Filed 7/1/16 P. v. McKinney 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                                          NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
                                                        (Shasta)
                                                            ----




THE PEOPLE,                                                                            C077824

                   Plaintiff and Respondent,                        (Super. Ct. Nos. 11F2857, 11F7131,
                                                                            12F0169, 13F7399)
         v.

BRIAN LEE MCKINNEY,

                   Defendant and Appellant.




         Defendant Brian Lee McKinney pleaded no contest to numerous felonies,
including transporting methamphetamine for personal use and possession of
methamphetamine. The trial court sentenced him to an aggregate term of 20 years four
months in state prison. Defendant now contends he is entitled to benefit from the recent
amendments to the law regarding transportation of controlled substances and the People
agree. What the parties do not agree on is how to handle this matter on remand.



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       The People contend that, on remand, they are entitled to withdraw from the plea
agreement and have all the charges and enhancement allegations reinstated because they
have been denied the benefit of their bargain. The People also contend they are entitled
to retry the transportation charge in order to prove defendant was transporting
methamphetamine for purposes of sale. The People further contend that even if they are
not entitled to withdraw from the plea, they are entitled to the restoration of sentencing
enhancements dismissed by the trial court. Defendant disagrees with all of these
contentions and so do we.

                 FACTUAL AND PROCEDURAL BACKGROUND

       In May 2011, the People charged defendant with transporting a controlled
substance (Health & Saf. Code, § 11379, subd. (a)—count 1),1 and possession of a
controlled substance (§ 11377, subd. (a)—count 2) in Shasta County Superior Court case
No. 11F2857 (case No. 2857). The People alleged that defendant had three prior drug
convictions (§ 11370.2, subd. (c)), and served two prior prison terms (Pen. Code, § 667.5,
subd. (b)). Defendant pleaded guilty to possession and admitted serving two prior prison
terms. The remaining charge was dismissed and the remaining enhancement allegations
struck. In exchange for his plea, defendant was placed on three years of Proposition 36
probation.

       Three months later defendant admitted violating the terms of his probation. The
trial court revoked and reinstated his probation pursuant to Proposition 36.

       In November 2011, the People charged defendant with the sale or transportation of
a controlled substance in Shasta County Superior Court case No. 11F7131 (case
No. 7131). (§ 11379, subd. (a).) The People further alleged defendant had three prior



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



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drug convictions (§ 11370.2, subd. (c)) and served two prior prison terms (Pen. Code,
§ 667.5, subd. (b)). Defendant pleaded not guilty and denied the allegations.

       A few months later in Shasta County Superior Court case No. 12F0169 (case
No. 0169), the People charged defendant with failing to appear on a felony (Pen. Code,
§ 1320, subd. (b)). The People also alleged defendant was released on bail or his own
recognizance when he committed the offense (id., § 12022.1) and served two prior prison
terms (id., § 667.5, subd. (b)). Defendant again pleaded not guilty and denied the
allegations.

       Then, in April 2012, defendant withdrew his not guilty pleas in cases No. 7131
and No. 0169 and entered into a negotiated plea agreement resolving those two cases
along with his probation violation in case No. 2857.

       In case No. 7131, defendant pleaded no contest to transporting a controlled
substance, and admitted the three drug conviction allegations as well as the two prior
prison term allegations. The parties stipulated that the controlled substance was for
personal use and all references to “sale” and “sell” were struck from the complaint. The
trial court sentenced defendant to the upper term of four years, plus nine years for the
prior drug convictions, and another two years for the prior prison terms. The court
suspended execution of the sentence for three years and placed defendant on probation
pursuant to Proposition 36.

       In case No. 0169, defendant pleaded no contest to felony failure to appear and
admitted the on-bail enhancement. In accordance with the plea agreement, the court
sentenced defendant to eight months in state prison for his failure to appear, plus two
years for the on-bail enhancement. The court ordered the sentence in case No. 0169 to
run consecutive to the sentence imposed in case No. 7131. The court suspended
execution of the sentence for three years and placed defendant on conditional revocable



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release. In exchange for defendant’s plea, the enhancement allegations were dismissed
on the People’s motion.

       On November 7, 2013, the trial court granted defendant’s motion to vacate his
sentence on the ground that it was unauthorized under Proposition 36 and vacated the
sentence imposed in April 2012.

