P. v. Pontod

 

 

 

 

 

 

 

 

 

Filed 5/30/13  P. v.
Pontod CA3

Opinion following rehearing

 

 

 

 

 

NOT TO
BE PUBLISHED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opinion has not been certified for publication or ordered published for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

(San
Joaquin)

----

 

 

 
>

THE PEOPLE,                           Plaintiff and Respondent,               v.   MANUEL RAY PONTOD et al.,                           Defendants and Appellants.

C065925   (Super. Ct. Nos. SF112457A & SF112457B)

 

 

 

 

            This
opinion follows our January
7, 2013 order granting defendant’s petition for
rehearing and vacating our prior opinion in this matter.  (People
v. Pontod (Dec.
18, 2012, C065925) [nonpub. opn.]; Cal.
Rules of Court, rule 8.268(d).) 

            A
jury convicted defendants Manuel Ray Pontod and Jorge Jaime of each being a
felon in possession of a firearm, and
of the unlawful possession of ammunition. 
The jury also convicted Jaime of transporting methamphetamine,
possessing methamphetamine for sale, and possessing a controlled substance with
a loaded, operable firearm.  In addition,
the jury found that Jaime was armed in the commission of the offenses for
transportation and possession of methamphetamine.  The trial court found Pontod had two prior
strike convictions and had served a prior prison term.  It sentenced Pontod to a term of 25 years to
life in state prison, and sentenced Jaime to a term of seven years and eight
months in state prison. 

            On
appeal, Pontod asserted:  the trial court
erred in denying his Batson/Wheeler
motion (Batson v. Kentucky (1986) 476
U.S. 79 [90 L.Ed.2d 69] (Batson); >People v. Wheeler (1978) 22 Cal.3d 258 (>Wheeler); his conviction for being a
felon in possession of a firearm is not supported by substantial evidence; and
the trial court abused its discretion in denying his motion to dismiss one of
the prior strike allegations.

            In
addition, Jaime asserted:  his punishment
for being a felon in possession of a firearm and for being armed while
transporting methamphetamine violates the prohibition against multiple
punishment in Penal Code section 654;href="#_ftn1" name="_ftnref1" title="">[1]
and his conviction for possessing a controlled substance while armed with a
firearm must be reversed because there is no substantial evidence that the
firearm was operable. 

            In
our original opinion, we rejected defendants’ claims, concluding:  (1) the trial court did not err in denying
Pontod’s Batson/Wheeler motion
because there was no proof by a preponderance
of the evidence that a prospective juror had been removed based on race;
(2) there is substantial evidence that Pontod possessed one of the guns in the
car; (3) the trial court did not abuse its discretion in denying Pontod’s
motion to dismiss one of the prior strike allegations; (4) Jaime’s sentence
does not violate section 654; and (5) there is substantial evidence that Jaime
was armed with an operable firearm. 

            Pontod filed a
petition for rehearing, arguing that he is entitled to the benefit of
Proposition 36, which was approved by the voters on November 6, 2012
and modifies the three strikes law.  He
asked us to vacate his sentence and remand the matter for a new sentencing
hearing.  We vacated our original opinion
in order to address Pontod’s contention. 
We continue to reject defendants’ original contentions.  We also conclude that Pontod is not entitled
to a remand for a new sentencing hearing for the reasons explained in >People v. Conley (2013) ___ Cal.App.4th
___ [2013 WL 1833251] (Conley). 
Accordingly, we will affirm the judgments.

BACKGROUND

            California
Highway Patrol Sergeants Crutchfield and Languemi saw a Camaro fishtail around
a street corner one evening in 2009. 
They stopped the Camaro, and Sergeant Crutchfield walked toward the
driver’s door while Sergeant Languemi walked toward the passenger side.  Kurt Nagle was in the driver seat, Jaime was
in the front passenger seat, and Pontod was in the right rear passenger
seat.  They were all moving around, and
Pontod looked like he was trying to cover something up on the floorboard. 

