Filed 4/13/17; pub. & mod. order 4/20/17 (see end of opn.)




             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA


                                   THIRD APPELLATE DISTRICT


                                                     (Yolo)
                                                       ----



THE PEOPLE,                                                           C082363

                 Petitioner,                                  (Super. Ct. No. CRF065575)

        v.

THE SUPERIOR COURT OF YOLO COUNTY,

                 Respondent;

MARGARITA MERCED RODAS,

                 Real Party in Interest.




        Real Party in Interest Margarita Merced Rodas was granted probation in 2007 after
entering a negotiated plea of no contest to transporting heroin under former Health and
Safety Code section 11352. (Unless otherwise set forth, statutory references that follow
are to the Health and Safety Code.) At the time, the statute prohibited transporting a


                                                        1
controlled substance for personal use. (Former § 11352, subd. (a).) After violating
probation on several occasions, Rodas eventually absconded and her whereabouts were
unknown until 2015 when she appeared in court and filed a motion to vacate her felony
transportation conviction and replace it with a misdemeanor sentence for simple
possession. Rodas sought the retroactive benefit of a 2014 statutory amendment to
section 11352 that required transportation for sale rather than merely for personal use.
(§ 11352, subd. (a).) The trial court later granted her oral motion to withdraw her plea
and reinstated the original charges.
       The People petitioned for a writ of mandate directing the trial court to vacate its
order allowing Rodas to withdraw her nearly nine year old plea. According to the
People, Rodas’ conviction had long been final for review purposes because she did not
challenge the probation order within the six-month time limit set forth in Penal Code
section 1018. The court thus acted in excess of its jurisdiction in granting the motion
because Rodas was not entitled either to withdraw her plea or to the retroactive benefit of
the intervening amendment to section 11352. We agree the trial court exceeded its
jurisdiction by granting Rodas’ motion to withdraw her no contest plea. The ruling
vacating the no contest plea and reinstating the charges is reversed and the matter is
remanded to the trial court for appropriate proceedings on the probation violation
allegation.

                                 FACTS AND PROCEEDINGS

       Based on an incident in October 2006, Rodas was charged with unlawfully
transporting heroin (count 1), morphine (count 3), and hydrocodone (count 5) (former
§ 11352, subd.(a)), and unlawfully possessing heroin (count 2), morphine (count 4), and
hydrocodone (count 6) (former § 11350, subd. (a)). The complaint also alleged a prior
conviction for transportation of a controlled substance (enhancements a & b).
(§ 11370.2, subd. (a).)


                                             2
       In July 2007, Rodas pleaded no contest to the count 1 transportation of heroin
charge in exchange for dismissal of all remaining charges and enhancements. The felony
plea form specifically states that she transported heroin “for personal use.” Pursuant to
Proposition 36, also known as the Substance Abuse and Crime Prevention Act of 2000,
the court suspended imposition of sentence and, pursuant to the plea agreement, granted
Rodas three years probation with various terms and conditions. (Pen. Code, § 1210.1,
subd. (a).) She did not appeal her conviction.
       In October 2007, a few months after entering her plea, the court revoked Rodas’
probation for allegedly violating certain probation conditions. The violation of probation
was eventually dismissed in December 2007 and Rodas was reinstated to probation under
the original terms and conditions.
       A second violation of probation was filed in April 2008 alleging Rodas failed to
enter into and complete a drug treatment program. A month later, Rodas admitted the
violation and the court reinstated probation.
       A third violation of probation was filed in November 2008 alleging multiple
violations. The probation officer recommended excluding Rodas from further
Proposition 36 probation because she was unable or unwilling to comply with her
probation terms. Despite this recommendation, after admitting the violation in December
2008, the court reinstated Rodas on probation.
       In May 2009, a fourth violation of probation was filed against Rodas. The court
revoked probation and ordered Rodas to appear for arraignment on the violation. Rodas,
however, failed to appear and a bench warrant was later issued for her arrest.
       Rodas’ whereabouts remained unknown until 2015 when the public defender
placed her cases on calendar to recall the outstanding warrant. In October 2015, after the
amendment of section 11352 and the passage of Proposition 47, Rodas moved to vacate
her felony conviction for transporting heroin (§ 11352, subd. (a)) and replace it with a
misdemeanor conviction for possessing heroin (§ 11350, subd. (a)). Rodas argued that

                                                3
because the court suspended imposition of her sentence and granted her probation, no
final judgment had ever been entered in her case. She was thus entitled to the retroactive
benefit of section 11352’s amended definition of “transports,” which required
transportation for sale and not simply transportation for personal use.
        The People responded that such a remedy was improper and that Rodas should
have, but did not, file a motion to withdraw her plea. After Rodas’ counsel made an oral
motion to withdraw her plea at the hearing, the court granted the motion and reinstated all
of the counts and enhancements originally charged in the complaint.
       The People originally appealed the court’s ruling, but we dismissed the appeal for
lack of an appealable order. The People then filed the instant writ petition. After this
court issued an alternative writ to the Superior Court of Yolo County to show cause why
the petition for writ of mandate should not be granted, Rodas filed an answer and
opposed the petition.

