1 Filed 5/30/13 P. v. Pontod CA3 Opinion following rehearing NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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)

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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, 20 13 order granting defendant’s petition for rehearing and vacating our prio r opinion in this matter. ( People v. Pontod (Dec. 18, 2012, C065925) [nonpub. op n.]; Cal. Rules of Cour t, 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 meth amphetamine, 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 th e offenses for transportation and possession of methamphetamine. The tria l court found Pontod ha d 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: th e 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 be ing a felon in possession of a firearm is not supported by substantia l evidence; and the trial court abused its discretion in denying his motion to dismi ss one of the prior strike allegations. In addition, Jaime asserted: his punish ment for being a felon in possession of a firearm and for being armed while transportin g methamphetamine violates the prohibition against multiple punishment in Penal Code section 654; 1 and his conviction for possessing a controlled substance while armed w ith a firearm must be reversed because there is no substantial evidence th at the firearm was operable. In our original opinion, we rejected defe ndants’ claims, concl uding: (1) the trial court did not err in denying Pontod’s Batson/Wheeler motion because there was no proof by a preponderance of the evid ence that a prospective juror had been removed based on race; (2) there is substantial ev idence 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 se ntence does not violate section 654; and (5) there is substantial evidence that Jaime wa s armed with an oper able firearm. Pontod filed a petition for rehearing, arguin g that he is entitled to the benefit of Proposition 36, which was approved by the vote rs 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 origin al opinion in order to address Pontod’s contention. We continue to reject defendan ts’ 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 Cr utchfield and Languemi saw a Camaro fishtail around a street corn er one evening in 2009. They stopped the Camaro, and Sergeant Crutchfield walked toward the dr iver’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 re ar passenger seat. They were all moving around, and Pontod looked like he was tryi ng to cover something up on the floorboard. As Sergeant Crutchfield neared the car, Nagle opened the driv er’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. Nagl e appeared extremely nervous a nd 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 al cohol, he had Nagle get out and escorted him toward the front of the patrol car. Sergeant Languemi, who was standing at th e 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 P ontod “making a motion like trying to kick it forward.” Languemi drew his own gun and wa tched to make sure that Pontod did not reach for the revolver in the car. Languemi did not immediately te ll Crutchfield because he did not want to alert the occupants of the ca r to the fact that he had seen the weapon. However, as Crutchfield escorted Nagle towa rd the patrol car, Languemi told him to4 handcuff Nagle and put him in the backseat . Crutchfield asked why, and Languemi replied, “[r]ight rear has a gun.” The two offi cers 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 be tween the driver’s seat and the center console near the seatbelt release; a loaded .38 Special revolver conceal ed underneath the front part of the front passenger’s seat; and a loaded .44 caliber revol ver underneath the rear portion of the right front passenger seat. A plastic bag containi ng 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 contra band. 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 th ere 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 liv e, he kept his guns, ammunitio n and drugs in his car. He grabbed these items, and surrep titiously put them in his pockets and front waistband, before getting into the front seat of Nagle’s ca r. As they were driving, Jaime pretended to tie his shoes. He pulled the .44 caliber gu n from his waistband in his “crotch area,” and “threw it back,” which mean t he shoved the gun under the front seat and pushed it towards the back. Jaim e 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 McDona ld’s bag, on the fl oor. 