Opinion
A152362
05-08-2018
THE PEOPLE, Plaintiff and Respondent, v. ENRICO DEVON CARTER, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. VC27028)
Defendant Enrico Devon Carter appeals from a postjudgment order denying his request to have his prior felony conviction for transportation of cocaine base either dismissed, vacated, or reduced to a misdemeanor. Defendant contends his conviction should be eligible for redesignation from a felony to a misdemeanor under Proposition 47, the Safe Neighborhoods and Schools Act. We disagree and affirm the judgment.
I. BACKGROUND
In 1989, defendant pled no contest to the transportation of cocaine base in violation of Health and Safety Code section 11352 (1989 conviction). Defendant was placed on probation and did not appeal.
All statutory references are to the Health and Safety Code unless otherwise indicated.
In 1993, criminal proceedings were reinstated and defendant was sentenced to a four-year concurrent term for the offense, as part of a four-year eight-month term involving later convictions for possession of cocaine base for sale (§ 11351.5) and accessory to a felony (Pen. Code, § 32). Defendant again did not appeal.
In 2017, defendant filed a motion to have his 1989 conviction either "vacated" or "dismissed" based on a 2013 amendment to section 11352, which limited the scope of the statute to transportation for sale. Alternatively, defendant argued his conviction should be reduced to a misdemeanor under Proposition 47 because his conviction "falls within the intent of the initiative" as a "nonserious, nonviolent offense." In opposition, the People argued (1) the transportation conviction was not subject to reduction under Proposition 47 because it was not one of the enumerated code sections in Proposition 47, and (2) defendant was not entitled to retroactive application of the 2013 amendment to section 11352 because his conviction was final. The matter was submitted without argument, and the trial court summarily denied defendant's motion. Defendant timely appealed.
II. DISCUSSION
Defendant collaterally attacked his conviction in the trial court pursuant to section 11352 and Proposition 47. On appeal, defendant appears to combine his trial court arguments. He asserts he is entitled to redesignation of his conviction under Proposition 47 because his conviction—if he can prove it was based on personal use—should be treated as possession under section 11350, rather than transport under section 11352. Because section 11350 is one of the enumerated sections in Proposition 47, defendant contends he is entitled to have his felony conviction redesignated as a misdemeanor. (Pen. Code, § 1170.18, subd. (a).) We disagree. A. Section 11352
Prior to its amendment in 2013, section 11352 prohibited the transportation of various controlled substances, including cocaine base. (Stats. 1972, ch. 1407, § 3, p. 3013.) The California Supreme Court concluded "transportation" did not require "a specific intent to transport contraband for the purpose of sale or distribution, rather than personal use." (People v. Rogers (1971) 5 Cal.3d 129, 132, 134 (Rogers).) As 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, at pp. 134-135.)
Former section 11531 applied to the offense of transportation of marijuana. The Legislature repealed section 11531 in 1972 (Stats. 1972, ch. 1407, § 2, p. 2987) and enacted new provisions, including section 11352, criminalizing transportation of various controlled substances (Stats. 1972, ch. 1407, § 3, p. 3013). These new transportation provisions are interpreted in accord with former section 11531 and Rogers. (People v. Cortez (1985) 166 Cal.App.3d 994, 997-998 (Cortez).)
In 2013, the Legislature amended section 11352 by adding subdivision (c), which provides: "For purposes of this section, 'transports' means to transport for sale." (Stats. 2013, ch. 504, § 1, p. 4288.) "The amendment intended to criminalize the transportation of drugs for the purpose of sale and not the transportation of drugs for personal use." (People v. Superior Court (Rodas) (2017) 10 Cal.App.5th 1316, 1321 (Rodas).) Thus, as of 2014, transportation of cocaine base for personal use no longer constituted a violation of section 11352. (Rodas, at p. 1321; People v. Ramos (2016) 244 Cal.App.4th 99, 102.)
The legislative amendment to section 11352 did not include an explicit savings clause prohibiting retroactive application of the amended statutory language. (Stats. 2013, ch. 504, § 1.) Nor is there any other indication of "clear legislative intent" that the amended statutory language is only to be applied prospectively. (See People v. Rossi (1976) 18 Cal.3d 295, 299.) Because the amendment benefits a defendant by eliminating criminal liability for drug transportation in cases involving possession for personal use, it must be applied retroactively to any case in which the judgment was not final when the amendment occurred. (See In re Estrada (1965) 63 Cal.2d 740, 745.)
