Filed 4/3/17 CERTIFIED FOR PARTIAL PUBLICATION *

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE

, Plaintiff and Respondent

,

v.

ALICE RASCON

, Defendant and Appellant

. B 2 6 9000

( Los Angeles County Super. Ct. No. V A 133796 )

APPEAL from a judgment of the Super ior Court of
Los Angeles County, Raul Anthony Sahagun, Judge

. Affirmed

as modified

. Lenore De Vita, under appointment by the Court of Appeal,
for Defend ant and Appellant

. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler

, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Jason Tran, and Nathan
Guttman

, Deput y Attorney s General, for Plaintiff and Respon dent.

* Pursuant to California Rules of Court, rules 8.1100 and 8.1110, this opinion is certified for pu blication with the except ion of parts I, II, III and V of the Discussion.2 Alice Rascon appeal s from the judgment entered on her
conviction s for drug, firearm

, and ammunition possession. She
contends th e trial court admitted a confession taken in violation
of Miranda v. Arizona (1966) 384 U.S. 436 ( Miranda ) i n that the

po lice interrogated her in a way calculated to undermine her ability

to make a free and rational choice about speaking

. Rascon also contends insufficient evidence supported two firearm enhancements,
and a sentence on one count sho uld have been stayed becaus e it constituted multiple punishment for a single act

. She further contends that she is entitled to have her sentence for felony possession for sale of marijuana reduced to a misdemeanor. We agree that sentence on one of the counts should have been staye d,
and otherwise affirm.

BACKGROUND

On April 11, 2012, Los Angeles County Sheriff ‟ s deputies
executed a search warrant at Rascon ‟ s residence in Whittier. They
found Rascon in the kitchen, informed her that she was the suspect
named in the warrant , and de tained her in a patrol car

. While Rascon was seated in the car, Detective William Campbell asked
her what bedroom she lived in and she said the north bedroom. Detective Campbell then asked if she had anything illegal in the
house . Rascon responded “ y es. ”
Detective Campbell then left Rascon alone in the patrol car and participated in the search . The search recovered five bags of methamphetamine s and 11 bags of marijuana from a n unlocked safe
in a closet

, as well as numerous unused plastic baggies and thr ee digital scales from the closet . The deputies also found ammunition and two operable, loaded handguns in a n unlocked desk drawer
in a n office in the house

. The office also contained a monitor displaying a live video feed from two exterior cameras surve illing3

the front approach to the house

. Mail addressed to Rascon was
found in the sole bedroom in the house. After the search, Detective Campbell returned to Rascon in the patrol car, informed her she was under arrest, and gave her

a Miranda advisement. Rascon waived her Miranda rights by signing a preprinted form

. In addition to circling answers on the
form indicating the waiver, Rascon wrote
, “ I show [ed ] the detective s where the meth was in the closet. ” Detective Campbell asked Rascon who resided in t he house. Rascon replied that she lived there with William Kennedy , her boyfriend

. Detective Campbell asked whether she owned the drugs the deputies found. She admitted the drugs belonged to her, and
stated Kennedy had nothing to do with them. Rascon r efused to reply to a question about the scales and unused baggies, but when
asked about a cellular phone found in the house, she said it belonged

to her. Finally, when Detective Campbell asked about the guns deputies found, Rascon said, “ I showed you wher e the meth and
the handguns were. ” Rascon was charged with possession of methamphetamines while armed, possession of methamphetamines and marijuana for sale, possession o f ammun ition, and possession of firearms by a
felon , and it was a lleged she was perso nally armed with a firearm while in pos session of methamphetamines for sale and had suffered three prior narcotics convictions and served multiple prior prison

terms. (Health & Saf. Code, §§ 11359, 11370.1, subd. (a), 11378;
Pen

. Code, §§ 667.5, subd. (b ) , 11370.2, subd. (c), 12022, subd. (c), 29800, subd. (a)(1) , 30305, subd. (a)(1) .) A jury convicted Rascon on all counts and found true the allegation that she was armed with a firearm while in possession
of methamphetamines. In a bifurcated trial, the t rial court found
Rascon had suffered prior narcotics convictions

, but the court struck the prior prison term allegations without rendering a verdict on4

them. The court sentenced Rascon to three years in prison for methamphetamine possession plus five cons ecutive years for the
firearm enhancement . T he court struck the remaining enhancement allegations

. T he court imposed concurrent terms for the marijuana
and armed methamphetamine pos session convictions and imposed and stayed execution of sentence for the ammunition and
felon/ firearm possession convictions pursuant to Penal Code
section 654 , subdivision (a), which pr ohibits multiple punishment for

a single act

. The court imposed various fines and fees and awarded Rascon 259 days of presentence custody cred it. Rascon timely appealed.

