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Filed 7/19/16 P. v. Ragan CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication 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.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Placer)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

DANIEL PHILLIP RAGAN,

Defendant and Appellant.

C080548

(Super. Ct. No. 62073433A)

Defendant Daniel Phillip Ragan appeals from the trial court’s order denying his 

Penal Code1section 1170.126 petition for resentencing on his convictions for 

maintaining a place for selling or using controlled substances and felon in possession of 

ammunition. He contends there is insufficient evidence that he was armed with a deadly 

 

1 Undesignated statutory references are to the Penal Code. 
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weapon during the commission of those offenses to support the trial court’s finding that 

he was ineligible for resentencing. We affirm.

BACKGROUND

We take the facts of defendant’s crimes from our unpublished opinion affirming 

his conviction.

Cameo James (Jodi), who by all accounts ran a drug house and was charged as a 

codefendant in this case, committed suicide after pleading guilty to the possession and 

sale of various drugs. Her teenage son, C. J., and various neighbors testified for the 

prosecution and presented compelling evidence that defendant either spearheaded the 

narcotics business or aided and abetted Jodi’s operation out of her house on Oakview 

Drive in Roseville. C. J. testified defendant lived with him and his mother for several 

months until a few days before a SWAT team descended on the house, confiscated drugs 

and weapons from throughout the house, and arrested his mother. He saw defendant with 

a .38-caliber handgun while defendant was living at the house.

Jodi’s mother testified that on one occasion while defendant was living with her 

daughter, she went to visit. Although she saw Jodi’s car parked in the driveway, 

defendant would not allow her in the house. When she persisted, defendant told her to 

“get the hell off of that porch,” followed by a threat that if she did not leave, he had “a 

.38 that would make [her] leave.” She complied and did not report the incident to the 

police.

None of the neighbors got to know defendant after he began living at the house in 

their otherwise “nice” and “quiet” neighborhood. Some observed a marked increase in 

the number of visitors who went to the house at all hours of the night and day. Several 

testified they recognized defendant because of the number of tattoos he had all over his 

body. Although they testified that his appearance had changed substantially by the time 

of trial, when shown a picture taken at the time of his arrest, they identified defendant and 
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reported that he had lived in the house for several months during 2007. There were 

varying accounts of when he appeared to have moved out.

At 2:30 a.m. on August 1, 2007, a Roseville police officer was responding to a 

residential burglar alarm on Oakview Drive when he noticed an older Ford Crown 

Victoria parked close by with its parking lights on. There did not appear to be anyone in 

the vehicle. Suspicious, the officer made a U-turn, and when he pulled up behind the car, 

defendant popped up. Held at gunpoint, defendant explained that he lived in the house 

with his girlfriend and one of them had set off the burglar alarm. Because defendant was 

fidgety, spoke rapidly, and was sweating profusely, the officer believed he was under the 

influence of a drug.

A second officer and his K-9 partner, Drago, searched the car. They found 2.19 

grams of methamphetamine in two baggies; the first officer found two hypodermic 

needles. Defendant was arrested and when booked, he stated he resided at 1714 Oakview 

Drive in Roseville. He was released on bail.

On August 22, 2007, police officers from both Citrus Heights and Roseville 

executed a search warrant at Jodi’s house at 1714 Oakview Drive. They found both male 

and female clothing in the closet of the master bedroom, as if a couple was sharing the 

room together. Jodi was present during the search; defendant was not.

The police confiscated the following items from the master bedroom: usable 

quantities of methamphetamine; glass pipes; empty Ziploc baggies; a Ziploc baggie 

containing methadone tablets in a dresser drawer; marijuana; a loaded .38-caliber 

revolver; a box of .38-caliber ammunition on top of a dresser inside a black bag with the 

words “Tattoo gun” handwritten on the bag; unfired .357-Magnum revolver ammunition 

in an armoire drawer; a black mechanical gram scale with white crystalline residue on it 

in an armoire drawer; a black leather fanny pack on the bed containing a digital plastic 

gram scale; several hypodermic needles in an armoire drawer; two photographs of Jodi 

and defendant inside a wooden box on top of a dresser; and a videotape of defendant and 
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Jodi. Based on this evidence, an expert in the sale of narcotics testified that 

methamphetamine was actively sold from Jodi’s house on Oakview Drive.

