PEOPLE v. BLAND (1993)

OPINION

Marvin Bland (defendant) was charged with possession of cocaine base for sale on March 21, 1990, in violation of Health and Safety Code section 11351.5, with being personally armed with a firearm within the meaning of Penal Code section 12022, subdivision (c),¹ with being armed with an assault rifle within the meaning of section 12022, subdivision (a)(2), and with possessing 14.25 or more grams of cocaine base within the meaning of section 1203.073, subdivision (b)(5) (count I).   He was further charged with possession of cocaine base for sale on April 24, 1990 (count II).   This charge was enhanced by the fact that he was released from custody at the time of the commission of the offense within the meaning of section 12022.1.

At trial, defendant admitted the enhancement under section 12022.1 (that he was released from custody at the time of the commission of the offense alleged in count II).   Then, the enhancement under section 1203.073 (that he had possessed 14.25 or more grams of cocaine base) was stricken.   Further, the trial court denied defendant's section 1118 motion to dismiss the enhancement under section 12022, subdivision (a)(2) (he was armed with an assault rifle) but granted the motion as to the enhancement under section 12022, subdivision (c) (that he was personally armed with a firearm).

The jury found defendant guilty of counts I and II, including the enhancement for being armed with an assault rifle attached to count I.   Defendant was sentenced to state prison for the middle term of four years on count I, with a four-year enhancement under section 12022, subdivision (a)(2), and one year and four months consecutive sentence on count II for a total of ten years and four months.

Defendant filed a timely notice of appeal.

FACTS

On March 21, 1990, Officers Tarter and Laband arrested defendant in connection with stolen car parts.   Defendant took the officers to his mother's home at 1930 West Oleander Street indicating that was his home address.   No car parts were found there.   Officer Laband testified that defendant's mother told him that defendant did not live there but, rather, that he lived at 1330 South Modoc.   The officers then took defendant to 1330 South Modoc to search for the stolen car parts.

The officers testified that defendant stated that the house at 1330 South Modoc was his.   When Officer Tarter asked defendant if he had custody and control over the house, defendant responded, “Yes.”   The officers further stated that defendant had said that his sister, Elsie Bland was living there also.   An elderly gentleman opened the door to the officers and they asked for Elsie.   They did not see anyone else in the house.   Elsie appeared to be sober, and gave her consent to search the house.   She told the officers that it was defendant's house and that defendant's room was the southwest bedroom which he usually kept locked.

While the officers were searching the house, defendant was sitting outside in the patrol car.   No stolen car parts were found.   However, the officers found contraband and firearms in the southwest bedroom.   They seized from the floor of a closet a plastic bag containing 17.95 grams of cocaine, several plastic baggies, two glass baby bottles, and two Pyrex-type measuring cups with white residue in the bottom of them.   They found under the bed a cache of firearms including a Colt AR–15 semi-automatic .223–caliber rifle with a banana clip, a .303–caliber rifle, and a 7.62–millimeter rifle.   They also found a pistol in the attic which was accessible through a crawl space in the closet of the northwest bedroom (a storage room).   The officers also found a photo album in the southwest bedroom with a picture of defendant holding an AR–15.

Officer Tarter testified that no ammunition was found in the house and no fingerprints were taken from any of the weapons.   Clothes were in the closet in the southwest bedroom but defendant was not asked to try any of them on to see if they were his.   No fingerprints were taken from the drug paraphernalia.   Also, Officer Tarter did not remember if they had found any P.G. & E. or telephone bills in defendant's name as indicia of ownership.   No keys to the southwest bedroom were found.

A month later, on April 24, 1990, several narcotics officers executed a search warrant at 1330 South Modoc.   When the officers arrived, defendant and Kevin Bess were in the house.   In the living room, the officers found a pager and a letter addressed to defendant at 1330 South Modoc and dated April 23, 1990.   In the southwest bedroom, the officers found a small balance scale, small plastic baggies, and $40.   The officers then discovered 9.70 grams of cocaine in a light switch box.

