People v. Superior Court (Pomilia)

—Penal Code section 12022, subdivision (c) provides that persons committing specified narcotics offenses who are “personally armed” shall have a three-, four-, or five-year enhancement to the term of imprisonment otherwise ordered. Kenneth Martin Pomilia was charged with an enumerated offense and this enhancement was alleged. On Pomilia’s motion the enhancement was struck in proceedings below, and the People sought mandate to have the enhancing allegation restored before trial. We issue the writ.

Question Presented

We must here determine whether the Legislature intended the phrase “personally armed” to mean having arms upon the person, as contended by Pomilia, or whether “personally” is used to distinguish personal from vicarious liability for being armed, as petitioner contends and as is set forth in related sections. In other words, does “personally” qualify the act, or the actor? If we find the Legislature intended the latter, we must also determine whether Pomilia’s conduct, as set forth in this record, falls within the statute’s reach.

Factual Background

On the evening of June 19, 1991, police officers went to Pomilia’s residence, acting upon information that a…