[631]Opinion
WOODS (Fred), J. A jury convicted appellant of two counts of first degree murder (Pen. Code,1 §§ 187, 188, 189), one count of reckless or malicious possession of a destructive device (§ 12303.2), and found true both alleged special circumstances: multiple murder (§ 190.2, subd. (a)(3)) and murder by destructive device (§ 190.2, subd. (a)(4)). Appellant was sentenced to state prison for life without possibility of parole.
Appellant claims myriad errors. Principally: the trial court wrongfully excluded evidence of victim negligence relevant to proximate cause; and the trial court erroneously instructed the jury that if they found defendant had committed second degree murder, by law it becomes first degree murder.
We reject all appellant’s claimed errors except one. We conclude the trial court erred in instructing the jury that they could use the crime of possession of a destructive device twice, first to find appellant had committed second degree murder, and second to convert that murder into murder of the first degree.
Factual Background
Summary
Two Los Angeles police officers were dismantling a bomb in appellant’s garage when it exploded and killed them.
The prosecution theory was that appellant had made, possessed, and intended to use the bomb and thereby proximately caused the death of the two officers. There was no evidence appellant intended the death of the police-victims.
The defense challenged the sufficiency of the prosecution’s evidence. Appellant did not testify.
Evidence appellant made, possessed, and intended to use the bomb
We synopsize the evidence with a perspective favoring the judgment. (People v. Barnes (1986) 42 Cal.3d 284, 303-304 [228 Cal.Rptr. 228, 721 P.2d 110].)
Appellant lived in North Hollywood at 6849 Vanscoy. In the late 1970’s he became friends with one of his neighbors, A1 Ward. They went on bicycle [632]rides together and visited each other at their homes. Their wives were also good friends.
Sometime in October 1978 Mr. Ward went to appellant’s house to go for a bike ride. Appellant showed Mr. Ward a used Xerox machine he had just bought and while they were in appellant’s garage also showed him a book with descriptions of how to make a bomb. The book was gray with black binding, had sketches but was not “The Anarchist Cookbook” (a bomb-making book later recovered in appellant’s house). Appellant told Mr. Ward, “I can make a bomb.”
In 1985 William Enoch was married to appellant’s sister, Ernestine, and was living in Orlando, Florida with her and their three children. In September 1985 Ernestine left Mr. Enoch, took the children, and came to California. They stayed with appellant at his Vanscoy home.
On Sunday, January 24,1986, appellant telephoned Mr. Enoch, identified himself, spoke for a few minutes, and said he’d call back. About 20 minutes later, appellant again called Mr. Enoch. This conversation lasted about five minutes. Appellant told Mr. Enoch “to send him some money to take care of [his] children.” At first, Mr. Enoch refused. At the end of the conversation appellant said: “Well, I don’t appreciate people messing with my family. I have connections in Orlando and I can make your life miserable and I’ll blow you up in your car.”
Mr. Enoch immediately hung up, told a fellow worker about the threat, called the local police, and then at their suggestion, telephoned the North Hollywood, California police station and reported the threat.
About two weeks later, on February 8, 1986, at 7:30 a.m. a group of eight or nine Los Angeles police officers arrived at appellant’s house to execute a search warrant on an unrelated matter. They entered, found appellant in a rear bedroom, and searched the house.
On the top shelf of the closet in appellant’s bedroom an officer found a box wrapped with tape. Inside the box were shotgun shells bound with tape, and several .22-caliber and some .38-caliber rounds.
When attempting to search appellant’s garage and his van, parked at the rear of the garage, the police noted that both were locked. They asked appellant for the keys. Appellant went to his closet and removed the keys from his pants and gave them to an officer.
Officer Asvonanda took the keys, unlocked the garage, entered, and began a search. After about five minutes he went to a small, freestanding wood [633]cabinet in the center of the garage. He opened its door, saw some cans on a shelf, moved them aside, reached behind them, felt a metal pipe, and pulled it out. He then saw that he was holding a three- to four-inch diameter pipe, nine inches long, capped at both ends, with wires and an attached battery. The wires led from the pipe back into the cabinet. Officer Asvonanda carefully put the pipe on a carpet in front of the cabinet, left the garage, and advised Detective Harley what he had found.
Detective Harley entered the garage, saw the wired pipe on the carpet and also saw that the wires were connected to a similar but longer pipe on a shelf in the cabinet. Detective Harley knew the pipes looked like bombs but didn’t know if they were real. He asked his partner to bring appellant to the garage. Pointing to the wired pipe on the carpet, Detective Harley asked appellant what it was. Appellant said he had never seen it before. Detective Harley replied, “What do you mean? This is your garage. You gave me the keys.” Appellant said, “I let a man and a woman store their property in the garage.”
Appellant, under arrest, was transported to the station, the house was evacuated, and the Los Angeles police bomb squad was called.
About 10 a.m. the head of the bomb squad, Officer Arleigh McCree, arrived, followed 20 minutes later by his partner, Officer Ron Ball. Officer Ball photographed both pipe bombs. They then dismantled the smaller bomb.
Detective Leone entered the garage and showed Officers McCree and Ball the box of shells found in appellant’s closet. The green Remington Peterson 12-gauge shotgun shells and Winchester Western .38-caliber rounds were the same as that just removed from the 9-inch pipe bomb. The shotgun shells removed from the pipe bomb, like those in the box, had been taped together.
Officer Ball took a small portion of the powder that had been removed from the one dismantled pipe bomb, went outside, put the powder in a large flower pot, and put a match to it. It burned rapidly.
Detective Douglass arrived at the scene about 10:45 a.m., after the one bomb had been dismantled. He went into the garage and was told by either Officer McCree or Ball that they were about to dismantle the second bomb. He left, with Officer Ball closing the garage door behind him. Ten or fifteen seconds later he heard an explosion, “a deafening noise,” and “felt a blast pressure wave.” He ran to the front of the garage and shouted to patrol officers to call for two ambulances. He then ran to the side garage door, forced it open with his shoulder, and entered. He checked Officer Ball for a pulse but felt none. Officer McCree’s condition did not permit checking for [634]a pulse. Detective Douglass then got a garden hose and put out several fires in the garage.
Paramedics removed Officer Ball who soon died. The coroner removed Officer McCree.
Officers McCree and Ball each died from a massive number of shrapnel wounds. Deputy medical examiner Susan Selser, who performed both autopsies, had begun counting and identifying each shrapnel wound. When she got to wound number 115 on Officer McCree she stopped counting. Officer McCree suffered 25 shrapnel wounds to his right forearm, 8 to his left hand and lower forearm, his lower right leg and foot had almost been severed, there was near amputation of his right forearm, near complete amputation of his left hand, total amputation of his right hand, a gaping laceration severing most of the left side of his neck, a skull fracture, and multiple injuries to his face.
