People v. Poulin, Cr. 9883

• Decision Date: 12 July 1972
• Docket Number: Cr. 9883
• Citation: 103 Cal.Rptr. 623,27 Cal.App.3d 54
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Michael D. POULIN, Defendant and Appellant.

Page 623

103 Cal.Rptr. 623

27 Cal.App.3d 54

PEOPLE of the State of California, Plaintiff and Respondent, v. Michael D. POULIN, Defendant and Appellant.

Cr. 9883.

Court of Appeal, First District, Division 4, California.

July 12, 1972.

Jack Siedman, San Francisco, for appellant (Under appointment of the Court of Appeal).

Evelle J. Younger, Atty. Gen. of the State of California, Herbert L. Ashby Chief Asst. Atty. Gen., Crim. Div., William E. James, Asst. Atty. Gen., Appeals Section, Eric Collins, Nancy S. Reller, Deputy Attys. Gen., for respondent.

BRAY, ^* Associate Justice.

Appellant appeals from judgment of conviction, after jury trial, of violation of Penal Code section 12310 (explosion of a destructive device causing great bodily injury).

Questions Presented

1. Is Penal Code section 12310 unconstitutional because the term 'great bodily injury' fails to establish a clearly defined standard of guilt?

2. Does the evidence support a finding of 'great bodily injury'?

3. Was the instruction on great bodily injury erroneous?

4. Was the admission of the testimony of the bailiff error?

5. Was the admission of testimony in regard to prior offenses error?

6. ¹ Was appellant's counsel incompetent thereby depriving appellant of his Sixth Amendment right to counsel?

a. Failure to raise constitutionality of Penal Code section 12310.

b. Alleged failure to make adequate investigations.

c. Failure to impeach Mrs. Greene's credibility by raising the issue of her psychiatric treatment.

d. Failure to object to bailiff's testimony.

e. Trial court denied appellant an opportunity to question his counsel's competence.

f. The identification of appellant by witness Hogue.

Record

Appellant was charged in an information filed in San Mateo County Superior Court with violation of Penal Code section 12310 ² and, after jury trial, he was convicted as charged. He waived his right to a jury trial on the penalty phase and was sentenced to state prison for the term prescribed by law.

Facts

Mrs. Wanda Sharon Greene (hereinafter referred to as 'Sharon') became acquainted with appellant in April of 1970. Their acquaintanceship developed into an intimate relationship. On September 3, 1970, appellant telephoned Sharon asking her to accompany him to the Russian River. She informed him that she was going to see Hugh Towzey that night. The next morning at about 5 a.m., appellant was pounding at the door of Sharon's apartment. Appellant assumed that Towzey was there. Appellant refused to leave and Sharon called the police, who persuaded appellant to leave. About five minutes later appellant phoned Sharon, threatening her.

On September 8, appellant waited for Sharon outside her place of employment, forced her into his car, and drove her to her apartment. He made her telephone her employer that she would not be in that day. He took Towzey's address and phone number from her address book. Telling Sharon that if she valued her family and her life she would do as he said, appellant forced her to drive to his apartment in San Jose. He then told her that he had arranged to have someone harass her. Sharon reported this to the San Carlos Police Department.

During the following month appellant continually followed and telephoned Sharon. She changed her telephone number. He obtained the number through, as he told her, friends in the phone company. He said that his love had turned to hate and he could hurt her better by hurting the people she loved, that she would never be able to hide from him, and that he would take retribution for the harm he felt had been done to him.

Appellant repeated the threatening phone calls, in one of which he said that someone in Sharon's family could be hurt, and that she would not want her son to be missing.

On September 15, appellant tried to run Sharon's car off the road. On one occasion he threatened Leonard Clarenbach, Sharon's stepfather. Appellant constantly parked across the street from the Clarenbach home. On September 25, Officer Donlon, of the San Carlos Police Department, responded to a radio call informing him that appellant was parked across the street from the Clarebach house, where Sharon was then staying, and harassing Sharon. Appellant denied knowing Sharon or any other resident in the house. On October 1, Towzey's car was bombed.

There were other incidents traceable to appellant indicating that he was continuing to harass and threaten Sharon, Clarenbach and Towzey, in spite of being warned in court to stay away from Sharon and warnings from the district attorney's office.

