People v. Dimitrov

• Decision Date: 14 March 1995
• Docket Number: No. B082526,B082526
• Citation: 33 Cal.App.4th 18,39 Cal.Rptr.2d 257
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Slavtcho DIMITROV, Defendant and Appellant.

Page 257

39 Cal.Rptr.2d 257

33 Cal.App.4th 18

The PEOPLE, Plaintiff and Respondent, v. Slavtcho DIMITROV, Defendant and Appellant.

No. B082526.

Court of Appeal, Second District, Division 7, California.

March 14, 1995.

Review Denied June 14, 1995.

[33 Cal.App.4th 23] Peter Dodd, under appointment by the Court of Appeal, Hornbrook, for defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Carol Wendelin Pollack, Sr. Asst. Atty. Gen., John R. Gorey, Supervising Deputy Atty. Gen., and Robert Renner, Deputy Atty. Gen., for plaintiff and respondent.

FRED WOODS, Associate Justice.

A jury convicted appellant of possession for sale of cocaine base (Health & Saf. Code, § 11378; count I), possession for sale of methamphetamine (Health & Saf. Code, § 11378; count II), and possession of a destructive device (Pen.Code, § 12303, a lesser included offense of Pen.Code § 12303.2; count III). Appellant then admitted two state prison felony allegations (Pen.Code, § 667.5 and Health & Saf. Code, § 11370.2). Appellant was sentenced to state prison for 11 years, 8 months.

Appellant's numerous contentions of trial court error concern improper and omitted instructions, denial of a Penal Code section 1538.5 motion, failure to disclose confidential informants, sustaining of a witness's self-incrimination claim, a ruling on scope of cross-examination if appellant testified, imposition of a fine, and admissibility of evidence.

We find no prejudicial error and affirm the judgment.

FACTUAL BACKGROUND

There being no insufficiency of evidence claim, the facts may be stated simply. Our perspective favors the judgment. (People v. Barnes (1986) 42 Cal.3d 284, 303-304, 228 Cal.Rptr. 228, 721 P.2d 110.)

In April 1992 Ola Ray ¹ rented apartment 301 at the Pinehurst Apartments, 6871 Franklin Avenue in Hollywood. About two months later the apartment manager, Mr. Korff, noticed that appellant, introduced to him as "Russian Paul," appeared also to be living in apartment 301. Large numbers of people visited apartment 301 at all hours of the day and night. In the early morning hours, between 2-5 a.m., they would holler from the street, asking appellant to let them in.

Shortly before September 24, 1992, an informant told Los Angeles County Sheriff's Deputy Steven Freiwirth that "Russian Paul" was selling cocaine from apartment 301 and that a woman named Ola was aiding him. Under Deputy Freiwirth's surveillance, the informant entered apartment 301 and made a "controlled buy" of cocaine from appellant. Thereafter Deputy Freiwirth obtained a search warrant for apartment 301. ²

On September 24, 1992, Deputy Freiwirth, with other officers, executed the search warrant. They attempted to enter apartment 301 with a battering ram but, because the front door was barricaded with a heavy exercise bicycle, could not. When Deputy Freiwirth managed to force open the door he saw Ola Ray toss a brown bag and a black bag to appellant who was standing by the balcony. Appellant caught the bags, entered the balcony, and threw the bags to the ground, three stories below.

The bags were recovered and later searched. The black bag contained six baggies of cocaine base totalling 19.10 grams, a 1.50 gram baggie of methamphetamine, a .56 gram baggie of methamphetamine, a digital scale, a cigarette case with baggies, and an assortment of pills. The brown bag contained a silver shot glass with a brown residue inside and burn marks on the bottom, a glass cup with white residue inside and burn marks on the bottom, a baggie containing amphetamine, a baggie containing mannitol, a baggie with crushed yellow pills, a bottle of inositol, a bottle of lactose, a broken bottle of mannitol, numerous new and used baggies, and what appeared to be a pipe bomb. The three-inch long pipe had a diameter of three-fourths of an inch, was plugged at each end, and had a two inch pyrotechnic fuse. An explosives expert later took the pipe bomb to a field and remotely exploded it. The explosion caused a crater 18 inches wide and 8 or 9 inches deep.

Deputy Freiwirth entered the apartment and searched it. The only occupants were Ola Ray and appellant. In the bedroom Deputy Freiwirth found a beeper and $475 in cash on a shelf near the bed and a large digital scale on the floor. On a dresser he found three containers of cocaine: 2.94 grams, .65 grams, and .41 grams. Also recovered were a notebook with handwritten records, a receipt, two notes addressed to "Paul," a driver's license in the name of Slavtcho Dimitrov, and a British passport in the name of a Mr. Payne. The bedroom closet contained only female clothing.

In the livingroom, two cocked crossbows facing the front door were propped on a storage chest. Nearby, in a violin case, were three arrows and an old musket. By a television was a penholder with "Paul" engraved in it. A closet contained assorted men's clothing in appellant's apparent size.