Officer Ball sustained shrapnel injuries to his head, face, neck, chest, and extremities. A skull fracture involved the top quarter of his head, his right leg was nearly severed, both hands had been amputated, his right eye had been punctured, and shrapnel had penetrated his brain.
About an hour after the explosion Detective Weller, second in command to the deceased, Officer McCree, arrived at the scene and took charge of the investigation. Noticing Officer Ball’s camera among the garage rubble, he had the film flown to Parker Center, developed, and the prints returned to him. Based upon these photographs and the evidence recovered at the scene, Detective Weller made replica bombs.
Detective Weller described the bombs as follows: the master bomb was 12 inches long and the secondary, or slave bomb, 9 inches long. Inside of each were four 12-gauge Remington Peters number six-shot cartridges, taped together. Pyrodex, a low-grade explosive, filled the pipe cavity. A small light bulb filament was inserted in the pyrodex. A wire from the bulb fed through a drilled hole and connected to two 9-volt batteries taped to the outside of the master bomb. The pipes were capped at each end. A wood block affixed to the master bomb had the triggering mechanism, a folded piece of metal and a soldered wire. Wire connected the triggering mechanism to the batteries. A safety device consisting of a piece of rubber tubing covered part of the triggering mechanism. Black nylon fishing line was tied to the triggering device. Bungee cords were wrapped around each bomb.
The bungee cords were designed to attach the bombs to a car or some other object. When the car moved the nylon fishing line would become taut, [635]bend the piece of metal, cause contact with the soldered wire, switch the batteries on, emit current to the light bulb filament, heating it, and the heat would ignite the pyrodex causing detonation. The linked bombs would both explode. If one bomb failed, the other would still explode.
Detective Weller testified that the bombs had a single function: to kill people. Unlike time or command bombs these relied upon the movement of human victims to detonate them. Unlike some explosives, these bombs were designed to fragment and explode shrapnel.
The investigation showed the following: a roll of nylon fishing line found in appellant’s garage matched that used on the bomb’s triggering mechanism; inside appellant’s van were two 9-volt batteries and a bungee cord, both similar to those used on the bombs; in appellant’s kitchen, on a closed cabinet shelf, concealed in a sealed three-pound coffee can was a container of Pyrodex; the explosive material in the bombs was pyrodex; a bomb-making book, “The Anarchist Cookbook” was found in appellant’s den; fibers removed from the exploded bomb tape matched the gold carpet in appellant’s house; both the slave and master pipes had been threaded by a Tred-o-Matic machine whose four-jaw vise had left tool marks on both pipes; that Tred-o-Matic machine was about two blocks from appellant’s house in a Snyder-Diamond hardware store; the metal plate portion of the bomb triggering device had tool marks which matched pliers found in appellant’s garage; appellant’s fingerprints, and only his, were found on the three-pound coffee can, the pyrodex container, the garage cabinet, and on cans in that cabinet; his fingerprints were found on the cover of “The Anarchist Cookbook” (as were his brother’s) and on pages 113-114, beginning the chapter entitled “Explosives and Booby Traps.”
Discussion
1. Exclusion of evidence: “Was that tool a factor in causing the explosion?”
Appellant’s trial counsel questioned Detective Weller about a pair of wire cutters found at the bomb scene. The wire cutters were “bent out of shape” and a part was broken off, damage apparently caused by the explosion. Appellant’s trial counsel asked if this tool was “perhaps” one belonging to Officer McCree or Officer Ball and Detective Weller said “yes.” Then appellant’s trial counsel asked him the following question: “Was that tool a factor in causing the explosion?” An objection was sustained. Appellant contends the trial court committed prejudicial error in sustaining the objection and excluding Detective Weller’s answer.
[636]The predicate for the objected to question was a one-page budget memorandum submitted by the Support Services Bureau of the Los Angeles Police Department as part of its 1987/1988 budget. The memorandum requested an $11,106 authorization to purchase nine bomb squad tool kits at $1,234 each. As justification, the memorandum explained that bomb squad members now had their own miscellaneous equipment, not uniform bomb dismantling kits, and that “[e]ach [requested] item [in the kits] is coated to prevent accidental electronic contact. . . .” As further justification the memorandum stated: “On February 8, 1986, two Scientific Investigation Division, Bomb Technicians lost their lives while working on an improvised explosive device. [][] Investigation showed that a tool from their kits was a factor that caused their death” (Italics added.) The budget request memorandum was signed by the bureau commander, Captain Joseph C. Deladurantey but written by his subordinate, Lieutenant Finn. There was no written “investigation” report, the “investigation” was for budgetary request purposes only, and in preparing the memorandum Lieutenant Finn conferred only with Detectives Weller and Schube. Apparently the referred to “investigation” consisted of the unrecorded opinion by Detective Weller.
Appellant’s argument is this: if an “unforeseeable intervening cause” produced the officers’ deaths appellant’s “criminal liability” was “extinguish[ed]”; the wirecutters used by the officers were defective2; the officers were “negligent” in using such defective wirecutters; and by negligently using such defective wire cutters “the jury could have concluded that they were willing and foolhardy participants in reckless and negligent conduct. . . constituting] an unforeseen, supervening, exonerating cause of their deaths.”
We resist the temptation to consider this dubious argument because appellant is barred from making it. Evidence Code section 3543 prohibits the reversal of a judgment based upon the erroneous exclusion of evidence unless “the substance, purpose, and relevance of the excluded evidence was made known to the [trial] court.” (See People v. Whitt (1990) 51 Cal.3d 620, 646-650 [274 Cal.Rptr. 252, 798 P.2d 849].)
[637]On appeal, appellant contends the “substance, purpose, and relevance of the excluded evidence” was officer negligence or recklessness so extreme as to constitute a supervening, exonerating cause.
Not only did appellant not make known to the trial court that the “substance, purpose, and relevance” of the subject evidence was officer negligence or recklessness but appellant’s trial counsel expressly disavowed any such officer negligence or recklessness.
Appellant’s trial counsel stated: “So now that we are in trial and it’s an appropriate time I will now say as affirmatively as I know how to say it, I know of no negligence on the part of the officers. I am offering no evidence that would purport to show that they were negligent. I propose to ask no questions to lead to an inference of negligence.”
A short time later he stated: “Causation is an issue. Not negligence. There was not negligence. There was no negligence that I’m aware of. [(¡[] The consultants that I have talked with have said to me to my face, ‘Don’t expect to call me as a witness to prove there was any negligence.’ I said, ‘Okay, fine. If there wasn’t any, that satisfies me.’ ”
The next day appellant’s trial counsel reiterated his position: “I will state now for the third and the fourth time, I don’t know, I have never known, and I waited this long in hopes that I might discover, what [the prosecutor] was referring to when he talked about alleged evidence of negligence. [][] I saw none in any of the reports, I saw none in the preliminary hearing transcript. And when I sought out a bomb consultant, he said to me personally, as I said yesterday, don’t call me thinking you’re going to prove anybody was negligent, because they were not and I won’t say so. And I said fine. I said I’ve never said there was.”
