Stanford Law School - Robert Crown Law Library

Filed 4/7/08

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,
S139609
v.
Ct.App. 1/5 A105164
MICHAEL CHRISTOPHER PITTO,
Lake
County
Defendant and Appellant.
Super. Ct. No. CR 033635

Penal Code section 120221 provides various sentence enhancements for
those who are “armed” (id., subd. (a)), or in some cases, “personally armed” (id.,
subd. (c)), with a firearm “in the commission of” specified offenses. In People v.
Bland (1995) 10 Cal.4th 991 (Bland), which involved the arming enhancement for
assault weapons (§ 12022, subd. (a)(2)), we set forth the circumstances in which
the trier of fact could infer that the defendant was “armed” with a gun “in the
commission of” a drug crime, and the finding could thus be upheld as supported
by sufficient evidence on appeal. Such circumstances exist where, during a drug
offense, (1) the defendant knew of a gun’s presence and location nearby, (2) the
gun’s proximity to the drugs was “not accidental or coincidental,” and (3) the gun
was available for his offensive or defensive use in committing the underlying
offense. (Bland, supra, 10 Cal.4th at pp. 995, 1003.)
1
All unspecified statutory references are to the Penal Code except as
otherwise stated.
1

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Here, defendant Michael Christopher Pitto, a convicted drug offender on
bail at the time, was within arm’s reach of both a gun and a saleable amount of
methamphetamine in his vehicle when he encountered police. He knew the gun’s
location because, as he admitted at trial, he had purposefully placed it there. For
the same reason, the proximity of the gun to the drugs was not merely “accidental
or coincidental.” (Bland, supra, 10 Cal.4th at pp. 995, 1003.) There was no
dispute that, because of its location, the firearm was available for his offensive or
defensive use with respect to the drug transportation and possession crimes of
which he was convicted. He was therefore “armed” with the gun “in the
commission” of these offenses. (§ 12022.)
Defendant nonetheless claims that, in order to defeat the arming allegation
as construed in Bland, supra, 10 Cal.4th 991, he was entitled to a sua sponte
instruction highlighting defense evidence that he placed the gun in its position
near the drugs for a reason unrelated to the drug crimes. He is mistaken. The
particular reason why he purposefully placed a gun in close proximity to drugs,
where it was available for his use in perpetrating his drug offenses, is irrelevant.
The defendant’s deliberate placement of the weapon negates any claim that the
proximity of the gun and the drugs was the result of mere accident or coincidence.
This conclusion is not inconsistent with Bland. On the contrary, it fulfills
the public safety purpose of the arming enhancement as stated in Bland.
Regardless of defendant’s motive at the time he placed the firearm, its consequent
availability during the drug offenses raised the risk that he would resort to its use
to facilitate the crimes. That is the very danger the arming statutes seek to deter.
Accordingly, defendant was not entitled to the sua sponte instruction he
now asserts. We will reverse the Court of Appeal insofar as it found the opposite
was true.
2

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FACTS
The record discloses that around midnight on May 23, 2003, officers from
the Lake County Narcotics Task Force saw defendant drive his Dodge minivan
into the Twin Pines Casino parking lot. The officers knew that methamphetamine
sales commonly occurred there. They also knew that defendant had sustained
prior drug convictions and was subject to a probation search condition. When
defendant exited the van and began walking his dog, the officers detained him. He
showed signs of being under the influence of a stimulant. His van was searched.
In an open floorboard area in the middle of the van, between the back of the
driver’s seat and the front of a rear bench seat, officers found a black garbage bag.
The bag contained clothing and a cigarette package. Protruding from the cigarette
package was a baggie holding a crystalline substance. The substance was later
determined to be 12.09 grams of methamphetamine, or a little less than one-half of
an ounce. Through expert testimony, the prosecution established that this quantity
represented 120 individual doses of the drug with a retail value of at least $2,000.
Behind the driver’s seat, one foot from the bag containing the drugs,
officers found a cardboard box. The box contained a .357-caliber Ruger revolver
in a zippered pouch. The gun was unloaded, but six rounds of ammunition were
tucked into a pocket of the pouch.
The officer who discovered the black garbage bag and the cardboard box
testified that the gun was closer to the driver’s seat than the drugs, and that the gun
was “within arm’s reach” of defendant. In opining that defendant likely possessed
the drugs for sale, the officer cited such factors as the amount of drugs in the van
and the presence of the gun nearby. According to the witness, “persons who
possess firearms while in the possession of controlled substances typically possess
that firearm to protect the product itself and/or to protect proceeds, which would
be the result of selling the product.” He opined that it would take 10 to 15 seconds
3

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to unzipper the pouch, extract the gun and the bullets, and load the chamber.
Another expert confirmed the likely drug-related purpose of the gun in the van.
Other prosecution evidence, such as defendant’s statements to his probation
officer, showed that he kept title to his speedboat and his Harley Davidson
motorcycle in friends’ names so they could not be seized by the state. An expert
testified that savvy drug dealers followed this practice to reduce the risk of asset
forfeiture in the event they were accused of methamphetamine trafficking.
Defendant testified on his own behalf that he was arrested near the start of
the Memorial Day weekend while driving to Clear Lake, where one of his parents’
homes was located. A painter and handyman, he had finished work a few hours
earlier at his sister and brother-in-law’s home in the San Francisco Bay Area.
Defendant admitted that he bought almost one-half ounce of methamphetamine
before leaving the Bay Area. He put most of it in his minivan, but left one gram at
his sister’s house “to make sure [he would] have some when [he] got back.” He
used a gram of the drug daily, and had been dependent on it for several years.
Defendant testified that he bought the Ruger pistol from a friend four
months earlier, while on probation for prior convictions. The night of his arrest,
he took the gun from a work vehicle parked near his sister’s house, and placed it in
the back of the minivan near the drugs before driving to the lake. He denied using
the gun in any drug offense. He also denied planning to sell drugs in Lake County
(though he acknowledged having done so in the past). Defendant intended to
consume the drugs while “party[ing]” with friends at the lake.
Defendant, along with his mother and brother, testified that he disliked
guns, had been depressed in the year before the crimes, and had expressed suicidal
thoughts. Defendant claimed he bought the gun to kill himself. He admitted,
4