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 cas e of beer. When the officers took Nagle to the patrol car, Jaime grabbed the .25 calib er 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 purchas ed 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 sa me 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 (form er § 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, operab le firearm (Health & Saf. Code , § 11370.1, subd. (a)). In addition, the jury found that Jaime was arme d 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 tria l court erred by denying his Batson/Wheeler motion. The motion was based on the prosecutor’s peremp tory challenge of Pr ospective Juror T.J., who is African-American. It is a violation of the United States and California Constituti ons 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 prim a facie case ‘by showing that the totality of the relevant facts gives rise to an inference of discri minatory purpose.’ [Cita tions.] [O]nce the6 defendant has made out a prima facie case, th e ‘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 e xplanation is tendered, the trial court must then decide . . . whether the opponent of th e strike has proved purposeful racial discrimination.’ [Citation.]” ’ [Citations.]” ( People v. Vines (2011) 51 Cal.4th 830, 848.) Here, the trial court found that defenda nt made a prima facie showing, so the burden shifted to the prosecutor to explain his conduct by providing “a ‘ “clear and reasonably specific” explana tion of his “legitimate reasons” for exercising the challenges.’ [Citation.] ‘The justifi cation need not support a challenge for cause, and even a “trivial” reason, if ge nuine and neutral, will suffice .’ [Citation.] A prospective juror may be excused based upon facial e xpressions, gestures, hunches, and even for arbitrary or idiosyncratic reas ons. [Citations.] Nevertheless, although a prosecutor may rely on any number of bases to select jurors, a legitimate reas on is one that does not deny equal protection. [Citation.] Certainly a ch allenge 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 explana tions are; and by whether the proffered rationale has some basis in accepted trial strategy.’ [Citation.] In assessing credibility, the court draws upon its contemporaneous observa tions of the voir dire. It may also rely on the court’s own experiences as a lawyer an d bench officer in the community, and even the common practices of the advocate and th e 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 su pports its conclusions. [Citation.] ‘We review a trial court’s determination rega rding the sufficiency of a prosecutor’s justifications for exercising peremptory cha llenges “ ‘with great restraint.’ ” [Citation.] . . . So long as the trial court makes a si ncere 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 challenge d T.J., who was single, worked as a “warehouse person” and had never served as a ju ror on a criminal tria l. 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 wo rk. 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 hi s 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 peremp torily 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 acknow ledged that the first juror had been removed for cause, but there was no reason for removing the seco nd juror, M.M., or the third, T.J. The trial court observed there were two A frican-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 pr ima facie case had been made and asked the prosecutor to state his reas ons for excusing T.J. The prosecutor replied that T.J. was si ngle, 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 in volving other people it might ha ve been different, but the prosecutor had been observing him and “he did not communicate very well with anyone8 else. He was just sitting there.” The prosec utor explained, “People who spend their time alone do not mix well in a jury. They are us ually the lo[ne] hold-outs and that is the reason. It does not have anyt hing to do with his race.” The other jurors challenged by the pros ecutor were also yout hful or single and lacked jury experience, a stak e in the community, or social connections. This included M.M., the other African-American prospec tive juror he challenged, who was young, single, had no children, no prior jury experience, and arrived late. Defense counsel responded that the pros ecutor asked T.J. about his hobbies, but did not ask others simi lar questions to see if they were loners. Moreover, some of the people the prosecutor excused we re not young or loners, so he did not have a pattern of excusing young people. The prosecutor replied that he did not ju stify his challenges by stating that he only excused young people, however he “certainly kicked out a ll the young people . . . .” Moreover, he only asked ques tions 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 stak e 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 conduc ting a comparative juror analysis to see if the reasons given for excusing T.J. applied to non-African-Ameri can jurors who were permitted to serve. We disagree. “[C]omparative juror analysis is but one form of circumstantia l evidence that is relevant, but not necessarily dispositive, on the issue of intentional