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Court of Appeal, First District, Division 5, California.

The PEOPLE, Plaintiff/Respondent, v. David Emerson KEMP, Defendant/Appellant.

No. A064320.

Decided: December 19, 1994

Oliver J. Northup, Jr., Davis, for appellant. Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Ronald A. Bass, Sr. Asst. Atty. Gen., Laurence K. Sullivan, Supervising Deputy Atty. Gen., René A. Chacón, Deputy Atty. Gen., San Francisco, for respondent People.

Appellant contends there was insufficient evidence to support the jury's conclusion that, for the purposes of the sentencing enhancement defined in Penal Code section 12022, subdivision (c), appellant was “personally armed with a firearm in the commission or attempted commission” of the offense of manufacturing methamphetamine (Health & Saf.Code, § 11379.6, subd. (a)).  We conclude the jury's finding on this enhancement is supported by substantial evidence, and affirm.


We summarize those facts relevant to the challenged sentencing enhancement for the personal use of a firearm under Penal Code section 12022, subdivision (c) (section 12022(c)).1

The police arrived at the residence of appellant's mother with a search warrant authorizing them to search the house and its outbuildings.   The basis for the warrant was the fact that the premises was allegedly being used in the smuggling of methamphetamine into Pelican Bay State Prison.   After the police arrived, appellant emerged from a small one-room shed, which was about 10 feet square.   The evidence indicated appellant had been living in the shed;  the shed contained clothing of his size, other items bearing his name, bedding, a desk, a chest of drawers, and fast food containers such as aluminum cans and pizza boxes.

The evidence seized inside the shed also indicated appellant was manufacturing methamphetamine.   Inside the shed were a police scanner and numerous items used in drug manufacture, trafficking, or consumption, including glass vials filled with chemicals used in the manufacture of methamphetamine, a pH test kit, a small glass funnel, paper filters, a pipe used for smoking methamphetamine, ziplock plastic bags, diluting agents, and a marble bowl with a white powder residue.   Chemical tests were conducted on some of the glassware, and the tests indicated the presence of methamphetamine and ephedrine, which is used in the manufacturing process.   The evidence indicated the manufacturing process was ongoing, and had not yet reached the final or extraction stage of the procedure.

For present purposes, the most significant evidence seized from inside the shed was a loaded rifle.   The rifle was in a camouflage gun bag, on the floor in plain view underneath a chest of drawers.   If one were inside the small one-room shed, it would only take a few seconds to get to the loaded gun.

Appellant was charged with manufacturing methamphetamine, with being personally armed during the commission of that crime, and with other crimes not relevant here.   After a jury trial, the jury returned verdicts finding appellant guilty of manufacturing methamphetamine, and of being personally armed in the commission of that offense.   The trial court made a true finding on another charged sentencing enhancement, for a prior conviction which was affirmed by this court (Division Five) (People v. Kemp (Oct. 29, 1993) A058586 (A058586).)

The trial court imposed sentence as follows:  Five years for the manufacturing of methamphetamine;  three additional years for the prior conviction, and three additional years for being personally armed.   The entire eleven-year sentence was to run concurrently with appellant's six-year sentence for his prior conviction of manufacturing methamphetamine and being personally armed on a previous occasion, which we had previously upheld in appeal No. A058586.


 The sole issue raised on appeal is appellant's claim that the jury's true finding, on the enhancement for being personally armed in the commission of the offense, is not supported by substantial evidence;  he does not contend the jury was improperly instructed, or that inadmissible evidence was adduced on this issue.   We conclude substantial evidence does support the jury's verdict, and affirm.

Appellant relies primarily upon a recent decision from Division Three of this district, People v. Balbuena (1992) 11 Cal.App.4th 1136, 1138–1140, 14 Cal.Rptr.2d 640 (Balbuena), which reversed such an enhancement where the evidence showed (1) the defendant (convicted of possession of heroin and of cocaine for sale) had an unloaded gun located in a latched, but not locked, suitcase situate about 10 to 12 feet from him when arrested;  and (2) the defendant did not seek to reach for his gun at the time of his arrest.   Appellant, however, reads the language of Balbuena much too broadly.   Properly interpreted, that case does not support appellant's argument, given the facts of record in this case, which differ in crucial respects from the facts in Balbuena.