                                       DISCUSSION

       When Rodas pleaded no contest in 2007, section 11352, subdivision (a) provided
that any person who “transports” specified controlled substances including heroin shall
be punished by imprisonment. (§ 11352, subd. (a); Stats. 2000, ch. 8, § 5.) At the time,
courts had interpreted the word “transports” to include transporting controlled substances
for personal use. (See e.g., People v. Rogers (1971) 5 Cal.3d 129, 134-135; People v.
Eastman (1993) 13 Cal.App.4th 668, 673-677.)
       Effective January 1, 2014, the Legislature amended section 11352 by adding
subdivision (c), which provides, “For purposes of this section, ‘transports’ means to
transport for sale.” (§ 11352, subd. (c); Stats. 2013, ch. 504, § 1.) The amendment
intended to criminalize the transportation of drugs for the purpose of sale and not the
transportation of drugs for personal use. (See Assem. Floor Analysis, Conc. in Senate
Amend., Analysis of Assembly Bill No. 721 (2013-2014 Reg. Sess.) as amended June 27,


                                             4
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’ ”].)
       Following the statute’s amendment, “transportation of heroin for personal use no
longer constitutes a violation of section 11352.” (People v. Ramos (2016)
244 Cal.App.4th 99, 102 (Ramos).) “The practical effect of this amendment is that
transportation of heroin for sale as opposed to personal use is now an element of the
offense that must be decided by a jury by proof beyond a reasonable doubt.” (Id. at
pp. 102-103.)
       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) [“If
the amendatory statute lessening punishment becomes effective prior to the date the
judgment of conviction becomes final then, in our opinion, it, and not the old statute in
effect when the prohibited act was committed, applies”].) While the parties agree on this
general proposition, they disagree over whether Estrada applies in this case.
       The People contend Rodas’ conviction was final for purposes of review at the time
the amendment to section 11352 took effect, and, thus, she was not entitled to relief under
Estrada. They primarily base their finality argument on the interplay between two
statutes, Penal Code section 1018, which addresses when a guilty plea may be withdrawn,
and Penal Code section 1237, which delineates when a criminal defendant may appeal.
(Pen. Code, §§ 1018, 1237, subds. (a) & (b).)
       Penal Code section 1018 provides, in pertinent part, “On application of the
defendant at any time before judgment or within six months after an order granting

                                              5
probation is made if entry of judgment is suspended, the court may, and in case of a
defendant who appeared without counsel at the time of the plea the court shall, for a good
cause shown, permit the plea of guilty to be withdrawn and a plea of not guilty
substituted . . . .This section shall be liberally construed to effect these objects and to
promote justice.” (Italics added.)
       Penal Code section 1237 delineates when a defendant may appeal from a final
judgment of conviction. (Pen. Code, § 1237, subd. (a).) An order granting probation is
identified in Penal Code section 1237 as a “final judgment” for purposes of taking an
appeal. (Ibid.)
       Based on the above statutory provisions, the People argue that Rodas had to move
to withdraw her no contest plea within six months of the court’s order granting probation.
Once that time period passed without any such motion having been filed, the court lacked
jurisdiction to allow Rodas to withdraw her plea. And, because Rodas could have but did
not appeal the probation order under Penal Code section 1237, the judgment of
conviction is now final for retroactivity purposes because she is precluded from
challenging the underlying conviction in any subsequent appeal.
       Rodas, on the other hand, argues that there has never been a sentence or final
judgment in her matter because the court suspended imposition of sentence and granted
her Proposition 36 probation. (Pen. Code, § 1210.1, subd. (a) [Proposition 36
“[p]robation shall be imposed by suspending the imposition of sentence”].) In her view,
in the absence of any such final judgment, the ameliorative benefit of the amendment to
section 11352 would apply under Estrada.
       In defending the challenged order, Rodas cites this court’s recent decision in
People v. Eagle (2016) 246 Cal.App.4th 275 (Eagle), which involved an identical
amendment to section 11379 concerning the transportation of methamphetamine. She
similarly relies on Ramos, supra, 244 Cal.App.4th at page 103, which considered the
amendment to section 11352 at issue here.

