Defendant Nicholas John Smit was charged with a number of drug offenses that exposed him to a maximum of 11 years in state prison. How did defendant attempt to avoid those 11 years? By trying to kill the detective whose testimony was required to convict him, of course. None of the usual suspects such as Wile E. Coyote, Elmer Fudd or Yosemite Sam, not even Boris or Natasha, ever eclipsed what defendant did here.
A jury convicted defendant of several drug offenses and four counts of attempted murder on Detective Charles Johnson. Defendant's efforts to kill the detective included attempting to fire a military rocket at the building where the detective worked, setting three boobytraps using panji boards and three more using zip guns. One of the zip gun boobytraps was attached to a fence gate and was designed to shoot when the gate was opened. The other zip gun boobytraps were rigged underneath vehicles known to be driven by the detective. We publish this case because defendant's use of zip gun boobytraps requires us to decide whether his conduct qualifies as personal use of a firearm under Penal Code section 12022.53.
In a way, defendant's attempts to kill the detective were successful. He no longer faced that 11 years. Instead, the court sentenced him to four consecutive life terms, plus an additional term of more than 40 years.
Johnson of the Hemet Police Department obtained a search warrant for defendant's residence and executed it when defendant arrived home on June 25, 2009. Inside a safe in defendant's bedroom, the police found $580 in United States currency, a MoneyGram receipt bearing defendant's name, a checkbook with checks bearing defendant's name and address, an Ohaus digital scale, 60 one-inch-by-one-inch Ziploc baggies, two tubes used for snorting cocaine, approximately 11.6 grams of cocaine, a plastic bag containing 254 grams (over one-half pound) of suspected marijuana, a jar containing two "chunks" of suspected methamphetamine, five Vicodin tablets, a pay/owe sheet, a jar containing 14 or 15 grams of marijuana, a loaded .22-caliber
In the backyard, police found six marijuana plants. Additional small marijuana plants were found in a closet. Johnson opined the marijuana and cocaine were possessed for sale.
Defendant was booked into the Riverside County jail. The district attorney filed the drug charges against defendant on July 17, 2009. Defendant was released from custody pending trial on the drug charges.
Johnson, a member of the police department's gang task force, was assigned an unmarked 2007 Ford Crown Victoria, which he drove home at night. He typically worked Tuesday through Friday. Less than a week after being assigned to the gang task force, Johnson was to testify in defendant's preliminary examination on the drug charges scheduled for December 7, 2009.
Prior to December 7, Johnson was informed the preliminary examination would not go forward on that date. About 10:00 p.m. on Sunday, December 6, the day before the scheduled preliminary examination, it was raining when Johnson went to bed. Johnson heard nothing unusual that night. At 6:00 a.m., he went out to the Crown Victoria to head to the gym. He saw a panji board outside his vehicle. The board contained six-inch barbed nails or spikes sharpened at one end. There was a substance embedded into the barbed areas. The substance appeared similar to fecal matter mixed with ground glass. Johnson found like devices outside his wife's and his son's vehicles. Johnson said the boards were similar to those used by the Vietcong during the Vietnam War, when sharpened bamboo sticks were used instead of nails.
He also found several chrome "ball bearings" of the type used with "wrist rockets," a type of slingshot, in his driveway. The ball bearings had knocked paint off his garage and left indentations in the garage door. Additionally, a kitchen window had been broken by a "much larger chrome ball bearing."
Matthew Hess, a sergeant with the Hemet Police Department, supervised the gang task force. He said Johnson was consistently early to work, sometimes starting an hour before anybody else in the unit.
Hess drove up to the closed gate that morning. He got out of his vehicle and started to open the gate. When it was open about three or four feet, Hess heard "a loud bang." He thought it was a gunshot, but did not see anyone with a gun. Another member of the team parked behind Hess said he did not see anything. Hess went back to the gate and saw it had a device attached to it. The device was a black metal tube — a zip gun — that blended in with the black fence. The zip gun was attached by black electrical-type tape and had a lanyard. The tube of the zip gun was about the same size as the horizontal metal bar at the top of the gate. Hess said he would have been shot in the left side of his head had he been facing the gate as he opened it.
