Opinion
E065741
11-09-2017
THE PEOPLE, Plaintiff and Respondent, v. RODOLFO ARTURO RODRIGUEZ, Defendant and Appellant.
Nancy Susan Brandt, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton, Seth Friedman and Adrianne S. Denault, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. INF1301410) OPINION APPEAL from the Superior Court of Riverside County. John G. Evans, Judge. Affirmed. Nancy Susan Brandt, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton, Seth Friedman and Adrianne S. Denault, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted defendant and appellant Rodolfo Arturo Rodriguez of possession of methamphetamine for sale (Health & Saf. Code, § 11378, count 1), possession of methamphetamine while armed with a loaded firearm (§ 11370.1, count 2), and possession of marijuana for sale (§ 11359, count 3). A trial court sentenced defendant to state prison for four years four months, but suspended the sentence and placed him on probation for a period of three years, under specified conditions.
All further statutory references will be to the Health and Safety Code unless otherwise noted. --------
On appeal, defendant contends: (1) the evidence was insufficient to support his conviction of possession of methamphetamine while armed with a loaded firearm; and (2) the court should have stayed the sentence on count 1 under Penal Code section 654. We affirm.
FACTUAL BACKGROUND
On May 17, 2012, officers from the Coachella Valley Narcotics Task Force executed a search warrant on defendant's house. When they entered the house, defendant came out of the master bedroom with his hands over his head. One of the officers went into the master bedroom and heard the sound of a toilet running, as if it had just been flushed, in the attached bathroom. The officer observed a digital scale on the bathroom counter and some empty small baggies with white residue in the trash can. He found an ibuprofen bottle in the medicine cabinet, and inside the ibuprofen bottle was a white plastic baggie containing a significant amount of a white crystalline substance that he believed to be methamphetamine. He weighed the substance, and it weighed 7.6 grams. The officer searched the master bedroom closet and found four jars, three of which contained what appeared to be marijuana, and a large Ziploc bag containing numerous unused baggies, similar to the baggies found in the trash can. He also found a gun case with a handgun inside of it. The gun case was on the closet floor, underneath the shelves that contained the jars of marijuana. The gun case had a yellow ring around it, which was a lock. The officer was able to get the gun out of the case with the lock still on. The gun was a .40-caliber gun, which was loaded with a magazine holding nine bullets; however, there was no bullet in the chamber. The officer also found boxes of ammunition in the closet. Another officer saw defendant's cell phone and noticed what appeared to be pay/owe sheets on his phone. Based on his experience and training, this officer opined that defendant possessed the methamphetamine and marijuana for sale.
ANALYSIS
I. There Was Sufficient Evidence to Support Defendant's Conviction
Defendant contends there was insufficient evidence to support his conviction for possession of methamphetamine while armed with a loaded firearm (§ 11370.1) in count 2, since he was not "armed" within the meaning of section 11370.1. He claims that since the gun was in a locked box and did not have a bullet in the chamber, it was not "immediately available for actual use," as required by the statute. We disagree.
A. Standard of Review
"In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] Reversal on this ground is unwarranted unless it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].' [Citation.]" (People v. Bolin (1998) 18 Cal.4th 297, 331.)
B. The Evidence Was Sufficient
Section 11370.1, subdivision (a), provides, in relevant part: "Notwithstanding Section 11350 or 11377 or any other provision of law, every person who unlawfully possesses any amount of a substance containing . . . methamphetamine, . . . while armed with a loaded, operable firearm is guilty of a felony . . . ." This statute was enacted in 1989, and it "created a new felony for unlawfully possessing certain quantities of controlled substances while in the immediate personal possession of a loaded, operable firearm." (People v. Pena (1999) 74 Cal.App.4th 1078, 1082 (Pena).) Section 11370.1 was amended in 1991 "to replace the phrase 'while in the immediate personal possession of ' with 'while armed with' a loaded, operable firearm." (Pena, at p. 1083.) The amendment defined " 'armed with' " as "available for immediate offensive or defensive use." (§ 11370.1, subd. (a); see Pena, supra, at p. 1083.) "This definition is consistent with the well-established construction of 'armed' given to firearm enhancements such as section 12022. [Citations.] In order to be 'armed' within the meaning of these statutes, a defendant need not physically carry the firearm on his or her person." (People v. Superior Court (Martinez) (2014) 225 Cal.App.4th 979, 989-990.)
