Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 03F02459
CANTIL-SAKAUYE, J.
Based upon evidence obtained during the service of search warrants for two residences used by defendant Jeffrey Allen Pate, a jury convicted him of possession of cocaine for sale and receiving stolen property. As to the drug offense, the jury found that defendant was personally armed with a firearm. Following these verdicts, the jury then found that defendant had two prior convictions which constituted strikes.
The jury acquitted defendant of possession of methamphetamine.
Sentenced to state prison for a term of 29 years to life, defendant appeals contending (1) the trial court erred in instructing the jury that personally armed means having a firearm available for use, (2) the evidence is insufficient to support the finding he was personally armed, (3) the trial court prejudicially erred by failing to give a unanimity instruction regarding the charge of receiving stolen property, and (4) the court abused its discretion in denying his Romero motion. We reject each contention.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
FACTS
On March 19, 2003, officers executed search warrants for residences occupied by defendant on Lake Glen Way and Tamoshanter Way in Sacramento County. At the Lake Glen residence, where defendant sometimes stayed with his girlfriend, the officers found .26 grams of methamphetamine, .1 grams of cocaine, and scales. In the Tamoshanter Way residence, where defendant primarily lived with his mother, officers found 942 grams of cocaine; eight firearms, some of which were loaded; a digital scale; and a box of plastic sandwich baggies.
In the garage of the Tamoshanter Way residence, the officers found over 100 tools and tool boxes, some bearing the name and/or driver’s license numbers of Kevin Whitely and Ernest Buda. Both Whitely and Buda identified some of the tools as having been stolen from them.
Defendant testified, admitting possession of the cocaine and firearms. However, he claimed that he only possessed the cocaine and guns because he and his mother had been threatened by his neighbor with great bodily injury if he did not obtain and supply the neighbor with cocaine. As to the tools, defendant claimed to have purchased them at a flea market from “Ricky” or on the street, and he did not know they had been stolen.
DISCUSSION
I.
Penal Code section 12022, subdivision (c) provides that, “any person who is personally armed with a firearm in the commission of” specified drug offenses, including possession of cocaine for sale, is to be punished by a consecutive term of three, four, or five years. The court instructed the jury that, “[t]he term ‘armed with a firearm’ means knowingly to carry a firearm or have it available for offensive or defensive use.”
Hereafter, undesignated statutory references are to the Penal Code.
Defendant contends this instruction was defective because by its use of the term “‘personally’[] the [L]egislature plainly intended that the defendant must be found to have actually carried the weapon.” We disagree.
Defendant acknowledges that “at least three cases disagree with this argument,” namely, People v. Superior Court (Pomilia) (1991) 235 Cal.App.3d 1464, People v. Mendival (1992) 2 Cal.App.4th 562, and People v. Delgadillo (2005) 132 Cal.App.4th 1570. What he fails to acknowledge is that no case supports his position.
In essence, Pomilia, Mendival, and Delgadillo conclude that by its use of the word “personally” in subdivision (c) of section 12022, the Legislature meant to limit the increased punishment provided by subdivision (c) (three, four, or five years as opposed to one year under subdivision (a)) to those who actually have access to a firearm from those who may be found to be armed vicariously, e.g., as an aider and abettor.
Any question that this is an accurate description of the law relating to the enhancement at issue has been put to rest by People v. Bland (1995) 10 Cal.4th 991 (Bland). There, the Supreme Court stated: “By making the liability for increased punishment extend to any principal whether or not ‘personally armed,’ subdivision (a)(2) of section 12022 imposes both personal and vicarious liability. (See People v. Superior Court (Pomilia), supra, 235 Cal.App.3d 1464, 1471 [].) In contrast, enhancement provisions that specify that a defendant be ‘personally armed’ (cf. § 12022, subd. (c)) limit liability for increased punishment to ‘those who themselves commit the prohibited conduct.’ (People v. Cole (1982) 31 Cal.3d 568, 576.)” (Bland, supra, at p. 998, fn. 3.)
We recognize, as defendant points out, that Bland was analyzing subdivision (a)(1) of section 12022, not subdivision (c). Therefore, technically the Supreme Court’s statement regarding the section 12022 subdivision (c) enhancement is dictum. Nevertheless, “[e]ven if properly characterized as dictum, statements of the Supreme Court should be considered persuasive.” (People v. Hubbard (1997) 66 Cal.App.4th 1163, 1169.) This advice is sound and we follow it.
Consequently, we too agree that “personally armed with a firearm,” as used in section 12022, subdivision (c) includes those who have it “available for offensive or defensive use.”
II.
Defendant contends that if we agree with his position asserted in section I, then the evidence is insufficient to support the section 12022, subdivision (c) enhancement because he neither had a weapon on him nor was he found near any weapon in the Tamoshanter Way residence. Since we have rejected defendant’s underlying premise, we likewise reject this contention.
III.
Defendant contends reversal of his conviction for receiving stolen property is required because the court failed to instruct the jury that it had to unanimously agree on which evidence it was relying--the tools taken from Whitely or the tools taken from Buda--to prove the charge. In these circumstances no such instruction was required.
