APPEAL from a judgment of the Superior Court of Tuolumne County. Eric L. DuTemple, Judge. (Super. Ct. No. CRF24550).
The opinion of the court was delivered by: Cornell, J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
A jury convicted appellant Lawrence Alan Adams of arson, possession of a destructive device in public, and felony vandalism of 11 motor vehicles. It also found that Adams had prior convictions and had served a prior prison term. Adams contends his convictions should be reversed because of prosecutorial misconduct, insufficient evidence, and evidentiary and instructional errors. Adams also argues his sentence is erroneous and must be corrected. We will correct the sentencing error but otherwise affirm the convictions.
We publish the parts of this opinion that hold that the destructive device used here is prohibited by Penal Code section 12303.2,*fn2 and that the trial court has no sua sponte duty to define the term "breakable" for the jury.
FACTUAL AND PROCEDURAL SUMMARY
On July 6, 2007, Adams was a transient camped illegally on private property. Officer John Mager, Jr., ordered Adams to break camp and move. Mager saw a campfire, cooking pots, matchbooks, spray paint cans, newspapers, and a tent at the campsite. While moving his campsite, Adams called his girlfriend from his cell phone. Adams was ranting, raving, and expressing his frustration with the police and government.
Late the next day, Robert Mastro, who had been working, saw someone in the police rooftop parking lot across from where he had parked his car. The person was wearing black clothing, including a sweatshirt with the hood over his head. Mastro thought the person was dressed strangely for a hot summer night. He also noticed that the person's sweatshirt was bulging in an attempt to conceal something underneath.
The man Mastro saw was walking away from a smoldering Dodge Durango. When Mastro and the man made eye contact, the man ran and Mastro pursued him on foot. The flames began to spread from the gas tank and Mastro called for help. Within minutes, patrol units descended.
When Officer Jerry McCaig arrived at the parking lot, he noticed the gas cap of the Durango was hanging open. Several matchbooks had been placed in the neck of the gas tank. The matchbooks had the covers and the rough striker surface removed. The taillight had burn marks, and a pattern had formed underneath the gas tank and on the rear bumper where liquid had been poured. The tailgate was stuck shut. A puddle of liquid was on the ground along with a burnt matchbook. The matchbooks found in the gas tank and on the ground were identical to those later found on Adams.
Shortly thereafter officers observed an individual, dressed as Mastro had described, who was carrying two brown paper bags. McCaig and another officer followed the individual, who turned out to be Adams. When ordered to stop, Adams began to walk faster and then began to run. The officers chased Adams, who dropped one of the paper bags near the bottom of a set of stairs. He dropped the other bag on the stairs, where some of the contents scattered.
After dropping the bags, Adams continued to run. While running, a wrench and three rolled up papers fell from his pocket. Each paper had been rolled into a tightly wound tip. Adams continued to run but eventually was intercepted by an officer and restrained at gunpoint.
When arrested, Adams had in his pockets a cigarette lighter, seven matchbooks with torn off covers and strikers, a flashlight, and a battery cable connector. Adams did not have any cigarettes or tobacco in his pockets. Adams refused to give his name. When informed that his name would be ascertained from fingerprints, Adams responded, "do [your] fucking job."
The paper bags dropped by Adams were recovered. In the smaller bag were two Styrofoam cups inset together with liquid between the cups. Inside the inner cup were several matchbooks and small pieces of Styrofoam. The rim of the inner cup was cut to make it even with the outer cup; the cups were then compressed together, sealing the liquid in between. The liquid had a strong chemical odor. Three identical devices were found in the larger bag and a fifth such device was in the vicinity near the larger bag. The larger bag also had eight books of matches with torn off covers and small bits of Styrofoam.
Sometime between July 6 and July 9 a county-issued sheriff's car was vandalized. The vehicle had been spray painted on both sides with brown paint. The message "fuck you" was painted on the driver's side and swastikas were painted on the trunk and hood. Other cars in the lot that were not sheriff's vehicles were untouched.
Between the afternoon of July 7 and the morning of July 8, 10 probation department vehicles were vandalized. The cars looked like law enforcement vehicles because they were equipped with built-in prisoner cages. Four vehicles had swastikas on the hoods and the others had been spray painted all around.
Mager investigated both vandalism reports. He noted similarities in the color of the paint and the swastika images. He also noted that the sheriff's lot, probation's lot, and police parking lot were all within a mile of each other. Mager contacted Adams while he was being held in the county jail and examined his hands. Mager ...