PEOPLE v. TURNAGE

Respondent's Petition for Review

Cal.May 12, 2010

4 S182598 Jn the Supreme Court of the State of Caltfurnia EI CO PY PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, Case No.Se v. SUPREME COURT sn, FILED \BARRY ALLEN TURNAGE, CRC b Defendant and Appellant. MAY 12 72010 8 25(0) Frederick K. Ohirich Clerk Third Appellate District, Case No. C059887 Yolo County Superior Court, Case No. 065019 The Honorable Thomas Edward Warriner, Judge Deputy PETITION FOR REVIEW EDMUNDG. BROWN JR. Attorney General of California DANER. GILLETTE Chief Assistant Attorney General MICHAELP. FARRELL Senior Assistant Attorney General RACHELLE A. NEWComsB,Acting Supervising Deputy Attorney General PAUL E. O'CONNOR Deputy Attorney General State Bar No. 170829 1300 I Street, Suite 125 P.O. Box 944255 Sacramento, CA 94244-2550 Telephone: (916) 324-5290 Fax: (916) 324-2960 Email: Paul.OConnor@doj.ca.gov Attorneysfor Plaintiffand Respondent TABLE OF CONTENTS Page Issues Presented oo... cece ecceeceeceeseeseeeceeseeeseseeseecsaeesscssecsaesesesessesssnecesseersesees I Summary of Argument ........seebe tecceeeceesctecesseeeteeeeeneetetetttteettaeceseae L Statement of the Case ......ccecceccececccecseesseesseeseeeesesesesessesentecstestestaneeesLee Reasons for Granting the Petition....eccecsceeeeseeees beceeeeseeeeeescueeeeerseteeeeesesenees 3 I. Becauseit is at least conceivable that appellant's placement of a false bomb was morelikely to result in sustained fear than was placement of a false WMD,it does not violate equal protection that no affirmative proofof sustained fear is required for felony punishmentofappellant's offense, even though affirmative proof of sustained fear is required for the newer offense of placing a false WMD........... cececess 3 A. Legal standards 2000.0... ceceecceceeesscessceeesteeeeeeesenscereenss 4 B. Application...ceoneeeeeeeeees ecaceceeaaeeetgeeeeteeeeaeeees 6 OL. The court of appeal’s remedy, reducing appellant’s sentence to a misdemeanor,is contrary to legislative intent in that it precludes felony punishmentfor appellant even if the People could prove appellant - Caused sustained fear oo... ecececeeeeecssceseeeesseeessesessesssesseaee 10 CONCLUSION... cesecece eee teeeeeesteeneeeeeteneeneteeeeneseeteaesaset eteceeeeeenseneens 18 TABLE OF AUTHORITIES Page CASES Cunningham v. California . (2007) 549 ULS. 270eeeeeceeesaeeeaseuseceeeceeeeeeeuseeseceesenteeteeceteeesereeens 16 Edelstein v. City and County ofSan Francisco’ (2002) 29 Cal4th 164.0... cccccecceceeceereseeeecestesenscnscessecesesesesseesesnessarenenees 4 Heller v. Doe | (1993) 509 U.S.312 Le eceececeeeenececeeeeeseeeneseeeeeneeseeeessesssesnessesteseees 5, 6, 8,9 ° Inre Kay (1970) 1 Cal.3d 930oestestes:seceseeesteteneesresenetseee 14, 15 Kasler v. Lockyer (2000) 23 Cal4th 472 oo... ceceeeeceececteceeceeeeeeceeeteseeeseasesneeseeseeseeecnecseeenseess 10 Kopp v. Fair Political Practices Com. (1995) 11 Cal.4th 607 oo...cece cee eeceeeseeeesceseeseensseseeeseesesseseesseeeas 13, 14, 15 People v. Anderson (2009) 47 Cal.4th 92 ooo eieccececeseencceeseeeeseeeeneesecseeessaeeeesesessesestaseneeeessens 15 People v. Falsetta (1999) 21 Cal.4th 903 oo... eeeeeteeeeceseeeeeeeceeeseceeeeseeceeeesseeeseecseseseneesereseeea 4 People v. Hofsheier (2006) 37 Cal.4th 1185 oo.cic ceecesecseceeeseeeeenseeeeeeseenneeseeseeaeeeseees 10, 12, 14 People v. Liberta (1984) 64.N.Y.2d 152, 485 N.Y.S.2d 207...eeecece eee eereeeeeenaes 14 People v. Roder (1983) 33 Cal.3d 490 ooo.eee eeceeeeedecceeceeecseeeseeeeeceseeeseneeeesisseneeesreees 11, 16 People v. Sandoval. . oo (2007) 41 Cal.4th 825 ooo. ceecceceeteececneeeneeneceeceeeecieseseesensseseeseneeeeseeenerey 11 People v. Silva (1994) 27 Cal.App.4th 1160.........seseeseeaceeceatessceceseeeneeeseereneeas Laceeeneeeeteereeees 8 il People v. Wilkinson (2004) 33 Cal.4th 821 000.vetevesseceecececaes“vacacececaaeeeusessccccceducsececueeceseceuuess 6,9 Plas v. State (Alaska 1979) 598 P.2d 966 wooo. ecccceccsecccceescessecsecesscecsesceeseeeeseceeeeescce 14 State v. Books (lowa 1975) 225 N.W.2d 322 oooiiccecccceecessessctsecssesesessessececsesteseesesceseseeces, 14 STATUTES Penal Code § 148.1, subd. (d)oe.weeteseesesceececeesscescsseccusaeeageedeesausaaasestetacececsseereeceess 2 § 408 ieeececcccccsccceccsceessenssenescneeunesuaseeseesausssessssesssscssettiessueteeseececee. 14 § 496 oooeccccccecsccseceseecsareeseuesessusttaseueresesersteteseseeresteteseeeeescec. 11, 16 § 667, sUbC. (€)(2) oo... cceeccceecesecesecesesaerecssesersbusesesetsssececeetenetnececeeccce. 12 § 10238 ieeeee ccc eecsccesceseceseeassestcsssecesessaesessessstessaedvesessecseecesseneseseceeeeesccce. 15 § 1170.12, SUDA. (C)(2)..ceceecceceecseccscecsectecseessesetecesessnseessuessastersseteestuseceeeeses 12 § 11417se eceeececeeceeeaeeeeseseesecesasseecessssceesessasueeeeetecsuesestsseeeseces 7 § 1418cececesscceseseaseesntesseecseseceueasesanecesseeeitettnseee beceeee 3 § 114 18.5, subd. (b) oo. cccccscsccccesssssssessesseseesstsisssssssessessecsscssevessseesesssteeeeeeesee 13 CONSTITUTIONAL PROVISIONS First Amendment........0....ccccee:cee sedsesusccceceeseseeseeseeeeterscasesseessessseceseceeueettneseerens 14 OTHER AUTHORITIES Equal Protection Clause............ sesueseeeeeesees seesssssesssetessseseasusessenstuessssesesssneseeesed 8 ili The People of the State of California hereby petition this Court to grant review to settle important questions of law concerningthelegislative distinction between false bombs and false weapons of mass destruction (WMDs) and judicial reformation of the false bombstatute. ISSUES PRESENTED 1. Where there is a conceivable basis for distinguishing between the likelihood that fear will actually result from placement of an object intended as a false bomb, versus an object intended as a false WMD,did the Legislature violate the guarantee of equalprotection ofthe laws by conditioning felony punishment on affirmative proof of resulting fear as to the false WMD,but not for the false bomb?’ 2. Even if equal protection of the laws required identical proofs in each context to make felony punishmentavailable, did the Court of Appeal adhereto legislative intent by precluding availability. of felony punishment for appellant, rather than permitting the People to cure any inequality by proving that sustained fear resulted from appellant's placement of a false bomb? SUMMARY OF ARGUMENT In a partially published opinion, the Court of Appeal found that the Legislature denied equal protection to persons who place false bombs, comparedto persons whoplace false WMDs,in the method by which the Legislature madefelony punishmentavailable. That finding — that a legislative schemehad to be judicially reformed in order to be made ‘constitutional — is an issue of great importance, requiring statewide uniformity. The finding was wrong underbinding precedent and warrants review. ' The Court of Appeal remedied the alleged defect by precluding felony punishmentagainst appellant, barring the otherwise proper application of the Three Strikes Law. The judicial act of exempting appellant's offense, and narrowing the reach of the Three Strikes Law byjudicial reformation, presents an issue of great importance, requiring statewide uniformity. That _ judicial act was contrary to the evident intent of the Legislature to ensure availability of felony punishment — with the accompanying impactofthe Three Strikes Law — at the very least in each instance where placementof false bombs or false WMDsresulted in sustained fear. The Court of Appeal's mannerofjudicial reformation was therefore wrong under binding precedent, and review is warranted. STATEMENT OF THE CASE In 2006, appellant placed a false bomb near a government building (a dispatch center). (IRT 33-54, 92, 95-96, 108, 110.) The false bomb wasa small box with “C-4” written on the front and an Americanflag sticking out of the top. (IRT 40, 52.) In 2008, the Yolo CountyDistrict Attorney charged appellant with placing a false bomb (Pen. Code, § 148.1, subd. (d)) and alleged that appellant had twoprior “strike” convictions. (ICT 104-105.)' The jury found appellant guilty of placing the false bomb and foundtruethe prior- conviction allegations. (ICT 206, 241, 242.) Appellant was sentenced to a total prison term of 30 yearsto life. (IICT 330-331.) | Appellant appealed. He argued, andin ana partially published opinionthe Court of Appeal agreed, that his felony punishment underthe - false bombstatute violated equal protection because the statute imposed a felony for placing a false bomb without requiring affirmative proofthat sustained fear resulted, but felony treatment for placing false WMDsdoes require affirmative proofthat sustained fear resulted. ' All further undesignated statutory references are to the Penal Code. ~ Section 148.1, subdivision (d), will be cited as section 148.1(d). To remedy the constitutional violation that it had found in the Legislature's methodofdistinguishing the necessary proofs, the Court of Appeal did not remandfor the People to prove sustained fear as a condition of retaining the felony punishment. The Court failed to do so even though the Legislature had already authorized such punishment for conviction of the false bomb offense for which appellant had already been convicted. Instead, despite a rehearing petition from the People onthat precise point, the Court of Appealleft in place its ruling outright barring felony punishmentfor appellant, and reduced appellant's offense to a misdemeanor. (Attachment A [Court of Appeal opinion]; see Court of Appeal order denying rehearing].) REASONS FOR GRANTING THE PETITION I. BECAUSE IT IS AT LEAST CONCEIVABLE THAT APPELLANT'S PLACEMENTOF A FALSE BOMB WAS MORELIKELY TO RESULT IN SUSTAINED FEAR THAN WAS PLACEMENT OF A FALSE WMD,IT DOES NOT VIOLATE EQUAL PROTECTION THAT NO AFFIRMATIVE PROOF OF SUSTAINED FEARIS REQUIRED FOR FELONY PUNISHMENT OF APPELLANT'S OFFENSE, EVEN THOUGH AFFIRMATIVE PROOF OF SUSTAINED FEAR IS REQUIRED FOR THE NEWER OFFENSE OF PLACING A FALSE WMD . A person whoplaces a false bomb, with intent to cause fear, is guilty ofa crime punishable alternatively as a felony or misdemeanor, withoutthe. need for the prosecution to affirmatively prove that sustained fear resulted. ~ (§ 148.1(d).) In contrast, a personwho places a false WMD, with the intent to cause fear, is guilty of a crime which is punishable as a misdemeanorin > the absence ofproof of sustained fear, and punishable as a felony only upon’ affirmative proofof sustained fear. (§ 11418.1) Appellant argued,andthe _ Court of Appeal agreed, that no rational basis exists to distinguish between placing a false bomb andplacing a false WMD. Accordingly,the Court of | Appeal concludedthatthe statutes’ differing proof requirements for felony punishmentviolated equal protection. However, the Court of Appeal was required to affirm the Legislature's methodof distinguishing between proofs necessary for the different. offenses unless and until such method's unconstitutionality was proved "clearly, positively, and unmistakably" - with all "presumptions and intendments" in favor of rejecting appellant's challenge. (People v. Falsetta (1999) 21 Cal.4th 903, 912-913.) Andin light of the great deference to be paid to the Legislature in making such distinctions, neither appellant's showing northe reasoning of the Court of Appeal met that heavy burden.. To the contrary, it was not clearly, positively, and unmistakably proven that there is no conceivable basis to find that at least sometimes the placement of a false bombis worse than the placement of a false WMD. Rather,it is at least conceivable that sometimes a false bomb is more readily perceived as a dangerous object, while a false WMD morelikely may not be perceived as intended to be a dangerous objectatall. A. Legal Standards — This Court has admonished: “Generally, when weinterpret a provision of the California Constitution that is similar to.a provision of the federal Constitution, we will not depart from the United States Supreme Court’s construction of the similar federal provision unless weare given cogent reasonsto do so.” (Edelstein v. City and County ofSan Francisco (2002) 29 Cal.4th 164, 168.) . In turn, the United States Supreme Court has described the rational basis standard for review of equal protection claims in strong terms which bar judges from engaging in examination of acts within the province of the legislative branch of government: | | We manytimes have said, and but weeks ago repeated,that rational-basis review in equal protection analysis “is not a license for courts to judge the wisdom,fairness, or logic of legislative choices.” [Citations.] [Citations.] Nor doesit authorize “the judiciary [to] sit as a superlegislature to judge the wisdom ordesirability of legislative policy determinations made in areas that neither affect.fundamental rights nor proceed along suspectlines.” [Citation.] For these reasons,a classification - neither involving fundamental rights nor proceeding along suspectlines is accorded a strong presumption ofvalidity. [Citations.] Such a classification cannot run afoul of the Equal. Protection Clause if there is a rational relationship between the disparity of treatment and somelegitimate governmental purpose. [Citations.] Further, a legislature that creates these categories need not “actually articulate at any time the purpose or rationale supportingits classification.” [Citations.] Instead, a classification “must be upheld against equal protection challenge if there is any reasonably conceivable state offacts that could provide a rational basis for the classification.” [Citations.] A State, moreover, has no obligation to produce evidence to sustain the rationality of a statutory classification. “f{A] legislative choice is not subject to courtroom factfinding and maybebased onrational speculation unsupported by evidence or empirical data.” [Citations.] A statute is presumed- constitutional, [citation], and “[t]he burden is on the one attacking the legislative arrangement to negative every conceivablebasis which might support it,” [citation], whether or not the basis has a foundation in the record. Finally, courts are compelled underrational-basis review to accepta legislature’s generalizations even whenthereis an imperfect fit between means and ends. A classification does notfail rational-basis review becauseit “ ‘is not made with mathematical nicety or because in practiceit results in some inequality.’ ”’ [Citation.] “The problems of governmentare practical ones and may justify, if they do not require, rough accommodations — illogical, it may be, and unscientific.” [Citations.] . (Heller v. Doe (1993) 509 U.S. 312, 319-321, emphasis added.) While the high court has observedthat there must be “somefooting in the realities of the subject addressed by thelegislation” (Heller v. Doe, supra, 509 US. at p. 321, emphasisadded), that merely means a court may intervene whenthe “statutory classification” is one that “ ‘ “rests on 9909099 grounds wholly irrelevant to the achievementof the State’s objective (id. at p. 324, emphasis added). Andit is not irrational to impose disparate requirements of proof — even assumingpotentially similar factual results — if it is conceivable that there is a difference in how readily the operative facts can be ascertained. (/bid.) In similar fashion, this Court in People v. Wilkinson (2004) 33 Cal4th - 821, rejected the defendant’s argument that his equal protection rights were violated by an irrational statutory scheme which punished the “lesser” | offense of battery on a custodial officer without injury more severely than . the “greater” offense of battery on a custodial officer with injury. This Court found the defendant’s premise — that battery withoutinjury is always a less serious offense than battery with injury — to be questionable. (People v. Wilkinson, supra, at p. 839.) Indeed, in refutation of the defendant’s premise, this Court provided an example of “a hypothetical defendant who, in the course of grabbing the arm ofa correctional officer, inflicts a puncture wound with her fingernail that requires medical attention” compared to a “defendant whorepeatedly hits and kicks the correctional officer, intending to causeserious injury but does not do so through nolack of effort.” (/bid., internal quotation marks omitted.) Thus, the statutory schemewasneitherirrational nor offensive to equal protection principles because the Legislature could have believed that the “ostensible ‘lesser’ offense . . . sometimes may constitute a more serious offense and merit greater punishment than the ‘greater’ offense.” (/bid., emphasis added.) B. Application It is both conceivable and logical that a principal harm resulting from placementofafalse bomb or WMD isthe fear that results once another person mistakenly perceives the item to be a bomb or WMD.Andit is conceivable that there may be differences between the likelihood that a false bombwill trigger such perception andthe likelihoodthat a false WMDwill trigger such perception. . It would notbeirrational to speculate that, given the long-standing public exposure to bombsin their many forms,the typical defendant attempting to makeanitem looklike a bombwill have a considerable likelihood of success. Thus, it would not beirrational to speculate that the - typical innocent person encountering the item will be likely to perceive the: item as a bomb. Conceivably, it is easy enoughto seal a box with a ticking clock inside, orfashion a device with tell-tale wires exposed(things commonly shownontelevision orin movies), to