Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Kern County. Super Ct. No. BF124876A David R. Lampe, Judge.
Deirdre L. O’Connor, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Marcia A. Fay, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
DAWSON, J.
Following a jury trial, Cornelio Servin Martinez (appellant) was convicted of possession of a controlled substance for sale (Health & Saf. Code, § 11378). The jury found true the allegation that appellant was personally armed with a firearm in the commission of the offense (Pen. Code, § 12022, subd. (c)). The trial court sentenced appellant to a four-year and four-month prison term.
All further statutory references are to the Penal Code unless otherwise stated.
As noted by respondent, the abstract of judgment incorrectly lists the total time imposed as four years and should be corrected to accurately reflect appellant’s total sentence of four years four months. Clerical errors may be corrected by this court on appeal. (People v. Mitchell (2001) 26 Cal.4th 181, 185.) Accordingly, we order the abstract of judgment corrected.
On appeal, appellant contends that: (1) he was denied his Sixth Amendment right to confront witnesses against him when the trial court improperly admitted the lab report of appellant’s drug test results; (2) the trial court erred when it allowed the prosecutor to introduce rebuttal evidence; (3) defense counsel was ineffective for failing to request certain instructions; and (4) there was insufficient evidence to support the firearm enhancement. We disagree and affirm.
FACTS
On September 14, 2008, pursuant to a search warrant, sheriff’s deputies conducted a search of appellant’s home. The officers entered the residence and made contact with appellant’s six months pregnant wife and three of their children, appellant’s sister-in-law, and two other juveniles who lived in the house and escorted them out to the backyard. Appellant was not present at the time.
Officers found a brown wallet containing $1,400 in cash under the mattress in an upstairs bedroom of the house. The wallet also contained a driver’s license and credit cards belonging to appellant. Officers discovered torn white plastic material. A digital scale with white residue was found on top of the refrigerator in the kitchen. An orange plastic pill bottle containing 43.88 grams of methamphetamine in a clear plastic baggie was found buried in the ground in a front yard flower bed. A nine-millimeter handgun and magazine were found in a box under “a bunch of stuff” in a closet near the front entrance of the house. The handgun was not loaded, and no ammunition was found in the house.
Deputy Robert Winn, who assisted in the execution of the search warrant, opined that the torn white plastic material found during the search was commonly used for packaging illegal narcotics, including methamphetamine. According to Winn, the narcotics would be placed in the corner of the plastic bag or piece of plastic and the top then twisted or tied and burned.
Appellant arrived at the residence two hours into the search. Deputy Peter Santiago, with the help of an interpreter, read appellant his Miranda rights, which he waived. The officers advised appellant they had located illegal drugs on the property, but they did not specify the locations, quantity, or manner of drug packaging. Appellant denied knowledge of the drugs and stated the drugs could belong to anyone in the house.
Miranda v. Arizona (1966) 384 U.S. 436.
Deputy Santiago told appellant that, if he did not know who the drugs belonged to, all the adults at the residence would be taken into custody and the children taken to child protective services. Appellant then admitted the drugs belonged to him. Santiago told appellant he wanted him to tell the truth and not to falsely claim ownership of the drugs to prevent his family from going to jail. Appellant then again denied that the drugs belonged to him.
After Deputy Santiago interviewed appellant’s wife, appellant asked to again speak with Santiago. At that point, appellant admitted that the methamphetamine belonged to him for both personal use and for sale. Appellant explained that he normally sold the methamphetamine from the alley of his residence and packaged it by taking a pinch and placing it into a plastic baggie. Appellant told the officers the methamphetamine, consisting of “four to five eight balls, ” was located in the front yard in the flower beds. Appellant said he used the money from the drug sales to buy more methamphetamine, and the money found at the residence was given to his daughter to pay the bills. Appellant admitted using methamphetamine a day or two earlier.
Officer Santiago testified that an eight ball is approximately 3.5 grams of methamphetamine.
Deputy Santiago, an expert in recognizing possession of methamphetamine for sale, opined that a person in possession of torn plastic material, $4,200 in cash, a digital scale, a gun and 43.88 grams of methamphetamine, possessed the drugs for sale.
There is some discrepancy in the record on the amount found in the wallet. While an officer testified that the wallet contained about $1,400 in cash, both appellant’s wife and daughter mentioned the amount as “4, 000 something.”