            As
Sergeant Crutchfield neared the car, Nagle opened the driver’s door and began
to get out.  Crutchfield told him to stay
in the car, and asked for his license, registration, and proof of
insurance.  Nagle appeared extremely
nervous and his hands were shaking. 
Crutchfield saw Pontod trying to cover up a case of beer in the rear of
the car.  Crutchfield told Nagle, “Tell
your friends that I can see the beer and to stop moving around.”  Because Crutchfield could smell alcohol, he
had Nagle get out and escorted him toward the front of the patrol car. 

            Sergeant
Languemi, who was standing at the right rear side of the Camaro, turned on his
flashlight and illuminated the inside of the vehicle.  He saw the handle of a .44 caliber revolver
at Pontod’s feet, and saw Pontod “making a motion like trying to kick it
forward.”  Languemi drew his own gun and
watched to make sure that Pontod did not reach for the revolver in the
car.  Languemi did not immediately tell
Crutchfield because he did not want to alert the occupants of the car to the
fact that he had seen the weapon. 
However, as Crutchfield escorted Nagle toward the patrol car, Languemi
told him to handcuff Nagle and put him in the backseat.  Crutchfield asked why, and Languemi replied,
“[r]ight rear has a gun.”  The two
officers waited for backup to arrive and then handcuffed Pontod and Jaime
before placing them in patrol cars. 

            A
search of the Camaro revealed three handguns: 
a loaded .25 caliber semiautomatic tucked between the driver’s seat and
the center console near the seatbelt release; a loaded .38 Special revolver
concealed underneath the front part of the front passenger’s seat; and a loaded
.44 caliber revolver underneath the rear portion of the right front passenger
seat.  A plastic bag containing a large
quantity of methamphetamine was inside a case of beer on the rear passenger
seat.  A box of .44 caliber ammunition
was also on the rear passenger seat underneath a fast food bag. 

            Jaime
testified that he alone possessed the guns and methamphetamine, and that
neither Nagle nor Pontod knew about the contraband.  Jaime stated that on the night in question,
he began having car trouble and managed to drive to the nearby Pontod family
paint shop to call a tow truck.  Pontod
was there and Jaime spoke to him briefly before Nagle happened to arrive.  Either Nagle or Pontod asked if Jaime needed
a ride.  Because Jaime did not have a
place to live, he kept his guns, ammunition and drugs in his car.  He grabbed these items, and surreptitiously
put them in his pockets and front waistband, before getting into the front seat
of Nagle’s car.  As they were driving,
Jaime pretended to tie his shoes.  He
pulled the .44 caliber gun from his waistband in his “crotch area,” and “threw
it back,” which meant he shoved the gun under the front seat and pushed it
towards the back.  Jaime stated he
discreetly pulled the .38 caliber revolver from his right pocket and put it
under the same seat.  He left the
remaining .25 caliber gun in his pocket and put the ammunition, which was in a
McDonald’s bag, on the floor.  When the police
pulled them over, Jaime got nervous and threw the McDonald’s bag in the
backseat.  He quickly stuffed the
methamphetamine in the case of beer. 
When the officers took Nagle to the patrol car, Jaime grabbed the .25
caliber gun and stuffed it between the driver’s seat and center console. 

            Jaime
testified he bought the guns a few months earlier.  He bought the .44 caliber revolver for
protection.  Then he purchased the .25
caliber semiautomatic weapon because he “thought it was cool at the time, you know,
just -- I don’t -- there’s no reason for it but protection again.”  Jaime thought it was “cool to have a gun in
general.”  He said he purchased the .38
revolver at the same time as the .25 semiautomatic because it was a “packaged
deal.” 

