Opinion
H042773
01-27-2017
THE PEOPLE, Plaintiff and Respondent, v. CARLOS JAMES PETTY, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Monterey County Super. Ct. No. SS110361A)
Defendant Carlos James Petty appeals from an order revoking his probation and imposing a 10-year prison sentence, execution of which had previously been suspended upon the grant of probation. Defendant contends that his underlying convictions of transportation of methamphetamine (Health & Saf. Code, § 11379) and transportation of cocaine base (§ 11352) must be overturned because after his conviction the statutes proscribing transportation of these controlled substances were amended to apply only to transportation for sale, whereas he maintains that he possessed only enough for personal use. We will affirm the order.
All further statutory references are to the Health & Safety Code except as otherwise indicated.
Background
On October 14, 2011, defendant pleaded guilty to all counts of an information charging transportation of methamphetamine (§ 11379, subd. (a)), transportation of cocaine base, (§ 11352, subd. (a)), and four misdemeanor counts: vandalism (Pen. Code, § 594, subd. (b)(1)), hit and run with property damage (Veh. Code, § 20002, subd. (a)), reckless driving (Veh. Code, § 23103, subd.(a)), and resisting arrest (Pen. Code, § 148, sub. (a)(1)). He further admitted three strike priors, within the meaning of the Three Strikes law (Pen. Code, § 1170.12, subd. (c)), and four prior prison terms, within the meaning of Penal Code section 667.5, subdivision (b).
On December 1, 2011, the court granted defendant's request to strike his prior convictions under People v. Superior Court (Romero) (1996) 13 Cal.4th 497. The court then sentenced defendant to 10 years in prison, but it suspended execution of the sentence to give defendant the opportunity to complete the Delancey Street program.
The sentence comprised the upper term of five years for count 2 (transportation of cocaine base), a consecutive term of one year for count 1 (transportation of methamphetamine), one year for each of the prior prison terms, and concurrent terms for the misdemeanors.
On May 30, 2014, defendant was arrested for possessing narcotics and drug paraphernalia. On July 21, 2015, probation was terminated. Defendant was sentenced to the 10-year prison term that had been imposed on December 1, 2011.
Discussion
On January 1, 2014, Assembly Bill No. 721 (2013-2014. Reg. Sess.) took effect, thereby amending sections 11352 and 11379 by adding subdivision (c) to each statute. (Stats. 2013, ch. 504, §§ 1-2, p. 4151.) The new subdivisions state: "For purposes of this section, 'transports' means to transport for sale." (§§ 11352, subd. (c); 11379, subd. (c).)
On appeal, defendant contends that he is "entitled to the benefit" of these amendments, citing In re Estrada (1965) 63 Cal.2d 740 (Estrada). In Estrada, our Supreme Court set forth a "contextually specific qualification" to the general rule that no part of the Penal Code is retroactive. (People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1195, rejected on another point in People v. Rangel (2016) 62 Cal.4th 1192, 1216; See Pen. Code, § 3 [no part of the Penal Code is retroactive "unless expressly so declared"].) Accordingly, absent a savings clause providing for prospective application, an amendment mitigating the punishment for a criminal act "can be applied constitutionally to acts committed before its passage provided the judgment convicting the defendant of the act is not final." (Estrada, supra, at pp. 744-745.)
Defendant does not identify any specific relief he believes should be afforded him on remand; he makes only a vague claim that "his conviction must be reversed and the matter remanded to the trial court." To the extent that he is advocating a reduction of his offenses, he only asserts, without pointing to either specific evidence or legal authority, that "the evidence presented at the preliminary hearing would not support a finding that the small amounts of methamphetamine and cocaine base he was found to possess were for the purpose of sale."
"The key date is the date of final judgment. If the amendatory statute lessening punishment becomes effective prior to the date the judgment of conviction becomes final then, in our opinion, it, and not the old statute in effect when the prohibited act was committed, applies." (Estrada, supra, 63 Cal.2d at p. 744.) A judgment becomes final when the availability of an appeal is exhausted and the time for filing a petition for a writ of certiorari has elapsed. (People v. Kemp (1974) 10 Cal.3d 611, 614; see also In re Spencer (1965) 63 Cal.2d 400, 405 [adopting United States Supreme Court meaning of "final"].)
"An order imposing sentence, the execution of which is suspended and probation granted, is an appealable order. [Citation.] When that order is not appealed, it becomes final. [Citations.] 'This is so regardless of the fact [that] the defendant will not serve the sentence unless the court revokes and terminates probation before the probationary period expires.' [Citation.]" (People v. Martinez (2015) 240 Cal.App.4th 1006, 1011-1012; see also People v. Howard (1997) 16 Cal.4th 1081, 1084 [making critical distinction between suspending imposition of sentence and suspending execution of sentence imposed, for purposes of court's authority upon revoking probation].)
In his reply brief on appeal defendant acknowledges the People's point that the judgment, in which he was sentenced to 10 years in prison, was final in March 2012, long before the 2015 order committing him to that prison term. Estrada therefore has no application here. Defendant protests, however, that the amendments should nonetheless be applied retroactively because they were intended by the Legislature only to clarify existing law, not to change it. In other words, according to defendant, the 2013 amendments were intended to confirm that "the offense of transportation of controlled substances had never been intended to apply to transportation for personal use, and to abrogate the California Supreme Court's holding in People v. Rogers (1971) 5 Cal.3d 129, 133 that it was." (Cf. Carter v. California Dept. of Veterans Affairs (2006) 38 Cal.4th 914, 922 (Carter) ["[a] statute that merely clarifies, rather than changes, existing law is properly applied to transactions predating its enactment"].)