Defense
Appellant’s 15-year-old son testified that when the officers took the family outside, his mother, who was pregnant at the time, was crying. At some point, the officers handcuffed his mother and took her away for about 20 minutes. When she returned, she was crying even more. The son maintained that he had never seen drugs in the house and had never seen his father sell drugs. He admitted that he was unaware that 43 grams of methamphetamine had been found at the house.
Appellant’s wife, who was six months pregnant at the time of the search, explained that appellant worked as a supervisor in the fields and his workers often came to the house. Mrs. Martinez testified that the police told her they were going to take her children from her. She did not know what methamphetamine was and had never seen her husband with drugs or sell drugs out of the house. She testified that appellant did take medication for diabetes. She claimed never to have seen the scale found in the kitchen. According to Mrs. Martinez, the money found at the house was for the rent.
Appellant’s 13-year-old daughter claimed that appellant had given her his wallet with the money to keep under her mattress because they had previously been robbed. She testified that many people came to the house looking for work. She stated that she did not pay the bills for the house.
Appellant’s cousin, Noe Martinez, acknowledged that he owned the gun found at appellant’s house. According to Martinez, he asked appellant for a $200 loan in exchange for the gun, which appellant always liked. According to Martinez, the gun worked.
Others-a woman who also lived in the house with appellant and his family, a coworker, several employees, appellant’s brother, and several long-time acquaintances of appellant-testified that appellant did not take or sell drugs. Two of those witnesses admitted that, if appellant had sold them drugs, they would not admit it on the stand. One of the witnesses, Guadalupe Gonzalez, who had known appellant for eight years, testified that appellant was a recovering alcoholic and was very active in helping other alcoholics become sober. Agustin Lopez, who had known appellant for four years, testified that appellant helped him give up drinking and drugs.
Rebuttal
Deputy Santiago was recalled as a witness and testified that appellant, who had dilated pupils and an elevated heart rate at the time of his arrest, was likely under the influence of a central nervous stimulant at the time he was questioned. Santiago suspected methamphetamine.
Criminalist Ronald Bailey, a supervisor at the Kern County Crime Lab, testified that a urine sample obtained from appellant tested positive for “the family of amphetamines.” He also opined that someone with pupils with rebound dilation, hippus, elevated pulse, rigid muscle tone, and glazed eyes was consistent with someone being under the influence of methamphetamine. Deputy Jason Colbert, who also participated in the search, found a baggy of marijuana in the closet of one of the upstairs bedrooms.
Surrebuttal
Appellant testified in his own defense that he was fishing at the river when an officer called him and asked him to return home. According to appellant, he was a field foreman and earned as much as $1,100 a week. Appellant claimed he weighed 308 pounds, was diabetic, had high blood pressure and sleep problems, and took a lot of medications prescribed by a physician. Appellant maintained that the officers told him they would take his children away if he did not claim the drugs as his. He eventually said they were his because the officers continued to threaten to take his family away. Appellant denied selling methamphetamine, claimed not to know what methamphetamine was, and did not know how the drugs ended up in his yard. He denied telling police that he gave his daughter money to pay the bills.
On cross-examination, appellant admitted that he did not have a fishing license and did not even have a fishing pole when he had gone fishing before the search. He claimed to use the scale to measure the salt he put on his food. He admitted that, on the day of the search, he had the nine-millimeter handgun he had acquired from his cousin.
DISCUSSION
1. The Sixth Amendment Claim
Appellant contends his Sixth Amendment right to confront witnesses against him was violated at trial. The facts relevant to this contention are as follows.
After the defense presented its evidence, the prosecutor requested that he be allowed to put on rebuttal witnesses who would state that appellant appeared under the influence of drugs at the time of his arrest and a criminalist who would testify to the presence of amphetamine or methamphetamine in appellant’s system. The prosecutor stated that Roberto Cruz, who analyzed appellant’s urine sample, would not be present, but that Cruz’s supervisor, who was familiar with Cruz’s work, would testify regarding the drug test analysis. The prosecutor also stated that Deputy Santiago’s observations of appellant were consistent with the screening results.
Defense counsel argued that the lab results showing traces of amphetamine in appellant’s urine were not relevant to impeaching appellant’s reputation for being a man who did not involve himself with drugs. Defense counsel argued that there were many legal ways amphetamines could be in appellant’s system, and that the probative value of the evidence was minimal and time consuming, pursuant to Evidence Code section 352.
