Opinion
F074567
08-17-2018
THE PEOPLE, Plaintiff and Respondent, v. ANDREW MATTHEW BOTELLO, Defendant and Appellant.
Mark J. Shusted, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Ivan Marrs, Amanda D. Cary and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. No. VCF201276)
OPINION
THE COURT APPEAL from an order of the Superior Court of Tulare County. Gary M. Johnson, Judge. Mark J. Shusted, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Ivan Marrs, Amanda D. Cary and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
Before Poochigian, Acting P.J., Franson, J. and Ellison, J.†
-ooOoo-
Appellant Andrew Matthew Botello appeals from the trial court's denial of his petition pursuant to Penal Code section 1170.18 to reduce his felony transportation of methamphetamine conviction (Health & Saf. Code, § 11379, subd. (a)) to a misdemeanor and its denial of his motion, based on a 2013 amendment to section 11379 (Stats. 2013, ch. 504, § 2), to vacate that conviction. On appeal, Botello contends the court erred in denying his petition and his motion. We affirm.
All statutory references are to the Health and Safety Code, unless otherwise noted.
Appellant's request for judicial notice of certain documents, filed on August 2, 2017, is denied.
FACTS
On April 5, 2008, a Visalia police officer detained Botello as he rode down the street on a bicycle, after recognizing him as a parolee at large. During an ensuing search, the officer found he was carrying 0.9 grams of methamphetamine.
On April 21, 2008, Botello pled no contest to transportation of methamphetamine.
On June 10, 2008, the court denied probation and sentenced Botello to the low term of two years in prison. The record does not indicate that he appealed this conviction so his conviction and the judgment were final 60 days after he was sentenced. (Cal. Rules of Court, rule 8.308(a) [criminal appeal must be taken within 60 days].)
On August 12, 2016, Botello filed a petition pursuant to Penal Code section 1170.18 to reduce his transportation conviction to a misdemeanor and a motion to vacate this conviction and "enter a plea to the misdemeanor offense of simple possession." In the moving papers Botello argued only that his transportation conviction was not final pursuant to In re Estrada (1965) 63 Cal.2d 740, 748, because he was granted probation in that case. Thus, according to Botello, he was entitled to the benefit of a change in the law that removed transportation of methamphetamine for personal use from the ambit of section 11379.
On September 7, 2016, at a hearing on the petition and motion, after defense counsel submitted the matter without raising any additional arguments, the court took the matters under submission.
On September 30, 2016, the court issued a written decision denying the petition and the motion.
On October 19, 2016, Botello filed a timely appeal of both matters.
DISCUSSION
The Motion to Vacate Botello's Transportation Conviction
In 2008, when Botello was convicted of transportation of methamphetamine, section 11379, subdivision (a) provided that any person who "transports" specified controlled substances including methamphetamine shall be punished by imprisonment. (§ 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, ... the Legislature amended section 11379 to define 'transports' as meaning to transport for sale. (§ 11379, subd. (c), as amended by Stats. 2013, ch. 504, § 2.)" (People v. Eagle (2016) 246 Cal.App.4th 275, 278.) "In light of this amendment to section 11379, the possession and movement of methamphetamine for personal use, without intent to sell, can be charged only as a possession offense under section 11377." (People v. Martinez (2018) 4 Cal.5th 647, 651 (Martinez).)
