Filed 3/3/16 P. v. Martin 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
                                                       (Tehama)
                                                            ----



THE PEOPLE,                                                                                  C079101

                   Plaintiff and Respondent,                                    (Super. Ct. No. NCR88411)

         v.

KEVIN DALE MARTIN,

                   Defendant and Appellant.




         This case comes to us pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende).
We modify the sentence to comport with Penal Code section 654 and otherwise affirm
the judgment.
         We provide the following brief description of the facts and procedural history of
the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)
                        FACTUAL AND PROCEDURAL BACKGROUND
         On September 18, 2013, defendant Kevin Dale Martin was riding his bicycle at
night without lights. An officer stopped him and determined he was on postrelease
community supervision and subject to a search condition. Defendant had a bag that

                                                             1
contained four small individual baggies, each containing methamphetamine. The total
gross weight was 5.4 grams. Defendant told police he bought the methamphetamine for
$50.
       The People later charged defendant with transportation of methamphetamine
(Health & Saf. Code, § 11379, subd. (a))1 and possession of methamphetamine for sale
(§ 11378). The People further alleged defendant served six prior prison terms pursuant to
Penal Code section 667.5, subdivision (b), and was four times previously convicted of
crimes related to controlled substances trafficking (§ 11370.2, subd. (c)).
       Defendant pleaded guilty to both charges and admitted the four prior controlled
substance trafficking convictions. In exchange for his plea, the People agreed they would
move to dismiss the prior prison term allegations and that defendant could participate in
Tehama County’s felony drug court program, serving up to one year in county jail. The
People also agreed if defendant were found ineligible for drug court, he would be allowed
to withdraw his plea. Defendant acknowledged the maximum possible sentence for his
convictions, including the enhancement allegations, was 16 years.
       The probation department found defendant eligible for the drug court program.
Accordingly, the trial court placed defendant on formal probation for three years, gave
him credit for time served, and directed that defendant would serve 90 days in the county
jail for any violation of probation or the felony drug court rules.
       On April 3, 2014, defendant tested positive for methamphetamine and self-
disclosed he had consumed alcohol. He was remanded for seven days. On May 6, 2014,
defendant tested positive for methamphetamine and was remanded for 15 days.
Defendant tested positive for methamphetamine a third time on May 22, 2014. He was
arrested and booked into the county jail for 30 days. After he was released from custody,



1 Undesignated statutory references are to the Health and Safety Code at the time of the
charged offenses.

                                              2
defendant failed to report to probation or drug and alcohol services. On June 9, 2014,
defendant failed to appear in court for adult felon drug court review and a warrant was
issued for his arrest.
       On June 18, 2014, the probation department filed a petition to revoke defendant’s
probation. The department filed an amended petition the following day, alleging
defendant violated four probation conditions: testing positive for methamphetamine,
failing to report to the probation officer upon his release from confinement, failing to
attend treatment with the drug and alcohol program, and failing to appear in court for his
drug court review hearings.
       Defendant’s whereabouts were unknown until October 29, 2014, when he was
arrested. He was released from custody with a promise to appear, but on December 4,
2014, defendant failed to appear in court and the trial court issued a bench warrant.
Defendant was arrested again on January 3, 2015. On February 23, 2015, defendant
admitted the probation violations.
       Prior to sentencing, defendant made a motion pursuant to People v. Marsden
(1970) 2 Cal.3d 118, to replace his appointed counsel. Defendant raised numerous claims
that counsel was ineffective, counsel forced him to sign a plea agreement, and counsel
failed to communicate with him. The court denied defendant’s motion.
       At sentencing, the trial court denied defendant’s request to be reinstated to felony
drug court and denied defendant probation. The trial court sentenced defendant to an
aggregate term of 15 years in county jail calculated as follows: the midterm of three
years on count one, transporting a controlled substance, and three years for each of the
four prior controlled substance trafficking convictions. The court also suspended four
years of the aggregate term, during which time defendant would be subject to mandatory
supervision. The trial court awarded defendant 353 days of custody credit, reinstated the
fines and fees as originally ordered, and lifted the stay on the Penal Code section 1202.44
fine. As for the sentence on count two, possession of a controlled substance for sale, the

                                             3
trial court initially forgot to sentence defendant. When the case was called again to
correct this error, all the court said was, “Count 2 is -- which is the 11378, arose at the
same time and of the same occurrence and we’ll 654 that.” The court did not impose and
stay execution of any sentence on count two.
       Defendant appeals without a certificate of probable cause.
                                       DISCUSSION
       We appointed counsel to represent defendant on appeal. Counsel filed an opening
brief that sets forth the facts of the case and requests this court to review the record and
determine whether there are any arguable issues on appeal. (Wende, supra, 25 Cal.3d
436.) Defendant was advised by counsel of the right to file a supplemental brief within
30 days of the date of filing of the opening brief.
       Defendant filed a supplemental brief raising numerous claims of error. His claims
lack merit.
                                    A. Case No. 90508
       Defendant raises numerous concerns about case No. “NCR 90508,” including a
claim that he “take a deal” under case No. NCR 90508 but his attorney appealed case
No. NCR88411. Any claim regarding case No. NCR 90508 is not properly before this
court. It is not the case from which defendant appealed. More importantly, the trial court
dismissed case No. NCR 90508 so, as far as we can tell from the record before us, that
matter is closed. For that reason, defendant’s request to augment the record with
documents related to case No. NCR 90508 (none of which he provided with his request)
is denied.
                           B. Ineffective Assistance of Counsel
       Defendant claims he received ineffective assistance of counsel in the trial court.
Among other things, defendant claims he was mislead by counsel during plea
negotiations, that counsel did not look out for defendant’s best interests, and counsel