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however, that he had no plan to commit suicide over the holiday weekend or at
any other specific time.2 A defense investigator opined that the drugs and gun
were not possessed for commercial purposes because no measuring or packaging
items were found in the van, and because the gun was unloaded.
Outside the presence of the jury, the trial court indicated that it planned to
give CALJIC No. 17.15, the standard instruction concerning the section 12022
arming enhancement. Defense counsel did not object. His sole request was that
the court state that the firearm must be “readily” available for offensive or
defensive use in the charged crime — a change the court declined to make.3
During deliberations, the jury sent the court a note seeking the definition of
“armed” in section 12022. When the court reread key language from CALJIC No.

2
Contrary to what the dissent suggests, there was no evidence that defendant
placed the gun in the van to commit suicide. (See dis. opn. of Kennard, J., infra,
at p. 3.) Defendant testified that he bought the gun four months earlier for that
purpose, and that he did not intend to use it for anything else, including drug
possession. While he described in detail the steps he took to place the gun near
the drugs in the van before driving to the lake the night of his arrest, he
acknowledged that he had no plans to kill himself at the time.
3
As read to the jury, CALJIC No. 17.15 stated: “It is alleged in Counts 1, 2,
and the violation of Health & Safety Code § 11377(a) which is a lesser crime to
Count 2 that in the commission of the felony therein described, a principal was
armed with a firearm, namely a .357 Ruger pistol. [¶] If you find a defendant
guilty of the crimes thus charged, you must determine whether a principal in that
crime was armed with a firearm at the time of the commission or attempted
commission of the crimes. [¶] A principal in the commission of a felony is one
who either directly and actively commits or attempts to commit the crime or one
who aids and abets the commission or attempted commission of the crime. [¶]
The term ‘armed with a firearm’ means knowingly to carry a firearm or have it
available for offensive or defensive use. [¶] The word ‘firearm’ includes a pistol,
revolver, shotgun, or rifle. [¶] The People have the burden of proving the truth of
this allegation. If you have a reasonable doubt that it is true, you must find it to be
not true.” (Italics added; see Judicial Council of Cal. Crim. Jury Instns. (2007)
CALCRIM Nos. 3115, 3131.)
5

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17.15, one juror asked about the meaning of “availability” in the instruction. The
court replied that such factual questions were solely for the jury to decide.
Defendant was convicted of transporting methamphetamine (Health & Saf.
Code, § 11379, subd. (a)), a felony. The jury found true a related allegation that
defendant was personally armed with a firearm under section 12022, subdivision
(c) (section 12022(c)). As to the charge of possessing methamphetamine for sale
(Health & Saf. Code, § 11378), the jury convicted defendant of the lesser included
felony offense of possessing methamphetamine. (Id., § 11377, subd. (a).) An
arming allegation was sustained as to that count as well. (§ 12022, subd. (a)(1)
(section 12022(a)(1).) The jury found against defendant on all other charges and
allegations set forth in the information.4
At sentencing, the court consolidated this case with three other proceedings
in which defendant was convicted of possessing and transporting controlled
substances, receiving stolen property, and evading a peace officer. He received a
total combined sentence of about 18 years in prison. It included a four-year
arming enhancement under section 12022(c) for transporting methamphetamine in
this case.5 No additional term was imposed under section 12022(a)(1) for the
present finding that defendant was armed while possessing methamphetamine.6
4
Such convictions included one felony count of being a felon in possession
of a firearm (§ 12021, subd. (a)(1)), and two misdemeanor counts of being under
the influence of methamphetamine (Health & Saf. Code, § 11550, subd. (a)) and
carrying a concealed firearm in a vehicle. (Pen. Code, § 12025, subd. (a)(1).) In
addition, the jury found that defendant suffered a prior conviction for transporting
drugs in 2002. (Health & Saf. Code, §§ 11370.2, subd. (c), 11379.) The trial
court found he was released on bail when the present crimes occurred. (Pen.
Code, § 12022.1.)
5
Section 12022(c) reads in part now, as it did at the time of defendant’s
crimes, as follows: “[A]ny person who is personally armed with a firearm in the
(Footnote continued on next page.)
6

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The Court of Appeal agreed with defendant that CALJIC No. 17.15 failed
to explain the necessary “nexus or link” between firearm and drug crime under
section 12022 and Bland, supra, 10 Cal.4th 991. Such omission, the court said,
barred consideration of the defense theory that the gun was placed in the van to
commit suicide, that its presence near the drugs was thus coincidental and
unrelated to the drug crimes, and that defendant therefore was not armed in
committing any such crime. The Court of Appeal further determined that the
instructional error amounted to a federal constitutional violation, and was not
harmless beyond a reasonable doubt. The judgment was reversed insofar as
defendant was found to have been armed under section 12022(c) while
transporting methamphetamine.7
The Attorney General asked this court to depublish the Court of Appeal’s
opinion. We ordered review on our own motion to decide whether any
instructional error occurred.

