Opinion
E039146
12-15-2006
THE PEOPLE, Plaintiff and Respondent, v. JOEY PHILLIP SALAZAR, Defendant and Appellant.
Richard Schwartzberg, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Raquel M. Gonzalez and Meagan J. Beale, Supervising Deputy Attorneys General, for Plaintiff and Respondent.
A jury found defendant guilty of possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1)) (count 1) and possession of a controlled substance while armed with a firearm (Health & Saf. Code, § 11370.1, subd. (a)) (count 3). The trial court thereafter found true that defendant had sustained two prior serious and violent felony convictions within the meaning of Penal Code section 667, subdivisions (b) through (i) and two prior prison terms within the meaning of Penal Code section 667.5, subdivision (b). As a result, defendant was sentenced to a total term of 27 years to life as follows: 25 years to life on count 1, a concurrent term of 25 years to life on count 3, and two consecutive terms of one year each for the two prior prison term enhancements. Defendants sole contention on appeal is that the trial court erred in instructing the jurors on the required elements of possessing a controlled substance while armed. We reject this contention and affirm the judgment.
All future statutory references are to the Health and Safety Code unless otherwise stated.
The jury was unable to reach a verdict on counts 2, 4, and 5, possession of a handgun by a felon, possession of a controlled substance while armed with a handgun, and possession of a controlled substance for sale, respectively. The trial court declared a mistrial as to these counts, and they were later dismissed.
I
FACTUAL BACKGROUND
About 9:00 p.m. on February 15, 2002, Upland police officer Nicholas Baclit was on patrol on Randy Street, a neighborhood known for gang problems. From his position, Officer Baclit observed a green Ford Focus, driven by defendant, driving with its high beams on. Officer Baclit followed defendant as he drove into a dead end, made a U-turn, and turned back eastward. He then made a quick left turn onto Fairway Avenue, then another left turn into an alley. The car eventually came to an abrupt stop, and defendant and his unidentified passenger got out of the car and ran. Officer Baclit chased defendant while yelling "police," and "stop." Defendant failed to obey the officers orders and continued to run until tackled by the officer. Both fell to the ground. Defendant got up and continued running. Officer Baclit continued chasing defendant, identifying himself as an Upland police officer and telling defendant to stop. Defendant did not stop. Officer Baclit tackled defendant a second time and held him at gunpoint until backup arrived.
Defendant was eventually handcuffed, searched, and taken into custody. In defendants left front pocket was a large baggie containing five small baggies of methamphetamine. The five baggies were later examined, and it was determined they contained methamphetamine weighing 6.17, 0.75, 0.83, 0.22, and 3.28 grams, respectively. Cash in the amount of $3,301 was also found in defendants left front pants pocket. $2,600 was in $ 100 bills; the rest was in $50 bills and one $1 bill.
A search of the car revealed that the car was rented in defendants name. In addition, a double-barreled 20-gauge shotgun in an unzipped camouflage case was located on the rear seat of the car. This was within reach of the driver. The shotgun was loaded and operable. A loaded .22-caliber Ruger handgun was also found under the right front passenger seat. Officer Baclit noted that the handgun was visible when standing outside of the car with the door shut and window closed.
Officer Baclit opined, based on the quantity of the methamphetamine, the packaging of the methamphetamine, the weapons found in the car, and the totality of the circumstances, that the methamphetamine was possessed for sale. Upland Police Officer James Potts, a member of the narcotics task force, opined that defendant possessed the methamphetamine with the sole intent of selling it. Officer Potts explained that the typical user would have his methamphetamine in one bag, not in different bags of different sizes. Officer Potts further noted that lack of pay/owe sheets did not affect his opinion, as sellers rarely keep pay/owe sheets on their person or in their vehicle and that some dealers do not extend credit. Officer Potts also observed that drug dealers often possess loaded, operable firearms when they are dealing for protection of their money and drugs.
During a booking interview, defendant stated that he was unemployed. Defendant explained, by way of testimony from his former supervisor, that after he was terminated from his employment at Home Depot he received a cash severance payment of $1,724.
