PEOPLE v. KOLERICH

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Court of Appeal, Fourth District, Division 1, California.

The PEOPLE, Plaintiff and Respondent, v. Jean Ann KOLERICH et al., Defendants and Appellants.

No. D017280.

Decided: December 16, 1993

Sheldon Sherman, San Diego, and John L. Staley, Poway, by Appointment of the Court of Appeal, for defendants and appellants. Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Gary W. Shons, David I. Friedenberg and William M. Wood, Deputies Atty. Gen., for plaintiff and respondent.

Jean Ann Kolerich and Timothy Dean Kolerich appeal judgments entered after a jury convicted them of possessing methamphetamine for sale (Health & Saf.Code, § 11378) and simple possession (Health & Saf.Code, § 11377, subd. (a)), and found true the allegations a firearm was used in the commission of both offenses (Pen.Code,1 § 12022, subd. (a)(1)) and they were personally armed with a firearm in the commission of the possession for sale offense (§ 12022, subd. (c)).  They jointly contend the trial court abused its discretion in denying their motion for a mistrial when the alternate juror admitted she had not heard all the testimony and that substantial evidence does not support the armed findings.   Individually, Jean asserts there is insufficient evidence in support of her possession convictions and that the trial court abused its discretion in sentencing her to prison.   Timothy argues the verdict should be set aside because the prosecutor argued facts not in evidence during her closing argument;  the matter should be remanded for resentencing because the trial court's comments suggested it was not aware of its discretion to strike the enhancement under section 1170.1, subdivision (h);  and the consecutive one-year sentence for the section 12022, subdivision (a)(1) enhancement should be set aside because they were sentenced on the section 12022, subdivision (c) enhancement.   As we shall explain, we conclude the trial court did not abuse its discretion in denying their motion for a mistrial and that substantial evidence supports Jean's convictions.   However, substantial evidence does not support the armed findings.   Consequently, concluding the remaining contentions are without merit, we affirm the possession convictions, but reverse the armed findings and remand the case to the trial court for resentencing.

FACTUAL AND PROCEDURAL BACKGROUND

On January 15, 1992, at approximately 11:45 a.m., Chula Vista Police Officer John Carlson with several other officers executed a search warrant at the residence located at 5959 Albemarle Street.   As they approached the open front door, they encountered Timothy, who immediately declared, “Oh shit.”   After making their announcement and entering the residence, Carlson inquired whether there were any narcotics in the residence.   Timothy replied he thought he was out, but if there was anything it would be “pot” and “crystal,” which could be found in the top drawer of his bedroom dresser.   A search of the two-bedroom house followed.   In the Kolerichs' bedroom, on top of a dresser, the officers recovered two film canisters, a battery powered gram weight scale with white residue on it, a foil bindle containing methamphetamine, and a glass tube and pipe for smoking methamphetamine.   The foil bindle was later tested and found to contain .08 grams of methamphetamine with an approximate purity of 75 to 80 percent.   In the top dresser drawer, the officers found two plastic baggies containing methamphetamine, two pay/owe sheets listing amounts and numbers corresponding to a list of names, a box containing .22–caliber ammunition, a pen knife, brass knuckles, various papers in the names of both Kolerichs, a box containing four baggies of marijuana, an aspirin bottle and a tupperware container containing white residue, two marijuana cigarette rolling devices, rolling papers, two marijuana pipes, weights for an Oahu's scale and a butane lighter.   In the second dresser drawer, the officers found $4,500 in various denominations, ranging from $100 bills to $5 bills, as well as an envelope addressed to Timothy.   In the third dresser drawer, the officers retrieved an unloaded .22–caliber pistol and a cross-bow.   They also found an unloaded .22–caliber rifle and an unloaded shotgun in the bedroom closet.

In the living room, the officers recovered a butane torch, two smoking pipes, and a UHF scanner, capable of monitoring police communications.   A third smoking pipe was found under a table and two other pipes were found on a living room shelf.   Additional papers in the names of both Jean and Timothy were found in the living room.   On the top of the refrigerator the officers recovered a box containing razor blades, mirrors and a “tooter” (a device for inhaling narcotics).