(Footnote continued from previous page.)

commission of a violation . . . of Section . . . 11379 . . . 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.”
6
Section 12022(a)(1) reads in part now, as it did at the time of defendant’s
crimes, as follows: “[A]ny person who is armed with a firearm in the commission
of a felony . . . shall be punished by an additional and consecutive term of
imprisonment in the state prison for one year.” Subdivision (a)(2) of section
12022 imposes an additional and consecutive three-year term where “the firearm
is an assault weapon.”
7
The Court of Appeal never mentioned the similar arming allegation
sustained under section 12022(a)(1) as to defendant’s conviction of possessing
methamphetamine. The court did not reverse or otherwise disturb this finding in
disposing of the case on appeal.
7

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DISCUSSION
The parties dispute the substance of the arming enhancement in section
12022, as set forth in Bland, supra, 10 Cal.4th 991. As below, defendant insists a
sua sponte instruction was required to allow the jury to find, based on evidence
suggesting he placed the gun in the van for a non-drug-related purpose (but see
fn. 2, ante), that the prosecution failed to prove the gun’s presence was not merely
accidental or coincidental with respect to the drug crimes. (See People v.
Breverman (1998) 19 Cal.4th 142, 154 [instruction required on all legal principles
closely and openly connected to the case, even in the absence of a defense
request].) However, the Attorney General disagrees that, under the statute and
Bland, evidence of defendant’s purpose for placing the gun near the drugs could
tend to negate the arming allegation and warrant a special instruction to that effect.
The Attorney General holds the correct view.
Preliminarily, we observe here, as in Bland, that section 12022 is part of the
Dangerous Weapons Control Law, which regulates a wide range of unlawful
activities involving firearms and other deadly weapons. (§ 12000 et seq.) Unlike
section 12022.5, which imposes enhanced penalties for personal use of a firearm
in the commission of a felony, section 12022 “does not require that a defendant
utilize a firearm or even carry one on the body.” (Bland, supra, 10 Cal.4th 991,
997; see In re Tameka C. (2000) 22 Cal.4th 190, 196-198 [describing firearm-use
enhancement].) A defendant is armed under section 12022 as long as the gun is
“available for use, either offensively or defensively.” (Bland, supra, 10 Cal.4th at
p. 997.) As Bland explained, the mere presence and potential for use of a firearm
at a crime scene increases the risk of injury and death. The arming provisions in
section 12022, like the use provisions in section 12022.5, deter and punish persons
who create such dangerous situations in the course of committing crimes.
8

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In Bland itself, the defendant sat in a police car outside his house while
officers searched inside, investigating the theft of auto parts. The search
uncovered a large amount of rock cocaine in a plastic baggie in the defendant’s
bedroom closet. Several unloaded firearms, including an assault weapon, were
found under his bed in the same room. A nearby duffel bag contained items
commonly used in the sale and manufacture of cocaine base — a gram scale,
baggies, and glass containers — some bearing cocaine residue. A photo in the
bedroom showed the defendant holding an assault rifle. (See Bland, supra, 10
Cal.4th 991, 995.)
A jury convicted the defendant in Bland of felony possession of cocaine
base for sale. (See Health & Saf. Code, § 11351.5.) The jury also found that he
was armed with an assault weapon in committing the crime under section 12022,
subdivision (a)(2), triggering an additional three years in prison. To assist the jury
in making the latter determination, the trial court read a slightly modified version
of CALJIC No. 17.15. (See Bland, supra, 10 Cal.4th 991, 995-996, 1005.)
The Court of Appeal in Bland found insufficient evidence to support the
section 12022 finding, and struck the three-year enhancement. Based on the
relevant statute and instructions, the court concluded that the defendant was not
armed with the assault rifle because it was not “ ‘available’ ” for his use in
protecting either himself or the cocaine he planned to sell. (Bland, supra, 10
Cal.4th 991, 996.) The reason cited by the court was the defendant’s presence
outside the house when police found the drugs and guns together in his bedroom.
None of the guns, including the assault weapon, posed any danger under these
circumstances, in the Court of Appeal’s view.
This court rejected such reasoning on review, and effectively reinstated the
section 12022 enhancement. Bland started from the premise that drug possession
is a continuing offense that extends through the entire time that the defendant
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asserts dominion and control over illegal drugs. Thus, Bland’s liability for the
underlying felony, and his commission of the offense for purposes of section
12022, were not determined solely by whether he was present when police
discovered the firearm and drugs in close proximity of one another. Rather,
section 12022’s application depended on whether the defendant had the gun
available for use in furthering the drug offense “at any time during his possession
of the drugs.” (Bland, supra, 10 Cal.4th 991, 1000, fn. omitted.)
On this issue, which the Court of Appeal had overlooked, Bland noted that
the defendant kept his cache of guns, including the assault weapon, in his bedroom
near the cocaine. From this evidence, the jury could infer that at some point
during the felonious drug possession, he was physically present with both the
drugs and the guns. Bland equated such proximity with the requisite availability
for use of the assault weapon in the drug crime. (See Bland, supra, 10 Cal.4th
991, 1000.)
Bland summarized these principles as follows: “[W]hen the prosecution
has proved a charge of felony drug possession, and the evidence at trial shows that
a firearm was found in close proximity to the illegal drugs in a place frequented by
the defendant, a jury may reasonably infer (1) that the defendant knew of the
firearm’s presence, (2) that its presence together with the drugs was not accidental
or coincidental, and (3) that, at some point during the period of illegal drug
possession, the defendant was present with both the drugs and the firearm and thus
that the firearm was available for the defendant to put to immediate use to aid in
the drug possession. These reasonable inferences, if not refuted by defense
evidence, are sufficient to warrant a determination that the defendant was ‘armed
with a firearm in the commission’ of a felony within the meaning of section
12022.” (Bland, supra, 10 Cal.4th 991, 1002-1003.)
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Bland observed that this construction of section 12022 furthered the
purpose of the penalty enhancements contained therein. We explained that, in
drug cases, the crime scene is the place where the defendant keeps his stash of
drugs, and that a firearm stored nearby creates an enhanced risk of harm. (Bland,
supra, 10 Cal.4th 991, 1001-1002.) Bland emphasized that “[d]rug dealers are
known to keep guns to protect not only themselves, but also their drugs and drug
proceeds; ready access to a gun is often crucial to a drug dealer’s commercial
success.” (Id. at p. 1005.) We declined to hold that a defendant who created such
access by his knowing placement and design was not armed simply because he
was not present continuously during an extended period of drug possession. Such
an approach would reward drug traffickers and defeat the public safety purpose
behind the statute, according to Bland. (Id. at p. 1002.)
Applying the foregoing principles here, this was a classic case for finding
that the defendant was armed while possessing and transporting a controlled
substance. According to the evidence on both sides, defendant’s Ruger pistol and
his 12 grams of methamphetamine sat almost side by side inside his minivan as he
drove to the lake and stopped at the casino. By his own admission, such close
proximity did not occur through ignorance or happenstance. Rather, defendant
placed the gun and drugs there together, on purpose, while preparing for a long
holiday weekend. Prosecution evidence indicated that he could reach both the gun
and the bullets from the driver’s seat, and that the gun could be loaded quickly.
Thus, a rational jury could have concluded beyond a reasonable doubt that the gun
was available “to protect the defendant during a drug sale, to guard against theft of
the drugs, or to ward off police.” (Bland, supra, 10 Cal.4th 991, 1002.)
Defendant does not seriously dispute that he knowingly placed the gun in
the van and that it was available for his use in committing the drug crimes of
which he was convicted. He claims, however, that under Bland, he was entitled to
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refute any further inference that the presence of the gun near the drugs “was not
accidental or coincidental.” (Bland, supra, 10 Cal.4th 991, 1003.) Specifically, he
urges, the court should have given, sua sponte, an instruction allowing the jury to
find from defense evidence and argument that there was no “facilitative nexus”
between the gun and the drugs, because he possessed the gun for a reason
unrelated to the drug crimes — suicide. The Attorney General responds that if
Bland can be read to support defendant’s view, it is wrong under section 12022
and should be overruled to that extent.
Neither approach is correct. We disagree that instructional error occurred.
We also decline to overrule Bland.
The “ ‘facilitative nexus’ ” debate between the parties stems from a single
passage in Bland, supra, 10 Cal.4th 991, 1002. There, the Bland court found
support in its construction and application of section 12022 by consulting a
firearm enhancement under federal law. The federal statute enhanced the
punishment of any person who “uses or carries” a firearm “during and in relation
to” drug trafficking. (18 U.S.C. § 924(c)(1).)8 Citing one intermediate federal
appellate decision, Bland noted that the federal statute required a “ ‘facilitative
nexus’ ” between the drugs and the gun. (Bland, supra, 10 Cal.4th at p. 1002,
citing United States v. Paulino (1st Cir. 1994) 13 F.3d 20, 26.) Next, Bland

