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Name: People v. Sanchez
Case #: H047350
Court: CA Court of Appeal
District 6 DCA
Opinion Date: 06/30/2021

A rifle inside a bag partly covered by a board in the open bed of a pickup truck was not available for “immediate” use for purposes of possession of a controlled substance while armed with a loaded firearm (Health & Saf. Code, § 1130.71, subd. (a)). Police stopped defendant while he was driving a pickup truck with methamphetamine in the cab of the truck. In the open bed of the truck, police found a loaded rifle inside a bag that was partly covered by a board. A jury found him guilty of possession of a controlled substance while armed with a loaded firearm (§ 1130.71, subd. (a)) (count two), and carrying a loaded firearm in a vehicle (Pen. Code, § 25850, subd. (a)) (count three). On appeal, defendant challenged the sufficiency of the evidence to support count two. Held: Reversed. Section 11370.1 prohibits the possession of certain controlled substances “while armed with a loaded, operable firearm.” It defines “armed with” as “having available for immediate offensive or defensive use.” Defendant argued the evidence was insufficient to support count two because the plain meaning of the word “immediate” requires that there be no delay or intervening lapse of time before the gun can be used. Considering the plain meaning of the term, the court agreed the gun was not available for “immediate” use. To use the rifle, defendant would have had to get out of the cab to go to the truck bed, reach into the bed to retrieve the bag from under the board, and take the gun out of the bag before he could operate the gun. This would involve some lapse in time, and the physical objects and distance between defendant and the gun made it less available to him. Because these facts do not satisfy the immediacy requirement expressly set forth in the statute, the conviction on count two must be reversed.