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.

 B269000

 (Los Angeles County

 Super. Ct. No. VA133796)

 

APPEAL from a judgment of the Superior Court of 

Los Angeles County, Raul Anthony Sahagun, Judge. Affirmed

as modified.

Lenore De Vita, under appointment by the Court of Appeal, 

for Defendant 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, Deputy Attorneys General, for Plaintiff and Respondent. 

 

* Pursuant to California Rules of Court, rules 8.1100 and 

8.1110, this opinion is certified for publication with the exception 

of parts I, II, III and V of the Discussion.
2

Alice Rascon appeals from the judgment entered on her 

convictions for drug, firearm, and ammunition possession. She 

contends the trial court admitted a confession taken in violation 

of Miranda v. Arizona (1966) 384 U.S. 436 (Miranda) in that the 

police 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 should have been stayed because 

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 stayed, 

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 detained 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 “yes.”

Detective Campbell then left Rascon alone in the patrol car 

and participated in the search. The search recovered five bags of 

methamphetamines and 11 bags of marijuana from an unlocked safe

in a closet, as well as numerous unused plastic baggies and three 

digital scales from the closet. The deputies also found ammunition 

and two operable, loaded handguns in an unlocked desk drawer 

in an office in the house. The office also contained a monitor 

displaying a live video feed from two exterior cameras surveilling 
3

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 detectives

where the meth was in the closet.”

Detective Campbell asked Rascon who resided in the 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 refused 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 where the meth and 

the handguns were.”

Rascon was charged with possession of methamphetamines 

while armed, possession of methamphetamines and marijuana for 

sale, possession of ammunition, and possession of firearms by a 

felon, and it was alleged she was personally armed with a firearm 

while in possession 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 trial court found 

Rascon had suffered prior narcotics convictions, but the court struck 

the prior prison term allegations without rendering a verdict on 
4

them. The court sentenced Rascon to three years in prison for 

methamphetamine possession plus five consecutive years for the 

firearm enhancement. The court struck the remaining enhancement 

allegations. The court imposed concurrent terms for the marijuana 

and armed methamphetamine possession 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 prohibits multiple punishment for 

a single act. The court imposed various fines and fees and awarded 

Rascon 259 days of presentence custody credit.

Rascon timely appealed.

DISCUSSION

I. There Was No 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.” (People 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 suspect [may] not be subjected to 

custodial interrogation unless he or she knowingly and intelligently 

has waived the right to remain silent, 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 uncompelled and uncoerced decision to talk, 

he or she has thereby 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) [Once a 
5

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 uncoercive questioning” may later waive his 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.4th 1359, 1363

(Camino)), “the unwarned admission must be suppressed,” but

“the admissibility of any subsequent statement” will depend upon 

“whether it is knowingly and voluntarily made.” (Elstad, 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 surrounding 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 

deliberately used a two-step questioning technique whereby they 

withheld a Miranda advisement until a suspect confessed, then 

advised 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 the 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 and 
6

unwarned confession could not effectively comply with 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 confession, the warnings will 

be ineffective in preparing the suspect for successive interrogation, 

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 confession the suspect would not make if he 

understood his rights at the outset; the sensible underlying 

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 warnings delivered midstream could 

be effective enough to accomplish their object: [T]he completeness 

and detail of the questions and answers in the first round of 

interrogation, the overlapping content of the two statements, the 

timing and setting of the first and 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 Kennedy, 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 test 

applicable only in the infrequent case . . . 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 prewarning 
7

statements must be excluded 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 

governed 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.3d 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 measures 

should be designed to ensure that a reasonable person in the 

suspect‟s situation would understand the import and effect of 

the Miranda warning and of the Miranda waiver. For example, 

a substantial break in time and circumstances between the 

prewarning statement and the Miranda warning may suffice in 

most circumstances, as it allows the accused to distinguish the 

two contexts and appreciate that the interrogation 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 moved 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 interview if she 

had anything illegal in the house. Rascon answered “yes.” 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 Detective Campbell returned, he advised Rascon of 

her Miranda rights and obtained her waiver. He then asked who 

lived in the house and who owned the drugs and cell phone the 

deputies found. Rascon replied that she lived in the house with her 

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 testified 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 would be detrimental to her. Detective Campbell

took no notes, and the interrogation was not recorded. 

The trial court granted Rascon‟s motion to suppress the 

statements she made before waiving her Miranda rights. The court, 

however, found no evidence that Detective Campbell employed a 

deliberate strategy to undermine the Miranda 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 waived her 

Miranda rights.

Substantial evidence supports the trial court‟s finding that

Detective Campbell did not deliberately use a two-step interrogation 

technique to undermine the Miranda warning. The prewarning 
9

interrogation was nondetailed and incomplete. Detective Campbell

asked what bedroom 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 desire 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 treated the second round of interrogation 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 house 

and there was something illegal in the house. In the 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, nothing suggests police used inherently coercive 

tactics or methods that rendered Rascon‟s initial admission 

involuntary or undermined her will to invoke her rights once they 

were read to her. Therefore, substantial evidence supports the trial 

court‟s conclusion that Rascon knowingly 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 same person in the same location. These factors

arguably could have permitted the trial court to conclude the 

interview was improper, but 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 

evidence supported her convictions for possession for sale of 

methamphetamine and marijuana, possession of methamphetamine 

while armed, possession of a firearm by a felon, and possession 

of ammunition.