Significantly, although no petition for review was filed in Balbuena, our Supreme Court has since been considering the limits of the “personally armed” enhancement, and has uniformly granted review in published cases which have either followed or rejected Balbuena.  (See, e.g., People v. Bland (1993) 29 Cal.App.4th 1031, 1041, 18 Cal.Rptr.2d 339, review granted Jul. 15, 1993 (S032900) [Following Balbuena and reversing an arming enhancement.];   People v. Amador (1993) 25 Cal.App.4th 1446, 1449, 24 Cal.Rptr.2d 542, review granted Feb. 24, 1994 (S037089) [Per Reardon, J., affirming the enhancement and opining that the defendant's reliance on Balbuena “misses the mark.”];  People v. Chanthamany (1994) 27 Cal.App.4th 1201, 1206, 27 Cal.Rptr.2d 137, review granted May 12, 1994 (S038608) [“To the degree that the court in Balbuena attached dispositive significance to the fact that defendant did not attempt to seize the weapon to use against the officers, we disagree.”].)   Perhaps, someday, our Supreme Court may rule on the matter.   We, however, cannot allow the issue to languish.   Assuming arguendo that Balbuena states the applicable law, the case is inapposite here;  in making such an assumption, however, we do not adopt the legal conclusions Balbuena reached.

We disagree fundamentally with Balbuena's apparent conclusion that the mere placement of a gun in a receptacle (such as an unlocked suitcase) in the room where a defendant is engaging in criminal conduct, and where the defendant has obvious ready access to that receptacle and the weapon in it if he so chooses, negates a true finding of violation of section 12022(c) as a matter of law.   Further, a defendant's election not to utilize the weapon to which he has ready access in the receptacle in which it rests when the police knock comes at the door has no more dispositive significance than does the fact the weapon is unloaded, as Balbuena also wrongly implies.  (See Balbuena, supra, 11 Cal.App.4th at pp. 1139–1140, 14 Cal.Rptr.2d 640.)

 Being “armed” includes having a firearm available for use.  (People v. Wandick (1991) 227 Cal.App.3d 918, 927–928, 278 Cal.Rptr. 274 (Wandick).)   CALJIC No. 17.16.1 (1993 rev.) charges the jury considering a section 12022(c) enhancement finding to determine if a defendant is “armed with a firearm” by having it “available for use.”   The variety of factual situations by which availability for use of a firearm by a defendant may or may not be established is infinite.   This question of the firearm's availability for use is essentially one of fact, which should only rarely and under exceptional circumstances be taken from a jury, and certainly not where, as here, the firearm is in the same room where the defendant's criminal conduct is being committed.   In Balbuena, it is doubtful whether these exceptional circumstances were present.   They clearly are not in the case at bench.

A review of Balbuena, the authorities on which it relies, and those it does not cite is instructive.

The Balbuena court summarized the applicable law as follows:  “For purposes of this statute, as in other contexts, a person is ‘armed’ if he is carrying the weapon or has it available for offensive or defensive use.  (People v. Mendival (1992) 2 Cal.App.4th 562, 569–574 [3 Cal.Rptr.2d 566] ․)  ‘Available,’ in turn, means ‘ “that can be used;  usable․  [¶] ․ that can be got, had, or reached;  handy;  accessible․” ’  (Id. at p. 575 [3 Cal.Rptr.2d 566].)”  (11 Cal.App.4th at p. 1139, 14 Cal.Rptr.2d 640.)

The Balbuena court, purportedly applying this standard, reversed the true finding on the arming enhancement:  “The evidence was insufficient to show defendant had the pistol available for offensive or defensive use.   The gun was not within defendant's reach, nor had it been placed in a position of especially ready access, nor was it loaded and ready for use, nor was there anything to connect the gun to the commission of the offenses.”  (11 Cal.App.4th at p. 1139, 14 Cal.Rptr.2d 640, italics added.)

