning on
page 13 and ending on page 15, is deleted in its entirety and the following
part III is inserted in its place:

III

Sufficiency of
“Strike” Evidence



Defendant argues in his opening
brief that there is not sufficient evidence to prove a 1985 prior “strike”
conviction because in 1978 he was found not guilty by reason of insanity
(NGI). In their initial response, the
People denied defendant was found NGI, insisting that defendant misread the
documents supporting his claim.
According to the People, the documents established that criminal
proceedings were suspended and later reinstituted, and references to
defendant’s being found “not guilty—insane” were clerical errors.



It is fair to say that the evidence
in the record regarding the NGI finding is confusing. There is documentary evidence indicating that
in May 1978 charges of battery and assault with a deadly weapon on a peace
officer or firefighter against defendant were resolved by an NGI finding and he
was committed to Napa State Hospital. (§
1026.) However, there is a document,
relied on by the People, that indicates the court suspended the criminal
proceedings on a finding of defendant’s then present incompetence to stand
trial (§ 1367 et seq.), although entries in defendant’s summary criminal
history from the Department of Justice contradict this document. The summary shows a series of arrests and
convictions in 1981 before a commitment to Atascadero State Hospital
(Atascadero) on October 29, 1982, pursuant to section 1026 (which is not a
disposition ordered in any of the 1981 incidents), and the People do not
explain how defendant would have been at liberty in 1981 if the criminal
proceedings had merely been suspended in 1978 until he regained competence to
stand trial.



Moreover, on March 28, 1985 (the
date listed on the summary criminal history for his discharge from Atascadero),
there was a hearing at which the People “concede(d) a Petition for Writ of
Habeas Corpus,” pursuant to which the court allowed defendant “to withdraw his
plea of [NGI]” and enter pleas of guilty to a violation of section 245 with a
firearm use allegation and to a violation of section 243 in exchange for the
court’s sentencing him to time already served.
Recognizing the confusion in the record, the People argued in the
alternative that “if this Court concludes that the prior-conviction record is
ambiguous, or even if this Court finds the evidence insufficient to support the
prior conviction, the matter may be retried.”



Following remand, at defendant’s
request, we took judicial notice of a 1985 nonpublished opinion of the First
District Court of Appeal in which defendant’s commitment to Napa State Hospital
after being found NGI is noted. We
directed the parties to file letter briefs discussing the significance of the
opinion. In response, the People asked
that we also take judicial notice of various documents establishing that on
May 3, 1978, defendant was found not guilty of the underlying charge by
reason of insanity, but was permitted to withdraw his NGI plea on March 28,
1985, and enter a plea of guilty. The
People’s request is granted.



Notwithstanding their earlier
insistence that defendant’s criminal history records did not establish a prior
NGI finding, and though they urged this court to remand the matter for retrial
if we found the prior-conviction record ambiguous, the People now insist the
record is clear: defendant was found NGI
but was later permitted to withdraw his NGI plea and enter a plea of guilty to
the disputed prior. The People argue
that, “[f]or the sake of judicial economy,” we should simply accept their
change of position on the NGI issue while rejecting defendant’s legal argument
that the court was without jurisdiction to accept the change of plea, and
conclude the 1985 guilty plea was valid.
It is tempting to avoid the inconvenience of a remand by resolving as a
matter of law facts that were previously hotly disputed, deciding a legal issue
that until now had not been addressed by the People, and concluding the
evidence is sufficient to prove a prior strike conviction. We decline to do so.



The better course of action is to
reverse the prior-conviction finding and remand the case to the trial court for
a retrial of the prior-conviction allegation.
(People v. Franz (2001)
88 Cal.App.4th 1426, 1455.) The trial
court can determine the disputed issues after considering the additional
evidence proffered by the People and the conflicting arguments offered by both
sides as to the legal effect of such evidence.



There is no change in the
judgment.



Appellant’s petition for
rehearing is denied.