Finally, in urging the trial court to permit Detective Weller to answer the subject question, appellant’s trial counsel stated: “So the basis of my question is one that goes to cause, causation. There is nothing in here that indicates any negligence. []Q I have repeatedly stated 1 am not suggesting negligence.” (Italics added.)
Given the explicit, repeated disavowals of officer negligence by appellant’s trial counsel, the trial court’s reaction to the subject question is unsurprising. The trial court stated:
“If we’re not talking about negligence, we can talk about hundreds and maybe thousands upon thousands of ways to disarm a bomb.
[638]“And we [ ] could talk all afternoon, perhaps, on how one is disarmed, defused, or what have you. But the question is: so what?
“If negligence is not a factor, these thousands of methods are of—are really not relevant. And the fact—and I think the question, the way it is framed, suggests that was a factor in causing that bomb to explode, in my judgment, is a question that is suggesting that the officer had it and was using it, and by reason of his use, that the bomb exploded and, ergo, there must have been some negligence on his part.
“That’s my ruling as far as that.”
We agree. Whether or not a tool used by a victim-officer was “a factor in causing the explosion” was irrelevant if the officer was reasonable and not negligent in using that tool. As a matter of law such use, under the instant circumstances, could not have been a supervening cause. Appellant cites no case, and we have found none, suggesting that won-negligent victim conduct may extinguish defendant criminal liability.
The cases relied upon by appellant are either adverse to his position or are inapposite.
In People v. McGee (1947) 31 Cal.2d 229 [187 P.2d 706] the defendant shot the victim in the stomach. Prompt medical care would have saved his life. Instead, the victim internally hemorrhaged for 10 hours before hospital officials ministered to him. He died the next day. The defendant offered evidence such delay was gross negligence but the trial court excluded the evidence. The Supreme Court held it was error to exclude the evidence but the error was harmless “because the testimony . . . would not, as a matter of law, have been sufficient to show a supervening cause of death which would relieve defendant from criminal responsibility . . . .” (Id. at p. 243.)
The erroneously excluded evidence in People v. Taylor (1980) 112 Cal.App.3d 348 [169 Cal.Rptr. 290] involved even more than gross negligence by the victim. The defendant furnished the victim heroin, the victim used the heroin, and died from its effects combined with alcohol. But the defendant offered evidence, excluded by the trial court, that the victim intentionally caused his own death, that he had been depressed, had talked of suicide, wanted to die, and in fact had committed suicide. We agree with Taylor that evidence the victim intentionally caused his own death constitutes a causation defense and it is prejudicial error to exclude such evidence.
The instant facts are at the opposite end of the causation spectrum: Officers McCree and Ball did not intentionally cause their own deaths, they [639]were not grossly negligent, and they were not—as repeatedly represented by appellant’s trial counsel—even contributorially negligent. Taylor is inapposite.
People v. Armitage (1987) 194 Cal.App.3d 405 [239 Cal.Rptr. 515] is adverse to appellant. “On a drunken escapade on the Sacramento River in the middle of a spring night, defendant. . . flipped his boat over and caused his companion to drown.” (Id. at p. 409.) But defendant argued that it was not his negligent overturning of the boat which proximately caused the victim’s death but “the victim’s fatally reckless decision ... to abandon the boat and try to swim to shore” which caused the victim’s own death. (Id. at p. 420.) The Court of Appeal rejected defendant’s argument, stating: “It has long been the rule in criminal prosecutions that the contributory negligence of the victim is not a defense. [Citations.] In order to exonerate a defendant the victim’s conduct must not only be a cause of his injury, it must be a superseding cause. ‘A defendant may be criminally liable for a result directly caused by his act even if there is another contributing cause. If an intervening cause is a normal and reasonably foreseeable result of defendant’s original act the intervening act is “dependent” and not a superseding cause, and will not relieve defendant of liability.’ [Citations.] Thus, it is only an unforeseeable intervening cause, an extraordinary and abnormal occurrence, which rises to the level of an exonerating, superseding cause.” (Id. at pp. 420-421.) (Italics added.)
We hold the trial court did not abuse its “wide discretion” (People v. Taylor, supra, 112 Cal.App.3d 348, 363) pursuant to Evidence Code section 352 in ruling that the subject evidence was not relevant.
2. Exclusion of evidence: “It’s a piece of cake.”
After they had dismantled the slave bomb and before attempting to dismantle the master bomb, Officers McCree and Ball took a break. Officer McCree went to the front of appellant’s house and, in response to questions about how his work was going, stated “It’s a piece of cake.” Appellant sought to introduce this statement but the trial court excluded it.
On appeal, just as with the excluded “tool factor” evidence, appellant contends the relevance of the excluded statement was officer negligence or recklessness so extreme as to constitute a supervening, exonerating cause.
Again, as with the “tool factor” evidence, no such purpose was communicated to the trial court. (Evid. Code, § 354.) In offering this evidence appellant’s trial counsel did not deviate from his repeated disavowals of [640]officer negligence. The only ground he urged for the relevance of this evidence was “that [Officer McCree] knew that he was dealing with an explosive device,” a fact not in dispute and clearly established by Officer McCree having dismantled the slave bomb.
The statement was not relevant and the trial court did not abuse its discretion in excluding it.
3. Exclusion of Evidence: In the opinion of a defense bomb expert the bomb could have been safely moved and remotely rendered safe.
Appellant’s trial counsel sought to call a bomb expert witness, Mr. Newhouser, to testify that the bombs could have been safely moved and by remote means, rendered safe. The trial court excluded the offered evidence.
On appeal, as with the two other excluded items of evidence, appellant contends the expert opinion evidence was relevant to officer negligence. No such purpose was communicated to the trial court. (Evid. Code, § 354.) To the contrary, as we earlier noted, appellant’s trial counsel explicitly stated that his bomb expert witness had told him “don’t call me thinking you’re going to prove anybody was negligent, because they were not and I won’t say so.”
With officer negligence specifically disavowed as a reason to admit the evidence, the trial court could find no other ground, explaining: “And the fact that Mr. Newhouser is—and I’m sure he is a very learned person in this area, I’m aware of his qualifications—but he is going to tell us another way of doing something. And the question is, if negligence is not relevant, simply put, so what? [10 There may be hundreds of different ways. They could have left it alone, they could have it sit in the garage and walked away from it, that’s one thing. They could have put it in a container, and the like. . . . [H] The answer is it’s not relevant.”
The trial court did not abuse its discretion in excluding the evidence.
