Filed 10/16/14 P. v. Contreras CA6
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT

THE PEOPLE,                                                          H039231
                                                                    (Monterey County
         Plaintiff and Respondent,                                  Super. Ct. Nos. SS121025A, SS122013A)

         v.

JESUS CONTRERAS,

         Defendant and Appellant.


         Defendant Jesus Contreras pleaded guilty to transportation of a controlled
substance and, in a subsequent case, no contest to possession of marijuana in jail. On
appeal, he contends that a recent amendment to the transportation statute (Health & Saf.
Code, § 11379) mitigated the punishment for this offense and must be applied
retroactively to his act of transporting methamphetamine without intent to sell. He
further disputes a laboratory analysis fee and other assessments imposed at the sentencing
hearing along with a narcotics offender registration requirement. Finally, defendant
requests correction of a clerical error in the abstract of judgment. We find defendant’s
first argument to be well taken and therefore reverse the judgment, rendering moot the
remaining issues.
                                                     Background
         On June 25, 2012, defendant was charged in case No. SS121025A with
transporting a controlled substance (methamphetamine), in violation of Health and Safety
Code section 11379, subdivision (a); resisting, delaying, or obstructing a peace officer
(Pen. Code, § 148, subd. (a)(1)); and two counts of driving with a license suspended for
reckless driving, with two prior convictions (count 3, Veh. Code, § 14601.1, subd. (a),
and count 4, Veh. Code, § 14601, subd. (a)). Attached to the transportation count was an
allegation that defendant had a prior strike conviction for carjacking, for which he had
served a prison term. (Pen. Code, § 215, 1170.12, subd. (c)(1); § 667.5, subd. (b).)
Defendant pleaded guilty to all of these charges, with an indicated sentence of five years
instead of “up to nine,” contingent on his not “get[ting] into trouble” before the
November 2 sentencing date.
       On October 22, 2012, a new charge was filed in case No. SS122013A, this time
for possession of marijuana in jail (Pen. Code, § 4573.6, subd. (a)), with an allegation of
the same prior strike conviction for carjacking. Sentencing in SS121025A was continued
to November 14 and thereafter to November 21, 2012.
       On November 14, 2012, defendant entered a negotiated plea of no contest to the
new charge in SS122013A and admitted the special allegation, in exchange for a
two-year term (one-third the midterm, doubled) consecutive to the sentence in
SS121025A, as well as dismissal of a third case. On November 21, 2012, defendant was
sentenced in SS121025A to seven years and in SS122013A to two years, for a total
prison term of nine years. The court also imposed a $205 laboratory analysis fee under
Health and Safety Code section 11372.5, subdivision (a), and other assessments, and it
ordered defendant to register as a narcotics offender under Health and Safety Code
section 11590. From the December 17, 2012 judgment defendant filed this timely appeal,
followed by the issuance of a certificate of probable cause.
                                             Discussion
       The basis of the trial court’s grant of defendant’s request for a certificate of
probable cause was “the retroactive application of the amendment, by Assembly Bill 721,
of Health and Safety Code section 11379, the statute under which the defendant was



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convicted of, and sentenced for, transportation of a controlled substance.” That statutory
amendment is the primary basis of the present appeal.
       At the time of defendant’s 2012 conviction, Health and Safety Code
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section 11379 prescribed a prison term of two, three, or four years for “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 specified in the statute,
including methamphetamine. (See People v. Emmal (1998) 68 Cal. App. 4th 1313, 1316-
1317 [transportation of methamphetamine is punishable regardless of quantity or distance
traveled, and regardless of whether driver was impaired or possessed the substance for
sale]; People v. Lacross (2001) 91 Cal. App. 4th 182, 187 [illegal transportation may be
effected by bicycle].)
       Assembly Bill No. 721, passed in 2013, became effective January 1, 2014. (Stats
2013, ch. 504 § 2.) The intent of the legislation was to make transportation of the
specified controlled substances illegal only if the person had the intent to sell.
Accordingly, subdivision (c) was added to section 11379 to restrict the definition of
“transports” to transports for sale.
       Defendant observes that the amendment contained no “saving clause” allowing
application of the old law to past acts such as his, which evidently did not involve any
intent to sell. (In re Estrada (1965 63 Cal.2d 740, 748 [absent saving clause, an
amendment mitigating punishment applies retroactively to nonfinal judgments].)
Consequently, he argues, the amendment must be applied retroactively so that he is
afforded the benefit of the “mitigate[d] punishment” that would result. Defendant thus



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  All further statutory references are to the Health and Safety Code unless otherwise
specified.

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seeks reversal of the judgment to enable him to “withdraw from his pleas or seek their
modification in light of AB 721.”
       The People agree with defendant that because AB 721 narrowed the applicability
of the offense and contained no saving clause, it applies retroactively to defendant’s
conviction under former section 11379. They concur in defendant’s request that the
judgment in SS121025A be reversed and that defendant be offered the opportunity to
withdraw his guilty plea “and then choose to either plead to a revised transportation count
that includes the new element [of intent] or go to trial as to that count.” The parties
further acknowledge the alternative of an amended information alleging simple
possession of methamphetamine instead of transportation, which would allow defendant
to plead guilty or no contest to that charge.
       Defendant concedes that the conviction in SS122013A is unaffected by this result,
but he maintains that upon remand, the aggregate sentence must be limited to nine years,
the total term originally imposed in both cases. The People agree that a more severe
sentence would not be authorized, only because the plea agreement in SS122013A
contemplated a maximum of nine years. Because defendant will not be permitted to
withdraw his plea in that case, he, like the prosecutor, must be allowed to retain the
benefit of that bargain through the sentencing limit.
       The parties’ position is correct on all of these points. We agree that under
Estrada, the amendment to section 11379 must be retroactively applied to the nonfinal
judgment in SS121025A, the transportation conviction, because the amendment mitigated
punishment and contained no saving clause. (See also People v. Collins (1978) 21 Cal.3d
208, 214 [Estrada applies to convictions by plea].) We further agree with the parties that
the conviction in SS122013A is unaffected by the disposition of SS121025A except that
the negotiated nine-year sentence imposed for the two cases together may not be
exceeded upon remand so that defendant retains the benefit of his bargain.



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       Defendant further challenges the $205 “lab fee” imposed under section 11372.5,
the associated penalty assessments, and the narcotics offender registration requirement.
All of these penal consequences are associated with the transportation conviction in
SS121025A, which will no longer exist when the case is remanded. The issues related to
this count are therefore moot. (People v. Killebrew (2002) 103 Cal.App.4th 644, 661.)
We need not resolve hypothetical sentencing questions applicable to a conviction that
may never occur in subsequent proceedings on this case. Should defendant again be
convicted by plea or trial in SS121025A, we presume the trial court will impose a
sentence authorized by the law pertaining to that offense.
                                       Disposition
       The judgment is reversed. The matter is remanded with directions to the trial
court to allow defendant to withdraw his plea to the transportation count in SS121025A.




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                                  _________________________________
                                  ELIA, Acting P. J.


WE CONCUR:




_______________________________
BAMATTRE-MANOUKIAN, J.




_______________________________
MIHARA, J.




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