Filed 6/23/14 P. v. Smith 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
                                                         (Yolo)


THE PEOPLE,                                                                                  C073638

                   Plaintiff and Respondent,                                      (Super. Ct. No. CR-F-12-
                                                                                          0002896 )
         v.

RENEE MICHELLE SMITH,

                   Defendant and Appellant.




         A jury found defendant Renee Michelle Smith guilty of transporting
methamphetamine, possession of methamphetamine, possession of drug paraphernalia,
and being under the influence of a controlled substance. The trial court later found true
allegations that defendant was twice previously convicted of drug-related offenses. The
trial court granted defendant probation. Defendant appeals.
         Defendant’s sole claim on appeal is that under In re Estrada (1965) 63 Cal.2d 740
(Estrada), the recent amendments to Health and Safety Code section 113791
(transportation of methamphetamine) should be applied retroactively to reverse her drug



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

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transportation conviction. The People agree with defendant’s contention and so do we.
Accordingly, we reverse defendant’s drug transportation conviction but affirm the
judgment in all other respects.
                                     BACKGROUND
       On July 22, 2012, law enforcement found defendant sitting in the front passenger
seat of a car in the Cache Creek Casino parking lot. Two other individuals were also in
the car. Inside the car, law enforcement found a glass pipe with 0.10 grams of
methamphetamine in it and a small vial containing another 0.10 grams of
methamphetamine. Defendant admitted to law enforcement that she was under the
influence of methamphetamine, and that she had smoked methamphetamine from the
pipe found in the car.
       Defendant was charged with transporting methamphetamine (§ 11379, subd. (a)),
possession of methamphetamine (§ 11377, subd. (a)), possession of paraphernalia
(§ 11364, subd. (a)), and being under the influence of a controlled substance (§ 11550,
subd. (a)). The People further alleged defendant was twice previously convicted of drug-
related charges, including possession of a controlled substance for purposes of sale.
(§ 11378.)
       Defendant pleaded not guilty to all charges and on April 24, 2013, a jury found her
guilty as charged. The trial court later found true the allegations that defendant was
previously convicted of two drug-related offenses and awarded defendant probation
pursuant to Proposition 36/Penal Code section 1210.1. Defendant appeals.
                                      DISCUSSION
       On appeal, defendant contends that under Estrada, the recent amendments to
section 11379 (transportation of methamphetamine) should be applied retroactively to
reverse her drug transportation conviction. Defendant argues there was no evidence
admitted at trial that she was transporting methamphetamine for purposes of sale. She



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therefore argues that under the amended section 11379, her conviction for transportation
of methamphetamine must be reversed.
       The People agree with defendant’s contention.
       Among other things, section 11379 provides that any person who “transports”
specified controlled substances including methamphetamine shall be punished by
imprisonment. (§ 11379 [and its predecessor version, Stats. 2001, ch. 841, § 7, pp. 6870-
6871].) Courts had interpreted the word “transports” to include transport of controlled
substances for personal use. (People v. Rogers (1971) 5 Cal.3d 129, 134-135; People v.
Eastman (1993) 13 Cal.App.4th 668, 673-677.) But the Legislature recently amended
section 11379 to define “transports” as transport for sale. (§ 11379, subd. (c); Stats.
2013, ch. 504, §§ 1-2.) Those amendments took effect on January 1, 2014, after
defendant’s conviction and sentencing.
       The amended statute does not contain saving clauses which evince the
Legislature’s intent that the amendments apply prospectively only. According to the
author, the purpose of the amendments was to limit felony drug transportation charges to
individuals involved in drug trafficking. (Assem. Com. on Public Safety, Rep. on Assem.
Bill No. 721 (2013-2014 Reg. Sess.) Apr. 15, 2013, p. 2.) The amendments make it
“ ‘expressly clear that a person charged with this felony must be in possession of drugs
with the intent to sell. Under [the amendments], a person in possession of drugs ONLY
for personal use would remain eligible for drug possession charges. However, personal
use of drugs would no longer be eligible for a SECOND felony charge for
transportation.’ ” (Ibid.) The amendments benefit a defendant by requiring proof of an
additional element -- intent to sell -- for a felony drug transportation conviction, and by
eliminating criminal liability for drug transportation in cases involving possession for
personal use. The parties agree that retroactive application of the amended statute is
consistent with the legislative intent of the amendments. The parties also agree the
amendments to section 11379 took effect when the judgment against defendant was not

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yet final. (People v. Rossi (1976) 18 Cal.3d 295, 304 [the rule applies to any proceeding,
which at the time of the supervening legislation, has not yet reached final disposition in
the highest court authorized to review it].)
       Under the present circumstances, we adhere to the well-established principle that
“where the amendatory statute mitigates punishment and there is no saving clause, the
rule is that the amendment will operate retroactively so that the lighter punishment is
imposed” if the amended statute takes effect before the judgment of conviction becomes
final. (Estrada, supra, 63 Cal.2d at pp. 744, 748.) The rule articulated in Estrada applies
to amendments which add to the elements of a crime or enhancement. (People v. Vinson
(2011) 193 Cal.App.4th 1190, 1197-1199; People v. Todd (1994) 30 Cal.App.4th 1724,
1728-1730; People v. Figueroa (1993) 20 Cal.App.4th 65, 68 (Figueroa).) Under
Estrada, defendant is entitled to the benefit of the amendments to section 11379.
(People v. Vinson, at pp. 1197-1199; People v. Todd, at pp. 1728-1730; Figueroa, at
p. 68.) Accordingly, we will reverse the drug transportation conviction.
       Defendant contends we need not remand the matter for further proceedings
because there is insufficient evidence in the record to prove she was transporting the
methamphetamine for the purpose of sale. The People agree; we do not accept the
People’s concession. We will remand the matter for further proceedings. “Where, as
here, evidence is not introduced at trial because the law at that time would have rendered
it irrelevant, the remand to prove that element is proper and the reviewing court does not
treat the issue as one of sufficiency of the evidence. [Citation.]” (Figueroa, supra,
20 Cal.App.4th at p. 72.)
                                      DISPOSITION
       The judgment regarding defendant’s conviction for transporting methamphetamine
is reversed and remanded for possible retrial. The People shall have 60 days following
remittitur from this court to reinstate the charge for transporting methamphetamine and
retry that charge under amended section 11379.

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       The judgment regarding sentencing also is vacated, and the matter is remanded to
the trial court for resentencing in accordance with this opinion.
       In all other respects, the judgment is affirmed.


                                             BLEASE                 , Acting P. J.


We concur:


         NICHOLSON                 , J.


         HOCH                      , J.




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