Opinion
C079087
06-18-2018
THE PEOPLE, Plaintiff and Respondent, v. LACEY DAWN WISE, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. S10CRF0275, P11CRF0343)
Pursuant to Proposition 47 and Penal Code section 1170.18, subdivision (f), defendant Lacey Dawn Wise sought to reclassify as a misdemeanor her 2010 felony conviction for transportation of a controlled substance. (Health & Saf. Code, former § 11352, subd. (a).) The trial court denied her application.
Undesignated statutory references are to the Health and Safety Code. --------
Although defendant acknowledges that transportation of a controlled substance is not listed as a conviction eligible for reclassification under Proposition 47, she contends that excluding her from reclassification violates her equal protection rights. She notes that persons convicted of possession of a controlled substance for personal use are eligible for reclassification under the statute, and argues she is similarly situated with them.
We conclude defendant's contention lacks merit because a person who transported a controlled substance for personal use in 2010 is not similarly situated with a person who possessed a controlled substance for personal use.
BACKGROUND
In 2010, defendant pleaded no contest to transportation of a controlled substance in violation of former section 11352, subdivision (a) in El Dorado County case No. S10CRF0275. Although the notice of appeal also refers to another case number, defendant does not assert any issues on appeal regarding that case. At the time of the relevant conviction, former section 11352, subdivision (a) could be violated by a person who transported the controlled substance for personal use and not for sale. Former section 11352, subdivision (a) provided, in pertinent part: "Every person who transports . . . any controlled substance . . . shall be punished by imprisonment in the state prison for three, four, or five years." (Stats. 2000, ch. 8, § 5.) Defendant and the district attorney stipulated that defendant was eligible for probation under Proposition 36 (Pen. Code, § 1201.1), and the trial court placed her on probation.
Defendant did not perform well on probation, resulting in adjudications that she had violated probation. On October 19, 2011, the trial court terminated probation and sentenced defendant to the low term of three years on the transportation count. (Former § 11352, subd. (a).) The sentence required defendant to serve one year in county jail and the remaining time on mandatory community supervision. But defendant violated the terms of her mandatory community supervision, and on December 4, 2013, the trial court ordered her to serve the remainder of her term in county jail. She has since completed the sentence.
Operative January 1, 2014, the Legislature amended sections 11352 and 11379 by adding subdivision (c) to each section. Subdivision (c) provides: "For purposes of this section, 'transports' means to transport for sale." (§ 11352, subd. (c), added by Stats. 2013, ch. 504, § 1; § 11379, subd. (c), added by Stats. 2013, ch. 504, § 2.)
On November 4, 2014, the voters passed Proposition 47, the Safe Neighborhoods and Schools Act, which reduced certain drug-related felonies to misdemeanors. (People v. Morales (2016) 63 Cal.4th 399, 404.) Proposition 47 also created a new provision allowing resentencing of defendants convicted of felonies that would have been misdemeanors had Proposition 47 been in effect at the time, or reclassification of the conviction as a misdemeanor if the defendant has completed the sentence. (Pen. Code, § 1170.18, subd. (f); People v. Bradshaw (2016) 246 Cal.App.4th 1251, 1256-1257.)
Possession of a controlled substance for personal use is now a misdemeanor under Proposition 47 (§ 11350, subd. (a)), but transportation of a controlled substance under section 11352, subdivision (a) was not listed in Proposition 47 and remains a felony.
On March 30, 2015, defendant filed an application with the trial court to have her 2010 transportation conviction reclassified as a misdemeanor. She argued that failure to afford her the benefits available to those convicted of possession of a controlled substance violates her equal protection rights. The trial court denied the application. The trial court also considered reclassifying convictions in other cases against defendant, but those cases are not part of this appeal.
DISCUSSION
The equal protection clauses of the United States and California constitutions require that laws provide the same protection to all persons in like circumstances. However, persons in different circumstances need not be treated the same. To succeed on an equal protection claim, the defendant must make a showing that a legal classification affects similarly situated persons unequally. (People v. Guzman (2005) 35 Cal.4th 577, 591-592.)
Defendant claims she is similarly situated with defendants convicted of possession of a controlled substance for personal use and, therefore, is entitled to reclassification of her conviction as a misdemeanor.
Recently, in a case involving analogous statutes, the California Supreme Court held that a defendant convicted of transportation of a controlled substance under section 11379 is not entitled to resentencing under Proposition 47 because, if Proposition 47 had been in effect at the time of the crime, transportation of the controlled substance would still have been a felony. This is true even though the Legislature redefined "transportation" as "transportation for sale" after the defendant's conviction. (People v. Martinez (2018) 4 Cal.5th 647, 652-655 (Martinez).)
Although Martinez did not expressly address an equal protection argument, the California Supreme Court essentially held that a person convicted of a transportation offense is not similarly situated with a person convicted of a possession offense: "[I]t is reasonable to treat drug transportation as a more serious crime than drug possession. (See [People v.] Rogers [(1971)] 5 Cal.3d [129,] 136 ['[T]he Legislature was entitled to assume that the potential for harm to others is generally greater when narcotics are being transported from place to place, rather than merely held at one location. The Legislature may have concluded that the potential for increased traffic in narcotics justified more severe penalties for transportation than for mere possession or possession for sale . . . .']; see also [People v.] Eastman [(1993)] 13 Cal.App.4th [668,] 676 ['[T]he act of transportation substantially increases the risks to the public. [Citation.] Thus, a prohibition on the simple transportation of drugs affects the transporter's ability to make sales or purchases of contraband; it reduces the risks of traffic accidents due to drivers under the influence; and it arguably even reduces the frequency of personal drug use by discouraging users from carrying supplies in vehicles'].) The Legislature continues to punish transportation of contraband for sale more severely than possession of contraband for sale. (Compare § 11379 with § 11378.) Reclassifying drug possession, but not drug transportation, as a misdemeanor is therefore consistent with Proposition 47's stated goal of reducing punishment for nonserious crimes." (Martinez, supra, 4 Cal.5th at p. 654.)
Because a person convicted in 2010 for transportation of a controlled substance under section 11352, subdivision (a) is not similarly situated with a person convicted of possession of a controlled substance, defendant's equal protection argument is without merit and she is not entitled to have her transportation conviction reclassified as a misdemeanor.
DISPOSITION
The order denying the application is affirmed.
/S/_________
MAURO, J. We concur: /S/_________
RAYE, P. J. /S/_________
BUTZ, J.