The Balbuena court suggested the purposes of the sentencing enhancement in discouraging the dangerous proclivities of drug dealers for arming themselves would not be served in such a case:  “No additional danger was created by the presence of an unloaded gun in a closed suitcase across the room from defendant.”  (11 Cal.App.4th at p. 1140, 14 Cal.Rptr.2d 640.)

 The Balbuena rationale, to the extent it is based on the weapon being unloaded and not “ready for use,” is clearly irrelevant.   Whether the weapon is loaded, unloaded, or inoperable is not the test by which violation of the arming enhancements of section 12022 is measured.  “We hold that section 12022, subdivision (a), is violated by persons who, in the commission or attempted commission of a felony, are armed with an inoperable firearm if the weapon was designed to shoot and gave the reasonable appearance of a shooting capacity.  [Citation.]”  (People v. Nelums (1982) 31 Cal.3d 355, 360, 182 Cal.Rptr. 515, 644 P.2d 201, italics added [per Richardson, J.].) Balbuena's contrary implications were reached without citing or following Nelums.

We deal here with a gun “loaded and ready for use” which had been placed “in a position of especially ready access” so that appellant could reach down to the floor, take the gun out of its distinctive camouflage gun bag, which serves much the same purpose as a holster for a pistol, and begin firing it.   These facts more closely resemble the facts of People v. Mendival (1992) 2 Cal.App.4th 562, 567, 573–574, 3 Cal.Rptr.2d 566 (Mendival) in which an unloaded gun was on the floor of the defendant's car, and the arming enhancement was upheld.   As the Mendival court observed, “It would be ludicrous to conclude a criminal could have a gun on the console of his vehicle or on the table in front of him and find that this did not meet the definition of armed.   He has insured that a firearm is as accessible to him as if he had placed it in a holster on his hip.   It is the availability—the ready access—of the weapon that constitutes arming.”  (Pp. 573–574, 3 Cal.Rptr.2d 566.)

The Balbuena court followed this Mendival holding, yet distinguished Mendival on its facts:  “We agree with this analysis.   Unlike the defendant in Mendival, however, defendant here did not have ‘ready access' to his gun;  it was stored, with other of his belongings, in a suitcase.”   (Balbuena, supra, 11 Cal.App.4th at p. 1139, 14 Cal.Rptr.2d 640.)   Obviously, we cannot so easily distinguish the present case from Mendival;  here the gun was not stored away unloaded, but was lying on the floor near appellant, loaded and readily available for use.  Balbuena's approval and preservation of Mendival 's analysis is of no aid to appellant on this record.

Balbuena cites with approval People v. Superior Court (Pomilia) (1991) 235 Cal.App.3d 1464, 1467, 1471–1472, 1 Cal.Rptr.2d 386 (Pomilia), where an arming enhancement was upheld because the defendant was seen emerging from a room where there were two loaded pistols.

The Pomilia court observed that the legislative history of the arming enhancement supported the imposition of liability upon those who, like appellant, are seen emerging from a room which contained a loaded firearm:  “We need only refer briefly to the historical background of the legislation.   In the view of the Los Angeles District Attorney, the volatile combination of narcotics and firearms was seen as presenting a substantial hazard to the public, and thus armed narcotics dealers should be punished more severely than those unarmed.   The Attorney General concurred, pointing out that increased ‘possession and use of firearms by drug traffickers is a threat to the safety of our citizens and law enforcement officers.’   There is nothing in the legislative history evidencing any intent on the part of the Legislature that enhanced punishment was proper only for those narcotics offenders who had firearms upon their persons, while those who had ready access to firearms were not to be so punished.   Instead, the Legislature clearly intended to provide substantial additional punishment for all ‘armed’ narcotics offenders, in a proper desire to punish more heavily those who presented greater danger, both to law enforcement personnel and to their innocent neighbors.”  (235 Cal.App.3d at p. 1471, 1 Cal.Rptr.2d 386.)   The holding and rationale of Pomilia also support imposition of arming liability upon those who, like appellant, keep a loaded gun near them, ready for use, on the premises where drugs are manufactured and stored.

