Filed 11/23/15 P. v. Staggs 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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,                                                                                  C077421

                   Plaintiff and Respondent,                                   (Super. Ct. Nos. MC RD CRF
                                                                                120000F793, MC RD CRF
         v.                                                                             130004810)

JAMES ARTHUR STAGGS,

                   Defendant and Appellant.




         Defendant James Arthur Staggs appeals his 2014 conviction resulting from his
2012 plea and 2014 imposition of sentence following the trial court’s revocation of his
probation in the 2012 case. As we will explain, although he purports to appeal only his
2014 sentence, his argument is that the conduct to which he pleaded guilty in 2012--
transportation of methamphetamine, in violation of Health and Safety Code section




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11379, subdivision (a)--is no longer a crime.1 This is because he did not admit
transporting methamphetamine for sale, which is now a required element of felony
transporting, as we explain post.2 Because the basis of defendant’s argument that his
felony sentence is unauthorized is that he pled to elements which no longer constitute a
felony, his appeal required a certificate of probable cause. (Pen. Code, § 1237.5.)
Because he did not obtain one, we will dismiss the appeal without prejudice to defendant
to file a petition for habeas corpus in the trial court.
                                       BACKGROUND
        2012 case
        In February 2012, officers arrested defendant on a parole warrant. Upon searching
the trunk of the car he was driving, officers found marijuana, methamphetamine,
syringes, and digital scales. A complaint charged defendant with transportation of a
methamphetamine (§ 11379, subd. (a)), possession for sale of methamphetamine
(§ 11378), and misdemeanor marijuana possession (§ 11357, subd. (c)). The complaint
also alleged defendant had served three prior prison terms. (Pen. Code, § 667.5, subd.
(b).) Defendant pleaded guilty to transportation of methamphetamine (§ 11379, subd.
(a)) and admitted a prior prison term enhancement allegation. Pursuant to the plea
agreement, the trial court suspended imposition of sentence and placed defendant on
three years of probation. The court dismissed the remaining charges and allegations.




1   Further undesignated statutory references are to the Health and Safety Code.
2  Defendant actually makes the incorrect argument that the conduct he pled to as a felony
is now misdemeanor “simple transportation.” However, as we explain post, the relevant
amendments to section 11379 did not add a misdemeanor transportation charge.
Accordingly, we construe defendant’s argument to be that the conduct he pled to as a
felony (in 2012) is no longer a crime; therefore he should not have received a felony
sentence (in 2014) for that conduct.

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       2013 case
       In July 2013, a Redding police officer attempted to stop the car defendant was in;
defendant got out of the car and fled on foot. The officer chased defendant and defendant
fired a gun at the officer. Defendant pleaded no contest to assault with a firearm on a
peace officer (Pen. Code, § 245, subd. (d)(1)) and admitted he had personally discharged
a firearm in the commission of the offense (Pen. Code, § 12022.53, subd. (c)). Defendant
also admitted a violation of probation in the 2012 case. The trial court sentenced
defendant to the stipulated term of 24 years in prison in the 2013 case, and three years
concurrent in the 2012 case. Defendant timely appealed, but did not secure a certificate
of probable cause.
                                       DISCUSSION
       Defendant’s sole articulated contention on appeal is that his sentence for
transportation of methamphetamine is an unauthorized sentence “because the plea was to
simple transportation, not to transportation for sale.” Pointing out that he “did not admit
that the transportation was for purposes of sale,” he claims the “prosecution thus failed to
plead and prove an element of the felony offense.” He asks that we “vacate the judgment
and remand for further proceedings.”
       A criminal defendant who appeals following a plea of no contest or guilty without
a certificate of probable cause can only challenge the denial of a motion to suppress
evidence or raise grounds arising after the entry of the plea that do not affect the plea’s
validity. (Pen. Code, § 1237.5; Cal. Rules of Court, rule 8.304(b)(1).) Our Supreme
Court has made it clear that we should strictly apply this rule. “In enacting [Penal Code]
section 1237.5, the Legislature evidently sought to promote judicial economy in the
appellate system as a whole, for it established a mechanism that did not invite
consideration of the peculiar facts of the individual appeal. The provision lays down a
‘condition precedent’ to the taking of an appeal within its scope. [Citation.] It is a
general ‘legislative command’ to defendants. [Citation.] It is not an authorization for ‘ad