BY THE COURT:





RAYE , P.J.





BUTZ , J.





MURRAY , J.

Filed 5/22/13
P. v. Turnage CA3 (unmodifed version)

Opinion following remand from Supreme Court

NOT TO BE PUBLISHED










IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE
DISTRICT

(Yolo)

----




>

THE PEOPLE, Plaintiff and Respondent, v. BARRY ALLEN TURNAGE, Defendant and Appellant.

C059887 (Super. Ct. Nos. 065019, 041665)

INTRODUCTION

A jury
convicted defendant Barry Allen Turnage of maliciously placing a false or
facsimile bomb in 2006 with the intent to cause others to fear for their safety
(Pen. Code, § 148.1, subd. (d)),href="#_ftn1" name="_ftnref1" title="">[1]
found he was legally sane at the time of the commission of the offense, and
found he had two prior convictions that came within the meaning of
section 667, subdivision (d). Based
on the evidence it heard at trial regarding the present offense, the trial
court found that defendant violated his probation in a 2004 drug case, in which
there was a suspended imposition of sentence.
The court sentenced defendant to state prison for the upper term on the
2004 offense, with a consecutive indeterminate prison term of 25 years
to life for the present offense.
(§ 667, subd. (e)(2)(A)(ii).)

Defendant
appealed, contending: 1) his felony
sentence for placing a false bomb violated his constitutional right to equal
protection, because placing a false weapon of mass destruction under similar
circumstances (without causing “sustained fear”) is only a misdemeanor
(§§ 11418.1, 11418.5, subd. (b)), and to due process, because “false or
facsimile bomb” is too vague a term; 2) the trial court should have granted his
motion for acquittal (§ 1118.1) because there was insufficient evidence of
a false bomb, or of his intent to cause others to fear for their safety; 3)
there was insufficient evidence to support the recidivist finding based on his
1985 entry of a guilty plea, because the 1985 court did not have jurisdiction
to accept a withdrawal of his 1978 plea of not guilty by reason of insanity
(NGI) to the charge; and 4) that if we reversed his present conviction we must
reverse the court’s finding that he violated probation and remand for further
proceedings in the 2004 case.

In our
initial opinion, we agreed with defendant’s equal protection claim that there
was no rational basis for distinguishing the two crimes and concluded that a
violation of section 148.1, subdivision (d) (hereafter § 148.1(d)) would be
punishable only as a misdemeanor. This
conclusion mooted his claim regarding the recidivist finding. We rejected his remaining arguments.

The
California Supreme Court granted review.
The court affirmed our judgment “insofar as it upheld the trial court’s
finding of a probation violation and declined to reverse, in its entirety,
defendant’s conviction under Penal Code section 148.1, subdivision (d)” but
otherwise reversed and remanded “for proceedings not inconsistent with the
views expressed herein.” (>People v. Turnage (2012) 55 Cal.4th
62, 81 (Turnage).) On remand, we vacate defendant’s sentence,
reverse the true finding as to the allegation that defendant suffered a 1985
conviction for assault with a deadly weapon and remand the matter for a retrial
as to that allegation, and in all other respects affirm the judgment.

FACTUAL BACKGROUND

We set
forth the relevant facts from our prior opinion.

The Yolo
County Communications Center (YCCC) in Woodland is the 24-hour dispatch
headquarters for the county’s police, fire, and ambulance services. It is located in the middle of a parking lot,
surrounded by other buildings. In order
to enter the parking lot, a driver must stop at a key pad that activates a
gate.

In
September 2006 a YCCC dispatcher was returning from a coffee run on a Sunday
morning. As she approached the road
leading to the gate, she noticed a maroon Ford Thunderbird that was backing up. She testified that she remembered the car
clearly because it was similar to the car of a dispatcher who had recently left
the job. However, her suspicions were
aroused when the driver leaned over toward the passenger side in a maneuver that looked
uncomfortable and struck her as unusual, as if he were trying to conceal his
face.

