Filed 1/28/16 P. v. Piper 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
                                                         (Yolo)
                                                            ----




THE PEOPLE,                                                                                  C078545

                   Plaintiff and Respondent,                                    (Super. Ct. No. CRF131121)

         v.

PAUL ANTHONY PIPER,

                   Defendant and Appellant.




         In April 2013, defendant pled no contest to a single felony count of transporting
methamphetamine. (Health & Saf. Code,1 § 11379, subd. (a).) On appeal, he contends
his conviction should be vacated based upon recent amendments to sections 11377 and
11379. The People argue defendant’s conviction should be reversed and he should be




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

                                                             1
permitted to withdraw his plea. We shall reverse the order denying his motion to vacate
his conviction and remand for further proceedings.
                   FACTUAL AND PROCEDURAL BACKGROUND
       On February 26, 2013, defendant was detained while driving his car. A search of
the vehicle revealed three bags of methamphetamine weighing approximately 2.7 grams.
       Pursuant to the terms of defendant’s plea agreement, the trial court suspended
imposition of sentence and placed defendant on three years’ Proposition 36 probation
(Pen. Code, § 1210.1, subd. (a)), and dismissed other charged counts and some prior
prison term allegations, and ordered defendant to pay various fines and fees.
       In December 2014, defendant moved to vacate his conviction, arguing
section 11379 had been amended and transportation of a controlled substance was no
longer a felony unless the transport was for sale. Because there was no evidence his
transportation of the methamphetamine was for sale, defendant argued the trial court
should vacate his felony conviction and instead impose a misdemeanor sentence for
simple possession. (See § 11377, subd. (a).) The trial court denied the motion.
                                        DISCUSSION
       When defendant entered his plea, section 11379, subdivision (a) provided, “every
person who transports . . . any controlled substance . . . shall be punished . . . for a period
of two, three, or four years.” (Italics added.) Given this language, the courts had
interpreted “transport” in section 11379 to mean any movement of the drug, even for
one’s personal use. (See, e.g., People v. Rogers (1971) 5 Cal.3d 129, 134.) But, effective
January 1, 2014, the Legislature added an additional element to the offense, requiring
transportation be for the purpose of sale. (§ 11379, subd. (c), as amended by Stats. 2013,
ch. 504, § 2.)
       The factual basis for defendant’s plea did not establish whether defendant was
transporting the methamphetamine for sale. Accordingly, the amendment at issue
benefits defendant by imposing an unestablished element of the charged offense. Absent

                                               2
a savings clause, the amendment to section 11379 must be applied to a criminal
defendant whose judgment is not yet final. (In re Estrada (1965) 63 Cal.2d 740, 745;
see also People v. Rossi (1976) 18 Cal.3d 295, 298-299.) Because the court suspended
imposition of defendant’s sentence and defendant remained on probation when the
January 1, 2014, amendment to section 11379 became effective, defendant’s conviction
was not final for purposes of the In re Estrada retroactive analysis. (People v. Howard
(1997) 16 Cal.4th 1081, 1087.)
       Moreover, inasmuch as section 11379 does not contain a savings clause
prohibiting retroactive application of the amended statutory language, we agree with the
parties the amendment must be applied retroactively to defendant.
                                     DISPOSITION
       The order denying defendant’s motion to vacate his conviction is reversed and the
cause is remanded for further proceedings in the superior court. (See People v. Collins
(1978) 21 Cal.3d 208, 215-216; People v. Figueroa (1993) 20 Cal.App.4th 65, 71-72.)



                                                /s/
                                                Robie, J.


We concur:



/s/
Blease, Acting P. J.



/s/
Nicholson, J.




                                            3
