Heath

Health and Safety Code section 11370.1, subdivision (a) (hereafter section 11370.1(a)) provides, in pertinent part, “every person who unlawfully possesses any amount of a substance containing cocaine base, a substance containing cocaine, ... a substance containing methamphetamine . . . while armed with a loaded, operable firearm is guilty of a felony punishable by imprisonment in the state prison for two, three, or four years. [][] As used in this subdivision, ‘armed with’ means having available for immediate offensive or defensive use.” (Italics added.) In this appeal, Darvin Heath raises an issue of first impression: Is knowledge that the firearm is loaded and operable an element of this offense? We conclude it is not.

Background

About 9:00 p.m. on October 5, 2003, Pittsburg Police Officer Anthony Bustillos was on patrol when he saw a Toyota driving with no front or rear lights. Bustillos activated his patrol car’s overhead lights and siren to effect a traffic stop, but the vehicle did not stop. Instead, the driver, appellant, stuck his arm out the window and made a waving motion, which Bustillos interpreted as a request that Bustillos pull alongside him. Eventually…