II
DISCUSSION
Defendant contends the trial court erred in instructing the jurors on the required elements of possession of a controlled substance while armed pursuant to section 11370.1, subdivision (a). Specifically, he maintains that this is an issue of first impression and that the statute requires personal/actual possession of the firearm rather than constructive possession. We disagree.
Defendant here was charged in count 3 with possession of a controlled substance while armed with a firearm, to wit, the shotgun in the rear seat of the car, in violation of section 11370.1, subdivision (a). That section provides that "every person who unlawfully possesses any amount of a substance containing . . . methamphetamine . . . while armed with a loaded operable firearm[] is guilty of a felony punishable by imprisonment in the state prison for two, three, or four years."
The record shows that defendant was driving a vehicle with a loaded, operable shotgun accessible to the driver on the rear seat of the car, in a camouflage case with the zipper open.
The trial court instructed the jury with CALJIC No. 12.52, the standard instruction on section 11370.1:
"The defendant is accused in Counts 3 and 4 of having violated section 11370.1 of the Health and Safety Code, a crime.
"Every person who unlawfully possesses any amount of a substance containing methamphetamine while armed with a loaded operable firearm is guilty of a violation of Health and Safety Code section 11370.1, a crime.
"`Armed with means knowingly to carry a firearm or have it available for offensive or defensive use.
"The word `firearm includes a shotgun and handgun.
"There are two kinds of possession: actual possession and constructive possession.
"`Actual possession requires that a person knowingly exercise direct physical control over a thing.
"`Constructive possession does not require actual possession but does require that a person knowingly exercise control over or the right to control a thing either directly or through another person or persons.
"One person may have possession alone, or two or more persons together may share actual or constructive possession.
"In order to prove this crime, each of the following elements must be proved:
"1. A person exercised control over or the right to control a substance containing methamphetamine;
"2. That person knew of its presence;
"3. That person knew of its nature as a controlled substance;
"4. The substance was in an amount sufficient to be used as a controlled substance; and
"5. That person did so while armed with a loaded operable firearm."
During discussions of jury instructions, defense counsel requested a pinpoint instruction that "access to the items at issue without more is insufficient to support the finding the defendant was in possession of those items." The court denied the request.
Defendant notes the "first-impression question presented [here] is whether the word `armed in section 11370.1, subdivision (a) refers to actual personal possession of a firearm or whether a defendant may be convicted based solely on a theory of constructive possession[.]"
We believe resolution of this issue is partly controlled by our Supreme Courts decision in People v. Bland (1995) 10 Cal.4th 991 (Bland), which holds, in pertinent part, that the crime of drug possession is "a `continuing offense, one that extends through time. Thus, throughout the entire time the defendant asserts dominion and control over illegal drugs, the defendant is criminally liable for the drug possession. [Citations.] And when, at any time during the commission of the felony drug possession, the defendant can resort to a firearm to further that offense, the defendant satisfies the statutory language of being `armed with a firearm in the commission . . . of a felony. [Citation.]" (Id. at p. 999.)
In Bland, the Supreme Court interpreted the meaning of the phrase "armed with a firearm in the commission" of a felony as used in Penal Code section 12022. The defendant in Bland was under arrest in a police vehicle when an assault weapon was located under the bed in his bedroom. The defendants closed bedroom contained 17.95 grams of rock cocaine. (Bland, supra, 10 Cal.4th at p. 995.) The Bland case accepted the proposition that the defendant was armed with a firearm within the meaning of the statute. (Id. at p. 999.) The court summarized its holding as follows: "[W]hen 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 firearms 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. 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 [Penal Code] section 12022." (Id. at pp. 1002-1003, fn. omitted.)
Penal Code section 12022, subdivision (a)(1) provides: "(a)(1) Except as provided in subdivisions (c) and (d), any 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 of which he or she was convicted. This additional term shall apply to any person who is a principal in the commission or attempted commission of a felony if one or more of the principals is armed with a firearm, whether or not the person is personally armed with a firearm." (Italics added.)
