People v. Bland

• Decision Date: 27 July 1995
• Docket Number: No. S032900,S032900
• Citation: 898 P.2d 391,43 Cal.Rptr.2d 77,10 Cal.4th 991
• Parties: , 898 P.2d 391, 95 Cal. Daily Op. Serv. 5912, 95 Daily Journal D.A.R. 10,099 The PEOPLE, Plaintiff and Respondent, v. Marvin BLAND, Defendant and Appellant.
• Court: California Supreme Court

Page 77

43 Cal.Rptr.2d 77

10 Cal.4th 991, 898 P.2d 391, 95 Cal. Daily Op. Serv. 5912,

95 Daily Journal D.A.R. 10,099

The PEOPLE, Plaintiff and Respondent, v. Marvin BLAND, Defendant and Appellant.

No. S032900.

Supreme Court of California,

In Bank.

July 27, 1995.

Rehearing Denied Sept. 21, 1995.

[10 Cal.4th 994] [898 P.2d 393] Teri Sklar, under appointment by the Supreme Court, San Francisco, for defendant and appellant.

Gary M. Mandinach as amicus curiae on behalf of defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Robert R. Anderson, Asst. Atty. Gen., Edgar A. Kerry and Robert P. Whitlock, Deputy Attys. Gen., Fresno, for plaintiff and respondent.

KENNARD, Justice.

Penal Code section 12022 ¹ imposes an additional prison term for anyone "armed with a firearm in the commission" of a felony. The question we resolve here is this: Is a defendant convicted of a possessory drug offense subject to this "arming" enhancement when the defendant possesses both drugs and a gun, and keeps them together, but is not present when the police seize them from the defendant's house? The answer is: yes.

Possessory drug offenses are continuing crimes that extend throughout a defendant's

[898 P.2d 394] assertion of dominion and control over the drugs, even when the drugs are not in the defendant's immediate physical presence. Therefore, when the prosecution has proved a charge of felony drug possession, and the evidence at trial shows that a firearm was found in close proximity to the illegal drugs in a place frequented by the defendant, a jury may reasonably infer: (1) that the defendant knew of the firearm's presence; (2) that its presence together with the drugs was not accidental or coincidental; and (3) that, at some point during the period of illegal drug possession, the defendant had the firearm close at hand and thus available for immediate use to aid in the drug offense. These reasonable inferences, if not refuted by defense evidence, are sufficient to warrant a determination that the defendant was "armed with a firearm in the commission" of a felony within the meaning of section 12022.

I

On March 21, 1990, officers of the Fresno Police Department, who were investigating defendant's possible involvement in the theft of auto parts, searched his house. In the course of that search, the officers retrieved from defendant's bedroom closet 17.95 grams of rock cocaine in a plastic baggie. A nearby duffel bag contained items commonly associated with the sale or manufacture of cocaine base: a gram scale, plastic baggies, and Pyrex glass containers, some bearing white residue. In the same room, under the bed, was a cache of unloaded firearms, including an assault weapon (a Colt AR-15 semiautomatic .223-caliber rifle). A photograph in the room depicted defendant with this assault rifle. At the time of the search, defendant was in a police car outside the house.

A jury convicted defendant of two counts of possession of cocaine base for the purpose of sale, a felony. (Health & Saf.Code, § 11351.5.) With respect to the first of these two counts, the jury found that in the commission of the underlying drug offense defendant was armed with an assault weapon within the meaning of section 12022, subdivision (a)(2), thus subjecting him to an additional three-year prison term. ²

The Court of Appeal affirmed defendant's convictions for the drug offenses, but it struck the three-year sentence enhancement. In the court's view, the semiautomatic rifle the police had recovered from under defendant's bed in the same room where the police found the rock cocaine was not "available" for defendant's use in committing the felony of possession of cocaine base for the purpose of sale. Because defendant was outside the house when the officers retrieved the assault weapon, the court reasoned, "there was no way defendant could have 'reached' " that weapon inside the house. The court went on to state: "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 [defendant's] house when defendant was not inside the house."

Thus, the Court of Appeal's focus was on defendant's proximity to the assault weapon at the time the police found the cocaine and the assault weapon in defendant's bedroom. In narrowing the focus the court erred, as we shall explain.

