Filed 10/19/15 P. v. Maita 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                                           NOT TO BE PUBLISHED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
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 This opinion has not been certified for publication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.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                      (El Dorado)
                                                            ----



THE PEOPLE,

                   Plaintiff and Respondent,                                                 C074872

         v.                                                                   (Super. Ct. Nos. P12CRF0509,
                                                                                      P13CRF0072)
ERICK NEIL MAITA,

                   Defendant and Appellant.




         In case No. P13CRF0072, a jury convicted defendant Erick Neil Maita of

possession of a controlled substance for sale and transportation of a controlled

substance.1 In a bifurcated proceeding, the trial court found true various enhancement

allegations, including prior conviction enhancements pursuant to Health and Safety Code




1 Defendant also appeals the judgment in case No. P12CRF0509, in which he was
convicted for receiving stolen property, but his contentions on appeal are limited to case
No. P13CRF0072.

                                                             1
section 11370.2, subdivision (c).2 In addition, the trial court found a special allegation

true pursuant to Penal Code section 1203.073, subdivision (b)(2) [ineligibility for

probation], and sentenced defendant to 14 years in prison.

       Defendant now contends (1) the evidence at the preliminary hearing was

insufficient to hold him to answer on the charge of transportation of a controlled

substance; (2) his trial counsel was ineffective for failing to move for acquittal on the

transportation charge; (3) defendant was deprived of his right to conflict-free counsel;

(4) the trial court violated defendant’s right to a jury trial when it found true the Penal

Code section 1203.073, subdivision (b)(2) special allegation; and (5) the 2014

amendment to section 11379 should apply retroactively to defendant’s 2003 conviction in

a prior case, thereby precluding prior conviction enhancements in this case.

       We conclude (1) there was insufficient evidence to hold defendant to answer on

the charge of transportation of a controlled substance; (2) because we will reverse the

transportation conviction, we need not reach defendant’s alternative claim of ineffective

assistance; (3) defendant’s claim for deprivation of his right to conflict-free counsel fails

because he did not show any conflict that adversely affected counsel’s representation;

(4) the trial court did not violate defendant’s right to a jury trial when it found the special

allegation true, because finding a defendant ineligible for probation is not an increase in

sentence; and (5) defendant’s retroactivity contention lacks merit because his 2003

conviction became final long before the 2014 amendment.



2 Undesignated statutory references are to the Health and Safety Code.


                                               2
       We will reverse the conviction for transportation of a controlled substance and

otherwise affirm the judgment.

                                     BACKGROUND

       On January 26, 2013, El Dorado County Sheriff’s deputies conducted a probation

search at the apartment that Sheila Goodwin shared with her husband, Joshua Lyannas,

and their children. Before knocking on the door, Deputy Stephen Coburn heard male and

female voices inside, but when he knocked it got quiet. Lyannas asked who was at the

door; Deputy Coburn said it was the Sheriff’s Department and ordered Lyannas to open

the door, threatening to kick the door in. Lyannas asked Coburn not to break in, saying

he was holding his child and would open the door after he put the child down.

       Upon entering the apartment, the deputies found Lyannas, Kimberly Adams and

Felicia Massey in the living room. Deputy Nicholas Cortez found Goodwin in the

bedroom. When Deputy James Hubert approached the bathroom, the door was closed but

he could hear the toilet flushing. Defendant came out of the bathroom. Hubert lifted the

toilet seat and found a plastic Ziplock bag containing other plastic bags in the toilet. The

bags respectively contained 28.5 grams, 3.97 grams, 3.98 grams, 4.03 grams, 3.98 grams,

and .78 grams of methamphetamine.

       The People initially filed a complaint charging defendant with possession of a

controlled substance for sale (§ 11378 -- count 1). Following a preliminary hearing, the

magistrate held defendant to answer on that charge. The People subsequently moved to

amend the information to add a charge against defendant for transportation of a

controlled substance (former § 11379 -- count 2). Defendant opposed the motion,


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arguing there was no evidence presented at the preliminary hearing to support a

transportation charge. Defendant argues the evidence at the preliminary hearing

indicated the apartment had only one bedroom, and the methamphetamine was either in

the bathroom or moved from the living room to the bathroom.

       The trial court allowed the amended information, stating: “If you move from one

place to another, no matter what the distance is, and you have illegal substances on you,

you can be guilty of [former section] 11379. I tend to agree with you. It’s -- it makes

anybody who has possession of anything and moves one step guilty of [former section]

11379 potentially, but that’s what it says. I’m not in a position to change the legislative

definition of what the crime is.”