discrimination. . . . Thus, evidence of comparative ju ror analysis must be consid ered in the trial court and9 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 evid ence is most effectively co nsidered in the trial court where the defendant can make an inclusive re cord, 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. . . . Defendant s 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 respons es by stricken panelists or se ated jurors other than those identified by the defendant in the claim of disparate treatment. Further, the trial court’s finding is reviewed on the reco rd as it stands at the time the Wheeler/Batson ruling is made. If the defendant believes that subsequent events should be cons idered 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 sim ilarly 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 u ltimately served on the jury. Another African-American was selected to serve as an altern ate. This supports the pros ecutor’s assertion he did not excuse T.J. because he was A frican-American. “ ‘While the fact that the jury included members of a group allegedly di scriminated against is not c onclusive, it is an indication of good faith in exercising peremp tories . . . .’ [Citation.]” ( People v. Ward (2005) 36 Cal.4th 186, 203.)10 The record indicates that lif e 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 fi rst challenge to excuse Pros pective Juror V.R., who was young, single, had no children, had never be en on a jury and, lik e T.J, worked in a warehouse. He used his second challenge to excuse Prospectiv e Juror A.L., who was young, single, had no children, went to sc hool but had not gradua ted 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, singl e, 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, singl e, had no children, had never been on a jury, and worked as a receptionist. The prosecutor us ed his seventh challenge against Prospective Juror S.J. who wa s not young but was single, had no children and was an unemployed facility maintenance worker. All of these challe nges were consistent with the prosecutor’s justification for excusing T.J., who appear ed to be young and did not have strong social connections or a stake in th e community. Pontod contends that other jurors who serv ed 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 frien ds all indicate social connectedness and a stake in the community. The third juror, No. 12, was not married and did not have child ren. 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 can not discern whether the person was older and more mature,11 which would fit the prosecutor’s asserted prefer ence for jurors with more life experience. Nonetheless, the record reflects that the ju ror 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 over dosed and died. The prosecutor may have concluded that Juror No. 12 was not favorab ly disposed to drug offenders and believed that people have to accept the co nsequences of their choices. Under the circumstances, Pontod’s compar ative 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 substant ial evidence that he possessed any of the guns in the vehicle. “In addressing a challenge to the su fficiency of the ev idence supporting a conviction, the reviewing court must exam ine the whole record in the light most favorable to the judgment to determine wh ether it discloses substantial evidence -- evidence that is reasonable, credible and of solid value -- such that a reasonable trier of fact could find the defendant gu ilty beyond a reasonable doubt. [Citation.] The appellate court presumes in support of the judgment th e existence of every fact the trier could reasonably deduce from the evidence. [Citations .] The same standard applies when the conviction rests primarily on ci rcumstantial evidence.” ( People v. Kraft (2000) 23 Cal.4th 978, 1053.) Pontod maintains that all of the guns be longed to Jaime and that Pontod’s mere proximity to a weapon is not sufficient to es tablish constructive possession; he must have knowingly exercised dominion and contro l over a weapon. For example, in People v. Sifuentes (2011) 195 Cal.App.4th 1410 ( Sifuentes ), there was insuffici ent 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 und er the mattress closest to the other gang12 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 th e 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 search ed 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 th e guns back under the seat to ward Pontod. The .38 Special was found where Jaime hid it in front of th e barrier, but the .44 caliber revolver was found behind the barrier nearer to Pontod. Se rgeant 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 backs eat next to Pontod. This amply supports an inference th at Pontod possessed the .44 caliber revolver, and that he exercised dominion and control over it. Subs tantial evidence suppor ts his conviction.
