Opinion
C080637
01-04-2017
THE PEOPLE, Plaintiff and Respondent, v. ROGELIO EDUARDO MORA, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. NCR86606, NCR87560, NCR88096, NCR94039)
This is an appeal pursuant to People v. Wende (1979) 25 Cal.3d 436. We briefly recount the facts and proceedings in accordance with People v. Kelly (2006) 40 Cal.4th 106, 110, 123-124.
On April 4, 2013, defendant Rogelio Eduardo Mora was a passenger in a car stopped by police for a traffic violation. The car was searched pursuant to the driver's searchable probation status. The search revealed two grams of methamphetamine in a baggie next to defendant who admitted it belonged to him (case No. NCR86606).
On April 11, 2013, defendant's home was searched pursuant to a warrant. The search revealed a methamphetamine smoking pipe, a filled syringe, concentrated cannabis, scales, and numerous small baggies in a room occupied by defendant and his girlfriend. In a room occupied by defendant's roommate who had felony convictions, officers found a methamphetamine smoking pipe, a surveillance systems for the perimeter of the home, and a shotgun. In defendant's wallet officers found 0.7 grams of methamphetamine. Defendant denied selling controlled substances (case No. NCR86713).
On May 14, 2013, defendant failed to appear in court as he had been previously ordered (case No. NCR87560).
On August 20, 2013, defendant was the driver of a car stopped for a traffic violation. Defendant was sweating and his hands were shaking. He did not have a driver's license and gave his brother's name. A search of the car revealed a pouch with three grams of methamphetamine, a scale, and a baggie containing 1.9 grams of methamphetamine in the center console. Under the passenger's seat officers found a baggie containing 2.5 grams of methamphetamine. In the trunk officers found a loaded .22-caliber pistol. After the contraband was found defendant admitted giving a false name. He admitted ownership of the pouch and scales but claimed the other baggies belonged to his passenger. Defendant denied knowing anything about the gun (case No. NCR88096).
On December 9, 2013, defendant entered a plea of guilty to transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a)), the sole count in case No. NCR86606; failure to appear (Pen. Code, § 1320, subd. (b)) in case No. NCR87560; and transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a)—count I) and possession of methamphetamine while armed with a firearm (Health & Saf. Code, § 11370.1, subd. (a)—count III) in case No. NCR88096. Defendant entered his pleas in exchange for dismissal of the remaining counts and allegations (case No. NCR87560, an on-bail enhancement allegation; case No. NCR88096, possession of methamphetamine for sale (count II), carrying a concealed firearm in a vehicle (count IV), false identification to an officer, a misdemeanor (count V), arming and on-bail allegations). Also, defendant entered his pleas in exchange for referral to drug court. In the event defendant was found ineligible for drug court, the parties agreed that defendant would be permitted to withdraw his plea. He was found ineligible for drug court due to the weapons charge and gang involvement. At sentencing, the court noted that the "team had recommended that [defendant] not be placed in Adult Felon Drug Court" and that there was a "recommendation for probation" by the probation officer. Defense counsel stated, "[W]e're prepared to go forward with the probation report and sentencing today." When the court queried whether defendant understood that he would not be in drug court, defendant responded that he understood. The court suspended imposition of sentence and granted probation in each case for a term of three years subject to certain conditions including jail time in each case.
Defendant also entered a plea of guilty to possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a); case No. NCR86713), which was later reduced to a misdemeanor for which he ultimately received six months concurrent after probation was revoked. --------
A petition for revocation of probation in all three cases filed February 6, 2015, alleged that defendant failed to appear at the probation department as directed and failed to inform the probation officer of his new phone number after his was disconnected.
On April 4, 2015, defendant was the driver of a car stopped for a traffic violation and was arrested on four felony warrants. A search of the car revealed 9.7 grams of methamphetamine, 4.8 grams of marijuana, and three cell phones. On defendant's person officers found two unused baggies. Defendant admitted he was on probation for possession of methamphetamine. His cell phone revealed drug-related text messages (case No. NCR94039).
On May 5, 2015, defendant admitted violating probation in the three previous cases.
On August 7, 2015, in case No. NCR94039, defendant entered a plea of guilty to transportation of methamphetamine for purposes of sale (Health & Saf. Code, § 11379, subd. (a)—count I) and admitted a prior drug conviction for transportation in case No. NCR86606 (Health & Saf. Code, § 11370.2, subd. (c)) in exchange for a term of five years (low term of two years plus a three-year enhancement) and dismissal of the remaining count (possession for sale) and allegation (another prior drug conviction for transportation in case No. NCR88096). For the prior three cases, the parties agreed to an aggregate consecutive term of three years eight months (case No. NCR86606, a consecutive one-third the midterm or one year; case No. NCR87560, a consecutive one-third the midterm or eight months; and case No. NCR88096, a consecutive one-third the midterm for each count for a total of two years). The parties stipulated to a total aggregate state prison sentence of eight years eight months for the four cases. The parties agreed to referral to drug court. Defendant was found to be ineligible due to his prior possession of a firearm. The court referred defendant again to drug court and he was again found to be ineligible based on his prior felony while armed with a firearm, his denial of a substance abuse problem, his claim that he "enjoys the lifestyle," and his gang membership while in custody.
