Lead Opinion
Opinion
Penal Code section 12022
Defendant nonetheless claims that, in order to defeat the arming allegation as construed in Bland, supra,
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, as 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.
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 savvy 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 a 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.
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.
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.
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.
The Attorney General asked this court to depublish the Court of Appeal’s opinion. We ordered review on our own motion to decide whether any instructional error occurred.
Discussion
The parties dispute the substance of the arming enhancement in section 12022, as set forth in Bland, supra,
Preliminarily, we observe here, as in Bland, that section 12022 is part of The Dangerous Weapons Control Law, which regulates a wide range of unlawful activities involving firearms and other deadly weapons. (§ 12000 et seq.) Unlike section 12022.5, which imposes enhanced penalties for personal use of a firearm in the commission of a felony, section 12022 “does not require that a defendant utilize a firearm or even carry one on the body.” (Bland, supra,
A jury convicted the defendant in Bland of felony possession of cocaine base for sale. (See Health & Saf. Code, § 11351.5.) The jury also found that he was armed with an assault weapon in committing the crime under section 12022, subdivision (a)(2), triggering an additional three years in prison. To assist the jury in making the latter determination, the trial court read a slightly modified version of CALJIC No. 17.15. (See Bland, supra,
The Court of Appeal in Bland found insufficient evidence to support the section 12022 finding, and struck the three-year enhancement. Based on the relevant statute and instructions, the court concluded that the defendant was not armed with the assault rifle because it was not “available” for his use in protecting either himself or the cocaine he planned to sell. (Bland, supra,
This court rejected such reasoning on review, and effectively reinstated the section 12022 enhancement. Bland started from the premise that drug possession is a continuing offense that extends through the entire time that the defendant asserts dominion and control over illegal drugs. Thus, Bland’s liability for the underlying felony, and his commission of the offense for purposes of section 12022, were not determined solely by whether he was present when police discovered the firearm and drugs in close proximity to one another. Rather, section 12022’s application depended on whether the defendant had the gun available for use in furthering the drug offense “at any time during his possession of the drugs.” (Bland, supra,
On this issue, which the Court of Appeal had overlooked, Bland noted that the defendant kept his cache of guns, including the assault weapon, in his bedroom near the cocaine. From this evidence, the jury could infer that at some point during the felonious drug possession, he was physically present with both the drugs and the guns. Bland equated such proximity with the requisite availability for use of the assault weapon in the drug crime. (See Bland, supra,
Bland summarized these principles 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 firearm’s presence, (2) that its presence together with the drugs was not accidental or coincidental, and (3) that, at some point during
Bland observed that this construction of section 12022 furthered the purpose of the penalty enhancements contained therein. We explained that, in drug cases, the crime scene is the place where the defendant keeps his stash of drugs, and that a firearm stored nearby creates an enhanced risk of harm. (Bland, supra,
Applying the foregoing principles here, this was a classic case for finding that defendant was armed while possessing and transporting a controlled substance. According to the evidence on both sides, defendant’s Ruger pistol and his 12 grams of methamphetamine sat almost side by side inside his minivan as he drove to the lake and stopped at the casino. By his own admission, such close proximity did not occur through ignorance or happenstance. Rather, defendant placed the gun and drugs there together, on purpose, while preparing for a long holiday weekend. Prosecution evidence indicated that he could reach both the gun and the bullets from the driver’s seat, and that the gun could be loaded quickly. Thus, a rational jury could have concluded beyond a reasonable doubt that the gun was available “to protect the defendant during a drug sale, to guard against theft of the drugs, or to ward off police.” (Bland, supra,
Defendant does not seriously dispute that he knowingly placed the gun in the van and that it was available for his use in committing the drug crimes of which he was convicted. He claims, however, that under Bland, he was entitled to refute any further inference that the presence of the gun near the drugs “was not accidental or coincidental.” (Bland, supra,
Neither approach is correct. We disagree that instructional error occurred. We also decline to overrule Bland.
