Opinion
A149206
07-06-2018
THE PEOPLE, Plaintiff and Respondent, v. TROY M. GOFORTH, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 51602739)
Defendant Troy Goforth was found guilty of possession of methamphetamine for sale, transporting methamphetamine for sale, and fleeing a pursuing peace officer's vehicle while driving recklessly, all felonies. He was sentenced to 20 years in state prison, which included a three-year enhancement under Health and Safety Code section 11370.2, subdivision (c) for each of his five prior controlled substance convictions. Defendant asserts eight arguments, one of which is that the five enhancements (comprising 15 years of his sentence) must be stricken because a recent amendment to Health and Safety Code section 11370.2, subdivision (c) eliminated his prior offenses as predicate offenses for a section 11370.2 enhancement. We agree the enhancements must be stricken due to the statutory amendment. Defendant's remaining arguments lack merit, however, and we affirm in all other regards.
BACKGROUND
Evidence at Trial
Around 9:19 p.m. on October 9, 2015, when it was dark out, on duty Martinez Police Officer Jeffrey Boyce was driving eastbound on Pacheco Boulevard when he noticed an older model Honda Accord driving towards him. Because Honda Accords are one of the most commonly stolen cars in Martinez, he made a U-turn so he could follow the car and run a license plate check. The driver of the Honda—later identified as defendant—immediately accelerated to approximately 60 miles per hour despite the 45-mile-per-hour speed limit. As Officer Boyce followed the Honda, it veered into the oncoming lane and turned left onto Veale Avenue, a narrow residential street with cars parked on both sides and a 25-mile-per-hour speed limit. Officer Boyce activated his emergency lights and pursued the Honda, which continued to speed through the neighborhood at approximately 60 miles per hour.
The Honda eventually came to a stop at the intersection of Veale Avenue and Sycamore Street. The distance from where Officer Boyce activated his emergency lights to where the Honda finally stopped was approximately one-quarter of a mile. The officer estimated he followed the car for under one minute.
Officer Boyce got out of his car and, with his gun pointed at defendant, ordered him to turn off the car and place his hands out the car window. He held defendant at gunpoint until backup arrived. After defendant had been removed from the car, Officer Boyce searched it and found a backpack on the front passenger side floorboard. Inside, there was a rolled up piece of paper containing 2.581 grams of methamphetamine. Also in the car was an unused hypodermic needle and a spoon. As another officer was searching defendant, a plastic baggie containing 10.141 grams of methamphetamine fell out of his pant leg.
The jury was shown a video of a car traveling from Pacheco Boulevard to the intersection of Veale Avenue and Sycamore Street, depicting the route defendant traveled as he fled from Officer Boyce. The video showed that Veale Avenue has several elevation changes—hills and dips—and uneven pavement.
Martinez Police Officer Nick Voyvodich testified as an expert on the possession of methamphetamine for sale. Among other things, the officer testified that in determining whether methamphetamine is possessed for sale or personal use, he first considers the quantity of the drug. Someone possessing it for personal use will keep smaller amounts, while someone selling it will have a larger amount. He also considers whether there is paraphernalia used to ingest the drug, such as a syringe, which would suggest use rather than sales (although sellers are often users as well). Other factors that suggest possession for sale include possession of a large amount of cash, a pay-owe sheet, packaging material, or a scale.
Procedural Background
Defendant was charged by information with the following three felonies: (1) possessing methamphetamine for sale; (2) transporting methamphetamine for sale; and (3) fleeing a pursuing police officer while driving recklessly. As to counts 1 and 2, the information alleged five controlled substance priors (Health & Saf. Code, § 11370.2, subd. (c)), all involving prior felony convictions for possessing a controlled substance for sale in violation of Health and Safety Code section 11378 (enhancements 1, 3, and 4) or transporting a controlled substance in violation of Health and Safety Code section 11379 (enhancements 2 and 5). It also alleged two strikes and three prior prison terms.
A jury found defendant guilty on all three counts. Following a bench trial, the court found four of the five prior controlled substance felony convictions to be true. As to enhancement 2, the prosecutor had not submitted evidence of that conviction, so the court reserved ruling on it until sentencing. The court also found the strike and prior prison term allegations to be true.