            The
jury acquitted Nagle of all charges, but convicted Pontod and Jaime of each
being a felon in possession of a firearm (former § 12021, subd. (a)), and of
unlawful possession of ammunition (former § 12316, subd. (b)(1)).  The jury also convicted Jaime of selling or
transporting methamphetamine (Health & Saf. Code, § 11379), possessing
methamphetamine for sale (Health & Saf. Code, § 11378), and possessing
a controlled substance with a loaded, operable firearm (Health & Saf. Code,
§ 11370.1, subd. (a)).  In addition,
the jury found that Jaime was armed with a firearm in the commission of the
offenses for transportation and possession of methamphetamine (§ 12022,
subd. (c)).  The trial court found Pontod
had two prior strike convictions and had served a prior prison term
(§§ 667, subds. (b)-(i), 667.5, subd. (b)). 

DISCUSSION

I

            Pontod
contends the trial court erred by denying his Batson/Wheeler motion.  The
motion was based on the prosecutor’s peremptory challenge of Prospective Juror
T.J., who is African-American. 

            It
is a violation of the href="http://www.adrservices.org/neutrals/frederick-mandabach.php">United
States and California Constitutions for a prosecutor to use peremptory
challenges to strike prospective jurors on the basis of group membership or bias.  (Batson, supra, 476 U.S. at pp. 84-89
[90 L.Ed.2d at pp. 79-83]; Wheeler, supra, 22 Cal.3d at pp.
276-277.)  In bringing a >Batson/Wheeler motion, “ ‘ “the
defendant must make out a prima facie case ‘by showing that the totality of the
relevant facts gives rise to an inference of discriminatory purpose.’  [Citations.] 
[O]nce the defendant has made out a prima facie case, the ‘burden shifts
to the State to explain adequately the racial exclusion’ by offering
permissible race-neutral justifications for the strikes.  [Citations.] 
‘[I]f a race-neutral explanation is tendered, the trial court must then
decide . . . whether the opponent of the strike has proved purposeful
racial discrimination.’  [Citation.]”
’  [Citations.]”  (People
v. Vines (2011) 51 Cal.4th 830, 848.)

            Here,
the trial court found that defendant made a prima facie showing, so the burden
shifted to the prosecutor to explain his conduct by providing “a ‘ “clear and
reasonably specific” explanation of his “legitimate reasons” for exercising the
challenges.’  [Citation.]  ‘The justification need not support a
challenge for cause, and even a “trivial” reason, if genuine and
neutral, will suffice.’  [Citation.]  A prospective juror may be excused based upon
facial expressions, gestures, hunches, and even for arbitrary or idiosyncratic
reasons.  [Citations.]  Nevertheless, although a prosecutor may rely
on any number of bases to select jurors, a legitimate reason is one that does
not deny equal protection. 
[Citation.]  Certainly a challenge
based on racial prejudice would not be supported by a legitimate reason.”  (People
v. Lenix (2008) 44 Cal.4th 602, 613 (Lenix).)

            “At
the third stage of the Wheeler/Batson inquiry, ‘the issue comes
down to whether the trial court finds the prosecutor’s race-neutral
explanations to be credible. Credibility can be measured by, among other
factors, the prosecutor’s demeanor; by how reasonable, or how improbable, the
explanations are; and by whether the proffered rationale has some basis in
accepted trial strategy.’ 
[Citation.]  In assessing
credibility, the court draws upon its contemporaneous observations of the voir
dire.  It may also rely on the court’s
own experiences as a lawyer and bench officer in the community, and even the
common practices of the advocate and the office that employs him or her.”  (Lenix, supra, 44 Cal.4th at p. 613,
fn. omitted; accord, People v. Jones (2011)
51 Cal.4th 346, 360.)

