Opinion
F073326
08-25-2017
THE PEOPLE, Plaintiff and Respondent, v. DAVID BRIAN BLAKE, Defendant and Appellant.
Kyle D. Smith, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Bacerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Marcia A. Fay, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. MF011520A)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Kern County. Eric Bradshaw, Judge. Kyle D. Smith, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Bacerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Marcia A. Fay, Deputy Attorneys General, for Plaintiff and Respondent.
Before Detjen, Acting P.J., Meehan, J. and Black, J.†
-ooOoo-
A jury convicted defendant David Brian Blake of transporting marijuana (Health & Saf. Code, § 11360, subd. (a)). On appeal, defendant contends his conviction must be reversed due to a legislative amendment to section 11360, made prior to his conviction becoming final, which limits criminal transportation to that done with the intent to sell. The People agree, as do we.
All further statutory references are to the Health and Safety Code unless otherwise specified. --------
FACTUAL AND PROCEDURAL BACKGROUND
While driving his pickup truck in the early morning hours of November 10, 2014, defendant fell asleep, veered off the road, and collided with a large wooden utility pole. Later that day, repair workers from the utility company recovered a black duffle bag and turned it over to officers with the California Highway Patrol (CHP). The black duffle bag, which defendant admitted was his, contained approximately 871 grams of marijuana, divided between two large plastic bags and two smaller bags, as well as a digital scale and a cell phone.
On February 23, 2015, defendant was charged by information with transportation of marijuana (count 1) and possession of marijuana for sale (§ 11359; count 2). On April 2, 2015, count 2 was dismissed pursuant to Penal Code section 995.
Trial began in September 2015. Presented with a hypothetical based on the facts of the case, a CHP officer opined that the marijuana in the duffle bag was possessed for sale. Defendant testified on his own behalf that the marijuana was for his personal use and he did not intend to sell any of it. Defendant further testified he had a medical marijuana recommendation and bought marijuana in bulk for affordability.
On September 14, 2015, the jury convicted defendant of transporting marijuana. On March 1, 2016, the trial court suspended sentence and placed defendant on three years' formal probation, conditioned on defendant serving nine months in the county jail.
DISCUSSION
At the time of defendant's conviction, section 11360 prohibited the "transport" of marijuana, and courts had interpreted "transport" to include any movement of a controlled substance, whether for personal use or for sale. (See People v. Rogers (1971) 5 Cal.3d 129, 134; People v. Ramos (2016) 244 Cal.App.4th 99, 102 (Ramos).) Effective January 1, 2016, the Legislature amended section 11360 to define "transport" to mean "transport for sale." (§ 11360, subd. (c); Stats. 2015, ch. 77 § 1.) "The practical effect of this amendment is that transportation of [marijuana] for sale as opposed to personal use is now an element of the offense that must be decided by a jury by proof beyond a reasonable doubt." (Ramos, supra, 244 Cal.App.4th at pp. 102-103 [discussing a similar "transport for sale" amendment to section 11352, relating to other controlled substances]; see also People v. Eagle (2016) 246 Cal.App.4th 275, 278 (Eagle) [same, and noting that "[t]he amendment explicitly intended to criminalize the transportation of drugs for the purpose of sale and not the transportation of drugs for nonsales purposes such as personal use."].)
The parties agree that the amendment applies to defendant under the Estrada rule. (See In re Estrada (1965) 63 Cal.2d 740, 745 [where a new statute decreases the penalty for a crime, courts may reasonably infer that the Legislature intended for the new penalties to apply in cases in which a judgment of conviction is not yet final].) They also agree that remand for retrial on the section 11360 charge is warranted because, although the parties presented conflicting evidence regarding whether the marijuana at issue was possessed for sale or for personal use, the question itself was not relevant to the charge at the time of trial and the jury was not asked to resolve the question. (See Eagle, supra, 246 Cal.App.4th at p. 280.) We agree that remand for retrial is appropriate under the circumstances here.
DISPOSITION
Defendant's conviction for transporting marijuana is reversed and the case is remanded for further proceedings consistent with this opinion.
† Judge of the Fresno Superior Court assigned by the Chief Justice pursuant to article IV, section 6 of the California Constitution.