PEOPLE v. CHANTHAMANY (1994)

OPINION

Defendant appeals from multiple convictions and enhancements in three separate superior court actions.¹  In superior court action No. 279238, defendant was convicted by jury of possession for sale of cocaine base (Health & Saf.Code, § 11351.5).   It was also found that he was armed with a firearm within the meaning of Penal Code section 12022, subdivision (c) ² and that he had been previously convicted of violation of Health and Safety Code section 11351.5 within the meaning of Health and Safety Code section 11370, subdivision (a) and Health and Safety Code section 11370.2 (sections providing for probation ineligibility and a three-year additional term).

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DISCUSSION

I. No. 279238 (Possession of Cocaine for Sale)A., B.**C. The jury's finding on the personally armed allegation was supported by substantial evidence.

The jury found that during the commission of the offense of possession of cocaine base for sale, defendant was personally armed with a firearm, to wit, a .380 semiautomatic in violation of section 12022, subdivision (c).   Defendant contends there is insufficient evidence to support this finding because there was no evidence showing that he was aware of the existence of the firearm or that the firearm was available for offensive or defensive use.

 In the unpublished portion of this opinion, we have already established that substantial evidence supports the jury's conclusion that defendant was aware of the existence of the cocaine base and it was in his possession.   Further discussion of that evidence is unnecessary in our resolution of this issue except to accept as true defendant was aware of the existence of the gun and it, too, was in his possession.   Because no witness testified that he or she observed that the defendant was actually armed at the time defendant was conducting a drug sale, the crucial question remaining is whether the jury's finding that defendant was personally armed with the firearm can be upheld.   After a review of the pertinent statute, cases which have determined the applicability of the personally armed enhancement, and the distinct nature of drug possession cases, we conclude that under certain circumstances, including the case before us, a person can be personally armed while in possession of drugs even though at the time of arrest or at the time the person was dispensing drugs from the cache, no one observed the person in actual possession of the firearm.

 It has been recognized that in enacting section 12022, subdivision (c), the Legislature was referring to a definition of “armed” previously recognized by case law, namely, either carrying a weapon or having it available for use in either offense or defense.  (People v. Superior Court (Pomilia) (1991) 235 Cal.App.3d 1464, 1468, 1 Cal.Rptr.2d 386.)   Nothing in the legislative history shows any intent to limit punishment to circumstances involving carrying a weapon on the person;  rather, the legislation was intended to provide substantial additional punishment for all armed narcotics offenders because they create a greater danger to law enforcement officers and innocent bystanders.  (Id. at p. 1471, 1 Cal.Rptr.2d 386.)   Having a weapon available for use creates a danger that it will be used.  (People v. Men dival (1992) 2 Cal.App.4th 562, 573, 3 Cal.Rptr.2d 566.)   For a weapon to be available, circumstances must be such that one may avail himself of it;  it may be reached, or is handy or is accessible.  (Id. at p. 575, 3 Cal.Rptr.2d 566.).

Applications of this concept of arming vary with respect to accessibility.  (See People v. Mendival, supra, 2 Cal.App.4th at p. 562, 3 Cal.Rptr.2d 566 [both defendant, driver of a car, and his passenger were properly found to have violated section 12022, subdivision (c) where an unloaded gun was on the front floorboard of the car];  People v. Gonzales (1992) 8 Cal.App.4th 1658, 11 Cal.Rptr.2d 267 [defendant was personally armed where he was in a room with a loaded rifle lying on top of a sofa on which he claimed to have been sitting when police burst through the door];  People v. Wandick (1991) 227 Cal.App.3d 918, 278 Cal.Rptr. 274 [defendant was properly found to be armed where he was located in a master bedroom which contained two guns—one in a holster, and one on a bedpost];  People v. Superior Court (Pomilia), supra, 235 Cal.App.3d 1464, 1 Cal.Rptr.2d 386 [proper for trier of fact to find that a defendant had firearms available where two loaded pistols were found in a bedroom which defendant had left and then turned to reenter when he was told to lie on the floor by officers];  People v. Searle (1989) 213 Cal.App.3d 1091, 261 Cal.Rptr. 898 [defendant found to be armed within the meaning of Cal.Rules of Court, rule 421(a)(2) where a loaded gun, which was stored in an unlocked compartment of the back of the car, was found, and defendant had previously sold cocaine from the car and was arrested in the car];  People v. Garcia (1986) 183 Cal.App.3d 335, 228 Cal.Rptr. 87 [defendant found to be armed with a firearm within the meaning of Cal.Rules of Court, rule 421(a)(2), where defendant burglar had entered a kitchen by way of a garage, and a handgun containing one round in the chamber and six in a clip with the safety off was found outside the garage near the garage door].)

Defendant relies on People v. Balbuena (1992) 11 Cal.App.4th 1136, 14 Cal.Rptr.2d 640.   There, in executing a search warrant, police forcibly entered a house after receiving no response to their knock and hearing someone walk through the house for approximately a minute and a half.   The first room the officers entered was the living room, where they found defendant lying on the floor about 10 or 12 feet away from a suitcase which contained an unloaded pistol.   An extended sofa bed separated defendant from the suitcase.   No ammunition was found.   The court concluded the evidence was insufficient to show that defendant had the pistol available for offensive or defensive use.   (Id. at p. 1139, 14 Cal.Rptr.2d 640.)   The court reasoned that the gun was not within defendant's reach, had not been placed in a position of especially ready access, was not loaded and ready for use, and was not connected with the offense (possession for sale of controlled substances found in nearby suitcases).   Further, the court noted that defendant was not shown to have attempted to take the weapon out even though he had ample opportunity to do so.   Once the police entered, access to the gun was cut off because defendant would have had to travel toward the officers and either directly pass them or vault over the sofa bed in order to reach the gun.  (Ibid.)

