Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC757701.
Duffy, J.
Defendant Anthony Untalan Taison was arrested in February 2007 after the police executed a search warrant at his residence and located methamphetamine, a firearm, drug paraphernalia, and other indicia of an illegal drug sales operation. He was charged with possession for sale of a controlled substance (Health & Saf. Code, § 11378); being a felon in possession of a firearm (Pen. Code, § 12021. subd. (a)(1)); possession of controlled substance paraphernalia (Health & Saf. Code, § 11364); and being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a)). The information also charged that at the time defendant committed the methamphetamine possession for sale offense, he was personally armed with a firearm (§ 12022, subd. (c); hereafter § 12022(c)), and that he possessed for sale 57 grams or more of a substance containing methamphetamine (§ 1203.073, subd. (b)(2)). He was convicted by a jury of all counts; the jury also found both special allegations true. Defendant was sentenced to a total prison term of five years (two years for the Health & Saf. Code § 11378 count and three years for the § 12022(c) firearm enhancement).
All further statutory references are to the Penal Code unless otherwise stated.
On appeal, defendant claims that the court gave an erroneous instruction concerning the firearm enhancement. Specifically, he argues that the court had a duty to advise the jury sua sponte that there must be a “facilitative nexus” between defendant’s possession of the gun and his possession for sale of the methamphetamine. Defendant also asserts that the court was required to stay the sentence on the two-year concurrent term imposed for being a felon in possession of a firearm (§ 12021, subd. (a)(1)) pursuant to section 654, because that offense and the arming enhancement (§ 12022(c)) arose out of a single, indivisible transaction.
We conclude that the instruction given—that was based upon the applicable CALCRIM instruction (Judicial Council of Cal. Crim. Jury Instns. (2007) CALCRIM No. 3131; hereafter, CALCRIM No. 3131)—did not state that there must be a facilitative nexus between the possession of the firearm and the underlying offense in order to find the section 12022(c) enhancement true. But we need not decide whether the court had a sua sponte duty to modify that instruction under the facts presented here because any assumed error was harmless. We hold further that the court erred in failing to stay the sentence for the section 12021, subdivision (a)(1) conviction, pursuant to section 654. We will order that the judgment be modified to stay the two-year concurrent sentence imposed on the conviction under section 12021, subdivision (a)(1) and will affirm the judgment as modified.
We resolve factual conflicts in support of the verdict. (People v. Holt (1997) 15 Cal.4th 619, 667-668.)
I. Prosecution Evidence
Officer David Lee of the San Jose Police Department was the investigating officer who conducted a search pursuant to a search warrant of 48 South 20th Street in San Jose at approximately 9:30 a.m. on February 10, 2007. The search warrant identified two individuals, Tony and Bill. Nine officers (including Officer Lee and Officer Jose Martinez) and one sergeant participated in the search.
The South 20th Street property consisted of a house and a detached garage in the rear of the property (cottage) that had been converted into two separate rooms. The cottage was the primary focus of the search. The door to the cottage had a latch permitting the cottage to be secured by padlock when it was unoccupied. The door was unlocked and slightly ajar. After knocking and announcing their presence with a warrant to search the premises, Officer Lee and other officers entered the cottage.
As they entered the cottage, Officer Lee got “a slight glance” of a person ducking into the back room of the cottage. Defendant was standing behind a large gaming table in the front room. He was not moving and did not say anything. After Officer Lee secured defendant with handcuffs, he and other officers pursued the man who had gone into the back room.
The door to the back room was locked and the occupant did not respond to the officers’ requests for entry. There was a video camera mounted on the wall next to that door; it was pointed toward the main entrance of the cottage “[a]nd it looked like it pretty much covered the entire room from the angle it was focused at.” (The feed from the camera was to a monitor in the back room.) Having received no response and Officer Lee believing that the occupant was well aware of the officers’ presence, one officer kicked the door open. The individual, whom the officers later identified as William Indalecio (Indalecio), was standing in the middle of the room.
There was a twin bed along the south (right-hand) wall as the police entered the back room. Along the west wall (immediately to the right upon entering the room) there was a cabinet that had shelves and two small drawers underneath; there was a door that enclosed the shelves. Within that cabinet, the police found a metal briefcase in the shelf portion above the drawers. Inside the briefcase was a small digital scale; approximately 100 unused Ziplock baggies; two playing cards “folded and shaped like scoopers”; a spiral notebook “that had what appeared to be hundreds of transactions consistent with drug transactions listed as well as a running total of drugs being sold, the price they were being sold[,] volume[,] and [purchasers]”; and four Ziplock baggies, each containing methamphetamine determined to have a total weight of 67.7 grams. Also located in that cabinet were a stack of PG&E bills addressed to defendant and a plastic cup that had “Anthony Senior” written on it and that contained two bags of marijuana. The cabinet also contained a loose stack of currency in various denominations adding up to $2,980.
Adjacent to that cabinet on the west wall of the back room was an entertainment console with a television, stereo, video monitor, and VCR. Adjacent to the entertainment console (furthest from the entrance) was another cabinet, similar in style to the first cabinet but without a door enclosing the shelf. In the second cabinet (closest to the bed), the police found a personal letter to Indalecio in the top drawer, and a .38 unloaded semiautomatic Davis Industry handgun in the bottom drawer. The gun was in a holster and a magazine of ammunition was also in the holster. The police also found men’s clothing in the back room. According to Officer Lee, Indalecio and defendant were “both about the same size.” The police also found a wallet belonging to Indalecio in an unspecified location of the back room.