The two baggies recovered from the first dresser drawer were analyzed and found to contain 1.94 grams and .04 grams, respectively, of methamphetamine.   The former had an approximate purity of 85 to 90 percent, while the purity of the latter was approximately 50 to 60 percent.   A latent fingerprint found on the baggie containing the larger, pure quantity of methamphetamine was identified as being made by Timothy's right index finger.   The handwriting on the pay/owe sheets probably was Timothy's.

During the approximately two and one-half hours the officers were present at the residence, numerous people came to the door 2 or made telephone calls to the Kolerichs.   One caller, a female named “Greta,” asked for Timothy and when she was told he was not available, then asked for Jean.   When she was advised Jean was not available, she said she wanted to get “some stuff” and, when asked how much, she said she wanted a “40” (that is, $40 worth).   She also inquired if it was all right if she paid for it later.   The officer who answered the telephone believed the conversation was consistent with a methamphetamine purchase.

At trial, a narcotics expert opined the pay/owe sheets were narcotics sales records, reflecting a large customer base which was consistent with the high amount of foot traffic and phone calls the officers witnessed.   Moreover, the large amount of cash and relatively small amount of drugs found indicated the inventory had been sold and not yet replenished.   The guns and scales were also consistent with a drug sales operation.   Consequently, the expert opined the drugs were possessed for sale or distribution.3

Jean and Timothy had been married for approximately 11 years.   She and her husband shared the bedroom;  however, each had their own dresser.   The dresser where the drugs were found was Timothy's.   Jean testified the cash in the dresser was from an inheritance she had received several months earlier.   Moreover, she denied any knowledge of, or participation in, drug trafficking.

On May 29, 1992, a jury found both Jean and Timothy guilty of both offenses and found true the armed allegations.   On June 25, probation was denied and both were sentenced to prison for terms of five years, four months.   The lower term (16 months) was imposed for the possessing for sale convictions.   An additional one-year term was added for the armed enhancement under section 12022, subdivision (a)(1) and three years were added for the personally armed enhancement under section 12022, subdivision (c).   The middle term was imposed for the simple possession convictions and stayed pursuant to section 654.   Both Kolerichs timely filed their notices of appeal.

THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN DENYING THE KOLERICHS' MOTION FOR A MISTRIAL

The Kolerichs first contend their convictions must be reversed because a juror did not hear all the testimony, thus denying them their right to a jury trial.   As we shall explain, the trial court did not abuse its discretion in denying their motion for a mistrial nor deny them their right to a jury trial by its resolution of the matter.

During trial, a juror was excused and the alternate seated in place of the excused juror.   While the court was instructing the alternate juror where to sit, the alternate juror replied:  “I'm so glad you want me out of the corner.   I couldn't hear anything.”   The trial court then excused the other jurors and questioned the alternate.   During that questioning, the alternate juror indicated she had heard most of the testimony, but had difficulty hearing when a witness would lower his/her voice.   The following transpired:

“THE COURT:  Okay.   Now, Ms. Nicoll, you made a comment and, you know, you indicated you were glad to move because you—now you can hear everything.

“ALTERNATE JUROR NO. 1:  Well, I could hear most of it, but sometimes I just couldn't hear.   It was too low.   I was really going to ask permission to sit in this chair, the other alternate—

“․”

“ALTERNATE JUROR NO. 1:  I don't think it was too bad, but when the voice would get real low I couldn't hear it.

“․”

“ALTERNATE JUROR NO. 1:  Well, mostly it was when a person was speaking, they would speak and it would seem like their voice would get softer, and I haven't had any trouble hearing—I'm having no trouble hearing.”

Upon inquiry by the court whether she had heard the opening statements, the alternate juror indicated she had, but was momentarily distracted trying to get names.   Later, she reiterated she had only had difficulty when a witness would lower his/her voice, declaring:  “I have no trouble hearing except when somebody speaks very softly․  I don't think I have had any trouble when I have been sitting in the first row.   But that over there is like I had to get forward to hear.”   The trial court then denied the defense motion for a mistrial and directed the court reporter to read the entire testimony, up to the point the alternate juror was substituted for the excused juror.   The next day, the trial court confirmed with the juror that the read back had occurred and she had heard everything during the read back.   She indicated she had heard everything during the read back, commenting:  “In fact, a lot of it was going over it again which I had—I had already written down.”   She had indicated the previous day she was not sure she had actually missed very much given that she had taken three pages of notes.

