Filed 3/9/16 Certified for Publication 4/5/16 (order attached)




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




THE PEOPLE,                                                          C079075

                  Plaintiff and Respondent,                      (Super. Ct. No.
                                                                 CRF130003201)
         v.

KEVIN JAMES EAGLE,

                  Defendant and Appellant.




         Defendant Kevin James Eagle appeals following the trial court‟s denial of his
motion to vacate his conviction for transporting methamphetamine. He contends if the
transportation was not for sale, his felony conviction for transportation should be reduced
to a misdemeanor conviction for the lesser included offense of possession of
methamphetamine. The People concede that defendant is entitled to the benefits of the
amendments to Health and Safety Code section 11379, but disagree as to the remedy.
Instead, the People argue the matter should be remanded to allow defendant the



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opportunity to withdraw his plea and the People should be allowed to proceed on the
original charges. We agree with the People and will remand the matter for further
proceedings.

                                 FACTS AND PROCEEDINGS

       In August 2013, a police officer found defendant in possession of, and
transporting, a usable amount of methamphetamine. Defendant initially fled from the
officer before being detained.
       A complaint charged appellant with: transporting methamphetamine (Health &
Saf. Code, § 11379, subd. (a) - count 1; unless otherwise set forth, statutory references
that follow are to the Health and Safety Code), possessing methamphetamine (§ 11377,
subd. (a) - count 2), and resisting or obstructing a police officer (Pen. Code, § 148, subd.
(a)(l) - count 3). The complaint also alleged enhancements for a prior drug conviction
(§§ 11370.2, subd. (c)/11379, subd. (a)) and a prior prison term (Pen. Code, § 667.5,
subd. (b)). In September 2013, defendant pleaded no contest to counts 1 and 3, and
admitted the prior prison term enhancement. The trial court granted the People‟s motion
and dismissed the remaining charges and allegations. The trial court suspended
imposition of sentence and, pursuant to the plea agreement, placed defendant on three
years‟ probation with various terms and conditions.
       In March 2015, after the amendment of Health and Safety Code section 11379 and
the passage of Proposition 47, defendant moved to vacate his felony conviction for
transporting methamphetamine (§ 11379, subd. (a)) and replace it with a misdemeanor
conviction for possessing methamphetamine (§ 11377, subd. (a)). The People responded,
asserting that section 11379 was not covered by Proposition 47. Following argument, the
trial court denied the motion.




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                                        DISCUSSION

       At the time of defendant‟s conviction, 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. (People v. Rogers (1971) 5 Cal.3d 129, 134-135 (Rogers); People v.
Eastman (1993) 13 Cal.App.4th 668, 673-677.) Effective January 1, 2014, after
defendant‟s conviction, the Legislature amended section 11379 to define “transports” as
meaning to transport for sale. (§ 11379, subd. (c); Stats. 2013, ch. 504, § 2.)
       The amendment explicitly intended to criminalize the transportation of drugs for
the purpose of sale and not the transportation of drugs for nonsales purposes such as
personal use. (See Assem. Com. on Public Safety, Conc. in Sen. Amend., Analysis of
Assem. Bill No. 721 (2013-2014 Reg. Sess.) as amended June 27, 2013, p. 3 [“ „This bill
makes it expressly clear that a person charged with this felony must be in possession of
drugs with the intent to sell. Under AB 721, 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‟ ”].)
       Generally, “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 (Estrada).)
Here, the People concede defendant‟s sentence was not final at the time the amendments
to section 11379 took effect, as the trial court had suspended imposition of sentence and
placed defendant on probation. The People also concede that because the judgment was
not final, defendant is entitled to benefit retroactively from the changes to section 11379.
On these points, we agree.