The front room (where the police encountered defendant and the fleeing Indalecio) contained the game table in the center of the room, a couple of stools, a file cabinet, and deep shelves that outlined all of the walls. A search of defendant’s person disclosed a set of keys and a glass meth pipe that had methamphetamine caked to the interior surface. On the east wall shelf directly next to where defendant was standing (within arm’s reach), the police found a glass Pyrex measuring cup that had methamphetamine caked to the side, a glass beaker, and a Ziplock baggie containing seven grams of methamphetamine.
During a search of the main house, the police found a safe inside the closet of one of the bedrooms. Based upon a number of bills and other mail addressed to defendant, the police determined that it was defendant’s bedroom. The police were able to open the safe from one of the keys on the key ring seized during the search of defendant’s person. The safe contained numerous articles of men’s and women’s jewelry, coins, and money ($7,923). A brown wallet that contained defendant’s social security card and a DMV instruction permit was also found in the safe. There was a scanner located in the bedroom as well; it was on and scanning different radio frequencies assigned to the San Jose Police Department. Another, larger, scanner was found in the living room.
During the execution of the search warrant, Officer Lee had the opportunity to interact with both defendant and Indalecio. During the four or five hours Officer Lee was in contact with him that day, defendant was sweating, had fluttering eyes, and had an elevated pulse (i.e., in excess of 105 beats per minute). Officer Lee concluded that defendant was under the influence of a controlled substance (a stimulant).
The parties entered into a stipulation presented to the jury that there was methamphetamine in defendant’s blood. Based upon his observations of Indalecio, Officer Lee concluded that he was similarly under the influence of a stimulant.
Detective Ellen Washburn of the San Jose Police Department testified as an expert on the subject of possession of amphetamine for sale. Based upon her education and training, she was able to recognize various indicia of controlled substance sales, including packaging materials, scales, measuring devices, scoopers, the use of surveillance cameras, house fortification systems, “pay-owe sheets” or ledgers reflecting drug transactions, the presence of large amounts of cash, and the presence of jewelry or electronics that may have been taken in trade for drugs. Based upon the following materials found during the execution of the search warrant at the South 20th Street property, Detective Washburn concluded that the seized methamphetamine was possessed for the purpose of sales: the amounts of methamphetamine present, including the fact that the amounts in the Ziplock baggies were not quantities common for packaged narcotics sold on the street; the packaging materials; the scoopers; the presence of a gun within three feet of the methamphetamine; the existence of nearly $3,000 in cash in various denominations in the metal briefcase; the presence of a security camera and a police scanner; the presence of a safe containing approximately $13,000 in cash in various denominations and a large quantity of jewelry; and the presence of a ledger showing apparent drug transactions that was “by far the most thorough [she had] ever seen.”
We note a discrepancy concerning the amount of cash found in the safe. Officer Lee testified that there was $7,923 in the safe, while Detective Washburn’s opinion that the methamphetamine was possessed for sale was based in part upon the presence of approximately $13,000 in the safe. That discrepancy is immaterial to the appellate issues before us.
II. Defense Evidence
Defendant’s common law wife, Julia Indalecio (Julia), testified that she and her husband leased the South 20th Street property. As of February 2007, there were a total of seven adults who lived at the property, plus her five children. One of the adults, Julia’s cousin, Indalecio, lived in the informal bedroom in the cottage. Defendant was frequently in the cottage because the tools he used to work on cars were located there. Julia saw defendant frequently in the front room where his tools were located. He would go in the back room, but before doing so, he would “ask permission [from] or at least acknowledge[]” Indalecio.
Her husband did not have a bank account; all of the money that they received was placed in a safe at their house. Defendant collected coins and jewelry. He received a settlement from a personal injury lawsuit in 2004. Julia admitted to having been convicted in the past of several misdemeanors (several petty theft convictions, auto theft, and welfare fraud) and felony possession of methamphetamine.
Defense counsel introduced a letter from a law firm transmitting to defendant in December 2004 a settlement check for $94,010.58. The parties stipulated that defendant utilized a third party to cash the settlement check.
The parties entered into a stipulation read by defense counsel to the jury concerning Indalecio. He pleaded no contest in May 2007 to charges of possession for sale of more than 57 grams of methamphetamine while being personally armed with a .38 caliber pistol; possession of controlled substance paraphernalia; and being under the influence of methamphetamine.
PROCEDURAL BACKGROUND
Defendant was charged by information with four counts. He was charged with possession for sale of a controlled substance, i.e., methamphetamine, a felony (Health & Saf. Code, § 11378; count 1); purchasing, receiving, and possession of a firearm by a felon, a felony (§ 12021. subd. (a)(1); count 2); possession of controlled substance paraphernalia, a misdemeanor (Health & Saf. Code, § 11364; count 3); and using or being under the influence of a controlled substance, a misdemeanor (Health & Saf. Code, § 11550, subd. (a); count 4). The information contained the further allegations that at the time defendant committed the count 1 offense, he was personally armed with a firearm within the meaning of section 12022(c); and that he possessed for sale 57 grams or more of a substance containing methamphetamine within the meaning of section 1203.073, subdivision (b)(2).