 “The right to a fair and impartial jury is one of the most sacred and important of the guaranties of the constitution.”  (People v. Armendariz (1984) 37 Cal.3d 573, 584, 209 Cal.Rptr. 664, 693 P.2d 243.)   Consequently, a trial court has the authority to discharge a jury when, for good cause, a juror is unable to perform his or her duty and no alternates remain.  (Code Civ.Proc., § 233.)  “A trial court's decision whether good cause exists to excuse a juror or to discharge a jury is within its discretion.   The court's decision will be upheld on appeal if there is any substantial evidence to support it.  [Citations.]”  (People v. Mincey (1992) 2 Cal.4th 408, 467, 6 Cal.Rptr.2d 822, 827 P.2d 388.)   Mindful a jury is obligated to determine the credibility of the witnesses, weigh the evidence and reach a verdict with impartiality (People v. Van Houten (1980) 113 Cal.App.3d 280, 288, 170 Cal.Rptr. 189), a juror's inability to perform his or her duties must appear in the record as a demonstrable reality and may not be presumed(People v. Thomas (1990) 218 Cal.App.3d 1477, 1484, 267 Cal.Rptr. 865).

 The Kolerichs contend the trial court's procedure of having the court reporter read back all the testimony to the alternate juror violated their Sixth Amendment right to a trial by jury.   Emphasizing a juror must see and hear a witness in order to assess a witness's credibility, they argue that it logically follows the alternate could not possibly have truly performed her function as a juror in assessing the credibility of the prosecution witnesses if she did not hear them testify.   Emphasizing also their constitutional right to have the jury determine every material issue presented by the evidence (People v. Lee (1987) 43 Cal.3d 666, 675, fn. 1, 238 Cal.Rptr. 406, 738 P.2d 752), they argue the alternate juror was unable to intelligently decide the most important issues in the case predicated upon the credibility of the prosecution witnesses.4  Finally, they assert prejudice should be presumed.

Here, the record belies any assertion this juror could not perform her duty to judge the credibility of the witnesses, weigh the evidence and reach a verdict impartially.   The record does not support the suggestion this juror was left to make a judgment on the case without the benefit of all the testimony.   In fact, she heard the bulk of the testimony twice, paying strict attention to the testimony which followed her substitution.   On two occasions later during the trial, she alerted the trial judge of her difficulty hearing the witnesses and the judge insured the testimony was made clear to her.   Moreover, the record does not support the suggestion she was unable to make credibility judgments, as she had taken three pages of notes during the testimony before advising the judge of her hearing difficulty.   She believed she had heard most all the testimony and had only missed a few words when witnesses' voices dropped or when she had difficulty getting names down.   After listening to the read back, she remarked she had in fact heard virtually all the testimony and had missed very little.   Consequently, she was able to hear and judge the witnesses' credibility.

With regard to the propriety of the court having the testimony reread, it is entirely consistent with the court's responsibility to ensure the jury be apprised of the evidence upon which it is sworn to conscientiously act upon.  (People v. Butler (1975) 47 Cal.App.3d 273, 283–284, 120 Cal.Rptr. 647.)   Finally, because the record is devoid of any evidence of juror misconduct or that the Kolerichs' right to an impartial jury had been infringed, no prejudice is presumed and thus our inquiry into the matter ends without the need to determine whether the trial court's remedy in and of itself rebutted any presumption.   In other words, the trial court corrected the potential deficiency and the Kolerichs have failed to demonstrate they suffered any prejudice or were deprived of their right to a jury trial.

SUBSTANTIAL EVIDENCE SUPPORTS JEAN'S CONVICTIONS

Jean meritlessly contends her drug possession convictions are not supported by the evidence.