8
After Bland, supra, 10 Cal.4th 991, the United States Supreme Court held
in Bailey v. United States (1995) 516 U.S. 137, that firearm use under the federal
statute required “active employment” of the weapon (id. at p. 144), and that this
definition excluded mere possession of a firearm (i.e., in the trunk of a vehicle)
while transporting drugs (i.e., in the vehicle’s passenger compartment). Congress
subsequently amended the statute to cover any defendant who, “in furtherance of”
the crime of drug trafficking, “possesses a firearm.” (18 U.S.C. § 924(c)(1)(A), as
amended by Pub.L. 105-386 § 1(a) (Nov. 13, 1998) 112 Stat. 3469; see Watson v.
U.S. (2007) __ U.S. __, __ & fn. 3 [128 S.Ct. 579, 581-582 & fn. 3].)
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quoted from Smith v. United States (1993) 508 U.S. 223, 238, concerning the same
federal law: “ ‘[T]he 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.’ ” (Bland, supra, 10 Cal.4th at p. 1002, italics in
original.)
Thus, as defendant suggests, Bland appears to have adopted a “facilitative
nexus” test and embraced a “purpose and effect” standard. However, such
principles are not at odds with anything we have said today about section 12022
and Bland, supra, 10 Cal.4th 991. Nor does the discussion of federal law in Bland
compel us to accept the state law claim of instructional error presented here.
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. (Bland, supra, 10
Cal.4th 991, 1003, fn. 5.) We adhere to this view. When (1) a defendant, while
perpetrating a drug offense, knows of the presence and location of a firearm near
the drugs, (2) the proximity of the gun to the drugs is not the result of mere
accident or happenstance, and (3) the defendant is in a position to use the gun
offensively or defensively to aid in the commission of the offense, the gun
facilitates that crime and has the requisite purpose or effect with respect to its
commission.
Here, defendant knew of the handgun’s presence and location because, as
he conceded, he himself had placed the weapon there. By his own testimony, he
also knew of the nearby presence and location of the methamphetamine, and its
proximity to the gun. Nor was this proximity “accidental or coincidental,” for, as
already noted, defendant had consciously put the drugs and the gun in those
positions. Without doubt, the weapon was readily at hand should he choose to use
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it to facilitate his perpetration of the drug crimes. The effect of such action is to
make the firearm available for use in the possession and transportation of drugs.
Under these circumstances, defendant was “armed” with the gun in the
commission of these offenses under section 12022. It does not matter whether, at
the particular moment he knowingly placed the gun where it was available for
such criminal use, he did so for reasons unrelated to drug possession or trafficking.
Regardless of his original motive, the opportunity and incentive to later resort to
using the gun in perpetrating the crime is the same. And his deliberate placement
of the gun and drugs in juxtaposition to each other negates any claim of accident
or coincidence under Bland, supra, 10 Cal.4th 991.
The Court of Appeal therefore erred in determining the trial court violated a
sua sponte duty to instruct, beyond the provisions of CALJIC No. 17.15, that there
must be a facilitative nexus between the possession of illegal drugs and a firearm,
or that, if defendant’s testimony was credited, the proximity of the gun to the
drugs was accidental and coincidental and had no purpose or effect as to the drug
offenses. The jury was adequately apprised of the requirements for finding that
defendant was “armed with a firearm in the commission of” the charged crimes
under section 12022, subdivisions (a)(1) and (c). As noted, such requirements
were met here.
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CONCLUSION
The judgment of the Court of Appeal is reversed insofar as that court
vacated the finding and enhancement under section 12022(c). In all other
respects, the judgment is affirmed.
BAXTER, J.