4. Exclusion of evidence: impeachment of Mr. Enoch.
Because Mr. Enoch had testified that appellant, only two weeks before the charged offenses, had threatened to blow him up in his car—appellant sought to impeach Mr. Enoch’s credibility. Appellant was permitted to do so by eliciting the following: when Mr. Enoch went to the North Hollywood police station on April 7, 1986, and reported appellant’s bomb threat, Mr. Enoch asked the police to help him enforce his Florida child custody order; the Los [641]Angeles Police Department gave Mr. Enoch money for food and lodging on several occasions; his wife Ernestine, appellant’s sister, once had him arrested, claiming he had swung at her with a hammer; Mr. Enoch had recently written a four-page letter to the prosecutor in which he stated that his main concern was his children and their welfare.
The only impeachment of Mr. Enoch the trial court did not permit was the asking of the following question: “Isn’t it true [you have] now taken the children . . . [to] North Carolina in violation of a court order?”
In explaining its ruling the trial court stated:
“But aren’t we really talking about a really collateral issue here that requires foundation from various sources?
“We’re in effect having something—actually dealing with some kind, as counsel said, marital dispute and custody and visitation over children. And it’s far removed from 1985, December and January of ’86. We’re talking about issues that are—I don’t see the credibility issue three years down the line.
“I expect we would probably, if we had to do it right, would have to bring in the people who have been involved in this marital dispute over custody and visitation, and have some kind of a mini trial, if you will, as to who was right and who was wrong.
“And I really don’t think it touches on the credibility of this individual, nor do I think it has anything to do with bias or prejudice with respect to this defendant.
“This is obviously a dispute, from what I have heard, between the parents of children. One has a court order, if I’m not mistaken, in Florida, or a court order from some other state, perhaps California, and I don’t know what’s going on in North Carolina.
“But I think these are all collateral to the issue of credibility, incidents that have taken place perhaps three years after this phone call was made back in early 1986.1 just don’t think it merits consideration. Under 352,1 would be in a position to say it’s an undue waste of the court’s time.”
Appellant contends that by excluding this impeachment evidence the trial court infringed his right to present a defense. “The claim does not withstand scrutiny. As a general matter, the ordinary rules of evidence do not impermissibly infringe on the accused’s right to present a
[642]defense. Courts retain, moreover, a traditional and intrinsic power to exercise discretion to control the admission of evidence in the interests of orderly procedure and the avoidance of prejudice.” (People v. Hall (1986) 41 Cal.3d 826, 834 [226 Cal.Rptr. 112, 718 P.2d 99].)
Our California Supreme Court recently reiterated trial court authority to enforce reasonable limits on cross-examination: “It does not follow, of course, that the Confrontation Clause of the Sixth Amendment prevents a trial judge from imposing any limits on defense counsel’s inquiry into the potential bias of a prosecution witness. On the contrary, trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation that is repetitive or only marginally relevant ... the Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent the defense might wish.” (People v. Harris (1989) 47 Cal.3d 1047, 1091 [255 Cal.Rptr. 352, 767 P.2d 619].) (Original italics, internal quotation marks omitted, quoting Delaware v. Van Arsdall (1986) 475 U.S. 673, 678-679 [89 L.Ed.2d 674, 682,-683, 106 S.Ct. 1431].)
For the reasons stated by the trial court, the subject question was impeachment on a collateral issue; was marginally probative, if probative at all; and would have consumed undue time. The trial court acted within its discretion in excluding the evidence. (Evid. Code, § 352.)4
5. Instructions regarding “unforeseeable intervening cause. ”
Appellant contends the trial court erred by failing to instruct, sua sponte, on “unforeseeable intervening cause.” He principally relies upon People v. Armitage, supra, 194 Cal.App.3d 405.
Armitage, which we earlier discussed, does not involve sua sponte instructional duty. It merely elucidates the standard for superseding causes, requiring that they be “an unforeseeable intervening cause, an extraordinary and abnormal occurrence.” (194 Cal.App.3d at p. 420.) In Armitage the defendant argued there was compelling evidence of such a superseding cause, the victim’s reckless decision to abandon the overturned boat and his attempt to swim to shore.
Here, no evidence of victim-officer negligence or recklessness having been offered or received, there was no evidence of any intervening or superseding cause.
[643]In addition to other causation instructions, the court advised the jury: “To constitute murder there must be, in addition to the death of a human being, an unlawful act which was a proximate cause of that death.
“A proximate cause of a death is a cause which, in natural and continuous sequence, produces the death, and without which the death would not have occurred.
“There may be more than one proximate cause of a death. When the conduct of two or more persons contributes concurrently as proximate causes of death, the conduct of each of said persons is a proximate cause of the death if that conduct was a substantial factor contributing to the result. A cause is concurrent if it was operative at the moment of death and acted with another cause to produce the death.” (CALJIC No. 8.55 (1987 rev.).)
This instruction correctly stated the law (People v. Armitage, supra, 194 Cal.App.3d 405, 420; People v. Dominick (1986) 182 Cal.App.3d 1174, 1209, fn. 26 [227 Cal.Rptr. 849]) and fully informed the jury of those “points of law pertinent to the issue” of causation (§ 1093, subd. (f)). Since there was no evidence of superseding cause it was not a proper subject of instruction.
Appellant further contends that in giving CALJIC No. 8.55 the trial court should have defined “natural and continuous.” We disagree. Neither People v. Hebert (1964) 228 Cal.App.2d 514 [39 Cal.Rptr. 539], upon which appellant principally relies, nor any other cited authority so holds.
In Hebert a defendant who punched the victim causing him to fall and hit his head on a wood barroom floor was charged with the victim’s death. But after that punch a succession of mishaps befell the victim: there was evidence the police dragged him from the bar, that at the sidewalk they dropped him on his face from a height of 12-14 inches, and at the station when the victim was standing with his hands above his head, he fell backward “like a board,” striking his head on the cement floor. The victim died the next morning. As Hebert observed, “the question of proximate cause was an intricate and difficult one” (228 Cal.App.2d at p. 519) and an instruction which included such undefined and confusing terms as “efficient intervening cause” and “supervening cause” (id. at p. 52Ó) was inadequate.
Hebert is inapposite. The instant facts did not involve any intervening causes, let alone “intricate and difficult” ones. Moreover, the confusing terms criticized by Hebert (“efficient intervening cause” and “supervening cause”) were not part of the instruction given by the instant trial court. (See also People v. Pike (1988) 197 Cal.App.3d 732, 744 [243 Cal.Rptr. 54].)
[644]We find no error.