On December 16, Sharon was at a service station; appellant pulled in alongside her car. He advised her about the court appearance coming up in January on one of her complaints. She said she could do nothing about it as her stepfather was helping her and she was being advised by the district attorney's office.

Two days later, when Clarenback came out of his house, he started to pick up a paper carton lying in the driveway. It exploded, injuring him as hereinafter set forth. Wire found in appellant's apartment and that recovered from the explosion were the same kind of wire--ethyl cellulose insulated wire. It was testified that the wires could possibly have been adjacent pieces of wire in the bomb. The switch used in the explosion was purchased three days before by appellant. He admitted attempting to alter the job tag number on the switch. Adams, a former cellmate of appellant's, testified that appellant had solicited him in January to place a bomb in somebody's car, saying that the proposed victim had wronged him, that appellant had warned him once and now wanted him done away with for good. The car to be bombed was Towzey's. Appellant also asked Adams to put a knife in the chest of his girl friend's child.

Appellant admitted buying the switch. He intended to use it in a burglar alarm at his shed. He denied threatening Sharon, soliciting Adams, or having anything to do with the bombing of Towzey's car or the bomb which injured Clarenbach.

William Windle, the court bailiff, testified that while Clarenbach was drawing a diagram of the bomb Windle was seated at the far end of the jury box and heard appellant tell his attorney, 'It was not quite like that.'

1. Penal Code section 12310 is not unconstitutional.

Appellant contends that the term 'great bodily injury' under Penal Code section 12310 is unconstitutionally vague in failing to establish a clearly defined standard of guilt. Penal Code section 12309 contains substantially the same language, but speaks only of 'bodily injury' rather than 'great bodily injury.' The punishment prescribed under Penal Code section 12309 is not less than fifteen years; that under section 12310 is death or imprisonment for life. Appellant claims that, due to the great disparity between possible punishments under the two sections, it is imperative that a clear distinction be drawn between the acts prohibited.

Penal Code section 12310 is relatively new (effective August 19, 1970) and there is no case dispositive of the issue appellant has raised. However, the term 'great bodily injury' is employed in other sections of the Penal Code: section 213 (robbery with the infliction of great bodily injury); section 264 (rape with the infliction of great bodily injury); section 461 (burglary with the infliction of great bodily injury); and section 245 (assault by force likely to produce great bodily injury).

Lack of precision itself, in a criminal statute, is not offensive to the requirements of due process. "(T)he Constitution does not require impossible standards'; all that is required is that the language conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices . . .' (Citation.) . . . '. . . That there may be marginal cases in which it is difficult to determine the side of the line on which a particular fact situation falls is no sufficient reason to hold the language too ambiguous to define a criminal offense. . . .' (Citations.)' (Roth v. United States (1957) 354 U.S. 476, 491--492, 77 S.Ct. 1304, 1312, 1 L.Ed.2d 1498.)

'A statute is not necessarily invalid even though in its definition some matter of degree may be involved; it will not generally be held invalid if the language is sufficient to enable the attorney to explain to his client and advise what questions may be left to the determination of the jury, so that he will be able to govern himself accordingly; neither is it necessary that the words have a universally recognized meaning; that the charging words will ordinarily be held sufficient if their meaning can be fairly ascertained by references to similar statutes or other judicial determinations, or by reference to the common law, or to the dictionary, or if the words themselves had a common and generally accepted meaning; that the long continued use of words in a statute without question as to their sufficiency creates a presumption that they have come to be well understood by those to whom they apply. . . . That the courts will consider the underlying purpose of the law and although it might desire a little more certainty, as a general rule the court will uphold the validity of the statute and interpret it to the best of its ability, particularly when any attempt to make it more specific and certain, would tend to nullify its fundamental purpose . . . that where the statute involves some matters of degree as to which individuals and even jurors might reasonably disagree in their judgment, the statute will not for that reason alone be invalidated, . . .' (People v. Daniel (1959) 168 Cal.App.2d Supp. 788, 797--798, 337 P.2d 247, 253.)

With the foregoing principles in mind, the term 'great bodily injury' is sufficiently certain and definite to meet the constitutional requirements.

The legislative intent behind enactment of Penal Code sections 12309 and 12310 was to devise two degrees of punishment for persons who explode...