Filed 5/4/16 P. v. Oakley 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
                                                     (Sacramento)
                                                            ----




THE PEOPLE,                                                                                  C079774

                   Plaintiff and Respondent,                                     (Super. Ct. Nos. 08F09057,
                                                                                         11F08400)
         v.

JAMES EDWARD OAKLEY,

                   Defendant and Appellant.




         Defendant James Edward Oakley seeks to use a Proposition 47 petition, designed
to reduce specified felonies to misdemeanors, as a vehicle to benefit from a legislative
redefinition of the crime of transportation of methamphetamine. (Health & Saf. Code,
§ 11379.)1 As we explain, that crime is not subject to reduction under Proposition 47, the
Safe Neighborhoods and Schools Act, and defendant’s conviction for that crime was final




1   Further undesignated statutory references are to the Health & Safety Code.

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before the redefinition took effect. We conclude the redefinition cannot be applied
retrospectively, and therefore the trial court properly denied defendant’s petition.
                                     BACKGROUND
       Our opinion affirming defendant’s conviction stated its key holding as follows:

               “[Defendant] was convicted on multiple criminal charges, including
       transportation of methamphetamine. ([§] 11379, subd. (a).) As a repeat offender,
       defendant was sentenced to an aggregate term of 11 years four months in state
       prison. Defendant appeals his sentence, arguing that the trial court wrongly
       sentenced him to an additional three-year term under [section] 11370.2, because
       the transportation of methamphetamine charge for which he was convicted was
       based on transportation for personal use. Defendant also contends the trial court
       wrongly believed it lacked discretion under the three strikes law to sentence
       defendant to a concurrent term for his conviction on the charge of failure to
       appear.

              “In the published portion of this opinion, we conclude that the trial court
       did not err in imposing the three-year enhancement pursuant to [section] 11370.2,
       because that enhancement applies regardless of whether transportation of a
       controlled substance is for personal use.” (People v. Oakley (2013) 216
       Cal.App.4th 1241, 1243 (Oakley).)
       Defendant’s petition for review was denied by the California Supreme Court on
August 14, 2013. (Oakley, supra, 216 Cal.App.4th 1241, review den. Aug. 14, 2013,
S211669.) He concedes his conviction became final later in 2013, after he failed to seek
review by the United States Supreme Court.
       On February 11, 2015, the trial court granted defendant’s Proposition 47 petition
to reduce his conviction for simple possession, section 11377, subdivision (a), to a
misdemeanor, imposed a one-year jail sentence, and stayed it pursuant to Penal Code
section 654. This reduction had no effect on the length of his sentence, as execution of
the prior felony sentence for that count had been stayed at the original sentencing
hearing. (See Oakley, supra, 216 Cal.App.4th at p. 1245, fn. 4.)




                                              2
       On March 6, 2015, defendant filed a handwritten letter pointing out in part that as
of January 1, 2014, section “11379 was amended meaning you could [have] struck the
transportation from my record.” On March 9, 2015, a clerk sent defendant a letter stating
Proposition 47 relief was denied, because the offense of transportation of a controlled
substance “is not eligible for relief” under Proposition 47.
       On June 29, 2015, defendant then filed a formal petition for redesignation of his
sentence under Proposition 47, which was treated as a motion for reconsideration and
denied on that day.
       On July 13, 2015, defendant filed a notice of appeal, specifying that it was from
the judgment of March 26, 2012, and requesting a certificate of probable cause.
However, in his accompanying request for a certificate of probable cause (which was
granted), defendant outlined in narrative form the procedures to that date. Liberally
construed, the outline indicates his intention to appeal from the denial of his formal
Proposition 47 petition, rather than re-appeal from the original judgment. We deem his
notice of appeal to be from the latter order.2
                                        DISCUSSION
       Defendant contends he is entitled to the benefit of the legislative redefinition of
transportation to require intent to sell, despite the fact that this legislation took effect after
finality of his conviction therefor. We disagree.




2 We treat the hand-written letter as an informal request to the court, and the notice of
appeal as timely from defendant’s formal Proposition 47 petition. We note that defendant
was not challenging the validity of a guilty or no contest plea, inasmuch as he had two
jury trials on the various charges resulting in the sentence we previously affirmed (see
Oakley, supra, 216 Cal.App.4th at pp. 1244-1245), and there was no plea at issue
regarding the Proposition 47 petition. Thus there was no basis for issuance of a
certificate of probable cause in this case.

