PEOPLE v. GRAY (1998)

OPINION

In the published portion of this opinion, we hold there was substantial evidence of a “facilitative nexus” between defendant's possession of a loaded weapon discovered by his bed, and drugs found in his detached garage located 20 to 30 yards away, for purposes of proving an arming enhancement.   Second, we find no error in failing to give defendant's requested pinpoint instruction which attempted to further define a link between defendant's possession of a firearm and his contemporaneous commission of possession of methamphetamine for sale.   The trial court's giving of CALJIC No. 17.15 sufficiently covered defendant's point.

PROCEDURAL HISTORY

By amended information, defendant was charged with possession of methamphetamine for sale (count 1;  Health & Saf.Code, § 11378) and possession of marijuana for sale (count 2;  Health & Saf.Code, § 11359).   It was further alleged that in the commission of count 1, defendant was personally armed with a firearm within the meaning of Penal Code 1 section 12022, subdivision (c).

Defendant pled not guilty and denied the special allegation.   Following a jury trial, defendant was found guilty as charged in count 1, and the armed enhancement allegation was found true.   On count 2, defendant was found guilty of the lesser included offense of possession of more than 28.5 grams of marijuana.

Probation was denied, and defendant was sentenced to prison for the mid-term of two years on count 1. This term was enhanced by a mid-term of four years for commission of the offense while armed with a firearm.   Defendant received a concurrent term of two years on count 2.

Timely notice of appeal was filed.

FACTUAL HISTORY

On March 17, 1995, officers of the Tulare County Interagency Narcotics Enforcement Team served a search warrant at defendant's residence.   The officers knocked on the front door of defendant's home at approximately 7:20 a.m., announced their presence, knocked again, and entered.   The SWAT team entered first and conducted a safety sweep.   When first contacted, defendant was asleep with his wife, Karen Baker Gray, in the southwest bedroom.

On the floor by the bed in defendant's bedroom, the officers found a loaded .357 caliber revolver.   A loaded speed loader (a device used to quickly reload bullets in a revolver), was found on a nightstand by the bed.²  Also found in defendant's bedroom or wallet were pay-owe sheets, $3,622 in cash, several pink slips to vehicles, two operating police radio scanners, two 1-gram scales, a mirror with white powder residue, a roll of 91 one-dollar bills, and a substantial quantity of other firearms, mostly rifles and shotguns.

In a detached garage located 20 to 30 yards from the house and visible from defendant's bedroom window, officers discovered (1) a plastic bag of methamphetamine weighing 43.4 grams;  (2) another bag containing methamphetamine and cocaine mixed together weighing 1.7 grams;  (3) another bag containing 3 grams of methamphetamine;  and (4) a package of marijuana weighing 193 grams.   Also found in the garage were two triple-beam scales, packaging materials, and a one-gram scale.   Finally, officers found a rifle barrel with no stock.   It was not determined whether this rifle barrel was operational as a firearm.

When arrested, defendant acknowledged the drugs were his, and stated that his wife had absolutely no involvement with them.   Additionally, defendant offered to trade information concerning his supplier for leniency from the police.   Defendant further stated he did not sell drugs, but admitted using them and giving them to friends.   Defendant's wife told police she had seen defendant on many occasions sell methamphetamine or trade tools for them in the garage.

 Defense

Defendant did not testify.   However, friends testified he was a jack of all trades.   Defendant repaired motorcycles, automobiles, electrical appliances, and jewelry, and was paid in cash.   Finally, two days before the search of defendant's home, on March 15, 1995, he received $5,000 in cash toward the purchase of a tractor that defendant was selling.

DISCUSSION

I. Substantial evidence supports the arming enhancement.

Defendant contends there is insufficient evidence to support the jury's finding that he was armed with a firearm during the commission of possession of methamphetamine for sale.   He argues there was no substantial evidence of a nexus between his possession of the loaded .357 caliber revolver by his bed and the drugs found in his detached garage, which was 20 to 30 yards from his residence.   We disagree.

 Standard of review

The familiar standard for review of the sufficiency of the evidence is as follows:

“The role of an appellate court in reviewing the sufficiency of the evidence is limited.   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.’  [Citations.]

