Opinion
E065220
02-10-2017
THE PEOPLE, Plaintiff and Respondent, v. TIMOTHY AARON LACEY, Defendant and Appellant.
Tanya Dellaca, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Seth M. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FVI1300965) OPINION APPEAL from the Superior Court of San Bernardino County. Miriam Ivy Morton, Judge. Reversed. Tanya Dellaca, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Seth M. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Timothy Aaron Lacey was charged by felony complaint with possession for sale of a controlled substance (Health & Saf. Code, § 11351, count 1) and possession of a smoking device (Health & Saf. Code § 11364, subd. (a), count 2). Pursuant to a plea agreement, defendant pled guilty to an orally added count of transportation of heroin for personal use. (Health & Saf. Code, former § 11352, count 3.) A trial court placed him on probation for a period of three years under Proposition 36. (Pen. Code, § 1210.1.)
All further statutory references will be to the Health and Safety Code, unless otherwise indicated. --------
On appeal, defendant contends that his transportation of heroin conviction must be reversed since section 11352 was amended effective January 2014 to require the element that the controlled substance be transported for sale. In the alternative, he argues that this court should substitute a section 11350 (unlawful possession of a controlled substance) conviction for the section 11352 conviction in the plea agreement, and then apply Proposition 47 to reduce the section 11350 conviction to a misdemeanor. The People concede that the amendment to section 11352 applies, but argue that the matter should be remanded for defendant to enter a new plea agreement or for the case to be tried on the transportation of heroin charge. We reverse and remand for further proceedings.
PROCEDURAL BACKGROUND
On June 27, 2013, defendant entered a plea agreement and pled guilty to one count of transportation of heroin for personal use pursuant to Health and Safety Code former section 11352, in exchange for being placed on probation for three years under Proposition 36 (Pen. Code, § 1210.1) and dismissal of the remaining counts. The parties stipulated that the complaint and police report provided a factual basis for the plea. In accordance with the agreement, the court withheld pronouncement of judgment and placed defendant on Proposition 36 probation for a period of three years under specified terms and conditions.
On November 21, 2013, defendant admitted that he violated his probation. The court revoked and then reinstated his probation.
On July 30, 2014, defendant admitted that he violated his probation again. He failed to complete his Penal Code section 1210.1 drug treatment program, and he was still using drugs. The court revoked his probation and then reinstated it on the original terms and added drug court terms.
On January 11, 2016, defendant appeared for another probation violation hearing. At the outset, defense counsel requested the court to consider reducing defendant's conviction to a misdemeanor, under Proposition 47. (Pen. Code, § 1170.18.) The court found that the offense of transportation of heroin (Health & Saf. Code, § 11352), which defendant pled to, did not qualify for resentencing under Proposition 47; thus, it denied the request. The court asked if either party wanted to be heard. The prosecutor informed the court, as follows: "As for a statement that it's personal use, at the time the defendant pled, it was not required to have a sales element. If the Court looks behind the face of the plea into the police reports, there's clear evidence of sales. We allowed the personal use element to be placed on the face of the plea so that it would qualify him for Prop. 36, [Penal Code] 1210.1. . . . [¶] . . . [H]e admitted personal use to get [Penal Code] 1210.1." Defendant then admitted that he violated probation by not reporting to the probation department. The court found him in violation of his probation, pronounced the judgment that was previously withheld, and sentenced him to the low term of three years in county prison, with 528 days of credit.
On January 19, 2016, defendant filed a notice of appeal, "based on the sentence or other matters occurring after the plea that do not affect the validity of the plea."
ANALYSIS
The Conviction Should Be Reversed and the Matter Remanded
Defendant argues that his transportation of heroin for personal use conviction must be reversed, in light of a 2014 amendment to section 11352 that requires the element that the heroin be transported for sale (i.e., nonpersonal use). He further asserts that the matter may not be retried because "the facts conclusively established by the plea were that the heroin was possessed for personal use," and retrial is barred by double jeopardy. Thus, the case should be dismissed. In the alternative, defendant contends that this court should substitute a section 11350 (unlawful possession of a controlled substance) conviction for the section 11352 conviction in the plea agreement. He argues that this court should then apply Proposition 47 to reduce the section 11350 conviction to a misdemeanor. The People agree that defendant is entitled to the benefits of the amendment to section 11352, but disagree as to the remedy. The People argue the conviction should be reversed, but the matter should then be remanded for the parties to "either strike a new deal or for the case to be tried." We agree with the People and will remand for further proceedings.
A. Defendant is Entitled to Retroactive Application of Amended Section 11352
When defendant pled guilty, section 11352, subdivision (a), made any transportation of specified controlled substances punishable as a felony. (People v. Ramos (2016) 244 Cal.App.4th 99, 102 (Ramos).) "At the time, section 11352 was interpreted to criminalize transportation of the specified drugs for personal use." (Ibid.) Effective January 1, 2014, the Legislature amended section 11352 to define "transports" as "transport for sale." (Stats. 2013, ch. 504, § 1; § 11352, subd. (c).) "Accordingly, transportation of heroin for personal use no longer constitutes a violation of section 11352. The practical effect of this amendment is that transportation of heroin 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.)
