Bland

Penal Code section 12022 1 imposes an additional prison term for anyone “armed with a firearm in the commission” of a felony. The question we resolve here is this: is a defendant convicted of a possessory drug offense subject to this “arming” enhancement when the defendant possesses both drugs and a gun, and keeps them together, but is not present when the police seize them from the defendant’s house? The answer is: yes.

Possessory drug offenses are continuing crimes that extend throughout a defendant’s assertion of dominion and control over the drugs, even when the drugs are not in the defendant’s immediate physical presence. Therefore, when 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 had the firearm close at hand and thus available for immediate use to aid in the…

I agree with the majority that a person may be armed in the commission of a continuing drug offense at any time during the offense, not only at the time of arrest or search. To the extent my opinion for the Court of Appeal in People v. Balbuena (1992) 11 Cal.App.4th 1136 *1007 [ 14 Cal.Rptr.2d 640 ] appeared to suggest otherwise, the suggestion was inadvertent.

I also agree with the majority’s clear statement that imposition of an arming enhancement, at least for a firearm not carried on the person, requires proof of a facilitative link between the gun and the crime. Thus, as I understand the majority’s holding, a person who kept drugs or other contraband, such as stolen property, in his or her house and who, for unrelated purposes, also owned a firearm not situated so as to facilitate the possessory offense in any way, would not be subject to increased punishment under Penal Code section 12022. As the majority states: “[C]ontemporaneous possession of illegal drugs and a firearm will satisfy the statutory requirement of being ‘armed ... in the commission’ of felony drug possession only if the evidence shows a nexus or link between the firearm and the drugs.” (Maj. opn., ante, at…

Penal Code section 12022 [1] imposes an additional prison term for anyone "armed with a firearm in the commission" of a felony. The question we resolve here is this: is a defendant convicted of a possessory drug offense subject to this "arming" enhancement when the defendant possesses both drugs and a gun, and keeps them together, but is not present when the police seize them from the defendant's house? The answer is: yes.

Possessory drug offenses are continuing crimes that extend throughout a defendant's assertion of dominion and control over the drugs, even when the drugs are not in the defendant's immediate physical presence. Therefore, when 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 had the firearm close at hand and thus available for immediate use to…