"In November 2014, the voters passed Proposition 47, The Safe Neighborhoods and Schools Act, which reduced certain drug- and theft-related offenses from felonies or 'wobblers' to misdemeanors. Proposition 47 reclassified some offenses by amending the statutes that defined those crimes. As relevant here, Proposition 47 amended section 11377 to punish as a misdemeanor the possession of a controlled substance. (Voter Information Guide, Gen. Elec. (Nov. 4, 2014) text of Prop. 47, § 13, p. 73 (Voter Information Guide).) In other instances, Proposition 47 added new provisions to the Penal Code carving out a lesser crime from a preexisting felony (see Voter Information Guide, supra, § 5, p. 71 [creating Pen. Code, § 459.5 to distinguish the misdemeanor of 'shoplifting' from the felony of burglary]) or redefining how a term is understood throughout the California Codes (see id., § 8, p. 72 [adding Pen. Code, § 490.2 to lower the potential punishment for certain categories of grand theft '[n]otwithstanding ... any other provision of law defining grand theft' (italics omitted)]). Through its various provisions, Proposition 47 made clear that certain types of criminal conduct once punishable as felonies now constitute only misdemeanors." (Martinez, supra, 4 Cal.5th at p. 651.)
The initiative also provided that "[a] person who has completed his or her sentence for a conviction, whether by trial or plea, of a felony or felonies who would have been guilty of a misdemeanor under this act had this act been in effect at the time of the offense, may file an application before the trial court that entered the judgment of conviction in his or her case to have the felony conviction or convictions designated as misdemeanors." (Pen. Code, § 1170.18, subd. (f), italics added.)
Botello contends that the amendment to section 11379 that defines transport as meaning transport for sale applied retroactively to his transportation conviction. He further contends that under that amendment his transportation conviction would have been punishable only as a misdemeanor under section 11377 because it did not involve the intent to sell. Therefore, since possession of methamphetamine would have been a misdemeanor if Proposition 47 had been in effect when he committed this offense, the court erred when it denied his petition pursuant to Penal Code section 1170.18, subdivision (f) to reclassify his former transportation conviction as a misdemeanor violation of section 11377, subdivision (a).
Martinez is dispositive of Botello's contention. In Martinez, pursuant to Penal Code section 1170.18, subdivision (a), the defendant filed a petition for resentencing on two 2007 felony convictions, including one for transportation of methamphetamine. The trial court, however, denied the petition as to the transportation conviction, "observing that Proposition 47 did not expressly reduce the transportation offense to a misdemeanor[.]" (Martinez, supra, 4 Cal.5th at p. 649.)
Penal Code section 1170.18, subdivision (a) provides: "A person who, on November 5, 2014, was serving a sentence for a conviction, whether by trial or plea, of a felony or felonies who would have been guilty of a misdemeanor under the act that added this section ("this act") had this act been in effect at the time of the offense may petition for a recall of sentence before the trial court that entered the judgment of conviction in his or her case to request resentencing in accordance with Sections 11350, 11357, or 11377 ... or Section 459.5, 473, 476a, 490.2, 496, or 666 of the Penal Code, as those sections have been amended or added by this act." (Italics added.) --------
On appeal, the defendant argued, based on the 2013 amendment to section 11379, that "the evidence that he possessed and transported methamphetamine, without proof that he transported it for sale, meant that he 'would have been guilty of a misdemeanor under [Proposition 47] had [Proposition 47] been in effect at the time of the offense ....' " (Martinez, supra, 4 Cal.5th at p. 653.) In rejecting this argument, the Martinez court held, "Because Proposition 47 did not reduce the transportation of a controlled substance from a felony to a misdemeanor, Martinez is ineligible for resentencing on that offense." (Ibid.)
The defendant in Martinez also argued that the 2013 amendment to section 11379 "implicitly broadened the scope of section 11377 and that his transportation conviction, obtained without proof of intent to sell, should now be construed as falling under section 11377 and thus reducible to a misdemeanor." (Martinez, supra, 4 Cal.5th at p. 655.) However, in rejecting this argument the court held that the amendment to section 11379 was not retroactive to cases that were final. (Martinez, supra, at p. 655.) Because Botello's conviction became final in 2008, the 2013 amendment to section 11379 did not apply to him. Thus, based on the Supreme Court's decision in Martinez, we conclude that the court did not err when it denied Botello's petition to reduce his transportation offense to a misdemeanor and his motion to vacate that conviction.
DISPOSITION
The order appealed from is affirmed.
† Retired judge of the Fresno Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.