DISCUSSION

I

. There Was N o Miranda Violation

“ The Fourteenth Amendment to the federal Constitution and article I, section 15, of the state Constitution bar the prosecution from using a defendant ‟ s involuntary confession. ” ( P eople v. Massie (1998) 19 Cal.4th 550, 576.) “ [A]ny statement obtained from a criminal suspect by a law enforcement officer during custodial interrogation is potentially involuntary because such questioning may be coercive. ” ( People v. Neal (2003) 31 Cal .4th 63, 79.) Thus,
in Miranda

, “ the United States Supreme Court laid down its now
familiar rule ” ( ibid

. ) that “ „ a su spect [may] not be subjected to custodial interrogation unless he or she knowingly and intelligently has waived the right to re main silen t, to the presence of an attorney, and, if indigent, to appointed counsel. ‟ ” ( People v. Dykes (2009)
46 Cal.4th 731, 751.) “ In general, if a custodial suspect, having heard and understood a full explanation of his or her Miranda rights, then makes an un compelled and uncoerced decision to talk,
he or she has ther eby knowingly, voluntarily, and intelligently
waived them. ” ( People v. Cunningham (2015) 61 Cal.4th 609, 642 ; see also ( Oregon v. Elstad (1985) 470 U.S. 298, 308 ( Elstad ) [O nce a5

suspect receives the Miranda advisements, he “is free to exercise his own volition in deciding whether or not to make a statement to the
authorities

. ”] .) A suspect who makes an incriminating statement in response “to unwarned yet uncoerci ve questioning” may later waive hi s rights and confess after being “given the requisite Miranda warnings.” ( Elstad

, supra , 470 U.S. at p. 318.) In such “midstream Miranda cases” ( People v. Camino (2010) 188 Cal.App.4t h 1359, 1363 ( Camino ) ), “the unwarned admission must be suppressed, ” bu t

“ the admissibility of any subsequent statement” will depend upon “whether it is knowingly and voluntarily made.” ( Elsta d

, supra , 470 U.S

. at p. 309.) In Elstad , the Supreme Court held that in
such cases , “[t] he relevant inquiry is whether, in fact

, the second statement was also voluntarily made. As in any such inquiry, the
finder of fact must examine the su rrounding circumstances and
the entire course of police conduct with respect to the suspect in evaluating the voluntariness of his statements. The fact that a suspect chooses to speak after being informed of his rights is, of course, highly probative.” ( Id. at p. 318. )
In Missouri v. Seibert (2004) 542 U.S. 600 ( Seibert ) , the police
deliberate ly used a two

- step questioning technique whereby they

w ithh e ld a Miranda advisement until a suspect confessed, then
advis e d the suspect pursuant to Miranda , then led the suspect

to cover the same ground until a second confession is obtained. ( Seibert

, supra , 542 U.S. at pp. 605

- 606 (plur. opn. of Souter, J. )

. )
Police admitted t he tactic was designed to undermine the Miranda warning by inducing a suspect “ to conclude that the right not to respond did not exist when the earlier incriminating statements
were made. ” ( Id . at p. 620 (conc . opn. of Kennedy, J.).) Justice Souter, writing for a four

- justice plurality

, concluded that a second
confession obtained in such circumstances is inadmissible because
the “ midstream recitation of warnings after interrogation and6

unwarned confession could not effectively comply w ith Miranda ‟ s constitutional requirement. ” ( Id . at p. 604 (plur. opn. of Souter, J. ) .)

