People v. Snead

• Decision Date: 07 December 1993
• Docket Number: No. B055658,B055658
• Citation: 24 Cal.Rptr.2d 922,20 Cal.App.4th 1088
• Parties: The PEOPLE, Plaintiff and Respondent, v. Anthony Deshawn SNEAD, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 922

24 Cal.Rptr.2d 922

20 Cal.App.4th 1088

The PEOPLE, Plaintiff and Respondent, v. Anthony Deshawn SNEAD, Defendant and Appellant.

No. B055658.

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

Dec. 7, 1993.

Rehearing Denied Dec. 29, 1993.

Review Denied March 3, 1994.

[20 Cal.App.4th 1091] Carlo Andreani, San Francisco, under appointment by the Court of Appeal, for defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Carol Wendelin Pollack, Sr. Asst. Atty. Gen., Marc E. Turchin, Supervising Deputy Atty. Gen., and Richard B. Cullather, Deputy Atty. Gen., for plaintiff and respondent.

FRED WOODS, Associate Justice.

Convicted by jury of first degree murder (PEN.CODE, §§ 187¹, 189; count I) with two special circumstances found true (§ 190.2, subds. (a)(6) and (a)(17)), arson causing great bodily injury (§ 451, subd. (a); count II), arson of an inhabited structure (§ 451, subd. (b); count III), explosion of a destructive device causing death (§ 12310, subd. (a); count IV), and explosion of a destructive device causing bodily injury (§ 12309, count V) appellant contends the trial court committed instructional errors and the evidence is insufficient to sustain one of the special circumstances ("delivery" of a destructive device, § 190.2, subd. (a)(6)). We find no prejudicial error and affirm the judgment.

FACTUAL BACKGROUND

There being no insufficiency of evidence claim (except concerning a special circumstance), we synopsize the evidence. Our perspective favors the judgment. (People v. Barnes (1986) 42 Cal.3d 284, 303-304, 228 Cal.Rptr. 228, 721 P.2d 110.)

Three people were involved in the subject offenses. Each was tried separately. The evidence at appellant's trial, concerning the offenses, duplicated that of one of his confederates. On his appeal we provided this summary: "It was about 11:30 p.m., July 3, 1988, when Lisa Lee and her [two-and-a-half]-year-old son Dionsa returned home after an evening at grandmother's house. Lisa gave Dionsa a bath and brought him to his bedroom--the front bedroom, closest to the street. The lights were on and only thin curtains covered the two windows. By now it was almost midnight, Dionsa, naked from his bath, was on his bed jumping up and down. Lisa was reaching for her son's pajamas, her side to the windows, when she heard the window break. She looked at the window and saw a second 'cocktail'--a 'fireball'--fly into the room and roll under the bed. The bed went up in flames and she heard her 'little boy screaming 'cause he couldn't get off the bed.' Dionsa was burning from the neck down. He jumped off the end of the bed and ran into the hall. Lisa ran after him, tripped him, and by patting him and lying on top of him, put out the flames. With her boyfriend's help, she carried Dionsa outside. He was 'still sizzling'--you could hear it.

"Paramedics transported Dionsa to Martin Luther King Hospital. After a few hours he was transferred to the UCLA Burn Center and then, after a few days, to the burn institute in Boston. He died there on July 14." (People v. Thompson (1992) 7 Cal.App.4th 1966, 1969, 10 Cal.Rptr.2d 15.)

On July 19, 1988, appellant was interviewed by investigating officers. After initial denials, he admitted that he and two friends, and fellow gang members, had filled 40-ounce beer bottles with gasoline, inserted rag wicks in them, ignited them, and threw them through the victim's bedroom window. Appellant stated it was Leonard Nixon, not him, who threw the two lighted gasoline-filled bottles into the victim's house. He stated his bottle was not lit and he dropped, not threw, it.

DISCUSSION

1. Appellant contends there is insufficient evidence he "delivered" a destructive device within the meaning of section 190.2, subdivision (a)(6).

One of the alleged special circumstances was section 190.2, subdivision (a)(6). In pertinent part it reads: "The murder was committed by means of a destructive device ... that the defendant ... delivered ... and the defendant knew or reasonably should have known that his ... act ... would create a great risk of death to a human being...." (Emphasis added.)

Appellant contends that "delivered" does not include throwing and therefore the evidence is insufficient to sustain the special circumstance finding. He relies on People v. Clark (1990) 50 Cal.3d 583, 268 Cal.Rptr. 399, 789 P.2d 127.

Although People v. Clark involved the subject special circumstance, the facts concerned not a destructive device, as here, but an explosive. Clark had thrown gasoline into the victims' home and then threw highway flares which ignited not the gasoline but gasoline vapors. The People argued Clark had delivered an explosive.