 In resolving whether substantial evidence supports a conviction challenged on appeal, “the court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.”  (People v. Johnson (1980) 26 Cal.3d 557, 578, 162 Cal.Rptr. 431, 606 P.2d 738.)   Before judgment or conviction can be set aside for insufficiency of the evidence to support the decision of the trier of fact, it must clearly appear that on no hypothesis whatsoever there is sufficient substantial evidence to support the judgment.  (People v. Redmond (1969) 71 Cal.2d 745, 755, 79 Cal.Rptr. 529, 457 P.2d 321.)   Consequently, the reviewing court must not only review the evidence in the light most favorable to the respondent, but also presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.  (People v. Johnson, supra, 26 Cal.3d at p. 576, 162 Cal.Rptr. 431, 606 P.2d 738.)  “The test on appeal is not whether we believe the evidence at trial established the defendant's guilt beyond a reasonable doubt, but whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”  (People v. Hernandez (1990) 219 Cal.App.3d 1177, 1182, 269 Cal.Rptr. 21.)

 The necessary elements of the crime of possessing a controlled substance for sale are physical or constructive possession, with knowledge of the presence and narcotic character of the drugs, for purposes of sale.  (People v. Johnson (1984) 158 Cal.App.3d 850, 853, 204 Cal.Rptr. 877.)   Possession may be established by showing the defendant exercised dominion and control over the contraband.  (Ibid.;  People v. Hunt (1971) 4 Cal.3d 231, 236, 93 Cal.Rptr. 197, 481 P.2d 205.)

“Constructive possession ‘occurs when the accused maintains control or a right to control the contraband;  possession may be imputed when the contraband is found in a place which is immediately and exclusively accessible to the accused and subject to his dominion and control, or to the joint dominion and control of the accused and another.’ ”  (People v. Johnson, supra, 158 Cal.App.3d at p. 854, 204 Cal.Rptr. 877, quoting People v. Newman (1971) 5 Cal.3d 48, 52, 95 Cal.Rptr. 12, 484 P.2d 1356, overruled on other grounds in People v. Daniels (1975) 14 Cal.3d 857, 862, 122 Cal.Rptr. 872, 537 P.2d 1232.)

Exclusive possession or control is not necessary, as the fact of possession may be established by circumstantial evidence and any reasonable inferences drawn from that evidence.  (People v. Rice (1976) 59 Cal.App.3d 998, 1002–1003, 131 Cal.Rptr. 330.)   Although more than mere presence must be shown in order to establish constructive possession, the inference of dominion and control can be readily made when the contraband is discovered in a place over which the defendant has general dominion and control such as a residence.   (People v. Jenkins (1979) 91 Cal.App.3d 579, 584, 154 Cal.Rptr. 309;  People v. Johnson, supra, 158 Cal.App.3d at p. 854, 204 Cal.Rptr. 877.)

 Here, Jean acknowledges, as Timothy's wife, she shared the Albemarle Street residence with him and the bedroom where the narcotics were found, evidence which infers she had joint dominion and control over the narcotics.   However, she challenges the sufficiency of that evidence, emphasizing there were two dressers in the bedroom, one of which contained only female clothing, while the dresser in which all the narcotics and paraphernalia were found contained items clearly belonging to a male.   Moreover, the sandwich baggies containing the narcotics only had Timothy's fingerprints on them.   Additionally, the pay/owe sheets were written by Timothy, who greeted the police by declaring, “Oh shit” and then indicated that whatever narcotics were present in the residence would be located in the top drawer of the dresser in his bedroom.   Jean contends there was absolutely no substantial evidence she went into her husband's dresser or jointly possessed the narcotics found in the top drawer.

Jean would have us ignore the reasonable inferences drawn by the jury from the evidence.   She was present with her husband and codefendant and several other people in the house when the search revealed the narcotics.   She testified she had lived in the house 12 years and had been married to Timothy 11 years.   Containers of methamphetamine and narcotics paraphernalia were found in the house she shared with her husband.   One foil container containing .08 grams was found on the top of the dresser in the bedroom she shared with her husband.   Additionally, two plastic baggies with 1.94 and .04 grams were found in the first drawer of that same dresser.   Further, several other items were found throughout the bedroom and common areas of the house which contained residue, including a scale on the top of the dresser, a box in the first dresser drawer containing various drug related items, and a box on the refrigerator in the kitchen containing additional drug items.   Finally, there were various items throughout the house related to the use and sale of methamphetamines.   Methamphetamine smoking pipes were located on the top of the bedroom dresser, on the living room table, as well as a shelf in the living room.   Papers documenting methamphetamine sales were found in the top drawer of the bedroom dresser.   Three guns were found in the house, one in the dresser drawer and two in the bedroom closet.   A large amount of cash, in various denominations, was found in the dresser as well as a marijuana pipe discovered in the hall closet.