“ By any objective measure . . . it is likely that if the interrogators employ the technique of withholding warnings until after interrogation succeeds in eliciting a c onfession, the warnings will
be ineffective in preparing the suspect for successive i nterrogation,
close in time and similar in content. After all, the reason that question

- first is catching on is as obvious as its manifest purpose, which is to get a conf

ession the suspect would not make if he understood his rights at the outset; the sensible underly ing assumption is that with one confession in hand before the warnings, the interrogator can count on getting its duplicate, with trifling
additional trouble. ” ( Id

. at p

. 613 (plur. opn. of Souter, J. ).)
The Siebert plurality identified “ a series of relevant facts
that bear on whether Miranda war nin gs delivered midstream could
be effective enough to accomplish their object: [ T ] he completeness
and detail of the que stions and answers in the first round of interrogation, the overlapping con tent of the two statements, the timing and setting of the first an d the second, the continuity of police personnel, and the degree to which the interrogator‟s questions treated the second round as continuous with the first.” ( Seibert

, supra , 542 U.S. at p. 615 (plur. opn. of Souter, J. ).) Justice Kennedy , writing separately

, generally agreed with the plurality‟s views. ( Seibert

, supra , 542 U.S. at p. 618 (conc

. opn. of Kenned y, J.).) He believed , however, that the plurality‟s “multifactor test that applies to every two

- stage interrogation may

serve to undermine [the] clarity” of Miranda . ( Id. at p. 622 (conc. opn. of Kennedy, J.) .) Justice Kennedy “would apply a narrower te st

app licable only in the infrequent c ase . . . in which the two

- step interrogation technique was used in a calculated way to undermine
the Miranda warning.” ( Ibid

. ) In such cases, “postwarning
statements that are related to the substance of prewarnin g7

s tatements must be exc luded absent specific, curative steps.” 1 ( Id. at p. 621 (conc. opn. of Kennedy, J.)

. ) When interrogators
do not employ a “deliberate two

- step strategy
, ” however, “[t] he admissibility of postwarning statements should continue to be

go verned by the principles of Elstad .” ( Id. at p. 622 (conc. opn.
of Kenney, J.) .)
Because the Siebert Court produced no majority opinion and Justice Kennedy “ „ concurred in the judgment [] on the narrowest grounds ‟ ” ( Marks v. United States (1977) 430 U.S. 188, 193)

, courts have considered Justice Kennedy‟s threshold requirement
of a “deliberate two

- step strategy ” as part of the Siebert holding. ( See

, e.g., Camino

, supra , 188 Cal.App.4th at p. 1370 & fn. 5 ; United States v. Williams (9th Cir. 2006) 435 F.3 d 1148, 1157

- 1158 .) In determining deliberateness, “courts should consider whether objective evidence ,” such as the Siebert plurality identified, as well as “ any available subjective evidence, such as an officer ‟ s testimony, support an inference that the two

- step interrogation procedure was
used to undermine the Miranda warning. ” ( Id

. at p. 1158.) A trial court‟s determination of Siebert

- deliberateness is a
factual finding , which we review for substantial evidence. ( Camino

, supra , 188 Cal.App.4th at p. 1372.)

1 Justice Kennedy explained that “[c] urative measur es should be designed to ensure that a reasonable person in the suspect‟s situation would understa nd the import and effect of the Miranda warning and of th e Miranda waiver. For example,

a substantial break in time and circumstances between the prewarning statement and the Miranda warning may suffi ce in most circumstances, as it allows the accused to distinguish the
two contexts and appreciate that th e inter rogation has taken a

new turn. [Citation .] Alternatively, an additional warning that explains the likely inadmissibility of the prewarning custodial statement may be sufficient.” ( Seibert

, supra , 542 U.S. at p. 622 (conc . opn. of Kennedy, J.).)8 In the instant case, Rascon mov ed in limine to suppress
all of her custodial statements. Detective Campbell was the sole
witness at the resulting Evidence Code section 402 hearing. He
testified that he asked Rascon at the start of the inter view i f she
had anything illegal in the house. Rascon answered “ y es. ” The
interview was interrupted when Detective Campbell left Rascon

to participate in the search. Rascon did not recall how much time passed before the search was completed and the interview resumed

. When D etective Campbell returned, he advised Rascon of
her Miranda rights and obtained her waiver. He then asked who
lived in the house and who own ed the drugs and cell phone the deputies found. Rascon replied that she lived in the house w ith he r boyfriend , but the drugs and phone were hers. Rascon refused to answer a question about unused baggies and digital scales, but when asked about the guns deputies found said, “ I told you where
the meth

. . . and handguns were. ” Detective Campbell testifi ed Rascon gave her answers freely and voluntarily. She was not handcuffed while in the patrol car

