People v. Pitto

• Decision Date: 07 April 2008
• Docket Number: No. S139609.,S139609.
• Citation: 74 Cal.Rptr.3d 590,180 P.3d 338,43 Cal.4th 228
• Court: California Supreme Court
• Parties: The PEOPLE, Plaintiff and Respondent, v. Michael Christopher PITTO, Defendant and Appellant.

74 Cal.Rptr.3d 590

43 Cal.4th 228

180 P.3d 338

The PEOPLE, Plaintiff and Respondent, v. Michael Christopher PITTO, Defendant and Appellant.

No. S139609.

Supreme Court of California.

April 7, 2008.

Dennis P. Riordan, under appointment by the Supreme Court; Riordan & Horgan and Donald M. Horgan, San Francisco, for Defendant and Appellant.

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson, Chief Assistant Attorney General, Gerald A. Engler, Assistant Attorney General, Catherine A. Rivlin, Christina Vom Saal and Gregg Zywicke, Deputy Attorneys General, for Plaintiff and Respondent.

BAXTER, J.

Penal Code section 12022¹ provides various sentence enhancements for those who are "armed" (id., subd. (a)), or in some cases, "personally armed" (id., subd. (c)), with a firearm "in the commission of specified offenses. In People v. Bland (1995) 10 Cal.4th 991, 43 Cal.Rptr .2d 77, 898 P.2d 391 (Bland), which involved the arming enhancement for assault weapons (§ 12022, subd. (a)(2)), we set forth the circumstances in which the trier of fact could infer that the defendant was "armed" with a gun "in the commission of a drug crime, and the finding could thus be upheld as supported by sufficient evidence on appeal. Such circumstances exist where, during a drug offense, (1) the defendant knew of a gun's presence and location nearby, (2) the gun's proximity to the drugs was "not accidental or coincidental," and (3) the gun was available for his offensive or defensive use in committing the underlying offense. (Bland, supra, 10 Cal.4th at pp. 995, 1003, 43 Cal.Rptr.2d 77, 898 P.2d 391.)

Here, defendant Michael Christopher Pitto, a convicted drug offender on bail at the time, was within arm's reach of both a gun and a saleable amount of methamphetamine in his vehicle when he encountered police. He knew ,the gun's location because, as he admitted at trial, he had purposefully placed it there. For the same reason, the proximity of the gun to the drugs was not merely "accidental or coincidental." (Bland, supra, 10 Cal.4th at pp. 995, 1003, 43 Cal.Rptr.2d 77, 898 P.2d 391.) There was no dispute that, because of its location, the firearm was available for his offensive or defensive use with respect to the drug transportation and possession crimes of which he was convicted. He was therefore "armed" with the gun "in the commission" of these offenses. (§ 12022.)

Defendant nonetheless claims that, in order to defeat the arming allegation as construed in Bland, supra, 10 Cal.4th 991, 43 Cal.Rptr.2d 77, 898 P.2d 391, he was entitled to a sua sponte instruction highlighting defense evidence that he placed the gun in its position near the drugs for a reason unrelated to the drug crimes. He is mistaken. The particular reason why he purposefully placed a gun in close proximity to drugs, where it was available for his use in perpetrating his drug offenses, is irrelevant. The defendant's deliberate placement of the weapon negates any claim that the proximity of the gun and the drugs was the result of mere accident or coincidence.

This conclusion is not inconsistent with Bland. On the contrary, it fulfills the public safety purpose of the arming enhancement as stated in Bland. Regardless of defendant's motive at the time he placed the firearm, its consequent availability during the drug offenses raised the risk that he would resort to its use to facilitate the crimes. That is the very danger the arming statutes seek to deter.

Accordingly, defendant was not entitled to the sua sponte instruction he now asserts. We will reverse the Court of Appeal insofar as it found the opposite was true.

FACTS

The record discloses that around midnight on May 23, 2003, officers from the Lake County Narcotics Task Force saw defendant drive his Dodge minivan into the Twin Pines Casino parking lot. The officers knew that methamphetamine sales commonly occurred there. They also knew that defendant had sustained prior drug convictions and was subject to a probation search condition. When defendant exited the van and began walking his dog, the officers detained him. He showed signs of being under the influence of a stimulant. His van was searched.

