Opinion
H043412
02-24-2017
THE PEOPLE, Plaintiff and Respondent, v. JULIAN RAMOS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Monterey County Super. Ct. No. SS142106A)
After a jury trial, defendant Julian Ramos was found guilty of possession of a controlled substance while armed with a firearm, in violation of Health and Safety Code section 11370.1, subdivision (a) and related offenses. On appeal, he contends that insufficient evidence supported the jury's verdict because he was not "armed" within the meaning of the statute. He further contends that the trial court violated Penal Code section 654 by sentencing him to counts that were part of an indivisible course of conduct. We find no error and affirm the judgment.
All further statutory references are to the Health and Safety Code except as otherwise indicated.
Background
Sheriff's deputy Rene Guevara testified at trial. On August 7, 2014, he was patrolling the Prunedale area of Monterey County with another officer when they stopped at a Chevron station and parked next to a black vehicle. Looking to his left, Guevara noticed suspicious activity by the female passenger, who appeared to be hiding something on the floorboard. The officers approached the vehicle, and through the partially open window Guevara smelled marijuana. The passenger also had "indications of possible drug usage on her face." Guevara asked the driver, identified as defendant, if he had a medical marijuana card. Defendant said he did not have it with him. Guevara also saw a bullet next to the gear shift, and he asked defendant if there was a gun in the car. Defendant said there was one in the back seat. Both occupants were directed to step out of the car.
After patting down defendant, Guevara was joined by two other deputies, and all three searched the car. On the floor behind the center console was a zipped backpack. In the large compartment was a .45-caliber handgun in a soft leather holster bearing a buckle resembling a belt buckle. A strap went across the gun; Guevara could not recall whether the strap was fastened or free, but a photo shown to him indicated that the strap was fastened. In order to operate the gun, the strap just needed to be flipped over with a thumb. The gun had a silver magazine in it, with six rounds inside the magazine well. Another magazine with three rounds in it was in the backpack, and three more rounds were loose inside the vehicle. The gun was registered to defendant.
Guevara could not remember whether the safety was on or off when he found it. There was no round in the chamber, but to put one in, someone would "[s]imply" have to release the slide lock, which was an action done with the thumb: "You press on the slide release lever, and the action goes forward, and that [projects] a round from the magazine into the chamber."
In addition to the handgun and ammunition, the officers found on the driver's side floorboard, and also in the center console area, a makeshift "pipe," a cylindrical object derived from a pen, used to smoke certain controlled substances. They also found foil with black substance that appeared to be the residue from heroin that had been heated and then inhaled with the makeshift pipe. More pieces of the foil with black markings were found in the vehicle. Altogether the deputies found .63 grams of methamphetamine and 7.10 grams of heroin in the car. Guevara testified that these were usable amounts.
Defendant was charged by amended complaint with possession of a controlled substance, heroin, while armed with a firearm (count 1, § 11370.1, subd. (a)); possession of a controlled substance, methamphetamine (count 2, a misdemeanor, § 11377, subd. (a)); possession of a controlled substance, heroin (count 3, a misdemeanor, § 11350, subd. (a)); and carrying a loaded firearm (count 4, a misdemeanor, Pen. Code, § 25850, subd. (a)).
Defendant testified on his own behalf at trial. He stated that he always kept the safety on the gun. The gun was kept inside the holster, inside a gun case, and inside the backpack. He kept the gun for target shooting.
On February 10, 2016, after two days of trial, the jury reached its verdict of guilty on all counts. On March 29, 2016, the trial court suspended imposition of sentence and placed defendant on three years' probation. Defendant filed a notice of appeal the next day.
Discussion
1. Legal Sufficiency of "Arming" Evidence under Section 11370 .1
Section 11370.1, subdivision (a), prohibits the possession of methamphetamine or heroin "while armed with a loaded, operable firearm. . . . [¶] As used in this subdivision, 'armed with' means having available for immediate offensive or defensive use." "The focus or gravamen of a violation of . . . section 11370.1 is not . . . possession of a controlled substance . . . [but] the combination of possession of a controlled substance and possession of a loaded, operable firearm." (In re Ogea (2004) 121 Cal.App.4th 974, 984.)
Defendant first contends that the verdict on count 1 cannot be sustained because the facts presented at trial do not indicate that he was armed with a firearm while in possession of the drugs in his car. He construes the "armed with" element of the crime to mean that either "there is no intervening agent between the person and the firearm" or the offender is "in actual contact with the firearm." In this case, he urges, there were "at least seven, [separate] intervening acts" that rendered the weapon unavailable for immediate use: It was at the bottom of a zipped backpack, behind the center console, inside a holster, and latched shut. The gun had the safety on, and there was no bullet in the chamber. Under these circumstances, defendant argues, the gun could not have been "immediately available for use."
