Filed 6/15/16 P. v. Escobar 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
                                                         (Sutter)
                                                            ----



THE PEOPLE,                                                                                  C077328

                   Plaintiff and Respondent,                                   (Super. Ct. No. CRF13-2337)

         v.

GERONIMO ESCOBAR III,

                   Defendant and Appellant.




         A jury found Geronimo Escobar III guilty of transportation of marijuana (Health
& Saf. Code, § 11360, subd. (a))1 and driving on a suspended license (Veh. Code,
§ 14601.1, subd. (a)). Without suspending imposition of sentence, the trial court placed
defendant on three years of formal probation. On appeal, defendant contends, among
other things, under In re Estrada (1965) 63 Cal.2d 740 (Estrada), the recent amendments




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

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to section 11360 must be applied retroactively to require that we reverse his drug
transportation conviction. We agree and reverse defendant’s drug transportation
conviction and remand for possible retrial. The judgment is affirmed in all other respects.
                                      BACKGROUND
       At about 8:00 p.m. on September 12, 2013, defendant was stopped for speeding in
Sutter County by California Highway Patrol Officer Leo Smith. A female passenger was
riding in the front seat. As Officer Smith approached defendant’s vehicle, he detected a
strong odor of marijuana. Officer Smith advised defendant he had been stopped for
speeding and asked him where the marijuana was located. Defendant told Officer Smith
the marijuana was on the backseat. He then reached into the back seat and uncovered
two Ziploc bags containing approximately one pound of marijuana.2 Defendant also had
$1,200 in cash in his car, which he claimed was rent money due that day.
       Defendant admitted ownership of the marijuana as well as a small amount of
concentrated cannabis also in the vehicle. Defendant told Officer Smith he acquired
the marijuana in Sacramento earlier that day in exchange for a welding job. He explained
he had just left Oroville and was returning to his home in Sacramento.
       Defendant further explained he was authorized to use medical marijuana, and
he used up to four and a quarter ounces a day, although he noted he had not
consumed any marijuana on that day. Based on defendant’s stated amount of
marijuana consumption, Officer Smith concluded defendant possessed more
marijuana than his daily needs required. 3 As a consequence, Officer Smith seized the
marijuana and concentrated cannabis. A records check revealed defendant’s license
was suspended. Defendant was arrested and taken into custody.


2     One of the bags contained 218 grams of marijuana while the other bag contained
217 grams of marijuana.
3      At trial, Officer Smith testified as an expert in the field of marijuana.

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         Defendant was charged with one count of possession of concentrated cannabis
(§ 11357, subd. (a)), one count of transportation of marijuana (§ 11360, subd. (a)), one
count of possession of more than 28.5 grams of marijuana (§ 11357, subd. (c)), and one
count of driving on a suspended license (Veh. Code, § 14601.1, subd. (a)).
         At trial, defendant asserted an affirmative defense to the marijuana offenses based
on the Compassionate Use Act of 1996 (CUA).4 The jury found defendant guilty of
transportation of marijuana (§ 11360, subd. (a)) and driving on a suspended license (Veh.
Code, § 14601,1, subd. (a)). The jury acquitted defendant on the two possession counts.
Without suspending imposition of sentence, the trial court placed defendant on three
years of formal probation.
         Defendant filed a timely notice of appeal.
                                        DISCUSSION
         Defendant contends, under Estrada, the recent amendments to section 11360 must
be applied retroactively to require that we reverse his drug transportation conviction. We
agree.
         Among other things, section 11360 provides that any person who “transports”
marijuana shall be punished by imprisonment. (§ 11360.) Courts had interpreted the
word “transports” to include transport of controlled substances for personal use. (See
People v. Rogers (1971) 5 Cal.3d 129, 134-135; People v. Eastman (1993)
13 Cal.App.4th 668.) But the Legislature recently amended section 11360 to define
“transport” to mean “transport for sale.” (See Assem. Bill No. 730 (2015-2016 Reg.




4     In 1996, California voters adopted Proposition 215, the CUA (§ 11362.5). The
CUA “provides a defense for physician-approved possession and cultivation of
marijuana.” (People v. Wright (2006) 40 Cal.4th 81, 90.) It also provides a defense “to a
charge of transporting marijuana where certain conditions are met.” (Id. at p. 92.)