The trial court sentenced defendant to 20 years in state prison, comprised of the four-year upper term on count 2, a concurrent eight-month term on count 3, five consecutive three-year terms on the Health and Safety Code section 11370.2, subdivision (c) enhancements, and a consecutive one-year term for a prior prison term. The court stayed the sentence on count 1 and struck both of the prior strike convictions.
Defendant filed a timely appeal.
DISCUSSION
1. The Trial Court Properly Construed Vehicle Code Section 2800.2
Background
Vehicle Code section 2800.1, subdivision (a) makes it a misdemeanor to willfully flee from a pursuing peace officer under certain circumstances. Vehicle Code section 2800.2 elevates the offense to a felony where the pursued vehicle is driven recklessly or, in the words of the statute, "in a willful or wanton disregard for the safety of persons or property . . . ." (Veh. Code, § 2800.2, subd. (a).) According to Vehicle Code section 2800.2, subdivision (b), "a willful or wanton disregard for the safety of persons or property includes, but is not limited to, driving while fleeing or attempting to elude a pursuing peace officer during which time either three or more violations that are assigned a traffic violation point count under Section 12810 occur, or damage to property occurs."
CALCRIM No. 2181 is the jury instruction for the felony offense. Consistent with Vehicle Code section 2800.2, subdivision (a), it instructs that a felony violation requires, among other things, that "defendant drove with willful or wanton disregard for the safety of persons or property." After defining "willfully" and "wanton disregard for the safety," the instruction provides this bracketed language: "[Driving with willful or wanton disregard for the safety of persons or property includes, but is not limited to, causing damage to property while driving or committing three or more violations that are each assigned a traffic violation point.]"
After the prosecution rested in defendant's case, defense counsel moved for acquittal on the felony fleeing a peace officer charge for insufficient evidence. He argued that "to show wanton disregard for the safety of others which would be an element of the offense . . . [t]he People must show that either there was property damage that occurred or at least a minimum of three moving violations." This exchange followed:
"THE COURT: The bracketed language, counsel, what do you make about that bracketed language? [¶] That's only to be given if there is evidence that the defendant committed three or more traffic violations. It doesn't follow from the fact that Mr. Bell can't prove the three traffic violations that the elements of the crime haven't been proved.
"MR. AHMED: . . . I disagree with—maybe just because I'm not reading it as well as Your Honor is, but that whole reckless driving aspect is what we believe distinguishes it from the misdemeanor evading. And so
"THE COURT: Do you have any authority that says that that's the distinction?
"MR. AHMED: Well, when we look at 2180. . . . That doesn't have the reckless aspect attached to it . . . .
"THE COURT: Well, it seems to me that what distinguishes it is in item three of [2181], the felony section, a requirement of willfulness and wanton disregard for the safety of persons or property is introduced, but it's not present for the misdemeanor—[¶] . . . [¶] . . . [Y]ou are concluding that the meaning of, quote, 'willful and wanton disregard,' end quote, requires the presence of three or more violations that each are assigned a traffic violation point, but that paragraph is when the prosecutor introduces evidence like that. So, for example, when—if it isn't clear that he's, you know, driving willfully or wantonly, but he crossed the white line and maybe he was, you know, one mile an hour over the speed limit and then, you know, maybe he just clipped the stop line and did a California stop, those are three violations that the prosecutor can argue comply with this felony statute. And then if that had been the evidence, I would be required to give that bracketed instruction.
"MR. AHMED: I—I appreciate the Court's reasoning there. I think that we do agree that that language is not all inclusive. However, what we are arguing is that the bar is set at the minimum of three moving violations. If moving violations were attempted to be used to prove the willful or wanton disregard for the
"THE COURT: Well, let me check in with Mr. Bell. [¶] Are you relying on three traffic violations?
"[MR. BELL (the prosecutor)]: No, and I'll point out that the bracketed paragraph says that the driving with willful or wanton disregard includes, but is not limited to causing property damage or the three or more violations. So those two things would be—could be willful or wanton disregard, but by the very plain language, that's not what it's limited to. There could be other . . . ways."
