Opinion
F075501
05-22-2018
THE PEOPLE, Plaintiff and Respondent, v. CHRIS HERNANDEZ, Defendant and Appellant.
John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Amanda D. Cary, Ivan P. Mars and Louis M. Vasquez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SF016757A)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Kern County. Michael G. Bush, Judge. John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Amanda D. Cary, Ivan P. Mars and Louis M. Vasquez, Deputy Attorneys General, for Plaintiff and Respondent.
Before Levy, Acting P.J., Peña, J. and Meehan, J.
-ooOoo-
INTRODUCTION
In 2013, appellant Chris Hernandez pled no contest to one felony count of transportation of methamphetamine, a violation of Health and Safety Code section 11379, subdivision (a), in exchange for dismissal of other counts. In 2017, Hernandez filed a petition for reduction of his conviction to a misdemeanor pursuant to Penal Code section 1170.18, subdivision (f). The petition was denied without prejudice and Hernandez appeals.
Further references to code sections are to the Health and Safety Code unless otherwise specified.
The California Supreme Court in People v. Martinez (2018) 4 Cal.5th 647 (Martinez) holds that convictions under former section 11379 for transportation of a controlled substance, even if the transportation was not for sale, are not eligible for Proposition 47 relief. (Martinez, supra, at pp. 654-656.) Therefore, we affirm.
FACTUAL AND PROCEDURAL SUMMARY
Hernandez apparently was stopped for a traffic violation and a search of the vehicle uncovered a silver canister containing 0.73 grams of methamphetamine and an unused pipe for smoking methamphetamine. The canister and pipe were located on the front seat of the truck, with a towel covering them. It also was determined that Hernandez was driving with an expired license.
On October 10, 2012, an information was filed charging Hernandez in count 1 with transportation of methamphetamine; in count 2 with possession of methamphetamine; in count 3 with driving without a license; and in count 4 with possession of drug paraphernalia. It also was alleged that Hernandez had suffered a prior serious felony conviction that constituted a strike.
On January 11, 2013, Hernandez entered into a plea agreement whereby he agreed to plead no contest to one felony count of violating section 11379, subdivision (a), in exchange for felony probation and dismissal of the remaining counts and allegations. Terms of felony probation were to include a maximum of one year in local custody.
According to the probation report, Hernandez had multiple prior convictions. The probation report indicates Hernandez was stopped because his vehicle had no front license plate; Hernandez was on parole at the time. Hernandez admitted the pipe was his, but denied knowledge of the methamphetamine. The probation department opined that if, in the future, a term of imprisonment was being considered, it recommended the "upper term" based on Hernandez's prior criminal record and poor performance on probation/parole.
Hernandez formally entered a plea of no contest to one felony count of transportation of methamphetamine on January 11, 2013. The other counts and allegations were dismissed.
On March 12, 2013, Hernandez was sentenced to three years' formal probation, subject to multiple terms and conditions. One of the terms and conditions of probation was serving one year in local custody.
On March 22, 2017, Hernandez filed a petition seeking reduction of the conviction for transporting methamphetamine from a felony to a misdemeanor pursuant to Proposition 47. Points and authorities were filed in support of the petition.
In his points and authorities, Hernandez states that after being placed on formal probation for the section 11379, subdivision (a), offense, he admitted a violation of probation on October 7, 2014. Thereafter, he failed to appear at the December 2014 sentencing hearing on the probation violation. In March 2015, Hernandez was sentenced on the probation violation and ordered to serve 180 days in local custody.
Hernandez argued in the points and authorities that section 11379 was amended effective January 1, 2014, and he was entitled to the benefit of the amendment. The amendment provided that a conviction under section 11379, subdivision (a), had to be based upon transportation for sale, not transportation for personal use. Hernandez asked that his petition be granted "on a showing that the narcotics under transportation were for personal use."
