Filed 10/27/15 P. v. Contreras 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                                           NOT TO BE PUBLISHED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,

                   Plaintiff and Respondent,                                                 C076288

         v.                                                                      (Super. Ct. No. CR113291)

HEATHER GLADYE CONTRERAS,

                   Defendant and Appellant.


         Defendant Heather Gladye Contreras appeals from her conviction of transportation
of methamphetamine. (Health & Saf. Code, § 11379, subd. (a).)1 On appeal, she
contends the trial court erred in denying her motion to dismiss the conviction based upon
recent amendments to section 11379. We conclude the record shows the trial court’s
order suspended imposition of sentence and defendant was subject only to the terms and
conditions of probation. Thus, the recent amendments to section 11379 apply to



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


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defendant’s conviction for transportation of methamphetamine. Accordingly, we reverse
and dismiss the conviction.
                              Factual and Procedural History
       On July 3, 2011, a law enforcement officer was investigating an expired
registration for a truck. Defendant was a passenger in the truck. During a consensual
search, the officer discovered defendant was in possession of eight baggies containing
methamphetamine. Defendant was charged with transportation of methamphetamine
(§ 11379, subd. (a)--count 1) and with possession of the same methamphetamine for sale
(§ 11378--count 2). On February 1, 2012, a jury convicted defendant of count 1,
acquitted her of count 2 (§ 11378, possession for sale), but found her guilty of the lesser
included offense of possession of methamphetamine. (§ 11377, subd. (a).)
       On April 18, 2012, the trial court granted defendant probation for three years and
ordered her to serve 120 days in county jail, with the jail term stayed pending her
successful completion of probation. On April 19, 2012, defendant filed a notice of
appeal, but the appeal was dismissed by this court on September 13, 2012, because she
did not file an opening brief or request appointment of counsel. The remittitur issued on
November 15, 2012, and defendant remained on probation.
       On December 23, 2013, defendant filed a motion for early termination of her
probation and requested the trial court to reduce her possession of methamphetamine
conviction from a felony to a misdemeanor pursuant to Penal Code section 17,
subdivision (b).
       While defendant’s probation termination motion was pending in the trial court, the
Legislature amended sections 11379 and 11352 (Amendment), which added subdivision




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(c) to each section and became operative January 1, 2014.2 The Amendment states: “For
purposes of this section ‘transports’ means to transport for sale.” (§ 11379, subd. (c),
added by Stats. 2013, ch. 504, § 2 (Assem. Bill No. 721).) According to the Legislative
history, the purpose of the Amendment was to clarify that it was the Legislature’s intent
in originally enacting sections 11379 and 11352 that these sections were to be applied
only to individuals involved in drug trafficking or sales, not to persons walking down the
street in possession of an amount of controlled substance sufficient only for personal use.
(Assem. Bill No. 721, 3rd reading Apr. 19, 2013 (2013-2014 Reg. Sess.) p. 2.)
       On March 4, 2014, relying on In re Estrada (1965) 63 Cal.2d 740 (Estrada),
defendant filed a motion to dismiss her conviction for transportation of
methamphetamine. Estrada held: “[W]here the amendatory statute mitigates punishment
and there is no saving clause, . . . the amendment will operate retroactively so that the
lighter punishment is imposed” in all cases in which the judgment was not yet final when
the amendment took effect. (Id. at pp. 744, 748.)




2       Prior to the Amendment, section 11379 provided in pertinent part: “(a) Except as
otherwise provided in subdivision (b) . . . every 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 [specified] 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.” (Stats. 2011, ch. 15, § 174.)

        Prior to the Amendment, section 11352 provided in pertinent part: “(a) Except as
otherwise provided in this division, every 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 [specified] controlled substance . . . shall be punished by imprisonment pursuant to
subdivision (h) of Section 1170 of the Penal Code for three, four, or five years.” (Stats.
2011, ch. 15, § 154.)


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       On April 11, 2014, the trial court heard defendant’s motions to terminate probation
and to strike the transportation conviction.3 Defendant contended that under Estrada,
supra, 63 Cal.2d 740, she was entitled to the beneficial effect of the Amendment because
her judgment was not final when the Amendment took effect. The judgment was not
final, defendant argued, because at the time the trial court granted her probation it had
suspended imposition of sentence and sentence had never been imposed.
       The trial court denied defendant’s motion to dismiss the section 11379 violation,
reasoning: “The evidence shows that the defendant was convicted by a jury verdict of
both 11379 and 11377. She’s placed on probation after that conviction in April of 2012.
Imposition of judgment was ordered at that particular time. [¶] The following day she
filed a Notice of Appeal, and then on -- I am not sure of the date, but later she dismissed
the Notice of Appeal, so the Third District Court of Appeal[] returned the case to this
court by remittitur on November 15th, 2012. [¶] That means that for retroactivity
purposes, the judgment was final as of that date. [¶] Since, for retroactivity purposes, the
judgment was final in 2012 and since the amendment to 11379 didn’t become effective
until January 1st of 2014, I do not find that the amendment would be applicable in this
particular matter.” (Italics added.)
                                       DISCUSSION
       Defendant contends the trial court erred in denying her motion to strike the
section 11379 conviction because, contrary to the trial court’s finding, no sentence was
imposed on count 1, and, therefore, the judgment was not final when she made the
motion. At oral argument, the People agreed with defendant’s position that imposition of
sentence was suspended in this case, no judgment was entered, and the amendments to



3     These motions were not heard by the same trial court judge who presided over
defendant’s jury trial and sentencing.


