Opinion
NOT TO BE PUBLISHED
San Francisco County Super. Ct. No. 209093
Haerle, Acting P.J.
I. INTRODUCTION
John E. Davis appeals following his conviction by a jury of three counts of possession of heroin, possession while armed with a firearm, and possession of a firearm by an ex-felon. The jury also found several enhancement allegations true. Appellant contends the evidence was insufficient to support his conviction for possession of heroin while armed with a loaded firearm and the arming enhancement alleged as the count 1 possession charge. We will affirm.
II. FACTUAL AND PROCEDURAL BACKGROUND
By a first amended information filed on July 23, 2009, and further orally amended on August 31, 2009, the District Attorney for the City and County of San Francisco charged appellant with possession of a controlled substance (heroin) for sale (Health & Saf. Code, § 11351; count 1), and alleged that during the commission of this offense he possessed 14.25 grams or more of a substance containing heroin (Pen. Code, § 1203.07, subd. (a)(1)), and was personally armed with a firearm (Pen. Code, § 12022, subd. (c)); possession of heroin while armed with a loaded firearm (Health & Saf. Code, § 11370.1, subd. (a); count 2); and possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1).) The information also alleged that appellant had two prior drug-related convictions (Health & Saf. Code, §§ 11370, subds. (a), (c); 11370.2, subd. (a)(3)).
The evidence presented at trial showed that sometime after midnight on May 14, 2009, appellant rented room 301 at the Sunnyside Hotel on Sixth Street in San Francisco.
Nine days later, on the afternoon of May 23, 2009, San Francisco police arrived at appellant’s hotel room with the legal right to search the room, appellant’s person, and any vehicles under his care or control. The officers knocked loudly on the door and announced “police” numerous times. Although the officers could hear footsteps and movement from inside the room, no one answered the door. After 30-40 seconds, the officers forcibly entered the room. Once inside, they saw appellant standing directly behind the door. A young woman, identified as Dominique West, was also in the room.
The room was 10 feet by 10 feet in size, with a hallway, closet, bed, television and refrigerator. The officers conducted a cursory search of appellant and the woman, and found no contraband. The officers then placed appellant in handcuffs and sat him about 8 to 15 feet outside the room and away from the woman, who was detained inside the room.
Officer Fitzpatrick remained in the hallway with appellant while other officers searched the room. The search uncovered a loaded revolver at the bottom of the closet under several bags and clothing, numerous individually wrapped packages of heroin in the pocket of a jacket hanging on the back of a chair, and one small bindle of heroin in the refrigerator, as well as money, a digital scale, and a cell phone. Including the plastic wrapping, the heroin weighed approximately 24.21 grams in total.
Officer Dejesus informed Fitzpatrick that they found heroin and a loaded gun in the room. Fitzpatrick told appellant what the other officers found and read appellant his Miranda rights. Fitzpatrick first testified that he asked appellant if the gun belonged to him. He then testified on cross-examination that he “probably” asked appellant if the gun was his, but he was not sure. After Fitzpatrick read appellant his rights, appellant put his head down and did not say anything initially, but then said he thought he had left the gun at his grandmother’s house in Oakland. He also told Fitzpatrick the heroin in the jacket was his.
Miranda v. Arizona (1966) 384 U.S. 436.
On September 9, 2009, the jury returned verdicts convicting appellant of all three counts and finding true the drug quantity and armed enhancement allegations. In a bifurcated proceeding, appellant admitted the truth of one prior conviction allegation and the court found the other prior conviction allegation true.
The court sentenced appellant to the low term of two years in state prison on the count 1 conviction, plus a consecutive term of four years on the armed enhancement. The court imposed and stayed (Pen. Code, § 654) a three-year sentence on count 2 and a two-year sentence on count 3, struck the prior conviction allegations in the interests of justice (Pen. Code, § 1385), imposed various fines and fees, and awarded presentence custody credits.
On June 28, 2010, the court filed an amended abstract of judgment to correct appellant’s presentence custody credits pursuant to Penal Code section 4019.
On November 9, 2009, appellant filed a timely notice of appeal.
III. DISCUSSION
Appellant contends there was insufficient evidence at trial to show that he “knowingly possessed” the firearm or that it was “available for immediate use.” Thus, he argues, his count 2 conviction for violating Health and Safety Code section 11370.1, subdivision (a), possession of heroin while armed with a loaded firearm, and the true finding pursuant to Penal Code section 12022, subdivision (c), that he was personally armed with a firearm during the commission of the count 1 violation of Health and Safety Code section 11351 must be reversed. We disagree.
A criminal conviction that is not supported by substantial evidence violates the Fourteenth Amendment to the United States Constitution and the due process clause of article I, section 15 of the California Constitution. (People v. Rowland (1992) 4 Cal.4th 238, 269.) In reviewing a challenge to the sufficiency of the evidence, we “review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578.) “If the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness’s credibility for that of the fact finder.” (People v. Koontz (2002) 27 Cal.4th 1041, 1078.)
“Substantial evidence includes circumstantial evidence and the reasonable inferences flowing therefrom.” (People v. Dooley (2010) 189 Cal.App.4th 322, 326.) Where the fact-finder’s findings “ ‘rest to some degree upon circumstantial evidence, we must decide whether the circumstances reasonably justify those findings, “but our opinion that the circumstances also might reasonably be reconciled with a contrary finding” does not render the evidence insubstantial.’ [Citation.]” (People v. Wallace (2008) 44 Cal.4th 1032, 1077.)