Hess found a black belt he likened to a vacuum cleaner belt on the ground next to the gate. An officer recovered a spent .38-caliber hollow point bullet a short distance away.
An investigator conducted research on the Internet to determine whether plans for making a zip gun like the one found on the gang task force's gate are online. He found a Web page with images and a link to a manual that provided plans for zip guns and panji boards. The zip gun plans "appeared almost identical" to the zip gun found on the gate. The manual also contained an image of a panji board and suggested creating barbs on the spikes and dipping them in an infectious substance, such as feces, to aid in causing infection. The manual contained references to slingshots and discussed how to avoid leaving fingerprints and DNA on items. The dents to Johnson's garage door appeared to have been caused by ball bearings shot from a slingshot or wrist rocket.
After the February 23 incident, the task force moved to a different location inside the Hemet Police Department for a period of time and then to another building with a parking lot, wrought iron fence, security cameras, and a remote control electronic gate. Johnson continued to work on the task force.
Johnson was again subpoenaed for defendant's preliminary examination on the drug charges, then set for March 5, 2010. That morning, Johnson drove his assigned Crown Victoria from his home and headed to the courthouse. He stopped on the way at a nearby Arco ampm to get a cup of coffee. He made a hard turn as he backed out of the parking stall and heard a "ka chunk." Thinking he ran over a piece of metal, Johnson put the Crown Victoria in park and got out of the vehicle to see what he ran over. He saw a device similar to the zip gun that had been on the gang task force's gate a few weeks earlier. The zip gun had fallen from beneath the Crown Victoria.
Johnson thought the implement might be an explosive device and radioed the police station. The bomb squad was called in. Officers responded and cleared the area of civilians. X-rays showed the device was a zip gun, not a bomb. The zip gun was loaded and had a metal pipe with an inner barrel. The triggering mechanism involved the use of a weight. Attached to the metal pipe was a magnet. The zip gun was nearly identical to the one that had been attached to the gate.
An investigator examined the underside of the Crown Victoria. He found fresh markings which gave the appearance that a large object had been in the area of the markings, creating a number of scratches. It appeared the zip gun had been attached to the underside of the Crown Victoria with the magnet and at a 45-degree angle. A rivet was missing from the cowling in the same area. A rivet was subsequently found where Johnson had parked the Crown Victoria at his residence the night before.
After the second zip gun incident, the chief of police told Johnson to take his family out of town for the weekend. He was placed on leave through the remainder of March 2010 and into April. Johnson's residence was put under 24-hour surveillance. In May 2010, Johnson moved out of town. The department assigned him a commuter vehicle, a Ford Taurus to drive to and from work. While at work, he drove the same Crown Victoria as before.
On June 3, 2010, defendant's drug charges were set for trial. The matter was continued to the next day. On June 3, Johnson left the Crown Victoria parked at the gang task force's headquarters. At approximately 10:00 p.m. that night, fire personnel answered a call about a fire and a large plume of
Prior to June 3, 2010, defendant had a rocket at his residence. Codefendant Steven Hansen
A roommate heard defendant say he was after a particular police officer and knew when the officer was supposed to be at headquarters, but he did not care if he got all "those f ... ers." Defendant said he wanted to prevent a police officer from testifying on a drug case. Hansen told one of defendant's roommates he was building a rocket launching tube with defendant on a roof in downtown Hemet to shoot at the police station.
After the failed attempt with the rocket, defendant sought to purchase another military rocket. He said he needed a replacement because the rocket he used had failed. He added that he had rigged two car bombs and because the police had "egg on their face" after the first one, they had not made the second one known. Defendant said the attacks were aimed at "that cop" on the gang task force who arrested him for having marijuana plants.
