Pena

Health and Safety Code section 11550, subdivision (e) (section 11550(e)) imposes an additional penalty for anyone under the influence of specified controlled substances while in the “immediate personal possession” of a loaded, operable firearm, At issue is whether the statute applies when the firearm was inside a pouch on the passenger side of an unlocked toolbox in the bed of the pickup truck appellant was driving. We conclude it does not and will reverse appellant’s conviction for violation of section 11550(e). In all other respects the judgment will be affirmed.

Facts

On September 1, 1997, about 10:00 a.m., Tulare Police Officer Brian Haney saw appellant Kelly Dion. Peña, whom he knew to be unlicensed, driving a pickup truck with passenger Richele Reeder. Peña drove into a hotel parking lot; Haney pulled in behind him. Peña began walking away; Haney told him to return to the truck. Peña was nervous, fidgety and sweating profusely. Haney asked Peña if he had any weapons. Peña said he had a gun. Haney detained Peña and Reeder while he and another officer searched the truck.

A toolbox extended the width of the truck bed behind the cab. The box had two hinged lids, one…