In searching the kitchen, the officers found .56 grams of cocaine, a razor blade and a number of plastic baggies in a cupboard, a digital scale and more plastic baggies, one of which yielded defendant's right thumbprint.   In the kitchen the officers also found a cellular phone, two receipts for car rentals, one traffic citation in defendant's name which listed his mother's address, and an address book.   The officers could not determine the ownership of the pager or the cellular phone.   One of the officers testified that he did not arrest Kevin Bess because “He had nothing to indicate that—that he was even involved in the activity that was occurring there.   All my information up till then had been directed and pointed mainly at Marvin Bland.”   Officer Kurt Smith, who had been assigned to the narcotics enforcement team for four years, stated that, in his opinion, the cocaine found was possessed for purposes of sale.   There was no material which would be used to smoke cocaine or any indication of narcotics being used in the house.   Also, there was a fair level of cocaine, there were packaging materials, money, razor blades, pagers, cellular phones and a scale which were all consistent with possession for sale.

 Defense.

Defendant's mother, Mildred Bess testified she did not tell the police on March 21, 1990, that defendant lived at 1330 South Modoc (the Modoc house).   Rather, she told them he had been at the Modoc house earlier in the evening.   Bess rented the house to Yolanda Moore, the girlfriend of her son, Jeffrey.   She said that her nephew, Kevin Bess, often stayed at the Modoc house because he had nowhere else to stay.   According to Bess, she never gave the officers permission to search the Modoc house on March 21, 1990.

Elsie Bland, defendant's sister, testified that she was staying at the Modoc house on March 21, 1990, because she did not have transportation to get to her house on Cornelia.   When the officers arrived, she was passed out on the couch from drinking.   When she woke up, her father and her brother-in-law, Felix Magano, were there.   Elsie could not recall telling the officers that defendant lived at the Modoc house or that he lived in the southwest bedroom.   She did not tell the officers that defendant usually kept his room locked.

Defendant testified that he did not tell the officers that he lived at the Modoc house or that he consented to a search of the premises.   He stated that he had been living at Elsie's on Cornelia for about a month and a half since he had moved back from Sacramento.   He denied ever staying overnight at the Modoc house since he had moved back.   He did say he was in and out of the house two or three times a day because he was working next door at Bess' Market.

Defendant also denied having told the officers that he had “custody and control” of the Modoc house.   He said that he did not think anyone would mind the officers searching for vehicle parts but that he did not have the authority to actually consent to the search.   Defendant further denied that the narcotics found were his.   When asked about why his fingerprint was found on one of the baggies seized from the kitchen, defendant stated that it must have gotten there while he was picking up things in the kitchen and putting them away.   Defendant denied ever seeing the pager which was found.   He also explained that the letter found by the officers was to him following an inquiry into canine services by Felix Magano on his behalf.   Magano stated that he had called a canine service and asked for information to be mailed.   He gave the Modoc address because he did not have another address for defendant at the time.

Jeffrey Bess testified that he was no longer living at the Modoc residence on March 21, 1990.   He and Kevin Bess, who was in St. Louis at the time of trial, had both left clothes hanging in the southwest bedroom.   Kevin was in and out of the house after Jeffrey left.   Jeffrey stated that people who did not have a place to stay would “shack up” at the Modoc house.   The back door did not lock so people could enter that way.   He did not recall having seen any cocaine at the Modoc house.

Kevis Bess, defendant's 15–year–oldd cousin, testified that he had been at the Modoc house on April 24, 1990, at about 1:30 p.m.   Kevis stated he had seen his brother, Kevin Bess, packaging cocaine in the kitchen.   He saw Kevin weigh the cocaine, cut it, bag it and put the small baggies in a bigger bag.   Kevis then stated that Kevin took the bag into his room, took the intercom off the wall, put the cocaine in there and then put the intercom back.   Kevis said that Kevin told him he was trying to make a little money.   Kevis left the Modoc house around 2 p.m. and, when he returned, he saw defendant in the back of a police car.   Kevin left for St. Louis about a month after defendant's arrest on April 24, 1990.