After questioning the criminalist outside the presence of the jury, the trial court ruled that, because defense witnesses had testified that appellant was not the type of person to associate with drugs, the proffered evidence was permissible rebuttal evidence.
In rebuttal, the prosecutor then called Deputy Santiago, who testified as an expert on whether someone is under the influence of drugs. He opined that appellant was under the influence of a central nervous stimulant at the time of the search. Santiago suspected methamphetamine because appellant’s pupil’s had rebound dilation and his heart rate was elevated. Santiago had appellant provide a urine sample. Santiago acknowledged that he did not know what medication, if any, appellant was taking.
The prosecutor then called Criminalist Ronald Bailey, a supervisor at the Kern County Crime Lab. He had a bachelor’s degree in chemistry, had been a professional scientist for 30 years, and worked for the Kern County Crime Lab for eight and a half years. He had extensive training in analyzing drugs, including methamphetamine, and the effects of drugs on the body. Bailey testified that he had analyzed thousands of urine and blood samples and was familiar with the protocol followed by crime lab personnel when analyzing a sample.
According to Bailey, Roberto Cruz completed a drug-screening urine analysis on appellant on September 15, 2008. Cruz had worked in the lab for six months in the “DNA section” and was then transferred to the toxicology section, where he had been working for six to eight months. Bailey supervised Cruz, trained him to analyze samples, and had reviewed his work in this case. Bailey testified that there was nothing in this case to indicate anything out of the ordinary in the procedure or results of the lab test. According to Bailey, the documentation showing the test results was completed at or near the time of the analysis. Bailey was familiar with the results of appellant’s test, and he opined, based on the screening results, appellant’s urine sample tested positive for the “family of amphetamines.” Bailey opined that there was a 10 to 20 percent likelihood that the amphetamine value in this screening test result was due to something other than methamphetamine, such as pseudoephedrine, ephedrine, Phentermine, or Adderall. Bailey also opined that a person with pupils with rebound dilation, hippus, an elevated pulse, rigid muscle tone, and glazed eyes was consistent with someone being under the influence of methamphetamine.
The prosecutor moved to admit the lab report as an official record. The trial court admitted the document over defense counsel’s objection on grounds that it was “late discovery.”
In closing argument, the prosecutor mentioned the drug test several times. At one point, the prosecutor argued that the defense “put[] up a lot of people to say that [appellant] has nothing to do with drugs, when he, in fact, himself was high the very day that he was arrested.” He reiterated this point later in argument when he again said that the defense had a large number of people testify that appellant did not use drugs, but that there was a positive urine sample for methamphetamine. Later still, the prosecutor, in arguing on the element of whether appellant knew the substance’s character as a controlled substance, stated that appellant “was high. He had positive methamphetamines in his system, and he was showing … it.”
In defense counsel’s closing, he argued that the urine sample was positive not for methamphetamine, but amphetamine, a substance found in medication for weight control, which appellant was taking. In closing rebuttal, the prosecutor then countered that the defense “ignored the fact that amphetamines are what’s called a metabolite of methamphetamines, and that’s what was testified to.”
Appellant now contends, citing Crawford v. Washington (2004) 541 U.S. 36 (Crawford) and Melendez-Diaz v. Massachusetts (2009) 557 U.S. ___ [129 S.Ct. 2527] (Melendez-Diaz), that his right to confront Cruz was violated when the trial court admitted the lab report showing the results of appellant’s drug screening test and Bailey’s testimony related to that report. He further asserts this issue is not waived for failure to object to the evidence on constitutional grounds. Respondent argues that appellant forfeited his claim on appeal and that Melendez-Diaz is distinguishable on the facts of the case.
Melendez-Diaz was decided shortly after appellant was convicted. In that case, the United States Supreme Court held that documentary evidence stating that certain contraband tested positive for cocaine constituted “testimonial” evidence and was inadmissible in the absence of the trial testimony of the analysts who performed such tests, pursuant to the confrontation clause of the Sixth Amendment. (Melendez-Diaz, supra, 557 U.S. at p. __ [129 S.Ct. at p. 2532].) Melendez-Diaz held the admission of the certificates, in the absence of the trial testimony of the analysts who tested the contraband, violated a defendant’s Sixth Amendment rights because there was “little doubt” the certificates fell “within the ‘core class of testimonial statements’” subject to the Sixth Amendment restrictions described in Crawford. (Melendez-Diaz, supra, at p. ___ [129 S.Ct. at p. 2532].)