Jean's reliance on the fact the cash, drugs, and sale and use paraphernalia were found in the dresser which belonged to Timothy while her dresser contained no contraband, as well as the fact that her husband's fingerprints were discovered on one baggie of methamphetamine and his handwriting on the pay/owe sheets, is unavailing.   The inference she had access and control over the dresser's contents is reasonable, nevertheless, since it was located in the bedroom she shared with her husband, it contained money which she used, and it contained papers in her name as well as her husband's.

Moreover, the evidence establishes she was involved in large drug sales.   The names and amounts on the pay/owe sheets were numerous and evinced a large operation.   While the officers were at the residence, several people came to the door and the telephone rang with callers, further evidence of a large sales operation.   In fact, one of the callers asked for her when she was advised Timothy was not available.   That caller asked the officer who answered the phone to purchase methamphetamine when she could not speak to either Jean or Timothy.   Consequently, it is quite reasonable to infer the caller would have made the request of Jean, had Jean been able to take the call.   Jean had been off work for several months before the search, providing more than ample opportunity for her involvement in the day-to-day operation of the drug sales business.   Accordingly, there was substantial evidence supporting Jean's drug possession convictions.

ANY PROSECUTORIAL MISCONDUCT DURING CLOSING ARGUMENT WAS HARMLESS

 Timothy contends the prosecutor engaged in misconduct during her closing argument by referring to facts not in evidence and offering her personal opinion.   Although we conclude she did commit prosecutorial misconduct, Timothy did not suffer any prejudice from the behavior.

More specifically, Timothy asserts the prosecutor argued facts which were not in evidence and offered her personal opinion during closing argument when she challenged the credibility of defense witness Peno Venarucci.   She made the following argument.

“Lastly, you know that [Peno Venarucci] testified at the preliminary hearing and you know that our office didn't file charges on him.   He knows that, too.   As you listened to his testimony, did you believe what he was saying?   All we have is one admission at a previous hearing.   He never admitted that the dope was his to the cops.   There is no fingerprint on the dope.   There is no dominion and control evidence to show that he was living in that bedroom or that the dope belonged to him.

“How in the world, Ladies and Gentlemen, could I, in good conscience, prosecute that individual based on what he said?   We know that he told the officer after he was arrested he didn't have any dope.   Could I prove that case beyond a reasonable doubt to you?   Certainly not.   He's not going to be charged with this offense and he knows it, so he's not losing anything by sitting up there and telling you that the dope is his because he knows his case would be weak, if at best․”

Consequently, Timothy asserts the prosecutor committed misconduct by telling the jury Venarruci would not be prosecuted for the crimes to which he admitted during his testimony and by presenting her opinion of the weakness of any case against him.

 Prosecutorial misconduct implies the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.   (People v. Rowland (1992) 4 Cal.4th 238, 274, 14 Cal.Rptr.2d 377, 841 P.2d 897;  People v. Haskett (1982) 30 Cal.3d 841, 866, 180 Cal.Rptr. 640, 640 P.2d 776.)   Whether the prosecutor has committed misconduct depends upon the particular circumstances of each case.  (People v. Gomez (1976) 63 Cal.App.3d 328, 338, 133 Cal.Rptr. 731.)   A defendant bears the burden of establishing his right to a fair trial was prejudiced by the claimed misconduct.  (People v. Sassounian (1986) 182 Cal.App.3d 361, 390, 226 Cal.Rptr. 880.)

 Needless to say, it is misconduct for a prosecutor to refer during argument to facts not in evidence.  (People v. Ledesma (1987) 43 Cal.3d 171, 238, 233 Cal.Rptr. 404, 729 P.2d 839.)   Generally, the prosecutor is precluded from “vouching for the credibility of her witnesses, or referring to evidence outside the record to bolster their credibility or attack that of the defendant.”  (People v. Anderson (1990) 52 Cal.3d 453, 479, 276 Cal.Rptr. 356, 801 P.2d 1107.)   However, a prosecutor is entitled to argue from reasonable deductions and inferences based on the evidence within the record to bolster witnesses' credibility.   Additionally, “it is improper for the prosecutor to argue based on his experience with people and witnesses, implying superior knowledge from sources unavailable to the jury.”  (People v. Boyd (1990) 222 Cal.App.3d 541, 571, 271 Cal.Rptr. 738.)