Defendant contends, and the People concede, that the amendment is retroactive, and it applies to defendant. We agree. In Ramos, supra, 244 Cal.App.4th 99, a jury found the defendant guilty of transportation of heroin, under the same statute that is at issue in the instant case—former section 11352. The trial court granted probation, and the statute was subsequently amended to add the sales element. (Ramos, at pp. 102-103.) The appellate court concluded that the amendment was retroactive, and it applied to the defendant. Thus, the court reversed the conviction and remanded the matter to allow the defendant to either admit the " 'transport for sale' " element of the current version of section 11352 or have a new jury trial on that charge. (Ramos, at pp. 103, 105.)
Similarly, in the instant case, when amended section 11352 took effect, defendant's conviction had not been reduced to final judgment, since the court had suspended imposition of sentence and placed him on probation. Because the judgment was not final, defendant is entitled to benefit from the change to section 11352. (Ramos, supra, 244 Cal.App.4th at p. 103.) Under the amended section, the act that he admitted is no longer punishable. (See People v. Collins (1978) 21 Cal.3d 208, 213 (Collins).) Thus, the conviction should be reversed.
B. The Matter Should Be Remanded and the People Allowed to Proceed on the Original Charges
Since both parties agree that the amendment applies to defendant, the issue remaining is the proper disposition of this appeal.
In People v. Eagle (2016) 246 Cal.App.4th 275 (Eagle), the defendant pleaded no contest to transporting methamphetamine (Health & Saf. Code, § 11379, subd. (a)) and resisting or obstructing a police officer (Pen. Code, § 148, subd. (a)(1)). He also admitted serving a prior prison term (Pen. Code, § 667.5, subd. (b)). (Eagle, at p. 278.) The People dismissed one count of possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) and enhancements for a prior drug conviction (Health & Saf. Code, §§ 11370.2, subd. (c), 11379, subd. (a)). The trial court suspended imposition of the defendant's sentence, and pursuant to a plea agreement, placed the defendant on probation. (Eagle, at p. 278.)
Subsequently, the Legislature amended section 11379, and the electorate passed Proposition 47. The defendant then moved to vacate his felony conviction for transporting methamphetamine (§ 11379, subd. (a)) and replace it with a misdemeanor conviction for possession of methamphetamine (§ 11377, subd. (a)). (Eagle, supra, 246 Cal.App.4th at p. 278.) The appellate court agreed the defendant's conviction for transporting methamphetamine must be reversed as a result of the Legislature's amendment to section 11379, subdivision (a). Thus, the court remanded the matter and held that the People should be allowed to proceed on the original charges. (Eagle, at p. 280.) It permitted the defendant to be retried because the question of whether the defendant transported methamphetamine for sale was not previously tried, since it was not relevant to the charges against the defendant at the time of trial. (Id. at p. 280.)
In Collins, supra, 21 Cal.3d 208, the defendant pleaded guilty to one count of oral copulation, in violation of former Penal Code section 288a, in exchange for the dismissal of multiple other charges and the allegation that he committed the oral copulation by means of force. (Collins, at p. 211.) The court then suspended criminal proceedings, found the defendant to be a mentally disordered sex offender, and committed him to a state hospital. Thereafter, the Legislature repealed former Penal Code section 288a and enacted a new version of the statute that did not proscribe oral copulation between consenting adults. (Ibid.) Upon reinstatement of criminal proceedings, the defendant objected to the court's jurisdiction to sentence him under the repealed statute. The trial court overruled the objection and sentenced the defendant to one to 15 years in state prison. (Id. at pp. 211-212.)
The Supreme Court held that the trial court erred by imposing a sentence because the act that the defendant admitted was no longer punishable; thus, the sentence could not be allowed to stand. (Collins, supra, 21 Cal.3d at pp. 212-213.) As to the disposition, the defendant asked the Supreme Court "not [to] reverse his conviction but rather 'correct' the sentence to 'no penalty.' " (Id. at p. 214.) However, the court concluded the proper remedy was to reverse the conviction with directions to dismiss the count on which the defendant was convicted. (Ibid.)
The Supreme Court then addressed whether the People could reinstate the dismissed counts on remand. The court first explained the nature of plea bargaining. "Critical to plea bargaining is the concept of reciprocal benefits. When either the prosecution or the defendant is deprived of benefits for which it has bargained, corresponding relief will lie from concessions made." (Collins, supra, 21 Cal.3d at p. 214.) "The state, in entering a plea bargain, generally contemplates a certain ultimate result; integral to its bargain is the defendant's vulnerability to a term of punishment. . . . When a defendant gains total relief from his vulnerability to sentence, the state is substantially deprived of the benefits for which it agreed to enter the bargain." (Id. at p. 215.) The court set out to "fashion a remedy that restore[d] to the state the benefits for which it bargained without depriving [the] defendant of the bargain to which he remain[ed] entitled." (Id. at p 216.) It thus permitted the state to restore the counts dismissed, but limited the defendant's potential sentence to three years in state prison. (Ibid.) The court did note, however, that it could not bind the trial judge in his imposition of the actual sentence. (Ibid., fn. 4.)