                                               6
       While it is true that both Eagle and Ramos applied the respective amendments to
sections 11352 and 11379 retroactively, the People in those cases, unlike here, conceded
Estrada applied. (Eagle, supra, 246 Cal.App.4th at p. 279; Ramos, supra,
244 Cal.App.4th at p. 103.) None of the parties in Eagle referenced Penal Code section
1018, however. (See Eagle, supra, 246 Cal.App.4th at pp. 278-280.) Nor did they
address the effect of the statute on a trial court’s jurisdiction to grant an untimely motion
to withdraw a guilty plea. (Ibid.)
       The defendant in Ramos, moreover, appealed her conviction following a jury trial.
(Ramos, supra, 244 Cal.App.4th at p. 100.) It was during the pendency of the appeal that
the court accepted the parties’ concession that the amendment to section 11352 applied
under Estrada. (Id. at pp. 102-103.) The fact that the amendment applied under the
circumstances presented in Ramos, however, is unremarkable. (See People v. Yearwood
(2013) 213 Cal.App.4th 161, 171-172 [“ ‘Cases in which judgment is not yet final
include those in which a conviction has been entered and sentence imposed but an appeal
is pending when the amendment becomes effective’ ”].) The People’s concession in
Ramos simply does not shed light on whether the trial court had jurisdiction to allow
Rodas to withdraw her plea in this case.
       Because appellate opinions are not authority for unconsidered propositions
(Palmer v. GTE California, Inc. (2003) 30 Cal.4th 1265, 1278), and Eagle and Ramos do
not mention Penal Code section 1018, those decisions are of no help in determining the
effect of the statute on Rodas’ ability to belatedly withdraw her guilty plea. Now that the
issue is squarely before us, we conclude the People have the better argument.
       In 1991, the Legislature amended Penal Code section 1018 by adding the language
that permits withdrawal of a guilty plea for good cause “within six months after an order
granting probation is made if entry of judgment is suspended.” (Stats. 1991, ch. 421, § 1
(Assem. Bill No. 2174) (1991-1992 Reg. Sess.); see also People v. Miranda (2004)
123 Cal.App.4th 1124, 1131-1133 (Miranda).) In amending the statute, the Legislature

                                              7
intended “to eliminate late withdrawal of pleas and the resultant jeopardy to the
prosecution caused by the passage of time.” (Sen. Com. on Judiciary, analysis of Assem.
Bill No. 2174 (1991-1992 Reg. Sess.) as amended May 30, 1991.)
       According to the enrolled bill report, “The purpose of this bill is to eliminate late
withdrawal of pleas which often prejudices the prosecution because of the passage of
time. . . . [¶] The Attorney General states that ‘defendants who have already received the
benefit of probation should not be entitled to greater rights to withdraw their guilty pleas
than other defendants who are sentenced to state prison.’ Also, a lengthy delay after the
original plea of guilty may result in missing witnesses, faulty recollections, and other
problems in bringing the case to trial.” (Off. of Criminal Justice Planning, Enrolled Bill
Rep. on Assem. Bill No. 2174 (1991-1992 Reg. Sess.) Sept. 5, 1991.)
       Given the above legislative history, the court in Miranda deemed Penal Code
section 1018’s six-month time limit for withdrawing a guilty plea after an order granting
probation with entry of judgment suspended mandatory rather than directory. (Miranda,
supra,123 Cal.App.4th at p. 1133.) According to the court, “in view of the fundamental
and sole stated purpose for the amendment, the time limit must be deemed mandatory.”
(Ibid.) Reading the statute otherwise, the court observed, “would obviate the purpose of
the amendment.” (Ibid.) We agree.
       Because the six-month time limitation in Penal Code section 1018 is mandatory,
the trial court had no discretion to disregard the failure to file a timely motion to
withdraw. (Miranda, supra,123 Cal.App.4th at p. 1126.) Where, like here, a defendant
moves to withdraw his or her guilty or no contest plea beyond the period proscribed in
Penal Code section 1018, the court lacks jurisdiction to consider or grant the motion. (Id.
at p. 1134.) Thus, the trial court exceeded its jurisdiction in granting Rodas’ motion to
withdraw her plea.
       Rodas’ contention that Penal Code section 1018 does not apply because she does
not seek a “statutory remedy in nature” is without merit. The statute governs when a trial