, and he issued no threats and made no statement implying that
failure to answer wou ld be detrimental to her. Detective Campbell took no notes, and the inter rogation was not recorded.
The trial court granted Rascon‟s motion to suppress the

statement s she made before waiving her Miranda rights. T he court

, however, found no evidence that D etective Campbell employed a deliberate strategy to undermine the Mirand a warning by inducing
Rascon to confess before giving the warning and then leading her to repeat the confession after the warning . The court therefore denied Rascon‟s motion to suppress statements made after she waiv ed her
Miranda rights.
Substantial evid ence supports the trial court ‟ s finding th at
D etective Campbell did not deliberately use a two

- step interrogation technique to undermine the Miranda warning. The prewarning9

interrogation was nondetailed and incomplete. Detective Campbell
asked what bedro om she lived in and whether there was anything illegal in the house. Rascon identified her bedroom and revealed
that she “had” something illegal in the house. The interview was then interrupted, but the interruption was caused by Detective Campbell‟s des ire to participate in the search, not by artifice. The
interview resumed only after passage of a significant amount of
time

— long enough to search a house. Nothing in either Detective Campbell‟s questions or Rascon‟s answers suggested that either person t reated the second round of int errogation as a continuation
of the first. Further, the content of Rascon ‟ s pre

- and postwarning statements did not substantially overlap. Prior to being given the
Miranda advisement, Rascon disclosed that she lived in the h ouse and there was something illegal in the house. In t he postwarning part of the interview

, Rascon revealed that she owned the drugs in
the house , that she knew the drugs were methamphetamines, and that she knew guns were in the house.
Moreover , nothin g suggests police used inherently coercive
tactics or methods that rendered Rascon ‟ s initial admission involuntary or undermine d her will to invoke h er rights once they

we re read to h er. Therefore, substantial evidence supports the trial

court ‟ s conclusio n that Rascon knowi ngly and voluntarily decided

to forgo her rights to remain silent and to have the assistance of
counsel. Rascon argues some indicia of a deliberate two

- step interrogation exist, as both parts of the interrogation were conducted by the sa me person in the same location. T hese factors arguably could have permitted the trial court to conclude the interview was improper, b ut our review is to determine only whether substantial evidence supports the court‟s contrary finding.
As discussed above , other factors support the court‟s finding that
Rascon‟s Miranda rights were not violated.10 Given this conclusion, we need not address Rascon ‟ s arguments that absent her confession, no substantial

ev idence supported her conviction s for possession for sale o f methamphetamine and marijuana, possession of methamphetamine while armed, possession of a firear m by a felon, and possession
of ammunition.

II. Substantial Evidence Supported the Finding T hat Rascon W as Armed The jury found true the special allegatio n that Rascon was personally armed while in possession of methamphetamine s for sale

. Rascon argues insufficient evidence supported the finding because the guns recovered from her house were far away from both herself and the drugs. We disagree.

“ The des ire of the Legislature t o prevent death and injury as

a result of the involvement of firearm s in the commission of crime is manifest from the various provisions for increased punishment for crimes where firearms are in some way involved. The underlying
in tent of the Legislature is to deter persons from creating a potential for death or injury result ing from the very presence of a firearm at
the scene of the crime. Thus, there is aggravated punishment for a person who is armed with a dead ly weapon even tho ugh no use is made of the weapon. ( People v. Reaves (1974) 42 Cal.App.3d 852, 856

- 857.) As pertinent here, s ubdivision (c) of Penal Code section 12022 imposes a special sent ence enhancement of three, four, or five years

on anyone “ personally armed with a firearm in the commission of a
violation

. . . of Section . . . 11378 ” ( possession o f methamphetamine
for the purpose of sale )

. “ [W] hen . . . a defendant engaged in felony drug possession, which is a cr ime of a contin uing nature, has a weapon available at any time during the felony to aid in its commission, the defendant is „ armed with a firearm in the11

commission . . . of a felony

. ‟ ” ( People v. Bland (1995) 10 Cal .4th 991, 99 9.) In assessing the sufficiency of evidence supporting a sentence
enhancement

, we view the entire record, including all reasonable inferences, in a light most favorable to the judgment. A sentence enhancement will be upheld if it is supported by substantial evidence, i.e., evidence that is credible and of solid value. ( People v.
O sband (1996) 13 Cal.4th 622, 690 ; In re Alexander L . (2007)
149 Cal.App.4th 605, 610 .) A n enhancement will be reversed only when the evidence would not permit any reasonable trier of fact to
find the special allegation true beyond a reasonable doubt. ( Pe ople
v. Bolin (1998) 18 Cal.4th 297, 331.) Reversal is not warranted simply because the evidence might su pport contrary findings equally as well as actual findings. ( People v. Ceja (1993) 4 Cal.4th 1134, 1139.) Here, Rascon kept two loaded handguns in a desk drawer in
an office in her residence. In the same room