We need not and thus will not decide between these competing assertions because, even were we to assume the alleged error occurred, we can properly decide appellant’s contention on the ground that any error was not prejudicial.
“Confrontation clause violations are subject to federal harmless-error analysis under Chapman v. California (1967) 386 U.S. 18, 24. (Delaware v. Van Arsdall (1986) 475 U.S. 673, 681.) ‘[A]n otherwise valid conviction should not be set aside if the reviewing court may confidently say, on the whole record, that the constitutional error was harmless beyond a reasonable doubt.’ [Citation.]” (People v. Geier (2007) 41 Cal.4th 555, 608.) “The harmless error inquiry asks: ‘Is it clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error?’ [Citation.]” (Ibid.) Here the answer is yes.
The prosecution’s case against appellant was overwhelming. Pursuant to a search, police found in the residence a large sum of cash in appellant’s wallet, torn white plastic material, and a digital scale with white residue. While appellant claimed he used the scale, which was found on top of the refrigerator, to measure the amount of salt in his diet, his wife denied ever having seen the scale. The 43.88 grams of methamphetamine in a clear plastic baggie inside a pill bottle was found buried in the flower bed in the front of the house. Without having been told where drugs had been found, appellant told the officers the drugs were located in the front yard in the flower bed. Appellant told the officers that the methamphetamine belonged to him and was for both personal use and for sales. He told them he normally sold the drugs from the alley of the residence, and that he packaged the drugs by taking a pinch and placing into a plastic baggie. Appellant also admitted he had used the drug within the last day or two.
At oral argument, counsel for appellant suggested that appellant knew where the drugs were buried because he could see that the flower bed had been disturbed when he gave his confession. The record, however, includes appellant’s testimony that he saw no digging, evidence of digging, or digging implements until days after his arrest.
We conclude that any constitutional error in admitting the drug test results was, under the circumstances of this case, harmless beyond a reasonable doubt.
2. Rebuttal Evidence
Relying on Evidence Code sections 1101 and 1102, appellant contends the trial court erroneously admitted the drug test results and Deputy Santiago’s testimony that appellant was under the influence at the time of his arrest. Specifically, appellant contends the prosecutor “should have been confined to the answer[s] given by the character witnesses and prevented from presenting extrinsic evidence.” (Italics omitted.) We find no prejudicial error.
Evidence Code section 1101, subdivision (a) provides:
“Except as provided in this section and in Sections 1102, 1103, 1108, and 1109, evidence of a person’s character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion.”
Evidence Code section 1102 provides:
“In a criminal action, evidence of the defendant’s character or a trait of his character in the form of an opinion or evidence of his reputation is not made inadmissible by Section 1101 if such evidence is: [¶] (a) Offered by the defendant to prove his conduct in conformity with such character or trait of character. [¶] (b) Offered by the prosecutor to rebut evidence adduced by the defendant under subdivision (a).”
In People v. Felix (1999) 70 Cal.App.4th 426, the defendant was convicted of possession of cocaine base after the drug was found on his person. The defense theory inferred that the officers planted the cocaine on the defendant, and counsel called several witnesses to testify that the defendant used heroin but never cocaine. On rebuttal, the prosecutor introduced evidence that the defendant previously had pleaded guilty to possessing heroin and cocaine for sale. (Id. at pp. 429, 433.) The court in Felix determined that the trial court erred by allowing the prosecution to introduce independent proof of the defendant’s prior conviction under Evidence Code sections 1101 and 1102. (Felix, at pp. 431-432.) It subsequently found harmless error. (Id. at p. 432.)
Appellant contends the trial court here erred similarly by allowing the prosecution to introduce evidence of his positive drug test and Officer Santiago’s opinion that appellant was under the influence at the time of his arrest. As noted previously, Evidence Code section 1101 generally excludes evidence of character or a trait of character to prove a person’s conduct on a specified occasion. (Evid. Code, § 1101, subd. (a).) Evidence Code section 1102 creates an exception to this rule in criminal cases for evidence of the defendant’s character or a trait of his character “in the form of an opinion or … reputation, ” but not specified instances of conduct. (See People v. Wagner (1975) 13 Cal.3d 612, 618-619.) Appellant’s drug test results and evidence that he was under the influence at the time of his arrest constituted evidence of specific acts.