WE CONCUR:

GEORGE, C. J.
WERDEGAR, J.
CHIN, J.
MORENO, J.
CORRIGAN, J.

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DISSENTING OPINION BY KENNARD, J.
Penal Code section 12022 is a sentence enhancement provision, which
states in subdivision (a)(1): “[A]ny person who is armed with a firearm in the
commission of a felony or attempted felony shall be punished by an additional and
consecutive term of imprisonment . . . .”1 (Italics added.) In People v. Bland
(1995) 10 Cal.4th 991 (Bland), this court construed the italicized statutory phrase
this way: The arming must occur “during the commission of the underlying
felony” (id. at p. 1001) and there must be some “nexus or link” between the
firearm and that crime (id. at p. 1002).
In this case, police found methamphetamine and a firearm in defendant’s
van. The prosecution charged him with the felonies of possessing and transporting
the drug, and it alleged an arming enhancement with respect to both crimes.
Defendant denied any relationship between the methamphetamine and the firearm,
claiming he had the latter because he was contemplating suicide. The trial court
failed to instruct on Bland’s requirement there that be a nexus or link between the
firearm and the underlying drug crime. Therefore, in finding the arming
enhancement allegations to be true, the jury was precluded from considering the
defense argument that the gun had no connection to the methamphetamine.

1
Further undesignated statutory references are to the Penal Code.
1

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Contrary to the Court of Appeal, which set aside the enhancements, the
majority here upholds the trial court’s failure to instruct, on its own initiative, on
the nexus or link aspect of the Bland test. I disagree. The Court of Appeal got it
right, and I would affirm the judgment of that court.
I
As relevant here, defendant was charged with the felonies of possessing
methamphetamine for sale (Health & Saf. Code, § 11378) and transporting it (id.,
§ 11379, subd. (a)), and it was alleged that “in the commission” of those offenses
defendant was personally “armed with a firearm” (Pen. Code, § 12022, subd. (c)).2
At trial, the prosecution presented this evidence: Northern California’s
Lake County has a Narcotic Task Force consisting of law enforcement officers
from various agencies, including the Lake County Sheriff’s Department and the
City of Clearlake Police Department. In the early morning hours of May 23, 2003,
task force members saw defendant drive a van into the parking lot of the Twin
Pines Casino, located in Middletown, Lake County. The casino parking lot was
known to task force members as a “hot spot” for methamphetamine dealing.
When defendant got out of his van with a dog on a leash, task force members
stopped him and, knowing him to be on probation and thus subject to warrantless
search, they entered the van. On the floor in the back of the van was a plastic
garbage bag filled with clothing and other personal items. Protruding from a
cigarette package in the garbage bag was a clear plastic baggie containing a
substance later determined to be 12.09 grams of crystal methamphetamine. About

2
Section 12022, subdivision (c) provides for additional terms of
imprisonment of three, four, or five years for certain, specified drug-related
felonies. The increased prison term under section 12022, subdivision (a)(1), the
basic arming enhancement provision, is one year.
2

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a foot away from the garbage bag, behind the driver’s seat, was a cardboard box
containing, among other things, a zippered pouch. Inside the pouch was an
unloaded .357 Ruger revolver; in a separate compartment of the pouch were six
rounds of ammunition.
The defense presented this evidence: Defendant was on his way from
Contra Costa County to his family’s Lake County vacation house, where he
planned to spend the May 2003 Memorial Day weekend, when he stopped at the
casino parking lot, so his dog could relieve itself. To counter the prosecution’s
drug charges, defendant, his brother, and his mother testified to defendant’s long-
time methamphetamine addiction, explaining that he possessed the 12.09 grams of
methamphetamine in the plastic baggie not for the purpose of sale but for his
personal use.
And to counter the prosecution’s theory that defendant was armed with a
firearm “in the commission” of the two drug felonies, the defense presented
testimony from defendant’s brother and mother that defendant disliked firearms,
that he had recently been depressed, and that he talked about killing himself.
Defendant testified that he had considered committing suicide, but that he had no
immediate plan to do so when he drove into the casino parking lot where task
force members encountered him. He explained that the revolver and six rounds of
ammunition found in his van were for this purpose.
The trial court’s instruction to the jury on section 12022’s arming
enhancement was based on the standard jury instruction, CALJIC No. 17.15.3 In

3
The jury instruction read: “It is alleged in Counts 1, 2, and the violation of
Health & Safety Code § 11377(a) which is a lesser crime to count 2 that in the
commission of the felony therein described, a principal was armed with a firearm,
namely a .357 Ruger pistol. [¶] If you find a defendant guilty of the crimes thus
charged, you must determine whether a principal in that crime was armed with a
(Footnote continued on next page.)
3

