P. v. Parra-Davis

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Filed 9/16/13  P. v. Parra-Davis CA2/3

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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  This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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

 

SECOND
APPELLATE DISTRICT

 

DIVISION
THREE

 

 
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THE PEOPLE,               Plaintiff and Respondent,               v.   JOSHUA MARTIN PARRA-DAVIS,               Defendant and Appellant.

B239353         (Los Angeles County       Super. Ct. No. GA082269)

 

 

APPEAL from a judgment of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County, Michael D. Carter, Judge.  Affirmed.

 

Esther K. Hong, under appointment by the Court of
Appeal, for Defendant and Appellant.

 

Kamala D. Harris, Attorney General, Dane R. Gillette,
Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General,
Linda C. Johnson and Elaine F. Tumonis, Deputy Attorneys General, for Plaintiff
and Respondent.

 

 

INTRODUCTION

            A jury
found defendant and appellant Joshua Martin Parra-Davis guilty of offenses
relating to possession of destructive
devices under former Penal Code section 12301 et seq.href="#_ftn1" name="_ftnref1" title="">[1]  He contends on appeal that the trial court
misinstructed the jury on the definition of “destructive devices,” depriving
him of his state and federal constitutional due process rights.  We hold that any instructional error did not
violate his due process rights, and
we therefore affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

I.          Factual background.

            A.        Prosecution
case-in-chief.

>1.         Defendant
is found in possession of destructive devices.

            On January 14, 2011, Genero Vasquez, a
custodian at Foothill Middle
School in Arcadia,
saw defendant walking on campus holding a video camera.  Having never seen the man before and
intending to ask what he was doing on campus, Vasquez approached defendant, who
walked down the street, away from the school. 
Vasquez followed him to a parking lot.  Defendant grabbed a backpack or black pouch
from bushes, and put something into the bag or took something out.  Defendant put the bag back and walked away
carrying a little black object.  Defendant ran when he saw Vasquez.  Vasquez called the school’s assistant
principal, Benjamin Acker, who joined him.  Acker called the police.

            Officer Joseph
Trejo of the Arcadia Police Department responded, and he found a black duffel
bag and a suitcase with clothing inside. 
Inside the bag were a video camera, a medical kit, two firecrackers
inside a green pill bottle, three unexpended 12-gauge shotgun shells,
flashlights, a rifle scope, two flares, an “electronic toggle switch,” an “R.C.”
car battery pack, a “machete type samurai sword,” a 10-inch knife, a flare gun,
and two cylindrical devices with a fuse.

            Arcadia
Police Officer John Bonomo searched defendant’s home.  Inside a briefcase, the detective found .98
caliber ammunition, a hand grenade, and a “green hobby fuse.”  Inside a military green canvas bag, he found a
spent casing “crimped off at the end with a green hobby fuse coming out of it,”
empty casings, a funnel, and metal spoons.

                        >2.         Expert
testimony.

            Los Angeles
County Deputy Sheriff Gary Spencer, a bomb technician, testified about the
devices.

                                    (a)       The
pipe bomb.

“Bomb” is a specific term referring
to an explosive device designed to kill, injure or destroy property.  A bomb generally requires confinement using
some type of container, a low explosive powder, and a system to initiate the
powder.  A “high explosive” bomb, however,
does not require a container, for example, five sticks of dynamite would not
need a hardened container.

Spencer examined an “improvised
explosive device,” “similar to a pipe bomb.”  It was a cylindrical object, apparently made
of metal, with a screw-on-cap out of which ran a “cannon fuse or hobby fuse,”
an item designed to transmit a burn at a controlled rate from one point to
another.  Hobby fuses are made for href="http://www.fearnotlaw.com/">recreational purposes, because the fuse
allows a separation time between igniting the fuse and the explosion.  That a fuse was attached to the device made it
“a classic configuration of an improvised explosive device.”

            There are
numerous ways to detonate such a device. 
The most common, deliberate way, deflagration, would be to light the
fuse, which burns down and ignites the powder inside.  Another way to detonate the device would be to
strike it with a hammer or tool, because the powders used in “these kinds of
improvised explosive devices” are sensitive to the introduction of heat and
impact and friction.  Electrostatic
discharge can also initiate powders.

