Filed 1/22/16




                             CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                              FOURTH APPELLATE DISTRICT

                                      DIVISION THREE

THE PEOPLE,

    Plaintiff and Respondent,                         G050315

        v.                                            (Super. Ct. No. 13WF1004)

GLORIA RAMOS,                                         OPINION

    Defendant and Appellant.



                  Appeal from a judgment of the Superior Court of Orange County, Carla
Singer, Judge. Reversed in part, affirmed in part, and remanded for further proceedings.
                  Correen Ferrentino, under appointment by the Court of Appeal, for
Defendant and Appellant.
                  Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Melissa Mandel, Alana
Cohen Butler and Laura Baggett, Deputy Attorneys General, for Plaintiff and
Respondent.
              A jury found defendant Gloria Ramos guilty of several crimes, including
transportation of heroin (Health & Saf. Code, § 11352, subd. (a) (section 11352)), and
possession of methamphetamine for sale (Health & Saf. Code, § 11378 (section 11378)),
both with various firearm enhancements. The court granted probation and ordered
defendant to serve 365 days in jail.
              Defendant contends her transportation of heroin conviction must be
reversed, and may not be retried, in light of a recent amendment to section 11352 that
makes transportation for sale, i.e., non-personal use, an element of the charge. The
People concede the amendment applies, but argue the conviction should nevertheless be
affirmed under the harmless error standard of review. Alternatively, the People contend
retrial on the transportation of heroin charge is not barred by the double jeopardy clause.
              Defendant also contends her possession of methamphetamine for sale
conviction must be reversed because there is insufficient evidence to prove she harbored
any intent to personally sell the methamphetamine. The People disagree and argue there
is sufficient evidence defendant possessed the methamphetamine with the intent to sell it.
              We conclude the transportation of heroin conviction must be reversed and
remanded for further proceedings, but there is substantial evidence defendant possessed
the methamphetamine with the requisite intent to sell it, so we affirm that conviction.
                                          FACTS
              On April 4, 2013, Costa Mesa Police detectives George Maridakis and
Jacob Slechta, and Patrol Officer Sean Leffingwell were watching a Nissan Versa as part
of a narcotics investigation. The Nissan belonged to Roger Hernandez, defendant’s
husband and a well-known drug dealer. At one point the police observed Hernandez take
a duffle bag from someone he encountered on the street and put it in the trunk of the
Nissan. About 20 minutes later, Leffingwell stopped the Nissan at Maridakis’s direction.
Hernandez was the driver and defendant was the front seat passenger.



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              Maridakis asked Hernandez if there was anything illegal in the car.
Hernandez responded, “What’s going on[,]” while he manipulated something under his
seat and then reached for a large black purse sitting between defendant’s legs on the
floor. Maridakis told Hernandez to get out of his car and tried to grab Hernandez’s wrist.
Hernandez resisted and started to yell.
              At that point, Slechta told defendant to get out of the car. She appeared
nervous and made furtive glances at the black purse. She also repeatedly asked, “Why.”
Slechta grabbed defendant to pull her out of the car, and she screamed “hysterically.”
              Eventually, Hernandez and defendant were arrested and searched.
Hernandez was carrying $233 in cash. The officers also searched Hernandez’s car.
Inside the black purse, the officers found: a small plastic baggie containing a hairbrush,
deodorant, and hair ties; a small, silver metal case containing a digital scale, multiple
small, clear plastic bags, 16.8 grams of heroin, 2.9 grams of methamphetamine separated
into two baggies, a glass pipe, a round pill marked “Rx7,” and 28 rectangular pills
marked “G3722,” and an unregistered and loaded, .25-caliber pistol underneath the metal
case. In the duffle bag in the trunk, they found 13 hypodermic needles and Suboxone.
              Defendant agreed to be interviewed and voluntarily waived her Miranda
rights. (Miranda v. Arizona (1966) 384 U.S. 436.) She acknowledged the black purse
was hers, and admitted it had been within her control when she was in the car. However,
defendant denied knowing anything about the drugs and gun found inside her purse.
And, though she “had heard people say that [her husband] was possibly involved in drug
sales,” she did not believe these rumors.
              At trial, Maridakis opined defendant and Hernandez possessed the
methamphetamine for sale. He based this opinion on the amount of the drugs possessed,
the scale, cash, and baggies, and the fact some of the methamphetamine had been
packaged into smaller plastic baggies. As for the heroin, Maridakis testified defendant
and Hernandez possessed a usable quantity, but did not opine they possessed it for sale.