create an objectlikely to be perceived as a bomb. Hence,it is rationalto speculate that in the great majority of cases a defendant whosets outto create fear, by means of a placing a false bomb, will succeed in creating sustained fear. {n contrast, public exposure to WMDsisfar less long-standing, andit is at least reasonably conceivable that for many persons — both defendants and innocent membersof the public, even if to different degrees — the appearance of WMDs is not so readily known. Items intended to falsely represent WMDsinclude manydifferent objects (see § 11417) that an average person might readily dismiss, unawarethat the (false) items were evenintendedto appear dangerous. For example, a false WMDcould simply be an envelope containing trace amounts of talcum powder — that an average person, uponreceipt, might readily dismiss as not intended to represent a dangerous item. Alternatively, a bottle or vial with liquid inside, labeled (or not) with the nameof an obscure dangerous chemical agent, may be placedand thus encountered in many areas where (irrespective of the defendant’s intent) the item simply may be dismissed, possibly as only cleaning material. Thus, it is conceivable that a defendant whosets outto create fear, by meansofa placing a false WMD,will be less. likely to create sustained fear. And becauseit is conceivably less certain that a false WMD will create fear, a legitimate governmental objective would be to decline, at the present time, to extend felony treatment to placement of false WMDsin the absence of some assurancethat fear actually resulted from this new form of crime.” | It does not suffice, to prove the unconstitutionality of a legislative scheme, that a court might suspectit is unfair, imperfect, illogical, or at times inequitable. (Heller v. Doe, supra, 509 U.S. at pp. 319, 321.) Therefore, it is not unconstitutional for the false bomb and false WMD statutes to (1) operate in light of that conceivable difference in the likelihood of resulting fear, by (2) requiring actual proof of fear in one case, but not the other, to obtain felony treatment. In any event, there is considerable logic inthe different requirements of proof. Asstated, a conceivable difference is that placement of a false WMD is somewhat(or at least sometimes)less likely than a false bomb to succeed in creating fear. The statutory scheme requires affirmative proof of success in the formercase to obtain felony punishment,and does not require affirmative proof of successin the latter to obtain felony punishment. It cannotbe said that imposing the requirement of proof only in the more uncertain false WMDcontextis “wholly irrelevant” to a legitimate governmental objective oflimiting the availability of felony punishment absent some reasonableassurance that harm has actually resulted from the newerform ofcrime. . > « «The Legislature is not bound,in order to.adopt a constitutionally valid statute, to extendit to all cases which might possibly be reached, but is free to recognize degrees of harm andto confine its regulation to those classes of cases in which the need is deemed to be the most evident.’ [Citation.] ‘[T]he Equal Protection Clause does not require that a State — must choose between attacking every aspect of a problem ornotattacking . the problem atall.’ [Citation.]” (People v. Silva (1994) 27 Cal.App.4th 1160, 1170.) The Court of Appeal overlooked this conceivable basis for distinction whenit did not“divine any plausible reason” for felony punishmentfor placing a false bomb withoutaffirmative proof that sustained fear resulted.? (AttachmentA at p. 12.) The Court of Appeal focused on a beliefthat WMDsand bombsare legally indistinguishable. (Ibid) Butit is unnecessary to explore the correctnessofthat belief regarding real WMDs- and bombs, whoseharm is inflicted whetherornot the victims were aware of their presence andnature. Here, the Legislature's method of distinction focuses on harm caused by false WMDsand bombs. It is at least conceivable that a substantial quantum ofthat harm is resultingfear — and fear results only when false device is recognized as the dangerous objectit is intended to represent. If the device is not recognized for whatit is intended to represent, then it will not instill fear. It is thus at least conceivable that “sometimes”the false WMDis distinctly less harmful(i.e., less likely to induce fear becauseit is less likely to be perceived as a dangerous object) than a more recognizable false bomb. It follows, under Heller v. Doe, supra, and Peoplev. Wilkinson, supra,that it does not deny equalprotection that felony punishmentfor placing a false WMDrequires actual proofoffear, but felony punishmentfor placing a false bomb doesnot.‘ ; Although the People did not develop this point until the rehearing brief, it was the affirmative burdenofthe challenging party “to negative every conceivable basis” which “might” makethe statutory classification rational (Heller v. Doe, supra, 509 U.S. at p. 320), and the effect of the Court of Appeal's erroneousruling would notbe limited to the parties to this litigation. “EF inally, this Court should not be overly concerned with whatthe Legislature actually contemplated in creating this legislative distinction. (See AttachmentA at pp. 8-9, 12-13.) In the context of equal protection challenges, this Court has explained that“it is irrelevant whether the perceived reason forthe challenged distinction actually motivated the | (continued...) This Court therefore should grant review to settle the important question whetherthe judicial power properly extends to precluding the Legislature from making its chosen distinction between the proofs necessary to make felony punishment available for placementoffalse bombsversus placementof false WMDs. — U. THE COURT OF APPEAL’S REMEDY, REDUCING APPELLANT’S SENTENCE TO A MISDEMEANOR, IS CONTRARY TO LEGISLATIVE INTENT IN THAT IT PRECLUDES FELONY PUNISHMENT FOR APPELLANT EVEN IF THE PEOPLE COULD PROVE APPELLANT CAUSED SUSTAINED FEAR ~ The Court of Appeal's remedy — reducing appellant’s sentence to a _misdemeanor— effectively judicially reformedthe statute to preclude felony punishmentfor appellant, irrespective of whether he caused sustained fear. In doing so, the Court of Appeal deprived the People of the opportunity to prove that appellant caused sustained fear when he placed the false bomb, thus warranting felony punishment. Because any remedyforthe alleged constitutional defect should track the result that the Legislature mostlikely “would have wanted if thestatute was found unconstitutional, and because the Legislature clearly wanted the option of felony punishmentfor a person (...continued) a legislature.” (People v. Hofsheier (2006) 37 Cal.4th 1185, 1201.) Rather, while a court should declineto invent a fictitious purpose that reasonably could not have been within the legislature’s contemplation (id. at p. 1201), it is unnecessary to show that such reason actually was affirmatively contemplated. Instead, a statute’s differentiation based on a challenged classification (other than race or another protected category) must be upheld against an equal protection challenge “if there is any reasonably conceivable state of facts that could provide a rational basis for the classification” (Kasler v. Lockyer (2000) 23 Cal.4th 472, 481-482, internal quotation marks, emphasis,and citations omitted; Hofsheier, supra, at pp. 1200-1201). Thus, equal protection requires only that the statutory classification be rationally related to.a conceivable (even if not _ affirmatively knownto bethe actual) legitimate governmental purpose. 