On July 6, 2010, Johnson took his commuter car, the Taurus, in for service at the city yard. When it was put on the rack and elevated, the mechanic found a zip gun by the left front tire, on top of the control arm. The zip gun was wrapped in black Polyken 236 duct tape. The zip gun's design was consistent with the zip gun used in count nine and had a black rubber band around it. The barrels of the zip gun were facing the left front tire. A member
Although this zip gun was different from the others in that it had two inner barrels, like the others, it used a screw as a firing pin, and all three zip guns were similarly made and used similar materials. The cartridges in the zip gun were the same (.30-06 Twin Cities Arsenal ammunition made in 1954) as the cartridge used in the zip gun attached to Johnson's Crown Victoria (count nine).
On July 2, 2010, police arrested defendant and executed a search warrant on his residence. Inside a bedroom containing documentation in defendant's name, police found a computer and a slingshot. Police also found newspaper articles, a bucket containing slingshots and pellets, a black rubber band, and four bolts.
In a car parked on the property, police found defendant's driver's license, a pair of blue latex gloves, and black tape.
A crime scene technician was unable to lift any fingerprints from the panji boards. No useable DNA was found on two of the boards and defendant was excluded as the donor of DNA found on the nails on the remaining panji board.
The components of the zip gun and the black tape wrapped around the zip gun that had been attached to the gate at the gang task force's headquarters were checked for DNA. A single source DNA profile was found. The DNA profile was subsequently submitted to CODIS.
Defendant contends the evidence does not support his conviction on count six for building and maintaining a boobytrap (former § 12355, subd. (a)). He also argues the evidence does not support the enhancement for personal use of a firearm (§ 12022.53, subd. (b)) found in connection with the attempted murders in counts seven, nine, and 12.
As we have stated before, "`"In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." [Citation.]' [Citation.] We must accept all assessments of credibility made by the trier of fact and determine if substantial evidence exists to support each element of the offense. [Citation.] We presume in support of the judgment the existence of every fact that could reasonably be deduced from the evidence. [Citation.] We may reverse for lack of substantial evidence only if `"upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]." [Citation.]' [Citation.] In making this inquiry, it is important to note we do not ask ourselves whether we believe the evidence established guilt beyond a reasonable doubt. [Citation.] `Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Citation.]' [Citation.] `The standard of review is the same when the prosecution relies mainly on circumstantial evidence. [Citation.]' [Citation.]" (People v. Sanchez (2014) 223 Cal.App.4th 1, 8-9 [167 Cal.Rptr.3d 9].)
Defendant was convicted of violating former section 12355, subd. (a). (Stats. 1984, ch. 1430, § 1.5, p. 5016.) Subdivision (c) of that section defined a "boobytrap" as "any concealed or camouflaged device designed to cause great bodily injury when triggered by an action of any unsuspecting person coming across the device. Booby traps may include, but are not limited to, guns, ammunition, or explosive devices attached to trip wires or other triggering mechanisms, sharpened stakes, and lines or wire with hooks
Defendant does not contest the sufficiency of the evidence supporting his conviction on the counts involving the zip guns. However, unlike the evidence in connection with those offenses, there was no DNA or fingerprint evidence tying defendant to the panji boards. There was, however, other evidence from which a reasonable jury could have found defendant guilty.
Attacks on Johnson began after the initial search of defendant's residence. Defendant made a number of attempts to kill Johnson. Johnson's testimony was required in the drug prosecution against defendant. Three attempts were made on the day before or the day Johnson was scheduled to testify in connection with the drug counts. The panji boards were utilized on a day when Johnson was to appear in court on defendant's case. There was evidence from which the jury could reasonably conclude defendant learned to construct the zip guns, panji boards, and wrist rockets on a site on the Internet.
The night the panji boards were put in place, a slingshot or wrist rocket was apparently used to shoot ball-bearing-like objects at Johnson's house. When the police searched defendant's residence, they not only found materials apparently used to create the zip guns and a can of butane like the one used in the failed attempt to launch a rocket at the building where Johnson worked, they also found slingshots and pellets. The jury was entitled to conclude the existence of the slingshots and pellets at defendant's residence, along with materials used to construct the zip guns (including the same ammunition used) and a gas propellant like the one used in the failed attempt to fire a rocket at the building where Johnson worked, was not mere coincidence.
