Firearm Possession While Manufacturing Drugs - California Arming Enhancement

A defendant who is "personally armed" with a firearm while manufacturing meth is subject to a sentence enhancement of three, four or five years at the court's discretion. (Penal Code 12022, subd. (c).) Courts have defined the term "armed" not only as the carrying of a firearm but also having one readily available. In People v. Garcia (1986) 183 Cal. App. 3d 335, the court found the defendant was armed when committing a residential burglary even though he temporarily left his loaded gun in the garage of the house he broke into. The court concluded the defendant was armed within the meaning of California Rules of Court, rule 421 because defendant's gun was readily available for defendant's use during the burglary. The court reasoned that "the fact that a burglar may temporarily divest himself of a weapon, leaving it ready to hand, does not make him any less 'armed.' 'A person is "armed" with a deadly weapon when he simply carries a weapon or has it available for use in either offense or defense.'" " (Garcia, supra, at p. 350, emphasis original.) The Garcia court further explained that the defendant was not required to have the gun on his person because "'The desire of the Legislature to prevent death and injury as a result of the involvement of firearms in the commission of crime is manifest from the various provisions for increased punishment for crimes where firearms are in some way involved. The underlying intent of the Legislature is to deter persons from creating a potential for death or injury resulting from the very presence of a firearm at the scene of the crime. Thus there is aggravated punishment for a person who is armed with a deadly weapon even though no use is made of the weapon.' " (Garcia, supra, at p. 350, emphasis original.) The meaning of the arming phrase used in subdivision (a) has been interpreted as being identical to the meaning of the term "personally armed" as used in section 12022, subdivision (c). "Case law defining section 12022, subdivision (a)(1)'s term 'armed' permits a true finding where the weapon was not actually held by or on the defendant's person if the weapon was available for use should the need arise during the criminal activity." (People v. Gonzales (1992) 8 Cal.App.4th 1658, 1662.) However, the section 12022, subdivision (c) enhancement requires "proof the defendant personally had a firearm 'at the ready.'" (Gonzales, supra, at p. 1663.) In People v. Gonzales, supra, 8 Cal.App.4th 1658, the court imposed a section 12022, subdivision (c) enhancement based on the jury finding that the defendant was personally armed with a firearm while selling heroin. The defendant admitted firing his rifle at officers as they burst into his home but claimed that, due to previous robberies, he thought the officers were robbers. Therefore he kept his loaded rifle close at hand. The defendant in Gonzales challenged the arming enhancement on appeal, arguing that subdivision (c) differed from subdivision (a) in that subdivision (c) not merely required that he had a readily available firearm but also required evidence he had a firearm on his person during the narcotics sale, and there was no evidence of this. There was only evidence he had a firearm readily available for use. The Gonzales court rejected this argument, explaining that "Section 12022, subdivision (c), simply clarifies that its more severe enhancement may not be vicariously imposed upon a defendant because a coprincipal was armed. Stated otherwise, a true finding under section 12022, subdivision (c), requires proof the defendant personally had a firearm 'at the ready.'" (People v. Gonzales, supra, 8 Cal.App.4th at pp. 1662-1663.) In People v. Miley (1984) 158 Cal. App. 3d 25, the court reversed the section 12022, subdivision (a) enhancement, explaining that "A person is 'armed' within the meaning of section 12022, subdivision (a) when he carries a weapon as an instrument of offense or defense at the time of the commission of the felony." (Miley, supra, at p. 32.) In Miley the defendant was convicted of soliciting the murder of his wife and two step-daughters. At the time of soliciting the murders, the defendant delivered a gun to the individual he had solicited to commit the murders. In concluding the arming enhancement did not apply, the Miley court explained that the defendant was not carrying the gun for the purpose of committing the offense. Rather, he furnished the gun to another person to be used in committing the murder. The risk of harm to the projected victim of the crime or anyone else was not increased by the defendant's possession of the gun at the time of the solicitation offense. (People v. Miley, supra, 158 Cal. App. 3d at p. 32.) Relying on People v. Balbuena (1992) 11 Cal.App.4th 1136, the court in People v. Jackson (1995) 32 Cal.App.4th 411, reversed the section 12022, subdivision (a) arming enhancements to the defendant's sentences for sexual offenses. The court noted that "no reported decision has sustained an arming enhancement unless the evidence established the defendant was at least in the vicinity of, or in close proximity to, the weapon." (Jackson, supra, at p. 419.) The Jackson court noted that in People v. Balbuena, supra, 11 Cal.App.4th 1136, the court found there was insufficient evidence of the arming enhancement where the gun was concealed inside a latched suitcase approximately 12 feet away from the defendant. The Balbuena court concluded the gun was not within the defendant's ready access, nor was it loaded and ready for use. Also, there was no evidence connecting the gun to the commission of the drug offenses. "'The evidence tended to show defendant and his wife had been living in the house, keeping their belongings in suitcases and boxes. The gun, the jury could reasonably have found, was among those possessions. But gun ownership or possession, alone, does not constitute being armed in the commission of an offense.'" (People v. Jackson, supra, 32 Cal.App.4th at p. 421, quoting People v. Balbuena, supra, 11 Cal.App.4th at p. 1139.) In Jackson, the defendant's gun was located in a car a substantial distance away from where the defendant committed the various sexual offenses. The court concluded: "Evidence a gun was in a car two blocks away from where the crimes occurred is insufficient evidence of the presence of a firearm 'at the scene of the crime' (Reaves). Nor from this distance of two blocks was the gun 'available for use' as that phrase is defined where he could not reach it or have 'ready access' to the gun (Mendival)." (People v. Jackson, supra, 32 Cal.App.4th at p. 421.) The court in Jackson explained that "the purpose behind the sentence enhancement provisions for crimes where firearms are involved is to 'deter persons from creating the potential for death or injury resulting from the very presence of a firearm at the scene of the crime.' (People v. Reaves, supra, 42 Cal. App. 3d at p. 856.) However, this threat is appreciably diminished, if not removed, where access to a firearm is only a theoretical possibility. For this reason, as the foregoing authorities point out, to warrant the increased punishment for being armed with a firearm there must be some evidence the presence of the gun at the scene of the crime created an increased risk because it was within reach, handy or accessible to the defendant." (People v. Jackson, supra, 32 Cal.App.4th at p. 422.)