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The People v. Kevin Alexander Rosenblum

November 7, 2012


(Super. Ct. No. MF032426A)

The opinion of the court was delivered by: Hoch , J.

P. v. Rosenblum



California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Defendant Kevin Alexander Rosenblum was convicted by jury of one count of transportation of methamphetamine, one count of possession of a dangerous weapon (sawed-off shotgun), two counts of possession of a firearm by a felon (sawed-off shotgun and handgun) and two counts of possession of ammunition by a felon (shotgun slugs and handgun ammunition). The jury also found that defendant was personally armed with a handgun during the transportation offense. After waiving a jury trial on an allegation that he was previously convicted of a strike offense, defendant admitted the allegation. The trial court sentenced defendant to an aggregate term of 10 years in state prison and imposed other orders.

On appeal, defendant asserts: (1) there is insufficient evidence to support the jury's finding that he was personally armed with a firearm during the transportation offense; (2) the trial court prejudicially erred in refusing his request to instruct the jury on simple possession as a lesser-included offense of transportation; (3) the trial court prejudicially erred in failing to provide the jury with a unanimity instruction regarding the possession of ammunition counts; (4) defendant's admission to the prior strike allegation was not intelligent and voluntary; and (5) defendant is entitled to additional presentence conduct credit under the October 1, 2011, amendment to Penal Code section 4019.*fn1

We disagree with each contention. As we explain, the jury reasonably could have inferred that the handgun, which was in the rear cargo area of defendant's Chevy Blazer as he transported methamphetamine in the vehicle, was available for use either offensively or defensively. With respect to defendant's second contention, we conclude that simple possession is not a lesser-included offense of transportation. Nor could the jury reasonably have concluded that defendant possessed the methamphetamine in the moving Blazer, but did not also transport the drug. Defendant's third contention fails because the verdict forms and the prosecutor's closing argument made clear which particular ammunition was being relied upon to support the possession of ammunition counts. We also conclude that defendant's admission to the prior strike allegation was intelligent and voluntary. Finally, defendant is not entitled to additional conduct credits under section 4019. Accordingly, we affirm the judgment.


On August 20, 2009, defendant lived on Austin Road in Manteca with his wife and children. Detective Paul Carmona with the Manteca Police Department's narcotics unit had the house under surveillance. Defendant arrived home in his Chevy Blazer at about 7:15 p.m. and then left the house in the same vehicle a short time later. Detective Carmona and several other police officers followed in unmarked police cars. Defendant drove south on Austin Road to Highway 99, drove north on Highway 99 to Highway 120, and then drove west on Highway 120 to Airport Way. At Airport Way, defendant exited the highway, drove over the overpass, and again got onto Highway 120, this time driving east. At Main Street, defendant again exited the highway and drove north until he was pulled over at Moffat Boulevard. During the entire trip, defendant was "changing lanes" and "constantly looking around, looking into his rear view mirror." According to Detective Carmona, defendant's route and manner of driving was "indicative of counter-surveillance" employed by drug dealers to make sure that law enforcement officers or other drug dealers are not following them.

Officers searched defendant when he was pulled over and found two small Ziploc baggies containing methamphetamine in the fold of his beanie cap. Officers also searched the Blazer's passenger compartment and found three such baggies in a pack of Newport cigarettes that was in the center console. The baggies were about a square inch in size and were decorated with a "space alien face." After defendant was arrested, police impounded the Blazer and then searched defendant's house. On the dresser in the master bedroom, officers found more methamphetamine, a digital scale, several Ziploc baggies that were identical to the ones found in the Blazer, another baggie containing marijuana, and $358 in cash. In the garage, police found a sawed-off shotgun, five shotgun slugs in a Nextel box next to the shotgun, and a safe containing some "miscellaneous ammunition," including a partial box of either .32-caliber or .22-caliber ammunition and a single .25-caliber round.

After searching defendant's house, police did a more thorough search of the Blazer. In the rear cargo area, in the jack compartment, officers found a .25-caliber handgun and a clip containing six .25-caliber rounds. The jack compartment was covered, but was easily opened by depressing two tabs. Once the cover was removed, the gun and clip could be retrieved simply by reaching into the compartment. Defendant could not reach the weapon from the driver's seat. However, it would take a matter of seconds for defendant to either climb into the back seat or walk around the Blazer and open the back. From either position, defendant could reach into the cargo area, open the jack compartment, and retrieve the gun and clip.



Sufficiency of the Evidence

Defendant contends there is insufficient evidence to support the jury's finding that he was personally armed with a firearm during the transportation offense. We disagree.

" 'To determine the sufficiency of the evidence to support a conviction, an appellate court reviews the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.' [Citations.]" (People v. Wallace (2008) 44 Cal.4th 1032, 1077; Jackson v. Virginia (1979) 443 U.S. 307, 317-320 [61 L.Ed.2d 560, 572-574].) The standard of review is the same in cases in which the prosecution relies on circumstantial evidence. (People v. Snow (2003) 30 Cal.4th 43, 66.) " 'Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court which must be convinced of the defendant's guilt beyond a reasonable doubt.' " (People v. Stanley (1995) 10 Cal.4th 764, 792-793.) Accordingly, we must affirm the judgment if the circumstances reasonably justify the jury's finding of guilt regardless of whether we believe the circumstances might also reasonably be reconciled with a contrary finding. (People v. Thomas (1992) 2 Cal.4th 489, 514; People v. Rodriguez (1999) 20 Cal.4th 1, 11.)

Section 12022, subdivision (c), provides for an enhancement of three, four, or five years for "any person who is personally armed with a firearm" in the commission of certain enumerated offenses, including transportation of methamphetamine. This provision 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.' [Citations.] A defendant is armed under section 12022 as long as the gun is 'available for use, either offensively or defensively.' [Citation.]" (People v. Pitto (2008) 43 Cal.4th 228, 236 (Pitto).)

In People v. Bland (1995) 10 Cal.4th 991, 997 (Bland), the defendant was convicted of possession of cocaine base for the purpose of sale and was found to have been armed during the commission of the offense within the meaning of section 12022. The cocaine base was found in the defendant's bedroom closet; under the bed was a cache of unloaded firearms. (Id. at pp. 995-996.) The Court of Appeal found insufficient evidence to support the arming enhancement based on the fact that the defendant was outside the house when police found the drugs and firearms in his bedroom. (Id. at p. 996.)

Our Supreme Court disagreed and reinstated the enhancement, explaining: "Possessory drug offenses are continuing crimes that extend throughout a defendant's assertion of dominion and control over the drugs, even when the drugs are not in the defendant's immediate physical presence. Therefore, when 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 had the firearm close at hand and thus available for immediate use to aid in the drug offense. 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 at p. 995.)

The Bland court also explained: "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. ยง 924 (c)(1)), have described this link as a 'facilitative nexus' between the drugs and the gun. [Citation.] 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.' [Citation.] So too in California." (Bland, supra, 10 Cal.4th at p. 1002.) However, while "section 12022 implicitly requires both that the 'arming' take place during the underlying crime and that it have some 'facilitative nexus' to that offense," "[e]vidence that a firearm is kept ...

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