The “facilitative nexus” debate between the parties stems from a single passage in Bland, supra,
Thus, as defendant suggests, Bland appears to have adopted a “facilitative nexus” test and embraced a “purpose and effect” standard. However, such principles are not at odds with anything we have said today about section 12022 and Bland, supra,
Bland made clear that it did not impose an “intent requirement” under section 12022, or provide that the purpose with which the gun was placed near the drugs negates the “facilitative nexus” that arming requires. (Bland, supra,
Here, defendant knew of the handgun’s presence and location because, as he conceded, he himself had placed the weapon there. By his own testimony, he also knew of the nearby presence and location of the methamphetamine, and its proximity to the gun. Nor was this proximity “accidental or coincidental,” for, as already noted, defendant had consciously put the drugs and the gun in those positions. Without doubt, the weapon was readily at hand should he choose to use it to facilitate his perpetration of the drug crimes. The effect of such action is to make the firearm available for use in the possession and transportation of drugs.
Under these circumstances, defendant was “armed” with the gun in the commission
The Court of Appeal therefore erred in determining the trial court violated a sua sponte duty to instruct, beyond the provisions of CALJIC No. 17.15, that there must be a facilitative nexus between the possession of illegal drugs and a firearm, or that, if defendant’s testimony was credited, the proximity of the gun to the drugs was accidental and coincidental and had no purpose or effect as to the drug offenses. The jury was adequately apprised of the requirements for finding that defendant was “armed with a firearm in the commission of’ the charged crimes under section 12022, subdivisions (a)(1) and (c). As noted, such requirements were met here.
Conclusion
The judgment of the Court of Appeal is reversed insofar as that court vacated the finding and enhancement under section 12022(c). In all other respects, the judgment is affirmed.
George, C. J., Werdegar, J., Chin, J., Moreno, J., and Corrigan, J., concurred.
Notes
All unspecified statutory references are to the Penal Code except as otherwise stated.
Contrary to what the dissent suggests, there was no evidence that defendant placed the gun in the van to commit suicide. (See dis. opn. of Kennard, J., post, at p. 242.) Defendant testified that he bought the gun four months earlier for that purpose, and that he did not intend to use it for anything else, including drug possession. While he described in detail the steps he took to place the gun near the drugs in the van before driving to the lake the night of his arrest, he acknowledged that he had no plans to kill himself at the time.
As read to the jury, CALJIC No. 17.15 stated: “It is alleged in Counts 1, 2, and the violation of Health & Safety Code § 11377(a) which is a lesser crime to Count 2 that in the commission of the felony therein described, a principal was armed with a firearm, namely a .357 Ruger pistol. [][] If you find a defendant guilty of the crimes thus charged, you must determine whether a principal in that crime was armed with a firearm at the time of the commission or attempted commission of the crimes. fiQ A principal in the commission of a felony is one who either directly and actively commits or attempts to commit the crime or one who aids and abets the commission or attempted commission of the crime. [j[] The term ‘armed with a firearm’ means knowingly to carry a firearm or have it available for offensive or defensive use. [f] The word ‘firearm’ includes a pistol, revolver, shotgun, or rifle. [j[] The People have the burden of proving the truth of this allegation. If you have a reasonable doubt that it is true, you must find it to be not true.” (Italics added; see Judicial Council of Cal., Crim. Jury Instns. (2007-2008) CALCRIM Nos. 3115, 3131.)
Such convictions included one felony count of being a felon in possession of a firearm (§ 12021, subd. (a)(1)), and two misdemeanor counts of being under the influence of methamphetamine (Health & Saf. Code, § 11550, subd. (a)) and carrying a concealed firearm in a vehicle (Pen. Code, § 12025, subd. (a)(1)). In addition, the jury found that defendant suffered a prior conviction for transporting drugs in 2002. (Health & Saf. Code, §§ 11370.2, subd. (c), 11379.) The trial court found he was released on bail when the present crimes occurred. (§ 12022.1.)
Section 12022(c) reads in part now, as it did at the time of defendant’s crimes, as follows: “[A]ny person who is personally armed with a firearm in the commission of a violation ... of Section . . . 11379 ... of the Health and Safety Code, shall be punished by an additional and consecutive term of imprisonment in the state prison for three, four, or five years.”