Five days later defendant was seen going through a back window at Jodi’s house. 

He was arrested. When booked, he provided “1714 Oakview, Roseville, California 

95661” as his address and stated he was a “[t]attoo artist.” Again he was released on bail, 

only to be rearrested a couple of weeks later.

Following Jodi’s failure to appear on the August 22 charges, a warrant was issued 

for her arrest. On September 14, 2007, a police officer stopped a white Ford Mustang 

driven by defendant; Jodi was a passenger. Defendant, sporting brass knuckles on his 

belt, dropped a baggie of marijuana as he stepped out of the car as ordered. During the 

ensuing search, officers found syringes in his pockets. One of the officers on the scene 

noticed that defendant had tattoos of revolvers on his body.

The officers searched the car. They found methamphetamine, glass pipes, various 

pills (including hydrocodone), and syringes. One baggie of methamphetamine was found 

on the front passenger’s seat, and another was found in plain view on the “transmission 

hump” in the rear seating area. The pipes and hydrocodone were found inside a leopardprint purse on the floorboard of the vehicle, behind the front passenger’s seat. The 

syringes were found inside another purse with a skull and crossbones design on the 

outside.

Defendant and Jodi were arrested. During an interview, defendant stated he and 

Jodi had broken up during the week of August 22 but had gotten back together. Again 

defendant exhibited signs of recent drug use. He tested positive for methamphetamine, 

amphetamine, and a marijuana metabolite.

A jury found defendant guilty of possession of methamphetamine, possession of a 

hypodermic needle, possession of a controlled substance, possession of 

methamphetamine and/or methadone while armed with a firearm, maintaining a place for 

selling or using a controlled substance, felon in possession of a firearm, felon in 
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possession of ammunition, transportation of methamphetamine, possession of a deadly 

weapon, driving under the influence of alcohol or drugs, being under the influence of 

methamphetamine, unauthorized possession of a hypodermic needle, and driving with a 

suspended or revoked driver’s license, along with two on-bail allegations.

Defendant admitted two strikes and two prior prison term allegations, and the trial 

court sentenced him to 181 years to life in state prison. On appeal, we modified the 

sentence to stay imposition of sentence for possession of a controlled substance pursuant 

to section 654, and affirmed the judgment as modified. 

Defendant subsequently filed a section 1170.126 petition seeking a reduction of 

his sentence to no more than 20 years. The trial court granted the petition as to 

possession of methamphetamine and denied it as to the remaining felonies on the ground 

that defendant was armed during the commission of those offenses. The trial court stayed 

the hearing on resentencing defendant pending resolution of this appeal. 

DISCUSSION

Defendant contends there is insufficient evidence that he was armed during the 

commission of the maintaining a place for selling or using a controlled substance and 

felon in possession of ammunition offenses to support the trial court’s finding that he was 

ineligible for resentencing on those convictions. We disagree.

Section 1170.126 allows defendants serving a life term for a third strike to petition 

for resentencing. (§ 1170.126, subd. (b).) Eligibility for resentencing is initially limited 

to defendants serving life terms for felonies that are neither serious nor violent. 

(§ 1170.126, subd. (e)(1).) Other factors can render a defendant ineligible for 

resentencing. One of the disqualifying factors, as cross-referenced in section 1170.126, 

subdivision (e)(2), renders an offense ineligible for recall of sentence if “[d]uring the 

commission of the current offense, the defendant used a firearm, was armed with a 

firearm or deadly weapon, or intended to cause great bodily injury to another person.” 

(§ 667, subd. (e)(2)(C)(iii).) 
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In order to find defendant ineligible for resentencing, the trial court had to make a 

factual determination that he was armed with a deadly weapon during the commission of 

his offense. (People v. Bradford (2014) 227 Cal.App.4th 1322, 1331-1332.) This 

determination is retrospective in nature, similar to determining the factual nature of a 

prior conviction. (Id. at pp. 1337-1338.) We review a trial court’s factual findings 

regarding the nature of a prior conviction for substantial evidence, viewing the record in 

the light most favorable to the judgment. (People v. Jones (1999) 75 Cal.App.4th 616, 

633.)