10 such as appellant (who caused sustained fear), the Court of Appeal's remedy is erroneous. In People v. Sandoval (2007) 41 Cal.4th 825, this Court clarified that a statute could bejudicially reformed to renderit constitutional. If the Legislature’s intent would best be furthered by revising thestatute rather than invalidatingit, the judiciary has the authority to revise the statute ina- mannerthat avoids constitutional problems. (id. at pp. 844, 845.) Forthis proposition, the Sandoval court relied on, inter alia, People v. Roder (1983) 33 Cal.3d 491, 499-502. (People v. Sandoval, supra, at p. 844 & fn. 7.) In. People v. Roder, supra, at page 504, this Court invalidated the defendant’s conviction for receiving stolen property under section 496 because the statute “created an unconstitutional presumption that relieved the prosecution of its burden of proving every element of the offense beyond a reasonable doubt.” (People v. Sandoval, supra, at p. 844, fn. 7.) However, this Court reformed the statute in a constitutional manner— to create only a permissive inference rather than a mandatory presumption - for purposes of future prosecutionsand alsofor retrial ofRoder’s case. (People v. Roder, supra, at pp. 505-507.) Here, even if the Court ofAppeal's equal protection analysis is ~ correct, the result that most closely matches what the Legislature intended would be to require the People to prove sustained fear underthe false bomb statute as a condition to retaining the felony sentence. The false WMD statute, enacted later in time, specifically made felony punishmentavailable whensustained fear was proven.It isdifficult to imagine the Legislature, which made felony treatment available for both false bombsandfalse WMDsat least whenthereis fear, would prefer that felony treatment simply be unavailable for a defendant who placed a false bomb — and yet that is the result that the Court of Appeal has reached. The Court of Appeal . recognized the importanceof ascertaining the Legislature’s intent when 1] considering the appropriate remedy for an unconstitutional statute (Attachment A at p. 14), and declared it would not foreclose the possibility of prosecutors proving sustained fear to.obtain felony punishment for placementof false bombs (id. at p. 14, fn. 6). However, the result in this case does not comport with that statement, for the Court of Appealhas foreclosed felony punishmentfor appellant. (/d. at p. 15.) Such a result should be "reject[ed] out of hand" (People v. Hofsheier, supra, 37 Cal.4th at p. 1208), given the clear intent to make.felony punishmentatleast available for appellant's conduct of placing false bomb, and given the longstanding policy by the electorate and the Legislature to make any current felony an appropriate trigger to end a lengthy and harmful criminal career. (§§ 667, subd. (e)(2), 1170.12, subd. (c)(2)). That policy "serve[s] an important and vital public purpose" (People v. Hofsheier, supra, at p. 1208) of preventing continuance of such a career of crime - which the Court ofAppeal hasfrustrated by ordering that appellant shall be released promptly, leaving him free to continue terrorizing the public. . Here, the People proved beyond a reasonable doubt that Turnage committed the offense enacted by the Legislature, and he received the felony punishmentprescribed by the Legislature. Even assuming that there was somefurther conditionrequired by the Constitution before the Legislature's intended punishmentcould be imposed, it is not logical to suppose the Legislature would have preferred to preclude felony — punishmentfor appellant, rather than allowing the People to take whatever remedial step was required by the Constitution. It was manifestly wrong, therefore, for the Court of Appeal notto effect that remedy. The Court of Appeal actually conceded that the dispatcher who saw the false bomb “was scared,” believed the object could be a bomb,andtreatedit accordingly. (Attachment A at pp. 4-6.) In 12 addition, the dispatch center was evacuated. (IRT 43.) This falls within section 11418.5, subdivision (b)’s definition of “sustained fear,” which _ “can be established by, but is not limited to, conduct such as evacuation of any building by any occupant... .” Moreover, the summoning of the bomb squad and the bomb squad’s examination of the false bomb was equivalent to “any isolation, quarantine, or decontamination effort.” (§ 11418.5, subd. (b); IRT 201-212, 216-218.) Assuming the Constitution could not permit the offense of placing a false bombtoresult in the already prescribed sanction of felony punishment unless such offense wasalso affirmatively proven to have resulted in sustained fear, then the important public purpose of ending criminal careers, should have permitted the People to make such remedial proof. In his answer to respondent’s petition for rehearing below, appellant asserted that the already-legislatively-prescribed felony punishmentfor violating section 148.1(d) should not be permitted even uponproof of . Sustained fear. He claimed that whena statute violates equal protection, a reviewingcourt has only two choices for the remedy: (1) it can invalidate | the statute: or (2) it can extend the benefits to the party aggrieved. Citing Kopp v. Fair Political Practices Com. (1995) 11 Cal.4th 607 (Kopp), appellant argued that permitting felony punishment upon proof of “sustained fear” improperly rewrites section 148.1(d) to judicially create a new crime with a new element. (Answerat pp. 7-12.) But such argument fundamentally misses the mark. Appellant already stands convicted of the offense enacted by the Legislature, and he already faces the felony punishmentauthorized by the Legislature for that offense as enacted. It is the Judicial branch (through the Court of Appeal) which has found that such punishment should be constitutionally. conditioned uponproofof sustained fear. But if such additional constitutional condition ~ external to the statute as written by the Legislature — is required, then the 13 proper remedy is to permit such constitutional condition to be met. (See, e.g., People v. Hofsheier, supra, 37 Cal.4th at pp. 1208-1209 [where legislatively sanctioned requirement of registration mayonly be constitutionally imposed by having judge exercise judicial discretion, proper remedy is to remandso that condition may be met].) Kopp itself supports such a result. Kopp noted that courts have extended the reach of underinclusive criminal statutes in order to avoid invalidity under equal protection principles. (Kopp, supra, 11 Cal.4th at p. _ 637.) Kopp cited severalsister state cases which have extended(i.e., reformed) criminalstatutes in response to equal protection concerns: - People v. Liberta (1984) 64 N.Y.2d 152, 485 N.Y.S.2d 207, 218-219 & footnote 15, 474 N.E.2d 567, 578-579 & footnote 15, citing additional : cases (extending reach of rape law to married men whorapetheir wives and females who rape males); Plas v. State (Alaska 1979) 598 P.2d 966, 968- 969 (extending coverage of prostitution statute to males); State v. Books (Iowa 1975) 225 N.W.2d 322, 325 (extending bribery statute to cover unlawful receiptof gifts to state as well as county employees). (Kopp, supra, at p. 637, fn. 33.) Moreover, “the high court has endorsed the propriety ofjudicial reformation of statutes in the context of otherwise vague or overbroadcriminal statutes ~ namely, criminal obscenity statutes —and has encouragedstate courts to do so as well.” (/d. at p. 638.) > Indeed, Kopp cited a caseinvolving a judicial rewrite at least as substantial as that proposed by respondentin the present case. Un re Kay (1970) 1 Cal.3d 930.) Kay involved a Penal Codesection makingit a crime for anyoneto “willfully disturb[]” any lawful meeting. (§ 403.) This Court found the term overbroad because it would criminalize protected speech underthe First Amendment. To preserve the statute, this Court construed it to require that the defendant substantially impaired the conductof the meetingby intentionally. committing acts in violation of implicit customs or of explicit rules for governance of the meeting, of which he knew,or as a . (continued...) 14 Here, there is no need to extend the reach of section 148. 1(d) to permit felony punishment for placing a false bomb. To the contrary, by its own terms — in place long before appellant violated and was convicted for violating the statute — it already provides for such felony punishment as written. The only thing urged by respondenthereis that, where the judicial branchfinds itself obliged to find there must be an additional condition to permit the punishmentprescribed by the Legislature, the judicial branch can hardly reject the option permitting the People to meetthat judicially- imposed condition in order to effectuate the punishment intendedby the Legislature. In his answerto respondent’s petition for rehearing in the Court of _ Appeal, appellant also argued that if “sustained fear”is added to section 148.1(d), he may not beretried for the “new crime” with the “extra sustained fear element.” (Answer, at pp. 7-8, citing § 1023 (double Jeopardy) and People v. Anderson (2009) 47 Cal.4th 92, 113-114.) Further, appellant asserted that the new elementof sustained fear under section 148.1(d), could not be retroactively applied to appellant becausehis conduct occurred before the grafting of the new elementto the Statute. Just as the Legislature is barred by the ex post facto clause from passing a- retroactive law, his argument stated, a court is barred by the due process Clause from achieving the sameresult by judicial construction. (Answerat pp. 8-9.) | But, as stated above, that fundamentally misses the mark because appellant already stands convicted of the offense enacted by the Legislature, and already faces the punishment whichthe Legislature itself ~ (...continued) reasonable person should have known. (In re Kay, supra, at p. 943; Kopp, supra, 11 Cal.4th at p. 644, fn. 39.) 