Filed 10/22/14 P. v. Phu CA3
NOT TO BE PUBLISHED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
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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE,
Plaintiff and Respondent, C073986
v. (Super. Ct. No. 12F00716)
DUC PHU,
Defendant and Appellant.
Appointed counsel for defendant Duc Phu asked this court to review the record to
determine whether there are any arguable issues on appeal. (People v. Wende (1979)
25 Cal.3d 436 (Wende).) We directed the parties to file supplemental letter briefs
discussing whether a recent amendment to Health and Safety Code section 11379 affects
defendant’s conviction for transportation of a controlled substance.
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Based on our review of the record and the supplemental letter briefs filed by the
parties, we will reverse the judgment, vacate the plea, reinstate the original charges, and
remand the matter to the trial court for further proceedings.
BACKGROUND
Defendant drove a vehicle containing approximately 19.4 grams of
methamphetamine on January 26, 2012. He drove the vehicle for the benefit of the Tiny
Rascal Gangsters street gang.
An amended consolidated information charged defendant with active participation
in a criminal street gang (Pen. Code, § 186.22, subd. (a) -- count one); possession of a
controlled substance for sale (Health & Saf. Code, § 11378 -- count two); transportation
of a controlled substance (Health & Saf. Code, § 11379, subd. (a) -- count three);
possession of a controlled substance while armed with a firearm (Health & Saf. Code,
§ 11370.1, subd. (a) -- count four); possession of a firearm by a convicted felon (Pen.
Code, § 29800, subd. (a)(1) -- count six); and driving in willful or wanton disregard for
the safety of persons or property while fleeing from a pursuing police officer (Veh. Code,
§ 2800.2, subd. (a) -- count seven). The amended consolidated information further
alleged that defendant was previously convicted of a serious felony (Pen. Code, §§ 667,
subd. (b)-(i), 1170.12), was armed with a firearm during the commission of his crimes
(Pen. Code, § 12022, subd. (c)), committed his crimes for the benefit of a criminal street
gang (Pen. Code, § 186.22, subd. (b)(1)), and was ineligible to be sentenced to county jail
because he was previously convicted of a serious or violent felony and is required to
register as a sex offender (Pen. Code, § 1170, subd. (h)(3)).
Defendant moved the trial court to have his appointed counsel discharged pursuant
to People v. Marsden (1970) 2 Cal.3d 118 (Marsden). The trial court denied the motion.
Defendant pleaded no contest to transportation of a controlled substance (Health &
Saf. Code, § 11379, subd. (a) -- count three) and admitted that he committed the crime for
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the benefit of a criminal street gang and that he was previously convicted of a serious or
violent felony.
Prior to sentencing, defendant moved to withdraw his plea based on ineffective
assistance of counsel. The trial court held a closed hearing and ultimately denied
defendant’s motion to withdraw his plea.
Pursuant to the terms of the plea agreement, the trial court sentenced defendant to
11 years in state prison, dismissed the remaining charges, awarded presentence credit,
and ordered defendant to pay various fines and fees. The trial court denied defendant’s
request for a certificate of probable cause.
DISCUSSION
Appointed appellate counsel filed an opening brief setting forth the facts of the
case and asking this court to review the record and determine whether there are any
arguable issues on appeal. (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 the
opening brief. More than 30 days elapsed and we received no communication from
defendant.
We subsequently directed the parties to file supplemental letter briefs discussing
whether a recent amendment to Health and Safety Code section 11379 affects defendant’s
conviction for transportation of a controlled substance. We have reviewed the entire
record and the supplemental letter briefs.
Among other things, Health and Safety Code section 11379 provides that any
person who “transports” specified controlled substances, including methamphetamine,
shall be punished by imprisonment. (Health & Saf. Code, § 11379 [and its predecessor
version, Stats. 2001, ch. 841, § 7, pp. 6870-6871].) Courts had interpreted the word
“transports” to include transport of controlled substances for personal use. (People v.
Rogers (1971) 5 Cal.3d 129, 134-135; People v. Eastman (1993) 13 Cal.App.4th 668,
673-677.) But the Legislature recently amended Health and Safety Code section 11379
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to define “transports” as transport for sale. (Health & Saf. Code, § 11379, subd. (c);
Stats. 2013, ch. 504, §§ 1-2.) The amendment took effect on January 1, 2014, after
defendant's conviction and sentencing.
The amended statute does not contain a saving clause evincing the Legislature's
intent that the amendment apply prospectively only. According to the author, the purpose
of the amendment was to limit felony drug transportation charges to individuals involved
in drug trafficking. (Assem. Com. on Pub. Safety, Rep. on Assem. Bill No. 721 (2013-
2014 Reg. Sess.) Apr. 15, 2013, coms.) The amendment made it “ ‘expressly clear that a
person charged with this felony must be in possession of drugs with the intent to sell.
Under [the amendment], 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.’ ” (Ibid.) The
amendment benefits a defendant by requiring proof of an additional element -- intent to
sell -- for a felony drug transportation conviction, and by eliminating criminal liability for
drug transportation in cases involving possession for personal use. Thus, retroactive
application of the amended statute is consistent with the legislative intent of the
amendment. Moreover, the amendment to Health and Safety Code section 11379 took
effect when the judgment against defendant was not yet final. (People v. Rossi (1976)
18 Cal.3d 295, 304 [the rule applies to any proceeding, which at the time of the
supervening legislation, has not yet reached final disposition in the highest court
authorized to review it].)
Under the present circumstances, we adhere to the well-established principle that
“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. (In re Estrada (1965) 63 Cal.2d 740, 744, 748.) The rule articulated in Estrada
applies to amendments which add to the elements of a crime or enhancement. (People v.
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Vinson (2011) 193 Cal.App.4th 1190, 1197-1199; People v. Todd (1994) 30 Cal.App.4th
1724, 1728-1730; People v. Figueroa (1993) 20 Cal.App.4th 65, 68.) Under Estrada,
defendant is entitled to the benefit of the amendment to Health and Safety Code section
11379. (People v. Vinson, supra, 193 Cal.App.4th at pp. 1197-1199; People v. Todd,
supra, 30 Cal.App.4th at pp. 1728-1730; People v. Figueroa, supra, 20 Cal.App.4th at
p. 68.)
Accordingly, based on our review of the record and the supplemental letter briefs
filed by the parties, we will reverse the judgment, vacate the plea, reinstate the original
charges, and remand the matter to the trial court for further proceedings.
DISPOSITION
The judgment is reversed, the plea is vacated, and the original charges are
reinstated. The matter is remanded to the trial court for further proceedings.
MAURO , J.
We concur:
BLEASE , Acting P. J.
HULL , J.
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