Filed 8/28/14 P. v. Taylor CA1/4
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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

                                       FIRST APPELLATE DISTRICT

                                                 DIVISION FOUR


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A136552
v.
MICHELLE LYNN TAYLOR,                                                (Del Norte County
                                                                     Super. Ct. No. CRF119222)
         Defendant and Appellant.


                                                             I.
                                                INTRODUCTION
         This case arises in part from a routine traffic stop in which drugs were found in
appellant’s possession, resulting in her conviction of, among other things, transportation
of a controlled substance (methamphetamine). (Health & Saf. Code, § 11379.) A
subsequent amendment to section 113791 now requires that transportation of a controlled
substance must be for purposes of sale to fall within the statute’s proscription. (Stats.
2013, ch. 504, § 2, p. 4288.) The Attorney General concedes the amended statute must
be applied retroactively. We shall therefore reverse the conviction on the transportation
count and remand for retrial. We find it unnecessary to reach appellant’s other issues, but
we note the remaining convictions would leave appellant eligible for drug treatment
under Proposition 36 (Prop 36).



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


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                                              II.
                                  STATEMENT OF FACTS
       On March 31, 2011, at about 7:15 p.m., Crescent City Police Officer Justin Gill
initiated a routine traffic stop of a pickup truck for a defective tail light. Appellant’s
boyfriend, Damian VanParks, was driving the truck, and appellant Michelle Lynn Taylor
was a passenger. Two backup officers arrived at the scene, including California Highway
Patrol Officer Theodore Luna.
       When Luna arrived he saw Gill remove VanParks from the vehicle and place him
under arrest as an unlicensed driver. Gill then directed appellant to exit the truck. When
Taylor turned to face the pickup, Luna noticed her reach into her waistband with her left
hand. Luna grabbed appellant’s arm and asked her if she had any weapons. Appellant
responded, “It’s not mine. It’s not mine.” After Luna handcuffed appellant, she was
allowed to remove a “bundle” from her pants, which Gill confiscated. It contained
several individual bags of a white crystalline powder, which later tested positive for
methamphetamine. Each of the individual bags contained a usable amount.
       While appellant was detained in Luna’s patrol car, she spontaneously explained
how she came to be holding the package. As Luna summarized, “the driver had handed
her the baggie or the bindle and asked her to hide it in her pants, stating they’d more than
likely search him but not her.”
       In a separate incident, at 4:00 p.m. on September 5, 2011, Del Norte County
Deputy Sheriff Richard Griffin contacted appellant inside a trailer at the Shangra-La
Trailer Park, where he was executing an arrest warrant for VanParks. Griffin noticed
appellant had “piano fingers” and “bruxism,” which are indicia of being under the
influence of a stimulant. Griffin conducted a further section 11550 evaluation and
arrested appellant. He explained to the jury the signs of drug intoxication he detected
and testified as an expert that appellant was under the influence of a central nervous
system stimulant when she was arrested.
       After receiving Miranda warnings (Miranda v. Arizona (1966) 384 U.S. 436),
appellant told Griffin she normally smoked methamphetamine, “[b]ut she’d recently been


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forced to inject methamphetamine by Mr. VanParks.” She showed Griffin several
injection marks on her arms and admitted to him she had used half a gram of
methamphetamine the day before. Griffin testified the effects of that quantity could last
at least two to three days.
                                            III.
                               PROCEDURAL HISTORY
       The district attorney initially filed an information charging appellant with three
felony counts: transportation of a controlled substance (§ 11379), possession for sale
(§ 11378), and possession of a controlled substance (§ 11377), all relating to the
methamphetamine found on her during the March 2011 traffic stop. An amended
information was later filed2 charging appellant with five counts: the three originally
charged and two new misdemeanors stemming from the later incidents: possession of a
hypodermic needle (former § 11364) and being under the influence of methamphetamine
(§ 11550). Prior to trial, the prosecution dismissed the possession for sale charge (count
two) and the misdemeanor charge for possession of an injecting device (count four).
       After a two-day jury trial appellant was found guilty of the three remaining counts:
(1) transportation of methamphetamine (count one), (2) possession of methamphetamine
(count three), and (3) being under the influence of methamphetamine (count five).3 The
court imposed the middle prison term of three years on the transportation count (§ 11379)
and imposed, but stayed under Penal Code section 654, a two-year sentence on the
possession count (§ 11377). The court suspended execution of the prison term and
granted appellant three years’ probation. The court then sentenced her to one year in


       2
         In January 2012, the continued prosecution of this matter was turned over to the
Attorney General’s Office due to a conflict of interest with Del Norte County District
Attorney Jon Alexander, who was alleged to have committed a violation of Massiah v.
United States (1964) 377 U.S. 201 in this case. The State Bar Court later recommended
disbarment of Alexander in Case No. 11-O-12821, finding true the alleged Massiah
violation.
       3
         The parties refer to these as counts one, two and three, but the court clarified on
the record that the convictions were on counts one, three and five.