6. Inherently dangerous felony: section 12303 and section 12303.2.
As our California Supreme Court recently observed: “There is no precise statutory definition for the second degree felony-murder rule. In People v. Ford (1964) 60 Cal.2d 772, 795 [36 Cal.Rptr. 620 [388 P.2d 892], we defined the doctrine as follows: ‘A homicide that is a direct causal result of the commission of a felony inherently dangerous to human life (other than the six felonies enumerated in Pen. Code, § 189) constitutes at least second degree murder. [Citations.]’ In determining whether the felony is inherently dangerous, ‘we look to the elements of the felony in the abstract, not the particular “facts” of the case.’ ” (People v. Patterson (1989) 49 Cal.3d 615, 620-621 [262 Cal.Rptr. 195, 778 P.2d 549].)
In applying this rule which “lies embedded in our law” (People v. Phillips (1966) 64 Cal.2d 574, 582 [51 Cal.Rptr. 225, 414 P.2d 353]) the following felonies have been held not inherently dangerous: grand theft (People v. Phillips, supra, 64 Cal.2d 574), possession of a firearm by a felon (People v. Satchell (1971) 6 Cal.3d 28 [98 Cal.Rptr. 33, 489 P.2d 1361, 50 A.L.R.3d 383]), possession of a sawed-off shotgun (ibid.), escape (People v. Lopez (1971) 6 Cal.3d 45 [98 Cal.Rptr. 44, 489 P.2d 1372]; People v. Sedeno (1974) 10 Cal.3d 703 [112 Cal.Rptr. 1, 518 P.2d 913]), aggravated false imprisonment (People v. Henderson (1977) 19 Cal.3d 86 [137 Cal.Rptr. 1, 560 P.2d 1180]), and practicing medicine without a license (People v. Burroughs (1984) 35 Cal.3d 824 [201 Cal.Rptr. 319, 678 P.2d 894]).
On the other hand, these felonies have been held inherently dangerous: furnishing narcotics to a minor (People v. Poindexter (1958) 51 Cal.2d 142, 149 [330 P.2d 763]), furnishing phenobarbital (People v. Cline (1969) 270 Cal.App.2d 328, 331-332 [75 Cal.Rptr. 459, 32 A.L.R.3d 582]), driving under the influence of narcotics (People v. Calzada (1970) 13 Cal.App.3d 603, 606 [91 Cal.Rptr. 912]), burning of a motor vehicle (People v. Nichols (1970) 3 Cal.3d 150 [89 Cal.Rptr. 721, 474 P.2d 673]), furnishing methyl alcohol (People v. Mattison (1971) 4 Cal.3d 177 [93 Cal.Rptr. 185, 481 P.2d 193]), kidnapping (People v. Romo (1975) 47 Cal.App.3d 976 [121 Cal.Rptr. 684]; People v. Kelso (1976) 64 Cal.App.3d 538, 542 [134 Cal.Rptr. 364]), furnishing heroin (People v. Taylor, supra, 112 Cal.App.3d 348), felony child abuse by malnutrition and dehydration (People v. Shockley (1978) 79 [645]Cal.App.3d 669 [145 Cal.Rptr. 200], and furnishing cocaine (People v. Patterson5, supra, 49 Cal.3d 615).
Appellant contends that neither simple possession of a destructive device (§ 123036) nor reckless or malicious possession of a destructive device (§ 12303.2) are inherently dangerous felonies. Since the jury may have relied upon these underlying felonies in determining the homicides to be murder, if appellant is correct the murder convictions must be reversed. (People v. Green (1980) 27 Cal.3d 1, 69 [164 Cal.Rptr. 1, 609 P.2d 468].)
Whether or not possession of a destructive device (§ 12303) or the related but separate crime of reckless or malicious possession of a destructive device (§ 12303.2) are inherently dangerous felonies are apparently questions of first impression.
We need answer only one of these first impression questions. Since, by their verdict, the jury found appellant guilty of reckless or malicious possession of a destructive device (§ 12303.2), it is of no consequence that in instructing the jury on the second degree felony-murder rule the trial court referred only to possession of a destructive device7 (§ 12303) (see People v. Sedeno, supra, 10 Cal.3d 703, 721; People v. Turner (1990) 50 Cal.3d 668 [268 Cal.Rptr. 706, 789 P.2d 887]).
We address only section 12303.2 which provides: “Every person who recklessly or maliciously has in his possession any destructive device or any explosive on a public street or highway, in or near any theater, hall, school, college, church, hotel, other public building, or private habitation, in, on, or near any aircraft, railway passenger train, car, cable road or cable car, vessel engaged in carrying passengers for hire, or other public place ordinarily [646]passed by human beings is guilty of a felony, and shall be punishable by imprisonment in the state prison for a period of two, four, or six years.”
The abstract elements of the offense are the reckless or malicious possession of an explosive device in any specified place. Common to each specified place is the proximity of people.
Appellant argues that because there are “conceivable [ ] ways of violating the statute that do not necessarily pose a threat to human life” the crime is not inherently dangerous. Further, appellant stresses that the instant bomb was hidden in a locked garage and secured with a safety device. This argument is mistaken.
We must view the elements of the offense, not the particular facts of the instant offense. In viewing the elements our task is not to determine if it is possible (i.e., “conceivable”) to violate the statute without great danger. By such a test no statute would be inherently dangerous. Rather the question is: does a violation of the statute involve a high probability of death? (People v. Patterson, supra, 49 Cal.3d 615, 617.) If it does, the offense is inherently dangerous.
We do not regard the question as a close one. To recklessly or maliciously possess a bomb in a residential area, as appellant did, or in any place close to people, inherently involves a high probability of death. Almost uniquely, bombs have an “inherently dangerous nature.” (People v. Heideman (1976) 58 Cal.App.3d 321, 335 [130 Cal.Rptr. 349].) They are so dangerous that even when not set to explode, their possession violates the statute. (People v. Westoby (1976) 63 Cal.App.3d 790, 795 [134 Cal.Rptr. 97].) As one court observed: “A bomb has special characteristics which obviously differentiate it from all other objects. In the first place, the maker often loses control over the time of its detonation. . . . In the second place, it may wreak enormous havoc on persons and property. In the third place, its victims are often unintended sufferers. And finally, considering its vast destructive potentialities, it is susceptible of fairly easy concealment.” (People v. Superior Court (Pebbles) (1970) 6 Cal.App.3d 379, 382 [85 Cal.Rptr. 803].)
We hold that section 12303.2 is an inherently dangerous felony.
7. Instruction regarding “set to explode. ”
The trial court instructed the jury: “One need not possess a destructive device already set to explode in order to be guilty of recklessly or maliciously possessing a destructive device.”
[647]Appellant contends it was error to give the instruction because there was no evidentiary basis for it, it misapplied People v. Westoby, conflicted with the instruction defining “destructive device,” and was an improper “pinpoint” instruction. We disagree.
There was an evidentiary basis for the instruction. Uncontradicted evidence established that when the master bomb was discovered its triggering device was protected by a piece of rubber tubing, a “safety device.”