The Supreme Court rejected the argument because neither gasoline nor flares satisfied the definition of an explosive. (Id. at pp. 601-605, 268 Cal.Rptr. 399, 789 P.2d 127.) Then--in a passage relied upon by appellant--the Court stated:

"Therefore, even were we persuaded that in this context the electorate intended something other than the common meaning of 'deliver'--'to take and hand over to or leave for another' which we address below, it is clear that the defendant did not deliver an 'explosive.'

"The People also fail to propose a theory under which defendant's use of gasoline vapor could be deemed to meet the further requirement of subdivision (a)(6) of section 190.2 that murder be committed by means of an explosive 'that the defendant mailed or delivered, attempted to mail or deliver, or cause[d] to be mailed or delivered, ...' Assuming arguendo that throwing a substance through a window or door constitutes 'delivery' within the meaning of subdivision (a)(6), the substance that defendant threw was not, as we have shown, an explosive. It was gasoline. The gasoline vapor was not 'delivered.' It arose by an independent physical process after the gasoline was thrown into the home. And the vapor alone was not explosive until it combined with air in the required proportion. Manifestly, defendant did not deliver the air that was already present in the victims' home. Thus, even if gasoline vapor were an explosive, or the manner in which gasoline is used were a basis for considering it an explosive, defendant could not be found to have killed by means of delivery of an explosive, and thus his conduct was not conduct described in subdivision (a)(6)." (People v. Clark, supra, at pp. 604-605, 268 Cal.Rptr. 399, 789 P.2d 127, original emphasis.)

It is clear from this passage that Clark did not decide whether "deliver" includes throwing. Rather than decide the matter, Clark assumed "arguendo that throwing a substance through a window ... constitutes 'delivery'." (Id. at p. 605, 268 Cal.Rptr. 399, 789 P.2d 127.)

Its intimation that the only common meaning of deliver is to "hand over" or "leave" was neither necessary for its decision nor accurate. As Justice Kaufman noted in his concurring and dissenting opinion: "[T]he majority's characterization of the word 'deliver' is overly restrictive and unduly pejorative. Presuming a defendant kills with a 'true' explosive, does the majority really mean to say he would be death eligible only if he walked up the sidewalk and put the explosive directly into either the mailbox or the recipient's hands? I think not. (See Webster's New Internat. Dict. (2d ed. 1957) p. 693: 'deliver' means 'To give or put forth in action or exercise; to discharge; as, to deliver a blow; to deliver a broadside or a ball.' 'Delivery' means 'Act or manner of sending forth, discharging, or throwing....')" (Id. at p. 649, 268 Cal.Rptr. 399, 789 P.2d 127. Original emphasis.)

We are further persuaded that the legislature intended "deliver" to include throwing (and shooting ) by its definition of destructive device. The term includes "[a]ny projectile ... including ... tracer or incendiary ammunition" (§ 12301, subd. (a)(1)), "[a]ny grenade, explosive missile, or similar device or any launching device therefor" (§ 12301, subd. (a)(2)), any ammunition of a caliber greater than .60 (§ 12301, subd. (a)(3)), any rocket-propelled projectile with a diameter greater than .60 inch (§ 12301, subd. (a)(4)), and "[a]ny breakable container which contains a flammable liquid with a flashpoint of 150 degrees Fahrenheit or less and has a wick or similar device capable of being ignited ..." (§ 12301, subd. (a)(5)).

Such destructive devices are--inherently--shot, launched, and thrown. To constrict "deliver" to mean only "hand over" or "leave" is to nullify the statute rather than "effectuate the purpose of the law." (West Pico Furniture Co. v. Pacific Finance Loans (1970) 2 Cal.3d 594, 607, 86 Cal.Rptr. 793, 469 P.2d 665.)

We hold that, within the meaning of section 190.2, subdivision (a)(6), "delivers" includes throwing.

2. Appellant contends the trial court erred in defining "delivery" to the jury.

As part of its special circumstance instructions the trial court gave the following (prosecutor drafted) special instruction: "Throwing a substance through a window constitutes 'delivery' ".

Appellant contends the instruction "directed a verdict on the delivery element and usurped the jury's exclusive fact-finding province." We disagree.

"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.) "Deliver" was such a term. ²

But in explaining or defining a term--which is an offense element--a trial court must exercise care. The " 'law/fact' distinction" (People v. Figueroa (1986) 41 Cal.3d 714, 733, 224 Cal.Rptr. 719, 715 P.2d 680) is elusive and easily breached.

We agree with appellant that the subject instruction was not a model. It was fact intrusive. More appropriately, and neutrally, the trial court might have stated: "For purposes of the special circumstance, one may 'deliver' a destructive device by throwing it."

Any...