II

Before discussing the merits of the issue in this case, we briefly review sections 12022 and 12022.5, which impose additional prison terms for felonies in which the defendant was armed with or used a firearm. Both provisions appear in the Dangerous Weapons' Control Law (§ 12000 et seq.). As the Court of Appeal in People v. Reaves (1974) 42 Cal.App.3d 852, 856, 117 Cal.Rptr. 163 observed, the Legislature enacted these provisions "to deter persons from creating a potential for In these two statutes, the Legislature drew a distinction between being armed with a firearm in the commission of a felony and using a firearm in the commission of a felony, and it made firearm use subject to more severe penalties. (Compare § 12022.5 [providing for increased punishment of between three and ten years for firearm use in the commission of a felony] with § 12022 [in general imposing a one-year sentence enhancement for being armed with a firearm in the commission of a felony, but providing for a three-year added penalty in the case of certain firearms and certain felonies].)

[898 P.2d 395] death or injury resulting from the very presence of a firearm at the scene of a crime."

In People v. Chambers (1972) 7 Cal.3d 666, 672, 102 Cal.Rptr. 776, 498 P.2d 1024, we explained the distinction between use and arming this way: "By employing the term 'uses' instead of 'while armed' the Legislature requires something more than merely being armed. (People v. Washington (1971) 17 Cal.App.3d 470, 474 .) One who is armed with a concealed weapon may have the potential to harm or threaten harm to the victim and those who might attempt to interrupt the commission of the crime or effect an arrest. (See People v. Pheaster (1963) 215 Cal.App.2d 754 .) Although the use of a firearm connotes something more than a bare potential for use, there need not be conduct which actually produces harm but only conduct which produces a fear of harm or force by means or display of a firearm in aiding the commission of one of the specified felonies. 'Use' means, among other things, 'to carry out a purpose or action by means of,' to 'make instrumental to an end or process,' and to 'apply to advantage.' (Webster's New Internat. Dict. (3d ed. 1961).)" We then concluded in Chambers (7 Cal.3d at pp. 672-673, 102 Cal.Rptr. 776, 498 P.2d 1024) that the defendant, who had demanded money from the victim at gunpoint, used the gun "at least as an aid" in the commission of the completed crime of robbery.

In contrast, 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. (People v. Reaves, supra, 42 Cal.App.3d 852, 856-857, 117 Cal.Rptr. 163; People v. Superior Court (Pomilia ) (1991) 235 Cal.App.3d 1464, 1472, 1 Cal.Rptr.2d 386; see CALJIC No. 17.15 ["The term 'armed with a firearm' means knowingly to carry a firearm or have it available as a means of offense or defense"].) As a recent Court of Appeal decision observed, "a firearm that is available for use as a weapon creates the very real danger it will be used." (People v. Mendival (1992) 2 Cal.App.4th 562, 573, 3 Cal.Rptr.2d 566.) Therefore, "[i]t is the availability--the ready access--of the weapon that constitutes arming." (Id., at p. 574, 3 Cal.Rptr.2d 566.) Other Courts of Appeal have come to a similar conclusion. Thus, evidence that during the defendant's commission of a rape, a screwdriver left at the foot of the bed by the defendant's crime partner would have been visible to the defendant, was sufficient to show that the defendant was "armed" with a deadly weapon during the rape. (People v. Martinez (1984) 150 Cal.App.3d 579, 605, 198 Cal.Rptr. 565.) Similarly, a burglar who, before entering a house through a garage, left a loaded handgun on a low wall outside the garage, was found to be "armed" in the commission of the burglary. (People v. Garcia (1986) 183 Cal.App.3d 335, 340, 350-351, 228 Cal.Rptr. 87.) So too a drug dealer who sold cocaine from his car was deemed to be "armed" when he kept a loaded .357 Ruger in an unlocked compartment in the back of his car. (People v. Searle (1989) 213 Cal.App.3d 1091, 1099, 261 Cal.Rptr. 898.) In each case the firearm was available to the defendant to use in furtherance of the underlying felony.

"Arming" is the focus of subdivision (a) of section 12022. Subdivision (a)(1) of that statute provides: "[A]ny person who is armed with a firearm in the commission or attempted commission of a felony shall, upon conviction of that felony or attempted felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted, be punished by an additional term of one year, unless the arming is an element of the offense Subdivision (a)(2) of section 12022 (charged in this case) increases to three years the punishment for "arming" when the firearm is "an assault weapon, as defined in Section 12276, or a machinegun, as defined in Section 12200," whether or not arming is an element of the underlying offense of which the defendant has been convicted. Like subdivision (a)(1)'s additional one-year prison term for being armed with any firearm, subdivision (a)(2)'s three-year enhancement for being armed with an assault...