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       Defendant reasons as follows:

               “Although inartfully pleaded, Mr. Oakley’s petition for Proposition 47
       relief turned upon his contention that another recent law, AB 721, operated to
       reduce his prior transportation conviction to simple possession in violation of
       [section] 11377. If that contention proved correct, Proposition 47 would then
       convert that possession conviction into a misdemeanor. And if that were so, Mr.
       Oakley’s conviction of [section] 11379, doubled for a [strike] and enhanced by a
       three-year drug prior conviction, would become a misdemeanor and, instead of
       carrying nine years, would carry a maximum of one year.”
       The main flaw in this reasoning is that the law redefining transportation to add the
element of intent to sell does not operate retroactively so as to affect final judgments.
Defendant collaterally attacked his convictions in the trial court through a petition
brought pursuant Penal Code section 1170.18, which was enacted as part of Proposition
47. While the statutes defining the crime of transportation of a controlled substance now
defines transport to “means to transport for sale” (§ 11379, subd. (c)), that change was
enacted by the Legislature (Stats. 2013, ch. 504, § 2) not by the voters via Proposition 47.
There is no dispute that section 11379 is not one of the listed crimes subject to
redesignation as a misdemeanor under Proposition 47.
       Defendant argues that the Legislature’s changes to the transportation statute
should apply to him. The legislative amendment to section 11379 did not include an
explicit savings clause prohibiting retroactive application of the amended statutory
language, nor is there any other indication of “clear legislative intent” that the amended
statutory language is only to be applied prospectively. (People v. Rossi (1976) 18 Cal.3d
295, 299.) Because the amendment benefits a defendant by eliminating criminal liability
for drug transportation in cases involving possession for personal use, it must be applied
retroactively to any case in which the judgment was not final when the amendment
occurred. (See In re Estrada (1965) 63 Cal.2d 740, 745.)
       Here, however, defendant’s conviction was final.




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       Defendant notes that Estrada does not bar retroactive application to final
judgments of conviction when the Legislature intends for the change to apply
retrospectively. (See People v. Flores (1979) 92 Cal.App.3d 461, 470-474.) He
additionally points out that retrospective application is not an issue when the legislative
amendment merely clarifies existing law. (See Carter v. California Dept. of Veterans
Affairs (2006) 38 Cal.4th 914, 922 (Carter) [“[a] statute that merely clarifies, rather than
changes, existing law is properly applied to transactions predating its enactment”].)
Asserting that the legislative history of the bill’s changes to the transportation statute
shows that the bill was intended to merely clarify existing law, defendant concludes the
changes should apply to his conviction.
       In People v. Rogers (1971) 5 Cal.3d 129, our Supreme Court held that the offense
of transportation of marijuana (former § 11531) did not require “a specific intent to
transport contraband for the purpose of sale or distribution, rather than personal use.”
(Rogers, at p. 134.) As the court explained, “Neither the word ‘transport,’ the defining
terms ‘carry,’ ‘convey,’ or ‘conceal,’ nor [former] section 11531 read in its entirety,
suggests that the offense is limited to a particular purpose or purposes. [¶] . . . [N]othing
in that section exempts transportation . . . of marijuana for personal use. Had the
Legislature sought to restrict the offense of transportation to situations involving sale or
distribution, it could easily have so provided.” (Id. at pp. 134-135.) Up until the recent
changes to the transportation statute, it remained the law in California that the illegal
transportation of controlled substances did not require the transportation to be for
purposes of sale. (See, e.g., People v. Eastman (1993) 13 Cal.App.4th 668, 673-677.)
       The “ ‘interpretation of a statute is an exercise of the judicial power the
Constitution assigns to the courts’ ” and “[w]hen [the California Supreme Court] ‘finally
and definitively’ interprets a statute, the Legislature does not have the power to then state
that a later amendment merely declared existing law.” (Carter, supra, 38 Cal.4th at
p. 922.) Any legislative intent is irrelevant to the question of whether an amendment

                                               5
changes or clarifies the law. In Rogers, the Supreme Court held that transportation of a
controlled substance did not have a requirement that the transportation be intended for
sale. The Legislature did not--and could not--“clarify” that decision when it added the
for sale requirement by adopting new subdivision (c) of section 11379, instead it
abrogated the Rogers holding by redefining the crime of transportation.
       Because defendant’s conviction was final before the effective date of the
redefinition of transportation, and that change did not merely clarify existing law, the
new definition of transportation did not apply to his conviction. Accordingly, the trial
court correctly denied defendant’s petition.
                                      DISPOSITION
       The order denying defendant’s petition is affirmed.




                                                         /s/
                                                   Duarte, J.



We concur:



      /s/
Blease, Acting P. J.




     /s/
Hoch, J.




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