At the April 14, 2017 hearing on the petition, counsel for Hernandez did not present any evidence that the transportation of methamphetamine was solely for personal use. In fact, there was no presentation of evidence. Counsel opined that there was a case pending in the California Supreme Court that "in my opinion is going to make that [section 11379, subdivision (a), conviction] eligible." The trial court denied the petition without prejudice.
Hernandez filed a notice of appeal of the denial of the petition on April 17, 2017.
DISCUSSION
Hernandez maintains that his conviction under section 11379, subdivision (a), could not be sustained under the current version of section 11379 and that this court should effectuate the intent of the voters in passing Proposition 47 and reclassify the conviction as a misdemeanor. He contends he was not transporting the methamphetamine for sale and, therefore, his offense is possessory and subject to reclassification.
I. Proposition 47
Proposition 47 was approved by the voters on November 4, 2014, and went into effect the next day. (People v. Rivera (2015) 233 Cal.App.4th 1085, 1089.) Proposition 47 reduced certain drug- and theft-related offenses from felonies or wobblers to misdemeanors for qualified defendants and added, among other statutory provisions, Penal Code section 1170.18. Under that statute, a person currently serving a sentence for a conviction, whether by trial or plea, of a felony or felonies who would have been guilty of a misdemeanor had Proposition 47 been in effect at the time of the offense may petition for resentencing; a person who has completed their sentence may apply for reduction of the offense to a misdemeanor. (Pen. Code, § 1170.18, subds. (a) & (f); People v. Bradshaw (2016) 246 Cal.App.4th 1251, 1256-1257.)
With respect to the intent behind Proposition 47's changes to the law, the proposed law explained "the purpose and intent of the people of the State of California" was to "[e]nsure that people convicted of murder, rape, and child molestation will not benefit from th[e A]ct"; "[r]equire misdemeanors instead of felonies for nonserious, nonviolent crimes like petty theft and drug possession, unless the defendant has prior convictions for specified violent or serious crimes"; and "[a]uthorize consideration of resentencing for anyone who is currently serving a sentence for any of the offenses listed herein that are now misdemeanors." (Voter Information Guide, Gen. Elec. (Nov. 4, 2014) text of Prop. 47, § 3, subds. (1), (3), (4), p. 70.)
The voter information guide can be accessed online at <http://vigarchive.sos.ca.gov/2014/general/en/propositions/47/pdf/> [as of May 22, 2018]. --------
According to the Legislative Analyst's analysis provided with the voter's guide, Proposition 47 proposed to "reduce[] the penalties for the following crimes: [¶] Grand Theft ... [¶] Shoplifting ... [¶] Receiving Stolen Property ... [¶] Writing Bad Checks ... [¶] Check Forgery ... [¶ and] Drug Possession." (Voter Information Guide, Gen. Elec., supra, analysis of Prop. 47 by Legis. Analyst, pp. 35-36, italics added.)
These changes were reflected in added sections to the Government Code (§§ 7599, 7599.1 & 7599.2), amended and added sections to the Penal Code (§§ 459.5, 473, 476a, 490.2, 496, 666 & 1170.18), and amended sections to the Health and Safety Code (§§ 11350, 11357 & 11377). (See Voter Information Guide, Gen. Elec., supra, text of Prop. 47, §§ 4-14, pp. 70-74.)
The interpretation of a ballot initiative is governed by the same rules that apply in construing a statute enacted by the Legislature. (People v. Park (2013) 56 Cal.4th 782, 796.) The statutory language is given its plain and ordinary meaning; when the language is unambiguous, there is no need for statutory construction. (Robert L. v. Superior Court (2003) 30 Cal.4th 894, 901; People v. Hendrix (1997) 16 Cal.4th 508, 512.)
II. Petition for Reduction of Felony
A defendant seeking resentencing or reduction of a felony conviction to a misdemeanor bears the burden of establishing his or her eligibility. (People v. Page (2017) 3 Cal.5th 1175, 1188.) A person who has completed his or her sentence for a felony offense that would be a misdemeanor after Proposition 47, may file an application with the trial court for reduction of the felony to a misdemeanor. (Pen. Code, § 1170.18, subd. (f).) A conviction for transportation of a controlled substance under Health and Safety Code section 11379, subdivision (a), is not an offense specifically included in Penal Code section 1170.18, subdivision (a), as eligible for reduction to a misdemeanor.