, there was a monitor showing the front approach to the house. This placed the guns relatively close not only to the drugs, which were in a closet outside the office, but also to a monitor that could reasonably be infe rred to
have assisted Rascon in selling drugs by providing security for the operation . Therefore, the guns were readily accessible to aid in
the commission of the drug offense. (See, e.g., People v. Bland

, supra , 10 Cal.4th at p. 1000 [evidence that an assault weapon was kept in a bedroom near drugs supported “ „ armed with a firearm ‟ ” enhancement]; People v. Wandick (1991) 227 Cal.App. 3d 918, 921, 928 [firearms in bedroom and drugs in other rooms supported
armed enhancement ] ; cf. People v. Osuna (2014) 225 Cal.App.4th 1020, 1030 [a defendant not in the residence possesses but is not armed with weapons located at his residence].) Rascon argues the guns found in the office were not readily available for use because they were not in close proximity to either12

herself or the drugs. The argument is without merit. For a firearm enhancement to be proper in a drug case, the gun need only be readily accessible ; it need not always be in close proximity either to the owner or the drugs

. Bec ause drug possession is a continuing offense, the jury could reasonably infer that Rascon at some point had ready access to both the guns and drugs in her own house.
III. Substantial Evidence Supported the Finding That the Guns W ere Operable The jury fou nd Rascon guilty of possessing methamphetamines while armed wi th an operable firearm.
Rascon argues insufficient evidenc e supported the verdict because nothing suggested the gun s recovered from her house were operabl e. We disagree. Any person who unlawf ully possesses methamphetamines

“ while armed with a loaded, operable firearm is guilty of a felony punishable by imprisonment in the state prison for two, three, or four years. ” (Health & Saf. Code, § 11370.1, subd. (a).) Here, deputies recovered methamp hetamines and two loaded handguns from Rascon ‟ s home. Rascon admitted the drugs were
hers. Two deputies testified that they examined the guns, which appeared to be operable. Rascon argues the only way to prove a gun is operable is to test fire it, which the deputies in this case did not do. No principle or authority supports the argument. That the guns were loaded permitted the jury to infer they were operable, because there is no reason to load a gun that does not work.13 IV. Rascon Is Not Automatically Entitled to a Reduction of Her Sentence on Count 10

Rascon contends her sentenc e on count 10 for possession
of marijuana for sale in violation of Health and Safety Code
section 11359 “must be corrected” to reflect a post

- sentencing statutory amendment tha t reduced the penalty for that crime. 2
We disagree. At the time Rascon committed her crimes, and at the time
the trial court sentenced her, Health and Safety Code section 11359 provided: “Every person who possesses for sale any marijuana, except as oth erwise provided by law, shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code.” Penal Code section 1170, subdivision (h) provides generally for “imprisonment in a county jail for 16 months, or

two or three years.” Here, the court imposed the upper term of
three years, the sentence to run concurrent to other specified terms. After Rascon was sentenced, the electorate passed the Control, Regulate and Tax Adult Use of Marijuana Act, Proposition 64,
which amended H ealth and Safety Code section 11359 to provide, generally, that “[e]very person 18 years of age or over who possesses marijuana for sale shall be punished by imprisonment in a county jail for a period of not more than six months or by a fine of not more
th an five hundred dollars ($500), or by both such fine and

2 Afte r the parties filed the ir briefs, Rascon asserted this argum ent in a letter brief filed with the court in which she requested that we consider the matter at oral argument. We granted her request. The Attorney General subsequently f iled a written response and the parties were given the opportunity to argue the issue during oral argument.14

imprisonment.” ( Health & Saf. Code, § 11359, subd. (b).) 3 Thus,
i f the amendment is retroactive a nd this general rule applies to Rascon, her felony conviction for violating Health and Safety Code

s ection 11359 would be reduced to a misdemeanor. Proposition 64 also added Health and Safety Code
section 11361.8, which allows a “person currently serving a sentence for a conviction” of Health and Safety Code section 11359 (and other marijuana

- related c rimes) to petition the trial court to recall the person‟s sentence and resentence the person in accordance with the amended statute. (Heal th & Saf. Code, § 11361.8, subd. (a).) If an inmate files such a petition and satis fies the statutory criteria
for r elief, “the court shall grant the petition .