Subsequently, the court in People v. Pena (1999) 74 Cal.App.4th 1078 (Pena) cited Brand as an example of liberal construction of the terms "possession" and "armed." (Pena, at p. 1085.) Pena interpreted section 11550, subdivision (e), which imposed an additional penalty for anyone "under the influence" of certain controlled substances "`while in the immediate personal possession of a loaded, operable firearm." (Pena, at p. 1081, italics added.) Pena, citing to Websters International Dictionary, reasoned as follows: "`[I]mmediate has three potentially relevant meanings. It can mean quickly: the driver emerged from the truck and immediately grabbed the gun. It can mean nearby: the gun was kept in the drivers immediate vicinity. Or it can mean without any intervening agency or object: the presence of the gun was the immediate result of the drivers decision to protect himself. [Citation.] Thus, under the ordinary meaning of `immediate, an individual is in the immediate personal possession of a firearm if the weapon is nearby and quickly and directly available to him." (Pena, at p. 1084.)
The Pena court also recognized that, in the context of robbery, property is taken from the "immediate presence" of the victim "if it is . . . within the victims reach, inspection, observation or control . . . or at least an area within which the victim could reasonably be expected to exercise some physical control over his or her property. [Citation.] In the robbery context, immediate means within a certain distance." (Pena, supra, 74 Cal.App.4th at p. 1084.) Pena additionally acknowledged judicial definitions established in search and seizure cases, in which "the area of the arrestees immediate control always included the passenger compartment of a vehicle and its containers. [Citation.] . . . Thus, in the search incident to arrest context, immediate means directly or indirectly (inside a container) within reach." (Id. at p. 1085.)
Applying this analysis, the Pena court held that the term "immediate personal possession," when applied to an occupant of a vehicle, requires the firearm to be located within the passenger compartment. (Pena, supra, 74 Cal.App.4th at pp. 1087, 1088.) Because the firearm in Pena was found in a toolbox in the bed of the truck, the court concluded there was not sufficient evidence to support the conviction. (Id. at p. 1088.) The court stated it was adhering "to the policy of this state that the statute must be construed as favorably to the defendant as its language and the circumstances of its application reasonably permit. [Citation.]" (Ibid.)
Bland involved the general enhancement under subdivision (a) of Penal Code section 12022, which applies when a defendant is armed with a firearm during the commission of a felony, whereas this case involves Health and Safety Code section 11370.1, subdivision (a), which applies when a defendant possesses any amount of methamphetamine while armed with a loaded, operable firearm. The difference, however, is irrelevant. The issue here, as in Bland, is what constitutes being "armed." Penal Code section 12022 uses the phrase "armed with." Health and Safety Code section 11370.1 employs the phrase "while armed with." These two phrases are nearly identical. Defendants argument to the contrary is based on the holding in Pena as cited in In re Ogea (2004) 121 Cal.App.4th 974. However, Health and Safety Code section 11550, subdivision (e), as interpreted in Pena, uses the phrase "while in the immediate personal possession." The phrase "immediate personal possession," as interpreted by Pena, is different from merely being "armed with." In addition, as explained in Pena, Health and Safety Code sections 11550, subdivision (e) and 11370.1 were drafted in 1989 to require immediate personal possession of a firearm. (Pena, supra, 74 Cal.App.4th at p. 1083.) But Health and Safety Code section 11370.1 was amended in 1991 to change the language and thus the elements from "immediate personal possession" to "armed." (Pena, at p. 1083.) Hence, the statute in question as originally enacted penalized possession of certain drugs while, as in Pena, in the "immediate personal possession of a loaded, operable firearm" and stated that "immediate personal possession includes, but is not limited to, the interior passenger compartment of a motor vehicle." (Stats. 1989, ch. 1041, § 1, p. 3609.) The "armed with" language and its definition ("available for immediate offensive or defensive use") were added by a 1991 amendment, which dropped the "immediate personal possession" language. (Stats.1991, ch. 469, § 1, p. 2280.) The Legislature recognized the difference between the phrases and specifically amended section 11370.1 to the broader reach. Thus, we find the Bland decision to be the controlling authority in the instant action rather than the Pena case. (See also People v. Molina (1994) 25 Cal.App.4th 1038, 1043-1044 [police found a gun at the bottom of a zippered duffle bag stuffed with clothing; the duffle bag was behind a car seat that had to be moved forward. The court held a violation of section 11370.1 could have occurred because there was evidence the defendant could reach into the bag while seated in the drivers seat].)
