Filed 3/29/18




      IN THE SUPREME COURT OF CALIFORNIA


THE PEOPLE,                          )
                                     )
           Plaintiff and Respondent, )
                                     )                              S231826
           v.                        )
                                     )                        Ct.App. 4/2 E063107
MARIO MARTINEZ,                      )
                                     )                        Riverside County
           Defendant and Appellant.  )                     Super. Ct. No. RIF136990
____________________________________)


        In November 2014, California voters enacted Proposition 47, which
reduced certain drug- and theft-related offenses from felonies to misdemeanors.
The initiative also authorizes inmates currently serving sentences for a reclassified
crime to petition the court for resentencing: “A person who, on November 5,
2014, was 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.” (Pen. Code, § 1170.18, subd. (a).)
        Defendant Mario Martinez filed a petition for resentencing on two felony
convictions for offenses he committed in 2007: one for possession of



                          SEE CONCURRING OPINION
methamphetamine, the other for transportation of methamphetamine. The district
attorney agreed that Proposition 47 reduced the possession offense to a
misdemeanor, and the trial court found Martinez eligible for resentencing on that
offense. But the trial court, observing that Proposition 47 did not expressly reduce
the transportation offense to a misdemeanor, found Martinez ineligible for
resentencing on the transportation offense.
       On appeal, Martinez argued that he is eligible for resentencing on the
transportation offense because the electorate passed Proposition 47 against the
backdrop of a 2013 enactment providing that transportation of drugs without intent
to sell is no longer a felony. The Court of Appeal rejected this argument, holding
that only offenders convicted of a felony offense enumerated in Proposition 47’s
resentencing provision may have their crimes reduced to misdemeanors. As our
recent opinion in People v. Page (2017) 3 Cal.5th 1175, 1182–1187 (Page)
indicates, this reasoning by the Court of Appeal was erroneous. But the Court of
Appeal further explained that Martinez is ineligible for resentencing because “[i]f
Proposition 47 had been in effect when defendant committed his offense in 2007,
he would still be guilty of a felony not covered by Proposition 47 . . . .” We affirm
the judgment of the Court of Appeal on this latter ground.
                                          I.
       In May 2007, police arrested Martinez after stopping a car in which he was
a passenger and discovering a plastic bag containing methamphetamine near his
feet. A jury convicted him of transportation of methamphetamine (Health & Saf.
Code, former § 11379, as amended by Stats. 2001, ch. 841, § 7) and possession of
methamphetamine (Health & Saf. Code, former § 11377, as amended by Stats.
2002, ch. 664, § 131). (All undesignated statutory references are to the Health and
Safety Code.) The trial court sentenced Martinez to eight years in state prison for
the transportation offense and to four additional years in light of his prior

                                           2
convictions, for a total sentence of 12 years. The court stayed his sentence for the
possession offense pursuant to Penal Code section 654. The judgment became
final in 2010.
         Section 11379 prohibits the illegal transportation of certain controlled
substances, including methamphetamine. At the time that Martinez’s conviction
became final, the statute prohibited the unlawful transportation of a controlled
substance for any reason. (See People v. Rogers (1971) 5 Cal.3d 129, 137
(Rogers) [illegal transportation of marijuana “requires only a knowing
transportation . . . whether for personal use, sale, distribution or otherwise”];
People v. Eastman (1993) 13 Cal.App.4th 668, 673–677 (Eastman) [affirming
conviction for transportation of methamphetamine intended solely for personal
use].) The transportation element of the offense was satisfied so long as the
defendant knowingly moved the substance a minimal distance. (See People v.
Ormiston (2003) 105 Cal.App.4th 676, 682 [“ ‘The crux of the crime of
transporting is movement of the contraband from one place to another.’ ”]; People
v. Emmal (1998) 68 Cal.App.4th 1313, 1318.)
         In 2013, the Legislature narrowed the transportation statute by specifying
that “[f]or purposes of this section, ‘transports’ means to transport for sale.”
(Assem. Bill No. 721 (2013–2014 Reg. Sess.) § 2; see Health & Saf. Code,
§ 11379, subd. (c).) In light of this amendment to section 11379, the possession
and movement of methamphetamine for personal use, without intent to sell, can be
charged only as a possession offense under section 11377. (See Assem. Com. on
Pub. Saf., Rep. on Assem. Bill No. 721 (2013–2014 Reg. Sess.) Feb. 21, 2013,
p. 3.)
         In November 2014, the voters passed Proposition 47, The Safe
Neighborhoods and Schools Act, which reduced certain drug- and theft-related
offenses from felonies or “wobblers” to misdemeanors. Proposition 47