            “Review
of a trial court’s denial of a Wheeler/Batson motion is deferential,
examining only whether substantial
evidence supports its conclusions. 
[Citation.]  ‘We review a trial
court’s determination regarding the sufficiency of a prosecutor’s
justifications for exercising peremptory challenges “ ‘with great restraint.’
”  [Citation.] . . . So long as
the trial court makes a sincere and reasoned effort to evaluate the
nondiscriminatory justifications offered, its conclusions are entitled to
deference on appeal.  [Citation.]’  [Citation.]” 
(Lenix, supra, 44 Cal.4th at
pp. 613-614.)

            In
this case the prosecutor challenged T.J., who was single, worked as a
“warehouse person” and had never served as a juror on a criminal trial.  When one of the defense attorneys asked T.J.
“what sort of things [he did] socially on a weekend evening,” he replied, “Most
of the time I’ll be at work.  That’s
where I’ll be.”  Thereafter, T.J.
informed the prosecutor he worked 40 hours during the week and then worked most
weekends.  He worked “a lot.”  The prosecutor asked what T.J. did in his off
time, and he replied he would visit his parents or “[j]ust rest, really.”  The prosecutor asked if he had any hobbies,
and T.J. replied, “Yeah.  I draw,
computers.  That’s it.” 

            After
the prosecutor peremptorily challenged T.J., Pontod’s attorney made a >Batson/Wheeler motion on the basis that
T.J. was the third African-American to be excused.  Defense counsel acknowledged that the first
juror had been removed for cause, but there was no reason for removing the
second juror, M.M., or the third, T.J. 

            The
trial court observed there were two African-Americans in the jury box, one of
them being T.J., and noted that Pontod and Jaime appeared to be Hispanic and
Nagle appeared to be Caucasian.  It found
a prima facie case had been made and asked the prosecutor to state his reasons
for excusing T.J. 

            The
prosecutor replied that T.J. was single, appeared to be young, spent a great
deal of time working, and seemed to be a loner given his solitary hobbies.  Had T.J. indicated he liked hobbies involving
other people it might have been different, but the prosecutor had been
observing him and “he did not communicate very well with anyone else.  He was just sitting there.”  The prosecutor explained, “People who spend
their time alone do not mix well in a jury. 
They are usually the lo[ne] hold-outs and that is the reason.  It does not have anything to do with his
race.” 

            The
other jurors challenged by the prosecutor were also youthful or single and
lacked jury experience, a stake in the community, or social connections.  This included M.M., the other
African-American prospective juror he challenged, who was young, single, had no
children, no prior jury experience, and arrived late. 

            Defense
counsel responded that the prosecutor asked T.J. about his hobbies, but did not
ask others similar questions to see if they were loners.  Moreover, some of the people the prosecutor
excused were not young or loners, so he did not have a pattern of excusing
young people. 

            The
prosecutor replied that he did not justify his challenges by stating that he
only excused young people, however he “certainly kicked out all the young
people . . . .” 
Moreover, he only asked questions about hobbies when he believed that
the prospective juror did not have roots in the community.  His challenges were based on those he
believed did not have “a stake in the community.” 

            The
trial court denied the motion, finding that the preponderance of the evidence
did not demonstrate that T.J. was removed for an invalid reason such as his
race.  Rather, the reasons provided by
the prosecutor and “the totality of the circumstances” supported the decision
to remove him. 

            Pontod
contends the trial court did not make a sincere and reasoned attempt to
evaluate the prosecutor’s explanation by conducting a comparative juror
analysis to see if the reasons given for excusing T.J. applied to
non-African-American jurors who were permitted to serve.  We disagree.