In People v. Rogers, supra, 5 Cal.3d 129 (Rogers), our Supreme Court held that the offense of transportation of marijuana (former § 11531) did not require "a specific intent to transport contraband for the purpose of sale or distribution, rather than personal use." (Rogers, supra, at pp. 132, 134.)
We see no legislative expression of such intent in sections 11352 and 11379. The prior definition of transportation, as it stood for more than 30 years, made no exception to the prohibition of transportation for personal use. (Cf. Carter, supra, 38 Cal.4th at pp. 922-923 [material changes in statutory language made "soon after" controversies arise in judicial construction may indicate effort to clarify rather than formally change the statute's "true meaning"].) In Rogers, where the Supreme Court held that transportation of a controlled substance did not have a requirement that the transportation be intended for sale, the court explained, "Neither the word 'transport,' the defining terms 'carry,' 'convey,' or 'conceal,' nor [former] section 11531 read in its entirety, suggests that the offense is limited to a particular purpose or purposes. . . . [¶] [N]othing in that section exempts transportation . . . of marijuana for personal use. Had the Legislature sought to restrict the offense of transportation to situations involving sale or distribution, it could easily have so provided." (Rogers, supra, 5 Cal.3d at pp. 134-135; People v. Eastman (1993) 13 Cal.App.4th 668, 674-677.)
This issue is currently before the Supreme Court as it relates to sentence enhancements under section 11370.2 in People v. Maita (S230957), and as it relates to the availability of Proposition 47 relief in People v. Martinez (S231826) and People v. Oakley (S234938).
In 1986 a reference to section 11054, subdivision (f), was added to section 11352 (the statute defendant violated in count 2), so as to include cocaine base among the substances transportation of which was proscribed in the statute. (Stats. 1986, ch. 1044, § 5, p. 3633.) Transportation of methamphetamine (count 1) has been proscribed in section 11379 since 1973. (Stats. 1973, ch. 1078, § 24, p. 2185, eff. Oct. 1, 1973.)
The 2013 amendment added a new provision creating the exception for personal use and thus redefined the crime of transportation of the specified controlled substances. To conclude that the Legislature intended before 2013 to exclude transportation for personal use would be contrary to the plain language of sections 11352 and 11379 as they existed at that time, as well as judicial construction of that language. The new subdivisions are clearly additions, which, in modifying the prior law, reflect a new definition of "transportation." (Cf. People v. Lopez (2016) 6 Cal.App.5th 494, 500 [error in instructing jury with earlier version of section 11379 harmless where the jury found that possession of the same controlled substance was for sale; intent was not to proscribe only " 'active sales' at the precise moment of transportation"].)
Defendant, however, points to language from the author of the 2013 legislation to support his view that the legislative amendments were only clarifications of the law as it had always existed: " 'AB 721 would clarify the Legislature's intent to only apply felony drug transportation charges to individuals involved in drug trafficking or sales. Currently, an ambiguity in state law allows prosecutors to charge drug users—who are not in any way involved in drug trafficking—with TWO crimes for simply being in possession of drugs. While current law makes it a felony for any person to import, distribute or transport drugs, the term "transportation" used in [the] Health and Safety Code has been widely interpreted to apply to ANY type of movement—even walking down the street—and ANY amount of drugs, even if the evidence shows the drugs are for personal use and there is no evidence that the person is involved in drug trafficking. As a result, prosecutors are using this wide interpretation to prosecute individuals who are in possession of drugs for only personal use, and who are not in any way involved in a drug trafficking enterprise. [¶] 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 AB 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.' " (Assem. Com. on Public Safety, Analysis of Assem. Bill No. 721 (2013-2014 Reg. Sess.) Apr. 16, 2013, p. 2; Assem. Conc. to Sen. Amends. to Assem. Bill No. 721 (2013-2014 Reg. Sess.) June 27, 2013.)
We will take judicial notice of these comments, notwithstanding defendant's failure to request it. --------
Even if we were to bypass the plain language and delve into the legislative history, these remarks from the bill's sponsor do not help defendant. It is not the Legislature's function to declare that its amendment clarifies existing law after that law has been judicially interpreted. " '[T]he interpretation of a statute is an exercise of the judicial power the Constitution assigns to the courts.' [Citation.] When this court 'finally and definitively' interprets a statute, the Legislature does not have the power to then state that a later amendment merely declared existing law." (Carter, supra, 38 Cal.4th at p. 922; see People v. Cuevas (1980) 111 Cal.App.3d 189, 200 ["The amended statute defines the law for the future, but it cannot define the law for the past"]; accord, McClung v. Employment Development Dept. (2004) 34 Cal.4th 467, 474; see also Verreos v. City and County of San Francisco (1976) 63 Cal.App.3d 86, 99 [intent only to clarify existing law will not be inferred unless the amendment states that it is declaratory of existing law, or "the nature of the amendment clearly demonstrates that this is the case"] Here, the Legislature did not merely "clarify" the law when it added the "for sale" element to the offense by adopting subdivision (c) of sections 11352 and 11379; instead it essentially redefined the crime of transportation of the specified controlled substances.
As defendant's convictions were final before the Legislature added the requirement to sections 11352 and 11379 that transportation be for purposes of sale, and as those changes did not simply clarify existing law, the new definition of transportation did not apply to his convictions under those statutes.
Disposition
The order is affirmed.
/s/_________
ELIA, J. WE CONCUR: /s/_________
RUSHING, P. J. /s/_________
PREMO, J.