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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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,                                                 C065925

         v.                                                                     (Super. Ct. Nos. SF112457A
                                                                                      & SF112457B)
MANUEL RAY PONTOD et al.,

                   Defendants and Appellants.




         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,



                                                             1
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;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




1 Undesignated statutory references are to the Penal Code.


                                              2
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

                                              3
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.

                                             4
       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 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

                                              5
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.)

                                              6
       “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

                                              7
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

                                               8
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/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.)



                                                9
       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,

                                            10
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.
                                              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

                                             11
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 Romero2 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




2 People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).


                                              12
defendant falls outside the spirit of the three strikes law. (§ 1385; People v. Williams
(1998) 17 Cal.4th 148, 161 (Williams); 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

                                              13
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

                                              14
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.

                                             15
       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

                                             16
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.




                                             17