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Sess.).) Those amendments took effect on January 1, 2016. (See Cal. Const., art. IV, § 8,
subd. (c)(1).)
       The amended statute does not contain a saving clause which evinces the
Legislature’s intent the amendments apply prospectively only. (See Assem. Bill No.
730.) The purpose of the amendments is to require a conviction for transportation of
marijuana to include proof of intent to sell, as is currently the case for numerous other
drugs. (See Sen. Rules Com., Rep. on Assem. Bill No. 730 (2015-2016 Reg. Sess.)
June 10, 2015, pp. 3-4.) The amendments benefit defendant by requiring proof of an
additional element—intent to sell—for a felony drug transportation conviction, and by
eliminating criminal liability for drug transportation in cases involving possession for
personal use. (Ibid.) The parties agree the amendments to section 11360 will take effect
before the judgment against defendant becomes final. (See People v. Vieira (2005)
35 Cal.4th 264, 306 [“ ‘[F]or the purpose of determining retroactive application of an
amendment to a criminal statute, a judgment is not final until the time for petitioning for
a writ of certiorari in the United States Supreme Court has passed’ ”].)
       Under the present circumstances, we adhere to the well-established principle,
“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. (Estrada, supra, 63 Cal.2d at pp. 744, 748.) The rule articulated in Estrada applies
to amendments which add to the elements of a crime or enhancement. (People v. Vinson
(2011) 193 Cal.App.4th 1190, 1197-1199; People v. Todd (1994) 30 Cal.App.4th 1724,
1728-1730; People v. Figueroa (1993) 20 Cal.App.4th 65, 68 (Figueroa).) Thus, as the
People concede, defendant is entitled to the benefit of the amendments to section 11360
under the rule established in Estrada. (People v. Vinson, supra, 193 Cal.App.4th at
pp. 1197-1199; People v. Todd, supra, 30 Cal.App.4th at pp. 1728-1730; Figueroa,



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supra, 20 Cal.App.4th at p. 68.) Accordingly, we will reverse the drug transportation
conviction and remand for further proceedings.
       We reject defendant’s contention remand is inappropriate because there is
insufficient evidence to prove he was transporting marijuana for purposes of sale.
“Where . . . 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. [Citation.]” (Figueroa,
supra, 20 Cal.App.4th at p. 72.) Here, because the prosecution had no reason to prove
defendant intended to sell marijuana under the preamendment statute, remand is
appropriate. 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. (Id. at pp. 71-72 & fn. 2.)
       We also reject the People’s contention it was harmless error for the trial court not
to instruct the jury on the intent to sell element. That is, instruct the jury defendant could
not be convicted of transporting marijuana unless it determined beyond a reasonable
doubt defendant transported the marijuana with the intent to sell it. The People contend
this element was established beyond a reasonable doubt because the evidence presented
at trial showed defendant was engaged in illegally sharing, furnishing, or trading
marijuana with a group of friends. According to the People, had the jury been instructed
on the intent to sell element, it would have found the element was satisfied. We disagree.
       Instructional error that omits an element of the offense is subject to review under
the harmless error analysis set forth in Chapman v. California (1967) 386 U.S. 18 [17
L.Ed.2d 705]. (People v. Mason (2013) 218 Cal.App.4th 818, 825.) This means “we
proceed to consider whether it appears beyond a reasonable doubt that the error did not
contribute to the jury’s verdict.” (People v. Mil (2012) 53 Cal.4th 400, 417.) Citing
Neder v. United States (1999) 527 U.S. 1 [144 L.Ed.2d 35], our Supreme Court
explained: “Neder instructs us to ‘conduct a thorough examination of the record. If, at