. . unless the court determines that granting the petition would pose an unreasonable risk of danger to public safety.” (Heal th & Saf. Code, § 11361.8,
subd. (b).) An “unreasonable risk of danger to public saf ety” is defined as “an unreasonable risk th at the petitioner will commit

a new violent felony within the meaning of [Penal Code section 667, subdivision (e)(2)(C)(iv)].” (Pen. Code, § 1170.18, subd. (c); Health & Saf. Code, § 11361.8, subd. (b)(2).)
Ras con contends that the amendment to Health and Safety Code section 11359 should be applied retroactively to reduce

3 There are exceptions to the general rule. The penalty prescribed in Penal Code section 1170, subdivision (h), still appl ies if the defendant: (1) has a prior co nvict ion fo r certain serious or violent felonies, or is required to regi ster as a sex offender, (2) has two or more prior convictions of pos sessing marijuana for sale, (3) commits the offense in connection with the sale or attempted sale of marijuana to a minor , or (4 ) knowingly employs a person 20 years old or younger to cultivate, t ransport, carry, sell, offer to sell, give away, or peddle marijuana. (Health & Saf. Code, § 11359, subds. (c)

- (d).) It is not apparent from our record whether any of the exceptio ns apply.15

her conviction on count 10 to a misdemeanor. She relies on
In re Estrada (1965) 63 Cal.2d 740 ( Estrada ). In Estrada , the Supreme Court estab lished an exception to the general rule that

a statute that is silent as to wheth er it operates prospectively or retroactively will be presumed to operate prospectively only. ( People v. Brown (2012) 54 Cal.4th 314, 323.) The exception applies
when a stat ute that is silent as to its retroactivity reduces the penalty for a particular crime. In that situation, courts will presume that “the new lighter penalty” will apply “to acts committed before its passage[,] provided the judgment convicting the defendant of
the act is not final.” ( In re Estrada

, supra , 63 Cal.2d at p. 745.)
The Estrada C ourt explained that when the Legislature reduced a crime‟s punishment, it “obviously expressly determined that its former penalty was too severe and that a lighter punis hment is proper as punishment for the commission of the prohibited act.” ( Ibid. ) Given this determination, the Court continued, the Legislature must have intended that the lesser penalty applies retroactively “ because to hold othe rwise would be to conclu de
that the Legislature was motivated by a desire for vengeance, a conclusion not permitted in view of modern theories of penology.” ( Ibid. )
In People v. Conley (2016) 63 Cal.4th 646, 656 ( Conley ), our Supreme Court considered whether, under Estrada , th e Three Strikes Reform Act of 2012, commonly known as Proposition 36, applied retroactively to persons whos e judgments were not yet final. Proposition 36 amended the “ Three Strikes ” law to reduce
the penalty for some third strike offenders when the third strike
is not a serious or violent felony. It also enacted Pen al Code
section 1170.126, which created a post

- conviction procedure whereby a prison inmate “presently serving” a third strike sentence for a crime that was not a serious or violent felony may petition to recall
his or her sentence and be resentenced as a second strike offender.16

( People v. Johnson (2015) 61 Cal.4th 674, 682.) The inmate in Conley argued that he was entitled under Estrada to the reduced penalty because his judgment was not yet final and, therefore,
he did not “need to file a recall pe tition under Penal Code
section 1170.126.” ( Conley

, supra , 6 3 Cal.4th at pp. 655

- 656.) The Suprem e Court rejected the argument. Proposition 36, the Conley C ourt explained, “ is not silent on
the q uestion of retroactivity. Rather, [Proposition 36] expressly addresses the question in [Penal Code] section 1170.126, the
sole purpose of which is to extend the benefits of [Proposition 36] retroactively.” ( Conley

, supra , 63 Cal.4th at p. 657.) Moreover

, the C ourt reasoned, by making resen tencing available only when
the inmate‟s early release would not “pose an „unreasonable risk
of danger to public safety,‟ ” the electorate apparently intended “to create broad access to resentencing for prisoners previo usly sentenced to indeterminate life terms, but subject to judicial evaluation of the impact of resentencing on public safety .” ( Id. at pp. 658