The court sentenced defendant to state prison for the aggregate term of eight years eight months and awarded him a total of 747 days of presentence custody credit. The court ordered defendant to pay a $400 restitution fine and a corresponding parole revocation fine in the same amount in each case.
Defendant appeals.
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days elapsed, and we received no communication from defendant.
We requested supplemental briefing on "whether defendant is entitled, in case numbers NCR88096 and NCR86606, to the beneficial effect of the amendment of Health and Safety Code section 11379 which, effective January 1, 2014, defined the crime of transportation to provide that ' "transport" means to transport for sale' (stats. 2013, ch. 504, sec. 2; In re Estrada (1965) 63 Cal.2d 740, 744, 748), and if so entitled, whether remand for retrial is the proper remedy. (See People v. Eagle (2016) 246 Cal.App.4th 275.)"
Having received the supplemental briefing, we conclude the amendment applies retroactively to defendant's transportation convictions in the two cases. Therefore, we must reverse defendant's transportation convictions in case Nos. NCR86606 and NCR88096, and remand to the trial court to allow defendant an opportunity to withdraw his plea to these offenses, and for further proceedings including possible trial on the offenses.
"At the time of defendant's conviction, [Health and Safety Code] section 11379, subdivision (a) provided that any person who 'transports' specified controlled substances including methamphetamine shall be punished by imprisonment. ([Health & Saf. Code,] § 11379; Stats. 2011, ch. 15, § 174.) The courts had interpreted the word 'transports' to include transporting controlled substances for personal use. [Citations.] Effective January 1, 2014, after defendant's conviction, the Legislature amended [Health and Safety Code] section 11379 to define 'transports' as meaning to transport for sale. [Citations.]
"The amendment explicitly intended to criminalize the transportation of drugs for the purpose of sale and not the transportation of drugs for nonsales purposes such as personal use. (See Assem. Conc. Sen. Amends. to Assem. Bill No. 721 (2013-2014 Reg. Sess.) as amended June 27, 2013, p. 2 [' "This bill makes it expressly clear that a person charged with this felony must be in possession of drugs with the intent to sell. Under [Assembly Bill No.] 721, a person in possession of drugs ONLY for personal use would remain eligible for drug possession charges. However, personal use of drugs would no longer be eligible for a SECOND felony charge for transportation." '].)
"Generally, 'where the amendatory statute mitigates punishment and there is no saving clause, the rule is that the amendment will operate retroactively so that the lighter punishment is imposed' if the amended statute takes effect before the judgment of conviction becomes final. [Citation.]" (People v. Eagle, supra, 246 Cal.App.4th at pp. 278-279.)
Here, the People concede defendant's sentence was not final at the time the amendments to Health and Safety Code section 11379 took effect since the trial court had suspended imposition of sentence in case Nos. NCR86606 and NCR88096 and granted probation. We agree. The People also concede, because the judgment was not final, defendant is entitled to benefit retroactively from the changes to Health and Safety Code section 11379. Again, we agree. The People argue they are entitled to retry the transportation charges in order to prove defendant was transporting the methamphetamine for purposes of sale. Defendant concedes. We agree.
"When a statutory amendment adds an additional element to an offense, the prosecution must be afforded the opportunity to establish the additional element upon remand." (People v. Eagle, supra, 246 Cal.App.4th at p. 280.) "Such a retrial is not barred by the double jeopardy clause or ex post facto principles because the question of whether defendant transported the methamphetamine for sale was not relevant to the charges at the time of trial and accordingly, this question was never tried. [Citation.]" (Ibid.)
Defendant also argues the prior drug conviction enhancement in case No. NCR94039 must be reversed, citing People v. Collins (1978) 21 Cal.3d 208, 214 ["A conviction cannot stand on appeal when it rests upon conduct that is no longer sanctioned"].
Because the prior drug conviction enhancement which defendant admitted depends on the transportation conviction in case No. NCR86606, we conditionally reverse and order a limited remand as to that enhancement. (Pen. Code, § 1260.) Both transportation offenses to be retried were alleged as prior drug convictions in case No. NCR94039 but only the transportation offense in case No. NCR86606 was admitted as part of the plea agreement. If the prosecution elects to try defendant on the transportation offenses in case Nos. NCR86606 and NCR88096, and prevails at trial, or there is some other felony resolution on remand such as a plea, then the prior drug conviction enhancement in case No. NCR94039 will be reinstated. If not, our conditional reversal of the prior drug conviction enhancement must become permanent.
DISPOSITION
Defendant's convictions for transportation of a controlled substance in case Nos. NCR86606 and NCR88096 are reversed and the prior drug conviction enhancement in case No. NCR94039 is reversed conditionally. The matter is remanded for further proceedings consistent with this opinion. In all other respects, the judgment is affirmed.
NICHOLSON, J. We concur: BLEASE, Acting P. J. MAURO, J.