The court denied defendant's motion, providing this reasoning: "I believe the defendant has misread the CALCRIM 2181. It is not an element of the four elements that three traffic violations be demonstrated or that damage to property while driving be committed. In my interpretation of [Vehicle] Codes 2800.1(a) and 2800.2, they simply require a willful wanton disregard for the safety of persons or property, and it's open to the People to argue, as I expect will be argued in this case that the excessive speed through the residential area amounts to that. And that is a factual question for the jury. Accordingly, there is evidence on which a jury could convict, and that motion's denied."
Analysis
We begin with an observation that defendant's argument as to the purported error below is unclear. Reading his opening brief, we understood his argument to be that in order to prove he violated Vehicle Code section 2800.2, the prosecutor had to establish that he either committed three one-point violations of the Vehicle Code or caused property damage. This is precisely what his counsel argued below: in order "to show wanton disregard for the safety of others which would be an element of the offense . . . [t]he People must show that either there was property damage that occurred or at least a minimum of three moving violations." The People here apparently construed defendant's argument as we did, an argument they summarized in their respondent's brief this way: "Appellant contends the only way to establish the element of willful or wanton disregard for the safety of persons or property, is to prove property damage during a pursuit or that a defendant committed three or more traffic violation point counts." In reply, however, defendant rebukes the People for improperly "refram[ing]" his argument "by characterizing it as contending that 'the only way to establish' willful and wanton disregard for the safety of persons or property, is 'to prove property damage during a pursuit or that a defendant committed three or more traffic violation point counts.' " In attempting to clarify his argument, defendant says only this, "We did not argue that section 2800.2(b) described the only way to prove willful and wanton disregard for persons or property. We argued the prosecutor's theory here—speeding through a residential neighborhood—was unauthorized based upon a proper construction of section 2800.2(b) and the words 'includes, but is not limited to. . . ." Quite simply, we are perplexed: if defendant is not arguing that the only two ways to prove willful or wanton disregard are three one-point violations or property damage, what in fact is his theory? While we do not know the answer to this question, we do not need to in order to reject his claim of error because we conclude Vehicle Code section 2800.2 was properly applied below.
Defendant further confuses us in his reply brief by stating, "By neglecting to prove three one-point violations or property damage, or a legally correct theory of 'includes, but is not limited to,' the People failed to satisfy their burden of proving beyond a reasonable doubt the facts necessary to appellant's conviction." The prosecution did not need to prove any of those three things, especially "a legally correct theory of 'includes, but is not limited to,' " whatever that means. The element it needed to prove was a willful or wanton disregard for safety of people or property.
In construing a statute, our task is to give effect to the Legislature's intent in enacting it. (People v. Pennington (2017) 3 Cal.5th 786, 795; People v. Stanley (2012) 54 Cal.4th 734, 737.) To do so, we first examine the language of the statute. (People v. Pennington, supra, at p. 795.) "If the plain language of the statute is clear and unambiguous, our inquiry ends, and we need not embark on judicial construction." (People v. Johnson (2002) 28 Cal.4th 240, 244.) However, "If the words appear susceptible of more than one reasonable construction, we look to other indicia of legislative intent . . . ." (People v. Pennington, supra, at p. 795.) Here, the language of Vehicle Code section 2800.2 is unambiguous, and we thus need look no further.
