California Court of Appeal Sep 25, 2015 No. E062183Unpublished
Filed 9/25/15 P. v. Perez CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E062183
v. (Super.Ct.No. SWF014363)
STEVEN BELLA PEREZ, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge.
Affirmed.
Patrick Morgan Ford, under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D. Harris, Attorney General, Julie L. Garland, Senior Assistant Attorney
General, and Arlene A. Sevidal and Christen Somerville, Deputy Attorneys General, for
Plaintiff and Respondent.
1
Defendant Steven Bella Perez seeks resentencing under Proposition 36. The trial
court ruled that he was ineligible because he was armed during the commission of the
offense for which he was imprisoned; at his trial, in 2006, the jury found a personal
arming enhancement to be true. (Pen. Code, § 12022, subd. (c).)
Defendant appeals, contending that there was insufficient evidence to support the
Div. Two].) Moreover, as we will discuss in more detail below, anyone who is armed “in
the commission” of a crime for purposes of a personal arming enhancement (Pen. Code,
§ 12022, subd. (c)) is necessarily also armed “[d]uring the commission” of the crime for
purposes of Proposition 36 (Pen. Code, § 667, subd. (e)(2)(C)(iii)) (though perhaps not
vice versa).
Defendant’s only contrary argument is that in People v. Bland (1995) 10 Cal.4th
991, the Supreme Court reversed a jury’s finding that the defendant was armed based on
insufficient evidence; he concludes that here, if there was insufficient evidence of arming,
we must disregard the jury’s finding. Bland, however, was a direct appeal from the
judgment on the jury’s verdict. (Id. at p. 996.) Here, by contrast, the judgment on the
jury’s verdict became final long ago. Thus, this is an impermissible collateral attack on a
final judgment. (People v. Barlow (1980) 103 Cal.App.3d 351, 360-361 [Fourth Dist.,
Div. Two]; People v. Glaser (1965) 238 Cal.App.2d 819, 820-821, 834 [insufficiency of
the evidence cannot be raised on collateral attack], disapproved on other grounds in
People v. Barnum (2003) 29 Cal.4th 1210, 1219, fn. 1, 1221.)
Separately and alternatively, there was sufficient evidence that defendant was
armed. “[A]rming . . . does not require that a defendant utilize a firearm or even carry
one on the body. A defendant is armed if the defendant has the specified weapon
available for use, either offensively or defensively. [Citations.] . . . ‘[I]t is the availability
5
— the ready access — of the weapon that constitutes arming.’ [Citation.]” (People v.
Bland, supra, 10 Cal.4th at p. 997, italics omitted.)
In People v. Delgadillo (2005) 132 Cal.App.4th 1570 [Fourth Dist., Div. Two], the
defendant kept ingredients and equipment for manufacturing methamphetamine in
vehicles parked outside his house. (Id. at pp. 1572-1573.) Inside his house, in a bedroom
closet and also in the headboard of a bed, he kept several firearms. (Id. at p. 1573.) He
was arrested while driving one of the vehicles away from his house. (Id. at p. 1572.) We
held that there was sufficient evidence that the defendant was personally armed in the
commission of methamphetamine manufacturing: “Because the firearms were in
defendant’s bedroom along with a significant sum of money, and in close proximity to
cars in which defendant and his colleagues stored lab equipment and raw material, those
firearms were available to defendant to use offensively or defensively at any time during
the manufacturing process.” (Id. at p. 1575.)
Here, similarly, defendant was driving the car; the gun was only a few feet away.
Defendant argues that, to use the gun, he would have had to get out of the car, open the
hood, and take the gun out of the sock. In Delgadillo, however, the defendant would
have had to go from the vehicles, into his house, and into a bedroom, and retrieve a gun
from the closet or from the headboard of the bed; the degree of availability in both cases
is similar. Also, here, unlike in Delgadillo, the gun was with the drugs. Thus, if
defendant availed himself of the drugs, the gun would be nearby, and vice versa.
6
Defendant argues that, for him to be armed specifically during the commission of
the crime (as opposed to merely armed in general), there must be a “facilitative nexus”
between the arming and the possession and transportation of the drugs.
A personal arming enhancement requires that the defendant be armed “in the
commission” of the crime. (Pen. Code, § 12022, subd. (c), italics added.) This has been
held to entail “a ‘facilitative nexus’ between the drugs and the gun.” (People v. Bland,
supra, 10 Cal.4th at p. 1002.)
By contrast, a defendant is ineligible for resentencing under Proposition 36 if he or
she was armed “[d]uring the commission of the crime. (Pen. Code, § 667, subd.
(e)(2)(C)(iii), italics added.) We and other courts have held that this has a different
meaning than “in the commission,” and in particular, that it requires only a “temporal
nexus.” (E.g., People v. Hicks (2014) 231 Cal.App.4th 275, 284; People v. Brimmer,
supra, 230 Cal.App.4th at pp. 797-799 [Fourth Dist., Div. Two].)
Defendant asserts that these cases were “wrongly decided” and that a facilitative
nexus is required. We need not decide this issue. Even if he is correct, “[e]vidence that a
firearm is kept in close proximity to illegal drugs satisfies this ‘facilitative nexus’
requirement: a firearm’s presence near a drug cache gives rise to the inference that the
person in possession of the drugs kept the weapon close at hand for ‘ready access’ to aid
in the drug offense.” (People v. Bland, supra, 10 Cal.4th at p. 1002, capitalization
altered.) Here, as already noted, the gun was with the drugs. This was sufficient to
satisfy either requirement.
7
We therefore conclude that the trial court properly ruled that defendant was not
eligible for resentencing.
IV
DISPOSITION
The order appealed from is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS RAMIREZ P. J.
We concur:
MILLER J.
CODRINGTON J.
8
AI Brief
AI-generated · verify before citing
Holding. The court held that a defendant cannot collaterally attack a final judgment's personal arming enhancement finding in a Proposition 36 resentencing proceeding, and alternatively, that sufficient evidence supported the finding that the defendant was armed.
Issues
Whether a defendant may collaterally attack a jury's prior finding of a personal arming enhancement during a Proposition 36 resentencing proceeding.
Whether there was sufficient evidence to support the jury's finding that the defendant was personally armed during the commission of the offenses.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“We will hold that he cannot collaterally attack the personal arming finding in this proceeding.”
“Here, the jury specifically found that defendant was personally armed in the commission of count 1 and count 2. This finding was conclusive in the resentencing proceeding.”
“Separately and alternatively, there was sufficient evidence that defendant was armed.”