       A few weeks later, the People charged defendant in Shasta County Superior Court
case No. 13F7399 (case No. 7399) with possession of a controlled substance (§ 11377
subd. (a)), possession with intent to sell (§ 11378), receiving stolen property (Pen. Code,
§ 496, subd. (a)), and reckless evading a peace officer (Veh. Code, § 2800.2). The
People further alleged that defendant served three prior prison terms (Pen. Code, § 667.5,
subd. (b)). Defendant pleaded no contest to all of the charges and admitted serving the
prison terms.

       On October 20, 2014, defendant was sentenced in all four cases. The trial court
deemed defendant’s conviction for transporting a controlled substance in case No. 7131
the principal term and sentenced defendant to four years in state prison. The court added
another three years for the three prior drug-related convictions and two years for the prior
prison terms.

       The remaining three cases were sentenced as subordinate terms. In case No. 2857,
the trial court sentenced defendant to eight months for the possession of a controlled
substance (count 2) and struck the prior prison term allegations. In case No. 0169, the
court sentenced defendant to an additional eight months on the felony failure to appear
plus two years for the on-bail enhancement. In case No. 7399, the trial court sentenced
defendant to eight months for each of his four convictions (possession of a controlled
substance, possession with intent to sell, receiving stolen property, and reckless evasion
of a peace officer), staying the sentence for his conviction for possession of a controlled
substance. The court struck the prior prison term allegations.

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       In sum, the trial court sentenced defendant to an aggregate term of 20 years four
months in state prison. The court also awarded defendant 1,036 days of custody credit
(518 actual and 518 conduct) and ordered him to pay various fines and fees.

                                      DISCUSSION

1.0    Defendant’s Transportation Conviction Must Be Vacated and the Related
       Sentencing Enhancements Struck

       Defendant contends his felony conviction for transportation (case No. 7131)
should be vacated and the related sentencing enhancements struck pursuant to the recent
amendments to section 11379. We agree.

       “At the time of defendant’s conviction, section 11379, subdivision (a) provided
that any person who ‘transports’ specified controlled substances including
methamphetamine shall be punished by imprisonment. (§ 11379; Stats. 2011, ch. 15,
§ 174.) The courts had interpreted the word ‘transports’ to include transporting
controlled substances for personal use. [Citations.] Effective January 1, 2014, after
defendant’s conviction, the Legislature amended section 11379 to define ‘transports’ as
meaning to transport for sale. [Citations.]

       “The amendment explicitly intended to criminalize the transportation of drugs for
the purpose of sale and not the transportation of drugs for nonsales purposes such as
personal use. (See Assem. Conc. Sen. Amends. to Assem. Bill No. 721 (2013-2014 Reg.
Sess.) as amended June 27, 2013, p. 2 [‘ “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
[Assembly Bill No.] 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.” ’].)

       “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

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punishment is imposed’ if the amended statute takes effect before the judgment of
conviction becomes final.” (People v. Eagle (2016) 246 Cal.App.4th 275, 278-279.)

       Here, the People concede defendant’s sentence was not final at the time the
amendments to section 11379 took effect. The People also concede that because the
judgment was not final, defendant is entitled to benefit retroactively from the changes to
section 11379. On these points, we agree. The People nevertheless argue they are
entitled to retry the transportation charge in order to prove defendant was transporting the
methamphetamine for purposes of sale. On this point, we disagree.

       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. (People v. Figueroa (1993) 20 Cal.App.4th 65, 71-72, fn. 2.) Accordingly, such
a retrial generally would not be barred by the double jeopardy clause or ex post facto
principles because the question of whether defendant transported the methamphetamine
for sale was not relevant to the charges at the time of his plea and, thus, the question was
never tried. (See id. at pp. 69-72 & fn. 2.)

       Here, however, the People stipulated that defendant was not transporting the
methamphetamine for sale but for personal use. As a result of their stipulation, the
allegation that defendant intended to sell the methamphetamine was struck from the
complaint. Thus, while the question of whether defendant transported the
methamphetamine for sale was not relevant to the charge at the time of the plea, the issue
was actually decided. (See People v. Palmer (2013) 58 Cal.4th 110, 118 (Palmer)
[“Stipulations obviate the need for proof and are independently sufficient to resolve the
matter at issue in the stipulation.”].) The People are therefore barred from retrying the
issue. (In re Cruz (2003) 104 Cal.App.4th 1339, 1345 [“Collateral estoppel prohibits the
same parties from retrying an ‘issue of ultimate fact’ identical to an issue actually and



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necessarily decided in a prior proceeding that resulted in a final judgment on the
merits.”].)