“The same standard applies to the review of circumstantial evidence.  [Citation.]   The court must consider the evidence and all logical inferences from that evidence. But it is the jury, not the appellate court, which must be convinced of the defendant's guilt beyond a reasonable doubt.  [Citation.]   Therefore, an appellate court may not substitute its judgment for that of the jury.   If the circumstances reasonably justify the jury's findings, the reviewing court may not reverse the judgment merely because it believes that the circumstances might also support a contrary finding.  [Citations.]”   (People v. Ceja (1993) 4 Cal.4th 1134, 1138-1139, 17 Cal.Rptr.2d 375, 847 P.2d 55, fn. omitted.)

 Elements of the enhancement

Section 12022, subdivision (c), provides, in pertinent part:

“․ [A]ny 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, shall, upon conviction of that offense and in addition and consecutive to the punishment prescribed for that offense of which he or she has been convicted, be punished by an additional term of imprisonment in the state prison for three, four, or five years in the court's discretion․”

The California Supreme Court recently examined the requirements of section 12022, in the context of a sufficiency of the evidence claim in People v. Bland (1995) 10 Cal.4th 991, 43 Cal.Rptr.2d 77, 898 P.2d 391, where the underlying felony was illegal drug possession.   After reviewing the purpose of section 12022, the court reaffirmed that “arming under the sentence enhancement statutes does not require that a defendant utilize a firearm or even carry one on the body.   A defendant is armed if the defendant has the specified weapon available for use, either offensively or defensively.”  (Id. at p. 997, 43 Cal.Rptr.2d 77, 898 P.2d 391.)   The court further reaffirmed that drug possession is a continuing offense that extends through time.  “Thus, throughout the entire time the defendant asserts dominion and control over illegal drugs, the defendant is criminally liable for the drug possession.”  (Id. at p. 999, 43 Cal.Rptr.2d 77, 898 P.2d 391.)

With respect to the interplay between possession of a firearm and illegal drugs, the court noted the statutory language “armed with a firearm in the commission of” requires a link between the two.   The court explained:

“The federal courts, in interpreting the federal counterpart to California's weapons enhancement law (18 U.S.C. § 924(c)(1)), have described this link as a ‘facilitative nexus' between the drugs and the gun.  [Citation.]   Under federal law, which imposes specified prison terms for using or carrying a firearm ‘ “during and in relation to” ’ a crime of drug trafficking, ‘the firearm must have some purpose or effect with respect to the drug trafficking crime;  its presence or involvement cannot be the result of accident or coincidence.’  [Citation.]   So too in California.

“As we stated earlier, for a defendant to be subject to additional punishment for being armed with a firearm, California law requires the ‘arming’ to be ‘in the commission or attempted commission’ of the underlying felony. (§ 12022, subd. (a)(1).)   With respect to felony drug possession, a defendant is armed ‘in the commission’ of that crime so long as the defendant had the firearm available for use in furtherance of the drug offense at some point during the defendant's possession of the drugs.   Thus, by specifying that the added penalty applies only if the defendant is armed with a firearm ‘in the commission’ of the felony offense, section 12022 implicitly requires both that the ‘arming’ take place during the underlying crime and that it have some ‘facilitative nexus' to that offense.   Evidence that a firearm is kept in close proximity to illegal drugs satisfies this ‘facilitative nexus' requirement:  a firearm's presence near a drug cache gives rise to the inference that the person in possession of the drugs kept the weapon close at hand for ‘ready access' to aid in the drug offense.”  (People v. Bland, supra, 10 Cal.4th at p. 1002, 43 Cal.Rptr.2d 77, 898 P.2d 391.)

 Factual analysis

 Defendant argues there is insufficient evidence of a “facilitative nexus” between his drugs and his firearm because they were not in close proximity to each other.   He provides no authority to support this argument.   Instead, he relies on the factual distinction between this case, where the firearm and the drugs are separated by a distance of 20 to 30 yards, and those where the firearm and the drugs were found in close proximity, in which a sufficient nexus was found to exist.

For example, in Bland, a sufficient nexus was found where (1) drugs were found in defendant's bedroom closet;  (2) in the same room, under the bed, a cache of unloaded firearms was found;  (3) a photograph in the room depicted the defendant with one of the firearms found;  and (4) defendant was in a police car outside the house at the time of the search.   Similarly in U.S. v. Paulino (1st Cir.1994) 13 F.3d 20, 22, 26, a sufficient nexus was found where (1) the defendant had a possessory interest in an apartment;  (2) the defendant was in the kitchen of the apartment;  (3) drugs were on a coffee table in the bedroom;  and (4) a loaded firearm was in a chair next to the coffee table.

