Overten

Maurice Overten appeals a judgment entered after a jury convicted him of first degree residential robbery (Pen. Code, §§ 211, 212.5, subd. (a)) and found true the special allegation he was armed with a firearm during the commission of the offense (§ 12022, subd. (a)(1) ). He contends the true finding to the firearm enhancement should be set aside because the prosecutor’s closing argument prejudicially misled the jury concerning the knowledge requirement for violating section 12022, subdivision (a)(1) as an aider and abettor and that the jury instruction defining vicarious arming with a firearm failed to state Overten had to know of the presence of the firearm in order for the enhancement allegation to be found true. He further contends the trial court erroneously denied his motion to suppress evidence. As we shall explain, we conclude there is no scienter requirement for an aider or abettor to be found vicariously armed with a firearm under section 12022, subdivision (a)(1) and that Overten’s motion to suppress was properly denied. Accordingly, we affirm the judgment.

Factual and Procedural Background

On January 18, 1993, at approximately 8 p.m., two men wearing…