After a jury trial, defendant was found guilty on June 25, 2007, as to all four counts, and the jury found the arming and quantity of controlled substance allegations true as to count 1.
On July 20, 2007, the court sentenced defendant to the midterm of two years on count 1, together with a consecutive three-year term on the section 12022(c) arming enhancement, and to concurrent terms of two years as to count 2 and six months each as to counts 3 and 4, for a prison total term of five years. Defendant filed a timely notice of appeal.
DISCUSSION
I. Issues On Appeal
Defendant makes the following contentions:
1. The trial court committed instructional error by failing to advise the jury that in order to find true the arming enhancement under section 12022(c), the prosecution must prove that the defendant’s possession of the firearm had a “facilitative nexus” connecting it to the drug offense. That instructional error was prejudicial because it cannot be established beyond a reasonable doubt that the error did not contribute to the jury’s true finding on the enhancement.
2. The two-year concurrent sentence for the conviction of being a felon in possession of a firearm (§12021. subd. (a)(1); count 2) should have been stayed pursuant to section 654 because that offense and the arming enhancement (§ 12022(c)) arose out of a single, indivisible transaction.
We address both of these appellate claims below.
II. Claimed Instructional Error for Arming Enhancement
A. Contentions
Defendant contends that the trial court gave an erroneous instruction to the jury concerning the arming enhancement. He argues that as the Supreme Court explained in People v. Bland (1995) 10 Cal.4th 991, 1002 (Bland), “contemporaneous possession of illegal drugs and a firearm will satisfy the statutory requirement of being ‘armed with a firearm in the commission’ of felony drug possession only if the evidence shows a nexus or link between the firearm and the drugs.” Since the court (defendant argues) did not advise the jury that it needed to find that there was a facilitative nexus between the possession of the firearm and the underlying drug offense, the instruction concerning section 12022(c) was deficient. Because such instructional error was of federal constitutional dimension, it is governed by the Chapman standard of prejudice. Defendant argues that because it cannot be said beyond a reasonable doubt that the instructional error did not contribute to the jury’s verdict, the jury’s true finding on the enhancement must be reversed.
Chapman v. California (1967) 386 U.S. 18.
The Attorney General argues that because defendant did not seek a clarification or an amplification of the arming enhancement instruction from the trial court, he forfeited any claim of error. Further, he argues that, contrary to defendant’s assertions, “facilitative nexus is neither an element nor an aspect of an element of [a] section 12022” enhancement. Bland, supra, 10 Cal.4th 991 (the Attorney General asserts) does not require that an instruction be given that there be a facilitative nexus between the firearm possession and the drug offense. Lastly, assuming that there was any instructional error, it was harmless.
B. Existence of Instructional Error
1. Applicable law
Section 12022(c) provides: “[A]ny person who is personally armed with a firearm in the commission of a violation or attempted violation of Section 11351, 11351.5, 11352, 11366.5, 11366.6, 11378, 11378.5, 11379, 11379.5, or 11379.6 of the Health and Safety Code, shall be punished by an additional and consecutive term of imprisonment in the state prison for three, four, or five years.” That subdivision thus provides for a greater punishment than subdivision (a)(1), which provides more broadly for a one-year additional sentence for personal arming in the commission of felonies generally.
In Bland, supra, 10 Cal.4th at pages 995-996, the defendant was convicted of two counts of possession of cocaine base for sale, and the jury found true the special allegation that he was armed with an assault weapon in the commission one of the underlying drug offenses within the meaning of section 12022, subdivision (a)(2). At the time the police officers located the rock cocaine in the closet of the defendant’s bedroom and “a cache of unloaded firearms, including an assault weapon” in the same bedroom under a bed, the defendant was outside in a police car. (Bland, supra, at p. 995.) The Court of Appeal struck the arming enhancement, concluding that because the defendant was not in close proximity to the drugs and weapons when the police found them, he was not personally armed within the meaning of section 12022, subdivision (a)(2). (Bland, supra, at p. 996.) The Supreme Court reversed the Court of Appeal’s decision striking the enhancement, concluding that because the underlying crime of felony drug possession is a continuing offense (id. at p. 999), “it is immaterial whether [the] defendant was present when police seized the assault rifle together with the cache of crack cocaine, so long as he had the firearm available for use in furtherance of the drug offense at any time during his possession of the drugs.” (Id. at p. 1000.)
“Except as provided in subdivision (c), and notwithstanding subdivision (d), if the firearm is an assault weapon, as defined in Section 12276 or Section 12276.1, or a machinegun, as defined in Section 12200, or a .50 BMG rifle, as defined in Section 12278, the additional and consecutive term described in this subdivision shall be three years whether or not the arming is an element of the offense of which the person was convicted. The additional term provided in this paragraph shall apply to any person who is a principal in the commission of a felony or attempted felony if one or more of the principals is armed with an assault weapon or machinegun, or a .50 BMG rifle, whether or not the person is personally armed with an assault weapon or machinegun, or a .50 BMG rifle.” (§ 12022, subd. (a)(2).)