Amendment to Section 11379
At the time of Hernandez's conviction, courts interpreted section 11379, subdivision (a), as applying to transportation for personal use, as well as sales. (See People v. Emmal (1998) 68 Cal.App.4th 1313, 1316-1317.) Effective January 1, 2014, section 11379 was amended to add the requirement that the transportation be for sale. (Stats. 2013, ch. 504, § 2; § 11379, subd. (c).) Hernandez argues that the conduct underlying his 2013 conviction for violating section 11379, subdivision (a), would today not qualify as "transportation" and instead be treated as a possessory misdemeanor offense. He argues he is entitled to the benefit of the amendment to section 11379 and to Proposition 47 relief.
Under long-established principles, a statute lessening punishment is presumed to apply to all cases not yet reduced to final judgment when the statute becomes effective. (In re Estrada (1965) 63 Cal.2d 740, 744-748.) Hernandez pled to the section 11379 offense in January 2013 and was sentenced in March 2013 to formal probation. An order granting probation is a final judgment from which an appeal may be taken. (People v. Howard (1997) 16 Cal.4th 1081, 1087; Pen. Code, § 1237, subd. (a).) An appealable order that is not appealed becomes final and binding and may not subsequently be attacked. (People v. Ramirez (2008) 159 Cal.App.4th 1412, 1421.) "[W]hen a court imposes sentence but suspends its execution at the time probation is granted, a defendant has the opportunity to challenge the sentence in an appeal from the order granting probation. [Citation.] If the defendant allows the time for appeal to lapse during the probationary period, the sentence becomes final and unappealable." (Ibid.) There is no record of Hernandez appealing from the sentence imposed in March 2013, so the judgment would have become final in May 2013. (Pen. Code, § 1237.5; Cal. Rules of Court, rules 8.304(a) & (b), 8.308(a).)
However, Hernandez appears to argue he should be entitled, retroactively, to the benefit of the amendment. His petition for reclassification of the conviction and the points and authorities filed in support of the petition argue the amended statute should be applied to him, so as to convert his methamphetamine transportation conviction to a possession conviction, thereby making him eligible for relief under Penal Code section 1170.18 because possession offenses were reclassified as misdemeanors by Proposition 47.
We are not persuaded the Legislature intended the amendment to section 11379 to apply retroactively to convictions that had become final prior to the amendment's effective date of January 1, 2014. (Cf. People v. Ramos (2016) 244 Cal.App.4th 99 [finding that 2013 amendment to § 11352—which is directly analogous to the 2013 amendment to § 11379—applies retroactively to cases that were pending final judgment at the time of enactment of the amendment].) There is no indication in the record before us that Hernandez's conviction was not final when the amendment became effective January 1, 2014. The burden is on Hernandez to produce evidence that his conviction was not final and the amendment applies to him, thus making him eligible for Proposition 47 relief, if that is his contention. (People v. Page, supra, 3 Cal.5th at p. 1188.)
In a case factually similar to that of Hernandez, in People v. Superior Court (Rodas) (2017) 10 Cal.App.5th 1316 (Rodas), the defendant entered a no contest plea to transportation of heroin in 2007, a violation of section 11352, pursuant to a plea agreement. She was granted formal probation, thereafter violated probation, and subsequently absconded. In 2015, she sought to vacate her felony transportation conviction and replace it with a misdemeanor possession conviction. (Rodas, supra, at pp. 1318-1319.) The defendant sought to benefit from the 2014 amendment to section 11352 that required transportation for sale, rather than personal use. (Rodas, supra, at p. 1319.) The appellate court concluded that even though the defendant's sentence was suspended and she was on probation when the amendment took effect, she could not benefit from the amendment because her conviction was final. (Id. at p. 1326.)