Section 12022(a)(1) reads in part now, as it did at the time of defendant’s crimes, as follows: “[A]ny person who is armed with a firearm in the commission of a felony ... shall be punished by an additional and consecutive term of imprisonment in the state prison for one year . . . .” Subdivision (a)(2) of section 12022 imposes an additional and consecutive three-year term where “the firearm is an assault weapon . . . .”
The Court of Appeal never mentioned the similar arming allegation sustained under section 12022(a)(1) as to defendant’s conviction of possessing methamphetamine. The court did not reverse or otherwise disturb this finding in disposing of the case on appeal.
After Bland, supra,
Dissenting Opinion
Penal Code section 12022 is a sentence enhancement provision, which states in subdivision (a)(1); “[A]ny person who is armed with a firearm in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment . . . .”
In this case, police found methamphetamine and a firearm in defendant’s van. The prosecution charged him with the felonies of possessing and transporting the drug, and it alleged an arming enhancement with respect to both crimes. Defendant denied any relationship between the methamphetamine and the firearm, claiming he had the latter because he was contemplating suicide. The trial court failed to instruct on Bland’s requirement there that be a nexus or link between the firearm and the underlying drug crime. Therefore, in finding the arming enhancement allegations to be true, the jury was precluded from considering the defense argument that the gun had no connection to the methamphetamine.
Contrary to the Court of Appeal, which set aside the enhancements, the majority here upholds the trial court’s failure to instruct, on its own initiative, on the nexus or link aspect of the Bland test. I disagree. The Court of Appeal got it right, and I would affirm the judgment of that court.
I
As relevant here, defendant was charged with the felonies of possessing methamphetamine
At trial, the prosecution presented this evidence: Northern California’s Lake County has a Narcotics Task Force consisting of law enforcement officers from various agencies, including the Lake County Sheriff’s Department and the City of Clearlake Police Department. In the early morning hours of May 23, 2003, task force members saw defendant drive a van into the parking lot of the Twin Pines Casino, located in Middletown, Lake County. The casino parking lot was known to task force members as a “hot spot” for methamphetamine dealing. When defendant got out of his van with a dog on a leash, task force members stopped him and, knowing him to be on probation and thus subject to warrantless search, they entered the van. On the floor in the back of the van was a plastic garbage bag filled with clothing and other personal items. Protruding from a cigarette package in the garbage bag was a clear plastic baggie containing a substance later determined to be 12.09 grams of crystal methamphetamine. About a foot away from the garbage bag, behind the driver’s seat, was a cardboard box containing, among other things, a zippered pouch. Inside the pouch was an unloaded .357 Ruger revolver; in a separate compartment of the pouch were six rounds of ammunition.
The defense presented this evidence: Defendant was on his way from Contra Costa County to his family’s Lake County vacation house, where he planned to spend the May 2003 Memorial Day weekend, when he stopped at the casino parking lot so his dog could relieve itself. To counter the prosecution’s drug charges, defendant, his brother, and his mother testified to defendant’s longtime methamphetamine addiction, explaining that he possessed the 12.09 grams of methamphetamine in the plastic baggie not for the purpose of sale but for his personal use.
And to counter the prosecution’s theory that defendant was armed with a firearm “in the commission” of the two drug felonies, the defense presented testimony from defendant’s brother and mother that defendant disliked firearms, that he had recently been depressed, and that he talked about killing himself. Defendant testified that he had considered committing suicide, but that he had no immediate plan to do so when he drove into the casino parking lot where task force members encountered him. He explained that the revolver and six rounds of ammunition found in his van were for this purpose.
The trial court’s instruction to the jury on section 12022’s arming enhancement was based on the standard jury instruction, CALJIC No. 17.15.
During deliberations, the jury sent a note to the trial court asking for the “[definition of Penal Code section 12022 with the [.sic] regards to the term ‘armed.’ ” When the trial court called the jury back into the courtroom to respond to the question, one juror said: “I think the question was availability, what constitutes availability?” The court replied: “That would be a question for you to decide. It’s a question of fact as to whether or not this shows that firearm was available for offensive or defensive use. That would be within your purview alone, so I couldn’t answer that question for you.”