                                              3
       Defendant contends the application of the amended section 11379 transforms his
conviction for transportation of methamphetamine for sale into a conviction “of the
lesser-included offense of possession of methamphetamine.” On this point, the People
disagree, and so do we.
       When a conviction is contrary to law, but the evidence shows that defendant is
guilty of a lesser included offense, a court can reduce the conviction to the lesser included
offense and affirm the judgment as modified. (Pen. Code, §§ 1181, subd. (6), 1260;
People v. Enriquez (1967) 65 Cal.2d 746, 749; see also People v. Navarro (2007)
40 Cal.4th 668, 681.) Thus, we can only reduce the conviction to simple possession if it
is a lesser included offense of transporting.
       There are two ways of determining whether an offense is a lesser included
offense—the statutory elements test or the accusatory pleading test. (People v. Shockley
(2013) 58 Cal.4th 400, 404 (Shockley); People v. Ramirez (2009) 45 Cal.4th 980, 984-
985; People v. Birks (1998) 19 Cal.4th 108, 117.) “ „Under the accusatory pleading test,
if the facts actually alleged in the accusatory pleading include all of the elements of the
lesser offense, the latter is necessarily included in the former.‟ [Citation.]” (Shockley, at
p. 404.) However, this test does not apply where the accusatory pleading does not allege
facts specific to the case, but rather states the offense alleged in the language of the
statutory definition. (Ibid.) Here, no case-specific facts were alleged in the complaint.
Because only the statutory language was alleged in the complaint, we are limited to using
the statutory elements test to determine whether simple possession is a lesser offense of
transportation. (Ibid.) Under the elements test, possession of methamphetamine is not a
lesser included offense of transporting methamphetamine. (Rogers, supra, 5 Cal.3d at
p. 134; People v. Watterson (1991) 234 Cal.App.3d 942, 947.)
       Because simple possession of methamphetamine is not a lesser included offense of
transporting methamphetamine, we cannot reduce defendant‟s conviction to simple
possession. Moreover, even if simple possession were a lesser included offense, we

                                                4
could not simply reduce the transportation conviction to simple possession. When a
statutory amendment adds an additional element to an offense, the prosecution must be
afforded the opportunity to establish the additional element upon remand. (People v.
Figueroa (1993) 20 Cal.App.4th 65, 71-72, fn. 2 (Figueroa).) Such a retrial is not barred
by the double jeopardy clause or ex post facto principles because the question of whether
defendant transported the methamphetamine for sale was not relevant to the charges at
the time of trial and accordingly, this question was never tried. (See id. at pp. 69-72 &
fn. 2.) Accordingly, we must reverse defendant‟s conviction of transporting
methamphetamine and remand the matter back to the trial court for further proceedings.
(Ibid.)

                                           DISPOSITION

          Defendant‟s conviction for transporting methamphetamine is reversed and the
matter is remanded for further proceedings consistent with this opinion.



                                                        HULL                  , J.



          We concur:



               NICHOLSON , Acting P. J.



               DUARTE        , J.




                                              5
Filed 4/5/16
                              CERTIFIED FOR PUBLICATION




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



THE PEOPLE,                                                       C079075

                 Plaintiff and Respondent,                     (Super. Ct. No.
                                                               CRF130003201)
        v.
                                                           ORDER CERTIFYING
KEVIN JAMES EAGLE,                                           OPINION FOR
                                                             PUBLICATION
                 Defendant and Appellant.




        APPEAL from a judgment of the Superior Court of Sacramento County. Paul K.
Richardson, J. Reversed and remanded.


        Michele A. Douglass, under appointment by the Court of Appeal, for Defendant
and Appellant.
        Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Senior Assistant Attorney General, Carlos A. Martinez,
Supervising Deputy Attorney General, Jeffrey D. Firestone, Deputy Attorney General for
Plaintiff and Respondent.



                                               1
THE COURT:


       The opinion in the above-entitled matter filed on March 9, 2016, was not certified
for publication in the Official Reports. For good cause it now appears that the opinion
should be published in the Official Reports and it is so ordered.



BY THE COURT:



      NICHOLSON             , Acting P. J.



      HULL                  , J.



      DUARTE                , J.




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