Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 08F4498
RAYE, Acting P. J.On May 28, 2008, Shasta County Deputy Sheriff Christopher McQuillan stopped a sport utility vehicle (SUV), a Ford Expedition, for speeding on Interstate 5. The driver, Johnny Mora Perez, did not have a valid driver’s license. The deputy noted items in the SUV consistent with drug trafficking, that is, three cell phones and a number of air fresheners, used as a masking agent, hanging from the rearview mirror. Defendant Osbaldo Silva sat in the front passenger seat. He did not have a valid driver’s license either. Perez and defendant gave inconsistent stories with respect to their trip. Concerned for his safety, having seen a bulge in defendant’s jacket, the deputy conducted a search of defendant and found a pink container. The deputy opened the container with defendant’s consent and found a marijuana joint. Defendant admitted having a small amount of marijuana in a bag in the SUV, which the deputy found. The deputy called for a backup officer with a drug detection dog. The dog alerted to the rear cargo area, where the deputies found two bags of methamphetamine weighing about a quarter pound. Wholesale, the methamphetamine was worth about $6,000. The deputy also found a pipe for smoking methamphetamine and a digital scale in the SUV. Defendant admitted to the deputy that he had brokered the sale of the methamphetamine by someone from Los Angeles who had driven to Redding and sold to Perez. Defendant claimed he never saw the methamphetamine but believed the sale had been completed.
A jury convicted defendant of possession of methamphetamine for sale (Health & Saf. Code, § 11378) and transportation of methamphetamine (§ 11379, subd. (a)). In bifurcated proceedings, the court found a prior drug conviction allegation (§ 11370.2, subd. (c)) to be true. In 2003 defendant was convicted in Oregon of delivery of a controlled substance (methamphetamine).
All further statutory references are to the Health and Safety Code unless otherwise indicated.
The court sentenced defendant to state prison for an aggregate term of five years, that is, the low term of two years for transportation plus a three-year enhancement for the prior conviction. The court stayed sentence (Pen. Code, § 654) on the possession for sale offense.
Defendant appeals. We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 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 of the opening brief. More than 30 days elapsed, and we received no communication from defendant.
We requested supplemental briefing on the following issue: “Does the defendant’s prior Oregon conviction for delivery of a controlled substance qualify as a prior drug conviction under Health and Safety Code section 11370.2, subdivision (c)?” In response, defendant and the People agree that the record of the Oregon prior conviction presented by the prosecution at the bifurcated proceedings contains insufficient facts to support the trial court’s finding that the prior qualified. We agree and will reverse the trial court’s finding. The parties disagree, however, as to the disposition. Defendant argues the trial court erroneously concluded that “delivery” under Oregon law equates with “transportation” under California law. Because California law does not expressly include “delivery,” defendant claims that the rule of lenity should apply and the three-year enhancement should be stricken. The People claim the matter should be remanded for retrial on the allegation. We conclude that the People have the better argument.
The information alleged that defendant “was on and about the 2nd day of May, 2006, in the Circuit Court [of] the State of Oregon, in and for the County of Jackson, case # 031286FE, convicted of a violation of O.R.S. Code section 475.890, within the meaning of Section 11370.2(c) of the Health and Safety Code.”
Section 11370.2, subdivision (c) provides: “Any person convicted of a violation of, or of a conspiracy to violate, Section 11378 or 11379 with respect to any substance containing a controlled substance specified in paragraph (1) or (2) of subdivision (d) of Section 11055 shall receive, in addition to any other punishment authorized by law, including Section 667.5 of the Penal Code, a full, separate, and consecutive three-year term for each prior felony conviction of, or for each prior felony conviction of conspiracy to violate, Section 11351, 11351.5, 11352, 11378, 11378.5, 11379, 11379.5, 11379.6, 11380, 11380.5, or 11383, whether or not the prior conviction resulted in a term of imprisonment.”