       Relying on the decision in People v. Blackburn (1999) 72 Cal.App.4th 1520, the
People nevertheless argue they are permitted to retry the issue because the judgment is
based on a no contest plea, which “is not entitled to collateral estoppel effect.” (Id. at
p. 1528.) The People’s reliance on Blackburn is inapt. We do not read the decision in
Blackburn as broadly as the People do, to suggest that a guilty plea is never entitled to
collateral estoppel effect. In Blackburn, the issue was whether the People could plead
and prove as a prior strike offense, a serious felony that was alleged in a prior matter but
struck during plea negotiations, without violating the principles of double jeopardy and
collateral estoppel. (Id. at pp. 1525-1530.) The appellate court ruled neither double
jeopardy nor collateral estoppel precluded the People from pleading and proving in the
pending matter that the prior allegation was a strike offense. (Id. at pp. 1530-1531.)
Those are not the circumstances presented here.

       Here, defendant’s plea is not the deciding factor, the stipulation is. The People
stipulated defendant was transporting the methamphetamine for personal use. That
stipulation finally resolved the question whether defendant was transporting the
methamphetamine for purposes of sale. (Palmer, supra, 58 Cal.4th at p. 118.) As a
consequence, and unlike in Blackburn, the People could not later allege defendant was
convicted of a serious or violent felony because he was convicted of transporting
methamphetamine for the purposes of sale. The People foreclosed that option when they
agreed defendant was transporting the methamphetamine for personal use. The People
offer no reasoned analysis or relevant authority to support a contrary finding.

       The People also are barred from amending the complaint on remand in order to
charge defendant with simple possession. (§ 11377.) When “the prosecution is or should
be aware of more than one offense in which the same act or course of conduct plays a


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significant part, all such offenses must be prosecuted in a single proceeding unless
joinder is prohibited or severance permitted for good cause.” (Kellett v. Superior Court
(1966) 63 Cal.2d 822, 827.) Failure to join all such offenses in a single proceeding will
result in a bar to subsequent prosecution of the omitted offense if the earlier proceeding
resulted in either acquittal or conviction and sentence. Thus, if defendant’s conduct on
October 12, 2011, could also have resulted in a charge for simple possession (§ 11377),
the People were required to charge him with possession in the original complaint. They
cannot piecemeal their prosecution.

       In sum, defendant’s conviction for transportation must be struck and the related
sentencing enhancements vacated. (See People v. Collins (1978) 21 Cal.3d 208, 214
(Collins) [“A conviction cannot stand on appeal when it rests upon conduct that is no
longer sanctioned.”].)

2.0    The People Are Not Entitled to Withdraw From the Plea Agreement

       The People contend they have been deprived of the benefit of the plea bargain and,
on remand, they should be allowed to withdraw from the plea agreement and have all the
original charges and sentencing enhancement allegations reinstated. We disagree.

       “[T]he general rule in California is that a plea agreement is ‘ “deemed to
incorporate and contemplate not only the existing law but the reserve power of the state
to amend the law or enact additional laws for the public good and in pursuance of public
policy.” ’ ” (Doe v. Harris (2013) 57 Cal.4th 64, 73 (Doe).) Thus, “[i]t follows, also as a
general rule, that requiring the parties’ compliance with changes in the law made
retroactive to them does not violate the terms of the plea agreement, nor does the failure
of a plea agreement to reference the possibility the law might change translate into an
implied promise the defendant will be unaffected by a change in the statutory
consequences attending his or her conviction. To that extent, then, the terms of the plea
agreement can be affected by changes in the law.” (Id. at pp. 73-74; Johnson v.

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Department of Justice (2015) 60 Cal.4th 871, 888-889, fn. 10 [requiring the parties’
compliance with changes in the law made retroactive to them does not violate the terms
of their plea agreement].)

       Here, nothing in the parties’ plea agreements provided or implied defendant’s
felony conviction for transporting methamphetamine would be unaffected by subsequent
changes in the law. (See Doe, supra, 57 Cal.4th at pp. 71, 73-74 [parties to a plea
agreement may expressly or impliedly agree the plea agreement will be unaffected by
subsequent changes in the law]; People v. Smith (2014) 227 Cal.App.4th 717, 728-730
[same]; cf. People v. Arata (2007) 151 Cal.App.4th 778, 787-788 [because it found the
plea agreement contained an implied promise that the defendant’s lewd act conviction
would be expunged following his completion of probation, the court refused to apply a
subsequent change in the Penal Code disallowing expungement upon completion of
probation to the plea agreement].)

