California Court of Appeals, Fourth District, Third Division
Appeal from a judgment of the Superior Court of Riverside County Nos. SWF028834, SWF10001439, SWF1100223, Mark Mandio, Judge.
Diane E. Berley, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Karl T. Terp, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Nicholas John Smit was charged with a number of drug offenses that exposed him to a maximum of 11 years in state prison. How did defendant attempt to avoid those 11 years? By trying to kill the detective whose testimony was required to convict him, of course. None of the usual suspects such as Wile E. Coyote, Elmer Fudd or Yosemite Sam, not even Boris or Natasha, ever eclipsed what defendant did here.
A jury convicted defendant of several drug offenses and four counts of attempted murder on Detective Charles Johnson. Defendant’s efforts to kill the detective included attempting to fire a military rocket at the building where the detective worked, setting three boobytraps using panji boards and three more using zip guns. One of the zip gun boobytraps was attached to a fence gate and was designed to shoot when the gate was opened. The other zip gun boobytraps were rigged underneath vehicles known to be driven by the detective. We publish this case because defendant’s use of zip gun boobytraps requires us to decide whether his conduct qualifies as personal use of a firearm under Penal Code section 12022.53. We decide that setting a zip gun boobytrap so qualifies.
In a way, defendant’s attempts to kill the detective were successful. He no longer faced that 11 years. Instead, the court sentenced him to four consecutive life terms, plus an additional term of more than 40 years.
The Drug Charges
Johnson of the Hemet Police Department obtained a search warrant for defendant’s residence and executed it when defendant arrived home on June 25, 2009. Inside a safe in defendant’s bedroom, the police found: $580 in U.S. currency, a MoneyGram receipt bearing defendant’s name, a checkbook with checks bearing defendant’s name and address, an Ohaus digital scale, 60 one-inch-by-one-inch Ziploc baggies, two tubes used for snorting cocaine, approximately 11.6 grams of cocaine, a plastic bag containing 254 grams (over one-half pound) of suspected marijuana, a jar containing two “chunks” of suspected methamphetamine, five Vicodin tablets, a pay/owe sheet, a jar containing 14 or 15 grams of marijuana, a loaded.22-caliber
Browning pistol, a box of.22-caliber ammunition, defendant’s income tax returns for 2007, 2008, and 2009, and a blue bank bag containing more.22-caliber ammunition.
In the backyard, police found six marijuana plants. Additional small marijuana plants were found in a closet. Johnson opined the marijuana and cocaine were possessed for sale.
Defendant was booked into the Riverside County jail. The district attorney filed the drug charges against defendant on July 17, 2009. Defendant was released from custody pending trial on the drug charges.
Count Six: Boobytrap Devices (Panji Boards)
Johnson, a member of the police department’s gang task force, was assigned an unmarked 2007 Ford Crown Victoria, which he drove home at night. He typically worked Tuesday through Friday. Less than a week after being assigned to the gang task force, Johnson was to testify in defendant’s preliminary examination on the drug charges scheduled for December 7, 2009.
Prior to December 7, Johnson was informed the preliminary examination would not go forward on that date. About 10:00 p.m. on Sunday, December 6, the day before the scheduled preliminary examination, it was raining when Johnson went to bed. Johnson heard nothing unusual that night. At 6:00 a.m., he went out to the Crown Victoria to head to the gym. He saw a panji board outside his vehicle. The board contained six-inch barbed nails or spikes sharpened at one end. There was a substance embedded into the barbed areas. The substance appeared similar to fecal matter mixed with ground glass. Johnson found like devices outside his wife’s and his son’s vehicles. Johnson said the boards were similar to those used by the Vietcong during the Vietnam War, when sharpened bamboo sticks were used instead of nails.
He also found several chrome “ball bearings” of the type used with “wrist rockets, ” a type of slingshot, in his driveway. The ball bearings had knocked paint off his garage and left indentations in the garage door. Additionally, a kitchen window had been broken by a “much larger chrome ball bearing.”
Counts Seven and Eight: Attempted Murder of Johnson and Hess with a Zip Gun 
Matthew Hess, a sergeant with the Hemet Police Department, supervised the gang task force. He said Johnson was consistently early to work, sometimes ...