Health and Safety Code section 11370.1 requires both proof of possession of a controlled substance and proof the defendant was armed with a loaded, operable firearm while in possession of the controlled substance. (People v. Pena (1999) 74 Cal.App.4th 1078, 1082.) In relevant part, the statute provides that “every person who unlawfully possesses any amount of a substance... containing heroin... while armed with a loaded, operable firearm is guilty of a felony....” (Health & Saf. Code, § 11370.1, subd. (a).)
Penal Code section 12022 is analogous; it provides that a defendant is “personally armed with” a firearm “during the commission” of a felony if he or she knowingly “ ‘has the specified weapon available for use, either offensively or defensively, ’ ” at any point during and in furtherance of the felony. (People v. Singh (2004) 119 Cal.App.4th 905, 912; People v. Bland (1995) 10 Cal.4th 991, 1001.) This definition of “armed with” also applies to violations of Health and Safety Code section 11370.1, subdivision (a). (People v. Singh, supra, 119 Cal.App.4th at p. 912.) Thus, a defendant is considered “armed with” a firearm within the meaning of Health and Safety Code section 11370.1, subdivision (a), if he or she knowingly has a firearm available for use, either offensively or defensively, at any point during the time he or she possesses a controlled substance for sale. (People v. Singh, supra, 119 Cal.App.4th at p. 912; People v. Bland, supra, 10 Cal.4th at p. 1001.)
The court instructed the jury on the count 2 charge that appellant was charged with possessing heroin while armed with a firearm and that it was the prosecution’s burden to prove beyond a reasonable doubt, inter alia, that while possessing the heroin, appellant “had a loaded, operable firearm available for immediate offensive or defensive use, ” and “knew that he had the firearm available for immediate offensive or defensive use.” (CALCRIM No. 2303.) On the count 1 allegation that appellant was personally armed with a firearm, the court instructed the jury that before it could return a “true” finding, it had to find that the prosecution had proven beyond a reasonable doubt that, while possessing heroin for sale, appellant was carrying a firearm or had one available for either offensive or defensive use, and knew that he was carrying a firearm or had it available for use. (CALCRIM No. 3131.)
Appellant contends the evidence does not support a finding that he knowingly possessed the gun during the time he possessed the heroin. According to appellant, his statement that he thought he had left the gun at his grandmother’s house in Oakland “negated the inference that he knew the gun was in the room on May 23 when he possessed the heroin.” Moreover, in contrast to the heroin that was found in the pockets of a jacket hanging on the back of a chair, the gun “was essentially buried and forgotten under layers of clothing and bags in the closet.”
With respect to the element of knowledge, the evidence showed that the room was registered in appellant’s name; he had rented it nine days prior to the search. The room was small, approximately 10 feet by 10 feet. The police had to force entry into the room because appellant and West did not respond to the officers’ knocking and announcing their presence. While the police waited outside, they heard movement in the room. The gun was found in the apparently unlocked closet, and appellant admitted that the gun belonged to him. This evidence, together with the reasonable inference that appellant hid the gun while the police waited outside, constitutes substantial evidence that appellant knew of the presence of the gun in the hotel room.
Appellant’s arguments to the contrary are unavailing. His interpretations of the evidence cast it in the light most favorable to his position, which is contrary to our standard of review. His contention that his statement to Fitzpatrick that he thought he left the gun in Oakland “negated the inference that he knew the gun was in the room” is simply wrong. The jury was entitled to accept the prosecutor’s argument that appellant was lying in an attempt to minimize his culpability once the gun was found. Similarly, we will not draw the inference that the gun was “buried and forgotten” in the closet.
Appellant also argues there was no evidence that the gun was available for immediate offensive or defensive use. He acknowledges that “the gun found in the closet was loaded and kept in the same room where the heroin was found, ” but cites evidence showing that the gun was at the bottom of the closet and that the officer only found it after moving several bags and piles of clothing. Further, citing testimony that the overall search of the room took from five to eight minutes, appellant argues that “the evidence at best showed it would take five minutes to move clothing and bags aside to get to the gun, ” and that this was too much time from which to conclude that the gun was readily accessible. He contrasts the instant case with People v. Pitto (2008) 43 Cal.4th 228, 232-233, in which evidence showed that the defendant could have retrieved the gun and loaded it in 10 to 15 seconds, and People v. Singh, supra, 119 Cal.App.4th at pages 911-912, in which the gun was found behind a pillow on a hotel bed near where the defendant was sitting.
Once again, we reject appellant’s improper attempt to present the evidence in the light most favorable to the defense. The length of time the police searched the room has no bearing on how long it would take someone who knew the gun was there to get to it. The evidence is sufficient to sustain the jury’s finding that the gun was immediately available for offensive or defensive use. Just prior to the search, the gun and drugs were in the small hotel room, and appellant was free to move about in the room. Minutes later, the gun was found in the closet under a bag, a distance of no more than several feet from both the drugs and appellant’s position behind the front door, based on the size of the room. The jury could reasonably infer that appellant had the gun in the closet of his small room, knew it was there, and could get to it quickly. (See People v. Bland, supra, 10 Cal.4th at p. 1000 [jury could infer from proximity of the gun to the drugs in the bedroom that the defendant had been present with both at some point and had “ready access to the assault rifle to aid his commission of the drug offense”].)
IV. DISPOSITION
The judgment is affirmed.
We concur: Lambden, J., Richman, J.