15 authorized as sanction for the offense as written. Thus, there can be no double jeopardy problem... Rather, this case involves the Court of Appeal's conclusion that the punishmentprescribed by the Legislature for the offense enacted by the Legislature can only be obtained, consistent with the Constitution, if there is proof of sustained fear from appellant's offense. Judicial imposition of the condition — a condition which is in fact external - to the legislative terms — must be concommitant with an opportunity to remedy the matter by meeting the condition. . This Court’s decision-in People v. Roder, supra, 33 Cal.3d at pages 505-507, likewise disposes of appellant’s retroactive application argument. Asnoted, in Roder this Court reformed the law against receiving stolen - property (§ 496), turning a mandatory presumption into a permissive inference, to render the statute constitutional. U/d. at pp. 504-507.) This Court then remandedthe case so that Roder could beretried under the reformed statute, noting ““On remand, the trial court should fashion an appropriate instruction, which informsthe jury of the permissive inference but at the same time makesclearthat the prosecution retains the burden of proving every elementof the offense beyond a reasonable doubt. [Citation.]” (People v. Roder, supra, 33 Cal.3d at p. 507.) Here, no full retrial is needed at all. To the contrary, in the event some additional matter must be proven for the Constitution to permit an in- place legislative sanction to apply based on proofof elementsalready prescribedby thatlegislative body, there is no legitimate argument against permitting such additional matter to be proven. (See Cunningham v. California (2007) 549 U.S. 270, 286, 294 [where Constitutionitself imposes requirement of an additional jury proof — to allow punishment _ already authorized by legislatures upon more limited proofs to jury — constitutionally permissible remedy includes allowing such external constitutionally-imposed condition to bemeton remand].) Thus, were the 16 Court of Appealcorrect to find an equalprotection violation at the outset, there is no legitimate argumentthat the People should be barred from a remandto prove appellant's offense resulted in sustained fear, as the condition to retaining the legislatively prescribed felony punishmentfor the offense enacted by the Legislature. Accordingly,in the event this Court does not reverse the Court of Appeal's ruling that the statutory schemeviolates equal protection, respondent respectfully submits this Court should grant review and order remand to permit an opportunity to prove sustained fear as a condition to retaining the present felony punishmentfor appellant's offense. 17 CONCLUSION The petition for review should be granted. Dated: May 10, 2010 SA200830633 | 31006268.doc Respectfully submitted, EDMUND G. BROWN JR. Attorney General of California DANER. GILLETTE | Chief Assistant Attorney General MICHAEL P. FARRELL Senior Assistant Attorney General RACHELLE A. NEWCOMB,Acting Supervising Deputy Attorney General po po 3 an PAUL E. O'CONNOR Deputy Attorney General Attorneys for Plaintiffand Respondent 18 CERTIFICATE OF COMPLIANCE I certify that the attached PETITION FOR REVIEW uses a 13 point | Times New Romanfont and contains 4,714 words. Dated: May 10,2010 - EDMUND G. BROWNJR. Attorney General of California PAUL E. O'CONNOR Deputy Attorney General Attorneys for Plaintiffand Respondent EXHIBITA Filed 4/1/10 CERTIFIED FOR PARTIAL PUBLICATION* IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Yolo) THE PEOPLE, CQ59887 Plaintiff and Respondent, _ (Super. Ct. Nos. 06-5019, 04-1665) Ve. BARRY ALLEN TURNAGE, Defendant and Appellant. APPEAL from a judgment of the Superior Court of Yolo County, Thomas E. Warriner, Judge. Affirmed as modified. : Peggy A. Headley, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Stephen G. Herndon, Supervising Deputy Attorney General, Paul E. O'Connor, Deputy Attorney General, for Plaintiff and Respondent. INTRODUCTION A jury convicted defendant Barry Allen. Turnage of maliciously placing a false or facsimile bomb in 2006 with the * “Pursuant to California Rules of Court, rule 8.1110, this opinion is certified for publication with the exception of parts IB, IIA, IIB, III, and IV of the Discussion. 1 intent to cause others to fear for their safety (Pen. Code, § 148.1, subd. (d)),+ found he was legally sane at the time of the commission of the offense, and found he had two prior convictions that came within the meaning of section 667, subdivision (d).. Based on the evidence it heard at trial - regarding the present offense, the trial court found that defendant violated his probation in a 2004 drug case, in which there was a suspended imposition of sentence. The court sentenced defendant to state prison for the upper term on the 2004 offense, with a consecutive indeterminate prison term of 25 years to life for the present offense. (§ 667, subd. (e) (2) (A) (11) .) | | On appeal, defendant contends his felony sentence for placing a false bomb violates his constitutional right to equal protection, because placing a false weapon of mass destruction (WMD) .under similar circumstances (without causing “sustained fear”) is only a misdemeanor (§§ 11418.1, 11418.5, subd. (b)), and to due process, because “false or facsimile bomb” is too vague a term. He contends the trial court should have granted his motion for acquittal (§ 1118.1) because there was insufficient evidence of a false bomb, or of his intent to cause others to fear for their safety. He also claims that there is insufficient evidence to support the recidivist finding based on his 1985 entry of a guilty plea, because the 1985 court did not 1 All further statutory references are to the Penal Code. have jurisdiction to accept a withdrawal of his 1978 plea of not guilty by reason of insanity (NGI) to the charge. Finally, he contends that if we reverse his present conviction we must reverse the court’s finding that he violated probation and remand for further proceedings in the 2004 case. In the published portion of this opinion, we agree that defendant is similarly situated to someone convicted of the misdemeanor of placing a false WMD that did not cause sustained fear, and the legislative history of the latter provision shows that no reason exists to treat the two offenses differently for purposes of punishment. Therefore, we conclude that a violation of section 148.1, subdivision (d) (hereafter § 148.1(d)) is punishable only as a misdemeanor. We reject the remainder of defendant's arguments in the unpublished part. We therefore vacate the sentence on the 2006 offense and remand the matter for resentencing. FACTS The Yolo County Communications Center (YCCC) in Woodland is the 24-hour dispatch headquarters for the county’ s police, fire, and ambulance services. It is located in the middle of a parking lot, surrounded by other buildings. In order to enter the parking lot, a driver must stop at a key pad that activates a gate. In September 2006 a YCCC dispatcher was returning from a coffee run on a Sunday morning. As she approached the road leading to the gate, she noticed a maroon Ford Thunderbird that was backing up. She testified that she remembered the car 3 clearly because it was similar to the car of a dispatcher who had recently left the job. However, her suspicions were aroused when the driver leaned over toward the passenger side ina maneuver that looked uncomfortable and struck her as unusual, as if he were trying to conceal his: face. | As the dispatcher passed the Thunderbird and approached the key pad, she saw a box underneath it with a flag sticking out of its top and “C-4" written on the side facing her.