In the present case, the gun was contained in a locked case, on the floor of the master bedroom closet. Defendant contends that to "gain actual control of the firearm would have taken at least four intervening acts: (1) enter the bedroom and go to the closet; (2) remove the case from the bottom of the closet; (3) locate the key and unlock the box, or pry open the box in order to access the gun; and (4) remove the gun from the box." Under these circumstances, defendant argues the gun was not available for immediate use.
In People v. Bland (1995) 10 Cal.4th 991 (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 defendant's bedroom closet contained 17.95 grams of rock cocaine. (Bland, at p. 995.) The court stated that drug possession was a "continuing" offense or one that extends through time. (Id. at p. 999.) It further stated that "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.' " (Ibid.) 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 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. 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.)
Subsequently, the court in Pena, supra, 74 Cal.App.4th 1078 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.) Citing to Webster's New International Dictionary (3d ed. 1986), the court 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 driver's immediate vicinity. Or it can mean without any intervening agency or object: the presence of the gun was the immediate result of the driver's 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.)
In People v. Molina (1994) 25 Cal.App.4th 1038 (Molina), the defendant argued there was insufficient evidence to hold him to answer for the charge of possession of a controlled substance while armed with a firearm. (§ 11370.1.) The police found a gun at the bottom of a zippered duffle bag stuffed with clothing. The duffle bag was behind a seat in the car, which had to be moved forward. The court held that a violation of section 11370.1 could have occurred because there was evidence the defendant could reach into the bag while seated in the driver's seat. (Molina, at pp. 1042-1044.)
In People v. Vang (2010) 184 Cal.App.4th 912 (Vang), the police searched a defendant's home and found methamphetamine in one closet, a loaded .357 Magnum revolver under a pillow on the bed in a locked bedroom, and bullets in that bedroom closet. (Id. at p. 914.) When the police arrived to search his home, the defendant was working on a car in the driveway. (Ibid.) A jury found the defendant guilty of possession of a controlled substance while armed with a firearm (§ 11370.1), and the court affirmed the conviction. (Vang, at p. 914.)
The facts and reasoning of Bland, Pena, Molina, and Vang demonstrate that, using the ordinary meaning of "immediate," a jury could reasonably find that defendant was armed with a gun ready for "immediate offensive or defensive use." All he needed to do was retrieve the gun case from the closet and remove the gun from the case—all of which could be accomplished in moments. We note the officer who found the gun testified at trial that he was able to remove the gun from the case with the lock still on. Thus, the gun may not have been on defendant's person, but it was available for immediate use.
Defendant additionally asserts that "[t]he jurors were perplexed," and points out that they sent notes during deliberations, requesting a definition and clarification of the meaning of "immediate offensive or defensive use." However, the jurors' notes do not support defendant's argument that the evidence was insufficient. The jurors were instructed that the People had to prove him guilty beyond a reasonable doubt, and that unless the evidence proved him guilty beyond a reasonable doubt, they had to find him not guilty. The jurors found him guilty of possession of methamphetamine while armed with a loaded firearm. (§ 11370.1.)
We conclude that there was sufficient evidence to support defendant's conviction in count 2 for violating section 11370.1.
II. Defendant Was Granted Probation, so His Penal Code Section 654 Claim Fails
Defendant claims the trial court erred when it imposed a three-year term on count 2 and a consecutive eight months on count 1. In his opening brief, he argues that the court should have stayed the sentence in count 1, pursuant to Penal Code section 654, since counts 1 and 2 were based on the same underlying act of possessing methamphetamine. The People point out that, when a trial court suspends imposition of sentence and places a defendant on probation, there is no punishment within the meaning of Penal Code Section 654 and, therefore, the statute does not apply. (People v. Wittig (1984) 158 Cal.App.3d 124, 137.) In his reply brief, defendant concedes the issue. The court here placed defendant on probation. Thus, we agree that Penal Code section 654 did not apply. (Wittig, at p. 137.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J. We concur: RAMIREZ
P. J. MILLER
J.