       Moreover, although the amendments to section 11379, subdivision (a) rendered
the conduct to which defendant admitted in case No. 7131 no longer punishable,
defendant has not gained “total relief from his vulnerability to sentence.” (Collins, supra,
21 Cal.3d at p. 215.) Even without the sentence imposed on his conviction in case
No. 7131, defendant still faces a prison sentence for his remaining convictions in cases
No. 0169 and No. 7399. And, unlike the defendant in Collins, who negotiated the
dismissal of numerous criminal charges in exchange for his plea to a single charge, no
charges were dismissed in case No. 7131 in exchange for defendant’s plea. (Collins, at
p. 211.) Rather, defendant pleaded no contest to the sole charge of transporting
methamphetamine for personal use, which is no longer criminalized under section 11379.

       Finally, unlike the defendant in In re Blessing (1982) 129 Cal.App.3d 1026,
defendant’s sentence was not affected by an intervening court decision but by a
legislative determination of public policy. (See Doe, supra, 57 Cal.4th at p. 70.) The


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decision to allow the People to withdraw from the plea agreement in Blessing does not,
therefore, provide any guidance here.

       We conclude the People are not entitled to withdraw from the plea agreement.

3.0    The People Are Not Entitled to Have Restored the Dismissed Sentencing
       Enhancements

       The People further contend that even if they are not permitted to withdraw from
the plea agreement, they are entitled to have restored the sentencing enhancement
allegations that were dismissed in case No. 7399. We are not persuaded.

       In support of their contention, the People rely on this court’s recent decision in
People v. Garner (2016) 244 Cal.App.4th 1113. In Garner, we found the trial court
“never struck the prison term enhancements, but merely struck the punishment therefor.”
(Id. at p. 1117.) We thus concluded the trial court could consider those prison term
enhancements at resentencing. (Ibid.)

       With that decision in mind, the People argue the trial court here did not strike
defendant’s admission to the prior prison term enhancements, but struck only the
punishment for those enhancements. The record does not support the People’s argument.

       At sentencing, the trial court said, “and in case [No.] 13F7399, as to the [Vehicle
Code section] 2800.2, the count 5, it would be one-third the midterm of eight months, for
a total term of 20 years four months. On that same case, the [Penal Code section] 667.5[,
subdivision] (b)’s are stricken.” (Italics added.) There is no language limiting that strike
to the punishment resulting from the sentencing enhancements; they were struck in their
entirety by the trial court. As such, they cannot be restored on remand. (See People v.
Gonzalez (2008) 43 Cal.4th 1118, 1128-1129 [proper procedure to preserve the
enhancement is to impose the sentence, then stay the sentence—not strike the
enhancement]; see also Cal. Rules of Court, rule 4.447.)



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4.0    Defendant’s Felony Convictions for Possession of a Controlled Substance
       Must Be Reinstated

       In cases No. 2857 and No. 7399, defendant was convicted of possessing a
controlled substance (§ 11377). The passage of Proposition 47 created Penal Code
section 1170.18, which provides for any defendant “currently serving a sentence for a
conviction . . . of a felony or felonies who would have been guilty of a misdemeanor
under [Proposition 47] had [it] been in effect at the time of the offense [to] petition for a
recall of sentence before the trial court that entered the judgment of conviction in his or
her case to request resentencing” under the statutory framework as amended by the
passage of Proposition 47. (Pen. Code, § 1170.18, subd. (a); see Voter Information
Guide, Gen. Elec. (Nov. 4, 2014) text of Prop. 47, § 14, pp. 73-74.) Among the crimes
subject to redesignation and resentencing is possession of a controlled substance.
(§ 11377, subd. (a); Pen. Code, § 1170.18.)

       At the time defendant filed his Penal Code section 1170.18 petition in the trial
court, his appeal was pending in this court. Because an appeal was pending, the trial
court lacked jurisdiction to recall his sentence and resentence him under Penal Code
section 1170.18 with respect to the convictions or sentence enhancements that are the
subject of the pending appeal. (People v. Scarbrough (2015) 240 Cal.App.4th 916, 929.)
Accordingly, the trial court’s order granting the petition is void.

                                      DISPOSITION

       Defendant’s conviction for transportation of a controlled substance in case
No. 7131 is vacated and the attendant sentencing enhancements are struck. The trial
court’s modification orders filed on April 24, 2015, are void for lack of jurisdiction and




                                              11
the court’s April 24, 2015 resentencing order is reversed. The matter is remanded for
resentencing in accordance with this opinion. The judgment is otherwise affirmed.



                                                         BUTZ              , J.



We concur:



      BLEASE               , Acting P. J.



      DUARTE               , J.




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