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Possession of Controlled Substance While Armed?
In the context of Health and Safety Code § 11370.1, which prohibits the possession of certain controlled substances “while armed with a loaded, operable firearm,” one can imagine this violation as a person having meth in one pocket and a loaded pistol tucked into one’s waistband.
What if the facts involve a person driving a pick-up truck, with meth near the driver’s seat inside the truck and a loaded firearm in the bed of the truck in plastic bag, under a board, out of reach to the driver? Do such facts support a conviction for violation of 11370.1?
Brief Synopsis: In interpreting Health & Safety Code § 11370.1, which prohibits the possession of a controlled substance “while armed,” the prosecution must show that the person has the firearm “for immediate offensive or defensive use,” so a conviction was reversed for a person driving a pickup with meth in the cab, but with a loaded rifle in the bed of the truck under a board and wrapped in a bag.
A Santa Clara jury found German Sanchez guilty of violating 11370.1 on such facts and he appealed to the Sixth Appellate District Court in San Jose. The judge then placed Sanchez on three years of formal probation including four months in county jail.
Police stopped Sanchez while he was driving a truck with an obscured license plate and nonfunctioning brake lights. Officers then found 0.55 grams of methamphetamine in the cab of the truck.
In the open bed of the truck, police saw a piece of cardboard or wooden board partially covering a plastic bag. The bag contained a .22-caliber Winchester rifle. The officer who found the rifle testified that he could easily reach into the bed and grab the bag while standing next to the truck. He testified that he was five feet and nine inches tall and he estimated that Sanchez was five feet and six or seven inches tall. There was a round of ammunition in the rifle and although the rifle was rusted, a criminalist determined it was operational and could be fired.
Sanchez appealed, contending the evidence was insufficient to support his conviction for possession of a controlled substance while armed with a firearm because the evidence did not show the firearm was available for immediate defensive or offensive use because for him to access the firearm, he would have to get out of the truck, reach into the bed, lift the board, and take the rifle out of the bag before being able to use it.
Court of Appeal Sixth Appellate District San JoseThe Sixth Appellate District agreed, noting that § 11370.1 defines “armed with” as meaning “having available for immediate offensive or defensive use.”
It then explained that the sufficiency of the evidence standard, which Sanchez argued should be applied, obligates the appellate court to “review the whole record to determine whether any rational trier of fact could have found the essential elements of the crime or special circumstances beyond a reasonable doubt.” People v. Zamudio (2008) 43 Cal.4th 327, 357, citing People v. Maury (2003) 30 Cal. 4th 342, 403.
The essential elements must be shown to exist in the record by substantial evidence such that “a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” Id. The substantial evidence must be “reasonable, credible and of solid value.” Id.
“A reversal for insufficient evidence ‘is unwarranted unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support ‘ the jury’s verdict.” Id. The standard is the same under both the California Constitution and the federal Constitution. People v. Jimenez (2019) 35 Cal. App. 5th 373, 392.
Sanchez’s appeal hinged on the word “immediate.” He argued that “immediate” requires that there be no delay or intervening lapse of time before the gun can be used. He relies upon common dictionary definitions of the word. See Wasatch Property Management v. Degrate (2005) 35 Cal. 4th 1111, 1121-1122 (to ascertain the ordinary, usual meaning of a word, courts appropriately refer to the dictionary definition).
For example, Black’s Law Dictionary defines “immediate” in relevant part, “1. Occurring without delay; instant; 2. Not separated by other persons or things.” Black’s Law Dict. (Abridged, 11th ed. 2009), p. 897, col 2). The online Oxford English Dictionary defines “immediate” in relevant part, “1. Said of a person or thing in its relation to another: That has no intermediary or intervening member, medium or agent; that is in actual contact or direct personal relation. . . 3a. Having no person, thing, or space intervening, in place, order, or succession; standing or coming nearest or next; proximate, nearest, next; close, near. In reference to place often used loosely of a distance which is treated as of no account.” Citation omitted.
Sanchez contended the rifle was therefore not available for “immediate” use because the actions required for him to use the gun would entail some delay or lapse of time.
The Sixth Appellate District Agreed and reversed the conviction on remanded the case for resentencing.
We bring this summary to the reader’s attention to show how being in possession of a controlled substance while armed with a firearm is not a charge to view with resignation. It is a charge to challenge on its facts, as Mr. Sanchez did here and was vindicated.
The citation for the Sixth Appellate District Court ruling discussed above is People v. German Sanchez (6th App. Dist., 2021) 66 Cal. App. 5th 14, 280 Cal. Rptr. 3d 716.
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