                                              4
failed “to calculate correctly the maximum potential sentence befor[e] permitting a
defendant to enter a plea . . . .”
        A certificate of probable cause is required when defendant asserts his plea resulted
from ineffective assistance of counsel (People v. Stubbs (1998) 61 Cal.App.4th 243, 244-
245), his plea “was induced by misrepresentations of a fundamental nature” (People v.
Panizzon (1996) 13 Cal.4th 68, 76), “warnings regarding the effect of a guilty [or nolo
contendere] plea . . . were inadequate” (ibid.), and to the extent he questions “ ‘the very
sentence he negotiated as part of the plea bargain’ ” (People v. Cuevas (2008) 44 Cal.4th
374, 382). Because defendant did not obtain a certificate of probable cause, these claims
are not properly before this court on appeal.
            C. Reducing Felony Transportation Conviction to a Misdemeanor
        Defendant further contends his felony conviction for transportation of
methamphetamine should be reduced to a misdemeanor because the People failed to
plead and prove that he was transporting the methamphetamine for purposes of sale. We
disagree.
        At the time of defendant’s conviction, section 11379, subdivision (a), provided,
among other things, that every person who transports any controlled substance unless
upon the prescription of a physician shall be punished by imprisonment for a period of
two, three, or four years. Nothing in section 11379 specified any required intent to sell.
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.)
        While defendant’s case was pending in the trial court, the Legislature amended
section 11379 by adding, among other things, subdivision (c), which provides: “For
purposes of this section, ‘transports’ means to transport for sale.” (Stats. 2013, ch. 504,
§ 2.)

                                                5
        “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.)
        Despite Estrada, however, the amendment to section 11379 does not apply to this
case. Defendant’s conviction for transporting methamphetamine may stand because
defendant pled guilty to both transportation of methamphetamine and possession of
methamphetamine for sale. The trial court stated that those crimes arose at the same time
and from the same occurrence. Thus, under these circumstances, the record establishes
defendant had the requisite intent to sell the same methamphetamine he was transporting.
As a consequence, defendant is not entitled to a reduction of his felony conviction for
transportation to a misdemeanor.
                                   D. Double Jeopardy
        Defendant claims his plea to both transportation of methamphetamine and
possession of methamphetamine for sale violate the prohibition against double jeopardy.
Defendant is wrong.
        A defendant can be found guilty of transporting a controlled substance without
possessing it. (People v. Rogers (1971) 5 Cal.3d 129, 134.) Thus, possession of a
controlled substance is not a lesser included offense of transportation of the controlled
substance, and a defendant may properly be convicted of both. (People v. Watterson
(1991) 234 Cal.App.3d 942, 944-947.)



                                             6
                                E. Penal Code Section 654
       As we have noted, the trial court initially forgot to sentence defendant on count
two, possession of a controlled substance for sale. When it did sentence defendant, all
the court said was, “Count 2 is -- which is the 11378, arose at the same time and of the
same occurrence and we’ll 654 that.” Thus, the record is clear that the trial court failed to
impose and stay a sentence on count two.
       The trial court must impose a sentence on any count subject to Penal Code section
654 and then stay execution of the sentence on that count. (People v. Alford (2010) 180
Cal.App.4th 1463, 1469-1472.) “[O]therwise if the nonstayed sentence is vacated, either
on appeal or in a collateral attack on the judgment, no valid sentence will remain.” (Id. at
p. 1469.) Because the trial court imposed an unauthorized sentence, we could remand for
a new sentencing hearing, but “[t]he futility and expense of such a course militates
against it.” (Id. at p. 1473.) Instead, we impose a midterm sentence of two years for
possession of a controlled substance for sale, because that is undoubtedly the sentence the
trial court would have imposed given that the possession for sale involved the same drugs
defendant transported and the trial court sentenced defendant to the midterm on the
transportation count. (Ibid.)
                                      F. Conclusion
       Having undertaken an examination of the entire record, we find no arguable error
that would result in a disposition more favorable to defendant.




                                             7
                                     DISPOSITION
       We modify the judgment to impose the midterm sentence of two years on count
two, possession of a controlled substance for sale, and order that execution of that
sentence be stayed pursuant to Penal Code section 654. We direct the trial court to
prepare an amended abstract reflecting the imposition of this sentence and the stay
pursuant to Penal Code section 654. The trial court is further directed to forward a
certified copy of the amended abstract to the California Department of Corrections and
Rehabilitation. The judgment is otherwise affirmed.


                                                        MURRAY                , J.

We concur:



      ROBIE                 , Acting P. J.



      DUARTE                , J.




                                             8
