(Super. Ct. Nos. SF112457A & SF112457B)
The opinion of the court was delivered by: Mauro , J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury convicted defendants Manuel Ray Pontod and Jorge Jaime of each being a felon in possession of a firearm, and of the unlawful possession of ammunition. The jury also convicted Jaime of transporting methamphetamine, possessing methamphetamine for sale, and possessing a controlled substance with a loaded, operable firearm. In addition, the jury found that Jaime was armed in the commission of the offenses for transportation and possession of methamphetamine. The trial court found Pontod had two prior strike convictions and had served a prior prison term. It sentenced Pontod to a term of 25 years to life in state prison, and sentenced Jaime to a term of seven years and eight months in state prison.
Pontod now contends: the trial court erred in denying his Batson/Wheeler motion (Batson v. Kentucky (1986) 476 U.S. 79 [90 L.Ed.2d 69] (Batson); People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler); his conviction for being a felon in possession of a firearm is not supported by substantial evidence; and the trial court abused its discretion in denying his motion to dismiss one of the prior strike allegations.
In addition, Jaime contends: his punishment for being a felon in possession of a firearm and for being armed while transporting methamphetamine violates the prohibition against multiple punishment in Penal Code section 654;*fn1 and his conviction for possessing a controlled substance while armed with a firearm must be reversed because there is no substantial evidence that the firearm was operable.
We conclude (1) the trial court did not err in denying Pontod's Batson/Wheeler motion because there was no proof by a preponderance of the evidence that a prospective juror had been removed based on race; (2) there is substantial evidence that Pontod possessed one of the guns in the car; (3) the trial court did not abuse its discretion in denying Pontod's motion to dismiss one of the prior strike allegations; (4) Jaime's sentence does not violate section 654; and (5) there is substantial evidence that Jaime was armed with an operable firearm. Accordingly, we will affirm the judgments.
California Highway Patrol Sergeants Crutchfield and Languemi saw a Camaro fishtail around a street corner one evening in 2009. They stopped the Camaro, and Sergeant Crutchfield walked toward the driver's door while Sergeant Languemi walked toward the passenger side. Kurt Nagle was in the driver seat, Jaime was in the front passenger seat, and Pontod was in the right rear passenger seat. They were all moving around, and Pontod looked like he was trying to cover something up on the floorboard.
As Sergeant Crutchfield neared the car, Nagle opened the driver's door and began to get out. Crutchfield told him to stay in the car, and asked for his license, registration, and proof of insurance. Nagle appeared extremely nervous and his hands were shaking. Crutchfield saw Pontod trying to cover up a case of beer in the rear of the car. Crutchfield told Nagle, "Tell your friends that I can see the beer and to stop moving around." Because Crutchfield could smell alcohol, he had Nagle get out and escorted him toward the front of the patrol car.
Sergeant Languemi, who was standing at the right rear side of the Camaro, turned on his flashlight and illuminated the inside of the vehicle. He saw the handle of a .44 caliber revolver at Pontod's feet, and saw Pontod "making a motion like trying to kick it forward." Languemi drew his own gun and watched to make sure that Pontod did not reach for the revolver in the car. Languemi did not immediately tell Crutchfield because he did not want to alert the occupants of the car to the fact that he had seen the weapon. However, as Crutchfield escorted Nagle toward the patrol car, Languemi told him to handcuff Nagle and put him in the backseat. Crutchfield asked why, and Languemi replied, "[r]ight rear has a gun." The two officers waited for backup to arrive and then handcuffed Pontod and Jaime before placing them in patrol cars.
A search of the Camaro revealed three handguns: a loaded .25 caliber semiautomatic tucked between the driver's seat and the center console near the seatbelt release; a loaded .38 Special revolver concealed underneath the front part of the front passenger's seat; and a loaded .44 caliber revolver underneath the rear portion of the right front passenger seat. A plastic bag containing a large quantity of methamphetamine was inside a case of beer on the rear passenger seat. A box of .44 caliber ammunition was also on the rear passenger seat underneath a fast food bag.
Jaime testified that he alone possessed the guns and methamphetamine, and that neither Nagle nor Pontod knew about the contraband. Jaime stated that on the night in question, he began having car trouble and managed to drive to the nearby Pontod family paint shop to call a tow truck. Pontod was there and Jaime spoke to him briefly before Nagle happened to arrive. Either Nagle or Pontod asked if Jaime needed a ride. Because Jaime did not have a place to live, he kept his guns, ammunition and drugs in his car. He grabbed these items, and surreptitiously put them in his pockets and front waistband, before getting into the front seat of Nagle's car. As they were driving, Jaime pretended to tie his shoes. He pulled the .44 caliber gun from his waistband in his "crotch area," and "threw it back," which meant he shoved the gun under the front seat and pushed it towards the back. Jaime stated he discreetly pulled the .38 caliber revolver from his right pocket and put it under the same seat. He left the remaining .25 caliber gun in his pocket and put the ammunition, which was in a McDonald's bag, on the floor. When the police pulled them over, Jaime got nervous and threw the McDonald's bag in the backseat. He quickly stuffed the methamphetamine in the case of beer. When the officers took Nagle to the patrol car, Jaime grabbed the .25 caliber gun and stuffed it between the driver's seat and center console.
Jaime testified he bought the guns a few months earlier. He bought the .44 caliber revolver for protection. Then he purchased the .25 caliber semiautomatic weapon because he "thought it was cool at the time, you know, just -- I don't -- there's no reason for it but protection again." Jaime thought it was "cool to have a gun in general." He said he purchased the .38 revolver at the same time as the .25 semiautomatic because it was a "packaged deal."
The jury acquitted Nagle of all charges, but convicted Pontod and Jaime of each being a felon in possession of a firearm (former § 12021, subd. (a)), and of unlawful possession of ammunition (former § 12316, subd. (b)(1)). The jury also convicted Jaime of selling or transporting methamphetamine (Health & Saf. Code, § 11379), possessing methamphetamine for sale (Health & Saf. Code, § 11378), and possessing a controlled substance with a loaded, operable firearm (Health & Saf. Code, § 11370.1, subd. (a)). In addition, the jury found that Jaime was armed with a firearm in the commission of the offenses for transportation and possession of methamphetamine (§ 12022, subd. (c)). The trial court found Pontod had two prior strike convictions and had served a prior prison term (§§ 667, subds. (b)-(i), 667.5, subd. (b)).