In the course of its opinion in Bland, our high court explained that the elements of the arming enhancement, section 12022, subdivision (a), are that the defendant (1) be armed (2) in the commission of the underlying offense. As to the first element, “[a] defendant is armed if the defendant has the specified weapon available for use, either offensively or defensively.” (Bland, supra, 10 Cal.4th at p. 997.) The weapon need not be on the defendant’s person. (Ibid.) Nor must the weapon even be loaded. (Id. at p. 1005; see also People v. Nelums (1982) 31 Cal.3d 355, 359-360 [§ 12022 applies to arming with inoperable weapons].)
The fact that Bland discusses the elements of the arming enhancement under subdivision (a) of section 12022, while we are concerned here with the arming enhancement under subdivision (c), is a distinction without a difference. Subdivision (a) and subdivision (c) use the same “armed . . . in the commission of” language. Further, the term “armed” has been interpreted identically under both subdivision (a) and subdivision (c) of Penal Code section 12022. (People v. Delgadillo (2005) 132 Cal.App.4th 1570, 1574.)
The Supreme Court explained that the second element of the arming enhancement—at issue in this case—has both temporal and crime nexus requirements: “[B]y specifying that the added penalty applies only if the defendant is armed with a firearm ‘in the commission’ of the felony offense, section 12022 implicitly requires both that the ‘arming’ take place during the underlying crime and that it have some ‘facilitative nexus’ to that offense.” (Bland, supra, 10 Cal.4th at p. 1002.) In so concluding that the “in the commission of” language of the statute requires that “the firearm [be] available for use in furtherance of the drug offense” (id. at p. 1000, italics added), the court referred to federal court decisions interpreting the federal counterpart to California’s arming enhancement law: “Of course, contemporaneous possession of illegal drugs and a firearm will satisfy the statutory requirement of being ‘armed with a firearm in the commission’ of felony drug possession only if the evidence shows a nexus or link between the firearm and the drugs. The federal courts, in interpreting the federal counterpart to California’s weapons enhancement law (18 U.S.C. § 924 (c)(1)), have described this link as a “facilitative nexus” between the drugs and the gun. (See United States v. Paulino (1st Cir. 1994) 13 F.3d 20, 26.) Under federal law, which imposes specified prison terms for using or carrying a firearm ‘ “during and in relation to” ’ a crime of drug trafficking, ‘the firearm must have some purpose or effect with respect to the drug trafficking crime; its presence or involvement cannot be the result of accident or coincidence.’ (Smith v. United States (1993) 508 U.S. 223, 238., italics added.) So too in California.” (Id. at p. 1002.)
The Supreme Court has subsequently reiterated Bland’s holding that the arming under section 12022 must have occurred both during the commission of the underlying crime and have a facilitative nexus to the crime. (In re Tameka C. (2000)22 Cal.4th 190, 197.) And, most recently, in People v. Pitto (2008) 43 Cal.4th 228 (Pitto), in refusing to overrule Bland, the court agreed with the defendant’s contention that “Bland appears to have adopted a ‘facilitative nexus’ test and embraced a ‘purpose and effect’ standard.” (Id. at p. 239.)
2. Discussion of instructional error claim
Defendant here contends that the court erred when it failed to instruct that the prosecution, in establishing the arming allegation under section 12022(c), was required to show a facilitative nexus between the possession of the weapon and the underlying drug possession offense. The court—consistently with the language of CALCRIM No. 3131—advised the jury that if it found defendant guilty of the count 1 offense, it was required to “then decide whether the People have proved the additional allegation that the defendant was personally armed with a firearm during the commission of that crime in violation of Penal Code section 12022(c).” The court also apprised the jury—in conformity with CALCRIM No. 3131—of the definition of a firearm and that arming involved the person knowingly carrying or having available the firearm for use either offensively or defensively.
Defendant admittedly neither objected to the court’s instructions, nor proposed alternative language addressing the facilitative nexus issue. The Attorney General argues that the claim is forfeited. But this contention is founded on the principle that a challenge to an instruction correct in the law is too general or is incomplete is forfeited if the party does not propose clarifying or amplifying language to the trial court. (People v. Hart (1999) 20 Cal.4th 546, 622.) Here, defendant contends that the arming enhancement instruction was not a correct statement of the law because it omitted the facilitative nexus subcomponent required under Bland, supra, 10 Cal.4th 991. Assuming that the instruction was incorrect, such a claim was not forfeited under the principle that the trial court is obligated, irrespective of a request, to instruct on general legal principles applicable to the case, and must instruct “upon every theory of the case supported by substantial evidence, including defenses that are not inconsistent with the defendant’s theory of the case. [Citations.]” (People v. Montoya (1994) 7 Cal.4th 1027, 1047; see also § 1259 [“The appellate court may also review any instruction given . . . even though no objection was made thereto in the lower court, if the substantial rights of the defendant were affected thereby”].)