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closing argument, the prosecutor drew the jury’s attention to that instruction.
Under that instruction, the prosecutor said, defendant’s reason for having the gun
was not an issue, and the jury need only decide whether the gun was “available for
[defendant] to use if he chose to do so.”
During deliberations, the jury sent a note to the trial court asking for the
“[d]efinition of Penal Code section 12022 with the [sic] regards to the term
‘armed.’ ” When the trial court called the jury back into the courtroom to respond
to the question, one juror said: “I think the question was availability, what
constitutes availability?” The court replied: “That would be a question for you to
decide. It’s a question of fact as to whether or not this shows that firearm was
available for offensive or defensive use. That would be within your purview
alone, so I couldn’t answer that question for you.”
The jury acquitted defendant of the charge of possessing methamphetamine
for sale, but it convicted him of the lesser included felony offense of unauthorized
possession of methamphetamine (Health & Saf. Code, § 11377) , and it also
convicted him of transporting methamphetamine. With respect to both felonies,
the jury found that defendant was “armed with a firearm in the commission” of the

(Footnote continued from previous page.)

firearm at the time of the commission or attempted commission of the crimes. [¶]
A principal in the commission of a felony is one who either directly and actively
commits or attempts to commit the crime or one who aids and abets the
commission or attempted commission of the crime. [¶] The term ‘armed with a
firearm’ means knowingly to carry a firearm or have it available for offensive or
defensive use. [¶] The word ‘firearm’ includes a pistol, revolver, shotgun, or
rifle. [¶] The People have the burden of proving the truth of this allegation. If
you have a reasonable doubt that it is true, you must find it to be not true.” (Italics
added.)
4

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offense.4 The trial court sentenced defendant to a state prison term that included
four years for the section 12022 arming enhancements. Defendant appealed.
Relying
on
Bland, supra, 10 Cal.4th 991, the Court of Appeal concluded
that the trial court’s instruction on the section 12022 arming enhancement was
defective in omitting the requirement of a nexus or link between the firearm found
in the van and defendant’s illegal possession and transportation of the
methamphetamine. Determining the omission to be prejudicial to defendant, the
Court of Appeal struck the jury’s findings on the enhancements. The Attorney
General asked this court to depublish the Court of Appeal’s decision. We granted
review on our own initiative.
II
Central to defendant’s claim of instructional error is this court’s 1995
decision in Bland, supra, 10 Cal.4th 991, which is summarized below.
In
Bland, the defendant was in a police car outside his house when police
searched the house and found in the defendant’s bedroom closet 17.95 grams of
rock cocaine; nearby was a duffel bag containing a gram scale, plastic baggies,
and other items typically associated with the manufacture and sale of cocaine base.
Also in the bedroom were several unloaded firearms, including a Colt AR-15
semiautomatic assault rifle and a photograph of the defendant with the assault
rifle. (Bland, supra, 10 Cal.4th at p. 995.)

4
With respect to the conviction for possessing methamphetamine under
Health and Safety Code section 11377, the arming enhancement was governed by
Penal Code section 12022, subdivision (a)(1) (setting out a one-year enhancement)
and not its subdivision (c) (setting out additional terms of imprisonment of three,
four, or five years for arming in the commission of specified drug offenses),
because simple possession is not one of the offenses covered by Penal Code
section 12022, subdivision (c).
5

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The jury in Bland found the defendant guilty of two felony counts of
possession of cocaine base for sale (Health & Saf. Code, § 11351.5), and as to one
of those counts found that he was armed with an assault weapon in the
commission of that offense (Pen. Code, § 12022, subd. (a)(2)). The Court of
Appeal set aside the section 12022 arming enhancement for insufficient evidence.
It reasoned that the defendant could not have been armed with the assault weapon
in committing the felony at issue because the unloaded assault rifle retrieved by
the officers was not accessible to the defendant who was outside the house during
the police search. This court disagreed. It reasoned that evidence of the
defendant’s possession of drugs and drug paraphernalia near the assault rifle was
sufficient to establish that he was armed in the commission of the felony drug
possession, within the meaning of section 12022. (Bland, supra, 10 Cal.4th at
pp.995-997.)
In construing section 12022’s phrase, “armed with a firearm,” Bland
explained that a defendant need not “utilize a firearm or even carry one on the
body.” (Bland, supra, 10 Cal.4th at p. 997.) Rather, “[a] defendant is armed if the
defendant has the specified weapon available for use, either offensively or
defensively.” (Ibid.)
Next,
Bland discussed the nature of drug possession, describing it as a
“ ‘continuing’ offense,” that is, one that “extends through time.” (Bland, supra,
10 Cal.4th at p. 999.) “Thus, throughout the entire time the defendant asserts
dominion and control over illegal drugs, the defendant is criminally liable for the
drug possession.” (Ibid.)
6

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Bland held that, for purposes of section 12022’s arming enhancement, a
defendant could be armed in the commission of a possessory drug offense even
though not near the firearm and the drugs when arrested. The important
circumstance, Bland said, was whether the defendant “had the firearm available
for use in furtherance of the drug offense at any time during his possession of the
drugs.” (Bland, supra, 10 Cal.4th at p. 1000, italics added.)
Of particular relevance here is this observation in Bland: “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.)” (Bland, supra, 10 Cal.4th at p. 1002, first and
second italics added.)
Section 12022’s arming enhancement, Bland observed, “implicitly
requires” a similar “ ‘facilitative nexus’ ” in light of the statute’s requirement that
the arming occur “in the commission” of the charged felony. (Bland, supra, 10
Cal.4th at p. 1002.) Thus, the arming under section 12022 must occur “during the
7