                                            3
reclassified some offenses by amending the statutes that defined those crimes. As
relevant here, Proposition 47 amended section 11377 to punish as a misdemeanor
the possession of a controlled substance. (Voter Information Guide, Gen. Elec.
(Nov. 4, 2014) text of Prop. 47, § 13, p. 73 (Voter Information Guide).) In other
instances, Proposition 47 added new provisions to the Penal Code carving out a
lesser crime from a preexisting felony (see id., § 5, p. 71 [creating Penal Code
section 459.5 to distinguish the misdemeanor of “shoplifting” from the felony of
burglary]) or redefining how a term is understood throughout the California Codes
(see id., § 8, p. 72 [adding Penal Code section 490.2 to lower the potential
punishment for certain categories of grand theft “[n]otwithstanding . . . any other
provision of law defining grand theft”]). Through its various provisions,
Proposition 47 made clear that certain types of criminal conduct once punishable
as felonies now constitute only misdemeanors.
       Proposition 47 also established a process through which an offender
currently serving a sentence for a reclassified crime may petition the trial court to
have his or her punishment reduced. That procedure is set forth in Penal Code
section 1170.18(a), which we discuss further below.
       On November 13, 2014, Martinez petitioned the court for resentencing on
both of his convictions pursuant to Penal Code section 1170.18(a). The district
attorney, while agreeing that his sentence should be reduced for the possession
conviction under former section 11377, argued that Martinez was ineligible for
resentencing on his transportation conviction under former section 11379.
Martinez countered that 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 for that
conviction as well.



                                          4
       The trial court granted Martinez’s petition as to the possession conviction
but denied it as to the transportation conviction, finding that Proposition 47 did not
apply to convictions under former section 11379. In an unpublished opinion, the
Court of Appeal affirmed the partial denial. Observing that Penal Code
section 1170.18(a) authorizes resentencing in accordance with a list of nine
statutory provisions and that section 11379 does not appear in the list, the Court of
Appeal concluded that the Legislature intended to exclude section 11379 from
reclassification. The court also rejected Martinez’s argument that the 2013
amendments to section 11379 were made applicable to his conviction via
Proposition 47. We granted review.
                                         II.
       We begin with the Court of Appeal’s reasoning that Martinez is ineligible
for resentencing because section 11379 is not one of the nine code sections
enumerated in Penal Code section 1170.18(a). As we recently explained, the
requirement that resentencing occur “in accordance with” one of the nine code
sections listed in Penal Code section 1170.18(a) does not make resentencing
eligibility contingent upon the petitioner having been convicted under one of those
provisions. (Page, supra, 3 Cal.5th at p. 1184.) It is illogical to limit Proposition
47-eligible felonies only to convictions under the listed statutes because, as noted
above, two of the listed statutes (Penal Code sections 459.5 and 490.2) were
themselves created by Proposition 47, “which means that no defendant could have
been serving a felony sentence for these offenses on the initiative’s effective date.”
(Page, at p. 1185; see People v. Romanowski (2017) 2 Cal.5th 903, 910.) A
“straightforward reading” of Penal Code section 1170.18(a)’s text led us to
conclude in Page that defendants convicted of a felony for stealing vehicles worth
$950 or less, including under Vehicle Code section 10851 (a provision not listed in
Penal Code section 1170.18(a)), are eligible for resentencing because they “would

                                          5
have been guilty only of a misdemeanor had [Penal Code] section 490.2 been in
effect at the time.” (Page, at pp. 1187, 1184.)
       Accordingly, the mere fact that section 11379 is not one of the code
sections enumerated in Penal Code section 1170.18(a) is not fatal to Martinez’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 . . . .” (Pen. Code, § 1170.18(a).)
                                         III.
       We now consider the application of this eligibility requirement to this case.
Martinez does not dispute that he was validly convicted under section 11379 as it
existed at the time of his offense, nor does he dispute that Proposition 47 did not
expressly amend section 11379. Martinez also acknowledges that the
Legislature’s 2013 amendment to section 11379 did not apply retroactively to his
2010 conviction.
       Martinez contends that his transportation offense should come within the
ambit of Proposition 47 because the amendment to section 11379 narrowing the
definition of “transport” to “transport for sale” took effect on January 1, 2014, ten
months before the voters passed Proposition 47. The electorate “is presumed to be
aware of existing laws” when it enacts an initiative. (In re Lance W. (1985) 37
Cal.3d 873, 890, fn. 11.) Thus, we presume that when the electorate passed
Proposition 47, it understood and intended that unlawful transportation of
methamphetamine without proof of transport for sale could only result in
conviction of a misdemeanor possession offense under section 11377, one of the
statutes “amended . . . by [Proposition 47].” (Pen. Code, § 1170.18(a).) In light of
the electorate’s intent, Martinez argues, the evidence that he possessed and

