Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 05F09368
MORRISON, Acting P. J.
Defendant Urberto Dotson was convicted after a bench trial of possession of methamphetamine for sale in violation of section 11378 of the Health and Safety Code. The court also found that defendant was armed with a firearm within the meaning of Penal Code section 12022, subdivision (c). The trial court sentenced defendant to six years in state prison (middle term of two years on the possession of methamphetamine for sale, plus an additional four years for the arming enhancement).
All further statutory references are to the Penal Code unless otherwise indicated.
On appeal, defendant asks that we strike the arming enhancement because the gun, a loaded .308 caliber rifle, appeared to be dusty, was located in a makeshift storage space in the same garage where the bulk of the drugs were found, and was accessible only by pulling down a wooden ladder, ascending several steps, and reaching through an opening in the sheetrock. According to defendant, he was not “armed” within the meaning of section 12022, subdivision (c), because the rifle was not “readily accessible” and was “not near at hand to the drugs.” As will be explained more fully below, defendant is incorrect. We will affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Sacramento County Sheriff’s deputies, accompanied by Special Agent Chris Felton of the Drug Enforcement Agency (DEA), executed a search warrant on defendant’s residence. In a desk located in the garage, deputies discovered approximately 26 grams of methamphetamine. While in the garage, Special Agent Felton noticed a pull-down ladder in the ceiling. Felton pulled down the “rickety” ladder and ascended the steps to discover a “makeshift room” housing computer equipment. A few feet to the right of the top of the steps, there was an opening in the sheetrock. The butt of a loaded .308 caliber rifle was visible through the opening. From his position at the top of the steps, Felton pulled the rifle through the aperture in the sheetrock and down to the deputies waiting below. The rifle was dusty and did not appear to have been fired recently, but there were also no cobwebs in the area which would indicate that the rifle had resided there for an extended period of time. Rifle ammunition was also found in the garage, in a cabinet below the desk where the drugs were discovered, albeit not of the same type as the loaded rifle retrieved from the top of the steps.
A layer of sheetrock apparently separated this makeshift room from the attic of the house.
The Sacramento County District Attorney charged defendant with conspiracy to sell narcotics (Pen. Code, § 182), and possession of methamphetamine for sale (Health & Saf. Code, § 11378). The information further alleged that defendant was armed with a firearm within the meaning of section 12022, subdivision (c). The trial court subsequently granted the prosecution’s motion to dismiss the conspiracy charge and also granted defendant’s motion to sever his case from that of several codefendants.
Defendant waived his right to a jury trial. Following a one-day bench trial, the court found defendant guilty of possession of methamphetamine for sale. The court also found that defendant was armed with a firearm within the meaning of Penal Code section 12022, subdivision (c). The trial court sentenced defendant to six years in state prison.
Defendant filed a timely notice of appeal.
DISCUSSION
Defendant’s sole contention on appeal is that there was insufficient evidence to support the trial court’s finding that he was “armed” within the meaning of section 12022, subdivision (c). We disagree.
The standard of review is well settled. In reviewing the sufficiency of the evidence, we must determine “‘. . . whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’” (People v. Johnson (1980) 26 Cal.3d 557, 576; People v. Ochoa People v. Bolin (1998) 18 Cal.4th 297, 331; (1993) 6 Cal.4th 1199, 1206; People v. Mincey (1992) 2 Cal.4th 408, 432.) “Evidence is ‘substantial’ for purposes of this standard of review if it is ‘of “ponderable legal significance,” “reasonable in nature, credible, and of solid value.”’” (Brewer v. Murphy (2008) 161 Cal.App.4th 928, 935-936; People v. Ceja (1993) 4 Cal.4th 1134, 1138-1139.)
Section 12022, subdivision (c), provides in relevant part that, “any person who is personally armed with a firearm in the commission of a violation or attempted violation of Section 11351, 11351.5, 11352, 11366.5, 11366.6, 11378, 11378.5, 11379, 11379.5, or 11379.6 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.” (Pen. Code, § 12022, subd. (c).)
A defendant is “armed” within the meaning of section 12022 “if the defendant has the specified weapon available for use, either offensively or defensively.” (People v. Bland (1995) 10 Cal.4th 991, 997 (Bland); People v. Pitto (2008) 43 Cal.4th 228, 236 (Pitto).) Because “drug possession is a crime that continues throughout the time that the defendant has possession of the unlawful drugs,” a defendant who has a firearm available for use “at some point during the illegal possession” is armed with a firearm in the commission of the crime for purposes of section 12022. (Bland, supra, 10 Cal.4th at p. 1001.) As our Supreme Court has explained: “[T]he mere presence and potential for use of a firearm at a crime scene increases the risk of injury and death. The arming provisions in section 12022, like the use provisions in section 12022.5, deter and punish persons who create such dangerous situations in the course of committing crimes.” (Pitto, supra, 43 Cal.4th at p. 236.)
In Bland, police discovered almost 18 grams of rock cocaine and a duffel bag containing a gram scale, plastic baggies, and Pyrex glass containers in defendant’s bedroom closet. Under the bed, police found several unloaded firearms, including an assault weapon. (Bland, supra, 10 Cal.4th at 995.) Defendant was convicted of possession of cocaine base for the purpose of sale. The jury also found that defendant was armed with an assault weapon in the commission of the crime within the meaning of section 12022, subdivision (a)(2). (Id. at pp. 995-996.) The Court of Appeal struck the arming enhancement. (Id. at p. 996.) The Supreme Court reversed.