Health and Safety Code section 11370.2, subdivision (f) provides: “Prior convictions from another jurisdiction qualify for use under this section pursuant to [Penal Code] Section 668.”
To prove the prior conviction, the prosecution introduced into evidence the following documents: the indictment, the petition to enter a plea of guilty, the judgment, and a copy of an Oregon statute and annotations. The indictment alleged in count I that defendant violated Oregon Revised Statutes section “475.992, class B felony, crime category 8.” Defendant was “accused by the Grand Jury of the County of Jackson by this indictment of the crime of delivery of a controlled substance committed as follows: [¶] The said defendant, on or about the 9th day of January, 2003, in the said County of Jackson and State of Oregon, then and there being, did unlawfully and knowingly deliver a schedule II controlled substance, to-wit: methamphetamine, and the state further alleges that the above-described delivery involved substantial quantities of controlled substance, consisting of 10 or more grams of methamphetamine substance, contrary to the statutes in such cases made and provided, and against the peace and dignity of the State of Oregon.”
The petition to enter a plea of guilty signed by defendant on August 6, 2003, reflects that defendant pled guilty to count I, delivery of a controlled substance, and that the factual basis for the plea was “[a]s alleged in the Indictment.” Defendant was represented by counsel.
The judgment of conviction reflects that the remaining count was dismissed. The court granted probation for a term of 36 months.
The trial court determined that defendant’s prior Oregon conviction was the equivalent of violating California’s transportation offense (§ 11379, subd. (a)).
Section 11379, subdivision (a) provides, in relevant part, as follows: “[E]very person who transports, imports into this state, sells, furnishes, administers, or gives away, or offers to transport, import into this state, sell, furnish, administer, or give away, or attempts to import into this state or transport any controlled substance... shall be punished by imprisonment in the state prison for a period of two, three, or four years.”
“A common means of proving the fact and nature of a prior conviction is to introduce certified documents from the record of the prior court proceeding and commitment to prison, including the abstract of judgment describing the prior offense. [Citations.] [¶] ‘[The] trier of fact is entitled to draw reasonable inferences from certified records offered to prove a defendant suffered a prior conviction....’ [Citations.].... [¶] Thus, if the prosecutor presents, by such records, prima facie evidence of a prior conviction that satisfies the elements of the recidivist enhancement at issue, and if there is no contrary evidence, the fact finder, utilizing the official duty presumption, may determine that a qualifying conviction occurred. [Citations.] [¶] However, if the prior conviction was for an offense that can be committed in multiple ways, and the record of conviction does not disclose how the offense was committed, a court must presume the conviction was for the least serious form of the offense. [Citations.] In such a case, if the statute under which the prior conviction occurred could be violated in a way that does not qualify for the alleged enhancement, the evidence is thus insufficient, and the People have failed in their burden. [Citations.] [¶] On review, we examine the record in the light most favorable to the judgment to ascertain whether it is supported by substantial evidence. In other words, we determine whether a rational trier of fact could have found that the prosecution sustained its burden of proving the elements of the sentence enhancement beyond a reasonable doubt. [Citations.]” (People v. Delgado (2008) 43 Cal.4th 1059, 1066-1067.)
Oregon Revised Statutes section 475.992, which was renumbered to 475.840 after the date of defendant’s offense, makes it unlawful for “any person to manufacture or deliver a controlled substance” in Schedule II which includes methamphetamine. (Or. Rev. Stat. § 475.992, subd. (1)(b), now § 475.840, subd. (1)(b); see Or. Rev. Stat. § 475.005, subd. (6); 21 U.S.C.S. § 812, schedule II (c); State v. Alvarez-Garcia (Or.Ct.App. 2007) 159 P.3d 357.) “‘Deliver’ or ‘delivery’ means the actual, constructive or attempted transfer, other than by administering or dispensing, from one person to another of a controlled substance, whether or not there is an agency relationship.” (Or. Rev. Stat. § 475.005, subd. (8).) Under Oregon law, delivery includes an attempt to transfer and is sufficient to constitute a violation of Oregon Revised Statutes section 475.992 (now § 475.840). (Alvarez-Garcia, supra, 159 P.3d at p. 358.)