Although it is true that Bland and Paulino involved situations where the firearms and drugs were found close together, it would be a mistake to simply compare them to this case and find there could be no facilitative nexus under these circumstances without further analysis.

 First, the question of whether possession of the firearm was in the commission of the underlying felony is a question of fact, not a question of law.  (People v. Masbruch (1996) 13 Cal.4th 1001, 1007, 55 Cal.Rptr.2d 760, 920 P.2d 705.)   Thus, we are simply called upon to determine whether a rational trier of fact could find that defendant was armed during the commission of his illegal drug possession.

Second, Bland did not attempt to limit the applicability of section 12022 to certain situations.   Instead, it expanded the circumstances to include situations where the defendant is not present at the location of the firearm or drugs when they are found so long as the jury can reasonably infer the firearm was available for use by the defendant “in furtherance of the drug offense at any time during his possession of the drugs.”  (People v. Bland, supra, 10 Cal.4th at p. 1000, 43 Cal.Rptr.2d 77, 898 P.2d 391 [reversing the Court of Appeal's ruling the firearm was not available for use because the defendant was outside when the officers seized the drugs and firearms from defendant's bedroom, and disapproving People v. Balbuena (1992) 11 Cal.App.4th 1136, 14 Cal.Rptr.2d 640, which also had focused on the relationship between the defendant and the drugs and gun at the time police made the seizure].)  Therefore, we examine the facts of this case independently in assessing the sufficiency of the evidence.

Initially, we observe defendant does not contend there is insufficient evidence to support his conviction for possession of methamphetamine for sale.   To the contrary, the evidence is clear that defendant had dominion and control over the drugs in his garage.  (People v. Jenkins (1979) 91 Cal.App.3d 579, 584, 154 Cal.Rptr. 309.)   Indeed, he admitted the drugs were his alone.   Although he was inside his house when the police executed the search warrant, there is also no doubt that defendant's dominion and control continued during the times he was inside his residence.  (People v. Von Latta (1968) 258 Cal.App.2d 329, 339-341, 65 Cal.Rptr. 651.)

Did defendant have a firearm available for use, either offensively or defensively at the time he illegally possessed methamphetamine for sale?   The answer is:  absolutely.   Not only was defendant present in his bedroom where his firearm was located on the floor by the bed, the firearm was fully loaded.   In addition, defendant had enough other firearms in his bedroom to arm a small infantry.

The remaining question, which is the crux of defendant's contention, is whether the jury could infer there was a link or facilitative nexus between defendant's arming and his drug possession, thereby supporting a conclusion defendant was armed in the commission of his illegal drug possession.   Contrary to defendant's contention that no evidence supports a nexus, there are several ways the jury could reasonably infer a connection between defendant's being armed and his possession of methamphetamine for sale.

First, the detached garage was easily visible from defendant's bedroom window and was only 20 to 30 yards away from the residence.   Consequently, defendant could use his bedroom as a sentry station from which he could quickly respond with his loaded revolver (and his loaded speed loader), or his other firearms, at a moment's notice against any intruders into his garage, where he kept his drugs.   Although defendant contends this scenario is pure speculation, it is instead a reasonable inference.   After all, “it is common knowledge that perpetrators of narcotics offenses keep weapons available to guard their contraband.”  (People v. Bradford (1995) 38 Cal.App.4th 1733, 1739, 45 Cal.Rptr.2d 757.)  “Drug dealers are known to keep guns to protect not only themselves, but also their drugs and drug proceeds;  ready access to a gun is often crucial to a drug dealer's commercial success.   For this reason, a jury may properly infer that a firearm kept in close proximity to illegal drugs in a place frequented by the defendant during a possessory drug offense was available for the defendants use in furtherance of the drug possession․”   (People v. Bland, supra, 10 Cal.4th at p. 1005, 43 Cal.Rptr.2d 77, 898 P.2d 391.)

Second, in addition to being able to act as a sentinel, the portability of defendant's handgun made it easy for him to take the firearm with him when dealing his drugs from the garage, just as he could carry his wallet stuffed with over $3,600 in currency.   Again, given the need for protection from drug users, the jury could reasonably infer defendant carried his firearm to the garage to engage in potentially dangerous and illegal drug transactions.   Even if the firearm were to remain in the bedroom, 20 to 30 yards is not so great a distance that defendant could not immediately retrieve the firearm if it became necessary for him to use it.   It was therefore available for use.