II. Substantial Evidence Supported the Finding 

That Rascon Was Armed

The jury found true the special allegation that Rascon was 

personally armed while in possession of methamphetamines 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 desire of the Legislature to prevent death and injury as 

a result of the involvement of firearms 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 

intent of the Legislature is to deter persons from creating a potential 

for death or injury resulting 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 deadly weapon even though no use is 

made of the weapon. (People v. Reaves (1974) 42 Cal.App.3d 

852, 856-857.)

As pertinent here, subdivision (c) of Penal Code section 12022 

imposes a special sentence enhancement of three, four, or five years 

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

violation . . . of Section . . . 11378” (possession of methamphetamine 

for the purpose of sale). “[W]hen . . . a defendant engaged in felony 

drug possession, which is a crime of a continuing nature, has a 

weapon available at any time during the felony to aid in its 

commission, the defendant is „armed with a firearm in the 
11

commission . . . of a felony.‟ ” (People v. Bland (1995) 10 Cal.4th 

991, 999.)

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. 

Osband (1996) 13 Cal.4th 622, 690; In re Alexander L. (2007) 

149 Cal.App.4th 605, 610.) An 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. (People 

v. Bolin (1998) 18 Cal.4th 297, 331.) Reversal is not warranted 

simply because the evidence might support 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 inferred 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 either 
12

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. Because 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 Were Operable

The jury found Rascon guilty of possessing 

methamphetamines while armed with an operable firearm. 

Rascon argues insufficient evidence supported the verdict because 

nothing suggested the guns recovered from her house were 

operable. We disagree.

Any person who unlawfully 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 methamphetamines 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 sentence 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 that 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 otherwise 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 Health 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 

than five hundred dollars ($500), or by both such fine and 

 

2 After the parties filed their briefs, Rascon asserted 

this argument 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 filed 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, 

if the amendment is retroactive and this general rule applies to 

Rascon, her felony conviction for violating Health and Safety Code 

section 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 crimes) to petition the trial court to recall the 

person‟s sentence and resentence the person in accordance with the 

amended statute. (Health & Saf. Code, § 11361.8, subd. (a).) If an 

inmate files such a petition and satisfies the statutory criteria 

for relief, “the court shall grant the petition . . . unless the court 

determines that granting the petition would pose an unreasonable 

risk of danger to public safety.” (Health & Saf. Code, § 11361.8, 

subd. (b).) An “unreasonable risk of danger to public safety” is 

defined as “an unreasonable risk that 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).) 

Rascon 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 

applies if the defendant: (1) has a prior conviction for certain 

serious or violent felonies, or is required to register as a sex 

offender, (2) has two or more prior convictions of possessing 

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, transport, 

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 exceptions 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 established an exception to the general rule that 

a statute that is silent as to whether 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 statute 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 Court 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 punishment 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 otherwise would be to conclude 

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, the Three 

Strikes Reform Act of 2012, commonly known as Proposition 36, 

applied retroactively to persons whose 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 Penal 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 petition under Penal Code 

section 1170.126.” (Conley, supra, 63 Cal.4th at pp. 655-656.) The 

Supreme Court rejected the argument.

Proposition 36, the Conley Court explained, “is not silent on 

the question 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 Court reasoned, by making resentencing 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 previously 

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 Court 

concluded, to hold that the electorate intended “for courts to bypass 

the public safety inquiry altogether in the case of defendants serving 

sentences that are not yet final.” (Ibid.)

Conley‟s analysis applies with equal force here. 

Proposition 64, like Proposition 36, “is 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 the 
17

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 application 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 between the two propositions as 

to resentencing, we infer a similar intent on the part of the 

electorate—to create access to resentencing for prisoners previously 

sentenced for specified marijuana-related crimes, “but subject to 

judicial evaluation of the impact of resentencing on public safety.” 

(Id. at pp. 658-659.) And, just as conferring 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 sentenced prior to the enactment 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 2014, also reduces 

penalties for certain crimes and provides a procedure for those 

currently serving sentences for such crimes to petition to 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 before 

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 Possession 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 shall 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.)

Here, the jury convicted Rascon of possession of 

methamphetamines for sale while personally armed (count 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 convicted Rascon of possession 

of methamphetamines while armed with an operable firearm

(count 8). On this count, the court imposed a four-year sentence

to run concurrent to the sentence on count 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 this single act of possession 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 

1547, 1558-1559.)
19

DISPOSITION

The trial court is ordered to amend the abstract of judgment

and file a minute order reflecting that the sentence 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 modified, the judgment is 

affirmed.

CERTIFIED FOR PARTIAL PUBLICATION.

ROTHSCHILD, P. J.

We concur:

JOHNSON, J.

LUI, J.