Respondent contends the rebuttal evidence was relevant and admissible impeachment evidence under Evidence Code section 780, subdivision (i), which provides that “[e]xcept as otherwise provided by statute, the court or jury may consider in determining the credibility of a witness any matter that has any tendency in reason to prove or disprove the truthfulness of his testimony at the hearing, including but not limited to any of the following: [¶] … [¶] (i) The existence or nonexistence of any fact testified to by him.” Respondent cites several cases to support this proposition. (See, e.g., Andrews v. City and County of San Francisco (1988) 205 Cal.App.3d 938, 946 [“a witness who makes a sweeping statement on direct or cross-examination may open the door to use of otherwise inadmissible evidence of prior misconduct for the purpose of contradicting such testimony”]; People v. Lang (1989) 49 Cal.3d 991, 1017 [“[e]vidence tending to contradict any part of a witness’s testimony is relevant for purposes of impeachment”].)
In Andrews v. City and County of San Francisco, an individual sued the city and county and several police officers for wrongful arrest. The individual’s account of his arrest and the officers’ account were vastly different. (Andrews v. City and County of San Francisco, supra, 205 Cal.App.3d at pp. 942-943.) When asked during direct examination about his feelings towards the plaintiff during booking, the officer stated he had booked many prisoners and had “‘developed patience working with these people that have been arrested.…’” (Id. at pp. 943-944, italics omitted.) On cross-examination, he stated he was patient “‘[a]s a general rule.’” (Id. at p. 944.) The appellate court reversed the trial court’s decision to exclude evidence of other instances of misconduct on the officer’s part, finding it both relevant under Evidence Code section 1101, subdivision (a), on the issue of intent, and section 780, subdivision (i), stating, “[A]lthough ‘“evidence of a specific instance of a witness’s conduct is inadmissible under Evidence Code section 787 to impeach the witness as proof of a trait of his character [it] may become admissible to impeach the witness pursuant to Evidence Code section 780, subdivision (i), by proving false some portion of his testimony.”’ [Citations.]” (Andrews v. City and County of San Francisco, supra, at p. 946.)
Appellant contends the cases cited by respondent have no bearing on the case here because they involve the introduction of a witness’s prior misconduct or an incriminating fact after the witness opened the door to a trait or fact which could be disproved, but do not involve the use of a defendant’s prior bad acts to impeach a defense character witness.
Again, we need not resolve the question presented. Even assuming error, there is no reasonable probability of a different result had the trial court excluded the evidence of the drug test, or the testimony of Deputy Santiago that appellant was under the influence, or both. (People v. Watson (1956) 46 Cal.2d 818, 836; People v. Felix, supra, 70 Cal.App.4th at p. 432.) Appellant was not charged with being under the influence. Instead he was charged with possession of methamphetamine for sale, for which there was overwhelming evidence. Methamphetamine, a scale, a large amount of cash, and plastic material were all found at appellant’s residence. In addition, appellant admitted that he sold methamphetamine from the house, he told the officers where the drugs would be located, and he explained how he packaged the drugs.
In light of this, we conclude beyond a reasonable doubt that the jury would not have reached a different verdict had the trial court excluded evidence of appellant’s drug test and the officer’s characterization of him as being under the influence of methamphetamine at the time of his arrest.
3. Ineffective Assistance of Counsel
At trial, the defense theory was that appellant did not knowingly possess the drugs found at his home and that he did not sell drugs. He admitted to the crime because the police threatened to arrest his pregnant wife and have his five young children taken away. In his defense, appellant introduced evidence of his character for “helping others to overcome their addiction to alcohol or drugs and for law-abidingness.” Also, the defense presented evidence regarding the circumstances surrounding appellant’s statements to police. Given this defense, appellant argues his defense counsel should have requested the trial court instruct the jury with CALCRIM No. 350 on character evidence and with a pinpoint instruction on “false” confessions and, by failing to do so, his defense counsel provided ineffective assistance. We conclude there is no merit to his contention.