Here, although the prosecutor was entitled to challenge Venarucci's credibility during closing argument, she crossed that often nebulous line of proper argument by declaring the district attorney's office would not prosecute Venarruci due to the absence of sufficient evidence and by personally opining she could not prove beyond a reasonable doubt Venarruci possessed the contraband.   She essentially argues the insufficiency of the evidence above and beyond Venarruci's admission that dissuaded the district attorney from filing charges against him.   She could have avoided misconduct by simply arguing that it was unlikely he would be prosecuted in light of the absence of evidence supporting his guilt, without offering any personal opinion regarding the nature of any case against Venarruci and couching it within the context of a question to the trier of fact regarding whether they would convict on such evidence and, if not, whether the unlikelihood of prosecution affected the credibility of the witness.

 In any event, any error was harmless, as it is not reasonably probable a result more favorable to Timothy would have occurred absent the comment.   (People v. Mincey, supra, 2 Cal.4th at p. 472, 6 Cal.Rptr.2d 822, 827 P.2d 388.)   The prosecutor's comments occurred during closing argument, while challenging the credibility of a defense witness, whose credibility was substantially impeached by his earlier statement to the police he had no drugs, his knowledge he had not been prosecuted even though admitting possession at the preliminary hearing, the lack of any physical connection between him and the evidence found at the residence, and his admitted close relationship with the Kolerichs.   Given that Venarruci's testimony did not account for all the drugs, paraphernalia and sales records found in the residence, as well as all the other evidence of dominion and control, the cited prosecutorial misconduct during closing argument was harmless.

THE ARMED FINDINGS ARE NOT SUPPORTED BY SUBSTANTIAL EVIDENCE

The Kolerichs contend both armed findings must be set aside because they are not supported by the evidence as the weapons were not available for offense or defense.

 The information charging the Kolerichs alleged they were armed and personally armed with a firearm (the pistol) under section 12022, subdivisions (a)(1) and (c).5  “Personally armed” within the meaning of section 12022, subdivision (c) refers “to the individual who has the firearm on his person or available for offensive or defensive use.”  (People v. Mendival (1992) 2 Cal.App.4th 562, 574, 3 Cal.Rptr.2d 566.)   In contrast, the section 12022, subdivision (a)(1) armed enhancement vicariously applies to an individual who participates in a crime where one of his cohorts has a firearm on his person or available for offensive or defensive use.  (People v. Mendival, supra, 2 Cal.App.4th at p. 574, 3 Cal.Rptr.2d 566;  People v. Superior Court (Pomilia) (1991) 235 Cal.App.3d 1464, 1471, 1 Cal.Rptr.2d 386.)  “ ‘Available,’ in turn, means ‘ “that can be used;  usable․ [para.] ․ that can be got, had, or reached;  handy;  accessible․” ’ ”  (People v. Balbuena (1992) 11 Cal.App.4th 1136, 1139, 14 Cal.Rptr.2d 640, quoting People v. Mendival, supra, 2 Cal.App.4th at p. 575, 3 Cal.Rptr.2d 566.)   Relying on People v. Balbuena, supra, 11 Cal.App.4th at pages 1139–1140, 14 Cal.Rptr.2d 640, the Kolerichs argue the evidence was insufficient to show either Kolerich had the gun available for either offensive or defensive use.   Not only was the gun outside their reach, its location in the bedroom dresser rendered it not readily accessible.   Moreover, it was unloaded and not ready for use.   Its location two dresser drawers below the drawer where the methamphetamine was discovered does not necessarily provide a significant connection between it and the commission of the offenses.   Finally, unlike the defendant in People v. Superior Court (Pomilia), supra, 235 Cal.App.3d at page 1472, 1 Cal.Rptr.2d 386, and identical to the facts in People v. Balbuena, supra, 11 Cal.App.4th at page 1139, 14 Cal.Rptr.2d 640, the record shows that neither Kolerich made any attempt to obtain the pistol before or during the police entry into their residence.   In fact, once the police had entered, any access to the gun was cut off.

