People v. Balbuena

[1138]

Opinion

WERDEGAR, J.

Ramiro Zepeda Balbuena was convicted of two violations of Health and Safety Code section 11351, possession of heroin for sale (count one) and possession of cocaine for sale (count two). As to both counts, the jury also found defendant was personally armed with a firearm in the commission of the crime. (Pen. Code, § 12022, subd. (c)). Defendant was sentenced to the middle term of three years on count one, with a three-year arming enhancement. On count two, the court imposed a concurrent term of three years and stayed the enhancement. We reverse the arming enhancement and remand for resentencing.

Facts

San Pablo police executed a search warrant on a house at approximately 8:45 a.m. They knocked on the front door and announced their presence several times, but eventually forced entry when they received no response. Between 30 seconds and 1 minute elapsed from the first announcement to entry; during that time, an officer heard someone walking inside the house.

The entry door opened onto the living room of the house. Officers found defendant and his wife lying on the floor several feet in front of them, near a door to the kitchen, which was to the left of the officers as they entered. On the officers’ right were three suitcases, standing in a row on the floor. The suitcases were latched, but not locked. About 10 or 12 feet, and an extended sofabed, separated defendant from the suitcases.

All of the suitcases contained clothing, including male clothing of defendant’s size. In one, there was also found cash and identification for defendant. In another was found narcotics and a wedding photograph of defendant and his wife. In the third, concealed among the clothing, was found an unloaded pistol. There was no evidence any ammunition was found in the suitcases or elsewhere in the house.

The living room did not have a closet; defendant testified he and his wife slept in that room and kept their belongings in suitcases and boxes. In the bedroom, police found defendant’s brother, as well as clothing that would fit him but not defendant. In the kitchen cabinet, police found telephone bills for the house telephone in the name of Antonio Coria; defendant used that name during his arrest, and police found false identification in that name with defendant’s photograph.