 

            Because
they are dangerous, the I.E.D.—improvised explosive device—is the number one
weapon of choice in Afghanistan. 
“Improviseds are homemade so they have a very large unknown quantity to
them” that make them “more dangerous.”  Because
the device was “inherently dangerous,” the detective had to render it safe.  One way to do this is to breach the container
so that the filler inside can burn off without an explosion or detonation.  Deputy Spencer rendered the device safe by
placing it inside a bunker and remotely operating it.  The device “did high order,” explode.

            In
Spencer’s opinion this device was a destructive device.  His opinion was based on a burn test
conducted on the powder showing it to be a deflagrating powder, a “low
explosive filler similar to pyrotechnic powder, gunpowder, black powder,” that
the powder was in a sealed container allowing for a build-up of pressure, and
that the container also had a fuse.

                                    (b)       The
grenade.

            Spencer
described the grenade as a “practice grenade” used by the military in
training.  A practice grenade is designed
to explode but not fragment, making it safe for the military to throw.  Defendant’s grenade, however, was “modified
to make a sealed container by plugging the bottom” or “improvised into a
destructive device” by adding a hobby fuse and a low explosive filler and
plugging the bottom so that pressure could build and explode the body,
propelling fragments at a high speed.  Spencer
said, “The item that the hand grenade body was made into is an I.E.D.”  A “test burn” was conducted of the hobby
fuse, which had a rapid rate of burn, much quicker than the usual 42 to 45
seconds a foot.  The fuse burned so
quickly, the grenade would probably explode in a person’s hand.

Spencer determined that the grenade
was also a destructive device, based on its configuration, components, the
rapid burn of the powder, and the operational fuse.  Had a flame been introduced to the fuse, a deflagration
would have caused the container to break and explode, propelling fragments at a
very high speed.

 

            Using a
remote operation to open the container, Spencer rendered the grenade safe.

                                    (c)       Rifle
cartridge.

            The third
item Spencer examined was a rifle cartridge with a hobby fuse inserted in
it.  The bullet was removed and the top
of the cartridge was crimped around the fusing. 
Spencer’s team lit the fuse remotely and detonated it.href="#_ftn2" name="_ftnref2" title="">[2]  Before doing so, they placed watermelons on
either side of the device.  A fragment of
the cartridge was propelled six inches into a melon, and the explosion rent
apart the cartridge head.

            In
Spencer’s opinion, the ammunition with the hobby fuse was “definitely” a
destructive device, based on the “low explosive powder, a
fuse, . . . a container that would confine the burning, [and]
the rapid burning of the low explosive powder causing an over pressure.”  “When the flame or heat is ignited at the end
of the fuse, it burns down into the interior, the powder deflagrates causing a
novel pressure and explosion, fragmentation of the metal which is propelled
away at high speeds similar to a bullet.”

                                    (d)       .98
caliber (25-millimeter) ammunition.

            The .98
caliber ammunition recovered from defendant’s home was a live target practice
round with a tracer pellet in it.

            B.        Defense
case.

            Defendant
testified that the night before his arrest he was camping above Arcadia,
because his mother had kicked him out of the house.  He had two bags with him.  The morning after camping out, he stored the
bags between a Bank of America and McDonald’s because he was getting job
applications.  He was going to retrieve
his bags when he heard drum music coming from the middle school.  Because he had played in a drum line at the
school, defendant went to the school to take some video and to talk to a former
teacher.

 

            Into the
device described by Spencer as a pipe bomb, defendant put fountain powder,
which creates sparks and a flash of colors.  He has made such devices probably over a 100
times, and he expected that the device would simply shoot sparks out of
it.  He also put fountain powder into the
practice grenade.  When he had done this
before, a big shower of colored sparks shot out.  He also made the bullet casing with a fuse
coming out of it.  When he had made
similar devices by inserting a skewer, they shot off like a bottle rocket, and
none ever exploded like the one tested by Spencer.

            C.        Rebuttal
case.

            Sergeant
Vaughn Whalen of the Arcadia Police Department questioned defendant, who denied
having a video camera at the school.  He
also initially denied having a bag with him, but he later said the bags
contained his camping gear.

            Deputy
Spencer testified that if a skewer had been inserted into the ammunition, it
still would have exploded.  The powder
used was not fountain powder.  It was
pyrotechnic powder.  Spencer considers
the pipe bomb, the grenade with the fuse, and the shell casing with the fuse to
be improvised explosive devices.