Arguing that the issue was never reached in Bland, defendant nonetheless maintains that the statute requires actual possession of a firearm as opposed to constructive possession, and therefore the jury was improperly instructed on both actual and constructive possession. He explains that the issue here is "not when but whether [he] ever exercised actual possession of the weapon and whether actual possession rather than constructive possession is sufficient to convict." (Emphasis omitted.)
Based on the holding in Bland, we find that the trial court properly instructed the jury on both actual and constructive possession. In other words, contrary to defendants interpretation of section 11370.1, a defendant may be convicted of that statute if he or she exercises actual or constructive possession of the firearm.
People v. Singh (2004) 119 Cal.App.4th 905 (Singh), in which the appellate court urged the CALJIC committee to promulgate a new instruction that included the knowledge requirement for a violation of section 11370.1, also supports our conclusion. In Singh the defendant argued the trial court had erred by giving the jury former CALJIC No. 12.52 because neither that instruction nor any other instruction "advise[d] the jury that [the defendant] had to possess methamphetamine while knowingly armed with a firearm." (Singh, at p. 912.) The appellate court agreed there had been instructional error. (Id. at p. 913.) The court stated, "We have found no published cases specifically addressing the knowledge requirement under Health and Safety Code section 11370.1, subdivision (a), nor has either party cited any. As previously noted, section 11370.1, subdivision (a), defines the term `armed with as having a firearm `available for immediate offensive or defensive use. The statute does not mention knowledge of the firearm. However, the language of Health and Safety Code section 11370.1, subdivision (a) (`while armed with a loaded, operable firearm. . .), is nearly identical to that of Penal Code section 12022, subdivision (c) (`personally armed with a firearm. . .); accordingly, we use Penal Code section 12022 as an analytical guide. [¶] Unlike Health and Safety Code section 11370 .1, Penal Code section 12022 does not contain its own definition of `armed with. However, it is well settled under Penal Code section 12022 that `[a] defendant is armed if the defendant has the specified weapon available for use, either offensively or defensively. [Citation.] The jury instructions for Penal Code section 12022 mirror this language, defining the term `"armed with a firearm" [as] knowingly to carry a firearm [or have it available] for offensive or defensive use. [Citations.] [¶] Despite the nearly identical language of Health and Safety Code section 11370.1, the jury instruction for section 11370.1 (CALJIC No. 12.52 (6th ed.1996)) does not give the same definition of `armed with. CALJIC No. 12.52 defines `armed with as `having available for immediate offensive or defensive use. We can discern no reason for this omission of the knowledge requirement other than inadvertence and we urge the CALJIC committee to promulgate a new instruction including the knowledge requirement." (Ibid.)
In January 2005, the Committee on Standard Jury Instructions responded to the holding in Singh and revised CALJIC No. 12.52 to state in part, "`[a]rmed with means knowingly to carry a firearm or have it available for offensive or defensive use." The trial court in this case properly instructed the jury using the new version of CALJIC No. 12.52, which includes the knowledge requirement. The court instructed the jury that defendant must have knowingly had the firearm available for immediate offensive or defensive use in order to convict him of the charged crime.
People v. Bradford (1995) 38 Cal.App.4th 1733 is also instructive. There, at a compound which included "cabins and tent-like structures," the police found numerous marijuana plants. (Id. at pp. 1736-1737.) They found two shotguns in the defendants own cabin. (Id. at p. 1737.) He pleaded guilty to cultivation of marijuana (§ 11358), and the trial court used his possession of the firearms as an aggravating factor to impose the upper term. (Bradford, at p. 1736.) On appeal, he argued this was error because his possession of the firearms was not "transactionally related" to the offense. (Id. at p. 1736.)