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commission of the underlying felony” (Bland, supra, at p. 1001) and it must have
“some ‘facilitative nexus’ to that offense” (id. at p. 1002, italics added). Bland
went on to hold: “[From evidence] that a firearm was found in close proximity to
. . . illegal drugs in a place frequented by the defendant, a jury may reasonably
infer (1) that the defendant knew of the firearm’s presence, (2) that its presence
together with the drugs was not accidental or coincidental, and (3) that, at some
point during the period of illegal drug possession, the defendant was present with
both the drugs and the firearm and thus that the firearm was available for the
defendant to put to immediate use to aid in the drug possession.” (Id. at pp. 1002-
1003.) Bland cautioned, however, that these reasonable inferences could support a
jury determination that the defendant was armed with a firearm “in the
commission” of the charged felony so long as the inferences were “not refuted by
defense evidence.” (Id. at p. 1003, italics added.)
Relying on this statement in Bland, the Court of Appeal here set aside the
jury’s findings on the section 12022 arming enhancements. The court pointed to the
defense evidence that defendant had the gun in his van not to aid in the felonies of
possessing and transporting methamphetamine but because he was contemplating
suicide. In light of that evidence, the Court of Appeal concluded, the trial court had
a sua sponte obligation to instruct the jury that for defendant to be armed with a
firearm in the commission of a felony, there had to be some “facilitative nexus”
between the firearm and the felony. I agree. Below, I explain why.
III
Section 12022’s subdivision (a)(1) states: “[A]ny person who is armed
with a firearm in the commission of a felony or attempted felony shall be punished
by an additional and consecutive term of imprisonment . . . .” (Italics added.) As
8

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discussed in part II, ante, this court’s decision in Bland construed the phrase
“armed . . . in the commission” of a felony offense as meaning that the arming
must occur “during the commission of the underlying felony” (Bland, supra, 10
Cal.4th at p. 1001) and must have some link or nexus to that offense (id. at
p. 1002). A jury may reasonably infer from a firearm’s close proximity to illegal
drugs that the firearm’s “presence together with the drugs was not accidental or
coincidental.” (Bland, supra, at p. 1003.) But this inference can be “refuted by
defense evidence” to the contrary. (Ibid.) That is what occurred in this case.
Defendant presented evidence that he had the .357 Ruger revolver in his
van because he had been contemplating suicide, which supported the theory that
the gun’s presence was unrelated to his possession and transportation of
methamphetamine. The trial court’s instruction to the jury, however, precluded
consideration of this theory.
In the language of CALJIC No. 17.15, the trial court instructed the jury that
if it found defendant guilty of either one of the two felonies, it must then decide
whether defendant “was armed with a firearm at the time of the commission or
attempted commission” of that felony. (CALJIC No. 17.15, italics added; see p. 3,
fn. 3, ante.) Thus, this instruction properly included the temporal requirement set
forth in Bland, supra, 10 Cal.4th 991, that the arming must take place during the
underlying felony. But the jury was not instructed on Bland’s additional
requirement that to be armed in the commission of a felony, the arming must have
some link or nexus to that felony. A trial court must, on its own initiative, instruct
the jury on those general legal principles that are relevant to the defense theory of
the case and supported by the evidence. (People v. San Nicolas (2004) 34 Cal.4th
614, 669; People v. Breverman (1998) 19 Cal.4th 142, 157.)
In giving the jury an incomplete description of the “in the commission”
element of section 12022’s arming enhancement, the trial court erred. This
9

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instructional error is harmless only if beyond a reasonable doubt it did not affect
the jury’s verdict. (People v. Sengpadychith (2001) 26 Cal.4th 316, 324-326; see
also Neder v. United States (1999) 527 U.S. 1, 10 [With both “misdescriptions and
omissions—the erroneous instruction precludes the jury from making a finding on
the actual element”]; California v. Roy (1996) 519 U.S. 2, 5.)
Here, the instructional error precluded the jury from considering
defendant’s claim that the gun’s presence in the van had no connection to the
nearby methamphetamine that was concealed in a cigarette package inside a
plastic garbage bag together with defendant’s clothing and other personal items.
Whether a majority of this court disbelieves the defense evidence that defendant
had the gun to commit suicide is beside the point. It was for the jury, as the trier
of fact, to consider that defense evidence, and to either accept or reject it.
Compounding the instructional error was the prosecutor’s erroneous
comment in closing argument to the jury that defendant’s reason for having the
gun in the van was irrelevant; the pertinent issue for the jury, the prosecutor said,
was whether the gun was “available” to defendant. The jury’s apparent confusion
on this very point is evident from its inquiry of the trial court on the meanings of
the terms “armed” and “availability” for purposes of the section 12022 arming
enhancement. The trial court provided no answers. (See p. 4, ante.)
Under these circumstances, I cannot conclude that beyond a reasonable
doubt the instructional error had no effect on the jury’s verdict, and I would affirm
the Court of Appeal in setting aside the arming enhancement.
IV
The majority insists that in this case there was no need to instruct the jury
on the necessity of finding a link or nexus between the gun and the nearby drugs
in defendant’s van. It reasons that defendant did not sufficiently refute the
inference of arming arising from the prosecution’s case because he admitted
10

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knowing that the pistol was in the van near the methamphetamine when he
testified to deliberately placing the gun and the drugs in his van. (Maj. opn., ante,
at p. 11.) According to the majority, the “close proximity [of the drugs and the
gun] did not occur through ignorance or happenstance.” (Ibid.)
I disagree with the majority that a defendant who knows that a firearm is
near illegal drugs in his possession can never refute an inference of being armed
within the meaning of section 12022. The majority acknowledges that this court’s
decision in Bland established a purpose and effect test. (Maj. opn., ante, at p. 13.)
As Bland put it, “ ‘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.’ ” (Bland, supra, 10 Cal.4th at p. 1002, first italics
added.) As the majority sees it, a firearm found near illegal drugs always meets
the Bland test so long as the defendant knows of the gun’s presence and can
retrieve it to further any unlawful purposes in connection with the drugs. I do not
share that view.
When a defendant has knowingly placed a firearm nearby illegal drugs, the
gun’s mere presence cannot, under Bland, supra, 10 Cal.4th 991, be considered an
“ ‘accident.’ ” (Id. at p. 1002, italics omitted.) But the location of the gun near the
drugs may well be a “ ‘coincidence.’ ” (Ibid.) As discussed earlier, that was the
essence of the defense here. The jury, as trier of fact, may not have accepted that
defense, but defendant was entitled to have the jury at least consider it. The jury
was precluded from doing so, however, because of the trial court’s failure to
instruct on the necessity of finding a link or nexus between the gun and the
underlying felonies of possessing and transporting methamphetamine.
I would affirm the Court of Appeal.
KENNARD,
J.
11

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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion: People v. Pitto
__________________________________________________________________________________

Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted

XXX 133 Cal.App.4th 1544
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S139609
Date Filed: April 7, 2008
__________________________________________________________________________________

Court:

Superior
County: Lake
Judge: Arthur H. Mann

__________________________________________________________________________________

Attorneys for Appellant:

Dennis P. Riordan, under appointment by the Supreme Court; Riordan & Horgan and Donald M. Horgan
for Defendant and Appellant.