“California, like most jurisdictions, has followed the unanimity rule announced in People v. Sullivan (1903) 173 N.Y. 122 . . . . [Citations.] Under that rule, where a statute prescribes disparate alternative means by which a single offense may be committed, no unanimity is required as to which of the means the defendant employed so long as all the members of the jury are agreed that the defendant has committed the offense as it is defined by the statute. It follows that even though the evidence establishes that the defendant employed two or more of the prescribed alternate means, and the jury disagrees on the manner of the offense, there is no infirmity in the unanimous determination that the defendant is guilty of the charged offense. The courts adhering to this rule explain that the apparent difference in means is actually no more than a difference in the legal theory under which the defendant is found criminally responsible for a single offense; such a difference does not affect the unanimous conclusion the defendant is guilty and therefore does not encroach on the constitutional requirement of unanimity. [Citations.]” (People v. Sutherland (1993) 17 Cal.App.4th 602, 612-613.)
The crime commonly referred to as receiving stolen property may be committed in a variety of ways, including where one “conceals, sells, withholds, or aids in concealing, selling, or withholding any property from the owner, knowing the property to be so stolen . . . .” (§ 496, subd. (a).)
The information charged defendant with violating section 496, subdivision (a) in that “[o]n or about March 19, 2003” he “did unlawfully buy, receive, conceal, withhold, and aid in concealing, and withholding property, to wit, power tools, which had been stolen.”
The evidence showed that Whitely identified as his some of the power tools found in defendant’s garage at Tamoshanter Way, which had been stolen from Whitely’s barn on March 19, 2005, which was the day before their discovery by the police in defendant’s garage. Whitely recovered 15 tools, some of which had his “driver’s license and/or initials on them.” On March 20, 2005, Buda identified a porter cable, a hand-held sander and a hand-held router, each of which had been found in defendant’s garage, as his. Each of these items bore his driver’s license number and had been stolen about a month previously from a house he was working on.
Defendant was charged with only one violation of section 496. The prosecution’s theory was that defendant violated this section by means of his concealing and withholding any one, or all, of the several items of stolen property found in his garage. Since jury unanimity on a specific item or items went to the prosecution’s theory of how the offense was committed, no unanimity instruction was required. All that was required was that the jury unanimously agreed that defendant did commit the offense, not how he committed it.
Even if a unanimity instruction was required, we would find any error in not giving it harmless beyond a reasonable doubt. (People v. Smith (2005) 132 Cal.App.4th 1537, 1545.) While the jury may not have unanimously agreed that all of the items found in defendant’s garage were stolen, and they may have split on some of the items, it is simply inconceivable that since they found defendant guilty they would not have at least agreed unanimously upon the tools which had been stolen from Whitely the day before they were found in defendant’s garage which bore Whitely’s name and driver’s license. Consequently, any error in failing to give a unanimity instruction was harmless beyond a reasonable doubt.
IV.
Defendant contends the trial court abused its discretion when it denied his motion, made pursuant to People v. Superior Court (Romero), supra, 13 Cal.4th 497, to dismiss one or both of his prior strike convictions. We find no such abuse.
“[I]n ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation or finding under the Three Strikes Law, on its own motion, ‘in furtherance of justice’ pursuant to Penal Code section 1385(a), or in reviewing such a ruling, the court in question must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme’s spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one of more serious and/or violent felonies.” (People v. Williams (1998) 17 Cal.4th 148, 161.)
Defendant’s record before the court on the motion was as follows: In September 1981, defendant pled no contest to second degree burglary and was placed on three years’ probation.
In September 1983, defendant pled no contest to receiving stolen property and was placed on two years’ probation.
In October 1983, defendant and a companion broke into a home, and when confronted by one of the occupants, instead of running away, stabbed the occupant in the chest with a screwdriver, causing him great bodily injury. After leaving the residence, defendant again threatened to stab the person. In 1984, defendant was found guilty of first degree burglary and assault with a deadly weapon, each with a great bodily injury enhancement, and was sentenced to prison for 10 years.
In 1989, defendant was paroled. In 1991, he was found in violation of parole and returned to prison to complete his sentence.
In 1997, defendant pled no contest to disturbing the peace and was placed on three years’ probation.
In 2003, defendant committed the instant offenses of possession of cocaine for sale with an enhancement for being armed with a firearm, and for receiving stolen property. The drug offense involved 942 grams of cocaine, the enhancement involved eight firearms, several of which were loaded, and he possessed multiple stolen items.
Against this record, defendant argues that the present offenses did not involve violence, no one was injured; he cooperated with the officers at the time of the search; his prior serious felonies were remote and were the product of a single incident “of bad behavior.” He asserts that his mental culpability for the present offense was reduced because in 1992 he was involved in an automobile accident which caused him serious injuries, including a brain hemorrhage, and he is still suffering the after effects of those injuries. Thus, defendant concludes, the foregoing “should have caused the trial court to find that [he] was not the type of offender contemplated by the drafters of the three strikes law.”
Contrary to defendant’s assertion that he is not a candidate for three strikes treatment, his record shows that he is a recidivist who is a serious danger to the physical safety of others and their property. He is a recidivist because he cannot remain crime free while out of prison; he is a physical danger to others as shown by his prior violence coupled with the veritable arsenal of firearms he illegally possessed; and he is a threat to the property of others as shown by the large quantity of stolen property he possessed when arrested. Consequently, there was no abuse of discretion by the trial court in denying defendant’s Romero motion.
DISPOSITION
The judgment is affirmed.
We concur: BLEASE, Acting P.J., RAYE, J.