The reviewing court found "guidance in the recent decision of our Supreme Court in People v. Bland . . . ." (People v. Bradford, supra, 38 Cal.App.4th at p. 1738.) After discussing and quoting Bland, it continued: "Here, defendants loaded shotguns were found in his cabin in a compound dedicated to the cultivation of marijuana. It is undisputed that defendant knew of the presence of the weapons. Nothing suggests the weapons were there by accident. Finally, the record permits the fair inference that defendant was present in his cabin with the weapons at some point during the process of cultivating the marijuana nearby. The record therefore contains substantial evidence showing defendant was armed with the shotguns during the cultivation offense, so that defendants possession of the weapons was transactionally related to the offense. [Citation.]" (Bradford, at p. 1739.)
Our determination that the court properly instructed the jury on both actual and constructive possession is also based on well-established case law interpreting possession statutes. Reaching a contrary result would invalidate the well-settled rules that possession of a controlled substance or firearm can be established by either actual or constructive possession. (See, e.g., CALJIC No. 12 .00 [states the elements of the crime of possession of a controlled substance].) People v. Newman (1971) 5 Cal.3d 48, overruled on other grounds inPeople v. Daniels (1975) 14 Cal.3d 857, 862, established that "[t]he elements of possession of narcotics are physical or constructive possession thereof coupled with knowledge of the presence and narcotic character of the drug. [Citations.] Constructive possession occurs when the accused maintains control or a right to control the contraband; possession may be imputed when the contraband is found in a place which is immediately and exclusively accessible to the accused and subject to his dominion and control, or to the joint dominion and control of the accused and another. [Citation.] The elements of unlawful possession may be established by circumstantial evidence and any reasonable inferences drawn from such evidence. [Citations.]" (Newman, at p. 52; see also People v. Williams (1971) 5 Cal.3d 211, 215; § 11350, et seq.)
The court in People v. Rushing (1989) 209 Cal.App.3d 618 stated the applicable general principles: "The essential elements of the offense of unlawful possession of a controlled substance are actual or constructive possession in an amount sufficient to be used as a controlled substance with knowledge of its presence and its nature as a controlled substance. The elements may be proven by circumstantial evidence. [Citations.] [¶] Actual or constructive possession is the right to exercise dominion and control over the contraband or the right to exercise dominion and control over the place where it is found. [Citation.] Exclusive possession is not necessary. A defendant does not avoid conviction if his right to exercise dominion and control over the place where the contraband was located is shared with others. [Citations.]" (Id. at pp. 621-622.) Rushings statement that exclusive control is not necessary is consistent with Newmans statement that possession may be imputed when there is joint dominion and control of the premises where the drugs are found between the accused and another. (People v. Newman, supra, 5 Cal.3d at p. 52.)
Likewise, Penal Code section 12021 is violated whenever a felon intentionally has the weapon in constructive or actual possession. (People v. Jones (2002) 103 Cal.App.4th 1139, 1145-1147; People v. Jeffers (1996) 41 Cal.App.4th 917, 922; People v. Neese (1969) 272 Cal.App.2d 235, 245.) "[Penal Code] Section 12021 does not require any specific criminal intent; general intent to commit the proscribed act is sufficient. [Citation.]" (People v. Spirlin (2000) 81 Cal.App.4th 119, 130.) The key part of the proscribed act is possession. (Ibid.) "Possession may be either actual or constructive as long as it is intentional." (Ibid.) Personal possession is not required; a conviction may be supported by circumstantial evidence of constructive possession. (People v. Taylor (1984) 151 Cal.App.3d 432, 436.)
Defendant does not distinguish the drug possession or firearm possession cases, in which the courts have consistently held that possession may be actual or constructive, from the statute in question here. Indeed, there is no distinction as the governing principle is the same. As stated in Bland, the 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," the jury may reasonably infer, inter alia, that the defendant had the firearm close at hand and available for immediate use at some point during the time he possessed the narcotics. (Bland, supra, 10 Cal.4th at p. 1003.) Defendants arguments are to no avail.
III
DISPOSITION
The judgment is affirmed.
We Concur:
GAUT, J.
KING, J.