            “[C]omparative
juror analysis is but one form of circumstantial
evidence that is relevant, but not necessarily dispositive, on the issue of
intentional discrimination. . . . 
Thus, evidence of comparative juror analysis must be considered in the
trial court and even for the first time on appeal if relied upon by the
defendant and the record is adequate to permit the urged comparisons.”  (Lenix, supra, 44 Cal.4th at
p. 622.)  However, “comparative
juror evidence is most effectively considered in the trial court where the
defendant can make an inclusive record, where the prosecutor can respond to the
alleged similarities, and where the trial court can evaluate those arguments
based on what it has seen and heard. . . .  Defendants who wait until appeal to argue
comparative juror analysis must be mindful that such evidence will be
considered in view of the deference accorded the trial court’s ultimate finding
of no discriminatory intent. 
[Citation.]  Additionally,
appellate review is necessarily circumscribed. 
The reviewing court need not consider responses by stricken panelists or
seated jurors other than those identified by the defendant in the claim of
disparate treatment.  Further, the trial
court’s finding is reviewed on the record as it stands at the time the Wheeler/name="SR;2667">Batson ruling is made. 
If the defendant believes that subsequent events should be considered by
the trial court, a renewed objection is required to permit appellate
consideration of these subsequent developments.”  (Id. at p. 624.)

            The
trial court carefully considered the reasons given by the prosecutor for
excusing T.J. and M.M., and whether these same reasons applied to the handful
of prospective jurors singled out by defense counsel as being similarly
situated.  Substantial evidence supports
the trial court’s decision. 

            At
the time Pontod made his Batson/Wheeler
motion one other African-American was in the jury box, who ultimately served on
the jury.  Another African-American was
selected to serve as an alternate.  This
supports the prosecutor’s assertion he did not excuse T.J. because he was
African-American.  “ ‘While the fact that
the jury included members of a group allegedly discriminated against is not
conclusive, it is an indication of good faith in exercising
peremptories . . . .’ 
[Citation.]”  (>People v. Ward (2005) 36 Cal.4th 186,
203.)

            The
record indicates that life experience was important to the prosecutor.  He said, “I apologize to you in advance,
those of you who look very youthful, I am going to pick on you a little bit.”  He asked certain jurors when they graduated
from high school.  A juror’s youth or
limited life experience is a valid reason for a peremptory challenge.  (People
v. Gonzales (2008) 165 Cal.App.4th 620, 631.) 

            The
prosecutor used his first challenge to excuse Prospective Juror V.R., who was
young, single, had no children, had never been on a jury and, like T.J, worked
in a warehouse.  He used his second
challenge to excuse Prospective Juror A.L., who was young, single, had no
children, went to school but had not graduated from high school, did not work,
and did not watch the news or read newspapers. 
The third challenge was to Prospective Juror M.M., who was young,
single, had no children, had never been on a jury, and worked at JCPenney.  The prosecutor used his fifth challenge to
excuse Prospective Juror K.M., who was young, single, had no children, had
never been on a jury, and worked as a receptionist.  The prosecutor used his seventh challenge
against Prospective Juror S.J. who was not young but was single, had no
children and was an unemployed facility maintenance worker.  All of these challenges were consistent with
the prosecutor’s justification for excusing T.J., who appeared to be young and
did not have strong social connections or a stake in the community. 

            Pontod
contends that other jurors who served on the jury lacked a social life or ties
to the community, but two of the only three jurors identified by him had been
married and either had children or socialized with friends.  The prosecutor could reasonably conclude that
marriage, child care and friends all indicate social connectedness and a stake
in the community. 

            The
third juror, No. 12, was not married and did not have children.  But because defense counsel did not ask the
prosecutor to explain why he did not challenge Juror No. 12, minimal
information is available in the appellate record from which to conduct a
comparative analysis.  We cannot discern
whether the person was older and more mature, which would fit the prosecutor’s
asserted preference for jurors with more life experience.  Nonetheless, the record reflects that the
juror had a cousin who was jailed for a drug offense and that the juror felt
the cousin was treated fairly.  The juror
said, “He made a choice,” and noted that he eventually overdosed and died.  The prosecutor may have concluded that Juror
No. 12 was not favorably disposed to drug offenders and believed that people
have to accept the consequences of their choices. 