The arming enhancement instruction provided to the jury read as follows: “If you find the defendant guilty of the crime charged in count one, you must then decide whether the People have proved the additional allegation that the defendant was personally armed with a firearm during the commission of that crime in violation of Penal Code section 12022(c). [¶] A firearm is any device designed to be used as a weapon in which a projectile is discharged or expelled through the barrel by force of explosion or other form of combustion. [¶] A firearm doesn’t have to be loaded. A person is armed with a firearm when that person: [¶] One, carries a firearm or has that firearm available for use in either offense or defense. [¶] Two, knows that he is carrying a firearm and has it available. [¶] And three, is not merely aiding or abetting the perpetrator . . . [¶] . . . in possessing the firearm. [¶] Now, the People have the burden of proving each allegation beyond a reasonable doubt. [¶] If the People have not met this burden, you must find that the allegation has not been proved.”
Plainly, the instruction did address the temporal component of the “in connection with” element of the enhancement; it stated that it was alleged that defendant was “personally armed with a firearm during the commission of” the underlying drug offense. (Italics added.) But the instruction did not specifically state that the jury was required to find that there was a “facilitative nexus” (or similar language) between the arming and the underlying drug offense. And the language in the instruction cannot be reasonably construed as having implied that the prosecution had to prove that there was a nexus or relationship between the arming and the drug offense.
We note that there is a potentially material difference between CALCRIM No. 3131 and CALJIC instructions concerning section 12022 arming enhancements in that the latter instructions contain an introductory paragraph, “It is alleged [in Count[s] _____] that in the commission of the felony [or attempted felony] therein described, a principal was armed with a firearm, namely ____.” (CALJIC Nos. 17.15, 17.16.1, italics added; see also CALJIC No. 17.16 [“ . . . in the commission of the felony [or attempted felony] charged . . .].) Pitto, supra, 43 Cal.4th at page 234, footnote 3, concerned such an instruction under CALJIC No. 17.15. Because the instruction here was patterned after CALCRIM No. 3131, we do not address whether “in the commission of” language commonly found in arming enhancement instructions sufficiently apprises a jury that there must be a facilitative nexus between the arming and the underlying offense.
In Pitto, supra, 43 Cal.4th at pages 232-233, the defendant was arrested after a search of his van disclosed methamphetamine in a duffel bag behind the driver’s seat and, one foot from the bag, an unloaded revolver along with ammunition. He took the stand at trial and admitted that he had purchased and possessed the methamphetamine and the weapon, but denied that the gun possession was related to the drug possession, claiming that he bought it because he was depressed and contemplating suicide. (Id. at pp. 233-234.) The Court of Appeal held that the trial court erred under the United States Constitution by failing to advise the jury of section 12022(c)’s requirement of a nexus between the arming and the underlying offense, and that the error was not harmless beyond a reasonable doubt. (Pitto, supra, at p. 235.)
At our request, the parties submitted supplemental letter briefs discussing the potential impact of Pitto upon the instructional error issue before us.
The Supreme Court disagreed, concluding that “this was a classic case for finding that the defendant was armed while possessing and transporting a controlled substance.” (Pitto, supra, 43 Cal.4th at p. 238.) It emphasized that the defendant admitted that he knew about the presence of the handgun and its proximity to the drugs and that therefore “this proximity [was not] ‘accidental or coincidental,’ for . . . defendant had consciously put the drugs and the gun in those positions.” (Id. at p. 240.) Because “Bland made clear that it did not impose an ‘intent requirement’ under section 12022, or provide that the purpose with which the gun was placed near the drugs negates the ‘facilitative nexus’ that arming requires” (id. at pp. 239-240), the court held that the elements of section 12022 had been satisfied, notwithstanding that the defendant’s claimed motive for placing the weapon near the drugs was unrelated to his possession of the contraband. (Id. at p. 240.)
The court in Pitto did not reject its prior explanation in Bland that the “in the commission of” element of an arming enhancement has both temporal and relational components. And Pitto did not address the issue of whether, in a particular case, a trial judge may have a sua sponte duty to instruct the jury that a facilitative nexus between the defendant’s arming and the underlying offense is required for a finding that the prosecution has met its burden of proving an enhancement under section 12022. (See People v. Montoya, supra, 7 Cal.4th at page 1047 [court required, even absent request, to “instruct on general principles of law that are commonly or closely and openly connected to the facts before the court and that are necessary for the jury’s understanding of the case”].)
Here, the arming enhancement instruction omitted the component of the “in connection with” element of section 12022. Specifically, the instruction given—based upon CALCRIM No. 3131—did not apprise the jury that there must be a facilitative nexus between the defendant’s arming and the underlying drug possession offense. (Bland, supra, 10 Cal.4th at p. 1002.) And we note that there are both similarities (e.g., drugs and gun located in close proximity to each other) and differences (e.g., no admission here that defendant placed the drugs and weapon near each other) between the case before us and the circumstances in Pitto, supra, 43 Cal.4th 228. But because of our conclusion below that any assumed instructional error was harmless, we need not decide whether (1) under Bland, the court here was required to modify CALCRIM No. 3131 sua sponte to describe the facilitative nexus component, or, alternatively, (2) under Pitto, no such sua sponte duty arose.