III Pontod further contends the tr ial court erred in denying his Romero 2 motion to dismiss one or both of his prior strike allega tions 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 de parture from the sentencing norm. ( People v. Carmony (2004) 33 Cal.4th 367, 376 ( Carmony ).) The trial court has discre tion to do so only if the

2 People v. Superior Court (Romero) (1996) 13 Ca l.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 pr ior serious and/or viol ent felony convictions, and the particulars of his background, char acter, and prospects, the defendant may be deemed outside the scheme’s sp irit, in whole or in part, a nd 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 dismi ss 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 th e motion was arbitrary or irrational, such as where the trial court was not aware of its disc retion, 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 employe d the factors required under Williams by considering the nature and ci rcumstances 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 be at up a random person and stole his wallet. He was convicted of robbery in January 200 4. Less than one year later, while Pontod was on probation, he made a terrorist thre at and was in possession of a firearm in violation of former section 12021. He was se ntenced to prison, was paroled in 2007, and violated his parole the same year and again in 2008. Pontod was s till 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 su ch things as disobeyi ng housing guidelines, being in unauthorized areas, disorderly c onduct, fighting, and actions endangering inmates and staff. The trial court did not abus e its discretion in obser ving that “[n]othing in [Pontod’s] history shows me that he has changed his behavior or his prospects. The14 Court still considers him to be a threat to so ciety. 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 basi s 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 enhancem ent for being armed in the commission of the offense, and a consecutive eight months fo r being a felon in possession of a firearm. Jaime contends the sentence for being a fel on in possession of a firearm violates section 654 and must be stayed. We disagree. “Section 654 . . . ‘ “precludes multiple puni shment for a single act or for a course of conduct comprising indivisible acts. ‘W hether a course of criminal conduct is divisible . . . depends on the intent and objec tive of the actor.’ [Cita tions.] ‘[I]f all the offenses were merely incidental to, or we re 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.’ [Citati on.]” [Citation.]’ . . . [¶] Wh ether section 654 applies in a given case is a question of fact for the trial c ourt, which is vested with broad latitude in making its determination.” ( People v. Jones (2002) 103 Cal.Ap p.4th 1139, 1143 ( Jones ).) “ ‘ “Whether a violation of [former] se ction 12021, forbiddi ng persons convicted of felonies from possessing firearms . . . constitutes a divisible transaction from the offense in which he employs the weapon depends upon the f acts and evidence of each15 individual case. Thus wher e 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 punish ment for the illegal possession of the firearm has been held to be improper where it is the le sser offense.” ’ [Citations.]” ( Jones, supra, 103 Cal.App.4th at pp. 1143-1144.) “It is clea r that multiple punishme nt is improper where the evidence ‘demonstrates at mo st that fortuitous circumst ances put the firearm in the defendant’s hand only at the instant of committing another o ffense . . . .’ [Citation.]” ( Id. at p. 1144.) “On the other hand, it is clea r that multiple punishment is proper where the evidence shows that the defendant possessed the firearm before th e crime, with an independent intent.” ( Ibid. ) Here, the evidence did not demonstrate that fortuitous circumstances put the firearms in Jaime’s possessi on only at the instant of co mmitting the methamphetamine offenses. Rather, Jaime testified that he pur chased 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 tra ffic stop. Thus, by his own admission, the crime of being a felon in possession of a fire arm was completed well before he purchased the methamphetamine and armed himself with hi s 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.A pp.4th 912, 917.)
V Jaime challenges the sufficiency of th e evidence to support his conviction for violating Health and Safety Code section 1 1370.1, subdivision (a), which requires proof not only of possession of a cont rolled substance, but that he was armed simultaneously with a loaded, oper able firearm. ( People v. Peña (1999) 74 Cal.App.4th 1078, 1082.) Jaime concedes that the guns were loaded, but contends ther e was no evidence that they were operable.16 Proof of operability can be establishe d 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 [circumstant ial evidence may constitute substantial evidence of guilt].) In Smith, supra, 38 Cal.App.3d 401, the c ourt specifically rejected the need for direct evidence of operability, concluding: “The circumstantial evidence that the weapon was operable was more than suffi cient: 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 infere nce of operability. Jaime testified that he bought the guns for protection, whic h indicates that the weapons were operable since inoperable ones would ha ve 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 circ umstantial evidence supp orts a reasonable and logical inference that all of the weapons were operable.
VI After we filed our decision in this ca se, Pontod filed a petition for rehearing seeking the benefit of the change in la w enacted by Propositi on 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 sentence s 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 Pont od 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 that17 absent a “saving clause,” a criminal defendant whose judgment is not yet final is entitled to the benefit of a statutory change imposi ng a lighter punishment for the defendant’s criminal act. ( Id . at pp. 744-745, 747-748.) We re jected an identical challenge in Conley, supra, ___ Cal.App.4th ___ [2013 WL 1833 251]. 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.

MURR AY , J.