DISCUSSION

I.–II.**

III. DID THE TRIAL COURT ERR IN FAILING TO SUA SPONTE GIVE CALJIC NO. 17.01 (THE JURY UNANIMITY INSTRUCTION)?

 Defendant contends that in the instant case, because the cocaine seized on April 24, 1990 (per count II), was found in two different rooms of the Modoc house, the trial court erred by failing to instruct the jury with CALJIC No. 17.01, the unanimity instruction.

 It is a well-settled rule that a defendant is entitled to a verdict in which all 12 jurors concur, beyond a reasonable doubt, on each count charged.  (People v. Jones (1990) 51 Cal.3d 294, 305, 270 Cal.Rptr. 611, 792 P.2d 643.)   CALJIC No. 17.01 reflects this principle, stating that where the prosecution has presented evidence tending to prove more than one act upon which a conviction may be based, the defendant can be found guilty if there is proof beyond a reasonable doubt that the defendant committed any one or more of such acts.   However, CALJIC No. 17.01 further states, in order to return a guilty verdict, all jurors must agree that the defendant committed the same act.

Here, defendant argues that because the cocaine was found in two different units in two different locations in the house the jurors could have attached liability for possession of cocaine base for sale from different factual bases.   Relying on the reasoning used by this court in People v. King (1991) 231 Cal.App.3d 493, 282 Cal.Rptr. 402, defendant argues that constructive possession was based on different acts of possession, reasonably distinguished by a separation in space, i.e., the bedroom and the kitchen, and thus “[c]ertain jurors might have been convinced defendant possessed the cocaine base found in the kitchen while others were convinced he possessed the cocaine base found in the bedroom without all jurors at a minimum believing he possessed any one unit of cocaine base.”

To the contrary, a unanimity instruction was not required because there was only one act of possession.   In the prosecution's evidence and argument, both quantities of the cocaine base found were treated as one unit.   Defendant contends that it is preposterous to characterize evidence that was seized from two locations as one unit.   He states:  “The fact that both quantities of cocaine base were placed in one envelope by the police and that the jury was informed of the combined weight of the cocaine does not undercut the fact that there was evidence of two different quantities of cocaine base which were found in two different locations in the house.”   He argues further that the jury was never informed that it could only convict if it found defendant guilty of possessing for sale all of the cocaine seized from the house.

We will reject defendant's argument.   Neither the defense evidence nor argument of either of the parties focus on any distinction between two acts.   (People v. Deletto (1983) 147 Cal.App.3d 458, 466–469, 195 Cal.Rptr. 233.)   The evidence did not give the jury a basis on which to discriminate between two acts of possession simply because the cocaine was seized from two rooms and two baggies were placed in evidence.   The Deletto court explained the purpose of CALJIC No. 17.01:

“The instruction is designed in part to prevent the jury from amalgamating evidence of multiple offenses, no one of which has been proved beyond a reasonable doubt, in order to conclude beyond a reasonable doubt that a defendant must have done something sufficient to convict on one count.”   (Id. at p. 472, 195 Cal.Rptr. 233.)

Defendant's conviction was clearly based on constructive possession of the cocaine base found in the house.   There were no conflicts in the prosecution's evidence that would allow the jury to discriminate among different acts of possession, nor did the defendant present different defenses.   Neither the facts nor the law gave the jury a reasonable basis upon which to distinguish two different acts of possession.   The focus of the evidence and the respective arguments was upon whether or not the prosecution had shown constructive possession of (all) the contraband based upon his exercise of dominion and control of the premises.   The hazard of “amalgamating evidence” was not present.   There is thus no basis upon which the jury could have reached a verdict that was not unanimous.

IV. WAS THERE SUFFICIENT EVIDENCE THAT DEFENDANT WAS “ARMED” WITH AN ASSAULT RIFLE?

Defendant contends that there was insufficient evidence to support the arming enhancement imposed under section 12022, subdivision (a)(2).³  This court has held that a person is “armed with a firearm” within the meaning of section 12022, when he or she carries such weapon or has it available for use in either offense or defense.”  (People v. Mendival (1992) 2 Cal.App.4th 562, 573, 3 Cal.Rptr.2d 566;  People v. Wandick (1991) 227 Cal.App.3d 918, 927–928, 278 Cal.Rptr. 274;  People v. Reaves (1974) 42 Cal.App.3d 852, 855–856, 117 Cal.Rptr. 163.)