Here, however, judgment was final. In Rodas, the defendant pled no contest to violating section 11352. (Rodas, supra, 10 Cal.App.5th at p. 1318.) She subsequently sought to vacate her felony conviction for transporting heroin (§ 11352, subd. (a)) and replace it with a misdemeanor conviction for possessing heroin (§ 11350, subd. (a)). (Rodas, at p. 1320.) The court rejected this argument, noting "because the order granting probation constitutes a final judgment of conviction under Penal Code section 1237 [citation], the order was directly appealable." (Id. at p. 1325.) Penal Code section 1237.5 and the implementing Rules of Court provide 60 days to file a notice of appeal from the probation order. (Pen. Code, § 1237.5; Cal. Rules of Court, rules 8.304(a) & (b), 8.308(a).) "If the time to appeal the probation order lapses without an appeal having been taken, however, the defendant may not thereafter challenge the underlying conviction when appealing a subsequent order revoking probation and imposing a suspended sentence." (Rodas, at p. 1325.)
As Rodas makes clear, defendant's judgment of conviction for transporting cocaine became final for retroactivity purposes in 1989 because he did not appeal the court's order granting probation. He thus is not entitled to retroactive application of the 2013 amendment to section 11352. As noted by the California Supreme Court and our colleagues in the Third Appellate District, " '[s]trict adherence to procedural deadlines and other requirements governing appeals that emanate from judgments entered upon pleas of guilty or no contest is vital, in view of the circumstance that such judgments represent the vast majority of felony and misdemeanor dispositions in criminal cases.' ([In re Chavez (2003)] 30 Cal.4th [643,] 654, fn. 5, italics added.) Allowing [a defendant] to withdraw [his or] her plea and set aside the judgment of conviction at this late stage would violate the important public policy of strictly adhering to procedural deadlines in these types of cases and—as noted by Chavez—fundamentally undermine the finality of a majority of the criminal matters in California." (Rodas, supra, 10 Cal.App.5th at p. 1326.) B. Proposition 47
Although the 2013 amendment to section 11352 does not apply retroactively, defendant nonetheless maintains he should be able to reduce his transportation conviction to a misdemeanor conviction for possession where the transportation was for personal use. We disagree.
"Proposition 47 makes certain drug- and theft-related offenses misdemeanors unless the offenses were committed by certain ineligible defendants." (People v. Rivera (2015) 233 Cal.App.4th 1085, 1091.) "Proposition 47's resentencing provision, [Penal Code] section 1170.18, subdivision (a), provides, in pertinent part: 'A person who, on November 5, 2014, was serving a sentence for a conviction . . . 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 of the Health and Safety Code, 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.' " (People v. Page (2017) 3 Cal.5th 1175, 1181-1182 (Page).) A person who has completed his or her sentence "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).)
As discussed in part II.A., ante, section 11352 was amended in 2013 to apply only to transportation of controlled substances for the purpose of sale. (§ 11352, subd. (c).) This amendment was enacted by the Legislature rather than through Proposition 47. (See Stats. 2013, ch. 504, § 1.) The parties do not dispute section 11352 is not one of the enumerated crimes subject to the redesignation and resentencing procedure set forth in Penal Code section 1170.18. However, "the mere fact that section [11352] is not one of the code sections enumerated in Penal Code section 1170.18[, subdivision] (a) is not fatal to [defendant's] petition for resentencing on his transportation offense. Rather, his eligibility for resentencing turns on whether he is a person serving 'a sentence for a conviction . . . of a felony or felonies who would have been guilty of a misdemeanor under [Proposition 47] had [Proposition 47] been in effect at the time of the offense . . . .' " (People v. Martinez (2018) 4 Cal.5th 647, 652 (Martinez); Page, supra, 3 Cal.5th at pp. 1187, 1189, fns. omitted ["[O]btaining an automobile worth $950 or less by theft constitutes petty theft under [Pen. Code] section 490.2 and is punishable only as a misdemeanor, regardless of the statutory section under which the theft was charged. . . . [¶] . . . [¶] . . . [D]efendants serving sentences for [Veh. Code, § 10851 convictions] are due an opportunity to prove their eligibility."].)
Defendant contends he is entitled to resentencing because, at the time Proposition 47 became effective, he could only violate section 11352 if a jury concluded the drugs were transported for sale. Had he transported the drugs for personal use, he could not have been charged under section 11352 and would only have been subject to a misdemeanor possession charge under section 11350.