Support for the above two conclusions is found in People v. Bradford, supra, 38 Cal.App.4th at page 1739, 45 Cal.Rptr.2d 757.   There, officers had found loaded shotguns in defendant's cabin, although defendant was not present.   Approximately one-quarter mile from the cabin were 81 marijuana plants.   While it was decided in a sentencing context, relying on Bland, the Bradford court held “the record permits the fair inference that defendant was present in his cabin with the weapons at some point during the process of cultivating the marijuana nearby.”  (Ibid.) The court thus concluded substantial evidence showed defendant was armed with shotguns during the commission of the cultivation offense, so that defendant's possession of the weapons was transactionally related to the offense.  (Ibid.)

Finally, the jury could infer that some of the drug transactions actually occurred within defendant's residence, where he kept many firearms.   In addition to some scales found in defendant's bedroom, white powder residue was found on a mirror in defendant's bedroom.   This evidence gives rise to the inference the methamphetamine was not kept exclusively in the garage, but was also taken into defendant's residence and bedroom.   From this evidence, “the jury could reasonably infer that, at some point during defendant's felonious drug possession, defendant was physically present with both the drugs and the weapon, giving him ready access to the [firearm arsenal] to aid his commission of the drug offense.”  (People v. Bland, supra, 10 Cal.4th at p. 1000, 43 Cal.Rptr.2d 77, 898 P.2d 391.)

For all these reasons, we conclude the evidence was sufficient to establish defendant was armed in the commission of the offense of possession of methamphetamine for sale.³

II. The pinpoint instruction

 Defendant contends the trial court committed prejudicial error when it refused his pinpoint instruction requiring the jury to find a facilitative nexus between the drugs and the weapon as required by Bland, supra, 10 Cal.4th 991, 43 Cal.Rptr.2d 77, 898 P.2d 391.   Defendant also argues that even if his proposed instruction was flawed, the trial court was nonetheless required to give a correct instruction encompassing the Bland principles regarding a nexus.

As noted earlier, Bland held there must be a link between the defendant's possession of a firearm and his contemporaneous commission of a felony in order for the statutory requirements of section 12022 to be satisfied.   The court noted:  “by specifying that the added penalty applies only if the defendant is armed with a firearm ‘in the commission’ of the felony offense, section 12022 implicitly requires both that the ‘arming’ take place during the underlying crime and that it have some ‘facilitative nexus' to that offense.”   (People v. Bland, supra, 10 Cal.4th at p. 1002, 43 Cal.Rptr.2d 77, 898 P.2d 391.)   Based on Bland, defense counsel attempted to construct a pinpoint instruction encompassing these principles.   Unfortunately, while counsel's intentions were good, the proposed instruction was not.   It read as follows:

“To find that Mr. Gray was in violation of Penal Code section 12022(c) in that he was personally armed with a weapon, the following must be found to have occurred by the jury:  (1) There exist a facilitative nexus between the weapon and narcotics;  (2) their proximity together was not accidental or coincidental;  and (3) the weapon's presence was known by Mr. Gray and it was at some point available for immediate use.

“In this case the weapon was located in the bedroom while all contraband was located in the unattached garage of the residence.”

 A defendant is entitled to a requested instruction that pinpoints the theory of the defense or relates the reasonable doubt standard of proof to particular elements of the crime charged.  (People v. Wright (1988) 45 Cal.3d 1126, 1137, 248 Cal.Rptr. 600, 755 P.2d 1049.)   However, instructions that attempt to relate particular facts to a legal issue are generally objectionable as argumentative.  (Ibid.) “[T]he effect of certain facts on identified theories ‘is best left to argument by counsel, cross-examination of the witnesses, and expert testimony where appropriate.’  [Citation.]”   (People v. Wharton (1991) 53 Cal.3d 522, 570, 280 Cal.Rptr. 631, 809 P.2d 290.)

Aside from being inartfully phrased, the defense instruction had two substantial defects:  (1) the term “facilitative nexus” is not defined, and it is a legal term of art not likely to be understood by a lay juror;  and (2) the second paragraph incorporates evidence into the instruction and makes it argumentative by presenting the evidence as facts of the case.   In doing so, the instruction places the court's imprimatur upon certain evidence in the case as established facts.   As a result, the trial court properly refused to give the instruction.