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county jail on the misdemeanor but authorized her early release from jail for transition
into drug treatment if a bed became available in a long-term residential rehabilitation
program.
                                            IV.
                                      DISCUSSION

     A. Amendment of section 11379 on transportation of a controlled substance
       Appellant originally raised two issues on appeal. First, she claimed the court’s
instruction on count one (transportation) was improper insofar as it told the jury she could
be convicted based on a de minimis theory of transportation: carrying or moving the
contraband “from one location to another, even if the distance is short.” She had
consistently claimed VanParks tossed the drugs to her as he was bringing the pickup to a
stop in reaction to being pulled over by the police.4 She argued on appeal there was no
substantial evidence showing she made “any volitional act in furtherance of, or actually
and knowingly transport[ed] the contraband.” Second, she argued she should have been
granted Prop 36 drug treatment, claiming she was statutorily eligible despite her
conviction for transportation of a controlled substance because the drugs transported were
for personal use. (Pen. Code, § 1210, subd. (a).)
       After the Attorney General filed her respondent’s brief, appellant sought and was
granted permission to file a supplemental brief raising the issue that section 11379 had
been amended effective January 1, 2014, to allow conviction only if the drugs were




       4
        A drug-sniffing dog who searched outside the vehicle also alerted to the
presence of drugs on the driver’s side of the truck.


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transported for purposes of sale, specifically by addition of subdivision (c).5 Since
Taylor’s conviction was not yet final on appeal, she argued the amended version of the
statute applied to her case and requested remand for a new trial on that count.
       The Attorney General has since filed a supplemental brief acknowledging
appellant is correct on the issue of retroactivity, and conceding the conviction on count
one must be reversed. (See, e.g., People v. Rossi (1976) 18 Cal.3d 295, 302 [retroactive
application of statutory amendment decriminalizing oral copulation between consenting
adults]; In re Estrada (1965) 63 Cal.2d 740, 748 [retroactive application of statute
reducing penalty for escape]; People v. Trippet (1997) 56 Cal.App.4th 1532, 1544
[retroactive application of Compassionate Use Act].)
       We agree with that assessment. The parties presented no evidence―and the jury
was not instructed―on intent to sell as an element of the transportation charge. The jury
was told only that a “usable amount” was required. Though the packaging could have
supported a “for sale” finding, there is nothing in the record to suggest the quantity
involved could not also reasonably have been found to be for personal use. The judgment
must be reversed as to count one, but the prosecution is entitled to retry that charge,
proving the methamphetamine was transported for sale, if it elects to pursue the matter.
(People v. Figueroa (1993) 20 Cal.App.4th 65, 71-72; see also, People v. Trippet, supra,
56 Cal.App.4th at pp. 1548-1551.)



       5
          Section 11379 now reads: “(a) Except as otherwise provided [in specified
statutes], 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 controlled
substance . . . which is not a narcotic drug, . . . [with specified exceptions] shall be
punished by imprisonment . . . for a period of two, three, or four years.
[¶] (b) Notwithstanding the penalty provisions of subdivision (a), any person who
transports any controlled substances specified in subdivision (a) within this state from
one county to another noncontiguous county shall be punished by imprisonment . . . for
three, six, or nine years. [¶] (c) For purposes of this section, ‘transports’ means to
transport for sale. [¶] (d) Nothing in this section is intended to preclude or limit
prosecution under an aiding and abetting theory or a conspiracy theory.”


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                     B. The argument under Proposition 36 is moot
       In light of our reversal of count one we find the second issue raised by appellant
relating to her eligibility under Prop 36 is moot. The statutes implementing Prop 36
require drug treatment instead of jail for defendants convicted only of a “nonviolent drug
possession offense,” including “the unlawful . . . transportation for personal use of any
controlled substance.” (Pen. Code, §§ 1210, subd. (a), 1210.1.) Appellant claimed she
was statutorily eligible for a Prop 36 disposition despite her transportation conviction
because the methamphetamine was for her personal use.
       Because there is no specific offense called “transportation of a controlled
substance for personal use,” the sentencing court was required to determine whether the
transportation was for sale, and not for personal use, before finding that appellant was
ineligible under Prop 36. The drugs found on appellant after the traffic stop were
packaged in 12 individual bindles, each containing a usable amount. This suggests
packaging for sale and would have supported an implied finding that appellant was
statutorily ineligible under Prop 36.
       However, we need not pursue the issue further in light of our conclusion that the
transportation count must be reversed. With the reversal of the transportation count
appellant would have no convictions making her ineligible under Prop 36. The
applicability of Prop 36 will then turn on the outcome of the retrial, if any. Resentencing
under Prop 36 will be required if the prosecution decides not to pursue a retrial on count
one, or if appellant is acquitted after a retrial. We remand in anticipation of further
proceedings consistent with this opinion. (Pen. Code, § 1260.)
                                              V.
                                        DISPOSITION
       The conviction on count one is reversed and appellant’s sentence is vacated. Her
convictions on counts three and five are affirmed. The prosecution may retry appellant
on count one within the time limit set forth in Penal Code section 1382. If appellant is
retried and found guilty of transportation of a controlled substance for sale, the trial court
shall resentence her on that conviction as well as on counts three and five. If appellant is


                                              6
found not guilty on retrial, or if the prosecution elects not to retry appellant on count one,
the trial court shall resentence her on counts three and five under Prop 36. The trial court
may conduct any necessary ancillary proceedings consistent with this opinion.




                                                   _________________________
                                                   RUVOLO, P. J.


We concur:


_________________________
REARDON, J.


_________________________
RIVERA, J.




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