II.        Procedural background.

            An
information filed on June 15, 2011 alleged four counts:  count 1, possession of a destructive device
in and near a public street or highway (Pen. Code, § 12303.2);href="#_ftn3" name="_ftnref3" title="">[3]
counts 2 and 3, possession of a destructive device near certain places (§ 12303.2);
and count 5, possession of a destructive device, namely, .98 caliber ammunition
(§ 12303).  Count 5 was later
amended to allege that defendant unlawfully possessed fixed ammunition (§
12304).

            On January
17, 2012, a jury found defendant guilty of count 1, possession of a destructive
device near certain places (§ 12303.2); of counts 2 and 3, the lesser offense
of possession of a destructive device (§ 12303); and of count 5, possession of
fixed ammunition, to wit, a .98 caliber ammunition, a misdemeanor.

            On February
15, 2012, the trial court sentenced defendant to the midterm of four years on
count 1, to a consecutive eight months on count 2, and to a concurrent eight-month
term on count 3.  Defendant’s total
sentence therefore was four years eight months.

DISCUSSION

I.          Any instructional error did not
prejudice defendant.

            Defendant
contends that the trial court violated his state and federal constitutional due
process rights when it added “improvised explosive device” to the definition of
a destructive device in jury instructions. 
We disagree.

            “It is settled that, even in
the absence of a request, a trial court must instruct on general principles of
law that are commonly or closely and openly connected to the facts before the
court and that are necessary for the jury’s understanding of the case.”  (People
v. Montoya (1994) 7 Cal.4th 1027, 1047; see also People v. Moye (2009) 47 Cal.4th 537, 548; People v. Breverman (1998) 19 Cal.4th 142, 154.)  When an instruction is challenged as
ambiguous and subject to an erroneous interpretation by the jury, we review the
instruction independently to determine whether there is a reasonable likelihood
the jury understood the instruction in the manner asserted by the defendant.  (People
v. Cross (2008) 45 Cal.4th 58, 67-68; People
v. Cole (2004) 33 Cal.4th 1158, 1210.) 
“ ‘ “In determining whether error has been committed in giving or not
giving jury instructions, we must consider the instructions as a whole . . .
[and] assume that the jurors are intelligent persons and capable of
understanding . . . all jury instructions which are given.”  [Citation.]’ ”  (People
v. Ramos (2008) 163 Cal.App.4th 1082, 1088.)  A defendant who fails to object below may not
raise a claim of instructional error on appeal, unless the claim raises issues
concerning substantial rights.  (>People v. Lewis (2009) 46 Cal.4th 1255,
1315, fn. 43; § 1259.)

“The language of a statute defining a crime or defense
is generally an appropriate and desirable basis for an instruction, and is
ordinarily sufficient when the defendant fails to request amplification.  If the jury would have no difficulty in
understanding the statute without guidance, the court need do no more than
instruct in statutory language.”  (>People v. Poggi (1988) 45 Cal.3d 306,
327.)  The trial court here deviated from
this general rule when it modified CALCRIM No. 2572.href="#_ftn4" name="_ftnref4" title="">>[4]  That jury instruction tracks the statutory
language in section 12301, which defines a “ â€˜destructive device’ â€
as “[a]ny bomb, grenade, explosive missile, or similar device or any launching
device therefor.”  (§ 12301, subd.
(a)(2); CALCRIM No. 2572.)  The trial
court, however, modified that definition when it instructed the jury that a
“destructive device is any bomb, grenade, improvised
explosive device, or any weapon
of a caliber greater than 0.60-caliber which fires ammunition, or any
ammunition therefore.”  (Italics added.)  The court also instructed the jury that the
devices the People alleged were destructive were the pipe bomb, grenade, and
improvised explosive device.  Defense
counsel did not object to these instructions.

