Filed 6/10/14 P. v. Cortez CA2/6

           NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not
been certified for publication or ordered published for purposes of rule 8.1115.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

                             SECOND APPELLATE DISTRICT

                                            DIVISION SIX


THE PEOPLE,                                                                   2d Crim. No. B251734
                                                                           (Super. Ct. No. 2012012892)
     Plaintiff and Respondent,                                                  (Ventura County)

v.

ERIKA CORTEZ,

     Defendant and Appellant.




                   Pursuant to a negotiated plea, Erika Cortez pled guilty to
transporting heroin. (Health & Saf. Code, § 11352, subd. (c).)1 She also
admitted that she suffered a prior conviction under section 11352, subdivision
(a), (§ 11370.2, subd. (a)), and that she had served a prior prison term (Pen.
Code, § 667.5, subd. (b)). The trial court sentenced Cortez to the low term of
three years on the transportation charge and a consecutive three years for the
prior conviction. The court stuck the prior prison term enhancement. Because


1
 All statutory references are to the Health and Safety Code unless stated
otherwise.
of a change in the law favorable to Cortez, the People concede we must
reverse and remand for a new trial.
                                  DISCUSSION
               Cortez pled guilty in January 2013. She requested Proposition
36 probation. The trial court held a hearing pursuant to People v. Dove (2004)
124 Cal.App.4th 1, to determine whether she was eligible. The trial court
placed the burden on Cortez to show her transportation was for personal use.
The court found she failed to carry her burden and denied her request for
Proposition 36 probation. The court sentenced her to a six-year term in
August 2013.
               At the time of Cortez's plea and sentencing, section 11352,
subdivision (a) provided in part, "[E]very person who transports . . . any
controlled substance . . . shall be punished by imprisonment . . . for three, four,
or five years." Effective January 1, 2014, the Legislature amended section
11352 to state, "For the purposes of this section 'transports' means to transport
for sale." (Id., subd. (c); Stats. 2013, ch. 504, § 1.)2
               The amendment makes it clear that transportation of a controlled
substance for personal use is no longer an offense under section 11352.
Instead, transportation "for sale" is now an element of the offense. Thus the
prosecution bears the burden of proof on the "for sale" element beyond a
reasonable doubt. (See Witkin & Epstein, Cal. Criminal Law (4th ed. 2012)
Criminal Trial, § 624, pp. 966-967.)
               Absent a saving clause, a defendant is entitled to the benefit of a
more recent statute that mitigates punishment or decriminalizes the conduct.
(People v. Babylon (1985) 39 Cal.3d 719, 725.) A defendant is entitled to the

2
 We grant appellant's Request for Judicial Notice, filed February 4, 2014.
(Evid. Code, § 452, subd. (c).)
                                          2
benefit of a change in the law during the pendency of his appeal. (Id., at pp.
721-722.) Nor does the defendant need a certificate of probable cause to
raise grounds on appeal that occur after entry of the plea. (See Pen. Code,
§ 1237.5.)
              We reverse and remand for a new trial on the question whether
the transportation was for sale.
              NOT TO BE PUBLISHED.




                                           GILBERT, P. J.


We concur:



              YEGAN, J.



              PERREN, J.




                                       3
                     Donald D. Coleman, Ryan J. Wright,
                     David Hirsch, Kevin J. McGee, Judges
                       Superior Court County of Ventura
                     ______________________________


             Jonathan B. Steiner and Richard B. Lennon, California Appellate
Project, under appointment by the Court of Appeal for Defendant and Appellant.
             Kamala D. Harris, Attorney General, Dane R. Gillette, Chief
Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney
General, Paul A. Bernardino, Chung L. Mar and Jonathan J. Kline, Deputy
Attorneys General, for Plaintiff and Respondent.
