1 

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication 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, 
2 

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.
3 

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 
4 

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. 
5 

 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 
6 

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.) 
7 

 “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 
8 

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 
9 

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.) 
10 

 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, 
11 

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 
12 

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). 
13 

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 
14 

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 
15 

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. 
16 

 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 
17 

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.