* This had not been there when she left 15-20 minutes earlier. She was scared, because she knew C-4 was an explosive and thought that this ' might be a bomb, even though it did not have any external indications of a fuse. She parked in her spot on the other side of the building. When she entered the YCCC, she announced to the others in the room that there was a bomb threat, and she placed a telephone call to the police instead of using the radio because the latter could trigger some types of bombs. The employees waited inside for the police to arrive, which took about 15 minutes. By this time, her shift had ended and she walked outside to meet the police. No one else left the building, and as far as the dispatcher could recall the YCCC operations were not interrupted. A police officer who heard the bomb report saw a maroon Thunderbird parked in front of a nearby coffee shop. Through 2 Although the writing is not legible, we have included a photograph of the box as an appendix to this opinion; the bomb itself was an exhibit at trial. the coffee shop window, the officer saw defendant, who matched the general description of the driver of the Thunderbird. He was drawing on some newspapers. The officer entered the coffee shop and asked defendant if he could speak with him outside. Defendant responded calmly in an amenable manner, and he and the officer left the shop. Defendant volunteered that he had come from the sheriff's department (actually the YCCC), where he had left a box on which he had written C-4, which he knew was a plastic explosive. He claimed this was a joke, not meant for anyone in particular and not intended to cause anyone harm. However, he mentioned that he knew there were women at the ycecc who, had made fun of him, which upset him. He would not be any more specific about these women: He said the box contained only a plastic bag filled with bleach and motor oil. Another responding officer had seen defendant about 25 minutes before the bomb report at a four-way stop near the YCCC. Defendant had stared at the officer for an extended period of time, looking agitated or angry. Among defendant's effects at the coffee shop was a disposable camera. He said he photographed various government buildings, bridges, and police officers. There were random writings on the newspaper and on a Watchtower pamphlet, ; the phrase “Angry 19” was written next to or ona drawing of a box with an antenna, and there were drawings of what appeared to be radio towers. There were also books on. the supernatural and parapsychology. In a search of defendant’s apartment, whichwas directly north of the complex of county buildings, the police found a number of photographs. They also found photographs in the trunk of his car. ‘These were mostly innocuous, but included pictures of the parking. area for the district attorney, patrol cars, a university police station, the courthouse, the headquarters of the probation department, and the offices of the county's Department of Mental Health. They did not find any explosives or detonators. They also did not find any manifestos or other angry writings. | | A few days before defendant piaced the fake bomb, a worker in one of the buildings around the YCCC saw him near his car, which was parked across from the Health and Social Services. building. He was pacing back and forth, and making gestures that looked like he was pretending to shoot a rifle at the building. He was someone she had seen around the premises about a dozen times in the nine-month period she had worked there. His.actions frightened her. She reported this to the police. A bomb expert testified that actual bombs frequently do not appear to be bombs. C-4 is an explosive of high strength. The small size of the box did not diminish the possible power of the bomb. The flag could have been an antenna. Only after x-raying the box and not seeing any solid materials or power sources did he feel comfortable about opening it. Only then was he able to confirm that it did not contain an explasive or a detonator. A psychologist testified about her evaluation of defendant. He had paranoid beliefs that, among other things, the officers at the jail wanted to have sex with him. His thinking in general was fragmented and tangential. In discussing the charges against him, he said he had placed the bomb to scare off - women who had been sexually harassing him and wanted to kill him because they “wanted to get rid of all the blacks” as “they!re too smart.” Defendant had a history of psychiatric treatment for schizophrenia dating back to 1983. Ina later interview, he claimed the fake bomb was just a joke, but again alluded to the need to scare off women interested in him. He was aware his attorney was trying to have him found incompetent to stand trial, which upset him because he did not “want to go that route.” Defendant does not raise any issues with respect to the Sanity phase of his trial. We therefore omit those facts. DISCUSSION Ir. A. Equal Protection | 1 In its other provisions, section 148.1 punishes knowingly false reports of bombs to peace officers or other people as a “wobbler” with imprisonment in state prison or up to a year in jail. (§ 148.1, subds. (a)-(c).) In § 148.1(da), the text of which was added as subdivision (c) in 1972 (see Stats. 1972, ch. 1142, § 1, p. 2210), the Statute similarly punishes persons responsible for maliciously placing, sending, or possessing “any false or facsimile bomb, with the intent to cause [others] to fear for [their] personal safety or the safety of others Lo . In 1999, concerned with the increasing threat of terrorism that made use of chemical, biological, nuclear, and radiological agents (§ 11416), often with dispersal methods that included explosive devices (§ 11417, subd. (a)), the Legislature enacted a new offense of producing, possessing, or using WMDs (§ 11418). In 2002 the Legislature added section 11418.1 to penalize any person who places, sends, or possesses “any false or facsimile of a [WMD], with the intent to cause [others] to fear for . [their] own safety, or for the . . . safety of others,” punishable only as a misdemeanor except where this “causes “3 (in which caseanother person to be placed in sustained fear the.conduct is punished as a wobbler). In the legislative history for section 11418.1 (Sen. Comm. on Pub. Safety, analysis of Assem. Bill No. 1838 (2001-2002 Reg. Sess.) as amended Mar. 7, 2002), of which we have taken judicial notice at defendant's request, 4 the analysis directly poses the question of whether the Legislature should create a new wobbler drawn from section 148.1(d) for placement of false WMDs causing 3 Among the nonexclusive examples in the cross-referenced definition of sustained fear are evacuations of buildings, or isolation, quarantine, or decontamination efforts. (§ 11418.5, subd. (b).) 4 This isa properly cognizable category of legislative history for purposes of judicial notice. (Kaufman & Broad Communities, Inc. v. Performance Plastering, Inc. (2005) 133 Cal.App.4th 26, 32-35.) , , sustained fear, and a, misdemeanor when sustained fear is not present. (Sen. Comm. on Pub. Safety, analysis of Assem. Bill No. 1838, supra, at pp. 2-3.) According to this analysis, “From discussions with the sponsor of AB 1838, it appears that the new WMD hoax crime was modeled on the bomb threats statute because police and prosecutors are familiar with the existing crime. Further, it was believed that since the conduct in both crimes 1s similar, the penalties should be Similar." (Sen. Comm. on Pub. Safety, analysis of Assem. Bill No. 1838, supra, at p. 18, italics added.) In discussing the creation of a new felony in the context of the additional punishment for recidivism, the analysis identified a reluctance to add nonviolent felonies that could be subject to this treatment, but believed the element of sustained fear was equivalent to the harm from violent conduct. (Td. at pp. 19-20.) 2 The constitutional right to equal protection of the law, under either the federal or state charter (U.S. Const., 14th Amend.; Cal. Const., art I, § 7), is in essence a requirement that all persons similarly situated be treated alike (Niedle v. Workers’ Comp. Appeals Bd. (2001) 87 Cal.App.4th 283, 288). Except where a “suspect” class or “fundamental” right is involved (neither of which is at issue in the present case), the legislative classification must bear a “rational” relationship to any legitimate state purpose that a court can posit. (Id. at pp. 288-289.) Initially, the People contend that defendant has forfeited this issue because he did not raise it initially in the trial court. As defendant correctly points out, where the claim of error does not trample concerns of judicial efficiency, involves only the application of legal principles of law to undisputed facts (without depriving the People of the opportunity to have developed essential facts in opposition), and presents an issue of important public concern (such as the constitutionality of a statute in a case of first impression), we will generally exercise our discretion to allow a party to raise the issue for the first time on appeal. (In re Sheena K. (2007) - 40 Cal.4th 875, 887-888 & fn. 7 (Sheena K.); In re Spencer S. (2009) 176 Cal.App.4th 1315, 1323.) The case before us satisfies these standards, so we will proceed to the merits. 3 The threshold question is whether defendant has shown that “the state has adopted a classification that affects two or more similarly situated groups in an unequal manner.” (People v. Hofsheier (2006) 37 Cal.4th 1185, 1199 (Hofsheier) .) That similar conduct might be punished as different crimes under different statutes does not shield the classification from scrutiny. (Ibid.) Defendant, as noted, posits that persons convicted under section 148.1(d) and those convicted under section 11418.1 have both. placed, sent, or possessed a false object with: the intent to ‘cause fear (but without causing sustained fear); the only distinction is the type of object—a false or facsimile bomb 10 under section 148.1, or a false or facsimile WMD under: section 11418.1.