The instruction is a correct statement of the law (People v. Westoby, supra, 63 Cal.App.3d 790, 795; People v. Heideman, supra, 58 Cal.App.3d 321) and did not conflict with the instruction defining “destructive device.”8 Nor is it an improper “pinpoint” instruction.
There was no error.
8. Misdemeanor-manslaughter instruction.
Appellant contends the trial court should have instructed sua sponte on misdemeanor-manslaughter because simple possession of a destructive device (§ 12303) is a lesser included offense of reckless or malicious possession of a destructive device (§ 12303.2) and because simple possession of a destructive device “could have been a misdemeanor.” (Italics added.)
Appellant is mistaken. Simple possession of a destructive device (§ 12303) is an alternative felony (a “wobbler”), punishable by imprisonment in either state prison or county jail. Since it is a crime “punishable . . . by imprisonment in the state prison” (§ 17) it was a felony for all purposes until validly reduced to a misdemeanor. (People v. Banks (1959) 53 Cal.2d 370, 380-383 [1 Cal.Rptr. 669, 348 P.2d 102]; People v. Bozigian (1969) 270 Cal.App.2d 373, 379 [75 Cal.Rptr. 876]; People v. Samarjian (1966) 240 Cal.App.2d 13, 23 [49 Cal.Rptr. 180].)
[648]There was no basis for a misdemeanor-manslaughter instruction.
9. Lesser included offense instruction.
Appellant contends the court erred in refusing to instruct on simple possession of a destructive device (§ 12303), a lesser included offense of recklessly or maliciously possessing such a device. (§ 12303.2.) Appellant is correct.
“ ‘[T]he trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury’s understanding of the case.’ [Citation.] That obligation has been held to include giving instructions on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present [citation], but not when there is no evidence that the offense was less than that charged.” (People v. Sedeno, supra, 10 Cal.3d 703, 715.)
The charged offense of section 12303.2 included the element of reckless or malicious possession, an element absent from section 12303. Since it was possible for the jury to entertain a reasonable doubt concerning this element, it was error for the court not to instruct on the lesser included offense, section 12303.
The remaining question is whether the error was prejudicial.
“[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.” (People v. Sedeno, supra, 10 Cal.3d 703, 721.)
As People v. Westoby concluded in similar circumstances: “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.’ ” (People v. Westoby, supra, 63 Cal.App.3d 790, 796.) The jury’s rejection was explicit in the instant case. By their verdict they found “true” the special circumstance allegation of bomb-murder which [649]required a determination that “[t]he defendant knew or reasonably should have known that his act or acts would create a great risk of death to a human being or human beings.”
The instructional error was harmless.
10. “Wilfully” instruction.
The court defined the word “willfully,” instructing the jury: “The word ‘willfully’ when applied to the intent with which an act is done or omitted means with a purpose or willingness to commit the act or to make the omission in question. The word ‘willfully’ does not require any intent to violate the law, or to injure another, or to acquire any advantage.” (CALJIC No. 1.20.)
Appellant contends this instruction negated other,9 specific intent instructions and was error. Appellant’s contention is not well taken.
The other instructions appellant refers to (see fn. 9.) do not contain the word “willfully.” Since the subject instruction, CALJIC No. 1.20, directs the jury to employ its definition when the word “willfully" is “applied to the intent with which an act is done or omitted” they must have understood that when “willfully” was not so applied—i.e., the word was simply not used— the meaning of the word was not to be applied.
We are satisfied there was neither confusion nor error.
11. Aiding and abetting instruction.
The trial court instructed the jury on aiding and abetting (CALJIC Nos. 3.00 and 3.01). Appellant contends it was error to do so because there [650]was insufficient evidence of aiding and abetting and that the instruction was prejudicial because it was exploited by the prosecutor. Appellant relies upon People v. Singleton (1987) 196 Cal.App.3d 488 [241 Cal.Rptr. 842]. We find Singleton distinguishable and the contention without merit.
Slim but sufficient evidence justified aiding and abetting instructions. The fingerprint of appellant’s brother was found on the cover of “The Anarchist’s Cookbook”; appellant, when confronted by the slave bomb on his garage floor, denied all knowledge of it; appellant introduced evidence that he had had weekly garage sales during which numerous persons had unrestricted access to his garage.
Singleton is distinguishable. There, explaining the 42 cocaine bindles found in her boot, defendant claimed the driver of the car she had been stopped in, Bedell, had just given them to her. Bedell confirmed her account, claiming he had found the bindles, shortly before, in a parking lot.
In reversing the possession of cocaine for sale conviction (the transportation of cocaine conviction was affirmed), the appellate court found sufficient evidence to justify the trial court’s aiding and abetting instructions but no evidence supporting the prosecutor’s “phantom” aiding and abetting theory. Because it was clear the jury had relied upon and were confused by the prosecutor’s theory, the error was prejudicial.
Here, although the prosecutor, out of an abundance, perhaps an overabundance, of caution, did refer to the aiding and abetting doctrine; he did not rely upon it. Rather, as the evidence compelled, he emphasized “I will argue to you throughout this morning that this man is the only man responsible for this bomb.” Moments later he stated, “So my final word I’m sure will be this man alone is responsible for the death of these officers.”
If the slim evidence was insufficient to justify the instructions, in light of the overwhelming evidence of appellant’s possession of the bomb, the error was harmless. (People v. Singleton, supra, 196 Cal.App.3d 488,493 [“Where accomplice instructions are clearly inapplicable to the case, the error is ordinarily not prejudicial, since it can be reasonably assumed that the jury ignored them.”]; People v. Hairgrove (1971) 18 Cal.App.3d 606, 608-609 [96 Cal.Rptr. 142]; People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243].)
12. Limiting instruction regarding evidence of other crimes.
Appellant contends the trial court should have, sua sponte, given CALJIC No. 2.50, instructing the jury not to consider evidence of other [651]crimes as proof appellant is a person of bad character with a disposition to commit crimes.
The contention hinges upon Mr. Enoch’s testimony that on January 24, 1986, about two weeks before the instant offenses, appellant telephoned him in Florida and threatened to blow him up in his car.
Appellant argues that this threat constitutes evidence of two “other crimes”: section 422 (threatening another with death or great bodily injury), a felony, and section 653m (a telephone threat to inflict injury), a misdemeanor.
The contention does not withstand scrutiny.
Assuming that a California telephone call to Florida might violate both sections 422 and 653m, it is improbable that appellant’s threat satisfied the “intent to terrorize”10 element of section 422, that the jury would have been aware of such an esoteric statute, and if aware be prejudiced as a result.
The section 653m argument is similarly farfetched. If the jury believed the Enoch testimony they were “prejudiced” not because by making the threat appellant committed a misdemeanor (§ 653m) but rather because by evidencing motive, knowledge, and intent, the threat suggested appellant was responsible for the deaths of Officers McCree and Ball.
