Filed 7/24/15 P. v. McClean 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                                           NOT TO BE PUBLISHED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
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or ordered published for purposes of rule 8.1115.




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



THE PEOPLE,                                                                                  C076060

                   Plaintiff and Respondent,                                    (Super. Ct. No. CRF120212)

         v.

CHRISTOPHER SCOTT MCLEAN,

                   Defendant and Appellant.




         This case comes to us pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende).
Upon review of the record as required by Wende, we requested supplemental briefing on
the following issues: (1) Does the January 1, 2014, amendment to Health and Safety
Code section 11379,1 requiring that transportation of a controlled substance be for the
purpose of sale apply to defendant? (2) If yes, what is the appropriate remedy? The
People concede that the amendment to section 11379 applies to defendant Christopher



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

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Scott McClean and that the proper remedy is to remand the matter to allow defendant to
withdraw his plea.
       We reverse and remand to allow defendant to withdraw his plea and for further
proceedings.
                  FACTUAL AND PROCEDURAL BACKGROUND
       In January 2012, a Yolo County Sheriff stopped defendant for failing to stop at a
stop sign. Defendant was with Virginia Perry-Mekoul, who had an active restraining
order in place against defendant. The sheriff searched the car and found defendant “in
possession of .07 grams of methamphetamine, which is a usable amount.”
       A complaint charged defendant with transporting methamphetamine (§ 11379,
subd. (a)), possession of methamphetamine (§ 11377, subd. (a)), and misdemeanor
violation of a court order (Pen. Code, § 273.6, subd. (a)). Defendant pled no contest to
transporting methamphetamine and violating a court order. The trial court dismissed the
remaining count. Defendant violated probation twice. After the second violation, the
trial court denied further probation and sentenced defendant to a split four-year term.
Defendant filed an appeal pursuant to Wende.
       On December 9, 2013, while defendant’s appeal was pending, his 2013 trial
counsel filed a motion in the trial court to set aside an unauthorized sentence, based on
the January 1, 2014, amendment to section 11379, which added the requirement that the
transportation of a controlled substance had to be for the purpose of sale. The trial court
denied the motion.
                                       DISCUSSION
       At the time of defendant’s conviction, 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.” Nothing in section 11379
specified any required intent, and case law had construed the statute to cover any

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transportation of a controlled substance with knowledge of its presence and illegal
character, regardless of whether the defendant intended to sell the drug. (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, after defendant’s conviction and sentencing, but while
his case was pending on appeal, section 11379 was amended to add subdivision (c),
which states, “For purposes of this section, ‘transports’ means to transport for sale.” The
legislative history of the amendment shows that the Legislature 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. Com. on Public Safety, Conc. in
Sen. Amend., Analysis of Assem. Bill No. 721 (2013-2014 Reg. Sess.) as amended
June 27, 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.’ ”].)
       Absent a saving clause, an amended statute may operate retroactively to a
defendant whose appeal is not yet final. (People v. Wright (2006) 40 Cal.4th 81, 90;
People v. Babylon (1985) 39 Cal.3d 719, 721-722.) Where, as here, an amendment to a
statute mitigates punishment and there is no saving clause, the amendment will operate
retroactively to lighten the punishment previously imposed. (In re Estrada (1965)
63 Cal.2d 740, 748 (Estrada).)
       The parties agree that under Estrada the amendment to section 11379 applies to
this case. The amendment to section 11379 requires the prosecution to prove that a
defendant transported a controlled substance for the purpose of sale, and thus effectively
adds a new element to the offense. Under the amended version of section 11379,



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defendant's guilty plea cannot stand because he did not admit that he transported the
drugs for sale.
       As the parties agree, the proper remedy on remand is to allow defendant to
withdraw his plea. (People v. Mancheno (1982) 32 Cal.3d 855, 860-861.)

                                     DISPOSITION
       The judgment is reversed and the matter is remanded to the trial court to allow the
defendant to withdraw his plea to transportation of methamphetamine and for further
proceedings.



                                                       MURRAY                , J.



We concur:



      BLEASE                , Acting P. J.



      RENNER                , J.




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