° As in Hofsheier, the conduct is identical except for a variance with respect to the particular form of the conduct . (37 Cal.4th at p. 1199 [intercourse and oral copulation are both forms of sexual conduct with a minor] . ) This is sufficient to trigger our scrutiny of the classification. (C£. ibid.) The People argue that there was evidenceat trial from which we could conclude that defendant in fact caused sustained fear and therefore is not similarly situated with a misdemeanant violator of. section 11418.1, and he therefore lacks standing to assert the claim. This argument is not well taken. The People do not provide any authority for the proposition that in a challenge to the facial constitutionality of the statute we must consider circumstances that are not part of the statutory definition of the crime and that were not the subject of any jury finding. Defendant does not contend there is anything about the particular circumstances of his offense that render his punishment a constitutional violation as applied to him (such as with claims of cruel and unusual punishment). “We are unconvinced by the People’s proposed approach, which would require us to look beyond the statutory elements of the offense [defendant] admitted.” (In re J.P. (2009) 170 Cal.App.4th 1292, 1299 [rejecting People’s argument that minor not similarly > As defendant notes, had he written “anthrax” on the box, he would have been guilty of only a misdemeanor. 11 situated because facts of case showed he could have been convicted of different crime (that was not an included offense) for which all offenders receive identical treatment]; accord, People v. Ranscht (2009) 173 Cal. App.4th 1369, 1374-1375.) We thus do not need to consider defendant's arguments regarding the sufficiency of the evidence to prove sustained fear. , The legislative history we have quoted above (ante, at p. 9) expressly noted a view that the conduct underlying sections 148.1(d) and 11418.1 were the same and warranted identical punishment. The analysis overlooked, however, the fact that a false WMD carries the same wobbler penalty as a false bomb only where there is proof of an additional element of sustained fear that justified the creation of a new nonviolent felony subject to additional punishment in the event of recidivism. In light of this, we cannot divine any plausible reason why a conviction for placing a false bomb without causing sustained fear should subject a defendant to a felony conviction under section 148.1(d) but only a misdemeanor conviction under section 11418.1 for a false WMD, given the goals that the Legislature articulated. The fear of a false WMD, given the more far-reaching effects of such devices, would generally be more severe (even in the absence of sustained fear) than only an explosive device whose destructive effects could be more easily evaded, and yet the former incurs the lesser punishment. The People offer the tenet that courts do not require the Legislature to enact a comprehensive response to a problem and ~ 12 may address it in piecemeal efforts. (Hofsheier, supra, 37 Cal.4th at p. 1205.) However, as in Hofsheier, the “argument does not fit this case.” (Td. at p. 1206.) The People have not identified any ongoing legislative examination of nonviolent felonies to determine which address conduct. that is properly the subject of additional punishment for recidivism. (C£. ibid. [no showing of ongoing legislative fine-tuning of registration statute to eliminate distinctions between intercourse and oral copulation with minors].) Moreover, the Legislature first added the text of section 148.1(d) in 1972, and has not modified it since 1991 (when it added possession to the list of acts, and changed the definition from an intent that another person think it isa real bomb to an intent to cause fear); nor has it modified any other part of the statute since 1984, other than to add categories of peace officers to whom a false bomb report is punishable under section 148.1, subdivision (b). (Compare . ‘Stats. 1998, ch. 760, § 1; Stats. 1991, ch. 503, § 1, p. 2447; Stats. 1984, ch. 824, § l, pp. 2849-2850.) The 1991 revisit antedates the sea change of harsher treatment of recidivism that began in earnest in 1994 and continues to the present, andthus the rationale for treating the placement of a false bomb without sustained fear as a wobbler has eroded over time, given the legislative history of section 11418.1. (Cf. Hofsheier, supra, 37 Cal.4th at p. 1206 [harsher treatment of oral copulation arose at time when it, unlike intercourse between consenting -adults, was illegal].) 13 Defendant's felony punishment has therefore violated his right to equal protection. This leaves the question of remedy. 5 Without any authority, defendant simply asserts that we must reverse his conviction. We reject this claim. Defendant’s conduct is still a crime. It is merely the degree of punishment that violates his right to equal protection. A court may choose between extending beneficial treatment to the disfavored class or withdrawing it from the favored class. (Hofsheier, supra, 37 Cal.4th at p. 1207.) The primary concern is to ascertain the Legislature's preferred alternative. {Ibid.) As the distinction the Legislature has drawn in section 11418.1 is its most recent explicit consideration of the punishment that a false destructive device merits, and an articulation of its general policy for when a nonviolent crime merits felony treatment, we believe defendant should have the benefit of the lenience that the Legislature has declared with respect to false WMDs that do not cause sustained fear (rather than disregarding the efforts in section 11418.1 to tailor a distinction). We therefore conclude that placing a faise bomb within the meaning of section 148.1(d).,, which does not include the element of causing sustained fear as defined in 6section 11418.5, is only a misdemeanor. This conclusion does 6 We do notdecide whether the People may seek a special jury finding of sustained fear in order to punish the offense as a felony. , 14 not prevent the Legislature from deciding to add sustained fear as an element of section 148.1(d) or finding some other way of keeping the punishment parallel with section 11418.1 in order to impose the same punishment on both groups of offenders. (CE. Hofsheier, supra, 37 Cal.4th at p. 1206.) As a result, the sentence for defendant’s violation of section 148.1(d) is now reduced from a minimum indeterminate term in prison of 25 years to life to no more than one year in county jail. We must remand the matter to the trial court to determine the length of his jail term on the present offense and the manner in which it wishes to structure his overall sentence, B. Due Process Defendant also contends the phrase “any false or facsimile bomb” does not adequately describe the type of object coming within its ambit. He argues that the statute is therefore unconstitutionally vague, both facially and as applied to the facts of this case. Once again, the People contend defendant has forfeited this. claim because he did not raise it in the trial court. We reject their argument for the same reasons previously stated. 1 “[T]he underpinning of a.vagueness challenge is the due process concept of ‘fair warning’” that prevents arbitrary enforcement and gives adequate notice. (Sheena K., supra, 40 Cal.4th at p. 890.) To be unconstitutionally vague, the statute must employ terms the meaning of which causes people of 15 common intelligence to guess what conduct is either required or prohibited. (Ibid.) Defendant acknowledges that “bomb” is a term of common understanding. (People v. Dimitrov (1995) 33 Cal.App.4th 18, 25 [“Persons of common intelligence know what a bomb is”; rejecting claim of need for instructional definition of term as used in § 12301]; People v. Quinn (1976) 57 Cal.App.3d 251, 259 [term “bomb” in § 12301 not unconstitutionally vague].) He claims, however, that “false or facsimile” does not adequately limit the entire spectrum of items that are not actual bombs. Defendant splits hairs in focusing only on the use of the term “false or facsimile bomb” in his claim that one reasonably cannot tell which objects are prohibited. It is not the object alone, but the object coupled with an intent to cause fear in another that is prohibited. If a person of common’ intelligence understands the nature of a’‘bomb, then that person will know which objects will cause fear in another from their deceptive similarity to a bomb. Defendant or others need not fear that leaving their hats behind will be mistaken forplacing a false bomb unless there is some ‘external indication that it contains an explosive and a detonation device. We therefore reject this claim of vagueness. 