As noted, driving in willful or wanton disregard for the safety of people or property is an element of felony fleeing a pursuing peace officer. (Veh. Code, § 2800.2, subd. (a); CALCRIM No. 2181.) Subdivision (b) of Vehicle Code section 2800.2 states that "a willful or wanton disregard for the safety of persons or property includes, but is not limited to, driving while fleeing or attempting to elude a pursuing peace officer during which time either three or more violations that are assigned a traffic violation point count under Section 12810 occur, or damage to property occurs." (Italics added.) As indicated by the italicized prefatory clause "includes, but is not limited to," the examples listed are illustrative, not exhaustive. (People v. Arias (2008) 45 Cal.4th 169, 181 ["[T]he proviso 'including, but not limited to' 'connotes an illustrative listing, one purposefully capable of enlargement.' "]; Major v. Silna (2005) 134 Cal.App.4th 1485, 1495 ["The phrase 'including, but not limited to' is a term of enlargement, and signals the Legislature's intent that [a statute] applies to items not specifically listed in the provision."].) Thus, per the clear language of the statute, in order to prove a felony, the prosecutor must prove defendant drove in willful or wanton disregard for the safety of persons or property. Two ways—but not the only two ways—to demonstrate the willful or wanton disregard are proving three one-point traffic violations or damage to property.
Defendant suggests that anything fewer than three one-point traffic violations is insufficient to constitute reckless driving under Vehicle Code section 2800.2. He claims: "[B]ecause section 2800.2(b) refers to three one-point violations, section 2800.2(b) plainly sets a minimum requirement of 'three or more' one-point violations. (Veh. Code, § 2800, subd. (b) [sic].) It sets three one-point violations as a floor and restricts the meaning of willful or wanton disregard for the safety of persons or property to at least three one-point violations. The Legislature specified three violations; not just one, and not just two, each worth one-point." To the extent defendant is asserting there can be no reckless driving under Vehicle Code section 2800.2 if the evasive driver committed only one or two Vehicle Code violations, he is wrong. Under this interpretation, a fleeing driver can commit felony evasion only by committing three one-point violations, damaging property, or recklessly driving in a fashion that somehow does not constitute a point violation under the Vehicle Code. We can conceive of no circumstances under which this latter situation could occur, and defendant provides no such examples. Such a tortured interpretation would lead to the anomalous situation in which a driver could be found guilty of felony evasion for committing three benign violations of the Vehicle Code while not placing any person's safety in danger, yet a driver who drove recklessly and endangered a person's safety but only committed one or two traffic violations would not be guilty of a felony violation. That is nonsensical, unsupported by the plain language of the statute, and simply cannot be what the Legislature intended.
The trial court gave this example: the driver stops just past the white line in an intersection, exceeds the speed limit by one mile per hour, and makes a rolling stop at a stop sign.
Defendant contends any interpretation other than his violates the rules of statutory construction because it "would effectively render meaningless and surplusage the statutory language requiring three or more one-point violations . . . . There would be no need to require three or more one-point violations because the language could be disregarded on the basis that 'includes, but is not limited to' allowed proof of less than three violations." This argument evidences defendant's fundamental misunderstanding of what occurred below. It was neither the prosecutor's theory nor the basis for the jury's conviction that defendant was guilty of reckless flight from a pursuing peace officer because he committed one or two one-point traffic violations. Rather, it was because he drove with willful or wanton disregard for the safety of people or property, regardless of how many Vehicle Code violations he committed. The two cases on which defendant relies—People v. Diaz (2005) 125 Cal.App.4th 1484 and People v. Arias, supra, 45 Cal.4th 169—do not compel a different statutory construction.
In light of the result we reach, defendant's third argument—that the trial court failed to properly instruct the jury on "willful and wanton disregard for safety" because it did not instruct that willful and wanton disregard requires at least three one-point traffic violations—is similarly without merit. Per the bench notes to CALCRIM No. 2181, the trial court need only give the bracketed portion of the instruction—which says that "[d]riving with willful or wanton disregard" includes three one-point violations or property damage—if there is evidence that the defendant committed three or more traffic violations. This was not the prosecutor's theory of reckless driving here.
2. Substantial Evidence Supports Defendant's Conviction for Felony Flight From a Pursuing Peace Officer
Alternatively, defendant contends that if the theory on which he was convicted of a felony Vehicle Code section 2800.2 offense was proper—as we have concluded it was—his conviction of that charge must nevertheless be reversed because it is unsupported by substantial evidence. As he would have it, "Speeding 60 m.p.h. in a 25 m.p.h. zone does not suffice." We disagree.