       The jury found defendant guilty of possession of a controlled substance for sale

(§ 11378 -- count 1) and transportation of a controlled substance (former § 11379 --

count 2). In a bifurcated proceeding, the trial court found true various enhancement

allegations, including prior conviction enhancements pursuant to section 11370.2,

subdivision (c). In addition, the trial court found a special allegation true pursuant to

Penal Code section 1203.073, subdivision (b)(2) [ineligibility for probation], and

sentenced defendant to 14 years in prison.

                                       DISCUSSION

                                              I

       Defendant contends the evidence at the preliminary hearing was insufficient to

hold him to answer on the charge of transportation of a controlled substance. The

Attorney General agrees and we do too.


                                              4
      In reviewing defendant’s claim of insufficient evidence to hold him to answer, we

must draw every legitimate inference from the evidence in favor of the information. (Sea

Horse Ranch, Inc. v. Superior Court (1994) 24 Cal.App.4th 446, 454.) Furthermore, we

must determine whether the evidence presented at the preliminary examination discloses

circumstances from which the magistrate might have reasonably inferred the existence of

each element of the charged crime. (Williams v. Superior Court (1969) 71 Cal.2d 1144,

1148-1149.) However, the information must be set aside if there is a total absence of

evidence to support a necessary element of the crime charged. (People v. Caffero (1989)

207 Cal.App.3d 678, 684.)

      At the time of defendant’s offense, former section 11379 provided that every

person who transports any controlled substance shall be punished by imprisonment.

(Former § 11379, subd. (a).) In People v. Ormiston (2003) 105 Cal.App.4th 676

(Ormiston), the court ruled that transportation under former section 11379 is movement

of a controlled substance from one location to another and does not apply to minimal

movement within a residence or confined area. (Ormiston at pp. 684-685.)

      Here, the evidence at the preliminary hearing indicated that Deputy Coburn heard

male and female voices inside the apartment and that it got quiet when he knocked.

There was some delay in opening the door. The apartment had a living room, a bedroom

and a bathroom. Deputy James Hubert found the bathroom door closed and heard the

toilet flushing. Defendant came out of the bathroom. Hubert found bags of

methamphetamine in the toilet. Based on this evidence, it could be inferred that the




                                            5
methamphetamine may have been moved from the living room or the bedroom into the

bathroom, but there is no evidence that it was moved beyond the residence.

         We agree with the court in Ormiston that the word “transports” in former

section 11379 does not refer to movement within an average residence. Because there

was insufficient evidence to hold defendant to answer on the transportation charge, we

will reverse the conviction on count 2.

                                              II

         Defendant next contends his trial counsel was ineffective for failing to move for

acquittal on the transportation charge. Because we will reverse the transportation

conviction based on defendant’s first contention, we need not address this alternative

claim.

                                              III

         In addition, defendant asserts that he was deprived of his Sixth Amendment right

to conflict-free counsel. Specifically, defendant contends a conflict existed because his

counsel maintained a prior relationship with a witness that testified in his case.

         To show a Sixth Amendment violation a defendant must show that there was a

conflict of interest that affected the adequacy of counsel’s representation, and absent

counsel’s deficiencies arising from the conflict, it is reasonably probable the results of the

proceeding would have been different. (Mickens v. Taylor (2002) 535 U.S. 162, 164-165

[152 L.Ed.2d 291, 299-300]; Cuyler v. Sullivan (1980) 446 U.S. 335, 349-350

[64 L.Ed.2d 333, 347-348].) In People v. Bonin (1989) 47 Cal.3d 808, the California

Supreme Court explained that a conflict may exist when an attorney represents a


                                              6
defendant in a criminal matter and has previously represented another witness in that

matter. (Id. at p. 835.)

       Here, defendant did not affirmatively show that a conflict existed because of

counsel’s prior professional relationship with the testifying witness that affected the

adequacy of counsel’s representation, and that absent counsel’s errors arising from the

conflict, it was reasonably probable that the results would have been different. During

cross-examination of his former client, defendant’s attorney questioned the witness about

her drug habits, the drug habits of her husband, her husband’s sale of controlled

substances, and her past felony charges. Counsel’s examination indicates that his former

professional relationship with the witness did not affect his representation of the

defendant.

       Defendant also contends a conflict arose because counsel’s brother represented co-

defendant Lyannas.

       The California State Bar Rules of Professional Conduct state in relevant part that

an attorney cannot represent a client in a matter in which the attorney is sibling to another

party’s lawyer unless the attorney informs the client in writing of the relationship. (Rules

Prof. Conduct, rule 3-320.) But even if there was an ethical violation, the violation

would not necessarily invalidate the judgment. In Mickens v. Taylor, supra, 535 U.S. 162

[152 L.Ed.2d 291], the United States Supreme Court explained that “defects in assistance

that have no probable effect upon the trial’s outcome do not establish a constitutional

violation.” (Id. at p. 166.)