In an open floorboard area in the middle of the van, between the back of the driver's seat and the front of a* rear, bench seat, officers found a black garbage bag. The bag contained clothing and a cigarette package. Protruding from the cigarette package was a baggie holding a crystalline substance. The substance was later determined to be 12.09 grams of methamphetamine, or a little less than one-half of an ounce. Through expert testimony, the prosecution established that this quantity represented 120 individual doses of the drug with a retail value of at least $2,000.

Behind the driver's seat, one foot from the bag containing the drugs, officers found a cardboard box. The box contained a .357-caliber Ruger revolver in a zippered pouch. The gun was unloaded, but six rounds of ammunition were tucked into a pocket of the pouch.

The officer who discovered the black garbage bag and the cardboard box testified that the gun was closer to the driver's seat than the drugs, and that the gun was "within arm's reach" of defendant. In opining that defendant likely possessed the drugs for sale, the officer cited such factors as the amount of drugs in the van and the presence of the gun nearby. According to the witness, "persons who possess firearms while in the possession of controlled substances typically possess that firearm to protect the product itself and/or to protect proceeds, which would be the result of selling the product." He opined that it would take 10 to 15 seconds to unzipper the pouch, extract the gun and the bullets, and load the chamber. Another expert confirmed the likely drug-related purpose of the gun in the van.

Other prosecution evidence, such as defendant's statements to his probation officer, showed that he kept title to his speedboat and his Harley Davidson motorcycle in friends' names so they could not be seized by the state. An expert testified that sawy drug dealers followed this practice to reduce the risk of asset forfeiture in the event they were accused of methamphetamine trafficking.

Defendant testified on his own behalf that he was arrested near the start of the Memorial Day weekend while driving to Clear Lake, where one of his parents' homes was located. A painter and handyman, he had finished work few hours earlier at his sister and brother-in-law's home in the San Francisco Bay Area. Defendant admitted that he bought almost one-half ounce of methamphetamine before leaving the Bay Area. He put most of it in his minivan, but left one gram at his sister's house "to make sure [he would] have some when [he] got back." He used a gram of the drug daily, and had been dependent on it for several years.

Defendant testified that he bought the Ruger pistol from a friend four months earlier, while on probation for prior convictions. The night of his arrest, he took the gun from a work vehicle parked near his sister's house, and placed it in the back of the minivan near the drugs before driving to the lake. He denied using the gun in any drug offense. He also denied planning to sell drugs in Lake County (though he acknowledged having done so in the past). Defendant intended to consume the drugs while "party[ing]" with friends at the lake.

Defendant, along with his mother and brother, testified that he disliked guns, had been depressed in the year before the crimes, and had expressed suicidal thoughts. Defendant claimed he bought the gun to kill himself. He admitted, however, that he had no plan to commit suicide over the holiday weekend or at any other specific time.² A defense investigator opined that the drugs and gun were not possessed for commercial purposes because no measuring or packaging items were found in the van, and because the gun was unloaded.

Outside the presence of the jury, the trial court indicated that it planned to give CALJIC No. 17.15, the standard instruction concerning the section 12022 arming enhancement. Defense counsel did not object. His sole request was that the court state that the firearm must be "readily" available for offensive or defensive use in the charged crime—a change the court declined to make.³

During deliberations, the jury sent the court a note seeking the definition of "armed" in section 12022. When the court reread key language from CALJIC No. 17.15, one juror asked about the meaning of "availability" in the instruction. The court replied that such factual questions were solely for the jury to decide.

Defendant was convicted of transporting methamphetamine (Health & Saf.Code, § 11379, subd. (a)), a felony. The jury found true a related allegation that defendant was personally armed with a firearm under section 12022, subdivision (c) (section 12022(c)). As to the charge of possessing methamphetamine for sale (Health & Saf.Code, § 11378), the jury convicted defendant of the lesser included felony offense of possessing methamphetamine. (Id., § 11377, subd. (a).) An arming allegation was sustained as to that count as well. (§ 12022, subd. (a)(1) (section 12022(a)(1).)) The jury found against defendant on all other charges and allegations set forth in the information.⁴

At sentencing, the court consolidated this case with three other proceedings in which defendant was convicted of possessing and transporting controlled substances, receiving stolen property, and evading a peace officer. He received a total combined sentence of about 18 years in prison. It included a four-year arming enhancement under section 12022(c) for transporting methamphetamine in this case.⁵ No additional term was imposed under section 12022(a)(1) for the present finding that defendant was armed while possessing methamphetamine.⁶

The Court of Appeal agreed with defendant that CALJIC No. 17.15 failed to explain the necessary "nexus or link" between firearm...