            Under
the circumstances, Pontod’s comparative analysis claim fails.  The trial court did not err in denying the >Batson/Wheeler motion.

name="sp_999_8">name=B92024496889>II

            Pontod
next contends his conviction for being a felon in possession of a firearm must
be reversed because there is no substantial
evidence that he possessed any of the guns in the vehicle. 

            “In
addressing a challenge to the sufficiency of the evidence supporting a
conviction, the reviewing court must examine the whole record in the light most
favorable to the judgment to determine whether it discloses substantial
evidence -- evidence that is reasonable, credible and of solid value -- such
that a reasonable trier of fact could find the defendant guilty beyond a
reasonable doubt.  [Citation.]  The appellate court presumes in support of
the judgment the existence of every fact the trier could reasonably deduce from
the evidence.  [Citations.]  The same standard applies when the conviction
rests primarily on circumstantial
evidence.”  (People v. Kraft (2000) 23 Cal.4th 978, 1053.)

            Pontod
maintains that all of the guns belonged to Jaime and that Pontod’s mere
proximity to a weapon is not sufficient to establish constructive possession;
he must have knowingly exercised dominion and control over a weapon.  For example, in People v. Sifuentes (2011) 195 Cal.App.4th 1410 (>Sifuentes), there was insufficient
evidence of constructive possession of a weapon where (a) the defendant was in
a motel room with another gang member, (b) a gun was found under the mattress
closest to the other gang member, and (c) the prosecution asserted the
defendant had dominion and control over the weapon based on his gang membership
and the understanding among gang members that a gun is available for shared use
by all members of the gang.  (>Id. at pp. 1413-1414, 1417-1419.) 

            But
here, unlike in Sifuentes, the
prosecution did not rely on an inference that Pontod shared possession of the
weapons in the car based on gang affiliation. 
Rather, the theory was that he possessed the .44 caliber revolver found
under the passenger seat in front of him. 
One of the officers who searched the car testified that the mechanism
under the seat created a barrier between the front and the back, which
undermined Jaime’s claim that he pushed one of the guns back under the seat
toward Pontod.  The .38 Special was found
where Jaime hid it in front of the barrier, but the .44 caliber revolver was
found behind the barrier nearer to Pontod. 
Sergeant Languemi saw Pontod appear to kick the weapon under the seat in
front of him in an effort to hide it.  In
addition, ammunition for the .44 caliber weapon was found in an area of the
backseat next to Pontod.  This amply
supports an inference that Pontod possessed the .44 caliber revolver, and that
he exercised dominion and control over it. 
Substantial evidence supports his conviction. 

III

            Pontod
further contends the trial court erred in denying his Romerohref="#_ftn2"
name="_ftnref2" title="">[2]
motion to dismiss one or both of his prior strike allegations pursuant to
section 1385.  He argues he falls outside
the spirit of the three strikes law due to his youthful age, the decreasing
seriousness of his offenses, and the fact no one was hurt in the present
case. 

            A
trial court has discretion under section 1385 to dismiss a prior strike
allegation, but dismissal of a strike is a departure from the sentencing
norm.  (People v. Carmony (2004)
33 Cal.4th 367, 376 (Carmony).) 
The trial court has discretion to do so only if the defendant falls
outside the spirit of the three strikes law.  (§ 1385; People v. Williams (1998) 17
Cal.4th 148, 161 (Williams); name="SR;1068">Romero, supra, 13 Cal.4th at pp.
529–530.)  In exercising its discretion,
the trial court “must consider whether, in light of the nature and
circumstances of his present felonies and prior serious and/or violent felony
convictions, and the particulars of his background, character, and prospects,
the defendant may be deemed outside the scheme’s spirit, in whole or in part,
and hence should be treated as though he had not previously been convicted of
one or more serious and/or violent felonies.” 
(Williams, supra, 17 Cal.4th at p. 161.)