- 659, italics added.) This purpose would not be served if, as the defendant argued, the statute “confer[red] an automatic entitlement to resentencing” for inmates whose cases are still pending on appeal. ( Id . at p. 659.) There was no basis, the C ourt concluded, to hold that the electorate intended “for courts to bypass the public safety inquiry altogether in the case of de fendants serving sentences that are not yet final.” ( Ibid .) Conley ‟s analysis applies with equal force here. Proposition 64, like Proposition 36, “i s not silent on the question
of retroactivity.” (See Conley

, supra , 63 Cal.4th at p. 657.) It provides for a procedure analogous to Proposition 36‟s procedure “for application of the new lesser punishment to persons who have previously been sentenced.” ( Id. at p. 658; compare Health & Saf. Code, § 11361.8 with Pen. Code, § 1170.126.) Proposition 64,
like Proposition 36, expressly restricts the availability of the17

reduced criminal penalties to those inmates who do not pose an unreasonable risk of danger to public safety (Health & Saf. Code, § 11361.8, subd. (b)), thereby making “ retroactive applica tion of
the lesser punishment contingent on a court‟s evaluation of the defendant‟s dangerousness.” ( Conley

, supra , 63 Cal.4th at p. 658.) 4 In light of the similarities bet ween the two propositions as

to resentencing, we infer a similar intent on the par t of the
electorate

— to create access to resent encing for prisoners previously sentenced for specified marijuana

- related crimes, “but subject to judicial evaluation of the impact of r esentencing on public safety.” ( Id

. at pp. 658

- 659.) And, just as conferr ing an automatic entitlement to resentencing under Proposition 36 would undermine that intent ( id

. at p. 659), so would a similar entitlement undermine the apparent intent in enacting Proposition 64. We therefore conclude that a person sent enced prior to the en actment of Proposition 64 for violating Health and Safety Code section 11359 whose judgment is not yet final is not automatically entitled to the reduction of punishment provided by the amendment to that statute.

4 The Safe Neighborhood and Schools Act, commonly known as Proposition 47, enacted by the electorate in 2 014, also reduces penalties for certain crimes and provides a procedure for those currently serving sentences for such c rimes to petition t o recall the inmate‟s sentence that is analogous to the procedures in Proposition 36 and Proposition 64. (Pen. Code, § 1170.18.) The Supreme Court is currently considering whether Proposition 47 applies retroactively to a defendant who was sentenced befo re Proposition 47‟ s effective date but whose judgment is not yet final. ( People v. DeHoyos (2015) 238 Cal.App.4th 363, review granted Sept. 30, 2015, S228230.)18 V. Stayed Sentence on Armed Possessi on Count
Penal Code section 654 provides in part: “ An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case s hall the act or omission be punished under more than one provision. ” ( Pen. Code, § 654, subd. (a).) The statute thus precludes multiple punishments for a single act or an indivisible course of conduct. ( People v. Hester (2000) 22 Cal.4th 290, 294.)
Her e, the jury convicted Rascon of possession of methamphetamine s for sale while personally armed (c ount 7)

, and found true the allegation that she possessed a firearm while committing the crime. The court imposed a three

- year base

sentence and a consecutive five

- year enhancement. (Pen. Code, § 12022, subd. (c).) The jury also co nvicted Rascon of possession
of methamphetamines while armed with an operable firearm (c ount 8) . On this count, t he court imposed a four

- year sentence

to run concurrent to the sent ence on c ount 7

. (Health & Saf. Code, § 11370.1, subd. (a)

. ) But evidence supporting both the
enhancement and the conviction on the latter count was the same : Rascon possessed methamphetamines while armed with a gun

. Because th is single act of possessi on formed the basis of both sentences, the lesser sentence must be stayed. (See, e.g., People v.
Pearson (1986) 42 Cal.3d 351, 359 [ “ when multiple convictions are based on a single act, as in this case, . . . the use of such convictions
must not result in the defendant being „ punished under more than

one ‟ Penal Code provision ” ]; People v. Pitts (1990) 223 Cal.App.3d
154 7, 1558

- 1559 .)19 DISPOSITION

The trial court is ordered to amend the abstract of judgment
and file a minute order reflect ing that the senten ce on count 8 , for violation of Health and Safety Code section 11370.1, subdivision (a), is stayed pursuant to Penal Code section 654, and to forward a

copy of the amended abstract of judgment to the Department of
Corrections and Rehabilitation. As so mod ified, the judgment is
affirmed.
CERTIFIED FOR PARTIAL PUBLICATION

.

ROTHSCHILD, P. J.
We concur:

JOHNSON, J.

LUI, J.