"When the sufficiency of the evidence to support a conviction is challenged on appeal, we review the entire record in the light most favorable to the judgment to determine whether it contains evidence that is reasonable, credible, and of solid value from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Elliott (2012) 53 Cal.4th 535, 585.) There was substantial evidence supporting the jury's finding that defendant fled Officer Boyce while driving a vehicle "in a willful or wanton disregard for the safety of persons or property. . . ." (Veh. Code, § 2800.2, subd. (a).)
Defendant sped away from Officer Boyce at 60 miles per hour, veering into an oncoming traffic lane before turning onto Veale Avenue, a narrow residential street with a 25-mile-per-hour speed limit and cars parked on both sides. The jury was shown a video of the precise route defendant traveled, and thus had the opportunity to evaluate the conditions of the street, which included rises and falls. Given that this was a residential neighborhood, defendant could easily have encountered a pedestrian crossing the street or a car pulling out of its driveway such that there was a substantial risk of harm to people or property. Further, there was decreased visibility given that the pursuit occurred at night, increasing the risk of harm to an individual who might be walking or driving in the area. The high-speed chase covered a quarter of a mile and lasted approximately a minute. The foregoing supports the jury's conclusion that defendant's driving was reckless.
3. Defendant Has Not Established That His Counsel Provided Ineffective Assistance by Allowing the Admission of Uncharged Firearm Evidence
Background
The prosecutor filed a motion in limine pursuant to Evidence Code section 1101, subdivision (b), to introduce evidence of several of defendant's prior convictions for possessing methamphetamine with intent to sell to prove that he had the requisite intent to sell this time. As to a 1999 incident, defendant was a passenger in a car that was stopped and searched. He had a large quantity of methamphetamine on him, and a loaded handgun was found beneath the passenger seat. Defendant pleaded guilty to transportation of methamphetamine and possession of methamphetamine in exchange for dismissal of the possession with intent to sell charge. As to a 2010 incident, police searched a house and found defendant hiding in a closet. He was in possession of large quantities of methamphetamine and cash, a pipe, and a pay-owe sheet. Officers believed he discarded a firearm after he was placed in handcuffs. He pleaded guilty to possession of methamphetamine for sale and felon in possession of a firearm.
During a hearing on the motion, the court asked defense counsel his position. Counsel responded that he did not "have an issue" with evidence concerning the 1999 incident coming in. As to the 2010 incident, he did not have an objection to evidence regarding "the possession for sale aspect of it," but he requested sanitizing the rest of it, including possession of the firearm. When the court revisited the 1999 incident, defense counsel said, "The gun, I'm fine with," but he requested other facts be sanitized. And then as to all of the prior convictions in general, he summarized, "What I would ask those witnesses to just . . . testify to the methamphetamine, the gun, the indicia of sales, the money. But, again, no gang affiliations, no probation or parole status, no discussions regarding the nature of the neighborhood, et cetera." The prosecutor agreed to these conditions.
At trial, a police officer testified that during a traffic stop in 1999, he searched defendant, who was sitting in the front passenger seat. Defendant had a glass pipe and two baggies of methamphetamine on him, one containing about 19 grams, the other about half a gram. The officer found a loaded handgun on the passenger-side floor. He did not find money, a scale, or pay-owe sheets on defendant or anywhere else in the car.
Another officer testified that in 2010, he responded to a call that ultimately led to him searching defendant. Defendant had a baggy containing 11.66 grams of methamphetamine, a large sum of cash, two cell phones with texts about drug transactions, a pay-owe sheet, and a glass pipe. Another officer was standing near defendant and when the officer looked away, he heard the sound of metal hitting the floor. He then found a firearm on the ground.