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the end of that examination, the court cannot conclude beyond a reasonable doubt that the
jury verdict would have been the same absent the error—for example, where the
defendant contested the omitted element and raised evidence sufficient to support a
contrary finding—it should not find the error harmless.’ [Citation.] On the other hand,
instructional error is harmless ‘where a reviewing court concludes beyond a reasonable
doubt that the omitted element was uncontested and supported by overwhelming
evidence.’ [Citations.] Our task, then, is to determine ‘whether the record contains
evidence that could rationally lead to a contrary finding with respect to the omitted
element.’ [Citations.]” (People v. Mil, supra, at p. 417.)
       Here, because we cannot conclude beyond a reasonable doubt the jury verdict
would have been the same had the jury been instructed on the intent to sell element,
remand for further proceedings is appropriate. The record does not contain
overwhelming evidence establishing defendant had the specific intent to sell marijuana.
Aside from the fact defendant acquired about a pound of marijuana in exchange for a
welding job, possessed $1,200 in cash, and shared and/or traded marijuana with friends,
there is no evidence in the record suggesting defendant was transporting marijuana for
purposes of sale.5 Further, the record contains sufficient evidence to support a contrary
finding; namely, defendant possessed the marijuana for personal use.
       At trial, defendant asserted an affirmative defense to the marijuana offenses based
on the CUA. Both defendant and Dr. Laurence Badgley testified regarding defendant’s
medical need for marijuana. To control his pain from injuries sustained in a car accident,
defendant testified he consumed about three to four ounces of marijuana per day in a



5       At trial, defendant testified he traded welding services for marijuana. He also
testified he and a small group of friends traded “clones” or genetic seeds, and the group
also “help[ed] each other out with medicine.” Defendant admitted that the group of
friends he “traded marijuana back and forth [with]” is not part of a marijuana collective
or dispensary.

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variety of ways, including smoking and/or ingesting it. However, he stated he could
make a pound of marijuana last at least one month. Dr. Badgley testified he would
recommend four pounds of dried marijuana flower per month for defendant’s pain relief,
i.e., approximately two ounces a day.6
       Based on the evidence in the record, a jury instructed on the intent to sell element
could have reasonably concluded that defendant transported the marijuana for personal
use. The fact the jury disbelieved the CUA defense as to the transportation charge does
not suggest the jury believed defendant was transporting marijuana for purposes of sale.
The jury’s finding of guilt on the transportation charge merely reflected its determination
defendant transported more marijuana than was reasonably related to his “current medical
needs,” considering the method, timing, and distance of the transportation.7 (See People
v. Wayman (2010) 189 Cal.App.4th 215, 220, 223 [in the transportation context, the CUA
defense only applies to situations in which “ ‘the quantity transported and the method,
timing and distance of the transportation are reasonably related to the patient’s current
medical needs’ ”; it does not provide qualified marijuana users “an unfettered right to



6      At the time of the traffic stop, defendant had a medical marijuana recommendation
for possession of eight ounces of medical cannabis. The physician that provided this
recommendation did not testify at trial because he died before trial commenced. At trial,
Dr. Badgley opined that eight ounces of marijuana was insufficient to control defendant’s
pain.
7      The jury was instructed on the CUA defense, in relevant part, as follows:
“Possession or transportation of marijuana is lawful if authorized by the [CUA]. The
[CUA] allows a person to possess or transport marijuana for personal medical purposes
when a physician has recommended or approved such use. The amount of marijuana
possessed or transported must be reasonably related to the patient’s current medical
needs. In deciding if marijuana was transported for medical purposes, also consider
whether the method, timing, and distance of the transportation were reasonably related to
the patient’s current medical needs. . . .” During closing arguments, the prosecutor
argued that defendant’s medical needs during his four-hour trip to Oroville did not
require him to possess approximately one pound of marijuana.

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take their marijuana with them wherever they go, regardless of their current medical
needs”].) Given the jury’s acquittal on the possession charges, had defendant transported
less marijuana on his trip to Oroville or been traveling to Oroville for an extended period
of time, the jury might have reached a different conclusion on the transportation charge.8
                                      DISPOSITION
       The judgment with respect to defendant’s conviction for transporting marijuana
(§ 11360) is reversed and remanded for possible retrial. The judgment is affirmed in all
other respects.

                                                       NICHOLSON             , J.



We concur:



      BLEASE                , Acting P. J.




      ROBIE                 , J.




8      Because we reverse defendant’s conviction for transportation of marijuana based
on Estrada, we will not address the other arguments raised by defendant on appeal.

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