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                                        DISCUSSION
1. Transportation of Heroin - Section 11352
              When defendant was convicted, section 11352 made any transportation of
specified controlled substances, including heroin, punishable as a felony. Section 11352
then provided, “every person who transports . . . (1) any controlled substance specified in
subdivision . . . (c) . . . of Section 11054 . . . shall be punished by imprisonment . . . .” At
the time, section 11352 was interpreted to criminalize transportation of the specified
drugs for personal use. (People v. Rogers (1971) 5 Cal.3d 129, 134-135; People v.
Emmal (1998) 68 Cal.App.4th 1313, 1316.)
              After defendant was convicted, section 11352 was amended by adding
subdivision (c), which now provides, “For purposes of this section, ‘transports’ means to
transport for sale.” Accordingly, transportation of heroin for personal use no longer
constitutes a violation of section 11352. 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. (U.S. v.
Gaudin (1995) 515 U.S. 506, 510; People v. Flood (1998) 18 Cal.4th 470, 481.)
              Defendant contends, the People concede, and we agree, the amendment is
retroactive and it applies to defendant. (People v. Brown (2012) 54 Cal.4th 314, 319-320;
People v. Wright (2006) 40 Cal.4th 81, 90; People v. Collins (1978) 21 Cal.3d 208, 213;
People v. Rossi (1976) 18 Cal.3d 295, 301; In re Estrada (1965) 63 Cal.2d 740, 744-748;
Sekt v. Justice’s Court (1945) 26 Cal.2d 297, 304-306.)
              However, the parties do not agree what the application of the amendment
means here. Defendant contends, and we agree, her transportation of heroin conviction
must be reversed, because the jury did not determine whether the heroin she transported
was for sale rather than personal use. Further, defendant argues she cannot be retried
because the amendment decriminalized her transportation of the heroin in this case. This
argument must fail, because it presumes the heroin she transported was for personal use.

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              Defendant also suggests remand is inappropriate because Maridakis did not
opine the heroin was possessed for sale, and the evidence supports a theory of personal
use and simple possession. Defendant is not correct. “Where, as here, evidence is not
introduced at trial because the law at that time would have rendered it irrelevant, the
remand to prove that element is proper and the reviewing court does not treat the issue as
one of sufficiency of the evidence.” (People v. Figueroa (1993) 20 Cal.App.4th 65, 72.)
              The People, citing People v. Wright, supra, 40 Cal.4th at pages 98-99,
contend the transportation of heroin conviction need not be reversed, because the
omission of the sale or personal use element was harmless beyond a reasonable doubt
under the standard set forth in Chapman v. California (1967) 386 U.S. 18, 24. To this
end, the People argue the same evidence which supported defendant’s possession of
methamphetamine for sale conviction also supports the conclusion the heroin she
transported was not for personal use.
              We are not persuaded it is proper to assess the problem under the harmless
error rubric. In Wright, the retroactive application of a newly enacted affirmative defense
resulted in an instructional error which implicated the defendant’s “due process right to
present a defense . . . .” (People v. Wright, supra, 40 Cal.4th at p. 98.) In this case, the
retroactive application of the amendment impermissibly deprives defendant of her
constitutional right to a jury trial on an element of the charged offense. (People v.
Figueroa, supra, 20 Cal.App.4th at p. 71 [defendant entitled to have the jury decide every
essential element of the crime charged, no matter how compelling the evidence may be].)
But even if it is proper to assess the problem under the Chapman standard, under these
circumstances we cannot say omission of the sale or personal use element was harmless
beyond a reasonable doubt. Thus, the heroin transportation conviction must be reversed.
              Finally, the People contend, defendant does not dispute, and we conclude,
remand and retrial on the transportation of heroin charge is not barred by the double
jeopardy clause. (People v. Figueroa, supra, 20 Cal.App.4th at p. 72, fn. 2.)

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2. Possession of Methamphetamine for Sale - Section 11378
              Defendant contends her possession of methamphetamine for sale conviction
must be reversed because there is insufficient evidence to prove she personally harbored
any intent to sell the methamphetamine. We reject this claim.
              Our role when reviewing the sufficiency of the evidence is to evaluate the
whole record in the light most favorable to the judgment to determine whether it discloses
substantial evidence—evidence that is reasonable, credible, and of solid value—from
which a reasonable trier of fact could find the defendant guilty beyond a reasonable
doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 318-319; People v. Story (2009) 45
Cal.4th 1282, 1296; People v. Johnson (1980) 26 Cal.3d 557, 578.) Moreover, we must
accept any logical inferences the jury could have drawn from any circumstantial
evidence, because “it is the jury, not the appellate court that must be convinced of the
defendant’s guilt beyond a reasonable doubt.” (People v. Zamudio (2008) 43
Cal.4th 327, 357-358.)
              Defendant admitted ownership and control over her purse, and large
quantities of heroin and methamphetamine, a digital scale, and packaging materials were
found in it. Consequently, there is ample circumstantial evidence from which the jury
could reasonably infer she possessed the methamphetamine “with the intent of selling it
and with knowledge of both its presence and illegal character. [Citation.]” (People v.
Meza (1995) 38 Cal.App.4th 1741, 1745-1746.)
              Lastly, defendant points to In re Christopher B. (1990) 219
Cal.App.3d 455, 466, and argues possession for sale requires the defendant to possess the
controlled substance with the specific intent to personally sell it. We disagree. “[T]the
defendant needs to either (1) possess the specific intent to sell the controlled substance
personally, or (2) possess the specific intent that someone else will sell the controlled
substance.” (People v. Parra, (1999) 70 Cal.App.4th 222, 227; see also People v.
Consuegra (1994) 26 Cal.App.4th 1726, 1732, fn. 4.)

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                                      DISPOSITION
              The transportation of heroin conviction is conditionally reversed. On
remand, defendant is entitled to either admit the “transport for sale” element of the
current version of section 11352, or have a new jury trial on that charge. If she chooses
the former option, her sentence shall remain the same and the conviction on that charge
shall be reinstated as of that date. The judgment is affirmed in all other respects.




                                                  THOMPSON, J.

WE CONCUR:



RYLAARSDAM, ACTING P. J.



IKOLA, J.




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