Filed 2/29/16 P. v. Vount 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
                                                         (Yolo)
                                                            ----




THE PEOPLE,                                                                                  C079082

                   Plaintiff and Respondent,                                   (Super. Ct. Nos. CRF072760,
                                                                               CRF086110, CRF090986, &
         v.                                                                            CRF106123)

GEORGE VERN YOUNT,

                   Defendant and Appellant.




         Defendant George Vern Yount appeals from the trial court’s order partially
denying his petitions for resentencing. (Pen. Code, § 1170.18.) He contends he was
entitled to resentencing on his convictions for transportation of a controlled substance.
(Former Health & Saf. Code, §§ 11352, 11379.)1 We affirm.




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

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                                     BACKGROUND
       We omit the facts of defendant’s crimes as they are unnecessary to resolve this
appeal.
       Defendant was convicted of transportation of a controlled substance (former
§ 11352), possession of a controlled substance (former § 11350), possession of drug
paraphernalia (§ 11364), and unauthorized possession of a hypodermic syringe (former
Bus. & Prof. Code, § 4140) in case No. CRF072760. In case No. CRF086110, he was
convicted of possession of a controlled substance. (Former § 11377, subd. (a).)
Defendant was convicted of two counts of transportation of a controlled substance
(former §§ 11379, subd. (a), 11352, subd. (a)), and single counts of possession of a
controlled substance (former § 11350, subd. (a)), and possession of drug paraphernalia
(former § 11364, subd. (a)), along with a prior drug conviction (§ 11370.2, subd. (a)) and
five prior prison terms (Pen. Code, § 667.5, subd. (b)) in case No. CRF090986. On
April 15, 2011, defendant was convicted of transportation of a controlled substance
(former § 11379) with a prior drug conviction in case No. CRF106123. On that same
day, he was sentenced a total of 17 years to state prison for all his current convictions.
       This court affirmed defendant’s convictions in case Nos. CRF090986,
CRF086110, and CRF072760 in an unpublished opinion on March 7, 2011. (People v.
Yount (Mar. 7, 2011, C064074).) The California Supreme Court denied his petition for
review on May 11, 2011. (People v. Yount (May 11, 2011, S192062).) Defendant did
not appeal case No. CRF106123.
       Defendant subsequently filed several Penal Code section 1170.18 petitions seeking
resentencing on the possession and transportation convictions, which the trial court
granted as to the possession convictions and denied as to the transportation convictions.
The trial court resentenced defendant to a total term of 13 years 4 months in state prison.




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                                        DISCUSSION
       Defendant contends the trial court erred in failing to change his convictions for
transporting a controlled substance to misdemeanor possession of a controlled substance
because he did not transport the drugs with an intent to sell them. We disagree.
       Defendant collaterally attacked his convictions in the trial court through a petition
brought pursuant Penal Code section 1170.18, which was enacted as part of Proposition
47. (See Voter Information Guide, Gen. Elec. (Nov. 4, 2014) text of Prop. 47, § 14,
pp. 73-74.) Subdivision (a) of section 1770.18 of the Penal Code states: “A person
currently 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 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.” While the statutes
defining the crime of transportation of a controlled substance contains a requirement that
the transportation be for the purpose of sale (see §§ 11379, subd. (c), 11352, subd. (c)),
these changes were enacted by the Legislature (Stats. 2014, ch. 504, § 7, 8) rather than
through Proposition 47. The transportation offenses are not one of the crimes subject to
the redesignation and resentencing procedure set forth in Penal Code section 1170.18.
       Defendant argues that the Legislature’s changes to the transportation statutes
should apply retroactively to him. The legislative amendment to Health and Safety Code
sections 11352 and 11379 did not include an explicit savings clause prohibiting
retroactive application of the amended statutory language, nor is there any other
indication of “clear legislative intent” that the amended statutory language is only to be
applied prospectively. (People v. Rossi (1976) 18 Cal.3d 295, 299.) Because the
amendment benefits a defendant by eliminating criminal liability for drug transportation

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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 (Estrada).)
       Defendant did not appeal his April 15, 2011, conviction in case No. CRF106123,
and the California Supreme Court denied the petition for review for his convictions in the
remaining cases on May 11, 2011. His convictions were therefore final well before the
Legislature amended the transportation offenses.
       Defendant notes that Estrada does not bar retroactive application to final
judgments of conviction when the Legislature intends for the change to apply
retroactively. (See People v. Flores (1979) 92 Cal.App.3d 461, 472-473.) He
additionally points out that retroactive application is not an issue when the legislative
amendment merely clarifies existing law. (See Carter v. California Dept. of Veterans
Affairs (2006) 38 Cal.4th 914, 922 (Carter) [“[a] statute that merely clarifies, rather than
changes, existing law is properly applied to transactions predating its enactment”].)
Asserting that the legislative history of the bill’s changes to the transportation statutes
shows that the bill was intended to merely clarify existing law, defendant concludes the
changes to the transportation offenses should apply to his convictions.
       In People v. Rogers (1971) 5 Cal.3d 129, our Supreme Court held that the offense
of transportation of marijuana (former § 11531) did not require “a specific intent to
transport contraband for the purpose of sale or distribution, rather than personal use.”
(Rogers, at pp. 132, 134.) 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.” (Id. at pp. 134-135.) Up until the
recent changes to the transportation statutes, it remained the law in California that the

                                               4
illegal transportation of controlled substances did not require the transportation to be for
purposes of sale. (People v. Eastman (1993) 13 Cal.App.4th 668, 674-677.)
       The “ ‘interpretation of a statute is an exercise of the judicial power the
Constitution assigns to the courts’ ” and “[w]hen [the California Supreme Court] ‘finally
and definitively’ interprets a statute, the Legislature does not have the power to then state
that a later amendment merely declared existing law. [Citation.]” (Carter, supra,
38 Cal.4th at p. 922.) Any legislative intent is irrelevant to the question of whether an
amendment changes or clarifies the law. In Rogers, the Supreme Court held that
transportation of a controlled substance did not have a requirement that the transportation
be intended for sale. The Legislature did not clarify that decision when it added the for
sale requirement, it legislatively overruled Rogers.
       Since defendant’s convictions were final before the Legislature added the sale
requirement to sections 11352 and 11379, and those changes did not merely clarify
existing law, the new definition of transportation did not apply to his convictions under
those statutes.
                                      DISPOSITION
       The judgment is affirmed.



                                             /s/
                                           Blease, Acting P. J.


We concur:


         /s/
       Robie, J.


         /s/
       Hoch, J.


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