                                              7
       Here, defendant has not established a violation requiring reversal. He merely

makes assumptions about the adequacy of his counsel by presuming counsel’s loyalties

were divided between his former client, counsel’s brother, his brother’s client, and the

defendant himself. Defendant has failed to meet his threshold burden to show that an

actual conflict of interest affected the quality of counsel’s representation. Accordingly,

we need not address whether, in the absence of counsel’s asserted deficiencies, it is

reasonably probable that the results of the proceeding would have been different.

                                              IV

       Defendant further claims that the trial court violated his right to a jury trial when it

found the special allegation true under Penal Code section 1203.073, subdivision (b)(2).

Specifically, defendant argues that his due process rights were violated because the trial

court, not the jury, found him ineligible for probation. Defendant asserts that probation

ineligibility increases the penalty for his crime and thus the facts relating to the denial of

probation should have been pleaded and proven beyond a reasonable doubt to the jury,

not the trial court. We disagree.

       Penal Code section 1203.073, subdivision (b)(2) provides that any person who is

convicted of violating sections 11378 or 11379 shall not be granted probation if he or she

possessed or sold for sale a substance containing 28.5 grams or more of

methamphetamine or 57 grams or more of a substance containing methamphetamine.

(Pen. Code, § 1203.073, subd. (b)(2).) Although we will reverse defendant’s

transportation conviction (former § 11379 -- count 2), the trial court’s true finding based

on the possession for sale conviction (§ 11378 -- count 1) remains valid.


                                               8
       In Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435], the United

States Supreme Court stated that “any fact that increases the penalty for a crime beyond

the prescribed statutory maximum must be submitted to a jury, and proved beyond a

reasonable doubt.” (Id. at p. 490 [147 L.Ed.2d p. 455].) Defendant cites People v. Lo

Cicero (1969) 71 Cal.2d 1186, in which the court stated that denying the opportunity for

probation is equivalent to an increase in penalty.3 (Id. at p. 1193.)

       However, in People v. Benitez (2005) 127 Cal.App.4th 1274, the court concluded

that probation is an act of clemency on the part of the trial court; thus, finding a defendant

ineligible for probation is not a form of punishment. (Id. at p. 1278.) We agree.

       Here, the trial court found the special allegation true and determined that

defendant was ineligible for probation. Because denying the opportunity for probation is

not an increase in sentence, the jury was not required to make findings of fact related to

that determination. Defendant’s contention lacks merit.

                                              V

       Defendant next argues that the 2014 amendment to section 11379, which now

defines the word “transports” to mean transport for sale, should apply retroactively to

defendant’s 2003 conviction in a prior case, thereby precluding the prior conviction

enhancements in this case based on section 11370.2, subdivision (c).




3 The California Supreme Court recently granted review in People v. Hood (2014)
223 Cal.App.4th 1356, to determine whether People v. Lo Cicero, supra, 71 Cal.2d 1186,
should be overruled.

                                              9
       In his prior 2003 case, defendant pleaded no contest to violating former

section 11379 (transportation of a controlled substance). At the time of his sentencing in

2003, former section 11379 did not define “transports” to mean transports for sale.

(Former § 11379, Stats. 2001, ch. 841, §7.) At that time, transportation of a controlled

substance encompassed both transportation for sale and transportation for personal use.

(People v. Rogers (1971) 5 Cal.3d 129, 135.) Defendant was convicted and sentenced in

that case to three years eight months in state prison and the judgment became final.

       Section 11370.2 states in relevant part that any person convicted of a violation of

section 11378 (possession of a controlled substance for sale) shall receive a full, separate,

and consecutive three year term for each prior felony conviction of section 11379.

(§ 11370.2, subd. (c).)

       The court in In re Estrada (1965) 63 Cal.2d 740 (Estrada) held that an amended

act that imposes a lighter punishment can be applied retroactively provided that the

judgment convicting the defendant of the act is not final. (Id. at p. 745.) Estrada

retroactivity does not apply in this case because defendant’s prior conviction became

final. Accordingly, the 2014 amendment to section 11379 does not apply to his prior

conviction, and his contention lacks merit.

                                      DISPOSITION

       The count 2 conviction for transportation of a controlled substance is reversed, and

the matter is remanded to the trial court for resentencing. The judgment is affirmed in all

other respects. Upon resentencing, the trial court shall prepare an amended abstract of




                                              10
judgment and forward a certified copy of the amended abstract of judgment to the

Department of Corrections and Rehabilitation.




                                                     /S/
                                                Mauro, J.


We concur:



      /S/
Hull, Acting P. J.



     /S/
Robie, J.




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