Opinion
E061955
08-14-2018
THE PEOPLE, Plaintiff and Respondent, v. JESUS LOZANO MAGANA, Defendant and Appellant.
Steven S. Lubliner, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., and Stacy Tyler, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.Nos. RIF1300942 & SWF029531) OPINION APPEAL from the Superior Court of Riverside County. Charles J. Koosed, Judge. Affirmed as modified. Steven S. Lubliner, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., and Stacy Tyler, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Jesus Lozano Magana was found in possession of 14 grams of methamphetamine and 227 grams of marijuana while riding in a car. He was found guilty of one count of violating Health and Safety Code section 11379, subdivision (a), transportation of methamphetamine for sale, and one count of violating section 11378, possession of methamphetamine for sale. Defendant was further found to have suffered one prior conviction of violating section 11379, subdivision (a), within the meaning of section 11370.2, subdivision (c). Defendant was granted formal probation for a period of three years.
All further statutory references are to the Health and Safety Code unless otherwise indicated.
The trial court also found defendant violated his probation in Riverside County Superior Court case No. SWF029531. The trial court reinstated the probation for a period of three years. The facts of that case have no bearing on the issues in this case. --------
Defendant filed an appeal in this court and essentially made one claim, that his prior conviction of violating section 11379, subdivision (a), did not qualify as a prior conviction subject to a three-year sentencing enhancement under section 11370.2. Defendant relied on the fact that in 2014, the Legislature amended section 11370.2 by adding a definition of transport, that it means "to transport for sale" and he had entered a plea to transport for personal use. Despite the fact that his 2007 conviction was final prior to the amendment, defendant insisted the Legislature intended to apply the definition to his prior conviction making him ineligible for the sentencing enhancement under section 11370.2.
In our unpublished opinion of People v. Magana, (April 13, 2016, E061955), review granted June 22, 2016, S234518, and vacated on July 23, 2018, we concluded that since defendant's prior conviction was final in 2007, the new definition did not apply to his prior conviction of violating section 11379.
The California Supreme Court granted review. While this case was on review in the California Supreme Court, the Legislature again amended section 11370.2 eliminating a violation of section 11379 from the list of qualifying prior convictions, effective January 1, 2018. On July 23, 2018, the California Supreme Court transferred with directions to vacate our decision and reconsider the cause in light of the 2017 amendment to section 11370.2 and In re Estrada (1965) 63 Cal.2d 740 (Estrada).
Defendant has filed a supplemental opening brief contending that this court should strike the true finding on the enhancement under section 11370.2 because he is no longer subject to any enhanced punishment based on the 2017 amendment. Respondent concedes the issue. We conclude that defendant's prior conviction of violating section 11379 no longer qualifies for the enhancement under section 11370.2 and will vacate the enhancement.
FACTUAL BACKGROUND
We need only provide a brief summary of the facts of the current offense since defendant's claim on appeal concerns the prior conviction suffered in 2007. On June 26, 2012, a Moreno Valley police officer conducted a traffic stop of a vehicle in which defendant was a passenger. During a probation search of defendant's person, $500 cash was found in his pants pocket. Defendant told the officer that he did not have a job. In another pocket, the officer found 14 grams of methamphetamine, which was an amount consistent with sales. Defendant had several text messages on his cellular telephone that were indicative of methamphetamine sales. Defendant's vehicle, which was parked nearby, was also searched and contained 227 grams of marijuana.
DISCUSSION
"Senate Bill 180, effective January 1, 2018, removes a number of prior convictions from the list of prior convictions that qualify a defendant for the imposition of an enhancement under section 11370.2, subdivision (c). Among those convictions that no longer serve to qualify a defendant for an enhancement under . . . section 11370.2, subdivision (c) are convictions for violations of . . . sections 11379 and section 11378." (People v. Millan (2018) 20 Cal.App.5th 450, 454.) Section 11370.2, subdivision (c) currently provides, "Any person convicted of a violation of, or of a conspiracy to violate, Section 11378 or 11379 with respect to any substance containing a controlled substance specified in paragraph (1) or (2) of subdivision (d) of Section 11055 shall receive, in addition to any other punishment authorized by law, including Section 667.5 of the Penal Code, a full, separate, and consecutive three-year term for each prior felony conviction of, or for each prior felony conviction of conspiracy to violate, Section 11380, whether or not the prior conviction resulted in a term of imprisonment."
"When the Legislature amends a statute so as to lessen the punishment it has 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. It is an inevitable inference that the Legislature must have intended that the new statute imposing the new lighter penalty now deemed to be sufficient should apply to every case to which it constitutionally could apply. The amendatory act imposing the lighter punishment can be applied constitutionally to acts committed before its passage provided the judgment convicting the defendant of the act is not final." (Estrada, supra, 63 Cal.2d at p. 745.)
"The rule in Estrada has been applied to statutes governing penalty enhancements, as well as to statutes governing substantive offenses." (People v. Millan, supra, 20 Cal.App.5th at p. 455.) Here, as of January 1, 2018, a prior conviction of section 11379 no longer qualifies pursuant to any circumstances, or definition, under section 11370.2.
Defendant's conviction is not final. (People v. Smith (2015) 234 Cal.App.4th 1460, 1465 [case is not final if it is on appeal and the time for filing a petition for certiorari has not yet expired].) Hence, we will vacate the true finding on the enhancement allegation under section 11370.2, subdivision (c). Since defendant was granted probation, it is not necessary to remand to the trial court for resentencing. (See People v. Zabala (2018) 19 Cal.App.5th 335, 344-345 ["In light of amendments to . . . section 11370.2, subdivision (c), effective January 1, 2018, we vacate the three-year enhancement for a prior narcotics conviction under former . . . section 11370.2, subdivision(c)"].)
DISPOSITION
In light of amendments to Health and Safety Code section 11370.2, subdivision (c) effective January 1, 2018, the true finding on the sentence enhancement allegation under section 11370.2, subdivision (c) is vacated. The judgment is affirmed in all other respects. The trial court is directed to prepare a corrected abstract of judgment and to forward the corrected abstract of judgment to the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J. We concur: RAMIREZ
P. J. McKINSTER
J.