                                               8
court may grant a motion to withdraw a guilty plea (Pen. Code, § 1018), which is
precisely what Rodas asked the trial court to do below.
       We also conclude that In re May (1976) 62 Cal.App.3d 165, 167-169 (May),
which Rodas argues should control the instant matter, does not dictate a different result.
There, the court granted a petition for writ of habeas corpus to set aside the trial court’s
order modifying probation to include a jail term after the Legislature had amended the
statute to which the defendant pleaded guilty to make the offense a misdemeanor
punishable by a fine. May was decided decades before the Legislature amended Penal
Code section 1018 to include the strict six-month time limit for withdrawing a guilty plea
when the court grants probation. (Stats. 1991, ch. 421, § 1 (Assem. Bill No. 2174) (1991-
1992 Reg. Sess.).) Because May did not consider Penal Code section 1018 and the
statute’s affect on a court’s jurisdiction to grant a belated motion to withdraw a no contest
plea, the opinion is not helpful.
       Even if In re May was not distinguishable on that ground, we question the
continued viability of the court’s conclusion that the defendant’s conviction was not final
for retroactivity purposes under Estrada.1 (May, supra, 62 Cal.App.3d at p. 169.) “State
convictions are final ‘for purposes of retroactivity analysis when the availability of direct
appeal to the state courts has been exhausted and the time for filing a petition for writ of
certiorari has elapsed or a timely filed petition has been finally denied.’ [Citations.] ”
(Beard v. Banks (2004) 542 U.S. 406, 411 [159 L.Ed.2d 494].)
       As the People point out, because the order granting probation constitutes a final
judgment of conviction under Penal Code section 1237 (Pen. Code, § 1237, subd. (a)),



1 People v. Amons (2005) 125 Cal.App.4th 855, 869, fn. 8, in dicta, also appears to
recognize that a defendant who is granted probation with imposition of sentence
suspended is entitled to the retroactive benefit of a change in the law even though the
judgment of conviction is final for purposes of appeal. For the same reasons, we
disagree.

                                              9
the order was directly appealable. (Pen. Code, § 1237, subd. (a).) Under section 1237 of
the Penal Code, a defendant may challenge the merits of his conviction on an appeal from
the order granting probation. (People v. Howard (1965) 239 Cal.App.2d 75, 77.) If the
time to appeal the probation order lapses without an appeal having been taken, however,
the defendant may not thereafter challenge the underlying conviction when appealing a
subsequent order revoking probation and imposing a suspended sentence. (Ibid. [“Since
no appeal was taken within the allowable time from this [probation] order, appellant is
now precluded from going behind the order granting probation” to challenge the merits of
his conviction]; see also People v. Glaser (1965) 238 Cal.App.2d 819, 821 [following
revocation of probation after imposition of sentence had been suspended, the defendant
was precluded from challenging any matters giving rise to his conviction and the ensuing
order granting him probation because he failed to timely perfect an appeal under Penal
Code section 1237 from the probation order], disapproved on another ground by People
v. Barnum (2003) 29 Cal.4th 1210, 1219, fn.1 & 1221.)
       Penal Code section 1237.5 and the implementing rules of court, moreover, make it
clear that Rodas had 60 days to file a notice of appeal from the probation order and a
statement of reasons for issuance of a certificate of probable cause. (Pen. Code,
§ 1237.5; Cal. Rules of Court, rules 8.304, subds. (a) & (b) & 8.308, subd. (a).) This she
did not do. Nor did she petition the United States Supreme Court for a writ of certiorari
challenging the judgment of conviction. (See U.S. Supreme Ct. Rules, rule 13(1) [a
petition for writ of certiorari seeking review of a state court judgment must be filed
within 90 days after entry of the judgment].)
       A defendant seeking appellate review following a plea of guilty or no contest,
however, must “fully and timely comply with both” Penal Code section 1237.5 and the
rules of court implementing the statute. (In re Chavez (2003) 30 Cal.4th 643, 651
(Chavez) [discussing Penal Code section 1237.5 and Cal. Rules of Court, former rule
31(d) (now rule 8.308)].) “ ‘The purpose of the requirement of a timely notice of appeal