As the
dispatcher passed the Thunderbird and approached the key pad, she saw a box
underneath it with a flag sticking out of its top and “C-4” written on the side
facing her.href="#_ftn2" name="_ftnref2"
title="">[2] This had not been there when she left 15-20
minutes earlier. She was scared, because
she knew C-4 was an explosive and thought that this might be a bomb, even
though it did not have any external indications of a fuse. She parked in her spot on the other side of
the building. When she entered the YCCC,
she announced to the others in the room that there was a bomb threat, and she
placed a telephone call to the police instead of using the radio because the
latter could trigger some types of bombs.
The employees waited inside for the police to arrive, which took about
15 minutes. By this time, her shift had
ended and she walked outside to meet the police. No one else left the building, and as far as
the dispatcher could recall the YCCC operations were not interrupted.

A police
officer who heard the bomb report saw a maroon Thunderbird parked in front of a
nearby coffee shop. Through the coffee
shop window, the officer saw defendant, who matched the general description of
the driver of the Thunderbird. He was
drawing on some newspapers. The officer
entered the coffee shop and asked defendant if he could speak with him
outside. Defendant responded calmly in
an amenable manner, and he and the officer left the shop. Defendant volunteered that he had come from
the sheriff’s department (actually the YCCC), where he had left a box on which
he had written C-4, which he knew was a plastic explosive. He claimed this was a joke, not meant for
anyone in particular and not intended to cause anyone harm. However, he mentioned that he knew there were
women at the YCCC who had made fun of him, which upset him. He would not be any more specific about these
women. He said the box contained only a
plastic bag filled with bleach and motor oil.

Another
responding officer had seen defendant about 25 minutes before the bomb
report at a four-way stop near the YCCC.
Defendant had stared at the officer for an extended period of time,
looking agitated or angry.

Among
defendant’s effects at the coffee shop was a disposable camera. He said he photographed various government
buildings, bridges, and police officers.
There were random writings on the newspaper and on a Watchtower
pamphlet; the phrase “Angry 19” was written next to or on a drawing of a box
with an antenna, and there were drawings of what appeared to be radio
towers. There were also books on the
supernatural and parapsychology.

In a search
of defendant’s apartment, which was directly north of the complex of county
buildings, the police found a number of photographs. They also found photographs in the trunk of
his car. These were mostly innocuous,
but included pictures of the parking area for the district attorney, patrol
cars, a university police station, the courthouse, the headquarters of the
probation department, and the offices of the county’s Department of Mental
Health. They did not find any explosives
or detonators. They also did not find
any manifestos or other angry writings.

A few days
before defendant placed the fake bomb, a worker in one of the buildings around
the YCCC saw him near his car, which was parked across from the Health and
Social Services building. He was pacing
back and forth, and making gestures that looked like he was pretending to shoot
a rifle at the building. He was someone
she had seen around the premises about a dozen times in the nine-month period
she had worked there. His actions
frightened her. She reported this to the
police.

A bomb
expert testified that actual bombs frequently do not appear to be bombs. C-4 is an explosive of high strength. The small size of the box did not diminish
the possible power of the bomb. The flag
could have been an antenna. Only after
X-raying the box and not seeing any solid materials or power sources did he
feel comfortable about opening it. Only
then was he able to confirm that it did not contain an explosive or a
detonator.