            A
trial court’s ruling on a motion to dismiss a prior strike is reviewed for
abuse of discretion.  (Carmony, supra,
33 Cal.4th at p. 375.)  A defendant
has the burden of establishing that the trial court’s denial of the motion was
arbitrary or irrational, such as where the trial court was not aware of its
discretion, considered impermissible factors, or imposed a sentence that is
absurd under the particular facts of the case. 
(Id. at pp. 376–377.)

            In
reaching its decision in this case, the trial court employed the factors
required under Williams by considering the nature and circumstances of
the present felony conviction and the prior strike, along with Pontod’s
background, character, and prospects.  In
October 2003, when Pontod was 18, he beat up a random person and stole his
wallet.  He was convicted of robbery in
January 2004.  Less than one year later,
while Pontod was on probation, he made a terrorist threat and was in possession
of a firearm in violation of former section 12021.  He was sentenced to prison, was paroled in
2007, and violated his parole the same year and again in 2008.  Pontod was still on parole when he committed
the present offense.  And, while
incarcerated for the present offense, he was subject to 14 incident reports in
jail for such things as disobeying housing guidelines, being in unauthorized
areas, disorderly conduct, fighting, and actions endangering inmates and
staff.  The trial court did not abuse its
discretion in observing that “[n]othing in [Pontod’s] history shows me that he
has changed his behavior or his prospects. 
The Court still considers him to be a threat to society.  It’s unfortunate he picked these up right in
a row at a very young age, but he does not fall outside the spirit of the three
strikes laws . . . .” 


            Pontod’s
argument does not show that the trial court failed to consider the appropriate
factors, only that he disagrees with the trial court’s weighing of various
factors.  This is not an appropriate
basis on which to find an abuse of discretion. 
(Carmony, supra, 33 Cal.4th at
p. 379.)  Pontod has not met his burden
of showing that the trial court’s decision was so irrational or arbitrary that
no reasonable person could agree with it. 
(Id. at p. 377.) 

IV

            The
trial court sentenced Jaime to three years in prison for selling or
transporting methamphetamine, four years on the enhancement for being armed in
the commission of the offense, and a consecutive eight months for being a felon
in possession of a firearm.  Jaime
contends the sentence for being a felon in possession of a firearm violates
section 654 and must be stayed.  We
disagree.

            “Section 654 . . . ‘ “precludes
multiple punishment for a single act or for a course of conduct comprising
indivisible acts.  ‘Whether a course of
criminal conduct is divisible . . . depends on the intent and
objective of the actor.’ 
[Citations.]  ‘[I]f all the
offenses were merely incidental to, or were the means of accomplishing or
facilitating one objective, defendant may be found to have harbored a single
intent and therefore may be punished only once.’  [Citation.]” 
[Citation.]’ . . . [¶] Whether section 654 applies in a given
case is a question of fact for the trial court, which is vested with broad
latitude in making its determination.”  (People
v. Jones (2002) 103 Cal.App.4th 1139, 1143 (Jones).)

            “
‘ “Whether a violation of [former] section 12021, forbidding persons convicted
of felonies from possessing firearms . . . constitutes a divisible
transaction from the offense in which he employs the weapon depends upon the
facts and evidence of each individual case. 
Thus where the evidence shows a possession distinctly antecedent and
separate from the primary offense, punishment on both crimes has been
approved.  On the other hand, where the
evidence shows a possession only in conjunction with the primary offense, then
punishment for the illegal possession of the firearm has been held to be
improper where it is the lesser offense.” ’ 
[Citations.]”  (Jones, supra,
103 Cal.App.4th at pp. 1143-1144.)  “It
is clear that multiple punishment is improper where the evidence ‘demonstrates
at most that fortuitous circumstances put the firearm in the defendant’s hand
only at the instant of committing another offense . . . .’  [Citation.]” 
(Id. at p. 1144.)  “On the
other hand, it is clear that multiple punishment is proper where the evidence
shows that the defendant possessed the firearm before the crime, with an
independent intent.”  (Ibid.)