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hoc dispensations’ from such a command by courts. [Citation.] Indeed, it effectively
precludes dispensations of this sort, which are ‘squarely contrary’ to its terms.
[Citations.] In adopting what is now rule [8.304(b)(1)] . . . , to implement the provision,
the Judicial Council also evidently sought to promote judicial economy in the appellate
system as a whole, for it refined the mechanism that the Legislature established.”
(People v. Mendez (1999) 19 Cal.4th 1084, 1098.)
       Thus we decline to overlook this fatal procedural deficiency and merely treat
defendant’s appeal as a petition for writ of habeas corpus, as the Attorney General
suggests. We instead look to the substance of defendant’s challenge, and determine
whether it is indeed a challenge to the validity of his plea. We conclude that it is.
       “In determining whether [Penal Code] section 1237.5 applies to a challenge of a
sentence imposed after a plea of guilty or no contest, courts must look to the substance of
the appeal: ‘the crucial issue is what the defendant is challenging, not the time or manner
in which the challenge is made.’ [Citation.] Hence, the critical inquiry is whether a
challenge to the sentence is in substance a challenge to the validity of the plea, thus
rendering the appeal subject to the requirements of [Penal Code] section 1237.5.
[Citation.]” (People v. Panizzon (1996) 13 Cal.4th 68, 76.) At the time of defendant’s
plea, section 11379, subdivision (a) provided that, with exceptions inapplicable here,
“every person who transports . . . any controlled substance . . . unless upon the
prescription of a physician . . . shall be punished by imprisonment . . . for a period of two,
three, or four years.” Section 11379 did not specify any required intent, and courts had
not interpreted the statute to require intent to sell. (See People v. Emmal (1998) 68
Cal.App.4th 1313, 1317; People v. Eastman (1993) 13 Cal.App.4th 668, 676-677.)
Effective January 1, 2014, section 11379 was amended to add subdivision (c), which
states, “For purposes of this section, ‘transports’ means to transport for sale.”




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       Thus no misdemeanor provision was added; rather, an element was added to the
requirements of proving a violation of this felony provision. Nor is possession of
methamphetamine a lesser included offense of transporting methamphetamine under the
elements test. (People v. Watterson (1991) 234 Cal.App.3d 942, 947.) The original
complaint did not allege simple possession, so possession may not be deemed a lesser
included offense of transportation here under the pleadings test. (See People v. Lopez
(1998) 19 Cal.4th 282, 288-289.)
       The parties agree that defendant is entitled to benefit retroactively from the
changes to section 11379 as his judgment was not final at the time the amendments to
section 11379 took effect. We agree. (See In re Estrada (1965) 63 Cal.2d 740, 744, 748;
People v. Vinson (2011) 193 Cal.App.4th 1190, 1197-1199.) However, as we have
described at length ante, because his conviction was not transformed from a felony to a
misdemeanor by the amendment, which would lend support to his characterization of his
argument as challenging his felony sentence, it becomes clear that defendant’s challenge
is to the plea itself. Accordingly, his appeal requires a certificate of probable cause and
we must dismiss it. (Pen. Code, § 1237.5; People v. Panizzon, supra, 13 Cal.4th at
pp. 89-90; People v. Johnson (2009) 47 Cal.4th 668, 678-685.)
                                      DISPOSITION
       The appeal is dismissed without prejudice to filing a petition for habeas corpus in
the trial court.

                                                        /s/
                                                  Duarte, J.

       We concur:

             /s/
       Raye, P. J.

             /s/
       Blease, J.


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