Filed 5/21/14 P. v. Hernandez CA2/6
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication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

                                     SECOND APPELLATE DISTRICT

                                                   DIVISION SIX


THE PEOPLE,                                                                  2d Crim. No. B248005
                                                                          (Super. Ct. No. 2012024438)
     Plaintiff and Respondent,                                                 (Ventura County)

v.

JOHN ROLLAND HERNANDEZ,

     Defendant and Appellant.




                   John Rolland Hernandez appeals the judgment entered after he pled guilty
to transporting methamphetamine (Health & Saf. Code,1 former § 11379, subd. (a)), and
admitted a prior drug conviction (§ 11370.2, subd. (c)). Following appellant's plea, the
trial court found by a preponderance of the evidence that the drugs appellant transported
were not for his personal use and accordingly denied his request to be placed on
Proposition 36 probation. (Pen. Code, §§ 1210.1, subd. (a), 11055, subd. (d)(2).)
Imposition of sentence was suspended and appellant was granted 36 months formal
probation with terms and conditions including that he serve one year in county jail.
                   In his opening brief, appellant contended that the finding he did not
transport the drugs for personal use was a fact that increased the mandatory minimum


         1 All further undesignated statutory references are to the Health and Safety Code.
sentence and thus had to be decided by a jury by proof beyond a reasonable doubt, as
contemplated in Apprendi v. New Jersey (2000) 530 U.S. 466, and its recent progeny
Alleyne v. United States (2013) __ U.S. __ [133 S.Ct. 2151].
              After the matter was set for oral argument, we granted appellant's request to
file a supplemental brief and continue the argument. In his supplemental brief, appellant
asserts that his conviction must be reversed in light of a recent amendment to section
11379 that makes transportation for sale, i.e., non-personal use, an element of the
charge.2 The People concede the point.
              When appellant was convicted, section 11379 made any transportation of a
controlled substance punishable as a felony.3 If the court found at sentencing that the
transportation was for the defendant's personal use, i.e., not for sale, he or she was
entitled to drug treatment probation under Proposition 36. (Pen. Code, § 1210.1, subd.
(a); see People v. Dove (2004) 124 Cal.App.4th 1, 4-7.) If the court made a contrary
finding, the defendant was ineligible for Proposition 36 probation. (Dove, at pp. 4, 10.)
The defendant bore the burden of proving personal use by a preponderance of the
evidence. (Id. at p. 10.)
              Effective January 2014, section 11379 was amended to expressly provide
that "'transports' means to transport for sale." (Id. at subd. (c).) Accordingly,
transportation of drugs for personal use no longer constitutes a violation of section
11379.4 The practical effect of this amendment is that transportation of drugs for sale as

        2 We grant appellant's request for judicial notice of the legislative analysis of the
bill that led to the amendment. (Evid. Code, § 452, subd. (c).)
        3 The former statute states in relevant part: "[E]very person who transports,
imports into this state, sells, furnishes, administers, or gives away, or offers to transport,
import into this state, sell, furnish, administer, or give away, or attempts to import into
this state or transport any controlled substance . . . shall be punished by imprisonment
pursuant to subdivision (h) of Section 1170 of the Penal Code for a period of two, three,
or four years." (Former § 11379, subd. (a).)
       4 The legislative history of the bill amending section 11379 states that
"[a]ccording to the author, 'AB 721 would clarify the Legislature's intent to only apply
felony drug transportation charges to individuals involved in drug trafficking or sales.
Currently, an ambiguity in state law allows prosecutors to charge drug users - who are not
                                               2
opposed to personal use is now an element of the offense that must be decided by a jury
(or the court if the right to jury is waived) 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.)
              If the amended statute is retroactive, it applies to appellant because his
appeal is not yet final. (People v. Wright (2006) 40 Cal.4th 81, 90.) The Estrada rule (In
re Estrada (1965) 63 Cal.2d 740) provides that statutes lessening punishment are
presumed to apply retroactively unless a savings clause or its equivalent provides for
prospective application. (Id. at pp. 744-748; People v. Brown (2012) 54 Cal.4th 314,
319-320.) The rule has been extended to apply to an amendment that eliminates
punishment for conduct it used to prohibit. (People v. Rossi (1976) 18 Cal.3d 295, 301;
People v. Collins (1978) 21 Cal.3d 208, 213 ["[A]n amendment eliminating criminal
sanctions is a sufficient declaration of the Legislature's intent to bar all punishment for
the conduct so decriminalized"].)
              The People concede that the amendment to section 11379 is retroactive in
that it eliminates punishment for possession of a controlled substance for personal use.
They further concede that the amendment applies to appellant and that he is thus entitled
to have a jury determine by proof beyond a reasonable doubt whether the
methamphetamine he transported was for sale rather than personal use.
              Appellant's guilty plea cannot stand under the amended version of section
11379 because he did not admit that he transported the drugs for sale or waive his right to
have a jury make such a finding. As the People acknowledge, appellant is thus entitled to

in any way involved in drug trafficking - with TWO crimes for simply being in
possession of drugs. While current law makes it a felony for any person to import,
distribute or transport drugs, the term "transportation" used in the Health and Safety Code
has been widely interpreted to apply to ANY type of movement - even walking down the
street - and ANY amount of drugs, even if the evidence shows the drugs are for personal
use and there is no evidence that the person is involved in drug trafficking. As a result,
prosecutors are using this wide interpretation to prosecute individuals who are in
possession of drugs for only personal use, and who are not in any way involved in a drug
trafficking enterprise. [¶] '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.'" (Com. to Sen. Amend. to Assem. Bill No. 721 (2013-
2014 Reg. Sess.) June 27, 2013.)
                                              3
either (1) exercise his right to a jury trial on the charge, or (2) enter a new guilty plea in
which he admits that he transported the methamphetamine for sale. The People further
acknowledge that "[s]hould appellant cho[o]se to admit the additional element, his
sentencing should remain the same as in the original plea."
                                        DISPOSITION
              The judgment is conditionally reversed. On remand, appellant is entitled to
either admit the "transports for sale" element of the current version of section 11379, or
withdraw his plea. If he chooses the former option, his sentence shall remain the same
and the judgment shall be reinstated as of that date.
              NOT TO BE PUBLISHED.




                                            PERREN, J.


We concur:



              GILBERT, P. J.



              YEGAN, J.




                                               4
                               Donald D. Coleman, Judge

                           Superior Court County of Ventura

                          ______________________________




             California Appellate Project, Jonathan B. Steiner, Richard B. Lennon,
under appointment by the Court of Appeal, for Defendant and Appellant.
             Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Margaret E.
Maxwell, Supervising Deputy Attorney General, Stephanie C. Santoro, Deputy Attorney
General, for Plaintiff and Respondent.




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