People v. Sanchez

Filed 6/30/21 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, H047350 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. C1898343)

v.

GERMAN SANCHEZ,

Defendant and Appellant.

A jury found defendant German Sanchez guilty on two counts: possession of a controlled substance while armed with a loaded firearm, and carrying a loaded firearm in a vehicle. The trial court granted a three-year term of probation including four months in county jail. The police stopped Sanchez while he was driving a pickup truck with methamphetamine in the cab of the truck. In the open bed of the truck, police found a loaded .22-caliber rifle inside a bag that was partially covered by a board. Sanchez contends the evidence was insufficient to support the conviction for possession of a controlled substance while armed with a loaded firearm. He argues the evidence failed to prove the firearm was “available for immediate offensive or defensive use” as required under Health and Safety Code section 11370.1, subdivision (a). Based on the plain meaning of the term “immediate,” we hold the evidence was insufficient to support a finding that the firearm was available for immediate use because Sanchez could not have used it without exiting the cab of the truck, retrieving the bag from under the board in the truck bed, and taking the gun out of the bag. These actions

would have required too much delay for the gun to be “available for immediate offensive or defensive use” as defined by the statute. We will reverse the judgment. I. FACTUAL AND PROCEDURAL BACKGROUND A. Procedural Background The prosecution charged Sanchez with three counts: Count 1—possession of a short-barreled rifle or short-barreled shotgun (Pen. Code, § 33210); count 2—possession of a controlled substance while armed with a loaded firearm (Health & Saf., § 11370.1, subd. (a)); and count 3—carrying a loaded firearm in a vehicle (Pen. Code, § 25850, subd. (a)). The case proceeded to trial in May 2019. The jury found Sanchez not guilty on count 1, but guilty on counts 2 and 3. The trial court granted a three-year term of probation to include four months in county jail. B. Facts of the Offense The police stopped Sanchez while he was driving a truck with an obscured license plate and nonfunctioning brake lights. Officers found 0.55 grams of methamphetamine in the cab of the truck. In the open bed of the truck, the police saw a piece of cardboard or wooden board partially covering a plastic bag. The bag contained a .22-caliber Winchester rifle. The officer who found the rifle testified that he could easily reach into the bed and grab the bag while standing next to the truck. He testified that he was five feet and nine inches tall, and he estimated that Sanchez was about five feet and six or seven inches tall. There was a round of ammunition in the rifle, and although the gun was rusted, a criminalist determined it was operational and could be fired. II. DISCUSSION Sanchez contends the evidence was insufficient to support his conviction for possession of a controlled substance while armed with a firearm. He argues the evidence