                                             10
is, self-evidently, to further the finality of judgments by causing the defendant to take an
appeal expeditiously or not at all.’ ” (Id. at p. 650.)
        Because Rodas did not appeal the court’s order granting probation, the judgment
of conviction for transporting heroin became final for retroactivity purposes in 2007. She
is not entitled, then, to the benefit of the amendment to section 11352, which became
effective nearly seven years later in 2014. In other words, in this context, although
imposition of Rodas’ sentence was suspended, the process to appeal the conviction based
on her no contest plea has ended, rendering final the conviction for retroactivity purposes.
(Danser v. Public Employees’ Retirement System (2015) 240 Cal.App.4th 885 [former
judge’s conviction by jury of felony, which was upheld on appeal, was final for purposes
of determining right to CALPERS credits even though the court suspended imposition of
sentence, granted probation, and later granted the defendant early termination of
probation and reduced his felony conviction to a misdemeanor under Penal Code section
17].)
        As our Supreme Court has recognized, “[s]trict adherence to procedural deadlines
and other requirements governing appeals that emanate from judgments entered upon
pleas of guilty or no contest is vital, in view of the circumstance that such judgments
represent the vast majority of felony and misdemeanor dispositions in criminal cases.”
(Chavez, supra, 30 Cal.4th at p. 654, fn. 5; italics added.) Allowing Rodas to withdraw
her plea and set aside the judgment of conviction at this late stage would violate the
important public policy of strictly adhering to procedural deadlines in these types of cases
and -- as noted by Chavez -- fundamentally undermine the finality of a majority of the
criminal matters in California.
        Such a result would also have the absurd effect of encouraging defendants to
violate the terms of their probation in the hopes of extending the probation term to take
advantage of any beneficial changes in the law during the probationary period. And it
would severely prejudice the People by virtue of the passage of time--the precise reason

                                              11
the Legislature amended Penal Code section 1018 to include the six-month limitation for
withdrawing guilty pleas. (Miranda, supra, 123 Cal.App.4th at p. 1133.)
       While we conclude the court lacked jurisdiction under Penal Code section 1018 to
allow Rodas to withdraw her plea, we recognize that the rules governing writs of coram
nobis may apply under the circumstances. In People v. Totari (2003) 111 Cal.App.4th
1202, 1206, for example, the court stated: “The ‘normal rules’ for withdrawal of a plea,
when the strict time limits set forth in Penal Code section 1018 have expired, are identical
to the rules for obtaining a writ of coram nobis.” Because Rodas did not petition for a
writ of coram nobis in the court below, however, we express no view as to the
applicability of, or availability of relief under, such a petition. (Miranda, supra,
123 Cal.App.4th at p. 1134, fn. 7.)

                                        DISPOSITION

       The order granting Rodas’ motion to withdraw her no contest plea to transporting
heroin is reversed. The matter is remanded for appropriate proceedings on the probation
violation allegation.



                                                         HULL                  , Acting P.J.


We concur:



      MURRAY                 , J.



      HOCH                   , J.




                                             12
Filed 4/20/17
                                CERTIFIED FOR PUBLICATION




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




THE PEOPLE,                                                       C082363

                  Petitioner,                            (Super. Ct. No. CRF065575)

        v.

THE SUPERIOR COURT OF YOLO COUNTY,                         ORDER MODIFYING
                                                          OPINION ON COURT’S
                  Respondent;                              OWN MOTION AND
                                                          CERTIFYING OPINION
MARGARITA MERCED RODAS,                                    FOR PUBLICATION

                  Real Party in Interest.               [CHANGE IN JUDGMENT]




        ORIGINAL PROCEEDINGS: Petition for Writ of Mandate from an order of the
Superior Court of Yolo County, Paul K. Richardson, Judge. Peremptory Writ issued.
        Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Senior Assistant Attorney General, Catherine Chatman and
R. Todd Marshall, Supervising Deputy Attorneys General, Larenda R. Delaini and
Nicholas M. Fogg, Deputy Attorneys General for Petitioner.
        No appearance for Respondent.


                                              1
       Tracie Olson, Public Defender, Ronald Johnson, Deputy Public Defender for Real
Party in Interest.




THE COURT:
       It is ordered that the opinion filed herein on April 13, 2017, be modified as
follows:
       1.      The last sentence in the second paragraph on page 2 beginning with “The
ruling vacating the no contest plea . . . .” is deleted and replaced with the following: “We
shall issue a peremptory writ of mandate directing the respondent superior court to vacate
its order granting the motion to withdraw the no contest plea.”
       2.      The paragraph under the heading “DISPOSITION” is deleted in its entirety.
The following paragraph is inserted in its place: “Let a peremptory writ of mandate issue
directing the respondent superior court to vacate its April 14, 2016, order granting the
oral motion of real party in interest to withdraw her guilty plea, and to further vacate the
court’s order reinstating the complaint, and to enter a new order denying the motion to
withdraw the guilty plea.”
       This modification changes the judgment. (Cal. Rules of Court, rules 8.264, subd.
(c) & 8.490, subd. (a).)




                                              2
       The opinion in the above-entitled matter filed on April 13, 2017, 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:




      HULL                  , Acting P.J.



      MURRAY                , J.



      HOCH                  , J.




                                             3