Analysis
Defendant argues he was deprived of effective assistance of counsel because his counsel allowed the admission of prejudicial evidence regarding the firearms discovered during the 1999 and 2010 incidents. To prevail on a claim for ineffective assistance of counsel, defendant must demonstrate that his counsel's conduct fell below an objective standard of reasonableness under prevailing professional norms and that he suffered prejudice as a result. (Strickland v. Washington (1984) 466 U.S. 668, 694, 698; People v. Ledesma (1987) 43 Cal.3d 171, 216.) "On direct appeal, a conviction will be reversed for ineffective assistance only if (1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation." (People v. Mai (2013) 57 Cal.4th 986, 1009.) Applying these principles here, we conclude defendant has not demonstrated that his counsel's conduct fell below an objective standard of reasonableness because the record suggests that the failure to object to the firearm evidence was a rational tactical choice. (See, e.g., People v. Scott (1997) 15 Cal.4th 1188, 1213-1214; People v. Lucas (1995) 12 Cal.4th 415, 442.)
The defense theory at trial was that defendant possessed the methamphetamine for personal use, not sale. In his opening statement, defense counsel represented that the evidence would show that in defendant's prior drug-related offenses (possession for sale or transportation of methamphetamine), there were "indicia of sales, namely the presence and possession of firearms, the presence and possessions of money and large amounts of money as well as the presence and possession of other indicia, again, the cell phones, the [pay-owe] sheets, et cetera." In contrast, he represented, in the present offense, there was an absence of such indicia, indicating defendant possessed the methamphetamine for his own personal use.
During closing argument, defense counsel again referenced the gun evidence to distinguish the prior incidents from the instant circumstances when defendant only had methamphetamine and a pipe in his possession. For example, he argued to the jury: "What do you see in the field when you see drug dealers selling drugs? What do you see? What do you look for? What evidence do you put in your police report that is later used in jury trial to support the findings of possession for sale? [¶] Some of those evidence items would be baggies. . . . Another thing that would be probative of whether or not an individual is possessing drugs for sales[:] scales. Something else that would be probative of whether or not an individual is possessing drugs for sales[:] guns. Something else that would be probative of whether or not an individual is possessing drugs for sales[:] text messages, phone calls, pictures, items . . . ."
Defense counsel additionally argued, "Yes, Mr. Goforth was arrested in 2010 for possession of 11.68 grams for sales. Yes, he was. Why? Because indicia of sales was present at that date in time. [¶] What indicia are we talking about? A gun. We're talking about the text messages. We're talking about a large amount of money involved. There were more. Pay/owe sheets. . . . [¶] 1999, let's think about why the 20 grams was possessed for personal use as it was—as Mr. Goforth was arrested for and as he pled out to. What did we have? We had a large amount of methamphetamine, 20 grams, but we didn't have the other indicia, besides the handgun, associated—which you know a meth user could carry for whatever other reason besides the fact that they're selling drugs."
Defense counsel's theory of the case, as confirmed by his opening statement and closing argument, suggest a tactical reason for not only failing to object to the gun evidence but for mentioning it himself: he was seeking to establish that in the current situation, defendant was not found in possession of indicia of possession for sales, unlike in the past arrests. We thus cannot conclude that the record affirmatively discloses counsel had no rational tactical purpose for allowing admission of the gun evidence, and defendant's ineffective assistance of counsel argument must fail.
4. The Five section Health and Safety Code 11370.2 , subdivision (c) Enhancements Must Be Stricken
Defendant's sentence was enhanced by 15 years for prior controlled substance felony convictions—five priors at three years each. These enhancements were pursuant to Health and Safety Code section 11370.2, subdivision (c) which, at the time of defendant's sentencing, provided: "Any person convicted of a violation of . . . Section 11378 or 11379 with respect to any substance containing a [specified] controlled substance . . . shall receive, in addition to any other punishment authorized by law . . . a full, separate, and consecutive three-year term for each prior felony conviction of . . . Section 11351, 11351.5, 11352, 11378, 11378.5, 11379, 11379.5, 11379.6, 11380, 11380.5, or 11383 . . . ." On October 11, 2017, however, the statute was amended to eliminate most of the predicate offenses for a Health and Safety Code section 11370.2, subdivision (c) enhancement, leaving only a Health and Safety Code section 11380 violation or conspiracy to violate section 11380. (Health & Saf. Code, § 11370.2, subd. (c), as amended by Stats. 2017, ch. 677, § 1.) Defendant contends his five enhancements must be stricken since his prior offenses—violations of Health and Safety Code sections 11378 and 11379—no longer constitute section 11370.2 enhanceable offenses. The People concede defendant is correct, a concession that is well taken.