We note with interest that there is a significant difference between CALCRIM No. 3131 (applicable to arming enhancements charged, inter alia, under § 12022(c)) and several other CALCRIM instructions applicable to other arming enhancement allegations under section 12022. For instance, under CALCRIM No. 3115 (arming enhancement under § 12022, subd. (a)(1)), the jury is charged that the prosecution has the burden of proving “that one of the principals was armed with a firearm in the commission [or attempted commission] of that crime.” (Italics added.) CALCRIM No. 3115 goes on to state that a principal is armed within the meaning of section 12022, subdivision (a)(1) if he or she carries it “ . . . for use in either offense or defense in connection with the crime[s] charged . . . .” (Italics added.) Other CALCRIM instructions dealing with arming enhancements under section 12022, subdivision (a)(2) (i.e., CALCRIM No. 3116), and under section 12022, subdivision (d) (i.e., CALCRIM No. 3117) contain language identical to the italicized language of CALCRIM No. 3115. Although we have no occasion here to decide the issue, it would appear that CALCRIM Nos. 3115 through 3117, unlike CALCRIM No. 3131, adequately convey to a jury the Bland requirement that the prosecution charging an arming enhancement under section 12022 must show a facilitative nexus between the possession of the firearm and the underlying crime.
We do not suggest that the precise words “facilitative nexus”—which may indeed be unhelpful—should be incorporated into an instruction regarding the elements of a section 12022 arming enhancement. Rather, where appropriate, the relational component of the “in the commission of” element may be expressed by more intelligible language, such as that “ ‘the firearm must have some purpose or effect with respect to the [underlying] crime.’ ” (Bland, supra, 10 Cal.4th at p. 1002, quoting (Smith v. United States, supra, 508 U.S. at p. 238.)
B. Whether Instructional Error Was Harmless
A trial court’s error involving the failure to instruct on the element of a crime is federal constitutional error that is governed by a Chapman harmless error standard, that is, that the conviction must be reversed unless it can be established beyond a reasonable doubt that the error did not contribute to the jury’s verdict. (Neder v. United States (1999) 527 U.S. 1, 15; People v. Flood, supra, 18 Cal.4th at pp. 492-504.) Likewise, the Chapman harmless error standard applies to a failure to instruct on a sentencing enhancement. (People v. Sengpadychith (2001) 26 Cal.4th 316, 325, 326.) Therefore, assuming without deciding here that there was instructional error, we evaluate any assumed error under that standard.
Defendant argues that prejudice is shown here. While the methamphetamine and gun were found in the same room in the cottage that was rented by defendant, there was other evidence distancing defendant from both. The room contained personal belongings of the cousin of defendant’s wife, Indalecio, including his wallet and a letter addressed to him. There was clothing in the room that fit Indalecio, and defendant’s wife, Julia, testified that her cousin was living in that room. The cabinet in which the unloaded firearm and ammunition were stored was located next to the bed that—at least according to defendant’s evidence—was being slept in by Indalecio. The articles belonging to Indalecio in that cabinet constituted further evidence tying Indalecio to the firearm. The methamphetamine in the room was located in a separate cabinet; it was hidden behind a closed door in that cabinet and further concealed in a locked metal box. Based upon these circumstances, defendant contends that it cannot be said beyond a reasonable doubt that the omission of the facilitative nexus component from the arming enhancement instruction—again, assuming such omission constituted error—did not contribute to the jury’s verdict.
The Attorney General responds that any error was harmless because of the jury’s separate conviction of defendant as being a felon in possession of a firearm (§ 12021. subd. (a)(1); count 2). He argues that the jury therefore rejected defendant’s argument that the firearm was Indalecio’s alone. Although the Attorney General urges that the less stringent Watson state standard of prejudice applies, he contends that even under Chapman, the claimed error was not prejudicial.
“Any person who has been convicted of a felony under the laws of the United States, the State of California, or any other state, government, or country or of an offense enumerated in subdivision (a), (b), or (d) of Section 12001.6, or who is addicted to the use of any narcotic drug, and who owns, purchases, receives, or has in his or her possession or under his or her custody or control any firearm is guilty of a felony.” (§ 12021, subd. (a)(1).)
People v. Watson (1956) 46 Cal.2d 818. The Attorney General does not explain his argument that the Watson standard of prejudice—i.e., that reversal is required on if “it appears ‘reasonably probable’ the defendant would have obtained a more favorable outcome had the error not occurred” (People v. Breverman (1998) 19 Cal.4th 142, 178)—is applicable here. And we have concluded above that that view is erroneous and that the Chapman standard applies to the claimed instructional error in this instance.
The argument of defense counsel was centered on the claim that “he’s [the prosecutor’s] got the wrong defendant here.” Defense counsel expressed to the jury concern that the drug sales ledger, loose cash, methamphetamine, and gun “found in Mr. Indalecio’s room, that that evidence that’s really against Bill Indalecio will inevitably bleed over into your impressions of Mr. Taison.” He argued that nothing tied defendant to the drugs, drug sales ledger, and gun found in what he described as “Indalecio’s room.” Specifically, defense counsel argued that the arming enhancement required a showing that defendant possessed the gun and knew about it; in this instance (defense counsel argued), “there wasn’t anything . . . to suggest that [defendant] knew about the gun.” Rather (defense counsel argued), there was significant evidence tying Indalecio to the gun because he was selling drugs and “had secured his bedroom with a security camera and a sliding bolt lock. And William Indalecio had that gun for protection, and he kept it in a place that makes sense to keep it, right by his bed.”
