People v. Westoby

• Decision Date: 16 November 1976
• Docket Number: Cr. 15149
• Citation: 63 Cal.App.3d 790,134 Cal.Rptr. 97
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Gilbert WESTOBY, III, Defendant and Appellant.

Page 97

134 Cal.Rptr. 97

63 Cal.App.3d 790

PEOPLE of the State of California, Plaintiff and Respondent, v. Gilbert WESTOBY, III, Defendant and Appellant.

Cr. 15149.

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

Nov. 16, 1976.

Hearing Denied Jan. 27, 1977.

Clifford, Curry & Cherrin, Mervin N. Cherrin, Oakland, for defendant and appellant.

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

ELKINGTON, Associate Justice.

A jury found defendant Westoby guilty of violating Penal Code section 12303.2, in that he did 'recklessly or maliciously have in his possession a destructive device and explosive on a public street and highway, and near a private habitation, and in a public place ordinarily passed by human beings.' The jury had found him not guilty of the lesser and included offense proscribed by Health and Safety Code section 12305 under which it was charged that he 'did unlawfully and knowingly possess an explosive.'

I. Westoby first contends that the judgment must be reversed, and a new trial granted, 'because there was insufficient evidence from which to conclude that defendant possessed a destructive device In a reckless or malicious manner.' (Emphasis added.)

Substantial evidence (see People v. Redmond, 71 Cal.2d 745, 755, 79 Cal.Rptr. 529, 457 P.2d 321) was admitted at the trial from which the jury could reasonably have found the following to be true. Westoby had fashioned, and possessed under the charged circumstances, a pipe bomb complete with explosive contents, timer switch, batteries, and wires connected with an inside flashcube. With the wires in place a closing of the timer switch would have caused the device to explode.

Westoby's contention is based upon evidence that when the device was found, it was 'believed that one of the battery wires was disconnected,' and that the timer had not been set; thus making it 'readily apparent that the device . . . was inoperative and inert,' since it 'could not have been exploded without reconnecting the loose battery wire and setting the timer.'

The contention is patently without validity. A similar contention was found to be without merit in People v. Heideman, 58 Cal.App.3d 321, 130 Cal.Rptr. 349. One need not possess a destructive device already set to explode in order to violate Penal Code section 12303.2. The jury could reasonably have determined that Westoby's possession was either reckless Or malicious.

II. It is next urged that the court erred in not instructing the jury, Sua sponte, on an additional lesser and included offense.

There appear to be two lesser offenses necessarily included within the offense of Recklessly or maliciously having in one's possession a Destructive device and explosive, of which Westoby was convicted.

One is the offense Here mentioned for the first time, that proscribed by Penal Code section 12303, which provides that: 'Any person . . . who . . . possesses any destructive device . . . shall be punished by imprisonment . . ..' This offense is distinguishable from section 12303.2, in that the requirement that the possession be 'reckless or malicious' is absent.

The other lesser and included offense is that of which the jury found Westoby not guilty. It is proscribed, as noted, by Health and Safety Code section 12305, which states: 'Every person not in the lawful possession of an explosive who knowingly has any explosive in his possession is guilty of a felony.' In this offense also, the requirement of recklessness or maliciousness is missing.

It will be seen that one who recklessly or maliciously possesses a destructive device (Pen.Code, § 12303.2) necessarily possesses the explosive contained therein, for without it there could be no destructive device.

The jury, permitted to find that Westoby possessed a destructive device with its explosive, but without recklessness or maliciousness (Health & Saf.Code, § 12305), did not do so. Instead they found that he had possessed the destructive device with its explosive contents, recklessly or maliciously (Pen.Code, § 12303.2).

Westoby's instant contention that the trial court should, Sua sponte, have instructed the jury on the included offense of Penal Code section 12303, is valid. There is an obligation to instruct Sua sponte on all lesser and necessarily included offenses 'when the evidence raises a question as to whether all of the elements of the (greater) charged offense were present . . ..' (People v. Sedeno, 10 Cal.3d 703, 715, 112 Cal.Rptr. 1, 9, 518 P.2d 913, 921.) Here the prosecutor in charging, and the trial court by instructing on, the Health and Safety Code section 12305 offense, obviously concluded that the evidence would support a finding that Westoby had not acted recklessly or maliciously.

But the jury by their verdict necessarily concluded, on substantial evidence, that Westoby had in fact acted recklessly or maliciously. In a not dissimilar context, the court in People v. Sedeno, supra, 10 Cal.3d 703, 721, 112 Cal.Rptr. 1, 13, 518 P.2d 913, 925, stated: '(I)n some circumstances it is possible to determine that although an instruction on a lesser included offense was erroneously omitted, the factual question posed by the omitted instruction was necessarily resolved adversely to the defendant under other, properly given instructions. In such cases the issue should not be deemed to have been removed from the jury's consideration since it has been resolved in another context, and there can be no prejudice to the defendant since the evidence that would support a finding that only the lesser offense was committed has been rejected by the jury.' In the instant case, it must reasonably be said that any evidence or inference 'that would support a finding that only the lesser offense was committed (had) been rejected by the jury.' We accordingly find the rationale of People v. Sedeno, supra, applicable to Westoby's instant contention.

III. The stated charge against Westoby, of which he was found guilty, was that he had violated 'Penal Code Sec. 12303.2 (possession of destructive device--pipe bomb,' in that he 'did recklessly or maliciously have in his possession a destructive device and explosive on a public street and highway, and near a private habitation, and in a public place ordinarily passed by human beings.' The jury's verdict recited that he was found guilty of 'a violation of California Penal Code Section 12303.2, possession of destructive device-pipe bomb.'

The verdict was not 'uncertain,' as insisted by Westoby. "The form of the verdict is regarded as immaterial so long as the jury's intention to convict of the crime charged under the allegations of the information is unmistakably expressed." (People v. Savala, 2 Cal.App.3d 415, 419, 82 Cal.Rptr. 647, 649 (disapproved on other grounds, People v. Beagle, 6 Cal.3d 441, 452, 99 Cal.Rptr. 313, 492 P.2d 1).) '(W)hen the judgment record, by reference to the indictment, information or complaint, to which reference is specifically made, sufficiently shows the offense of which a defendant has been convicted, and for which he is sentenced, the reference to or description of the offense is sufficient, and . . . the defendant is not prejudiced by inaccurate statements with relation thereto, and the judgment is not void on that account.' (People v. Becker, 80 Cal.App.2d 691, 695, 181 P.2d 958, 961.) The jury's intent to convict Westoby of the greater Penal Code section 12303.2 offense is manifest.

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