Opinion
C084663
06-27-2018
THE PEOPLE, Plaintiff and Respondent, v. JACOB ALLEN FORD, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 06F5893)
Defendant Jacob Allen Ford appeals from the denial of his Penal Code section 1170.18 petition for resentencing. He contends the trial court erred in finding his conviction for transportation of methamphetamine was ineligible for relief. We shall affirm.
Undesignated statutory references are to the Penal Code. --------
BACKGROUND
On July 23, 2006, defendant was a passenger in a car pulled off to the side of the road. He and the driver were contacted by deputies, who determined both occupants were on parole. A search of their persons and the car discovered five grams of methamphetamine, a loaded .25-caliber handgun, an operable digital scale, a glass methamphetamine pipe, and three cell phones.
Following a jury trial, defendant was convicted of transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a)) while personally armed with a firearm (§ 12022, subd. (c)), possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)), unlawful possession of a firearm by a felon (former § 12021, subd. (a)), and carrying a loaded firearm in a vehicle (former § 12031, subd. (a)(2)). The trial court sustained two strike allegations and sentenced defendant to 25 years to life. We affirmed the judgment of conviction on appeal. (People v. Ford (Apr. 18, 2008, C055058) [nonpub. opn.].)
In March 2015, defendant's conviction for possession of methamphetamine was reduced to a misdemeanor pursuant to section 1170.18.
On February 22, 2017, defendant filed a section 1170.18 petition for resentencing on his conviction for transportation of methamphetamine. The trial court denied the petition, finding transportation of methamphetamine was not one of the crimes subject to section 1170.18 relief.
DISCUSSION
When defendant committed his crimes in 2006, Health and Safety Code section 11379, subdivision (a) provided, "every person who transports . . ., sells, . . . any controlled substance . . . shall be punished . . . for a period of two, three, or four years." The word "transports" in Health and Safety Code section 11379 had been interpreted to mean moving illegal drugs from one location to another location, rather than merely held at one location. (People v. Rogers (1971) 5 Cal.3d 129, 134-135; People v. Ormiston (2003) 105 Cal.App.4th 676, 682.) Effective January 1, 2014, the Legislature added an element to the offense by defining "transports" to mean "transport for sale." (Health & Saf. Code, § 11379, subd. (c), as amended by Stats. 2013, ch. 504, § 2.) A statute lessening punishment is presumed to apply to all cases not yet reduced to final judgment on the statute's effective date unless there is a savings clause or its equivalent providing for prospective application. (In re Estrada (1965) 63 Cal.2d 740, 744-745, 747-748.) Since defendant's conviction was final before the transportation statute was amended, the change in the law does not apply retroactively to his case.
Defendant contends he is entitled to the benefits of the amendment to Health and Safety Code section 11379 through section 1170.18.
In November 2014, the voters passed Proposition 47, which reduced a number of felony or wobbler offenses to misdemeanors. (See People v. Rivera (2015) 233 Cal.App.4th 1085, 1091.) Proposition 47 contains a resentencing provision, section 1170.18, which states in pertinent part: "A person who, on November 5, 2014, was serving a sentence for a conviction, whether by trial or plea, of a felony or felonies who would have been guilty of a misdemeanor under the act that added this section ("this act") had this act been in effect at the time of the offense may petition for a recall of sentence before the trial court that entered the judgment of conviction in his or her case to request resentencing in accordance with Sections 11350, 11357, or 11377 of the Health and Safety Code, or Section 459.5, 473, 476a, 490.2, 496, or 666 of the Penal Code, as those sections have been amended or added by this act." (§ 1170.18, subd. (a).)
Defendant claims he is entitled to resentencing because his criminal conduct is a misdemeanor under Proposition 47. The changes to the transportation statute eliminated the crime of transportation of a controlled substance unless the transportation is for sale. Contending his criminal act is now possession of a controlled substance for personal use, a crime reduced to a misdemeanor by Proposition 47, defendant concludes that his transportation offense is subject to section 1170.18 resentencing. He additionally claims this result is consistent with Proposition 47's provisions for broad construction and liberal application to advance its purposes. (Voter Information Guide, Gen. Elec. (Nov. 4, 2014) text of Prop. 47 §§ 15, 18, p. 74.)
In a case decided after briefing was concluded, the California Supreme Court rejected the claim defendant makes here. In People v. Martinez (2018) 4 Cal.5th 647 the defendant filed a section 1170.18 petition seeking resentencing on his 2007 conviction for transportation of methamphetamine, asserting he was eligible for resentencing on this conviction "because the electorate passed Proposition 47 against the backdrop of a 2013 enactment providing that transportation of drugs without intent to sell is no longer a felony." (Martinez, at p. 650; id. at p. 649.) The Supreme Court rejected this argument, finding that "had Proposition 47 been in effect at the time of [the defendant's] offense, his criminal conduct still would have amounted to felony drug transportation because none of the statutes amended or enacted by Proposition 47 altered the offense set forth in [Health and Safety Code] section 11379. Proposition 47's amendments to [Health and Safety Code] sections 11350, 11357, and 11377, all of which concern illegal possession of various controlled substances including methamphetamine, do not redefine or refer to unlawful transportation of controlled substances. [Citation.] As noted, the amendment to [Health and Safety Code] section 11379 clarifying that '"transports" means to transport for sale' ([Health & Saf. Code,] § 11379, subd. (c)) did not become effective until 2014, more than three years after [the defendant's] conviction had become final. Because Proposition 47 did not reduce the transportation of a controlled substance from a felony to a misdemeanor, [the defendant] is ineligible for resentencing on that offense." (Id. at p. 653.) As we are bound to follow Martinez, we reject defendant's claim. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
DISPOSITION
The judgment (order) is affirmed.
/s/_________
Blease, Acting P. J. We concur: /s/_________
Mauro, J. /s/_________
Murray, J.