The jury acquitted defendant of the charge of possessing methamphetamine for sale, but it convicted him of the lesser included felony offense of unauthorized possession of methamphetamine (Health & Saf. Code, § 11377), and it also convicted him of transporting methamphetamine. With respect to both felonies, the jury found that defendant was “armed with a firearm in the commission” of the offense.
Relying on Bland, supra,
II
Central to defendant’s claim of instructional error is this court’s 1995 decision in Bland, supra,
In Bland, the defendant was in a police car outside his house when police searched the house and found in the defendant’s bedroom closet 17.95 grams of rock cocaine; nearby was a duffel bag containing a gram scale, plastic baggies, and other items typically associated with the manufacture and sale of cocaine base. Also in the bedroom were several unloaded firearms, including a Colt AR-15 semiautomatic assault rifle and a photograph of the defendant with the assault rifle. (Bland, supra,
The jury in Bland found the defendant guilty of two felony counts of possession of cocaine base for sale (Health & Saf. Code, § 11351.5), and as to one of those counts found that he was armed with an assault weapon in the commission of that offense (Pen. Code, § 12022, subd. (a)(2)). The Court of Appeal set aside the section 12022 arming enhancement for insufficient evidence. It reasoned that the defendant could not have been armed with the assault weapon in committing the felony at issue because the unloaded assault rifle retrieved by the officers was not accessible to the defendant, who was outside the house during the police search. This court disagreed. It reasoned that evidence of the defendant’s possession of drugs and drug paraphernalia near the assault rifle
In construing section 12022’s phrase, “armed with a firearm,” Bland explained that a defendant need not “utilize a firearm or even carry one on the body.” (Bland, supra,
Next, Bland discussed the nature of drug possession, describing it as a “ ‘continuing’ offense,” that is, one that “extends through time.” (Bland, supra,
Bland held that, for purposes of section 12022’s arming enhancement, a defendant could be armed in the commission of a possessory drug offense even though not near the firearm and the drugs when arrested. The important circumstance, Bland said, was whether the defendant “had the firearm available for use in furtherance of the drug offense at any time during his possession of the drugs.” (Bland, supra,
Of particular relevance here is this observation in Bland: “Of course, contemporaneous possession of illegal drugs and a firearm will satisfy the statutory requirement of being ‘armed with a firearm in the commission’ of felony drug possession only if the evidence shows a nexus or link between the firearm and the drugs. The federal courts, in interpreting the federal counterpart to California’s weapons enhancement law (18 U.S.C. § 924(c)(1)), have described this link as a ‘facilitative nexus’ between the drugs and the gun. (See United States v. Paulino (1st Cir. 1994)
Section 12022’s arming enhancement, Bland observed, “implicitly requires” a similar “ ‘facilitative nexus’ ” in light of the statute’s requirement that the arming occur “in the commission” of the charged felony. (Bland, supra,
Relying on this statement in Bland, the Court of Appeal here set aside the jury’s findings on the section 12022 arming enhancements. The court pointed to the defense evidence that defendant had the gun in his van not to aid in the felonies of possessing and transporting methamphetamine but because he was contemplating suicide. In light of that evidence, the Court of Appeal concluded, the trial court had a sua sponte obligation to instruct the jury that for defendant to be armed with a firearm in the commission of a felony, there had to be some “facilitative nexus” between the firearm and the felony. I agree. Below, I explain why.
III
Section 12022’s subdivision (a)(1) states: “[A]ny person who is armed with a firearm in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment. . . .” (Italics added.) As discussed in part II, ante, this court’s decision in Bland construed the phrase “armed ... in the commission” of a felony offense as meaning that the arming must occur “during the commission of the underlying felony” (Bland, supra,
Defendant presented evidence that he had the .357 Ruger revolver in his van because he had been contemplating suicide, which supported the theory that the gun’s presence was unrelated to his possession and transportation of methamphetamine. The trial court’s instruction to the jury, however, precluded consideration of this theory.