There is no evidence presented with respect to the facts underlying defendant’s Oregon conviction. When defendant entered his plea, he agreed that the factual basis was “[a]s alleged in the indictment.” The indictment alleged that defendant “did unlawfully and knowingly deliver a schedule II controlled substance, to-wit: methamphetamine, and the state further alleges that the above-described delivery involved substantial quantities of controlled substance, consisting of 10 or more grams of methamphetamine substance.” There was no evidence presented that defendant’s prior Oregon conviction involved a completed delivery rather than an attempted delivery or what type of transfer was involved.
“Although certain crimes and a conspiracy to commit certain crimes are listed [in section 11370.2, subdivision (a)], an attempt to commit a certain crime is not listed. An attempt to commit a crime is neither a completed crime nor a conspiracy to commit a crime. An attempt is an offense ‘separate’ and ‘distinct’ from the completed crime. [Citations.]” (People v. Reed (2005) 129 Cal.App.4th 1281, 1283 (Reed).) “As the statute now reads, neither a current conviction of an attempt to commit a specified crime nor a prior conviction of an attempt to commit a specified crime supports an enhancement under section 11370.2, subdivision (a). ‘[I]f the Legislature had intended to include attempts in the enhancement provisions, it would have specifically stated the enhancement applie[d] to the “commission or attempted commission” of specific crimes....’ [Citation.]” (Reed, at p. 1285.) The same can be said of subdivision (c) of section 11370.2.
Reed is distinguishable to some extent. “[A]ttempts of most crimes are not defined within a statute, but are governed by the general attempt statute.... [Citation.]” (People v. Medina (2007) 41 Cal.4th 685, 697.) Reed involved a prior conviction for attempted possession for sale or purchase for sale. (Health & Saf. Code, § 11351; Pen. Code, § 664.) The language of Health and Safety Code section 11351 does not include an attempt to commit the completed crime. Penal Code section 664 sets forth the punishment for an attempted offense where not otherwise specified. Here, Health and Safety Code section 11379, subdivision (a) expressly includes an “attempt” to “import” or “transport.” Such attempts are not treated as separate crimes from the completed crime of importing or transporting and are punished the same as the completed crime. Nevertheless, Reed otherwise applies because section 11379, subdivision (a) does not include other attempted transfers, that is, an attempt to sell, furnish, or give away, or attempted offers to do so, or an attempt to offer to import or transport. If defendant’s Oregon conviction involved an attempt to sell, furnish, or give away, or an attempted offer to sell, furnish, or give away, or an attempted offer to import or transport, the offense would not qualify as an enhancement under Health and Safety Code section 11370.2, subdivision (c). We will reverse the trial court’s finding and remand for retrial. Retrial is not barred. (People v. Barragan (2004) 32 Cal.4th 236, 241.)
The People discuss a second basis for concluding insufficient evidence supports the trial court’s finding, that is, whether defendant’s prior Oregon conviction involved a trace amount of methamphetamine. While a trace amount would be sufficient under Oregon law for a conviction (State v. Henry (Or.Ct.App. 1992) 840 P.2d 1335, 1336), it would not be sufficient under California law because a usable quantity is required (People v. Emmal (1998) 68 Cal.App.4th 1313, 1316). Here, defendant entered a plea and the factual basis to which he agreed, that is, “as alleged in the indictment,” stated that the amount was 10 grams or more, clearly not a trace amount.
Having undertaken an examination of the entire record, we find no other arguable error that would result in a disposition more favorable to defendant.
DISPOSITION
The trial court’s finding on the prior drug conviction allegation is reversed. The matter is remanded to the trial court for further proceedings. The judgment is otherwise affirmed.
We concur: BUTZ, J. CANTIL-SAKAUYE, J.