Consequently, the evidence only shows the Kolerichs had a pistol, as well as a cross-bow and two rifles, among their possessions.   As the court in People v. Balbuena, supra, 11 Cal.App.4th at page 1139, 14 Cal.Rptr.2d 640, aptly commented, “gun ownership or possession, alone, does not constitute being armed in the commission of an offense.”   The clear legislative intent underlying section 12022, subdivision (c) is “to deter criminals from creating additional danger by having firearms readily accessible at the scene of a crime.”  (People v. Balbuena, supra, 11 Cal.App.4th at p. 1140, 14 Cal.Rptr.2d 640.)   Here, no additional danger was created by the presence of an unloaded gun in the drawer of a dresser located in a room neither Kolerich was in at the time the officers executed the search warrant.

The People's reliance on People v. Mendival, supra, 2 Cal.App.4th 562, 3 Cal.Rptr.2d 566 and People v. Superior Court (Pomilia), supra, 235 Cal.App.3d 1464, 1 Cal.Rptr.2d 386, is misplaced.   In Mendival, the defendant had a handgun on the front floorboard of the car he was driving to a drug sale rendezvous, readily accessible for either offensive or defensive use.   We agree with the court's conclusion that section 12022, subdivision (c) does not require the weapon be carried on the person and its reasoning:  “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 is 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.”  (People v. Mendival, supra, 2 Cal.App.4th at pp. 573–574, 3 Cal.Rptr.2d 566.)   Simply stated, there was no ready access here.   Similarly, the factual background of People v. Superior Court (Pomilia), supra, 235 Cal.App.3d at page 1467, 1 Cal.Rptr.2d 386, renders that case entirely distinguishable from ours.   There, the search revealed a total of 15 guns disbursed throughout the residence.   In the master bedroom from which Pomilia had emerged and attempted to return, two loaded pistols were discovered.   Other weapons in the residence included a fully automatic uzi submachine gun and a sawed-off shotgun.   In contrast, here the Kolerichs were not in the room where the pistol was located, made no attempt to retrieve the pistol or other guns for that matter, and the pistol was unloaded.6

THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN DENYING JEAN PROBATION

 Jean contends the trial court abused its discretion in sentencing her to prison and denying her probation.   She has failed, however, to show an abuse of discretion.

“The trial court is vested with wide discretion to grant or deny probation, except where otherwise subject to statutory limitation, and a decision denying probation will not be disturbed on appeal except upon a clear showing the trial court abused its discretion in an arbitrary or capricious manner.   [Citations.]  ‘A heavy burden is placed on a defendant in attempting to show an abuse of discretion in denying a request for probation.’  [Citation.]  ‘However, “[t]he courts have never ascribed to judicial discretion a potential without restraint.”  [Citation.]  Discretion is compatible only with decisions “controlled by sound principles of law, ․ free from partiality, not swayed by sympathy or warped by prejudice․”  [Citation.]’  [Citation.]  In other words, ‘[t]his discretion, however, is neither arbitrary nor capricious, but is an impartial discretion, guided and controlled by fixed legal principles, to be exercised in conformity with the spirit of the law, and in a manner to subserve and not to impede or defeat the ends of substantial justice.’  [Citation.]”  (People v. Kronemyer (1987) 189 Cal.App.3d 314, 364–365, 234 Cal.Rptr. 442.)

Here, contrary to Jean's assertion, the trial court adequately stated its reasons for denying probation.   In doing so, the court declared:

“As to each defendant, probation will be denied for the following reasons:

“As to Ms. Kolerich, under [California Rules of Court 7] Rule 414(b)(4), defendant has no history of regular employment and is apparently addicted or in serious danger of being addicted to drugs, methamphetamine.

“Both defendants, under Rule 414(a)(1), this is an extremely serious offense in that defendants were involved in the sale and dealing of drugs, methamphetamine, at which time they were also armed with various weapons.

“Under [Rule] 414(a)(1), as to both defendants, they were active participants.

“And Rule 414(a)(8), as to both defendants, I think the case clearly shows planning, professionalism and criminal sophistication in the sale of the drugs from their house.”

