THE PEOPLE, Plaintiff and Respondent, v. MICHAEL CHRISTOPHER PITTO, Defendant and Appellant.
No. S139609
Supreme Court of California
Apr. 7, 2008.
Dennis P. Riordan, under appointment by the Supreme Court; Riordan & Horgan and Donald M. Horgan for Defendant and Appellant.
Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson, Chief Assistant Attorney General, Gerald A. Engler, Assistant Attorney General, Catherine A. Rivlin, Christina Vom Saal and Gregg Zywicke, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
BAXTER, J.—
Here, defendant Michael Christopher Pitto, a convicted drug offender on bail at the time, was within arm‘s reach of both a gun and a saleable amount of methamphetamine in his vehicle when he encountered police. He knew the gun‘s location because, as he admitted at trial, he had purposefully placed it there. For the same reason, the proximity of the gun to the drugs was not merely “accidental or coincidental.” (Bland, supra, 10 Cal.4th at pp. 995, 1003.) There was no dispute that, because of its location, the firearm was available for his offensive or defensive use with respect to the drug transportation and possession crimes of which he was convicted. He was therefore “armed” with the gun “in the commission” of these offenses. (
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.
The officer who discovered the black garbage bag and the cardboard box testified that the gun was closer to the driver‘s seat than the drugs, and that the gun was “within arm‘s reach” of defendant. In opining that defendant likely possessed the drugs for sale, the officer cited such factors as the amount of drugs in the van and the presence of the gun nearby. According to the witness, “persons who possess firearms while in the possession of controlled substances typically possess that firearm to protect the product itself and/or to protect proceeds, which would be the result of selling the product.” He opined that it would take 10 to 15 seconds to unzip the pouch, extract the gun and the bullets, and load the chamber. Another expert confirmed the likely drug-related purpose of the gun in the van.
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
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.2 A defense investigator opined that the drugs and gun were not possessed for commercial purposes because no measuring or packaging items were found in the van, and because the gun was unloaded.
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. His sole request was that the court state that the firearm must be “readily” available for offensive or defensive use in the charged crime—a change the court declined to make.3
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 (
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.5 No additional term was imposed under section 12022(a)(1) for the present finding that defendant was armed while possessing methamphetamine.6
The Court of Appeal agreed with defendant that CALJIC No. 17.15 failed to explain the necessary “nexus or link” between firearm and drug crime under section 12022 and Bland, supra, 10 Cal.4th 991. Such omission, the court said, barred consideration of the defense theory that the gun was placed in the van to commit suicide, that its presence near the drugs was thus coincidental and unrelated to the drug crimes, and that defendant therefore was not armed in committing any such crime. The Court of Appeal further determined that the instructional error amounted to a federal constitutional violation, and was not harmless beyond a reasonable doubt. The judgment
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, 10 Cal.4th 991. As below, defendant insists a sua sponte instruction was required to allow the jury to find, based on evidence suggesting he placed the gun in the van for a non-drug-related purpose (but see fn. 2, ante), that the prosecution failed to prove the gun‘s presence was not merely accidental or coincidental with respect to the drug crimes. (See People v. Breverman (1998) 19 Cal.4th 142, 154 [77 Cal.Rptr.2d 870, 960 P.2d 1094] [instruction required on all legal principles closely and openly connected to the case, even in the absence of a defense request].) However, the Attorney General disagrees that, under the statute and Bland, evidence of defendant‘s purpose for placing the gun near the drugs could tend to negate the arming allegation and warrant a special instruction to that effect. The Attorney General holds the correct view.
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. (
In Bland itself, the defendant sat in a police car outside his house while officers searched inside, investigating the theft of auto parts. The search
A jury convicted the defendant in Bland of felony possession of cocaine base for sale. (See
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, 10 Cal.4th at pp. 991, 996.) The reason cited by the court was the defendant‘s presence outside the house when police found the drugs and guns together in his bedroom. None of the guns, including the assault weapon, posed any danger under these circumstances, in the Court of Appeal‘s view.
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, 10 Cal.4th 991, 1000.)
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, 10 Cal.4th 991, 1000.)
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, 10 Cal.4th 991, 1001–1002.) Bland emphasized that “[d]rug dealers are known to keep guns to protect not only themselves, but also their drugs and drug proceeds; ready access to a gun is often crucial to a drug dealer‘s commercial success.” (Id. at p. 1005.) We declined to hold that a defendant who created such access by his knowing placement and design was not armed simply because he was not present continuously during an extended period of drug possession. Such an approach would reward drug traffickers and defeat the public safety purpose behind the statute, according to Bland. (Id. at p. 1002.)
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, 10 Cal.4th 991, 1002.)
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
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, 10 Cal.4th 991, 1002. There, the Bland court found support in its construction and application of section 12022 by consulting a firearm enhancement under federal law. The federal statute enhanced the punishment of any person who “uses or carries” a firearm “during and in relation to” drug trafficking. (
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, 10 Cal.4th 991. Nor does the discussion of federal law in Bland compel us to accept the state law claim of instructional error presented here.
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
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 of these offenses under
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
CONCLUSION
The judgment of the Court of Appeal is reversed insofar as that court vacated the finding and enhancement under
KENNARD, J., Dissenting.—
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 for sale (
At trial, the prosecution presented this evidence: Northern California‘s Lake County has a Narcotics Task Force consisting of law enforcement
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
During deliberations, the jury sent a note to the trial court asking for the “[d]efinition of
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 (
Relying on Bland, supra, 10 Cal.4th 991, the Court of Appeal concluded that the trial court‘s instruction on the
II
Central to defendant‘s claim of instructional error is this court‘s 1995 decision in Bland, supra, 10 Cal.4th 991, which is summarized below.
or attempted commission of the crime. [¶] The term ‘armed with a firearm’ means knowingly to carry a firearm or have it available for offensive or defensive use. [¶] 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.)
The jury in Bland found the defendant guilty of two felony counts of possession of cocaine base for sale (
In construing
Next, Bland discussed the nature of drug possession, describing it as a ” ‘continuing offense,’ ” that is, one that “extends through time.” (Bland, supra, 10 Cal.4th at p. 999.) “Thus, throughout the entire time the defendant asserts dominion and control over illegal drugs, the defendant is criminally liable for the drug possession.” (Ibid.)
Bland held that, for purposes of
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
Relying on this statement in Bland, the Court of Appeal here set aside the jury‘s findings on the
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, 10 Cal.4th 991, that the arming must take place during the underlying felony. But the jury was not instructed on Bland‘s additional requirement that to be armed in the commission of a felony, the arming must have some link or nexus to that felony. A trial court must, on its own initiative, instruct the jury on those general legal principles that are relevant to the defense theory of the case and supported by the evidence. (People v. San Nicolas (2004) 34 Cal.4th 614, 669 [21 Cal.Rptr.3d 612, 101 P.3d 509]; People v. Breverman (1998) 19 Cal.4th 142, 157 [77 Cal.Rptr.2d 870, 960 P.2d 1094].)
In giving the jury an incomplete description of the “in the commission” element of
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
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
I would affirm the Court of Appeal.