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The People v. Barry Allen Turnage

August 6, 2012


Court: Superior County: Yolo Judge: Thomas Edward Warriner Ct.App. 3 C059887 Nos. 06-5019, 04-1665

The opinion of the court was delivered by: Baxter, J.

Defendant Barry Allen Turnage, an ex-felon on probation, planted an object near a government building that resembled a bomb (but lacked explosive content), and that caused fear and disruption when discovered. Defendant was convicted, as charged, of one felony count of violating Penal Code*fn1 section 148.1, subdivision (d) (section 148.1(d) or the false bomb statute). As pertinent here, section 148.1(d) allows felony or misdemeanor punishment for anyone who maliciously places "any false or facsimile bomb" with the intent to cause another person to fear for his own safety or the safety of others. Defendant's sentence included a 25-years-to-life Three Strikes term based on the section 148.1(d) felony count and his prior serious and violent felony convictions.

On appeal, defendant claimed that the felony provision under which he was convicted and sentenced denied him equal protection of the law when compared to an entirely different statute, section 11418.1. The latter provision provides, in pertinent part, that anyone who places "any false or facsimile of a weapon of mass destruction" (WMD) with the intent to cause fear in others is guilty of a misdemeanor. A violation of section 11418.1 (or the false WMD statute) may be punished as a felony only "[i]f the [perpetrator's] conduct causes another person to be placed in sustained fear" -- an element not necessary under the false bomb statute for either misdemeanor or felony punishment. The Court of Appeal accepted defendant's claim that, under the least exacting form of equal protection review, there was no rational basis for the distinction between the two crimes. The court reduced the section 148.1(d) conviction to a misdemeanor, and invalidated the related indeterminate life term.

We agree with the Attorney General, who sought review for the People, that no equal protection violation occurred. The challenged distinction -- allowing false bomb crimes to be punished as felonies without proof of sustained fear, while requiring such a showing for felony violations of the false WMD statute -- is not irrational. The Legislature could reasonably assume that the public is highly familiar with, and uniquely afraid of, the explosive properties of bombs. Hence, mere observation or awareness of an object that looks like a bomb, and that was meant to instill fear like a bomb, is almost certain to cause the alarm and disorder associated with sustained fear under the statutory scheme.

Upon close examination, the same reasoning does not apply to false WMD's. A WMD is statutorily defined to include a vast array of chemical and biological substances, and radioactive and mechanical devices, weaponized for use in both conventional and unconventional forms against all kinds of targets, not just people. It is conceivable from a legislative perspective that, given the breadth and relative novelty of WMD's, a facsimile of a WMD would not necessarily be recognized or cause fear, even where it is detected and was intended to do so. Requiring sustained fear for felony offenses under the false WMD statute, but not the false bomb statute, promotes a valid state interest in deterring and punishing the societal harm such crimes clearly cause. We will reverse the Court of Appeal.


The relevant events occurred at the Yolo County communications center (Center), which dispatched calls 24 hours a day for the police and fire departments. The Center sits in the middle of a city block, in a secure, fenced area that can be entered only by activating a keypad at the gate.

At 9:30 a.m. on September 3, 2006, Tammy Leggins returned to work at the Center after a brief errand. As she drove down the driveway toward the keypad, she passed defendant, who was backing up in his car. Her suspicions were aroused when defendant leaned away and hid his face.

While waiting for the gate to open, Leggins looked down and saw an object on the concrete block directly underneath the keypad. It was a box with "C-4" written on two sides, including the side facing Leggins. A small American flag on a stick protruded upright from the top of the box.

Leggins knew C-4 was an explosive. Hence, her immediate reaction was that the box might be a bomb. She was frightened as a result.

Inside the Center, Leggins announced to the entire dispatch room that "we have a bomb threat." The police were called. Consistent with official protocol, this call was made by telephone instead of radio, because radio transmissions can detonate bombs. Leggins went outside when the police arrived 15 minutes later. Apparently, she and her co-workers could leave the building during this time only through one circuitous route.*fn2

A short time later, police found and arrested defendant at a nearby coffee shop. Defendant admitted that he left the box at the Center (which he called the "sheriff's department"), and that "C-4" referred to plastic explosives. Defendant said the box was a harmless joke, but also noted that unnamed women at the Center had mocked him.

Arresting officers found a disposable camera on defendant's person, which he admitted having used to photograph government buildings. He also possessed a sketch of a box with an antenna protruding from it. Later, while searching defendant's home and car, police seized over 200 photographs, including some developed from the film in additional disposable cameras. These pictures showed, among other things, the courthouse, the district attorney's office parking lot, police and fire stations, the probation office, and other county facilities.*fn3

Meanwhile, the police established a safety perimeter around the Center. The bomb squad also arrived, including its commander, William Concolino. Qualifying as a bomb expert at trial, Concolino testified that C-4, or Composition C-4, is an exceptionally powerful and "hot" explosive used mainly for military and law enforcement purposes. Because of the "C-4" lettering, the box was not touched or moved until X-rays and visual inspection showed that it contained no explosive device or material.*fn4 Also, the flag on the box was not an antenna.

As to guilt of the charged crime,*fn5 the jury convicted defendant of one felony count of placing a false or facsimile bomb in violation of section 148.1(d). The same jury determined in subsequent phases of the trial that defendant was legally sane, and that he had sustained two prior felony convictions, or "strikes." They involved robbery with firearm use and assault with a firearm. (See §§ 211, 245, subd. (b); former § 12022.5;*fn6 see also § 667, subds. (d), (e)(2)(A)(ii) [Three Strikes Law].) Additionally, the trial court found that, because of the section 148.1(d) conviction, defendant violated his probation in a 2004 drug case in which the imposition of sentence had been suspended. (See Health & Saf. Code, § 11352, subd. (a) [transportation of controlled substance, cocaine].)

In light of these verdicts and findings, the trial court sentenced defendant to prison for a total of 30 years to life. The sentence consisted of the upper term of five years for the 2004 drug conviction, and a consecutive term of 25 years to life for the felony false bomb count and the prior strike convictions.

The Court of Appeal agreed with defendant that his felony violation for planting a false bomb under section 148.1(d) denied him equal protection of the law compared to section 11418.1, the false WMD statute, because only the latter provision required a showing of sustained fear in this regard. Based on the legislative history of section 11418.1, the court found no plausible reason for the disparity, and assumed the Legislature had simply "overlooked" the otherwise "identical" nature of the two crimes. The section 148.1(d) count could therefore be punished only as a misdemeanor in the court's view. ...

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