People v. Quinn

• Decision Date: 13 April 1976
• Docket Number: Cr. 14530
• Citation: 57 Cal.App.3d 251,129 Cal.Rptr. 139
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Kevin Patrick QUINN, Defendant and Appellant.

Page 139

129 Cal.Rptr. 139

57 Cal.App.3d 251

PEOPLE of the State of California, Plaintiff and Respondent, v. Kevin Patrick QUINN, Defendant and Appellant.

Cr. 14530.

Court of Appeal, First District, Division 1, California.

April 13, 1976.

Lawrence R. Horn, San Francisco, (Court Appointed Counsel), for defendant and appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Crim. Div., Edward P. O'Brien, Asst. Atty. Gen., W. Eric Collins, Sanford Svetcov, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

THE COURT: ^*

This is an appeal from a judgment sentencing appellant to state prison upon his convictions of burglary in the second degree, receiving stolen property, and possessing and exploding a destructive device. Only the last conviction is challenged on this appeal.

The evidence showed that on the afternoon of October 16, 1974, appellant was observed placing some yellow and black cord around a stick and then affixing a lead weight, a fuse, and a metal cylinder. Appellant told two witnesses that the yellow and black cord was 'nitro' cord. Later testimony showed that nitro cord is an explosive material which can do the work of dynamite, although it is sometimes used merely to set off dynamite. Appellant also described the metal cylinder as a 'blasting cap' and called the constructed device a 'bomb.'

Appellant told the witnesses that he was going to explode the device at 10:00 p.m. that evening in the car of Inspector Sisk of the Mill Valley Police Department. Sisk had previously arrested appellant in conjunction with a burglary at the home of Daniel Ellsberg.

One of the above witnesses observed appellant drive to the Mill Valley police station that evening around 10:00 p.m., and subsequently heard an explosion, which sounded like a barrel or cherry bomb. Sisk's car was found to have been damaged by an explosive device. Appellant later told the other witnesses that he had blown up the car, but he said the 'bomb' had not gone off to its full effect.

Inspector Sisk later recovered the lead weight, which was a sinker, from his damaged car. At some point after the explosion, just when is not made clear in the record, a 14-year-old informant of Sisk's brought him an 18-inch piece of yellow cord. These items were sent to a laboratory for analysis, but were never produced at trial.

By the time of the preliminary hearing, defense counsel knew of these items and their submission to the laboratory. He never requested to examine these items prior to trial nor did he ask for any available report.

At the conclusion of the trial, defense counsel argued that all evidence concerning the yellow and black cord used by appellant should be excluded as the defense had not had a chance to examine the 18-inch yellow cord and determine whether It was an explosive cord, or merely a slow burning safety fuse cord. The exclusion motion was denied. Appellant now contends that the yellow cord and the sinker sent to the laboratory were material on the issue of guilt or innocence, and he was prejudiced by the prosecution's wrongful 'suppression' of them.

We have reviewed the arguments concerning the alleged suppression of material evidence by the prosecution and have concluded that no violation of any constitutional right occurred. The doctrines and cases relied upon by appellant require that there be suppression of evidence, regardless of the prosecutor's intent, in the face of a defense request for it; that the evidence be of a favorable nature for the defense; and that the evidence be material. (See Moore v. Illinois (1972) 408 U.S. 786, 794--795, 92 S.Ct. 2562, 33 L.Ed.2d 706; Brady v. Maryland (1963) 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215; Bellizzi v. Superior Court (1974) 12 Cal.3d 33, 36--37, 115 Cal.Rptr. 52, 524 P.2d 148, cert. den. 420 U.S. 1003, 95 S.Ct. 1445, 43 L.Ed.2d 761; People v. Kiihoa (1960) 53 Cal.2d 748, 752--753, 3 Cal.Rptr. 1, 349 P.2d 673.)

We note that there was never any defense request for the production of this evidence until the trial's conclusion, despite knowledge of its existence. Moreover, there was nothing to show that the yellow cord sent to the laboratory was relevant or material to this case. The prosecution never sought to admit any evidence regarding this cord; thus, there can be no complaint about any alleged suppression.

Although appellant's argument below and on appeal is primarily directed at the yellow cord, the materiality of the lead weight was considered by the trial court and by us. The trial court said the sinker was not material as there was no issue over the projectile nature of the explosive device. Thus, the materiality of the sinker is not apparent. In any event, it is clear that there was nothing about the weight that was favorable to appellant (see Moore v. Illinois, supra, 408 U.S. 786, 794--795, 92 S.Ct. 2562, 33 L.Ed.2d 706; Brady v. Maryland, supra, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215), or that might have helped prove his innocence. (See Bellizzi v. Superior Court, supra, 12 Cal.3d 33, 36--37, 115 Cal.Rptr. 52, 524 P.2d 148; People v. Kiihoa, supra, 53 Cal.2d 748, 752--753, 3 Cal.Rptr. 1, 349 P.2d 673.)

Appellant's second contention is also unpersuasive. The information charged that appellant violated section 12303.3 ¹ of the Penal Code in that he did possess and explode a destructive device with the intent of wrongfully injuring and destroying property.

The term 'destructive device' as used in section 12303.3 is defined in section 12301 of the Penal Code as follows:

'(a) The term 'destructive device,' as used in this chapter, shall include any of the following weapons:

(1) Any projectile containing any explosive or incendiary material or any other chemical substance, including, but not limited to, that which is commonly known as tracer or incendiary ammunition, except tracer ammunition manufactured for use in shotguns.

(2) Any bomb, grenade, explosive missile, or similar device or any launching device therefor.

(3) Any weapon of a caliber greater than .60 caliber which fires fixed ammunition, or any ammunition therefor, other than a shotgun or shotgun ammunition.

(4) Any rocket, rocket-propelled projectile, or similar device of a diameter greater than 0.60 inch, or any launching device therefor, and any rocket, rocket-propelled projectile, or similar device containing any explosive or incendiary material or any other chemical substance, other than the propellant for such device, except such devices as are designed primarily for emergency or distress signaling purposes.

(5) Any breakable container which contains a flammable liquid with a flash-point of 150 degrees Fahrenheit or less and has a wick or similar device capable of being ignited, other than a device which is commercially manufactured primarily for the purpose of illumination.

(b) The term 'explosive,' as used in this chapter, shall mean any explosive defined in Section 1200 of the Health and Safety Code.'

As noted, the term 'explosive' as used in section 12303.3 is defined by section 12000 of the Health and Safety Code.

Appellant contends that the trial court incorrectly construed sections 12301 and 12303.3 to include the device he used as the term 'bomb' in subdivision (a) (2) of section 12301 should be construed to mean a projectile-type bomb and not merely a homemade, explosive-type bomb, as was used in this case.

Appellant's contentions are not well taken. First, the court's interpretation did not flout any legislative mandate to keep the categories of 'destructive devices' and 'explosives' mutually exclusive; there is no such mandate. Section 12303.3 of the Penal Code refers to the possession and explosion of either type of entity. Section 12000 of the Health and Safety Code defines 'explosive,' but says only that for purposes of 'this part,' meaning Part I of Division 11 of the Health and Safety Code, 'explosive' cannot include a 'destructive device.' There is no similar provision in either section 12301 or 12303.3; thus, there is no legislative mandate that explosives not be included in the category of destructive devices.

Secondly, the trial court's construction did not violate the rule of interpretation set down in Palermo v. Stockton Theatres, Inc. (1948) 32 Cal.2d 53, 59--60, 195 P.2d 1. This rule is violated only if an unconstitutional construction is placed on a statute when a constitutional one was available. Since we have concluded below that the term 'bomb' is not vague...