Additionally, the Balbuena court cited People v. Searle (1989) 213 Cal.App.3d 1091, 1095, 261 Cal.Rptr. 898 (Searle) as illustrative of the reach of the arming enhancement.   In Searle, the defendant kept a loaded gun nearby, though out of his immediate reach, in an unlocked compartment in his car, posing a danger of its contemplated use during the course of a drug offense.  (P. 1099, 261 Cal.Rptr. 898.)

In sum, even the standards announced in Balbuena and the cases upon which it relied would also support the arming enhancement in this case.

Other authorities not cited in Balbuena fortify this conclusion.   In Wandick, supra, the court found the arming enhancement could properly be applied to a defendant who, like appellant, simply had a loaded gun in his bedroom, or a loaded gun in the closet next to his bedroom, even though he made no move to grab either weapon when the police burst in upon him.  (227 Cal.App.3d at p. 928, 278 Cal.Rptr. 274.)   The court also specifically upheld CALJIC No. 17.15 which defines the term “armed” to mean that a defendant either carried a firearm on his person, or had it “available” for use.   (Wandick, supra, 227 Cal.App.3d at p. 928, 278 Cal.Rptr. 274.)   Under this proper instruction, which uses words readily understandable to the jury and requires no further definition, it simply becomes a jury question whether the defendant had a weapon available.  (Mendival, supra, 2 Cal.App.4th at p. 575, 3 Cal.Rptr.2d 566;  cf. also People v. Reaves (1974) 42 Cal.App.3d 852, 856–857, 117 Cal.Rptr. 163 [“The underlying intent of the Legislature is to deter persons from creating a potential for death or injury resulting from the very presence of a firearm at the scene of a crime.   Thus there is aggravated punishment for a person who is armed with a deadly weapon even though no use is made of the weapon.   A person is armed with a deadly weapon when he simply carries such [a] weapon or has it available for use in either offense or defense.”];  Searle, supra, 213 Cal.App.3d at p. 1099, 261 Cal.Rptr. 898 [Applying the same standard to a finding that a defendant is “armed” for purposes of the aggravation of the sentence.];  People v. Garcia (1986) 183 Cal.App.3d 335, 350, 228 Cal.Rptr. 87 [Same.].)

Perhaps more critically, the issue in this case, as in all the others cited above, is at bottom simply the definition of the word “armed” when used by the Legislature in a statute.   For at least 60 years, it has been established in California that a criminal is “armed” for purposes of increased punishment even if he does not carry the weapon on his person, and merely has it available for use nearby or in the vicinity, as equipment to be used in the event of emergency.   It was this preexisting definition of “armed” which the Legislature adopted in the arming enhancement, rather than speaking of the “use” or “possession” of a firearm;  the preexisting case law defining the word “armed” as used in prior statutes, therefore, illuminates the meaning of the term.

In People v. Stroff (1933) 134 Cal.App. 670, 674, 26 P.2d 315, the defendant did not carry a weapon during the charged burglary, but instead left his gun nearby, outside the building he was burglarizing.   Nevertheless, the Third District held the defendant was still “armed”:  “There is nothing in the code provision which requires that the deadly weapon, or the weapon which may be used in offense or defense, must be held in the hand or hands of the person or persons committing the burglary.   In this instance [defendant] was certainly equipped with a deadly weapon․  If [defendant] laid his revolver down on the outside of the building it does not exclude the conclusion that he was there armed, that is, equipped with a deadly weapon or instrument ready for use in case of emergency․  To hold, under the circumstances disclosed in this case, that [defendant] was unarmed would be to give precedence to a mere shadow rather than to substance.”  (Ibid.)

