Filed 7/25/14 P. v. Long 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                                           NOT TO BE PUBLISHED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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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                         (Yolo)
                                                            ----




THE PEOPLE,                                                                                  C073798

                   Plaintiff and Respondent,                                    (Super. Ct. No. CRF105981)

         v.

JAMES FREDRICK LONG,

                   Defendant and Appellant.




         Defendant was pulled over in a car he was driving. There was marijuana and a
pipe with methamphetamine in the car, and defendant failed three field sobriety tests. A
jury found him guilty of transporting methamphetamine, possessing methamphetamine,
possessing paraphernalia (an opium pipe), and driving under the influence of alcohol or
drugs.1



1     Also charged with these offenses (except for the driving charge) was Leighanna
Ramirez. Before defendant’s trial, Ramirez was convicted of transporting drugs.

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       Defendant appeals from the resulting conviction, raising four instructional and
evidentiary issues. We find merit in one: defendant’s transportation conviction cannot
stand because there was no proof the transportation was for sale, an element that came
into being after the jury found defendant guilty of this crime. We will remand the case to
allow the People to prove this element, if they so choose.
                   FACTUAL AND PROCEDURAL BACKGROUND
       On December 8, 2010, defendant, Ramirez, and Christina Lopez met up at Lopez’s
home in Fairfield. In the afternoon, the three went to Cache Creek Casino. There was a
pipe with methamphetamine that was passed around between the three of them. After
spending about three to four hours at the casino, they got back into defendant’s car, and
defendant started driving.
       Around 6:30 p.m., Yolo County Deputy Sheriff Ryan Mez pulled over defendant’s
car because the left rear brake light was not working. Defendant handed the pipe to
Lopez and told her to get rid of it, so Lopez handed it to Ramirez. The first thing Mez
noticed when he approached the car was that it smelled like marijuana. A nervous and
talkative defendant initially said there was nothing illegal in the car but then said there
was “weed.” Deputy Mez found 4.92 grams of marijuana in the glove box. By this time,
Deputy Sam Machado had come to assist Deputy Mez.
       Deputy Machado was an 11-year veteran of the sheriff’s department, had attended
an experts’ course in recognition of people who are under the influence, and had
administered thousands of field sobriety tests. Deputy Machado gave defendant the
finger count test, the hand pat test (placing one palm on the other), and the Romberg test



Ramirez testified at defendant’s trial, having been called as a witness by the People. At
the time of her testimony, Ramirez was on probation for her conviction. The court
excluded evidence of her probationary status. The jury heard evidence that Ramirez had
a criminal history that included convictions for second degree burglary and “petty theft
with a prior.”

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(tilting one’s head back, closing one’s eyes, and counting 30 seconds in one’s head).
Defendant failed all three. Machado noticed that defendant’s pupils reacted slowly to
light, consistent with stimulant use. Defendant’s tongue had blisters and a white coating,
consistent with methamphetamine smoking. Based on the field sobriety tests and his
observations, Deputy Machado concluded defendant was “unable to operate a vehicle
safely.”
       Deputy Mez transported defendant and Ramirez to jail. Ramirez told Mez she had
two syringes and a pipe inside her bra. She said the syringes were hers but the pipe was
not. The pipe had 0.10 grams of melted methamphetamine inside. Defendant told
Deputy Mez that he had bought the pipe and methamphetamine for $30 earlier that day in
Fairfield. Defendant’s blood tested positive for methamphetamine and marijuana.
                                        DISCUSSION
                                               I
 Defendant’s Conviction For Transporting Methamphetamine Must Be Vacated And The
    Case Remanded To Allow The People To Prove The Transportation Was For Sale
       At the time of defendant’s transportation of controlled substance conviction,
Health and Safety Code section 11379, subdivision (a) provided that “every person who
transports . . . any controlled substance . . . shall be punished by imprisonment . . . for a
period of two, three, or four years.” Case law construed the statute to cover any
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.) After defendant’s conviction, that section was amended by adding
subdivision (c), which provides: “For purposes of this section, ‘transports’ means to
transport for sale.” (Stats. 2013, ch. 504, § 2.)
       Defendant contends his conviction for transportation must be reversed because the
People did not prove that he transported methamphetamine for the purpose of selling it.

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        “When the Legislature amends a statute so as to lessen the punishment it has
obviously expressly determined that its former penalty was too severe and that a lighter
punishment is proper as punishment for the commission of the prohibited act. It is an
inevitable inference that the Legislature must have intended that the new statute imposing
the new lighter penalty now deemed to be sufficient should apply to every case to which
it constitutionally could apply. The amendatory act imposing the lighter punishment can
be applied constitutionally to acts committed before its passage provided the judgment
convicting the defendant of the act is not final.” (In re Estrada (1965) 63 Cal.2d 740,
745.)
        The parties agree that under Estrada the amendment to Health and Safety Code
section 11379 applies to this case, and so do we. Under the amended statute, defendant’s
conviction for transportation cannot stand because the jury did not find defendant
intended to sell the methamphetamine.
        The parties disagree on the remedy. Defendant argues his transportation
conviction must be reversed, while the People argue we should vacate his transportation
conviction and remand the case for the People to decide whether to retry that count, given
the extra element now required to prove the offense. We agree with the People.
        In People v. Figueroa (1993) 20 Cal.App.4th 65, the appellate court held that
where an amendment to a statute that added an additional element to an offense was
applied retroactively to a defendant, the People could have an opportunity to establish the
additional element on remand without offending double jeopardy or ex post facto
principles. (Id. at pp. 71-72.) We will do the same here. Therefore, defendant’s
conviction for transportation of a controlled substance must be vacated and the case
remanded to give the People the opportunity to prove beyond a reasonable doubt that
defendant transported the methamphetamine for sale. We shall remand the case for that
purpose.