DISCUSSION

I

A. Equal
Protection

As pointed
out by the Supreme Court, the Legislature long ago penalized conduct involving
destructive devices and other weapons of a highly dangerous and explosive nature. (Turnage,
supra, 55 Cal.4th at p. 71.) Bombs are commonly understood to be so
“ ‘inherently dangerous’ ” to intended and unintended victims alike that
“possession can be unlawful ‘even when [the device is] not set to explode.’ ” (>Ibid.)
Because of these known dangers, section 148.1 has long prohibited
various acts that exploit the public’s fear of bombs, and that predictably
provoke havoc and alarm. Section 148.1
punishes knowingly false reports of bombs to peace officers or other people as
a “wobbler” with imprisonment in state prison or up to a year in jail. (§ 148.1, subds. (a)-(c).) Section 148.1(d), at issue in the
present case, has for over 40 years prohibited the handling of false bombs and
imposed criminal penalties for violations.
At the time of defendant’s crime it punished as either a felony or
misdemeanor “[a]ny person who maliciously gives, mails, sends, or causes to be
sent any false or facsimile bomb to another person, or places, causes to be
placed, or maliciously possesses any false or facsimile bomb, with the intent
to cause another to fear for his or her personal safety or the safety of others
. . . .” (Former § 148.1(d), added as
subd. (c) by Stats. 1972, ch. 1142, § 1, p. 2210, redesignated as subd.
(d) by Stats. 1984, ch. 824, § 1, and as amended by Stats. 1991, ch. 503,
§ 1, p. 2446.)

In 1999,
concerned with the increasing threat of terrorism that made use of chemical,
biological, nuclear, or radiological agents (§ 11416), often with dispersal
methods that included explosive devices (§ 11417, subd. (a)), the Legislature
enacted another legislative scheme that targets “weapons of mass destruction”
(WMD) (§ 11416; see § 11415 et seq. [Hertzberg-Alarcon California
Prevention of Terrorism Act], added by Stats. 1999, ch. 563, § 1, p. 3936) and
created a new offense of producing, possessing, or using WMDs (§ 11418). In 2002 the Legislature added section 11418.1
to penalize any person who places, sends, or possesses “any false or facsimile
of a [WMD], with the intent to cause [others] to fear for [their] own safety,
or for the . . . safety of others,” punishable only as a misdemeanor except
where this “causes another person to be placed in sustained fear” (in which
case the conduct is punishable as either a felony or misdemeanor).href="#_ftn3" name="_ftnref3" title="">[3]

Thus, a
violation of both section 148.1(d) and section 11418.1 occurs when the
perpetrator commits the proscribed act, e.g., “places” a “false or facsimile”
bomb or WMD “with the intent to cause” another person “to fear” for his safety
or the safety of others. (§§ 148.1(d),
11418.1.) However, while the false bomb
statute permits felony or misdemeanor punishment, the false WMD statute defines
the crime as a misdemeanor and provides the option of felony treatment only if
the perpetrator’s intentional effort to instill fear ultimately “causes another
person to be placed in sustained fear.”
(§ 11418.1.) Defendant argues
that persons convicted under section 148.1(d) and those convicted under section
11418.1 have both placed, sent, or possessed a false object with the intent to
cause fear (but without causing sustained fear); the only distinction is the
type of object—a false or facsimile bomb under section 148.1, or a false or
facsimile WMD under section 11418.1.href="#_ftn4" name="_ftnref4" title="">[4] Because different penal consequences attend essentially
the same conduct, defendant insists this is sufficient to trigger our scrutiny
of the classification. Defendant does
not dispute that federal and state equal protection guarantees are offended
only if the challenged disparity between section 148.1(d) and section
11418.1 bears no rational relationship to a valid state interest. (See U.S. Const., 14th Amend., § 1; Cal.
Const., art. I, § 7, subd. a.)

In our
earlier opinion we could not divine any plausible reason why a conviction for
placing a false bomb without causing sustained fear should subject a defendant
to a felony conviction under section 148.1(d) but only a misdemeanor conviction
under section 11418.1 for a false WMD, given the goals articulated by the
Legislature.href="#_ftn5" name="_ftnref5"
title="">[5] The fear of a false WMD, given the more
far-reaching effects of such devices, would generally be more severe (even in
the absence of sustained fear) than the fear of only an explosive device whose
destructive effects could be more easily evaded, and yet the former incurs the
lesser punishment.