Even closer to the facts in question here is a case in which Division Two of this district held that two persons were “armed,” when they were in the same room with a suitcase containing a loaded pistol wrapped in a towel, together with acetylene torches and other items:  “The jury could find that the pistol was in the joint possession of both [defendants] and that in the suitcase it was available for immediate use.”  (People v. Moore (1956) 143 Cal.App.2d 333, 336, 299 P.2d 691 (Moore).)   If the defendants in Moore were “armed” in the commission of the offense, then how could the appellant in this case not also be “armed”?

Consideration of this prior case law (not cited in Balbuena or the other recent cases on this point), which defines the word “armed” when used in criminal statutes, helps to clarify the meaning of the term here.   Synthesizing the holdings and rationales of Balbuena and the other cases cited herein, the imposition of an arming enhancement has uniformly been upheld on appeal where, as here, a loaded gun is found in the same room with the defendant, or is otherwise in his immediate presence, such as in his car or on the ground near him;  these circumstances support the jury's finding that the gun was “available” for immediate use by the defendant.  (See Mendival, supra, 2 Cal.App.4th at pp. 574–575, 3 Cal.Rptr.2d 566.)   Even under Balbuena's standard, appellant's liability for personally arming must be upheld in this case;  the gun was clearly available to appellant inside the shed when it was lying on the floor in a scabbard a few feet away from him and was loaded.

Appellant stressed at oral argument that, even if he was “armed” at some time, the arming enhancement is not supported by substantial evidence that he was so armed at the time of the commission of the offense, i.e., during the manufacture of methamphetamine.   The record belies this argument.   The prosecution testimony from experts in drug manufacture was that the drug “was being manufactured” in the shed at the time of the police entry.   Chemical analysis of the fluids and other substances found in beakers and vessels showed the process was in its intermediate stages, after the initial cooking phase.   From this evidence, the jury could reasonably infer that the process of manufacturing was ongoing at the time of the police entry, and was only interrupted by the police.   This evidence and the reasonable inferences to be drawn therefrom, thus, support the jury's finding that appellant was armed with the rifle at the time of, and in the commission of, the offense.  (See Mendival, supra, 2 Cal.App.4th at p. 575, 3 Cal.Rptr.2d 566.)

 Finally, we do not exercise de novo review in this case.   Our function on appeal after a jury verdict is simply to assure that the record contains substantial evidence from which a reasonable trier of fact could have concluded the arming enhancement was true.  (See, e.g., People v. Iniguez (1994) 7 Cal.4th 847, 854, 30 Cal.Rptr.2d 258, 872 P.2d 1183.)  “In making this determination, we ‘ “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.” ’ ”  (Ibid., quoting from People v. Johnson (1980) 26 Cal.3d 557, 576, 162 Cal.Rptr. 431, 606 P.2d 738;  see also Moore, supra, 143 Cal.App.2d at p. 336, 299 P.2d 691.)

Under this standard, a reasonable juror could readily infer that appellant was personally armed in the commission of the offense of manufacturing methamphetamine;  he was seen emerging from a small one-room shed which contained both his bedroom and a methamphetamine manufacturing facility;  the evidence inside showed the manufacturing process had begun and was not yet completed;  the shed also contained a police scanner of the type employed by drug dealers in order to try to obtain advance warning of raids by the police;  a loaded gun was lying on the floor within easy reach and availability of anyone inside the tiny shed who might wish to use it for offense or defense.   Under these circumstances, the jury could, and did, reasonably deduce appellant was personally armed in the commission or attempted commission of the crime.   (See Balbuena, supra, 11 Cal.App.4th at p. 1139, 14 Cal.Rptr.2d 640.)


The judgment of conviction is affirmed.


1.   Section 12022(c) provides, in pertinent part, that “any person who is personally armed with a firearm in the commission or attempted commission of a violation of Section ․ 11379.6 of the Health and Safety Code [i.e., the manufacture of methamphetamine], shall ․ be punished by an additional term of imprisonment in the state prison for three, four, or five years in the court's discretion.”

PETERSON, Presiding Justice.

KING, J., concurs. HANING, J., concurs in the result.

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