Defendant inaccurately states that the backpack was on the back seat. It was on the floor "right behind the center console." --------
Defendant misperceives the reach of section 11370.1, subdivision (a). Several appellate decisions have confirmed that the firearm need not be in contact with the offender or even instantly accessible without any intervening acts or impediments. In People v. Superior Court (Martinez) (2014) 225 Cal.App.4th 979 (Martinez), for example, the defendant was found in his kitchen with heroin in front of him and drug paraphernalia on his person, while a shotgun was in one of the bedrooms and another gun in one of the closets. (Id. at p. 985 & fn. 2.) The defendant argued that he was not armed during his heroin possession offense for purposes of resentencing, because the gun was in a "separate room" from the heroin. (Id. at p. 986.) While the trial court agreed with the defendant, the Court of Appeal, reviewing these undisputed facts in light of the Three Strikes Reform Act of 2012 (Proposition 36), reversed. (Martinez, supra, at pp. 990, 995.) The appellate court concluded that as a matter of law the defendant was not eligible for resentencing in this situation, where he "had the firearm available for immediate offensive or defensive use" within the meaning of section 11370.1. (Martinez, supra, at pp. 993, 995.) Comparable to the instant case is People v. Molina (1994) 25 Cal.App.4th 1038 (Molina), where the defendant was properly held to answer for violating 11370.1 based on his location in the driver's seat of his truck, with controlled substances and a loaded gun in a zipped duffel bag full of clothing behind the back seat. (Molina, supra, at pp. 1043-1044.) And in People v. Vang (2010) 184 Cal.App.4th 912, 914 (Vang ), a defendant was convicted of violating section 11370.1 after drugs and drug paraphernalia were found in various closets around his house and a loaded revolver was found in his locked bedroom.
Also comparable, though in reference to section 12022, is People v. Bland (1995) 10 Cal.4th 991. In Bland, our Supreme Court explained that the illegal possession of drugs constitutes a continuing offense, and if the prosecution 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 was present with both the drugs and the firearm and thus that the firearm was available for the defendant to put to immediate use to aid in the drug possession." (Id. at p. 1002-1003, italics added.)
Viewed in light of this authority, the facts support the conclusion that defendant could have retrieved and readied the gun quickly enough to render it available for immediate use. As Guevara told the jury, the gun was easily within reach from the driver's seat, and it had a magazine with six rounds inside it. To disengage the safety and put a round in the chamber would have taken only seconds. Defendant's conviction for possessing the methamphetamine and heroin while armed with a firearm must be upheld. 2. Section 654
Defendant next contends that the court should have stayed the sentences for count 3 (misdemeanor possession of heroin) and 4 (carrying a loaded firearm) because those two counts "are inseparable from and part of the same course of conduct" as count 1, possession of heroin while armed with a firearm. The People respond that no stay was called for here because the court suspended imposition of sentence when it ordered probation for defendant. The People are correct.
The language of Penal Code section 654, subdivision (a), reveals the flaw in defendant's position. It states, in pertinent part, "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." Penal Code section 654 thus proscribes "the imposition of punishment for more than one violation arising out of an 'act or omission' [that] is made punishable in different ways by different statutory provisions." (People v. Beamon (1973) 8 Cal.3d 625, 636, italics added; see also People v. Hester (2000) 22 Cal.4th 290, 294 [Penal Code section 654 precludes multiple punishment for a single act or indivisible course of conduct].)
Defendant's discussion of People v. Buchanan (2016) 248 Cal.App.4th 603, Vang, supra, 184 Cal.App.4th 912, and People v. Kelly (2016) 245 Cal.App.4th 1119 is not helpful. In each case the defendant received a prison sentence. Here, because imposition of sentence was suspended, there has as yet been no punishment; and if defendant performs well on probation, no sentence will come to be imposed. As no violation of Penal Code section 654 can be said to have occurred, defendant's contention is premature. The issue "should be presented to a court upon any future attempt to impose a double punishment . . . in the event of a probation violation." (People v. Wittig (1984) 158 Cal.App.3d 124, 137; see also People v. Rylaarsdam (1982) 130 Cal.App.3d Supp. 1, 14.)
Disposition
The judgment is affirmed.
/s/_________
ELIA, J. WE CONCUR: /s/_________
RUSHING, P. J. /s/_________
PREMO, J.