            Defendant
here argues that injecting the undefined term—improvised explosive device—into
the instructions rendered them vague, violating his state and federal due
process rights.  He states that undefined
term created a danger the jury equated something containing explosive powder
with being a per se destructive device. 
In other words, the jury might have thought that mere fireworks
constituted destructive devices.  Defendant
thus notes, that “explosive” has a specific statutory meaning.  For the purposes of section 12301, an
“explosive” is defined in Health and Safety Code section 12000 et seq.  (§ 12301, subd. (b).)  The Health and Safety Code provisions make
clear that not all “explosives” are “destructive devices.”  (See, e.g., Health & Saf. Code, § 12000,
subd. (f) [“For the purposes of this part, ‘explosives’ does not include
any destructive device, as defined in Section 16460 of the Penal Code, nor does
it include ammunition or small arms primers manufactured for use in shotguns,
rifles, and pistols”].)  Moreover, the
jury instructions themselves concerning destructive devices differentiate
between “explosives” and “destructive devices.” 
(See, e.g., CALCRIM Nos. 2571, 2572.) 
A bomb, for example, may be an explosive and a destructive device.  (People
v. Quinn (1976) 57 Cal.App.3d 251, 259.) 
But not all explosives are destructive devices, for example, some fireworks
are legal (see generally, Health & Saf. Code, § 12500 et seq.), and
therefore they might not be a “destructive device” under the Penal Code.  That defendant here merely possessed fireworks
was the crux of his defense.    

Although we agree the trial court
should not have modified the definition of “destructive devices,” we do not
agree the jury would have construed the modified instruction in the manner defendant
suggests or that the modification violated his due process rights and prejudiced
him, whether we review the issue under Chapman
v. California (1967) 386 U.S. 18 (beyond a reasonable doubt) or >People v. Watson (1956) 46 Cal.2d 818 (a
reasonable probability).  A “defendant
challenging an instruction as being subject to erroneous interpretation by the
jury must demonstrate a reasonable likelihood that the jury understood the
instruction in the way asserted by the defendant.”  (People
v. Cross, supra, 45 Cal.4th at pp. 67-68.)

It is clear that “improvised
explosive device” was the expert witness’s shorthand for a homemade device.  Spencer testified that all the devices had
been modified; for example, the pipe bomb was made out of a cylindrical object
and a hobby fuse; the grenade was “modified” by the addition of a hobby fuse,
explosive filler, and plugging the bottom; and the rifle cartridge had a hobby
fuse inserted into it.  Spencer thus said
that “[i]mproviseds are homemade so they have a very large unknown quantity to
them” and that the grenade was “improvised into a destructive device.”  The term “improvised explosive device,”
although not contained in the statutory definition of a destructive device, was
therefore not vague or ambiguous or otherwise undefined in the context of the
case.

Had the trial court used the
statutory language instead of modifying it, we cannot see the result being any
different.  The statutory definition of a
“destructive device” is “[a]ny bomb, grenade, explosive missile, or similar
device or any launching device therefor.” 
(§ 12301, subd. (a)(2)).  Had the
trial court instructed the jury with this definition, there was href="http://www.fearnotlaw.com/">overwhelming evidence that the devices
were a bomb or a grenade or a similar destructive device.  Spencer testified, for example, that the
first device, a cylindrical object with a fuse, was an “improvised explosive
device” similar to a pipe bomb.  A “bomb”
is specifically referenced in the statutory definition of a destructive device,
and a pipe bomb is merely a type of bomb that is a destructive device.  (People
v. Dimitrov (1995) 33 Cal.App.4th 18, 25 [“Persons of common intelligence
know what a bomb is.  [Citation.]  It sufficed, under the instant circumstances,
for the trial court to merely inform the jury ‘a pipe bomb is a destructive
device’ ”].)  Spencer also remotely
operated the pipe bomb, and it exploded.

 

 

The second object defendant
possessed was a grenade, a device also expressly defined in section 12301 as a
“destructive device.”  Spencer did not
try to detonate the grenade, but had he lit the fuse, it was his opinion the
container would have exploded, propelling fragments at a very high speed.

Finally, Spencer did light the fuse
attached to the rifle cartridge, the third device.  It exploded, propelling fragments into the
nearby watermelon and tearing apart the cartridge head.  A video of this explosion was shown to the
jury.

            Given this
evidence, it is not reasonably probable that the jury would have concluded that
the devices were merely non destructive fireworks, as defendant asserts.  Because this is our conclusion, we reject
defendant’s related contention that his trial counsel rendered ineffective assistance
of counsel by failing to object to the jury instruction.  (See generally, Strickland v. Washington (1984) 466 U.S. 668.)  A defendant claiming ineffective assistance
of counsel must establish both error and prejudice; because no prejudice
accrued to defendant by virtue of any instructional error, the claim fails.

 

DISPOSITION

            The judgment is affirmed.

 

 

                                                                                    ALDRICH,
J.

 

 

We concur:

 

 

                        KLEIN,
P. J.

 

 

 

                        CROSKEY,
J.