“The term ‘armed’ has been interpreted identically under both subdivision (a) and subdivision (c) of section 12022.” (People v. Delgadillo (2005) 132 Cal.App.4th 1570, 1574.)
The Court concluded that it was “reasonable for the jury to infer from the proximity of the semiautomatic rifle to the drug cache that defendant had the rifle available for his use to aid in the drug crime at some point during his felonious drug possession.” (Id. at pp. 1003-1004.) As the Court explained: “[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 section 12022.” (Id. at p. 1003.)
In this case, defendant does not argue that there was insufficient evidence to support his conviction for possession of methamphetamine for sale. Nor could he. Sheriff’s deputies discovered approximately 26 grams of methamphetamine in a desk in the garage. Other indicia of narcotics sales were located throughout the residence: two operational cell phones were found on top of the desk; heat sealed bags and a heat sealer were discovered in the kitchen; Ziploc baggies with residue that appeared to be narcotics were found on the coffee table in the living room; and a gram scale was located in the closet of the master bedroom. Given that the loaded rifle was readily accessible by walking across the garage, pulling down the wooden ladder, climbing several steps, and reaching through a hole in the sheetrock, the trial court could have inferred: (1) that the defendant knew of the rifle’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 rifle was available for immediate use to aid in the drug possession. (Bland, supra, 10 Cal.4th at p. 1003.)
These reasonable inferences were not refuted by defense evidence. Indeed, defendant freely admitted knowledge of the rifle’s presence above the stash of drugs in a Mirandized statement to police.
Defendant relies on People v. Balbuena (1992) 11 Cal.App.4th 1136 (Balbuena) and People v. Jackson (1995) 32 Cal.App.4th 411 (Jackson). These cases do not help his cause.
In Balbuena, defendant and his wife lived out of suitcases in the living room of the house searched by police. These suitcases contained many of their belongings, including clothing, cash, and a wedding photograph. In one latched suitcase, police discovered drugs. In another latched suitcase, among defendant’s clothes, police discovered an unloaded pistol. (Balbuena, supra, 11 Cal.App.4th at pp. 1138-1139.) The court held that “the evidence was insufficient to show defendant had the pistol available for offensive or defensive use.” (Id. at p. 1139.) As the court explained its reasoning: “The gun was not within defendant’s reach, nor had it been placed in a position of especially ready access, nor was it loaded and ready for use, nor was there anything to connect the gun to the commission of the offenses. As far as the evidence shows, defendant made no attempt to take the weapon out of the suitcase before the police entered, although he had as much as a full minute to do so. Once the police had entered, access to the gun was cut off; defendant would have had to travel toward the officers and either directly past them or over the sofabed in order to reach the suitcase.” (Ibid.)
As a preliminary matter, the Balbuena decision was disapproved by the Supreme Court in Bland. (Bland, supra, 10 Cal.4th at p. 1001, fn. 4.) Nonetheless, defendant argues that the Supreme Court only disapproved of the portion of Balbuena suggesting that a defendant must be near the firearm at the time police discover the drugs and the gun in order to be “armed” for purposes of section 12022. However, as defendant concedes, the court’s main “focus” in Balbuena was the proximity between the defendant and the gun at the time the police arrived. Stripped of two vital portions of its rationale, Balbuena is not persuasive authority.
In any event, to the extent that portions of the Balbuena decision may still be good law, the case is readily distinguishable. There, the gun was unloaded and therefore not “ready for use.” (Balbuena, supra, 11 Cal.App.4th at p. 1139.) Nor was ammunition found in the suitcases or anywhere else in the house. (Id. at p. 1138.) Here, the rifle was loaded and retrievable in mere seconds by pulling down the ladder and climbing the steps. Defendant’s claim that a loaded rifle located above a stash of methamphetamine is somehow not “ready for use” in defending the drugs defies logic.
In Jackson, the Court of Appeal held that the evidence was insufficient to establish that defendant had a gun available for use during three sexual assaults where the evidence showed that defendant kept the gun in his car and the assaults occurred at three separate locations two blocks away from the car. (Jackson, supra, 32 Cal.App.4th at 421.) As the court explained, from a distance of two blocks, the gun was not “‘available for use’ as that phrase is defined where he could reach it or have ‘ready access’ to the gun.” (Ibid.) Here, both the drugs and the rifle were located in the same garage.
The mere fact that defendant would have had to walk across the garage and climb a few steps to reach the rifle does not make the rifle unavailable for use. (See People v. Searle (1989) 213 Cal.App.3d 1091, 1099 [defendant was found to be armed with a firearm where a loaded firearm was found in the trunk of the car from which he sold cocaine; the fact that he would have had to walk to the back of the car and open the trunk did not make the firearm unavailable]; People v. Delgadillo (2005) 132 Cal.App.4th 1570, 1575 [defendant was found to be armed with a firearm where two handguns and a shotgun were found in his bedroom and lab equipment and raw materials for the manufacture of methamphetamine were found in a car located outside the residence; firearms were in “close proximity” to the manufacturing equipment].)
After viewing the evidence in the light most favorable to the prosecution, we find that a rational trier of fact could have found beyond a reasonable doubt that during defendant’s felonious possession of methamphetamine, a loaded .308 caliber rifle was “available for use, either offensively or defensively.” (Bland, supra, 10 Cal.4th at p. 997.) Consequently, defendant was “armed” within the meaning of section 12022, subdivision (c).
DISPOSITION
The judgment is affirmed.
We concur: ROBIE , J., CANTIL-SAKAUYE , J.