The Supreme
Court disagreed. According to the court,
“The obvious purpose of both statutes
is to deter and punish acts that can cause fear and disorder consistent with
the criminal intent underlying the planting of the false bomb or the false
WMD. (See People v. Seijas (2005) 36 Cal.4th 291, 306 [30 Cal.Rptr.3d 493,
114 P.3d 742] [inferring from a ‘ “common sense reading” ’ of § 148.5, which
punishes false crime reports to peace officers, that it was meant to prevent ‘
“the resulting inconvenience and danger” ’ to the public].) The requirement that the perpetrator be shown
to have caused sustained fear for felony purposes under section 11418.1, but
not under section 148.1(d), reflects legislative awareness of the different
manner in which false WMD’s and false bombs are, or at least may be, perceived.

“As
discussed above, ordinary persons recognize bombs, and understand that they can
detonate, combust, and explode without warning, in an instant. (See, e.g., [People v.] Heideman
[(1976)] 58 Cal.App.3d 321, 329 [homemade bomb, which consisted of stick of
dynamite to which batteries, mercury switch, and wiring were attached, could be
detonated either accidentally or on purpose with blasting caps].) It is also commonly known that such features
give victims little or no chance to escape the bomb’s lethal effects. (See, e.g., [People v.] Morse [(1992)]
2 Cal.App.4th 620, 633-634 [two members of police bomb squad killed by sudden
explosion of pipe bomb being disarmed in defendant’s garage].) Thus, a false bomb planted with the >intent to cause fear when seen or
detected would almost certainly be expected
to cause fear, including sustained fear.
The Legislature could readily conclude that sustained fear is inherent
in any bomb threat, and that its presence in section 148.1(d) would add little
to the crime, either in felony or misdemeanor form.” (Turnage,
supra, 55 Cal.4th at pp. 75-76.)

Finding a
rational basis for the challenged disparity, the court rejected defendant’s
constitutional challenge. Consistent
with the court’s decision, we do as well.

B. Due Process

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

Initially,
the People contend defendant has forfeited this claim because he did not raise
it first in the trial court. As
defendant correctly points out, where the claim of error does not trample
concerns of judicial efficiency, involves only the application of legal
principles of law to undisputed facts (without depriving the People of the
opportunity to have developed essential facts in opposition), and presents an
issue of important public concern (such as the constitutionality of a statute
in a case of first impression), we will generally exercise our discretion to
allow a party to raise the issue for the first time on appeal. (In re
Sheena K. (2007) 40 Cal.4th 875, 887-888 & fn. 7 (Sheena K.); In re Spencer S.
(2009) 176 Cal.App.4th 1315, 1323.) The
case before us satisfies these standards, so we will proceed to the merits.

Facial
Vagueness

“[T]he
underpinning of a vagueness challenge is the due process concept of ‘fair
warning’ ” that prevents arbitrary enforcement and gives adequate notice. (Sheena
K., supra,
40 Cal.4th at p. 890.) To
be unconstitutionally vague, the statute must employ terms the meaning of which
causes people of common intelligence to guess what conduct is either required
or prohibited. (Ibid.)

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

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

Vagueness
as Applied to Defendant

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

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

II

A. Sufficient
Evidence—Bomb

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

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

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

B. Sufficient
Evidence—Intent

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

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

It is not
necessary that defendant have an animus toward any person in particular at the
YCCC. His particular reliance on >People v. Lake (2007)
156 Cal.App.4th Supp. 1, 9, for this proposition is not well-placed, as
the solicitation statute at issue in that case required knowledge of the likely
presence at the proposed location of third parties whom the solicited acts
would offend.href="#_ftn6" name="_ftnref6"
title="">[6] In any event, there was evidence of his
irrational need to scare off unspecified individuals at the YCCC in particular,
and apparent hostility to county offices in general, as demonstrated in the
imaginary rifle incident and his glaring at the police officer at the
intersection.