People v. Collie (1981) 30 Cal.3d 43, 63-64 [177 Cal.Rptr. 458, 634 P.2d 534, 23 A.L.R.4th 776] holds that a trial court has no sua sponte duty to instruct on the limited admissibility of “other crimes” evidence. Only in a rare “extraordinary case” (id. at p. 64) might such a duty arise. This is not such a case.
13. Evidence of implied malice.
“Murder is the unlawful killing of a human being . . . with malice aforethought.” (§ 187.) “Such malice may be . . . implied.” (§ 188.) Implied malice is established when a person does “ ‘an act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life.’ ” (People v. Phillips, supra, 64 Cal.2d [652574], 587, quoted with approval in People v. Watson (1981) 30 Cal.3d 290, 300 [179 Cal.Rptr. 43, 637 P.2d 279].) Implied malice requires “a determination that the defendant actually appreciated the risk involved, i.e., a subjective standard.” (Id. at pp. 296-297.) (Original italics.)
Appellant contends the evidence was insufficient to prove implied malice.
“The proper test to determine a claim of insufficient evidence in a criminal case is whether, on the entire record, a rational trier of fact could find appellant guilty beyond a reasonable doubt. In making this determination, the appellate court must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. . . . [0]ur task ... is twofold. First, we must resolve the issue in the light of the whole record .... Second, we must judge whether the evidence of each of the essential elements ... is substantial....
“Although the appellate court must ensure the evidence is reasonable in nature, credible, and of solid value, it must be ever cognizant that it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends .... Thus, if the verdict is supported by substantial evidence, this court must accord due deference to the trier of fact and not substitute its evaluation of a witness’s credibility for that of the fact-finder.” (People v. Barnes, supra, 42 Cal.3d 284, 303-304. Internal citations and quotations deleted. Original italics.)
Appellant couches his argument this way: “The record is devoid of any evidence that, at the time just prior to the appearance of the police, appellant actually appreciated that his possession of the bomb endangered the life of another. Rather, the facts [¿7c] that he was sleeping a few feet away from the bomb, and that his family was in the house indicates that he thought the bomb was safe, not a subjective awareness of its danger to human life.”
We disagree with appellant’s factual perspective and legal conclusion. Subjective appreciation of risk is not measured during sleep nor restricted to a “time just prior to the appearance of the police.” In circumstances like the instant one involving ongoing possession of a bomb, implied malice may be determined by considering all relevant circumstantial evidence.
The following substantial evidence supports the jury’s finding of implied malice: appellant made a linked slave-and-master bomb whose only purpose [653]was to kill people; he stored the bomb in his garage, part of a residential neighborhood; the bomb would explode if a soldered wire touched a nearby metal plate; only a piece of rubbertube protected the triggering contact; on January 24,1986, appellant threatened to blow up Mr. Enoch; on February 8, 1986, appellant knew the police were going to search his garage and might find his bomb; on February 8, 1986, approximately 10 a.m. appellant knew the police had found and had moved the slave bomb; about an hour later, when an expert attempted to dismantle the master bomb, it exploded with a “deafening noise,” dismembering and killing two people.
14. Ireland error.
Appellant claims Ireland (People v. Ireland (1969) 70 Cal.2d 522 [75 Cal.Rptr. 188, 450 P.2d 580, 40 A.L.R.3d 1323]) error. He argues that because possession of the bomb was a “necessary ingredient of the homicide” it was “integral” to and “included in fact within the offense” and thus could not activate the felony-murder rule. Appellant is mistaken.
In Ireland an inebriated defendant who had shot and killed a victim was convicted of second degree murder by “bootstrapping” the underlying felonious assault into murder. In reversing the conviction the Supreme Court stated, “the utilization of the felony-murder rule in circumstances such as those before us extends the operation of that rule ‘beyond any rational function that it is designed to serve.’ [Citation.] To allow such use of the felony-murder rule would effectively preclude the jury from considering the issue of malice aforethought in all cases wherein homicide has been committed as a result of a felonious assault—a category which includes the great majority of all homicides.” (70 Cal.2d at p. 539.) (Italics added.)
Ireland has been applied when the homicide involved an assault. (People v. Wilson (1969) 1 Cal.3d 431 [82 Cal.Rptr. 494, 462 P.2d 22] [burglary-murder improper when burglary dependent upon entry with intent to commit felony assault]; People v. Carlson (1974) 37 Cal.App.3d 349 [112 Cal.Rptr. 321] [Defendant killed his pregnant wife and her fetus. Voluntary manslaughter of wife cannot make death of fetus second degree murder]; People v. Smith (1984) 35 Cal.3d 798 [201 Cal.Rptr. 311, 678 P.2d 886] [felony child abuse—murder].)
But Ireland has not been applied, even in assault-homicide cases, when death resulted “from conduct [with] an independent felonious purpose, such as robbery or rape, which happened to be accomplished by a deadly weapon and therefore technically includes assault with a deadly weapon.” (People v. Burton (1971) 6 Cal.3d 375, 387 [99 Cal.Rptr. 1, 491 P.2d 793] [defendant [654]who shot and killed robbery victims was convicted of first degree murder. No Ireland error.].)
Further, Ireland has not been applied when there was no assault (People v. Taylor (1970) 11 Cal.App.3d 57 [89 Cal.Rptr. 697] [victim died from overdose of heroin furnished by defendant]) or when the “assault” had a “collateral” purpose (People v. Mattison, supra, 4 Cal.3d 177, 185 [victim died from methyl alcohol knowingly furnished by defendant]).
No assault was here involved. As the court stated in Burton, “The net effect of defendant’s argument would be to eliminate the application of the felony-murder rule to all unlawful killings which were committed by means of a deadly weapon, since in each case the homicide would include in fact assault with a deadly weapon. . . .” (People v. Burton, supra, 6 Cal.3d 375, 386-387.) As did Burton, we reject the argument.
15. Double use of felonious possession of a destructive device.
Appellant contends the trial court erred in instructing the jury that they could use the crime of possession of a destructive device twice, first to find he had committed second degree murder, and second to convert that murder into murder of the first degree. Appellant is correct.
The trial court instructed the jury that the accidental killing of a human being “which occurs as a direct causal result of . . . possession of a destructive device ... is murder of the second degree.” (CALJIC No. 8.32.) The trial court further instructed the jury: “Murder which is perpetrated by means of a destructive device or explosive is murder of the first degree. [1] Thus, if you find that the defendant has committed second degree murder by either second degree felony murder or by implied Malice, by law it becomes first degree murder.” (Italics added.)