Furthermore, in People v. DeHoyos (2018) 4 Cal.5th 594, the California Supreme Court addressed the application of statutory changes implemented by Proposition 47 to defendants whose judgments were on appeal and, thus, not yet final. The defendant in DeHoyos was serving a term of formal probation for a drug possessory offense when Proposition 47 became effective. The California Supreme Court concluded defendants whose judgments were final, as well as those whose judgments were not yet final, were not entitled to automatic resentencing and, instead, must file a petition for resentencing and comply with the provisions of Penal Code section 1170.18. (People v. DeHoyos, supra, at p. 597.)
Most recently in Martinez, the California Supreme Court stated the defendant's position in seeking Proposition 47 relief "assumes that the 2013 amendment to section 11379 could have some bearing on the proper treatment of the offense he committed in 2007, even though his conviction for that offense became final in 2010. But 'in the absence of an express retroactivity provision ... [or] unless it is very clear from extrinsic sources that the Legislature or the voters must have intended a retroactive application,' ameliorative legislation does not affect convictions that have become final." (Martinez, supra, 4 Cal.5th at p. 655.)
Proposition 47 Does Not Apply to Section 11379
Section 11379 convictions are not among the offenses enumerated in Penal Code section 1170.18 as eligible for relief. We are mindful, though, that the California Supreme Court has expanded Proposition 47 relief to offenses not specifically enumerated in Penal Code section 1170.18, as it did in Page. (People v. Page, supra, 3 Cal.5th at p. 1187.) In Martinez, the court stated, "the mere fact that section 11379 is not one of the code sections enumerated in Penal Code section 1170.18[, subdivision ](a) is not fatal" to a petition for reclassification of a transportation offense. (Martinez, supra, 4 Cal.5th at p. 652.)
However, the California Supreme Court in Martinez decided that Proposition 47 "did not reduce the transportation of a controlled substance from a felony to a misdemeanor" and defendants are not eligible for resentencing on section 11379 convictions. (Martinez, supra, 4 Cal.5th at p. 653.) In Martinez, the court stated, "it is reasonable to treat drug transportation as a more serious crime than drug possession." (Id. at p. 654.) "Reclassifying drug possession, but not drug transportation, as a misdemeanor is therefore consistent with Proposition 47's stated goal of reducing punishment for nonserious crimes." (Ibid.)
The court reasoned, "Proposition 47 could have been written to reduce to a misdemeanor any drug offense without intent to sell. [Citations.] But Proposition 47 was not written that way." (Martinez, supra, 4 Cal.5th at p. 654.) "In sum, because Proposition 47 did not alter the offense of unlawful drug transportation, [Hernandez's] conviction under former section 11379 would not have been affected even if Proposition 47 had been in effect at the time of his offense." (Id. at pp. 654-655.) This is true even if Hernandez transported the methamphetamine without intent to sell because possession is not an element of unlawful transportation and not every person convicted of violating "former section 11379 has necessarily committed a drug possession offense covered by Proposition 47." (Id. at p. 655.)
Conclusion
The California Supreme court decision in Martinez holds that convictions under former section 11379 for transportation of a controlled substance, even if the transportation was not for sale, are not eligible for Proposition 47 relief. (Martinez, supra, 4 Cal.5th at pp. 655-656.) The trial court did not err in concluding that Hernandez's section 11379 conviction was not eligible for relief under Penal Code section 1170.18. The trial court denied Hernandez's petition without prejudice, so if subsequent legislation should be enacted that extends Proposition 47 relief to offenses of transportation not for sale (see Martinez, supra, at pp. 656-657 (conc. opn. of Liu, J.)), or evidence establishing his conviction was not final as of January 1, 2014 is produced, Hernandez may seek relief under Penal Code section 1170.18.
DISPOSITION
The April 14, 2017, order denying without prejudice Hernandez's request for reduction of his Health and Safety Code section 11379 felony conviction to a misdemeanor is affirmed.