Defendant's underlying presumption, however, is erroneous. We do not evaluate the possible charges "at the time Proposition 47 became effective" but rather at the time of the offense. (Pen. Code, § 1170.18, subd. (a); see part II.A., ante [§ 11352 does not apply retroactively to final judgments].) As to this issue, we find Martinez directly on point. In Martinez, the defendant was convicted of transporting methamphetamine under section 11379, and the judgment became final in 2010. (Martinez, supra, 4 Cal.5th at p. 650.) In 2013, section 11379 was amended to define " 'transports' " to mean "transport for sale." (Assem. Bill No. 721 (2013-2014 Reg. Sess.) § 2.) Following passage of Proposition 47 in 2014, the defendant petitioned the court for resentencing of his transportation conviction and argued "at the time of Proposition 47's enactment, the conduct underlying his transportation conviction could have been charged only as a possession offense and thus he should be sentenced as a misdemeanant." (Martinez, at p. 651.) The Supreme Court rejected this argument, finding that "had Proposition 47 been in effect at the time of [the defendant's] offense, his criminal conduct still would have amounted to felony drug transportation because none of the statutes amended or enacted by Proposition 47 altered the offense set forth in section 11379. Proposition 47's amendments to sections 11350, 11357, and 11377, all of which concern illegal possession of various controlled substances including methamphetamine, do not redefine or refer to unlawful transportation of controlled substances. [Citation.] . . . Because Proposition 47 did not reduce the transportation of a controlled substance from a felony to a misdemeanor, [the defendant] is ineligible for resentencing on that offense." (Id. at p. 653.) The Supreme Court further noted, "This result is consistent with Proposition 47's stated purpose. Both the initiative and the Legislative Analyst extensively discuss Proposition 47's impact on drug possession offenses. [Citations.] Neither mentions drug transportation offenses. We infer that the electorate reasonably could have understood that drug possession and drug transportation crimes are distinct and merit different treatment under the proposition." (Id. at pp. 653-654.) "Proposition 47 could have been written to reduce to a misdemeanor any drug offense without intent to sell. [Citations.] But Proposition 47 was not written that way. The electorate reduced felony drug possession convictions under only three possession statutes, even though it presumably understood that before 2014, some possessory conduct resulted in felony convictions for unlawful transportation under former section 11379. In sum, because Proposition 47 did not alter the offense of unlawful drug transportation, [the defendant's] conviction under former section 11379 would not have been affected even if Proposition 47 had been in effect at the time of his offense." (Id. at pp. 654-655.)
On April 4, 2018, this court ordered supplemental briefing from the parties to address the applicability of Martinez, supra, 4 Cal.5th 647. Both parties agree Martinez is on point and controlling.
We are bound by the Supreme Court's holding in Martinez. None of the statutes amended or enacted by Proposition 47 alter the offense set forth in section 11352. In 1989, transporting drugs for personal use were properly charged under section 11352. (See Stats. 1972, ch. 1407, § 3, p. 3013; Rogers, supra, 5 Cal.3d at pp. 134-135.) Possession was a separate and distinct charge from the offense of transportation for either sale or personal use. (Martinez, supra, 4 Cal.5th at p. 655 ["Because possession is not an element of unlawful transportation, not every person convicted of transporting drugs under former section 11379 has necessarily committed a drug possession offense covered by Proposition 47."]; People v. Eagle (2016) 246 Cal.App.4th 275, 279 ["possession of methamphetamine is not a lesser included offense of transporting methamphetamine"]; Cortez, supra, 166 Cal.App.3d at p. 1000 [distinguishing between § 11350, which is "directed at deterring the individual who personally possesses and uses," and § 11352, which is "directed at attempting to prevent or deter the movement of drugs from one location to another, thereby inhibiting trafficking in narcotics and their proliferation in our society"].) Defendant's conviction under former section 11352 was thus not impacted by Proposition 47.
Defendant concludes, "If [the amended section 11352] were the law at the time of [his] offense, [he] would have committed a misdemeanor if he possessed the drugs for his own personal use." While that may be true, the current version of section 11352 was not the law at the time of his offense. Accordingly, the trial court correctly denied defendant's petition.
In the trial court, defendant argued "equity" required inclusion of his conviction within the scope of Proposition 47. We interpret this as intending to raise an equal protection argument. While this argument appears to have been abandoned on appeal, we note courts have addressed—and rejected—such contentions. (See, e.g., Cortez, supra, 166 Cal.App.3d at p. 1000 [" 'Persons convicted of different crimes are not similarly situated for equal protection purposes. [Citations.]' [Citation.] [¶] . . . [¶] . . . [E]ven assuming arguendo that persons convicted of different crimes under some circumstances can be similarly situated for equal protection purposes, we are of the opinion persons convicted of possessing heroin for personal use and persons convicted of transporting heroin are not similarly situated."].) --------
III. DISPOSITION
The judgment is affirmed.
/s/_________
Margulies, J. We concur: /s/_________
Humes, P.J. /s/_________
Banke, J.