                                          6
transported methamphetamine, without proof that he transported it for sale, meant
that he “would have been guilty of a misdemeanor under [Proposition 47] had
[Proposition 47] been in effect at the time of the offense . . . .” (Id., § 1170.18(f).)
       The Court of Appeal was correct to reject this argument on the ground that
had Proposition 47 been in effect at the time of Martinez’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. (See Voter Information Guide, supra, text of Prop. 47,
§§ 11–13, pp. 72–73.) As noted, the amendment to section 11379 clarifying that
“ ‘transports’ means to transport for sale” (§ 11379, subd. (c)) did not become
effective until 2014, more than three years after Martinez’s conviction had become
final. Because Proposition 47 did not reduce the transportation of a controlled
substance from a felony to a misdemeanor, Martinez is ineligible for resentencing
on that offense.
       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. (See Voter Information Guide, supra, text of
Prop. 47, § 3, p. 70 [“In enacting this act, it is the purpose and intent of the people
of the State of California to . . . [r]equire misdemeanors instead of felonies for
nonserious, nonviolent crimes like petty theft and drug possession . . . .” (italics
added)]; Voter Information Guide, supra, analysis of Prop. 47 by Legis. Analyst,
p. 35.) 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.

                                           7
       Moreover, we have said it is reasonable to treat drug transportation as a
more serious crime than drug possession. (See Rogers, supra, 5 Cal.3d at p. 136
[“[T]he Legislature was entitled to assume that the potential for harm to others is
generally greater when narcotics are being transported from place to place, rather
than merely held at one location. The Legislature may have concluded that the
potential for increased traffic in narcotics justified more severe penalties for
transportation than for mere possession or possession for sale . . . .”]; see also
Eastman, supra, 13 Cal.App.4th at p. 676 [“[T]he act of transportation
substantially increases the risks to the public. [Citation.] Thus, a prohibition on
the simple transportation of drugs affects the transporter’s ability to make sales or
purchases of contraband; it reduces the risks of traffic accidents due to drivers
under the influence; and it arguably even reduces the frequency of personal drug
use by discouraging users from carrying supplies in vehicles”].) The Legislature
continues to punish transportation of contraband for sale more severely than
possession of contraband for sale. (Compare § 11379 with § 11378.)
Reclassifying drug possession, but not drug transportation, as a misdemeanor is
therefore consistent with Proposition 47’s stated goal of reducing punishment for
nonserious crimes.
       Martinez argues that the Legislature’s 2013 amendment to the
transportation statute clarifying that “ ‘transports’ means to transport for sale”
(§ 11379, subd. (c)) must inform our understanding of the reclassified offenses for
which Proposition 47 authorizes resentencing. We presume that the voters who
enacted Proposition 47 were aware that section 11379 had been amended in 2013
and that a person convicted under the former version of section 11379 for
possessing and transporting contraband for personal use, without intent to sell,
could today be charged only under section 11377. However, the voters authorized
resentencing only for persons serving a felony sentence “who would have been

                                           8
guilty of a misdemeanor under th[is] act . . . had this act been in effect at the time
of the offense . . . .” (Pen. Code, § 1170.18(a), italics added.) Proposition 47
could have been written to reduce to a misdemeanor any drug offense without
intent to sell. (Cf. Pen. Code, § 490.2, subd. (a) [reclassifying as a misdemeanor
“any” theft offense where the value of property taken is less than $950]; Page,
supra, 3 Cal.5th at p. 1184.) 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, Martinez’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.
       Martinez further contends that the 2013 amendment to section 11379
implicitly amended section 11377. According to Martinez, when the Legislature
amended section 11379 to clarify that “transport” means “transport for sale,”
section 11377 “became the exclusive statute to criminalize acts of transportation
of contraband” for personal use. He argues that the Legislature, by narrowing
section 11379, implicitly broadened the scope of section 11377 and that his
transportation conviction, obtained without proof of intent to sell, should now be
construed as falling under section 11377 and thus reducible to a misdemeanor.
       Even assuming Martinez transported the drugs without intent to sell, his
point falls short. The Legislature’s amendment of section 11379 to specify that
“transport” means “transport for sale” did not shift the unlawful transportation of
drugs for all other reasons to section 11377. 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

                                          9
covered by Proposition 47. (See Rogers, supra, 5 Cal.3d at p. 134 [“Although
possession is commonly a circumstance tending to prove transportation, it is not
an essential element of that offense and one may ‘transport’ marijuana or other
drugs even though they are in the exclusive possession of another” (fn. omitted)].)
The 2013 amendment to section 11379 simply means that transportation of a
controlled substance without intent to sell is no longer a distinct criminal offense.
       Martinez’s position assumes that the 2013 amendment to section 11379
could have some bearing on the proper treatment of the offense he committed in
2007, even though his conviction for that offense became final in 2010. But “in
the absence of an express retroactivity provision . . . [or] unless it is very clear
from extrinsic sources that the Legislature or the voters must have intended a
retroactive application,” ameliorative legislation does not affect convictions that
have become final. (Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1209.)
Thus, even assuming the 2013 amendment implicitly broadened section 11377,
that change was not retroactive and could not provide any basis for reopening
Martinez’s final judgment of conviction under section 11379.




