A zip gun, or handmade pistol (Photo: Ґенадій Ржевіч via Wikimedia Commons)
A zip gun boobytrap, one of several elaborate devices that a suspected drug offender used in attempting to kill a police detective, constitutes a “personal use of a firearm” under California law, according to state appeals court decision in a case of first impression.
Monday’s ruling by California’s Fourth District Court of Appeal begins: “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,” referring to the well-known cartoon characters.
According to the opinion, Detective Charles Johnson, who worked in the police department in Hemet, Calif., had arrested Nicholas Smit after uncovering guns, ammunition, cocaine and marijuana plants in the backyard of his home in 2009. Hemet lies in Riverside County, Calif., east of Los Angeles.
Smit, facing 11 years in prison, undertook a series of failed assassination attempts that terrorized the Hemet community and forced Johnson to move his family to another town.
According to the opinion, Johnson found a panji board outside his unmarked police car while leaving home for the gym on the day before a scheduled preliminary examination in Smit’s case. The board was studded with six-inch barbed nails with what appeared to be fecal matter and ground glass also embedded in the barbed areas.
Months later, Johnson’s supervisor, Matthew Hess, narrowly avoided getting shot with a zip gun attached to the entrance gate of the task force’s headquarters. Meanwhile, Johnson, on his way to another hearing in Smit’s case, discovered a similar loaded zip gun attached to the bottom of his car.
On June 3, 2010, the original date of Smit’s trial, a bomb technician discovered a dud military rocket on the roof of a market building near the task force’s headquarters.
A jury convicted Smit of charges including attempting to murder Johnson. He was sentenced to four consecutive life terms in state prison. On appeal, he challenged whether rigging a zip gun constitutes “personal use of a firearm,” an enhancement that counted against him. The appellate panel found that it does.
“The culpability of a defendant who stands in front of his victim and shoots is no greater than defendant’s,” the court said. “Whether shooting an individual face-to-face, from a place of concealment, by remote control, or by means of a boobytrap, a defendant has used a firearm to carry out his purpose.”
Neither the California attorney general’s office or Smit’s attorney, Diane Berley, a solo practitioner in Los Angeles, returned calls for comment.
Contact Amanda Bronstad at email@example.com.