__________________________________________________________________________________

Attorneys for Respondent:

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson, Chief Assistant Attorney
General, Gerald A. Engler, Assistant Attorney General, Catherine A. Rivlin, Christina Vom Saal and
Gregg Zywicke, Deputy Attorneys General, for Plaintiff and Respondent.

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Counsel who argued in Supreme Court (not intended for publication with opinion):

Donald M. Horgan
Riordan & Horgan
523 Octavia Street
San Francisco, CA 94102
(415) 431-3472

Christina Vom Saal
Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
(415) 703-5979

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Review on the court's own motion after the Court of Appeal affirmed in part and reversed in part a judgment of conviction of criminal offenses. This case presents the following issues: (1) Did CALJIC No.17.15, as given by the trial court here, adequately apprise the jury of the need for a "facilitative nexus" between the handgun and the underlying crime, as those terms are utilized in People v. Bland (1995) 10 Cal.4th 991? (2) If not, did the trial court have a sua sponte duty to modify the instruction given? (3) Was any instructional omission prejudicial?

Opinion Information

Date:	Citation:	Docket Number:	Category:	Status:
Mon, 04/07/2008	43 Cal. 4th 228, 180 P.3d 338, 74 Cal. Rptr. 3d 590	S139609	Review - Criminal Appeal	closed; remittitur issued

Disposition
Apr 7 2008	Opinion: Affirmed

Dockets
Dec 15 2005	Request for depublication filed (initial case event)   The People, Respondent Christina Vom Saal, Deputy Attorney General
Jan 9 2006	Time extended to grant or deny review   on the court's own motion to 3-14-06.
Jan 25 2006	Received Court of Appeal record
Feb 8 2006	Review granted on court's own motion (criminal case)   Review is granted on the court's own motion. For purposes of briefing and argument, the Attorney General is designated petitioner in this court and is directed to file a brief on the merits. Answers thereto will be filed by respondent. (See Cal. Rules of Court, rule 29.1.) The parties are directed to brief the following issues: 1) Did CALJIC No.17.15, as given by the trial court here, adequately apprise the jury of the need for a "facilitative nexus" between the handgun and the underlying crime, as those terms are utilized in People v. Bland (1995) 10 Cal.4th 991? 2) If not, did the trial court have a sua sponte duty to modify the instruction given? 3) Was any instructional omission prejudicial?" Chin, J., was absent and did not participate. Votes: George, C.J., Kennard, Baxter, Werdegar, Moreno, and Corrigan, JJ.
Feb 23 2006	Counsel appointment order filed   Dennis Riordan for appellant, Michael Christopher Pitto. Appellant's brief on the merits due on or before 30 days form the date respondent's opening brief on the merits is filed.
Mar 13 2006	Received:   respondent's untimely opening brief on the merits with separate application for relief from default and declaration.
Mar 15 2006	Opening brief on the merits filed   with permission Respondent, The People Christina Vom Saal, Deputy Attorney General.
Apr 7 2006	Request for extension of time filed   for appellant( Michael Pitto ) to file the answer brief on the merits. Asking to May 10, 2006. by counsel, Dennis P. Riordan.
Apr 12 2006	Extension of time granted   to May 10, 2006 , for appellant to file the answer brief on the merits.
May 9 2006	Request for extension of time filed   to May 17, 2006 to file appellant (Michael Pito) answer brief on the merits.
May 10 2006	Extension of time granted   to May 17, 2006 to file appellant's answer brief on the merits.
May 17 2006	Answer brief on the merits filed   Appellant, Michael Christopher Pitto by counsel, Donald M. Horgan.
Jun 6 2006	Reply brief filed (case fully briefed)   The People, Respondent Christina Vom Saal, Deputy Attorney General
Oct 1 2007	Received:   Letter from Attonrey General's office stating that attorney assigned to the case will be unavailable from November 5, 2007 to November 19, 2007. by Christina Vom Saal, Deputy Attorney General.
Dec 4 2007	Case ordered on calendar   Wednesday, January 9, 2008, at 1:30 p.m., in San Francisco
Dec 18 2007	Letter sent to:   counsel for both parties concerning oral argument preparedness.
Jan 9 2008	Cause argued and submitted
Apr 4 2008	Notice of forthcoming opinion posted
Apr 7 2008	Opinion filed: Affirmed in part, reversed in part   The judgment of the Court of Appeal is reversed insofar as that court vacated the finding and enhancement under section 12022(c). In all other respects, the judgment is affirmed. Opinion by: Baxter, J. -----joined by George, C.J., Werdegar, Chin, Moreno, Corrigan, JJ.
May 8 2008	Remittitur issued (criminal case)
May 14 2008	Received:   receipt for remittitur CA 1/5.
Jun 18 2008	Compensation awarded counsel   Atty Riordan

Briefs
Mar 15 2006	Opening brief on the merits filed
May 17 2006	Answer brief on the merits filed
Jun 6 2006	Reply brief filed (case fully briefed)

If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website