"This was one of those cases which might be likened to a rope. Single strands, considered apart, might not be convincing; but, when these strands are knit together, there is indeed a formidable rope, quite strong enough to form a substantial support to the jury's verdict...." (Fields v. U.S. (4th Cir. 1955) 228 F.2d 544, 549.) In addition to the evidence tying defendant to the attempts on Johnson's life with the zip guns and the rocket used in those attempts, the circumstantial evidence pointing to defendant as the source of the panji boards and ball bearings found in Johnson's driveway was substantial and supports the jury's determination of guilt on count six.
The Legislature created enhancements for defendants who are armed with a firearm in the commission of a felony (see §12022, subd. (a)(1)) and those who personally use a firearm in the commission of a felony (see, e.g., §§ 12022.5, 12022.53). The penalties for the use of a firearm are greater than those provided for merely being armed at the time a felony is committed. (Compare § 12022, subds. (a)(1) [one-year enhancement for being armed], (c) [three-, four-, or five-year term for being "personally" armed in commission of certain drug offenses] with §§ 12022.5, subd. (a) [three-, four-, or 10-year term for personally using a firearm], 12022.53, subd. (b) [10-year enhancement for personally using firearm in commission of listed offense]).
The difference in penalties correspond to the difference between the danger presented by one's merely being armed, in which case there is the potential that the firearm will be employed in the commission of a felony, and the "use" of the weapon, in which case the firearm was employed in the commission of the felony. (See People v. Chambers (1972) 7 Cal.3d 666, 672 [102 Cal.Rptr. 776, 498 P.2d 1024].)
In Chambers, our Supreme Court defined "use" for purposes of a firearm enhancement. "`Use' means, among other things, `to carry out a purpose or action by means of,' to `make instrumental to an end or process,' and to `apply to advantage.' [Citation.] The obvious legislative intent to deter the use of firearms in the commission of the specified felonies requires that `uses' be broadly construed." (People v. Chambers, supra, 7 Cal.3d at p. 672.)
Undeniably, one who fires a gun at another has used the firearm for purposes of the firearm use enhancements. However, "use" is not limited to the actual firing of a gun. Cases considering firearm use enhancements have customarily fallen into two categories: "those in which the gun was aimed at the victim, intentionally fired or used to strike the victim; and those in which the gun was held or exposed in a menacing fashion accompanied by words
As pointed out above, "`Use' means, among other things, `to carry out a purpose or action by means of,' to `make instrumental to an end or process,' and to `apply to advantage.' [Citation.]" (People v. Chambers, supra, 7 Cal.3d at p. 672.) Defendant clearly used the zip gun to carry out his purpose of attempting to kill Johnson. Knowing Johnson was usually the first one to work and being the first one he would have to open a gate to park his patrol car at work, defendant rigged a zip gun to the gate at head height. The zip gun was rigged to discharge when the gate opened. Fortunately for all concerned, including defendant, the weapon missed its target. Additionally defendant rigged zip guns to the two vehicles Johnson was known to drive. He sought to kill Johnson by using the zip guns. "[T]here is no one particular type of firearm use proscribed ..." by the firearm use enhancement statutes. (People v. Smith (1980) 101 Cal.App.3d 964, 967 [161 Cal.Rptr. 787] [§ 12022.5].) "Whether a gun is `used' in the commission of an offense — `at least as an aid' — is broadly construed within the factual context of each case." (Alvarado v. Superior Court (2007) 146 Cal.App.4th 993, 1002 [53 Cal.Rptr.3d 416], fn. omitted.) Under any definition of the term "use," defendant used firearms in the commission of the attempted murders.
The judgment is affirmed.
Rylaarsdam, Acting P. J., and Bedsworth, J., concurred.