In the instant case, as in Eagle and Collins, an intervening act by the Legislature decriminalized the conduct for which defendant was convicted, resulting in the reversal of the only conviction upon which his plea agreement was based. To safeguard the rights of the People, who would otherwise be deprived of the benefit of their bargain as a result of the amendment of section 11352, we conclude the People are entitled to proceed on the original charges against defendant. (Eagle, supra, 246 Cal.App.4th at p. 277; Collins, supra, 21 Cal.3d at p. 215.)
Defendant claims that a retrial of the section 11352 charge would be barred by the double jeopardy clause because the question of whether he transported the narcotics for sale "has already been determined by the parties' plea agreement and the court's determination that [his] offense was 'transportation for personal use.'" However, as the People point out, remand is not barred by the double jeopardy clause. Because former section 11352 did not distinguish between transporting a controlled substance for sale or for personal use, this issue was irrelevant when defendant was convicted of violating the statute. "Where . . . 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." (People v. Figueroa (1993) 20 Cal.App.4th 65, 72 (Figueroa).) The "personal use" issue was not tried to a jury or the court, and remand is not barred by the double jeopardy clause. (Ramos, supra, 244 Cal.App.4th at p. 104; see Figueroa, supra, 20 Cal.App.4th at p. 72, fn. 2; Eagle, supra, 246 Cal.App.4th at p. 280.)
Defendant further contends that, since Proposition 36 probation (Pen. Code, § 1210.1) only applies to "transportation for personal use" offenses, the court had to make a personal use finding in order to place him on probation. Thus, "there is nothing additional to prove" and a remand "would serve no purpose." At the same time, he argues that any finding that the transportation was for the purpose of sales would be a breach of the plea agreement, since Proposition 36 probation "is not available for convictions of 'for the purpose of sales' offenses." (Pen. Code, §§ 1210, 1210.1.) However, as explained to the trial court, the prosecution only "allowed the personal use element to be placed on the face of the plea so that it would qualify [defendant] for Prop. 36, [Penal Code section] 1210.1." Thus, the plea agreement does not "prove" that the heroin was not for sale, as defendant suggests. To the contrary, as the prosecutor stated: "If the Court looks behind the face of the plea into the police reports, there's clear evidence of sales." Therefore, the transportation of heroin conviction should be reversed. On remand, defendant will be entitled to either admit the "transport for sale" element of the current version of Health and Safety Code section 11352, or have a jury trial on that charge. (Ramos, supra, 244 Cal.App.4th at p. 105.)
In his reply brief, defendant contends that the People are not entitled to restore the dismissed counts. In support of his position, he asserts that "Proposition 47 does not give the trial court a basis for reopening the case against [him] . . . ." However, Proposition 47 is not the basis of the remand.
We stress that if the People elect to proceed with the original charges and defendant is convicted of any offense, the trial court cannot impose a greater sentence than that which was originally imposed against him. It is well-settled that a defendant cannot be penalized for pursuing a successful appeal by receiving a greater sentence than that which was originally imposed. (Collins, supra, 21 Cal.3d at pp. 216-217.) Moreover, "external events and not defendant's repudiation undermined this plea bargaining agreement." (Id. at p. 216.) We realize that, under the unique circumstances of the instant case, we are unable to fashion a remedy that will exactly restore to the parties the benefits for which they bargained. This is so because defendant pled guilty to former section 11352 in order to receive Proposition 36 probation. However, the current version of section 11352 requires the element that the controlled substance be transported for sale, and Proposition 36 probation does not apply to such offense. We note, though, that defendant did receive the benefit of the initial plea agreement, since he was given drug treatment under Proposition 36. Unfortunately, he failed to complete his treatment and admittedly violated his probation. We conclude that, on remand, the trial court should limit defendant's potential sentence to three years (the term the trial court imposed here), with credit for time served.
We acknowledge defendant's alternative argument that, because he was found eligible for Proposition 36 probation, this court should substitute an unlawful possession conviction under section 11350 for the section 11352 conviction and sentence him under Proposition 47. In light of our conclusion ante, we need not address this claim.
DISPOSITION
The transportation of heroin for personal use conviction is reversed, and the matter is remanded back to the trial court for further proceedings consistent with this opinion. The People may refile the original charges against defendant, and the trial court should limit defendant's potential sentence to three years, with credit for time served.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
Acting P. J. We concur: MILLER
J. SLOUGH
J.