Alternatively, defendant argues the trial court should have either modified defendant's proposed instruction, or given its own instruction encompassing the Bland principles sua sponte.   Some support for defendant's position is found in People v. Fudge (1994) 7 Cal.4th 1075, 1110, 31 Cal.Rptr.2d 321, 875 P.2d 36, where the California Supreme Court held:  “To the extent that the proposed instruction was argumentative, the trial court should have tailored the instruction to conform to the requirements of Wright, supra, 45 Cal.3d 1126, 248 Cal.Rptr. 600, 755 P.2d 1049, rather than deny the instruction outright.”  (See also People v. Hall (1980) 28 Cal.3d 143, 159, 167 Cal.Rptr. 844, 616 P.2d 826.)

 Before deciding whether the trial court erred by refusing the instruction without modifying it, it is necessary to consider the sufficiency of the instruction that was provided.   Where the defendant's proposed instruction is repetitious of instructions already given, the trial court may properly refuse it.  (People v. Garceau (1993) 6 Cal.4th 140, 192-193, 24 Cal.Rptr.2d 664, 862 P.2d 664;  People v. Harris (1989) 47 Cal.3d 1047, 1099, 255 Cal.Rptr. 352, 767 P.2d 619 [if the substance of the pinpoint instruction is already covered by a CALJIC instruction, a pinpoint instruction need not be given];  People v. Wright, supra, 45 Cal.3d at p. 1134, 248 Cal.Rptr. 600, 755 P.2d 1049.)

In this case, the court instructed the jury pursuant to CALJIC No. 17.15 (1993 Revision), as follows:

“It is alleged in Count 1 that in the commission of the crime therein described defendant was armed with a firearm.

“If you find a defendant guilty of the crime thus charged, you must determine whether or not such defendant was armed with a firearm at the time of the commission of the crime.

“The term ‘armed with a firearm’ means knowingly to carry a firearm or have it available as a means of offense or defense.

“The word ‘firearm’ includes a pistol, revolver, shotgun, or rifle.

“A person who is a principal in the commission of the crime charged in Count 1 is armed with a firearm, if any one or more principals of such crime is so armed, regardless of whether such person is personally armed with a firearm.

“The People have the burden of proving the truth of this allegation.   If you have a reasonable doubt that it is true, you must find it to be not true.

“You will include a special finding on that question using a form that will be supplied for that purpose.”

As can be seen, the above instruction essentially covered the points defendant sought to convey with his requested instruction.   For example, the above instruction requires a nexus between the firearm and the drugs since it requires the jury to find the defendant was “armed with a firearm at the time of the commission of the crime.”   Further, the above instruction required the jury to find defendant “knowingly” carried or had the firearm available as a means of offense or defense.   Therefore, the substance of defendant's pinpoint instruction was already covered by the CALJIC instruction that was given, and thus the pinpoint instruction was properly refused.  (People v. Harris, supra, 47 Cal.3d at p. 1099, 255 Cal.Rptr. 352, 767 P.2d 619.)

The only concept included in defendant's instruction that was not specifically covered by the CALJIC instruction given was the caveat that the proximity of the firearm to the drugs must not be simply accidental or coincidental.   However, this was implicit in the CALJIC instruction since it required that defendant knowingly carry or have the firearm available as a means of offense or defense.   If the firearm was present or possessed by defendant accidentally or coincidentally, by definition ⁴ he could not knowingly carry it or have it available as a means of offense or defense.

 Further, whether the firearm was present coincidentally or accidentally is not an element of the enhancement statute, but is instead in the nature of an affirmative defense.  (See e.g., People v. Terry (1970) 2 Cal.3d 362, 396, 85 Cal.Rptr. 409, 466 P.2d 961, overruled on other grounds in People v. Carpenter (1997) 15 Cal.4th 312, 381-382, 63 Cal.Rptr.2d 1, 935 P.2d 708 [defense of duress or fear];  People v. Kelley (1967) 66 Cal.2d 232, 241, 57 Cal.Rptr. 363, 424 P.2d 947 [defense of “innocent intent”];  People v. Wells (1949) 33 Cal.2d 330, 341-342, 202 P.2d 53, overruled on other grounds in People v. Wetmore (1978) 22 Cal.3d 318, 324, 149 Cal.Rptr. 265, 583 P.2d 1308 [defense of accident];  People v. Jeffers (1996) 41 Cal.App.4th 917, 922, 49 Cal.Rptr.2d 86 [defense of misfortune or accident].)  Along these lines, the Bland court held that when a firearm is found in close proximity to the illegal drugs in a place frequented by the defendant, a jury may reasonably infer the presence is not accidental or coincidental and will support an arming enhancement if “not refuted by defense evidence․”   (People v. Bland, supra, 10 Cal.4th at p. 1003, 43 Cal.Rptr.2d 77, 898 P.2d 391.)   Therefore, to support an instruction regarding accidental or coincidental presence or possession of a firearm during the commission of a crime, defense evidence must be presented to support it.   It is not, as defendant apparently contends, an issue to be instructed upon in every case where being armed in the commission of the offense is charged.