Balbuena is distinguishable.   Here, unlike Balbuena, the firearm was loaded and clearly connected with the offense of possession for sale as it was found near the cache of cocaine base.   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.   Circumstances at the time of arrest should not be determinative in drug possession cases.

 We conclude that the circumstances surrounding the firearm found in the utility room fit squarely within the definition of section 12022, subdivision (c);  it was available for offensive or defensive use in the commission of the offense of possession for sale of drugs.  (Cf. People v. Mendival, supra, 2 Cal.App.4th at pp. 574–575, 3 Cal.Rptr.2d 566.)

In crimes such as robbery and burglary, determination of “personally armed” is more easily made as the commission of such offenses is limited in time and place.   However, in crimes such as drug possession, and particularly the sale or possession for sale of drugs, the commission of the offense is not so finite;  it is continuous in nature.   The proximity of the firearm to the cache of drugs attains special significance.   For example, it is apparent that the purpose of placing a loaded firearm near the drugs being sold or possessed for sale is to defend the drug dealer from attack or from being “ripped off” while transacting the sale or in obtaining a quantity to deliver elsewhere.   In People v. Searle, supra, 213 Cal.App.3d at page 1099, 261 Cal.Rptr. 898, the Court of Appeal recognized the distinctive nature of drug offenses when it affirmed the trial court's reliance upon the presence of a loaded firearm in a car from which the defendant sold drugs as a circumstance in aggravation under California Rules of Court, rule 421(a)(2).⁵  The fact that at the time of arrest, defendant may not have had “ready access” was not discussed, and inferentially, was of little significance.⁶  (Id. at p. 1095, 261 Cal.Rptr. 898.)

 The more significant inquiry in considering a personally armed enhancement in connection with a drug offense is whether the requisite facts have been established:  (1) presence of drugs;  (2) nexus of a firearm to the drugs;  and (3) defendant's proximity and immediate access to the firearm.   For example, we can see the merit in an argument that one who is charged with possession for sale of drugs found in a mini-storage in which a firearm is also found cannot be found to have been personally armed if there is no showing when he last visited the mini-storage and whether the weapon was present at that time for offensive or defensive use.

However, that problem is not presented here.   Evidence elicited at trial sufficiently established defendant's proximity and access to the loaded firearm and the drug cache nearby.

George Angelakis, who had been arrested for possession of cocaine base, told the arresting officers that he had just obtained the drugs from a man dressed in a Raiders jacket and ball cap.   That man sold the drugs after going inside a house to obtain them.   Approximately two hours later, the police attempted to enter the house from which the drugs were sold to conduct a probation search on defendant.   After initially resisting entry by the officers, defendant was found dressed in a Raiders jacket and ball cap and in possession of a pager.   While entry was being resisted, another occupant of the house was observed running toward the back of the house where the cocaine base and firearm were found.   Testimony was presented as to the particular significance and use of pagers in the vicinity of defendant's house.

From these facts, it could reasonably be concluded that on the date in question, defendant obtained drugs from his supply in the utility room and sold them to Angelakis.   Therefore, given the proximity of the firearm to the drugs and defendant's access to them both at that time, it can fairly be stated that the firearm was “available for offensive or defensive use.” ⁷

D. Failure to instruct on section 12022, subdivision (a)(1). ***

II–V ***

DISPOSITION

In superior court case No. 279238, that portion of the judgment finding true the section 12022, subdivision (c) enhancement is reversed and remanded for retrial on that issue.   The People shall have 30 days in which to set the matter for trial.   Should the People decline, the court shall enter judgment finding an enhancement under section 12022, subdivision (a) and modify the abstract of judgment accordingly.   In case No. 282793, the court shall also modify the abstract of judgment deleting the three one-year enhancements under section 667.5, subdivision (b) and inserting the Health and Safety Code section 11370.2 enhancement.   In all other respects, the judgment is affirmed.

FOOTNOTES

1.   Two appeals were filed from these convictions.   We have ordered consolidation.   The published portion of this opinion concerns only case No. 279238.

2.   All statutory references are to the Penal Code unless otherwise noted.

FOOTNOTE.   See footnote *, ante.

5.   California Rules of Court, rule 421(a)(2) provides for aggravation if the defendant is armed with or used a weapon in the commission of the crime.

6.   In its exposition of facts, the court discussed defendant's practice of dealing from his car.

7.   We find it significant that even in Balbuena, the court distinguished People v. Searle, supra, 213 Cal.App.3d 1091, 261 Cal.Rptr. 898 by stating, inter alia, “Although the gun in Searle was not in the defendant's immediate reach, it was kept in a place suggesting contemplated use in the offense.”  (People v. Balbuena, supra, 11 Cal.App.4th at p. 1140, 14 Cal.Rptr.2d 640, emphasis added.)   This distinction underscores the validity of the position taken here.   The gun was available as a means of offense or defense in the commission of the crime of possession for sale of drugs.

FOOTNOTE.   See note *, ante.

BUCKLEY, Associate Justice.

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