These instructions cannot be reconciled with California statutory and decisional law. Section 189 provides that “all murder which is perpetrated by means of a destructive device . . . , poison, lying in wait, torture, or by any other kind of willful, deliberate, and premeditated killing, or which is committed in the perpetration of . . . arson, rape, robbery, burglary, mayhem, kidnapping, train wrecking, or any act punishable under Section 286, 288, 288a, or 289, is murder of the first degree; and all other kinds of murders are of the second degree.” (Italics added.)
This statute creates three categories of first degree murder: (1) willful, deliberate, and premeditated murder; (2) first degree felony murder [655](a killing “committed in the perpetration of [specified felonies]”); and (3) murder perpetrated by a specified means such as “a destructive device.”
Unlike the second category (first degree felony murder) which requires neither malice aforethought nor deliberation or premeditation, the third category (murder by a specified means) requires not just a killing but a murder. “It must be emphasized, however, that a killing by one of the means enumerated in the statute is not murder of the first degree unless it is first established that it is murder. If the killing was not murder, it cannot be first degree murder. . . .” (People v. Mattison, supra, 4 Cal.3d 177,182, original italics.)
The effect of the trial court’s instructions was a rewriting of section 189. Instead of “All murder which is perpetrated by means of a destructive device” the section became “All homicide which is perpetrated by means of a destructive device.” Put another way, the trial court’s instructions added a felony to the first degree felony-murder rule: possession of a destructive device.
Although the reckless possession of a bomb (§ 12303.2) may become second degree murder, it does not, thereby, automatically become first degree murder. People v. Mattison, addressing a comparable provision of section 189, stated: “To go further, however and hold that... the use of poison is enough not only to supply the implied malice of murder but to make that murder of the first degree would make the use of poison serve double duty and result in criminal liability out of all proportion to the ‘turpitude of the offender.’ [Citation.] It would extend the felony-murder doctrine ‘beyond any rational function that it is designed to serve.’ ” (People v. Mattison, supra, 4 Cal.3d 177, 186.)
Respondent cites no case authorizing such “double duty” for felonious bomb possession, and we are aware of none. In fact, respondent’s response to the issue is oblique, arguing only that “the evidence of implied malice was overwhelming.”11
Having concluded that the first degree murder convictions must be reversed, we need not discuss other issues related to those convictions.
Disposition
For the reasons stated, the judgment is affirmed as to count three, conviction of section 12303.2, and reversed as to counts one and two, the convic-
[656]tions of the first degree murders of Ronald Ball and Arleigh McCree. The cause is remanded to the superior court with directions to enter judgments of guilty of second degree murder, counts one and two, if the prosecutor consents to forgo prosecuting appellant for first degree murders, or to set the cause for retrial, if the prosecutor does not so consent. (See People v. Webber (1991) 228 Cal.App.3d 1146, 1172-1173 [279 Cal.Rptr. 437]; People v. Riederer (1990) 217 Cal.App.3d 829, 837 [266 Cal. Rptr 355]; see also People v. Jaramillo (1976) 16 Cal.3d 752, 760-761 [129 Cal.Rptr. 306, 548 P.2d 706].)
Lillie, P. J., concurred.
Unless otherwise noted all statutory references are to the Penal Code.
There was no evidence the wire cutters were defective before the bomb exploded.
The section provides: “A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous exclusion of evidence unless the court which passes upon the effect of the error or errors is of the opinion that the error or errors complained of resulted in a miscarriage of justice and it appears of record that: ffl (a) The substance, purpose, and relevance of the excluded evidence was made known to the court by the questions asked, an offer of proof, or by any other means; [J] (b) The rulings of the court made compliance with subdivision (a) futile; or [3] (c) The evidence was sought by questions asked during cross-examination or recross-examination.”
The section provides: “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”
Patterson did not determine that furnishing cocaine was inherently dangerous, only that the trial court could so determine. (Id. at p. 625.) Since the test is an abstract one, why the Supreme Court thought “[t]he task of evaluating the evidence on this issue is most appropriately entrusted to the trial court” (ibid.) is not self-evident.
The section provides:
“Any person, firm, or corporation who, within this state, possesses any destructive device, other than fixed ammunition of a caliber greater than .60 caliber, except as provided by this chapter, is guilty of a public offense and upon conviction thereof shall be punished by imprisonment in the county jail for a term not to exceed one year, or in state prison, or by a fine not to exceed ten thousand dollars ($10,000) or by both such fine and imprisonment.”
The court gave the following instruction: “The unlawful killing of a human being, whether intentional, unintentional or accidental, which occurs as a direct causal result of the commission of or attempt to commit a felony inherently dangerous to human life, namely, the crime of possession of a destructive device and where there was in the mind of the perpetrator the specific intent to commit such crime, is murder of the second degree, [J] The specific intent to commit possession of a destructive device and the commission of or attempt to commit such crime must be proved beyond a reasonable doubt.” (CALJIC No. 8.32.)
The court instructed the jury as follows:
“A ‘destructive device’ includes any of the following weapons:
“1. Any bomb, grenade, explosive missile, or similar device or any launching device therefor.
“A ‘bomb’ is a device carrying an explosive charge fused to detonate under certain conditions.
“An explosive means any substance or combination of substances, the primary or common purpose of which is detonation or rapid combustion and which is capable of a relatively instantaneous or rapid release of gas and heat, or any substance the primary purpose of which, when combined with others, is to form a substance of a relatively instantaneous or rapid release of gas and heat. The term ‘explosive’ includes dynamite, nitroglycerin, black powder, pyrodex, and smokeless powder.”
The other pertinent instructions are CALJIC Nos. 3.31 and 8.32. As modified by the trial court they read:
“In each of the crimes and allegations charged in Counts 1, 2 of the information, namely, murder there must exist a union or joint operation of act or conduct and a certain specific intent in the mind of the perpetrator, to possess a bomb. Unless such specific intent exists the crime or allegation to which it relates is not committed. [Ü The specific intent required is to possess a bomb.” (CALJIC No. 3.31.)
“The unlawful killing of a human being, whether intentional, unintentional or accidental, which occurs as a direct causal result of the commission of or attempt to commit a felony inherently dangerous to human life, namely, the crime of possession of a destructive device and where there was in the mind of the perpetrator the specific intent to commit such crime, is murder of the second degree. [1] The specific intent to commit possession of a destructive device and the commission of or attempt to commit such crime must be proved beyond a reasonable doubt.” (CALJIC No. 8.32.)
Former section 422.5 defined “terrorize,” as used in section 422, as follows:
“As used in this title, ‘terrorize’ means to create a climate of fear and intimidation by means of threats or violent action causing sustained fear for personal safety in order to achieve social or political goals.”
But not so “overwhelming” that the prosecutor chose to solely rely upon it to establish second degree murder. The second degree felony-murder rule was also relied upon. We cannot determine upon which theory the jury relied, thus the error was prejudicial. (People v. Green, supra, 27 Cal.3d 1, 69.)