 Since the instruction given met all the requirements of Bland, the remaining question is whether defendant was entitled to an instruction on the defense of accidental or coincidental possession of the firearm during the commission of the offense.   The answer to this question is “no.”   There was no evidence presented to support a theory that the presence of the loaded revolver in the bedroom of defendant's house, by his bed, was merely accidental or coincidental to his crime of possession of methamphetamine for sale.   Indeed, the only evidence presented regarding this firearm was by defendant's wife, Karen Baker Gray, who was living in defendant's home at the time of the search and seizure.

Gray testified weapons were kept in defendant's bedroom, and that they belonged to defendant.   She knew a loaded handgun was kept in defendant's bedroom on the nightstand.   Defendant had his collection of assorted firearms during the whole time Gray knew him, and there had been some crimes which had occurred at or near defendant's home.   She testified defendant would clean the firearms and reload bullets or shells with gun powder.   However, she never actually saw defendant do so.

As can be seen, the firearms found in defendant's bedroom all belonged to him.   He knew of their existence and availability as a means of offense or defense.   Other evidence also established defendant's possession of drugs for sale had been a long term venture.   He had no formal job, working instead as a handyman from his home and garage, and his wife was dependent on public assistance and child support at the time.   In conclusion, no evidence supported a theory that defendant's possession of his gun collection or the loaded firearm by his bed, was accidentally possessed, or that it was a mere coincidence that he happened to possess both firearms and drugs over a long period of time.   Consequently, the court properly refused to instruct on a defense theory of accidental or coincidental possession of a firearm and drugs.

 Concomitantly, because defendant presented no evidence to support a theory that there was no “facilitative nexus” between the firearms and the drugs, the refusal to give his pinpoint instruction was obviously harmless.   His argument that any connection between the drugs in his detached garage and the firearms in his bedroom is pure speculation was fully presented to the jury and rejected by the jury.   As we noted earlier, the inference of a “facilitative nexus” was strong and unrefuted by defense evidence.   The jury did not need an instruction which further emphasized the requirement of a “facilitative nexus” to properly resolve the case.   Given the strong evidence of guilt and the lack of defense evidence on the arming issue, even if the jury had been instructed pursuant to defendant's requested instruction, it is not reasonably probable defendant would have received a more favorable result.   (People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243;  People v. Wims (1995) 10 Cal.4th 293, 298, 41 Cal.Rptr.2d 241, 895 P.2d 77.)

III. Cumulative error***

IV. Defendant's continuance request and the ineffective assistance of counsel claim***

V. Resentencing on count II ***DISPOSITION

The judgment of convictions is affirmed.   The matter is remanded for a hearing on defendant's motion to suppress on the limited issue of alleged noncompliance with knock-notice requirements.   If the motion is denied, the court shall resentence defendant on count 2. If the motion is granted, the court shall order the judgment vacated and set the matter for a new trial.

FOOTNOTES

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

2.   The investigating officer first testified the speed loader was on the floor by the loaded handgun.   Later, he testified the speed loader was located on the nightstand.

3.   Although the People also argue that the rifle barrel found in the garage could constitute the arming, a theory not argued to the jury, we save for another day the question of whether a rifle barrel with no stock may constitute a firearm for purposes of the arming enhancement.

4.   Webster defines the word “accidental” as “1. happening by chance;  fortuitous․” (Webster's New World Dict. (2nd college ed.1982) p. 8.) Webster defines the word “coincidence” as “1. the fact or condition of coinciding 2. an accidental and remarkable occurrence of events, ideas, etc. at the same time, suggesting but lacking a causal relationship.”   (Id. at p. 277.)

FOOTNOTE.   See footnote *, ante.

WISEMAN, Associate Justice.

STONE (Wm.A.), Acting P.J., and LEVY, J., concur.