Thus, defense counsel—rather than making an argument that there was no connection between the firearm and the underlying drug possession (or at least that such a connection was questionable)—seemingly admitted that the gun was possessed in connection with the illegal drug sale operation. He, however, simply contended that it was Indalecio’s, not defendant’s, drug operation and that it was only Indalecio who possessed the gun. But the jury—by finding defendant guilty both of the underlying drug-possession-for-sale offense and of being a felon in possession of a firearm (§ 12021, subd. (a)(1))—rejected both of defendant’s arguments, namely, (1) that the 67.7 grams of methamphetamine found in the back room was possessed only by Indalecio, and (2) that the gun found in the same room in close proximity to the drugs was possessed only by Indalecio. Based upon these circumstances, we conclude that the failure to instruct on the facilitative nexus component of the section 12022(c) arming enhancement—assuming, arguendo, that such failure was error—was harmless beyond a reasonable doubt.
The precise distance between the methamphetamine and the gun is not clear from the record. Officer Lee testified that the metal briefcase that contained, among other things, the 67.7 grams of methamphetamine was in the cabinet on the west wall that was closest to the entrance to the backroom of the cottage; the handgun was in another cabinet on the west wall of the back room; and there was an entertainment console of unspecified width between the two cabinets. Detective Washburn answered a question concerning her opinion about whether the methamphetamine was possessed for sale based upon the prosecutor’s question asking her to assume that a gun was found approximately three feet from the drugs. Regardless of the precise distance between the two items, it is reasonable to infer from the record that the gun was located in close proximity to the methamphetamine found in the back room.
III. Stay Of Sentence For Count 5 Conviction (Section 654)
A. Background and Contentions
The court imposed a two-year prison term for the count 1 conviction, and added a three-year term on the section 12022(c) arming enhancement. It also, inter alia, imposed a two-year concurrent sentence as to the count 2 conviction of being a felon in possession of a firearm (§ 12021, subd. (a)(1)). At the time of sentencing, the court made reference to the potential applicability of section 654 as follows: “Penal Code [s]ection 654 is not applicable to the offenses in Counts 1 and 2 [of] which the defendant’s been convicted because they were independent and not merely incidental to each other. The defendant entertains several criminal objectives. The fact that the defendant was a felon in possession of a firearm is independent of any inventory or drugs for sale.” Defense counsel presented no argument on the issue of whether section 654 applied.
On appeal, defendant contends that the imposition of a two-year concurrent sentence with respect to the firearm-possession-by-felon conviction (count 2) was prohibited by section 654. He argues that that conviction was based upon the same firearm possession that resulted in the court’s imposition of the three-year enhancement under section 12022(c). The court (defendant argues) incorrectly focused on the drug possession conviction (count 1) and ignored the punishment imposed under the 12022(c) arming enhancement in its finding that section 654 was inapplicable. Accordingly, he argues that the sentence on the count 2 conviction should have been stayed pursuant to section 654.
The Attorney General responds that the court’s sentencing was proper. He argues that “the same firearm found in the drawer in the back room of the cottage . . . was available for use in any situation, not just for the drug sales. The trial court’s finding of separate intents and objectives for the two gun possession offenses must be upheld.”
B. Applicable Law
Section 654 provides: “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one . . . .” The statute thus “precludes multiple punishment for a single act or omission, or an indivisible course of conduct. [Citations.] If, for example, a defendant suffers two convictions, punishment for one of which is precluded by section 654, that section requires the sentence for one conviction to be imposed, and the other imposed and then stayed. [Citation.] Section 654 does not allow any multiple punishment, including either concurrent or consecutive sentences. [Citation.]” (People v. Deloza (1998) 18 Cal.4th 585, 591-592.) The purpose of section 654 “is . . . to ensure that punishment is commensurate with a defendant’s criminal culpability. [Citations.]” (People v. Alvarado (2001) 87 Cal.App.4th 178, 196.)
As construed by the Supreme Court, “[w]hether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.” (Neal v. State of California (1960) 55 Cal.2d 11, 19.) Under such circumstances, it is “the offense carrying the highest punishment” for which the sentence may be imposed. (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312; see also § 654.) And as the high court later emphasized, “[t]he initial inquiry in any section 654 application is to ascertain the defendant’s objective and intent. If he entertained multiple criminal objectives which were independent of and not merely incidental to each other, he may be punished for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.” (People v. Beamon (1973) 8 Cal.3d 625, 639.)
In reviewing a court’s finding that multiple punishment for separate convictions was appropriate because the defendant held more than one objective in committing those crimes, we evaluate whether there was substantial evidence to support that determination. (People v. Osband (1996) 13 Cal.4th 622, 730-731.) The question of whether the defendant entertained multiple criminal objectives being one of fact for the trial court, we will sustain the court’s findings if there is substantial evidence to support them. (People v. Liu (1996) 46 Cal.App.4th 1119, 1135-1136.) “We review the trial court’s determination in the light most favorable to the respondent and presume the existence of every fact the trial court could reasonably deduce from the evidence.” (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.)