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                                              II
                          The Court’s Error In Failing To Instruct
                       That Ramirez Was An Accomplice Was Harmless
       Defendant contends and the People agree the court erred in failing to instruct that
Ramirez was an accomplice. We agree the court should have so instructed, but we find
the error harmless.2
       Because a conviction cannot be based on uncorroborated accomplice testimony
(Pen. Code, § 1111), a trial court has a duty to instruct the jury on accomplice testimony
when the circumstances so require. (People v. Tobias (2001) 25 Cal.4th 327, 331.)
However, error in failing to give an accomplice testimony instruction “is harmless if the
record contains ‘sufficient corroborating evidence.’ [Citation.] ‘Corroborating evidence
may be slight, entirely circumstantial, and entitled to little consideration when standing
alone. [Citations.] It need not be sufficient to establish every element of the charged
offense or to establish the precise facts to which the accomplice testified. [Citations.] It
is “sufficient if it tends to connect the defendant with the crime in such a way as to satisfy
the jury that the accomplice is telling the truth.” ’ ” (People v. Manibusan (2013) 58
Cal.4th 40, 95.)
       As the People note, this was not a case where the only evidence tending to show
that defendant possessed and transported the methamphetamine came from Ramirez’s
testimony. Defendant told Deputy Mez that he had bought the pipe and
methamphetamine for $30 earlier that day in Fairfield. Defendant’s blood tested positive
for methamphetamine. His pupils reacted slowly to light, consistent with stimulant use.
His tongue had blisters and a white coating, consistent with methamphetamine smoking.




2     Ramirez was an accomplice because she was convicted of the same crime
defendant was -- transporting methamphetamine.

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He failed all three field sobriety tests. This evidence corroborated defendant’s guilt of
the crimes, making the error in failing to give the accomplice instructions harmless.
                                              III
                                The Trial Court Did Not Err
                 In Excluding Evidence Of Ramirez’s Probationary Status
       Defendant contends the trial court violated his federal right to confront the
witnesses against him and abused its discretion when it excluded evidence that Ramirez
was on probation at the time of her testimony. We disagree.
       “A trial court’s limitation on cross-examination pertaining to the credibility of a
witness does not violate the confrontation clause unless a reasonable jury might have
received a significantly different impression of the witness’s credibility had the excluded
cross-examination been permitted.” (People v. Quartermain (1997) 16 Cal.4th 600, 623-
624.) A trial court’s discretion in this regard extends to the exclusion of impeachment
evidence regarding a witness’s probationary status. (People v. Chatman (2006) 38
Cal.4th 344, 374.)
       Here, the trial court excluded evidence that Ramirez was on probation, which
resulted from her conviction for transporting methamphetamine in this case. Thus, she
was not a probationer until after she made the statements to police implicating defendant.
For this reason, her probationary status would not show bias in the statement she gave to
police at the time of the arrest. Furthermore, the court allowed the jury to hear that
Ramirez had a criminal history that included convictions for second degree burglary and
“petty theft with a prior.” Thus, exclusion of Ramirez’s probationary status would not
have left the jury with a significantly different impression of her credibility.




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                                              IV
                   Sufficient Evidence Supported Defendant’s Conviction
                  For Driving Under The Influence Of Alcohol Or Drugs
        Defendant contends there was insufficient evidence he was driving under the
influence of alcohol or drugs because “the evidence presented in support of this claim did
not demonstrate that [he] had, actually in fact, been impaired while driving.”
        “[F]or a defendant to be guilty of driving while under the influence of drugs . . . ,
‘ “the . . . drug(s) must have so far affected the nervous system, the brain, or muscles [of
the individual] as to impair to an appreciable degree the ability to operate a vehicle in a
manner like that of an ordinarily prudent and cautious person in full possession of his
faculties.” ’ ” (People v. Canty (2004) 32 Cal.4th 1266, 1278.) “The detailed testimony
of the observable physical and mental reactive state of the defendant . . . experienced in
observing such details” is “sufficient to establish defendant’s condition” for a driving
under the influence conviction. (People v. Macknic (1967) 257 Cal.App.2d 370, 374-
375.)
        Here, Deputy Machado was well versed in spotting the symptoms of intoxication
and driving under the influence, having administered thousands of field sobriety tests.
Deputy Machado gave defendant the finger count test, the hand pat test (placing one palm
on the other), and the Romberg test (tilting one’s head back, closing one’s eyes, and
counting 30 seconds in one’s head), defendant failed all three. Based on these field
sobriety tests, Deputy Machado concluded defendant was “unable to operate a vehicle
safely.” This evidence was sufficient to establish the element that defendant claims was
not proven.
                                       DISPOSITION
        Defendant’s conviction for transporting a controlled substance is vacated. The
matter is remanded to the trial court so that the People may decide whether to retry
defendant for transporting a controlled substance with the element that defendant was

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transporting the methamphetamine for sale. If the People elect to retry defendant, the
trial court shall proceed accordingly. If the People do not elect to retry defendant, the
trial court shall vacate defendant’s conviction for transporting a controlled substance. In
all other respects, the judgment is affirmed.



                                                        ROBIE                  , J.



We concur:



      BLEASE                , Acting P. J.



      DUARTE                , J.




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