People v. Teroganesian

Opinion

LILLIE, P. J.

Zorak Teroganesian appeals from judgment entered following a jury trial in which he was convicted of use of a destructive device and explosive to destroy property, count 2, (Pen. Code, § 12303.3); explosion of a destructive device causing bodily injury, count 3, (Pen. Code, § 12309); and first degree burglary, count 4, (Pen. Code, § 459). He was sentenced to the middle term of seven years on count 3, the middle term of five years on count 2 and the middle term of four years on count 4, with a stay of sentence ordered on counts 2 an 4 pursuant to Penal Code section 654. He contends he cannot be convicted under Penal Code section 12309 when no victim was injured when the car bomb detonated.

Statement of Facts and Procedural History

On November 8, 1992, Teroganesian placed a pipe bomb beneath the passenger seat of a 1976 Oldsmobile Cutías owned by Leonid Kanter-Kantets and parked in a subterranean garage at 1047 Ogden Drive, West Hollywood. Kanter-Kantets did not know defendant and could think of no reason defendant would place a bomb in the automobile. The bomb detonated while Teroganesian was placing it in the car, blowing off a “good portion,” if not all, of his left hand and wounding the left side of his forehead and chest.

Teroganesian asserted as his defense that he had not placed the bomb in the vehicle and that he only was in the process of stealing the vehicle when the explosion occurred.

Discussion

Appellant contends he cannot be convicted of violating Penal Code section 12309 when the only bodily injury inflicted was to himself. This contention is well taken.

[1537]

Because the question is one of law and not one of fact we are not bound by the conclusion of the trial court and must independently decide the issue. (See

In re Hamm

(1982) 133 Cal.App.3d 60, 65 [183 Cal.Rptr. 626].)

Penal Code section 12309 provides: “Every person who willfully and maliciously explodes or ignites any destructive device or any explosive which causes bodily injury to any person is guilty of a felony, and shall be punished by imprisonment in the state prison for a period of five, seven, or nine years.”