“… In order to establish a claim of ineffective assistance of counsel, defendant bears the burden of demonstrating, first, that counsel’s performance was deficient because it ‘fell below an objective standard of reasonableness [¶] … under prevailing professional norms.’ [Citations.] Unless a defendant establishes the contrary, we shall presume that ‘counsel’s performance fell within the wide range of professional competence and that counsel’s actions and inactions can be explained as a matter of sound trial strategy.’ [Citation.] If the record ‘sheds no light on why counsel acted or failed to act in the manner challenged, ’ an appellate claim of ineffective assistance of counsel must be rejected ‘unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation.’ [Citations.] If a defendant meets the burden of establishing that counsel’s performance was deficient, he or she also must show that counsel’s deficiencies resulted in prejudice, that is, a ‘reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’” (People v. Ledesma (2006) 39 Cal.4th 641, 745-746; see People v. Salcido (2008) 44 Cal.4th 93, 170.)
A. CALCRIM No. 350
Appellant argues that counsel was ineffective for failing to request CALCRIM No. 350. That instruction provides:
“You have heard character testimony that the defendant (is a <insert character trait> person/[or] has a good reputation for <insert character trait> in the community where (he/she) lives or works). [¶] You may take that testimony into consideration along with all the other evidence in deciding whether the People have proved that the defendant is guilty beyond a reasonable doubt. [¶] Evidence of the defendant’s character for <insert character trait> can by itself create a reasonable doubt. However, evidence of the defendant’s good character may be countered by evidence of (his/her) bad character for the same trait. You must decide the meaning and importance of the character evidence. [¶] [If the defendant’s character for certain traits has not been discussed among those who know (him/her), you may assume that (his/her) character for those traits is good.]”
Evidence Code section 1102 permits “evidence of the defendant’s character or a trait of his character in the form of an opinion or evidence of his reputation” if the evidence is offered by the defendant “to prove his conduct in conformity with such character or trait of character.” (Id., at subd. (a).) The trier of fact may consider evidence of the defendant’s good character in determining guilt beyond a reasonable doubt. (People v. Jones (1954) 42 Cal.2d 219, 224.)
Here, evidence of appellant’s good character was admitted, and it would have been proper for the trial court to give CALCRIM No. 350, if requested by the defense. (See, e.g., People v. Bell (1875) 49 Cal. 485, 489-490 [jury should be instructed that evidence of good reputation should be weighed as any other fact established and may be sufficient to create reasonable doubt of guilt].) The record in this case sheds no light on why defense counsel did not request this instruction and, therefore, we must presume defense counsel made a constitutionally reasonable tactical choice not to request it. We can fathom at least one reason why defense counsel might not have wanted the trial court to give the instruction. Given the prosecution’s rebuttal evidence that appellant was under the influence of methamphetamine at the time of his arrest, defense counsel could have decided that an instruction stressing the use of character evidence was tactically ill-advised. Because deficient performance is not shown, there is no need to address prejudice.
B. Pinpoint Instruction
In a related argument, appellant contends CALCRIM No. 358 as given was insufficient to inform the jury that it was not permitted to consider an involuntary or false statement as evidence of guilt. The instruction that was given, CALCRIM No. 358, provided in part:
“You have heard evidence that [appellant] made oral or written statements before trial. You must decide whether or not [appellant] made any such statements, in whole or in part. If you decide that [appellant] made such statements, consider the statements, along with all the other evidence, in reaching your verdict. It is up to you to decide how much importance to give such statements. [¶] You must consider with caution evidence of [appellant]’s oral statement unless it was written or otherwise recorded.”
Appellant argues that defense counsel should have requested a pinpoint instruction “to inform the jurors of the legal requirement of voluntariness, ” along the lines of those requested in People v. Fox (1944) 25 Cal.2d 330, 340.) In Fox, our Supreme Court found error where the trial court declined to give a number of instructions requested by the defense “stating, in varying form, that it was the duty of the jurors, if they believed he made any incriminating statements, to consider the circumstances under which he talked with the police officers and to disregard any and every admission which was not his free and voluntary act.” (Id. at p. 339.)
