Filed 9/28/15 P. v. Vergason CA3
                                                NOT TO BE PUBLISHED
           California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not
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publication or ordered published for purposes of rule 8.1115.




                    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                            THIRD APPELLATE DISTRICT
                                                              (Shasta)
                                                                 ----




THE PEOPLE,                                                                                    C078272

                   Plaintiff and Respondent,                                       (Super. Ct. Nos. 14F1757,
                                                                                           13F2575)
         v.

RICHARD WILLIAM VERGASON,

                   Defendant and Appellant.




         Defendant Richard William Vergason contends his felony conviction for
transportation of hydrocodone must be reversed because it was not proved that he
transported the drug for sale. The People agree, and so do we. We shall reverse and
remand for further proceedings.
                         FACTUAL AND PROCEDURAL BACKGROUND
                                                    The 2013 Case
         In April 2013, a complaint charged defendant with 12 counts, including
transportation of hydrocodone and possession of stolen property. Defendant thereafter

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pled no contest to those two counts in return for a promised grant of probation with a
maximum of 365 days in county jail at the outset. The balance of the counts were
dismissed by the People in the interests of justice, except for a charge of possession of
stolen property, as to which defendant entered a Harvey1 waiver.
       In September 2013, the trial court placed defendant on probation for three years,
including 120 days in county jail with credit for eight days of time served.
                                      The 2014 Case
       In April 2014, defendant was charged with eight counts, including three counts of
possession of a firearm by a convicted felon, and alleged defendant had been convicted of
a prior narcotics-related felony.
       Thereafter, the probation officer filed a petition to revoke defendant’s probation in
the 2013 case, alleging four violations.
       In May 2014, defendant waived preliminary hearing subject to being able to plead
guilty to two counts of possession of a firearm by a felon and to admitting violation of
probation, in return for a promise of a suspended five-year state prison term.
       In September 2014, defendant pled guilty to possession of a firearm by a felon and
admitted the first alleged probation violation (possession of a firearm by a felon) in return
for a four-year four-month state prison lid. On motion of the People, the balance of the
charges and alleged probation violations were dismissed with a Harvey waiver.
       In December 2014, the trial court granted defendant’s petition to reduce a count of
receiving stolen property in the 2013 case to a misdemeanor. The court terminated
defendant’s probation in that case and sentenced him to three years in state prison (the
low term) for transportation of hydrocodone.




1      People v. Harvey (1979) 25 Cal.3d 754 (Harvey).

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       In the 2014 case, the trial court denied defendant’s application for probation and
sentenced defendant to eight months (one-third the middle term) consecutive to the
sentence in the 2013 case.
       The trial court awarded defendant 120 days of presentence custody credits (60
actual days and 60 conduct days). The court imposed the following fines and fees: as to
the 2013 case (a $1,120 restitution fine, a $1,120 suspended parole revocation restitution
fine, and a $1,120 restitution fine due on revocation of probation); as to the 2014 case: (a
$300 restitution fine and a $300 suspended parole revocation restitution fine, a $40 court
security fee, and a $30 criminal conviction assessment).
       In the 2013 case, a California Highway Patrol officer stopped defendant’s vehicle
on April 23, 2013, for observed Vehicle Code violations; after determining that defendant
was driving on a suspended license and the vehicle had been reported stolen, the officer
searched the vehicle for contraband and found items including prescription pills and
unlabeled prescription bottles. In the 2014 case, during a probation search, defendant
was found to be in possession of two handguns and one bolt action rifle.
                                      DISCUSSION
       Defendant contends his felony conviction for transportation of hydrocodone in the
2013 case must be reversed because the Legislature subsequently amended the
controlling statute (Health & Saf. Code, § 11352, subd. (a)) to make intent to sell an
element of the offense, and that element was not charged or admitted in his case.
(See In re Estrada (1965) 63 Cal.2d 740, 745.) The People agree, as do we. We reverse
defendant’s conviction on that count (count 3) and remand the matter for resentencing.


                                      DISPOSITION
       Defendant’s conviction for transportation of hydrocodone is reversed and the
matter is remanded to the trial court for further proceedings consistent with this opinion.



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                                   ROBIE   , J.



We concur:



     BLEASE   , Acting P. J.



     BUTZ     , J.




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