PEOPLE v. AMADOR (1993)

The sole issue raised on this appeal is whether the evidence was sufficient to support the trial court's finding under Penal Code section 12022, subdivision (c) that appellant Jose Geovani Amador was personally armed with a firearm in the commission or attempted commission of a violation of Health and Safety Code section 11352 (sale or offer to sell cocaine).   We conclude that the evidence was sufficient and affirm.¹

Appellant Jose Geovani Amador was charged in count 1 with sale or offer to sell cocaine (Health & Saf.Code, § 11352), in count 2 with possession of cocaine for sale (Health & Saf.Code, § 11351), and in count 3 with altering a firearm (Pen.Code, § 12090).   As to counts 1 and 2, it was alleged that appellant was personally armed with a firearm (Pen.Code, § 12022, subd. (c)), and as to count 2 only a quantity enhancement was alleged (Pen.Code, § 1203.073, subd. (b)(1)).   Pursuant to a negotiated disposition, appellant entered a no contest plea to count 1, that he did “willfully and unlawfully sell or offer to sell a controlled substance, to wit, cocaine, in violation of Health and Safety Code Section 11352, a felony.”   In exchange for his no contest plea, a mitigated three-year sentence was indicated and all remaining charges and enhancements were dismissed, except the arming enhancement as to count 1.   Concerning this arming enhancement, appellant waived a jury and agreed to a court trial on stipulated facts with the understanding that if found true, an additional three years would be imposed.   The arming allegation was found true and appellant was sentenced, in accordance with the negotiated disposition, to six years in state prison.

By stipulation, the following was presented to the trial court on the arming allegation.   On January 27, 1993, appellant went to a hotel room for the purpose of selling cocaine to Gabriel O'Neill, who unknown to appellant was a police informant.   When appellant entered the room, O'Neill conducted a patsearch for his own protection and in doing so detected a gun.   O'Neill asked appellant to remove the gun, and appellant complied by handing the weapon to O'Neill.   O'Neill unloaded the firearm, took possession of the bullets, and threw the gun in the corner of the room.

O'Neill then showed appellant the buy money for “purposes of purchasing cocaine from Mr. Amador.”   Appellant then left the hotel room, “went down to his automobile, moved his automobile, removed a package from the vehicle which subsequently turned out to be the cocaine alleged in Count One.”   Within a “short time” of leaving the room, appellant returned with the cocaine and the transaction was completed.

Appellant was arrested inside the hotel room once the transaction was completed.   He was arrested before regaining possession of the firearm.

DISCUSSION

In People v. Reaves (1974) 42 Cal.App.3d 852, 117 Cal.Rptr. 163, the reason for increased punishment for armed offenders was clearly articulated:  “The desire of the Legislature to prevent death and injury as a result of the involvement of firearms in the commission of crime is manifest from the various provisions for increased punishment for crimes where firearms are in some way involved.   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 weapon or has it available for use in either offense or defense.”  (Id., at pp. 856–857, 117 Cal.Rptr. 163, emphasis added.)   More recently, in People v. Wandick (1991) 227 Cal.App.3d 918, 278 Cal.Rptr. 274, the court, citing People v. Reaves, supra, reiterated that “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 the crime․”  (People v. Wandick, supra, at p. 928, 278 Cal.Rptr. 274.)

Here, it is undisputed that the hotel room was “the scene of the crime.”   To the scene of the crime, appellant “carried” on his person a loaded firearm.   While in possession of a loaded firearm, he met with O'Neill, which meeting was an essential and integral part of the drug transaction.   The fact that the transaction was not consummated by actual delivery of the cocaine until a “short time” after appellant surrendered the firearm is, in our view, of no consequence.   Appellant's act of going to the scene of the crime to meet with the buyer and see the buy money was certainly an act “in the commission or attempted commission” of the crime (Pen.Code, § 12022, subd. (c)), which was fully completed shortly thereafter and at the same location.

Appellant's focus on those cases dealing with accessibility or availability of the firearm to the defendant misses the mark.  (See, for example, People v. Balbuena (1992) 11 Cal.App.4th 1136, 14 Cal.Rptr.2d 640 [firearm found in closed suitcase];  People v. Mendival (1992) 2 Cal.App.4th 562, 3 Cal.Rptr.2d 566 [handgun on floorboard of car].)   Whether the weapon was “available for offensive or defensive use” (Balbuena, supra, 11 Cal.App.4th at p. 1139, 14 Cal.Rptr.2d 640) after it was unloaded and thrown in the corner of the room is irrelevant.   The firearm, as heretofore discussed, was both carried by appellant and available for offensive or defensive use when he arrived at the scene of the crime to meet with O'Neill.   Since that activity was a critical and integral part of the drug transaction, he was armed within the meaning of Penal Code section 12022, subdivision (c).

CONCLUSION

Judgment affirmed.

FOOTNOTES

1.   Our Supreme Court has granted review in a number of cases dealing with the circumstances under which a defendant may be found to have been armed during the commission of an offense involving possession of a controlled substance.  (See People v. Bland (1993) 14 Cal.App.4th 1441, 18 Cal.Rptr.2d 339 (review granted July 15, 1993 (S032900);  see also People v. Shadwick (July 30, 1993) (C013727) [nonpub. opn.] (review granted Oct. 28, 1993 (S034887);  People v. Herrera (July 21, 1993) (B068337) [nonpub. opn.] (review granted Oct. 21, 1993 (S034831);  People v. Lepe (July 27, 1993) (H010103) [nonpub. opn.] (review granted Oct. 14, 1993 (S034760).)

REARDON, Associate Justice.

ANDERSON, P.J., and POCHÉ, J., concur.