                                           10
                                 CONCLUSION
       We affirm the judgment of the Court of Appeal.

                                                        LIU, J.


WE CONCUR:

CANTIL-SAKAUYE, C. J.
CHIN, J.
CORRIGAN, J.
CUÉLLAR, J.
KRUGER, J.
SEGAL, J.*




*      Associate Justice of the Court of Appeal, Second Appellate District,
Division Seven, assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.

                                         11
                        CONCURRING OPINION BY LIU, J.

       In 2013, the Legislature amended Health and Safety Code section 11379 to ensure
that only transportation of contraband “for sale” could be prosecuted under that section.
(Health & Saf. Code, § 11379, subd. (c); all undesignated statutory references are to this
code.) Before that amendment, transportation of contraband without intent to sell could
and sometimes did result in a conviction under section 11379. Defendant Mario Martinez
says that he suffered such a conviction under section 11379 and that his underlying
conduct could be prosecuted today only as unlawful drug possession under section
11377. But Martinez cannot receive the benefit of the 2013 amendment because it does
not apply retroactively to already-final convictions like his. And he cannot receive the
benefit of Proposition 47’s resentencing provisions because whereas convictions under
section 11377 fall within the ameliorative scope of Proposition 47, convictions under
section 11379 do not. (Maj. opn., ante, at pp. 7–9.)
       Today we decide that a faithful application of Proposition 47’s text compels our
holding. But there is reason to wonder whether excluding individuals like Martinez from
the ameliorative scope of Proposition 47 was an oversight. A key purpose of Proposition
47 is to “[r]equire misdemeanors instead of felonies for nonserious, nonviolent crimes
like . . . drug possession.” (Voter Information Guide, Gen. Elec. (Nov. 4, 2014) text of
Prop. 47, § 3, p. 70.) When Proposition 47 was drafted and put before the voters in 2014,
the Legislature’s amendment to section 11379 had made it unnecessary to consider
whether section 11379 convictions should be included within the scope of the
proposition, since transportation of drugs without intent to sell could no longer be

                                             1
charged under section 11379. This left people like Martinez out of luck, and it is of
course the electorate’s prerogative to decline to make ameliorative measures retroactive.
But what is striking here is that the electorate (1) required nonserious, nonviolent drug
possession crimes to be punished as misdemeanors, not felonies, and (2) made these
changes retroactive through Proposition 47’s resentencing provisions, and yet (3)
neglected to include within Proposition 47’s ameliorative scope a set of persons who
committed nonserious, nonviolent drug possession crimes with no intent to sell.
       Although our holding today follows from the text of Proposition 47, it is not clear
that the issue presented is one that the initiative’s proponents or the electorate really
anticipated. The Legislature may wish to consider whether to extend resentencing
eligibility to persons like Martinez, given Proposition 47’s purpose of requiring
nonserious, nonviolent drug possession offenses to be punished as misdemeanors, not
felonies.


                                                          LIU, J.

WE CONCUR:

CUÉLLAR, J.
KRUGER, J.
SEGAL, J.*




*      Associate Justice of the Court of Appeal, Second Appellate District, Division
Seven, assigned by the Chief Justice pursuant to article VI, section 6 of the California
Constitution.
                                               2
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Martinez
__________________________________________________________________________________

Unpublished Opinion XXX NP opn. filed 12/15/15 – 4th Dist., Div. 2
Original Appeal
Original Proceeding
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No. S231826
Date Filed: March 29, 2018
__________________________________________________________________________________

Court: Superior
County: Riverside
Judge: Becky Lynn Dugan

__________________________________________________________________________________

Counsel:

Cindi Beth Mishkin, under appointment by the Supreme Court, and Sylvia W. Beckham, under appointment by the
Court of Appeal, for Defendant and Appellant.

Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie
L. Garland, Assistant Attorney General, A. Natasha Cortina, Meagan J. Beale, Parag Agrawal, Steven T. Oetting,
Michael Pulos and Warren J. Williams, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Cindi Beth Mishkin
Appellate Defenders, Inc.
555 West Beech Street, Suite 300
San Diego, CA 92101
(619) 696-0282

Warren J. Williams
Deputy Attorney General
600 West Broadway, Suite 1800
San Diego, CA 92101
(619) 738-9059
