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People v. Pitto (2008) , Cal.4th
[No. S139609. Apr. 7, 2008.]
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL CHRISTOPHER PITTO, Defendant and Appellant.
(Superior Court of Lake County, No. CR 033635, Arthur H. Mann, Judge.)
(The Court of Appeal, First Dist., Div. Five, No. A105164, 133 Cal.App.4th 1544.)
(Opinion by Baxter, J., with George, C. J., Werdegar, J., Chin, J., Moreno, J., and Corrigan, J., concurring. Dissenting opinion by Kennard, J.)
OPINION
BAXTER, J.-
Penal Code section 12022 fn. 1 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.) {Slip Opn. Page 2}
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