Based upon the papers found in the bedroom a search warrant was executed for a Deputy Freiwirth, a narcotics expert, testified the notebook contained "pay and owe" drug transaction records and that both the cocaine base and methamphetamine were possessed for sale.

storage unit at Security Self-Storage in Hollywood where Deputy Freiwirth found a triple beam scale and baggies with methamphetamine residue.

Appellant called three witnesses who had felony convictions. They testified that apartment 301 was a "shooting gallery" where various people, but not appellant, periodically lived and one of them, Chico Ross, owned the brown and black bags. Appellant did not testify.

DISCUSSION

1. "Destructive device" instructions.

As part of its instructions concerning the charge of unlawful possession of a destructive device, the trial court instructed the jury "a pipe bomb is a destructive device."

Appellant contends "destructive device" is a technical term requiring special definition and merely instructing the jury that a pipe bomb is a destructive device was inadequate. Appellant is mistaken.

"Destructive device" is defined by statute to include a variety of specified weapons, including "any bomb." (Pen.Code, § 12301, subd. (a)(2).) As People v. Quinn (1976) 57 Cal.App.3d 251, 258, 129 Cal.Rptr. 139 observed, "the term 'bomb' is not vague either on its face or as construed...." Persons of common intelligence know what a bomb is. (Id. at p. 259, 129 Cal.Rptr. 139.) It sufficed, under the instant circumstances, for the trial court to merely inform the jury "a pipe bomb is a destructive device."

Moreover, there was no dispute concerning whether or not the subject device was a bomb. Without contradiction a prosecution expert testified it was a bomb and when detonated it exploded. Defense counsel, in argument, stated "the bomb--pipe bomb is dangerous. We stipulate to that. It's terrible that people have that sort of thing. Very dangerous." Later, defense counsel stated: "The pipe bomb was in the brown bag.... It's like a firecracker with a metal casing ... and the deputy is absolutely right, they are extremely dangerous. When it explodes it is made to fragment the casing ... and that can injure people, kill them, absolutely. Terribly dangerous."

Appellant next contends the instruction ("A pipe bomb is a destructive device") was not inadequate but too adequate because by telling the jury "a pipe bomb fit the definition of 'destructive device' under Penal Code sections 12301 and 12303.2" the trial court "usurped the function of the jury." Appellant is mistaken.

As we have noted, in telling the jury a pipe bomb is a destructive device the trial court merely conveyed the applicable statutory definition of "destructive device." (Pen.Code, § 12301, subd. (a)(2).) "In instructing a jury it is proper for a trial court to explain and define terms which might otherwise lead to confusion." (People v. Frye (1992) 7 Cal.App.4th 1148, 1159-1160, 10 Cal.Rptr.2d 217.) "Destructive device" is such a term. Contrary to appellant's implication, the trial court did not instruct the jury the subject device was a pipe bomb, only that a pipe bomb is a destructive device. Accordingly, the trial court's instruction was proper and did not breach the "law/fact" distinction. (See People v. Snead (1993) 20 Cal.App.4th 1088, 1094-1095, 24 Cal.Rptr.2d 922; People v. Higareda (1994) 24 Cal.App.4th 1399, 1405-1407, 29 Cal.Rptr.2d 763.)

Having so concluded, we need not consider whether error was invited by appellant, who requested the now complained of instruction. (People v. Marshall (1990) 50 Cal.3d 907, 931, 269 Cal.Rptr. 269, 790 P.2d 676; People v. Gallego (1990) 52 Cal.3d 115, 183, 276 Cal.Rptr. 679, 802 P.2d 169; People v. Cooper (1991) 53 Cal.3d 771, 830, 281 Cal.Rptr. 90, 809 P.2d 865; People v. Duncan (1991) 53 Cal.3d 955, 970, 281 Cal.Rptr. 273, 810 P.2d 131; see generally 6 Witkin & Epstein, Cal.Criminal Law (2d ed. 1989) §§ 3287-3288.)

Finally, relying upon federal case interpretation of a comparable federal statute, appellant contends the trial court should have instructed the jury "that in order to qualify as a 'destructive device' ... the device The Legislature made the possession of a destructive device a crime (Pen.Code, § 12303) and defined a destructive device to include "any bomb." (Pen.Code, § 12301, subd. (a)(2).) The Legislature did not require a bomb "have the capability of causing substantial property damage or injury to life."

                ... must have the capability of causing substantial property damage or injury to life."   Appellant is mistaken
                

Moreover, as we have noted, there was no dispute concerning the capability of the subject device. As defense counsel told the jury, "When it explodes it is made to fragment the casing ... and that can injure people, kill them absolutely. Terribly dangerous."

Also, as we have noted, the instruction the trial court gave was one requested by appellant. (See People v. Marshall, supra, 50 Cal.3d 907, 931, 269 Cal.Rptr. 269, 790...