C. Discussion of Claim of Error
At the outset, we note that defendant did not argue below that the court was required under section 654 to stay the sentence for the count 2 conviction in light of the imposition of the three-year enhancement under section 12022(c). But this did not constitute a forfeiture of defendant’s section 654 argument on appeal. “ ‘Errors in the applicability of section 654 are corrected on appeal regardless of whether the point was raised by objection in the trial court or assigned as error on appeal.’ [Citation.]” (People v. Hester (2000) 22 Cal.4th 290, 295; see also People v. Lopez (2004) 119 Cal.App.4th 132, 138.)
The principle concerning the application of section 654 in instances in which a defendant is convicted of illegal possession of a firearm and use of the same firearm in the commission of another crime has been enunciated in People v. Bradford (1976) 17 Cal.3d 8 (Bradford), a case relied on by defendant here. In Bradford, after the defendant and an accomplice—fleeing from their commission of a bank robbery—were stopped for speeding, the defendant wrested the officer's revolver from him. (Id. at p. 13.) The officer was accidentally struck by another car and pinned under it, and the defendant shot at the officer. (Ibid.) The defendant challenged the imposition of sentences on both convictions, i.e., assault with a deadly weapon, and for being a felon in possession of a concealable firearm (former § 12021), claiming that it constituted multiple punishment that violated section 654. (Bradford supra, at p. 22.) The court identified the appropriate standard by quoting from People v. Venegas (1970) 10 Cal.App.3d 814, 821 (Venegas): “ ‘Whether a violation of section 12021 . . . firearms concealable upon the person, constitutes a divisible transaction from the offense in which he employs the weapon depends upon the facts and evidence of each individual case. Thus, where the evidence shows a possession distinctly antecedent and separate from the primary offense, punishment on both crimes has been approved. On the other hand, where the evidence shows a possession only in conjunction with the primary offense, then punishment for the illegal possession of the firearm has been held to be improper where it is the lesser offense.’ ” (Bradford supra, at p. 22.) Because the Bradford court concluded that the defendant’s possession of the officer’s revolver was not antecedent and separate from his use of the revolver in assaulting the officer, it held that the trial court should have stayed the sentence on the former section 12021 conviction. (Bradford supra, at pp. 22-23.)
In Venegas, supra, 10 Cal.App.3d at pages 817-818, the defendant shot a friend in a bar. No witnesses saw where the gun came from, and the gun was found on the floor after the shooting. (Id. at p. 818.) The defendant was convicted of assault with a deadly weapon with intent to commit murder and with being a felon in possession of a firearm; he was sentenced on both counts. (Id. at p. 817.) Since the evidence showed possession only at the time of the shooting, the court held that imposition of a sentence for both assault and felon with a firearm was multiple punishment prohibited by section 654. (Venegas, supra, at p. 821; cf. People v. Jones, supra, 103 Cal.App.4th at pp. 1142-1145 [sentences on convictions for shooting at inhabited dwelling and being felon in possession of firearm not prohibited by § 654 where evidence showed the defendant already in possession of firearm when he arrived at scene of primary crime].)
Likewise, in People v. Mustafaa (1994) 22 Cal.App.4th 1305, 1309, the defendant pleaded guilty to three robbery counts, admitted that he was personally armed with a firearm on those occasions, and admitted that he was a felon in possession of a firearm in each of those instances. Because the prison term imposed for one count of being a felon in possession of a firearm “appear[ed] to be based on the same conduct as that on which the term for the personal gun-use enhancement . . . was based” (id. at p. 1312), the court held that the sentence on the felon-possessing-firearm count violated section 654. (See also In re Joseph G. (1995) 32 Cal.App.4th 1735, 1743-1744 [sentence for carrying loaded firearm in public place under § 12031, subd. (a)(1) and carrying concealed weapon under § 12025, subd. (a) constituted impermissible multiple punishment under § 654 because offenses were “based on same act of carrying a loaded firearm”].)
In this case, there was no evidence of defendant’s possession of the firearm found in the back room of the cottage at any time before or after its discovery. The gun’s “use” in connection with the underlying offense of possession for sale of the methamphetamine was essentially imputed under section 12022(c) by reason of it being found in proximity to the contraband. Because there was no evidence that defendant possessed or used the firearm at any time other than when the police executed the warrant and found the .38 handgun, there was no “ ‘possession distinctly antecedent and separate from the primary offense’ ” (People v. Bradford (1976) 17 Cal.3d 8, 22) warranting separate punishment for the firearm-possessed-by-felon offense.
There was no substantial evidence to support any implied finding by the court below that there were multiple objectives in the commission of the section 12021, subdivision (a)(1) offense (count 2), and the section 12022(c) enhancement under which defendant was charged with being personally armed in the commission of the underlying drug possession charged in count 1. Accordingly, we hold that the court erred in failing to stay the two-year concurrent sentence imposed for the count 2 conviction.
DISPOSITION
The judgment is modified to reflect that the two-year sentence on count 2 (possession of a firearm by a felon [§ 12021, subd. (a)(1)]) is stayed. As so modified, the judgment is affirmed. The superior court is ordered to send a certified copy of the corrected abstract of judgment to the Department of Corrections.
WE CONCUR: Bamattre-Manoukian, Acting P.J., McAdams, J.