2 Defendant also argues that the statute is unconstitutional for vagueness as applied to him, as he could not reasonably have known others would consider his object to be a bomb. He asserts in essence that the box at most proclaimed that it might have an 16 explosive inside and did not give any indication of a detonation device. People of common intelligence now live in a world where they must remove even shoes for screening in airport security because of the possibility that they could contain a concealed explosive device. We are also sadly in an era in which people have expressed their discontent with the government through the destruction of public buildings. Placing an object that at least boasts of its.explosive nature near a government building would indicate to anyone of common intelligence thatthe object could be considered a bomb even without any external indication ofa detonation device concealed within. We therefore reject this claim of vagueness. | | | If A. Sufficient Evidence—Bomb Defendant argues the prosecution evidence showed only that he placed a false “explosive,” which is not punishable under section 148.1(d). He asserts that expert testimony regarding. the features of a bomb was necessary in order to support the jury's verdict that this false explosive was a false bomb. He contends that the “lay opinion[s]” of other witnesses regarding whether his hoax was a bomb are insufficient to support the verdict because they lacked foundation of any prior experience with bombs. Consequently, the court erred in denying his motion to dismiss at the conclusion of the prosecution case. This was not the actual basis of the motion to dismiss. The motion instead focused on the issuewe next discuss, i.e., 17 _ whether there was sufficient evidence of an intent to instill fear. We will, however, treat this simply as an argument regarding the insufficiency of the evidence. | Defendant’s claim regarding the need for expert testimony is in essence a rehash of his argumentthat the term “false or facsimile bomb” is vague. Jurors of common understanding comprehend that a false bomb must appear to be a device capable , + of exploding upon the triggering of its fuse. As a result, the jurors were capable-of determining by themselves whether the testimony establishing that C-4 is an explosive (including defendant’s own admission to that effect) demonstrated that defendant placed a false bomb, without either expert or lay opinion testimony to that effect. B. Sufficient Evidence—Intent Coming to the actual basis of defendant’s motion to acquit, he reiterates that the prosecution produced insufficient evidence of his intent to induce fear in another. In this regard, he relies on the innocuous circumstances of the object and its placement, the absence of any particular animus toward the YCCC or any of its employees, the lack of any extreme reaction on the part of YCCC employees, his availability for police questioning afterward, and his self-serving assertion of intending only a joke. The argument lacks merit. Regarding the appearance and placement of the false bomb, we have already noted that in the present day one can rationally fear that the most innocuous of objects—even shoes—might be a 18 bomb. We have reviewed the pictures of defendant’s box in the record. While it might not appear threatening of itself, the | context of the placement of a box labeled with the name of an explosive and a flag near the entrance to the unguarded parking lot of a government facility allows for a rational inference that he intended to scare employees driving through the gate. Indeed, even the bomb expert was wary of the object. It is not necessary that defendant have an animus toward any person in particular at the YCcCcCc. His particular reliance on People v. Lake (2007) 156 Cal.App.4th Supp. 1, 9, for this proposition is not well-placed, as the solicitation statute at issue in that case required knowledge of the likelypresence at’ the proposed location of third parties whom the solicited acts would offend.’ In any event, there was evidence of his irrational need to scare off unspecified individuals at the yccc in particular, and apparent hostility to county offices in ‘general, as demonstrated in the imaginary rifle incident and his glaring at the police officer at the intersection. His efforts to minimize the response at the yecc to his “joke” are unavailing. Both the YcCcCc and the police treated the object as a bomb, as did the bomb expert. This leaves his failure to flee the area after placing the bomb, his cooperative response to police questioning, and his 7° We do not need to respond to his remaining citations to other cases involving other crimes and the insufficiency of evidence of intent in those appellate records. (State Compensation Ins: Fund v. Brown (1995) 32 Cal.App.4th 188, 202 & fn. 5.) 19 disavowal of any intent to scare anyone. We are not obligated to accept his self-serving disavowals of an intent to scare, particularly in light of his admissions of his perceived difficulties with officers that he needed to scare. Tift As we have reduced defendant’s present conviction to a misdemeanor, he no longer satisfies the criterion of incurring a present felony conviction (§ 667, subd. (c)), required to impose an indeterminate life sentence on it (§ 667, subd. (e) (2) (a) (ii)). This moots his claim regarding the sufficiency of the evidence to support the finding that his 1985 guilty plea satisfies the additional criterion of prior qualifying convictions. (§ 667, subd. (d).) | IV Defendant asserts that if we reverse his conviction for placing a false bomb, then we must vacate the finding of a violation of probation and remand because it is not clear whether the court based its finding. on the mere fact of his conviction rather than on the evidence adduced at trial. (Compare People v. McNeal (1979) 90 Cal.App.3d 830, 840, fn. 3° [where court affirmatively indicates it relied on evidence rather than mere fact of conviction, no need to vacate and remand finding of probation violation]; People v. Hayko (1970) 7 Cal.App.3d 604, 611 [only specified basis for finding of probation violation was fact of conviction; must vacate and. remand] .) 20 As we have already stated, defendant is not entitled toa reversal of his conviction. We therefore reject this argument .® DISPOSITION The judgment of conviction is affirmed. The sentence is vacated, and the matter remanded for sentencing on the violation of section 148.1(d) as a misdemeanor. RAYE , Acting P. J. We concur: BUTZ , oo. CANTIL-SAKAUYE (, Jd. 8 The recent amendments to Penal Code section 4019 do not operate to modify defendant's entitlement. to credit, as he had prior convictions for a serious or violent felony. (Pen. Code, § 4019, subds. (b) (2) & (c) (2); Stats. 2009, 3d Ex. Sess., ch. 28, § 50.) . 21 DECLARATION OF SERVICE BY U.S. MAIL Case Name:- People v. Barry Allen Turnage No.: S I declare: I am employed in the Office of the Attorney General, whichis theoffice of a memberofthe California State Bar, at which member's direction this service is made. I am 18 years of age or older and nota party to this matter. I am familiar with the businesspractice at the Office of the Attorney General for collection and processing of correspondence for mailing with the United States Postal Service. In accordance with that practice, correspondenceplaced in the internal mail collection system at the Office of the Attorney Generalis deposited with the United States Postal Service that same dayin the ordinary course of business. On May 11, 2010, I servedthe attached Petition for Review by placing a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid, in the internal mail collection system at the Office of the Attorney General at 1300 I Street, Suite 125, P.O. Box 944255, Sacramento, CA 94244-2550, addressed as follows: Peggy A. Headley Attorney at Law Law Office of Peggy A. Headley _ #180 11448 Deerfield Drive, Suite 2 Truckee, CA 96161 Counsel for Defendant/Appellant Sent 2 Copies CCAP Central California.Appellate Program 2407.J Street, Suite 301 Sacramento, CA 95816 The Honorable Jeff W. Reisig District Attorney Yolo County District Attorney's Office 301 Second Street Woodland, CA 95695 Clerk of the Superior Court Yolo County Superior Court 725 Court Street Woodland, CA 95695 I declare under penalty of perjury underthe laws of the State of California the foregoingis true and correct andthat this declaration was executed on May 19, 2010, at Sacramento, California. Declarant $A2008306331 31007122.doc