            Here,
the evidence did not demonstrate that fortuitous circumstances put the firearms
in Jaime’s possession only at the instant of committing the methamphetamine
offenses.  Rather, Jaime testified that
he purchased the guns several months earlier for protection and because it was
cool to own guns.  He did not purchase
the methamphetamine until the day before the traffic stop.  Thus, by his own admission, the crime of
being a felon in possession of a firearm was completed well before he purchased
the methamphetamine and armed himself with his weapons to protect his drugs.  Jaime is not being punished twice for the
same act; there is no violation of section 654. 
(People v. Vang (2010) 184
Cal.App.4th 912, 917.)

V

            Jaime
challenges the sufficiency of the evidence to support his conviction for
violating Health and Safety Code section 11370.1, subdivision (a), which
requires proof not only of possession of a controlled substance, but that he
was armed simultaneously with a loaded, operable firearm.  (People v. Peña (1999) 74 Cal.App.4th
1078, 1082.)  Jaime concedes that the
guns were loaded, but contends there was no evidence that they were
operable. 

            Proof
of operability can be established by circumstantial as well as direct
evidence.  (People v. Smith (1974)
38 Cal.App.3d 401, 410 (Smith); see
also, People v. Catlin (2001) 26 Cal.4th 81, 142 [circumstantial
evidence may constitute substantial evidence of guilt].)  In Smith, supra, 38 Cal.App.3d 401, the court
specifically rejected the need for direct evidence of operability,
concluding:  “The circumstantial evidence
that the weapon was operable was more than sufficient:  Defendant was armed with a shotgun during the
robbery.  When he was arrested, a loaded
shotgun and additional shotgun shells were found in the vehicle in which he was
riding.  A jury could easily infer that
defendant would not have carried a loaded shotgun with additional shells, if
the weapon were inoperable.”  (>Id. at p. 410.)

            As in Smith,
the jury in this case could draw the necessary inference of operability.  Jaime testified that he bought the guns for
protection, which indicates that the weapons were operable since inoperable
ones would have little use for this purpose. 
It is not logical that Jaime would have loaded guns in the car to
protect his methamphetamine if the guns were inoperable.  Substantial circumstantial evidence supports
a reasonable and logical inference that all of the weapons were operable. 

VI

            After
we filed our decision in this case, Pontod filed a petition for rehearing
seeking the benefit of the change in law enacted by Proposition 36.  Pontod was sentenced to 25 years to life
under the three strikes law for a crime that was not a serious or violent
felony.  Proposition 36 limits three
strikes sentences to current convictions for serious or violent felonies, or a
limited number of other felonies not relevant here.  (See §§ 1170.12, subd. (c), 667, subd.
(c).)  If Pontod had been sentenced
today, he would not be subject to a 25-to-life three strikes sentence.  He asked us to vacate his sentence under the
three strikes law and remand the matter to the trial court for a new sentencing
hearing.

            In
asking us to vacate his sentence and remand the matter, Pontod relies on In
re Estrada (1965) 63 Cal.2d 740 (Estrada), in which the California Supreme Court held that absent a
“saving clause,” a criminal defendant whose judgment is not yet final is
entitled to the benefit of a statutory change imposing a lighter punishment for
the defendant’s criminal act.  (Id.
at pp. 744-745, 747-748.)  We rejected an identical challenge in >Conley, supra, ___ Cal.App.4th ___ [2013
WL 1833251].  Nothing in Pontod’s petition persuades us to alter our
opinion in Conley.  For the reasons expressed in >Conley, Pontod is not entitled to have
his sentence vacated and the matter remanded for resentencing; his
recourse is to petition for a recall of sentence under section 1170.126.

DISPOSITION

            The
judgments are affirmed. 

 

 

 

                                                                                                         MAURO                         , J.

 

 

We concur:

 

 

                     ROBIE                          ,
Acting P. J.

 

 

                     MURRAY                     ,
J.