Jean's next assertion the trial court failed to review other applicable provisions of rule 414 is devoid of merit.  “Relevant criteria enumerated in these rules shall be considered by the sentencing judge, and shall be deemed to have been considered unless the record affirmatively reflects otherwise.”   (Rule 409;  see also People v. Zamora (1991) 230 Cal.App.3d 1627, 1637, 282 Cal.Rptr. 100.)   The record contains no evidence showing the trial court failed to consider all the sentencing rules relevant to its probation decision.   Granted, it did not verbally review the factors Jean cites and explain why they were rejected;  however, it was not required to do so as it may entirely disregard mitigating factors without stating its reasons.   (People v. Zamora, supra, 230 Cal.App.3d at p. 1637, 282 Cal.Rptr. 100.)   Finally, Jean suggests the trial court imposed the prison term because she refused an earlier plea bargain which provided for no incarceration and instead went to trial.   Again, not only is this assertion unsupported by the record, the trial court made it very clear during sentencing when pressed that it did not penalize the Kolerichs for turning down a plea bargain in electing to go to trial.   Accordingly, Jean has failed to demonstrate any abuse of discretion in the trial court's denial of probation.

DISPOSITION 8

The Kolerichs' judgments are affirmed in part regarding their convictions for possessing a controlled substance for sale and simple possession.   Their judgments are reversed in part as to the armed findings.   The case is remanded to the trial court for resentencing and correction of the respective abstracts of judgments.

FOOTNOTES

FN1. All statutory references are to the Penal Code unless otherwise specified..  FN1. All statutory references are to the Penal Code unless otherwise specified.

2.   One individual, Gregory Solis, was found possessing methamphetamine.

3.   The 1.94 gram quantity of methamphetamine, known in lay terms as a “1/16116th” could be divided into approximately six street sale quantities, known as “1/414's” and sold for $20 each.   Additionally, the $4,500 cash could purchase approximately one-half pound of methamphetamine.

4.   They also rely on the rationale underlying the substitution of jurors without infringing upon their Sixth Amendment right to trial by jury in arguing their rights were violated.   Relying on the Supreme Court's interpretation of section 1089 and People v. Collins (1976) 17 Cal.3d 687, 694, 131 Cal.Rptr. 782, 552 P.2d 742, they emphasize that alternates to be qualified must have been provided an equal opportunity to see and hear all proceedings, as any impairment of their ability to perceive and judge threatens both the fairness of the trial and the integrity of the judicial process.  (See People v. Cox (1991) 53 Cal.3d 618, 696, 280 Cal.Rptr. 692, 809 P.2d 351.)

5.   Section 12022 pertinently provides:  “(a)(1) ․ any person who is armed with a firearm in the commission or attempted commission of a felony ․” and “(c) ․ any person who is personally armed with a firearm in the commission or attempted commission of a violation of Section ․ 11378 ․ of the Health and Safety Code,․” and specified the pistol as a firearm.   The section 12022, subdivision (a)(1) allegation applied to both offenses, while the section 12022, subdivision (c) allegation applied to only the possession of methamphetamine for sale.

6.   The California Supreme Court granted review in People v. Bland (1993) 14 Cal.App.4th 1441, 18 Cal.Rptr.2d 339, where the court concluded an arming enhancement under section 12022, subdivision (a)(2) must be reversed because the assault rifle found within the defendant's residence was not “available for use” because the defendant was in the patrol car and out of the proximity of the weapon.  (People v. Bland, supra, 14 Cal.App.4th at pp. 1450–1452, 18 Cal.Rptr.2d 339.)   According to the Administrative Office of the Courts News Release dated July 21, 1993, review was granted in Bland because it concerned “the circumstances under which a defendant may be found to have been armed with a firearm during the commission of an offense involving possession of a controlled substance.”

FN7. All rule reference are to the California Rules of Court..  FN7. All rule reference are to the California Rules of Court.

8.   In light of our resolution of other issues, we need not address Timothy's contention the case must be remanded for resentencing because the trial court was unaware of its discretion to strike arming enhancements.   Moreover, the reversal of the armed findings renders moot the People's concession the one-year enhancement under section 12022, subdivision (a)(1) on each of the Kolerichs' sentences must be stayed pursuant to section 1170.1, subdivision (e).

WORK, Associate Justice.

KREMER, P.J., and TODD, J., concur.