A defendant is “armed” within the meaning of section 12022, subdivision (a)(1) 

“if the defendant has the specified weapon available for use, either offensively or 

defensively. [Citations.] . . . ‘[A] firearm that is available for use as a weapon creates the 

very real danger it will be used.’ [Citation.] Therefore, ‘[i]t is the availability--the ready 

access--of the weapon that constitutes arming.’ ” (People v. Bland (1995) 10 Cal.4th 

991, 997.) “[A]rming under the sentence enhancement statutes does not require that a 

defendant utilize a firearm or even carry one on the body.” (Ibid.) 

In Bland, the Supreme Court agreed with the People’s contention “that when, as 

here, a defendant engaged in felony drug possession, which is a crime of a continuing 

nature, has a weapon available at any time during the felony to aid in its commission, the 

defendant is ‘armed with a firearm in the commission . . . of a felony’ within the meaning 

of section 12022, subdivision (a).” (People v. Bland, supra, 10 Cal.4th at p. 999.) The 

Supreme Court accordingly concluded that, “[f]rom evidence that the assault weapon was 

kept in defendant’s bedroom near the drugs, the jury could reasonably infer that, at some 

point during the felonious drug possession, defendant was physically present with both 

the drugs and the weapon, giving him ready access to the assault rifle to aid his 

commission of the drug offense.” (Id. at p. 1000.)

Defendant attempts to distinguish Bland by claiming it is limited to the facts of the 

case, a prosecution for the possession of drugs. Not so. The Supreme Court’s holding 
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was not premised on the fact the defendant was convicted of a drug possession offense, 

but because the drug possession offense was a continuing crime. Since defendant was 

continuously criminally liable while he possessed the illegal drugs, an armed finding was 

appropriate if the fact finder could infer he had ready access to the firearm at any point 

during the drug possession, Bland’s reasoning therefore applies to any continuing 

offense.

The crime of maintaining a place for selling or using controlled substances is 

codified by Health and Safety Code section 11366, which states in pertinent part: “Every 

person who opens or maintains any place for the purpose of unlawfully selling, giving 

away, or using any controlled substance . . . shall be punished by imprisonment in the 

county jail for a period of not more than one year or the state prison.”

“Cases construing the terms ‘maintaining’ or ‘opening’ in reference to narcotics 

cases rely on earlier opinions which construed those terms in statutes proscribing 

maintaining alcohol-related nuisances during Prohibition. These were places whose 

proprietors meant them to be used for consumption or sale of alcohol. Similarly, the 

courts have held that Health and Safety Code section 11366 and its predecessor, section 

11557, are aimed at places intended for a continuing course of use or distribution.”

(People v. Shoals (1992) 8 Cal.App.4th 475, 490; see also People v. Vera (1999) 

69 Cal.App.4th 1100, 1102-1103 [“The defendant seems to suggest that a violation of 

section 11366 occurs if a person engages in the personal, sequential use of any of the 

specified substances in his or her residence. We do not read this section to cover mere 

repeated solo use at home. To ‘open’ means ‘to make available for entry’ or ‘to make 

accessible for a particular purpose’ [citation], and to ‘maintain’ means ‘to continue or 

persevere in’ [citation]. When added to the word ‘place,’ the opening or maintaining of a 

place indicates the provision of such locality to others”].)

Maintaining of a place for using or selling controlled substances is therefore 

subject to Bland as it is a continuing offense. Since felon in possession of ammunition is 
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a possessory offense, it, like the unlawful possession of drugs or a firearm, is a continuing 

crime, and therefore also subject to Bland.

Applying Bland, we find substantial evidence supports the trial court’s ruling as to 

both offenses. Defendant’s home was the location where he maintained a place for 

furnishing or using drugs, and a loaded firearm was found in his bedroom in the home. 

The trial court could reasonably infer that defendant would use his own bedroom and, 

since the maintaining crime was a continuous offense, defendant had the loaded firearm 

available for immediate offensive or defensive use while committing that crime. Since 

police found ammunition both near to and loaded in that same firearm, defendant was 

also armed while committing the continuous offense of felon in possession of 

ammunition. The trial court’s denial of the petition as to these offenses is therefore 

supported by substantial evidence.

DISPOSITION

The judgment (order) is affirmed.

/s/ 

Robie, J.

We concur:

/s/ 

Hull, Acting P. J.

/s/ 

Butz, J.