In the language of CALJIC No. 17.15, the trial court instructed the jury that if it found defendant guilty of either one of the two felonies, it must then decide whether defendant “was armed with a firearm at the time of the commission or attempted commission” of that felony. (CALJIC No. 17.15, italics added; see p. 242, fn. 3, ante.) Thus, this instruction properly included the temporal requirement set forth in Bland, supra,
In giving the jury an incomplete description of the “in the commission” element of section 12022’s arming enhancement, the trial court erred. This instructional error is harmless only if beyond a reasonable doubt it did not affect the jury’s verdict. (People v. Sengpadychith (2001)
Here, the instructional error precluded the jury from considering defendant’s claim that the gun’s presence in the van had no connection to the nearby methamphetamine that was concealed in a cigarette package inside a plastic garbage bag together with defendant’s clothing and other personal items. Whether a majority of this court disbelieves the defense evidence that defendant had the gun to commit suicide is beside the point. It was for the jury, as the trier of fact, to consider that defense evidence, and to either accept or reject it.
Compounding the instructional error was the prosecutor’s erroneous comment in closing argument to the jury that defendant’s reason for having the gun in the van was irrelevant; the pertinent issue for the jury, the prosecutor said, was whether the gun was “available” to defendant. The jury’s apparent confusion on this very point is evident from its inquiry of the trial court on the meanings of the terms “armed” and “availability” for purposes of the section 12022 arming enhancement. The trial court provided no answers. (See dis. opn., ante, at pp. 242-243.)
Under these circumstances, I cannot conclude that beyond a reasonable doubt the instructional error had no effect on the jury’s verdict, and I would affirm the Court of Appeal in setting aside the arming enhancement.
IV
The majority insists that in this case there was no need to instruct the jury on the necessity of finding a link or nexus between the gun and the nearby drugs in defendant’s van. It reasons that defendant did not sufficiently refute the inference of arming arising from the prosecution’s case because he admitted knowing that the pistol was in the van near the methamphetamine when he testified to deliberately placing the gun and the drugs in his van. (Maj. opn., ante, at p. 238.) According to the majority, the “close proximity [of the drugs and the gun] did not occur through ignorance or happenstance.” (Ibid.)
I disagree with the majority that a defendant who knows that a firearm is near illegal drugs in his possession can never refute an inference of being armed within the meaning of section 12022. The majority acknowledges that this court’s decision in Bland established a purpose and effect
When a defendant has knowingly placed a firearm nearby illegal drugs, the gun’s mere presence cannot, under Bland, supra,
I would affirm the Court of Appeal.
Further undesignated statutory references are to the Penal Code.
Section 12022, subdivision (c) provides for additional terms of imprisonment of three, four, or five years for certain, specified drug-related felonies. The increased prison term under section 12022, subdivision (a)(1), the basic arming enhancement provision, is one year.
The jury instruction read: “It is alleged in Counts 1, 2, and the violation of Health & Safety Code § 11377(a) which is a lesser crime to Count 2 that in the commission of the felony therein described, a principal was armed with a firearm, namely a .357 Ruger pistol. ['][] If you find a defendant guilty of the crimes thus charged, you must determine whether a principal in that crime was armed with a firearm at the time of the commission or attempted commission of the crimes. fl[] A principal in the commission of a felony is one who either directly and actively commits or attempts to commit the crime or one who aids and abets the commission or attempted commission of the crime, [f] The term ‘armed with a firearm’ means knowingly to carry a firearm or have it available for offensive or defensive use. [f] The word ‘firearm’ includes a pistol, revolver, shotgun, or rifle. [][] The People have the burden of proving the truth of this allegation. If you have a reasonable doubt that it is true, you must find it to be not true.” (Italics added.)
With respect to the conviction for possessing methamphetamine under Health and Safety Code section 11377, the arming enhancement was governed by Penal Code section 12022, subdivision (a)(1) (setting out a one-year enhancement) and not its subdivision (c) (setting out additional terms of imprisonment of three, four, or five years for arming in the commission of specified drug offenses), because simple possession is not one of the offenses covered by section 12022, subdivision (c).