APPEAL from a judgment of the Superior Court of Yolo County, Thomas E. Warriner, Judge. Affirmed as modified. (Super. Ct. Nos. 06-5019, 04-1665).
The opinion of the court was delivered by: Raye, Acting P. J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
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)),*fn2 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).)
On appeal, defendant contends his felony sentence for placing a false bomb violates his constitutional right to equal protection, because placing a false weapon of mass destruction (WMD) 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. He contends 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. He also claims that there is 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. Finally, he contends that if we reverse his present conviction we must reverse the court's finding that he violated probation and remand for further proceedings in the 2004 case.
In the published portion of this opinion, we agree that defendant is similarly situated to someone convicted of the misdemeanor of placing a false WMD that did not cause sustained fear, and the legislative history of the latter provision shows that no reason exists to treat the two offenses differently for purposes of punishment. Therefore, we conclude that a violation of section 148.1, subdivision (d) (hereafter § 148.1(d)) is punishable only as a misdemeanor. We reject the remainder of defendant's arguments in the unpublished part. We therefore vacate the sentence on the 2006 offense and remand the matter for resentencing.
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.*fn3 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.
A psychologist testified about her evaluation of defendant. He had paranoid beliefs that, among other things, the officers at the jail wanted to have sex with him. His thinking in general was fragmented and tangential. In discussing the charges against him, he said he had placed the bomb to scare off women who had been sexually harassing him and wanted to kill him because they "wanted to get rid of all the blacks" as "they're too smart." Defendant had a history of psychiatric treatment for schizophrenia dating back to 1983. In a later interview, he claimed the fake bomb was just a joke, but again alluded to the need to scare off women interested in him. He was aware his attorney was trying to have him found incompetent to stand trial, which upset him because he did not "want to go that route."
Defendant does not raise any issues with respect to the sanity phase of his trial. We therefore omit those facts.