We begin our analysis with People v. Wandick, supra, 227 Cal.App.3d 918, 278 Cal.Rptr. 274, the first of our recent cases to define “armed” in the context of section 12022.   In Wandick, the police executed a search warrant at a residence and found defendant and three other persons in the house.   The officers seized cocaine, cocaine base, paraphernalia, and manufacturing materials from different rooms.   Defendant was in the northwest bedroom of the house.   They searched that bedroom and found a revolver in a holster hanging on the bedpost and a loaded semi-automatic pistol in the drawer of a portable closet.   The revolver was in plain view but defendant was not facing the weapon and he did not grab for it when the police entered.

Defendant was convicted of manufacture of rock cocaine for sale, maintaining a place for the sale of controlled substances, and possessing a firearm with an obliterated identification number.   The jury found that defendant was armed with a firearm (§ 12022, subd. (a)) as to all counts.   The trial court instructed the jury on the arming enhancement pursuant to modified CALJIC No. 17.15.   That instruction stated in relevant part:  “As used in this instruction the term armed with a firearm means knowingly to carry a firearm or have it available as a means of offense or defense.”   The trial court overruled defense counsel's objection to this definition of “armed” and this court held the ruling proper, stating:

“While none of the cases interpret the term ‘armed’ within the meaning of section 12022, subdivision (a), [People v. Garcia (1986) 183 Cal.App.3d 335, (228Cal.Rptr. 87) ] and [People v. Searle (1989) 213 Cal.App.3d 1091, 261 Cal.Rptr. 898] construe essentially identical language in a sentencing rule of court.   Further, the underlying intent of the Legislature 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. Reaves [ (1974) ] 42 Cal.App.3d [852, 856, 117 Cal.Rptr. 163] ) is served by using a definition of ‘armed’ which includes having the weapon available for use.   Thus, under the facts of this case, the court properly gave the modified version of CALJIC No. 17.15.”  (People v. Wandick, supra, 227 Cal.App.3d at p. 928, 278 Cal.Rptr. 274.)

 In the instant case, the arming enhancement was imposed as to count I, possession of cocaine for sale on March 21, 1990.   On that date, the officers searched the Modoc house while defendant was restrained in the patrol car.   The officers found rock cocaine and drug paraphernalia in a closet in what was alleged to be defendant's room and found an assault rifle and other firearms under a bed in the same room.   On these facts, defendant was charged with being armed.   Defendant contends that the assault rifle was not “available for use” because he was in the patrol car and out of the proximity of the weapon.   We agree.

People v. Mendival, supra, 2 Cal.App.4th 562, 3 Cal.Rptr.2d 566 extended the guidance set forth in Wandick.   The issue was whether the position of the particular firearm rendered it available for offensive or defensive use to one or both coparticipants in the crime.   This court stated that the threat presented by a firearm increases in direct proportion to its accessibility.   We explained:

“Thus, punishment increases in terms of the relative danger—from availability to actual use (Pen.Code, §§ 12022.5 or 12022, subd. (b)).  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.”  (Id. at pp. 573–574, 3 Cal.Rptr.2d 566.)

The court in Mendival noted the Webster's definition of “available”:

“ ‘ “Available” ․ adj. 1. that one can avail himself of;  that can be used;  usable.

‘2. that can be got, had or reached;  handy;  accessible․’  (Webster's New World Dict. (2d college ed. 1982) p. 96.)”  (People v. Mendival, supra, 2 Cal.App.4th at p. 575, 3 Cal.Rptr.2d 566.)

 The reasoning and definition provided in Mendival are applicable here.   When defendant was in the patrol car, there was no way defendant could have “reached” the firearms inside the house.   To state it otherwise, he clearly could not “avail himself” of the assault weapon.   The legislative intent behind section 12022, to deter criminals from creating the potential for death or great injury by having firearms accessible at the scene of the crime, is not furthered here.   The potential for the danger contemplated by section 12022 was not created by the presence of unloaded firearms in the Modoc house when defendant was not inside the house.   It defies logic to extend the definition of armed to the scenario before us here.