                                             4
section 11379 apply to defendant. We agree. The record reflects the trial court’s order
did not impose a sentence but ordered defendant to comply with terms and conditions of
probation. Accordingly, we reverse defendant’s conviction in count 1 and order it
dismissed. As we explain, dismissal is appropriate because the jury’s acquittal of
defendant in count 2 of possession of the same methamphetamine for sale as was charged
in count 1 constituted a finding she had not possessed the methamphetamine for sale.
                                           Analysis
       There is an “important distinction, in probation cases, between orders suspending
imposition of sentence and orders suspending execution of previously imposed
sentences.” (People v. Howard (1997) 16 Cal.4th 1081, 1087.) “When the trial court
suspends imposition of sentence, no judgment is then pending against the probationer,
who is subject only to the terms and conditions of the probation. [Citations.]” (Ibid.)
“[W]here a sentence has actually been imposed but its execution suspended, ‘The
revocation of the suspension of execution of the judgment brings the former judgment
into full force and effect.’ [Citations.]” (Id. at p. 1087.) If a trial court “previously had
imposed sentence, [it] must order that exact sentence into effect [citations].” (Id. at
p. 1088.) Thus, under Howard, imposition of sentence is equated with entry of a final
judgment. When a final judgment is entered, everything about a defendant’s sentence is
prescribed.
       The record reflects the trial court’s order that defendant serve 120 days in jail was
a condition of her probation and not imposition of a sentence with execution suspended.
The preprinted format of the court’s “ORDER ADMITTING DEFENDANT TO
FORMAL PROBATION” contains the following two conditions to be filled in by the
court: (1) “FORMAL PROBATION granted for a period of ______ years,” and (2)
“Following suspended execution of state prison term of ______ years.” The first blank is
filled in with the number “3” and the second space has been left blank. The order then



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goes on for several pages setting out the terms and conditions of probation, one of which
is the condition defendant serve 120 days in jail, stayed pending successful completion of
probation. The prosecutor suggested the trial court “put the issue of jail time off for
awhile, see how she is doing in treatment, and address that at a later date.” In response,
defense counsel agreed with the prosecutor’s suggestion to “stay [the jail time], unless
there’s a reason to impose it.” The trial court stated it was staying the jail time “pending
successful completion of probation, which means if you get through probation, you don’t
have to serve any jail time.”
       Moreover, the fact defendant agreed to probation with the conditions set forth in
the order and signed the order, indicating she understood the terms and conditions of
probation set forth therein, also reflects what is in the order is what was intended. (See
People v. Bravo (1987) 43 Cal.3d 600, 608; People v. Moret (2009)180 Cal.App.4th 839,
851 [a defendant can decline a grant of probation if he or she does not like the conditions
imposed].)
       Based on our review of the record, we conclude defendant’s judgment was not
final at the time she made her motion pursuant to Estrada, supra, 63 Cal.2d 740.
Therefore, she should have been given the benefit of the Amendment.
       In addition, we conclude defendant cannot be retried on count 1. “Double
jeopardy includes an issue preclusion component: once an issue of ultimate fact has been
resolved in a criminal proceeding, it cannot be relitigated in a subsequent prosecution or
retrial.” (Brown v. Superior Court (2010) 187 Cal.App.4th 1511, 1524, citing Yeager v.
U.S. (2009) 557 U.S. 110, 120-121 [174 L.Ed.2d 78, 88-89].) “ ‘An “issue of ultimate
fact” is a fact that must be proven beyond a reasonable doubt at trial, including each of
the essential elements of the charged offense.’ ” (In re Cruz (2003) 104 Cal.App.4th
1339, 1345.) Possession of methamphetamine for the purpose of sale is an element of
both possession of methamphetamine for sale (§ 11378) and, as amended, transportation



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of methamphetamine (§ 11379). Thus, the jury’s acquittal of possession of the
methamphetamine for sale in count 2 precludes a retrial of count 1.
                                     DISPOSITION
      Defendant’s conviction in count 1 is reversed and dismissed.



                                                           /s/
                                                HOCH, J.



 We concur:



        /s/
 RAYE, P. J.



      /s/
 MURRAY, J.




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