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

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

III

Sufficiency of “Strike” Evidence

Defendant
argues there is not sufficient evidence to prove a 1985 prior “strike”
conviction because in 1978 he was found not guilty by reason of insanity
(NGI). The evidence in the record
regarding the NGI finding is confusing.
There is documentary evidence indicating that in May 1978 charges of
battery and assault with a deadly weapon on a peace officer or firefighter
against defendant were resolved by an NGI finding and he was committed to Napa
State Hospital. (§ 1026.) However, there is a document, relied on by
the People, that indicates the court suspended the criminal proceedings on a
finding of defendant’s then-present incompetence to stand trial. (§ 1367 et seq.) Entries in defendant’s summary criminal
history from the Department of Justice contradict this document, however. Although the summary does not include an
entry for a 1978 commitment (as it does for later commitments indicating either
§ 1026 or § 1370 as the basis), it does show a series of arrests and convictions
in 1981 before a commitment to Atascadero State Hospital on October 29, 1982,
pursuant to section 1026 (which is not a disposition ordered in any of the 1981
incidents), and the People do not explain how defendant would have been at
liberty in 1981 if the criminal proceedings had merely been suspended in 1978
until he regained competence to stand trial.

Moreover,
on March 28, 1985 (the date listed on the summary criminal history for his
discharge from Atascadero), there was a hearing at which the People “concede(d)
a Petition for Writ of Habeas Corpus,” pursuant to which the court allowed
defendant “to withdraw his plea of [NGI]” and enter pleas of guilty to a
violation of section 245 with a firearm use allegation and a violation of
section 243 in exchange for the court’s sentencing him to time already
served. Defense counsel represented that
she had explained to defendant that if he did not set aside his plea there
would not be any conviction and he was likely to prevail on his “Petition for a
trial” to obtain his release in the near future. However, “[h]e has indicated to me that he is
not interested in having the trial. He
understands that he might get out and would then have no conviction, but he
wants to go ahead on this.” The court
accepted his plea and initially imposed a sentence of five years for the
assault and stayed sentence on the battery (noting that he would “be released
this afternoon”). It later amended the
term to four years.

In their
initial response, the People urged us to interpret these documents as
indicating that criminal proceedings were suspended in 1978 and reinstituted at
some subsequent point.

Following
remand, we took judicial notice of a 1985 nonpublished opinion of the First
District Court of Appeal in which defendant’s commitment to Napa State Hospital
after being found not guilty by reason of insanity is noted. We requested the parties to file letter
briefs discussing the significance of the opinion. In response, the People requested that we
also take judicial notice of various documents establishing that on May 3,
1978, defendant was found not guilty of the underlying charge by reason of
insanity, but was permitted to withdraw his NGI plea on March 28, 1985, and
enter a plea of guilty. The People’s
request is granted. While this
information is at odds with the People’s representations at trial, the People
nonetheless argue that it supports the prior conviction finding and urge that
we affirm. However, in light of the
confusing evidence presented to the trial court and the People’s apparent
concession that some of the evidence on which it relied was misleading, the
better course of action is to reverse the prior conviction finding and remand
the case to the trial court for a retrial of the prior conviction allegation. (People v.
Franz (2001) 88 Cal.App.4th 1426, 1455.)
The trial court may consider the additional evidence proferred by the
People and the conflicting arguments offered by both sides as to the legal
effect of such evidence.

IV

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

Defendant
is not entitled to a reversal of his
conviction. We therefore reject this
argument.

DISPOSITION

Defendant’s
sentence is vacated, the true finding as to the allegation that defendant
suffered a 1985 conviction for assault with a deadly weapon is reversed, and
the matter is remanded for a retrial as to that allegation. In all other respects, the judgment is affirmed.





RAYE , P. J.



We concur:





BUTZ , J.





MURRAY , J.

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