But we note that Fox was decided before Crane v. Kentucky (1986) 476 U.S. 683, which set uniform, constitutionally based ground rules for the distinct roles played by the jury and the trial court in considering the voluntariness of a confession. In Crane, the United States Supreme Court drew a clear distinction between (1) the legal issue of voluntariness, which determines the admissibility of a confession and is decided by the court, and (2) the separate factual question of the confession’s reliability, which is a question for the jury. (Id. at p. 688.) Crane ruled that because “evidence about the manner in which a confession was obtained is often highly relevant to its reliability and credibility, ” when the trial court excludes evidence that might have caused the jury to question a confession’s reliability, a defendant is deprived of a “‘meaningful opportunity to present a complete defense.’” (Id. at pp. 691, 690.)
Here, the trial court gave appellant a full opportunity to present evidence regarding the voluntariness of his statements. In closing, defense counsel argued the issue extensively. CALCRIM No. 358, which requires jurors to view the evidence of a defendant’s out-of-court admissions with caution, was given. (People v. Wilson (2008) 43 Cal.4th 1, 19; People v. Ramos (2008) 163 Cal.App.4th 1082, 1091.) It provides that jurors must not consider such evidence in isolation, and the weight is a matter for the jury. In addition, CALCRIM No. 359 was also given. That instruction provides in part, “The defendant may not be convicted of any crime based on his out-of-court statements alone. You may only rely on the defendant’s out-of-court statements to convict him if you conclude that other evidence shows that the charged crime or a lesser included offense was committed.”
We conclude the trial court adequately advised the jury to consider the circumstances surrounding the confession. Accordingly, defense counsel was not ineffective for failing to request the pinpoint instruction now urged on appeal.
4. Sufficiency of the Evidence of Firearm Enhancement
Finally, appellant contends that because the gun found during the search was located in a front closet under other items and was unloaded, the firearm was not situated so as to facilitate the underlying crime of possession of methamphetamine for sale. We disagree.
Section 12022, subdivision (c) provides for an additional and consecutive term of imprisonment of three, four, or five years in state prison when any person is personally armed with a firearm in the commission of certain drug offenses. A defendant is armed if he or she has the specific weapon available for use, either offensively or defensively. (People v. Bland (1995) 10 Cal.4th 991, 997.) In reviewing the sufficiency of the evidence to support the arming enhancement, we apply the same standard of review respecting the sufficiency of evidence to support the substantive crime. (People v. Alvarez (1996) 14 Cal.4th 155, 225.)
The crime of drug possession is a continuing offense, one that extends throughout the entire time the defendant asserts dominion and control over illegal drugs. (People v. Bland, supra, 10 Cal.4th at p. 999.) The easier cases are those in which the firearm is kept in close proximity to the contraband, even if the defendant is not present. (See id. at p. 995.) But because the offense of possession is not limited to a discrete event (id. at p. 999), an arming enhancement under section 12022 can be established if, among other criteria, “‘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.’” (People v. Bradford (1995) 38 Cal.App.4th 1733, 1738, quoting People v. Bland, supra, at p. 995.)
The fact that the gun was unloaded and no ammunition found in appellant’s house is not dispositive. Although juries faced with deciding whether a defendant had a firearm available for use in the commission of a felony may consider the fact that the firearm was unloaded, the absence of ammunition does not preclude a finding that the defendant was armed with a firearm. (People v. Bland, supra, 10 Cal.4th at pp. 1004-1005.) An inoperable gun still creates a risk of harm because its passive display “may stimulate resistance.” (People v. Nelums (1982) 31 Cal.3d 355, 360.)
Here, officers executing the search warrant found a firearm and its magazine in a closet near the front entrance of the house. Appellant admitted at trial that, on the day of the search, he had the nine-millimeter handgun he had acquired from his cousin. “Drug dealers are known to keep guns to protect not only themselves, but also their drugs and drug proceeds.” (People v. Bland, supra, 10 Cal.4th at p. 1005.) Based on the evidence in this case, the jury could reasonably conclude the possessory offense was not limited to the front yard, but extended into the house, and that the firearm was “close at hand.” (Id. at p. 995.)
The evidence is therefore substantial to support the true finding that the firearm was available for use either offensively or defensively in the commission of the offense, and we reject appellant’s argument to the contrary.
DISPOSITION
We order the abstract of judgment corrected to accurately reflect appellant’s total sentence of four years four months. The court is directed to order the clerk of the superior court to prepare and forward to the Department of Corrections and Rehabilitation an amended abstract of judgment. In all other respects, the judgment is affirmed.
WE CONCUR:
CORNELL, Acting P.J., HILL, J.