As a general rule, amendments to the Penal Code do not apply retroactively. (Pen. Code, § 3.) An exception exists, however, for amendments that reduce the punishment for a specific crime. In what is known as Estrada retroactivity, courts presume that the Legislature intended those amendments to apply retroactively to all non-final judgments. (People v. Brown (2012) 54 Cal.4th 314, 323-324; In re Estrada (1965) 63 Cal.2d 740, 745.) Estrada retroactivity applies to sentence enhancements. (See, e.g., People v. Nasalga (1996) 12 Cal.4th 784, 798 [Estrada rule applies to enhancement under Penal Code section 12022.6]; People v. Vinson (2011) 193 Cal.App.4th 1190 [Estrada rule applies to amended Penal Code section 666]; People v. Figueroa (1993) 20 Cal.App.4th 65 [Estrada rule applies to drug enhancement under Health and Safety Code section 11353.6].)
The amendment to Health and Safety Code section 11370.2, subdivision (c) went into effect January 1, 2018, before defendant's case was final. (People v. Nasalga, supra, 12 Cal.4th at p. 792; In re Estrada, supra, 63 Cal.2d at p. 744 ["The key date is the date of final judgment."]; People v. Babylon (1985) 39 Cal.3d 719, 727 [defendants were entitled to benefits of amendment enacted while appeal was pending]; People v. Camba (1996) 50 Cal.App.4th 857, 865-866.) And where, as here, there is no savings clause, defendant is entitled to the benefit of the amendment. (People v. Babylon, supra, at p. 727.) We thus agree that defendant's five Health and Safety Code section 11378 and 11379 convictions cannot support the Health and Safety Code section 11370.2 enhancements, and the enhancements must be stricken.
In his sixth argument, defendant argues the Health and Safety Code section 11370.2 enhancement predicated on his 2010 conviction was improper because he was sentenced to probation, which rendered the prior a misdemeanor. In his seventh argument, he contends he should not have been sentenced on the Health and Safety Code section 11370.2 enhancement predicated on his 2000 conviction, as that conviction was found not true. In light of our ruling that the enhancements must be stricken due to the amendment to Health and Safety Code section 11370.2, defendant's sixth and seventh arguments are moot.
5. The Abstract of Judgment Correctly Reflects the Sentence Imposed
In his final argument, defendant claims the minutes from the sentencing hearing and the abstract of judgment must be corrected to conform to the court's oral pronouncement of sentence. Specifically, he contends the sentence on count 3 should be amended to reflect a concurrent midterm of two years. There is no error in the minutes or abstract of judgment.
At defendant's sentencing hearing, the trial court imposed a 20-year prison term comprised of the upper four-year term on count 2, consecutive three-year terms on each of the five Health and Safety Code section 11370.2 enhancements, and a consecutive one-year prison prior enhancement on count 3. It also imposed a concurrent term on count 3, stating, "As to Count Three, the Court will select the mid-term on Count Three. And that is for the same reasons already articulated, and that will be served concurrently."
The court also struck both strikes and stayed sentencing on count 1 pursuant to Penal Code section 654. --------
As to the sentence on count 3, the court did not orally specify the duration. However, the court minutes from the sentencing hearing state that as to that count, "The defendant is further sentenced to 8 months as to Count 3 (1/3 the mid-term)—to be served concurrent to Count 2." Similarly, the abstract of judgment reflects a concurrent sentence of eight months on count 3, which is one-third the midterm. This is consistent with the People's sentencing brief, which sought eight months on count 3 (albeit consecutive, not concurrent). Defendant has demonstrated no error in the minutes or abstract of judgment.
DISPOSITION
The five three-year consecutive sentences on the Health and Safety Code section 11370.2 enhancements are stricken, and the matter is remanded for resentencing. In all other regards, the judgment of conviction is affirmed.
/s/_________
Richman, J.
We concur:
/s/_________
Kline, P.J.
/s/_________
Miller, J.