Moreover, we have found no case in which an arming enhancement has been imposed on a defendant who was not at least in the vicinity of the contraband and the weapon upon which the enhancement is based.   In the cases thus far in which arming has been found, the weapon was within reach of the principal at some point either during the commission or at the scene of the crime.  (See People v. Reaves, supra, 42 Cal.App.3d at p. 857, 117 Cal.Rptr. 163 [defendant displayed a firearm in a menacing manner when, at gunpoint, he forced the victim of a robbery to give up money];  People v. Stiltner (1982) 132 Cal.App.3d 216, 230, 182 Cal.Rptr. 790 [defendant committed the crime of forced oral copulation while carrying a knife in his back pocket];  People v. Martinez (1984) 150 Cal.App.3d 579, 605, 198 Cal.Rptr. 565 [screwdriver within reach and presumably visible to defendant while he committed a rape];  People v. Garcia (1986) 183 Cal.App.3d 335, 350–351, 228 Cal.Rptr. 87 [defendant had firearm available for use at the scene of a burglary and left it behind in flight];  People v. Searle (1989) 213 Cal.App.3d 1091, 1099, 261 Cal.Rptr. 898 [defendant had loaded gun in the car from which he sold drugs];  People v. Wandick, supra, 227 Cal.App.3d 918, 927, 278 Cal.Rptr. 274 [defendant was in the same room in which the guns were found].) ⁴

We cannot extend the definition of armed to include the scenario in the instant case.   The arming enhancement under section 12022, subdivision (a)(2) must be reversed.   Therefore,, we do not reach defendant's last contention that the jury was improperly instructed because the word “knowingly” was omitted from the definition of “armed.”

DISPOSITION

The judgment of conviction as to counts I and II is affirmed.   The enhancement for being armed with an assault rifle is reversed.   The matter is remanded to the trial court for resentencing.

FOOTNOTES

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

FOOTNOTE.   See footnote *, ante.

3.   Section 12022, subdivision (a)(2) states:“Except as provided in subdivision (c), and notwithstanding subdivision (d), if the firearm is an assault weapon, as defined in Section 12276, or a machinegun, as defined in Section 12200, the additional term described in this subdivision shall be three years whether or not the arming is an element of the offense of which he or she was convicted.   The additional term provided in this paragraph shall apply to any person who is a principal in the commission or attempted commission of a felony if one or more of the principals is armed with an assault weapon or machinegun whether or not the person is personally armed with an assault weapon or machinegun.”

4.   The recent case (December) of People v. Balbuena (1992) 11 Cal.App.4th 1136, 14 Cal.Rptr.2d 640 supports this holding.   In Balbuena, the defendant was convicted of possession of narcotics for sale and the jury also found the defendant was personally armed with a firearm in the commission of the crime.   When the officers executed a search warrant of defendant's premises, they found defendant and his wife near a door to the kitchen and across the room they found three suitcases.   One of the suitcases contained narcotics and another one contained a firearm.On appeal, the court determined that the evidence was insufficient to show defendant had the firearm available for offensive or defensive use.   Citing Mendival 's definition of available, the court stated,“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.   As far as the evidence shows, defendant made no attempt to take the weapon out of the suitcase before the police entered although he had as much as a full minute to do so.   Once the police entered, access to the gun was cut off;  defendant would have had to travel toward the officers and either directly past them or over the sofabed in order to reach the suitcase.”  (People v. Balbuena, supra, 11 Cal.App.4th at p. 1139, 14 Cal.Rptr.2d 640.)The court concluded, in light of the legislative intent to deter criminals from creating additional danger by having firearms readily accessible at the scene of the crime, “No additional danger was created by the presence of an unloaded gun in a closed suitcase across the room from defendant.”   (Id. at p. 1140, 14 Cal.Rptr.2d 640.)Here, defendant did not have access to the assault rifle and no additional danger was created by the presence of unloaded arms under a bed when defendant was not on the premises.

MARTIN, Acting Presiding Justice.

ARDAIZ and HARRIS, JJ., concur.