Opinion
2d Crim. No. B267494
08-29-2018
THE PEOPLE, Plaintiff and Respondent, v. JEFFREY R. LOPEZ, Defendant and Appellant.
Mary Jo Strnad, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Paul M. Roadarmel, Jr. and Steven D. Matthews, Supervising Deputy Attorneys General, and David E. Madeo, Deputy Attorney 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. KA109301)
(Los Angeles County) OPINION ON TRANSFER FROM SUPREME COURT
Jeffrey Lopez was convicted by jury of possession and transportation of a controlled substance. (Health & Saf. Code, §§ 11378, 11379.) The trial court sentenced Lopez to 15 years in state prison, including two consecutive three-year terms for two prior convictions for violation of section 11379, subdivision (a). (See former § 11370.2, subd. (c).)
All further undesignated statutory references are to the Health and Safety Code.
On appeal, Lopez contends the trial court erred in failing to instruct the jury that the transported controlled substance was for sale, and in imposing the sentence enhancements for the two prior convictions.
In a previous decision, we concluded the trial court erred when it instructed the jury with an earlier version of section 11379, but determined the error was harmless. We also rejected Lopez's challenge to the sentence enhancements. (See People v. Lopez (2016) 6 Cal.App.5th 494, review granted March 22, 2017, S239567.)
The California Supreme Court subsequently transferred the matter to us "with directions to vacate [our] decision and reconsider the cause in light of the 2017 amendment to . . . section 11370.2 (Stats. 2017, ch. 677, § 1, eff. Jan. 1, 2018 (S.B. 180)) and In re Estrada (1965) 63 Cal.2d 740."
We have vacated our prior decision and reconsidered the cause. Once again, we conclude the trial court committed harmless error when it instructed the jury with an earlier version of section 11379. As the People concede, however, the sentence enhancements imposed under former section 11370.2, subdivision (c) must be stricken due to the 2017 amendments to that statute. We therefore strike the enhancements, modify the sentence accordingly, and otherwise affirm the judgment. (See People v. Zabala (2018) 19 Cal.App.5th 335, 338 (Zabala).)
FACTUAL AND PROCEDURAL HISTORY
A Los Angeles County Sheriff's deputy stopped Lopez after he drove into a gas station without signaling. Lopez had $817 in his wallet, mostly in $100 denominations. In his car, police found a duffel bag containing methamphetamine, a digital scale, and 25 empty two-inch plastic baggies. In the trunk were four baggies of methamphetamine, packaged in one-eighth ounce quantities, a common weight for sale on the street. Also in the trunk were a scale and an eyeglasses case with magnets glued to the bottom, a device commonly used to hide drugs for transport.
Lopez admitted that the car, duffel bag and methamphetamine belonged to him. He told police, "I sell meth because I am living on the street, and I have to make money."
DISCUSSION
A. Instructional Error
Section 11379 provides that any person who transports a controlled substance is guilty of a felony. (§ 11379, subd. (a).) Prior to 2014, section 11379 did not require proof the substance being transported was for sale; mere transportation of a controlled substance was sufficient. Effective January 2014, the Legislature amended section 11379 to provide that, "For purposes of this section, 'transports' means to transport for sale." (§ 11379, subd. (c).) But the jury instructions failed to include that element in the transportation count. This was error.
The prosecution is required to prove every fact necessary to establish a defendant's guilt beyond a reasonable doubt. (Sullivan v. Louisiana (1993) 508 U.S. 275, 277-278.) The omission of a single element of an offense impermissibly relieves the prosecution of this burden, and intrudes on the exclusive province of the jury to decide the facts, in violation of the defendant's Sixth Amendment rights. (Id. at p. 277 [court may not direct a verdict for the prosecution no matter how overwhelming the evidence].)
1. The Harmless Error Standard
A jury instruction omitting an essential element from the jury's consideration requires reversal unless the error was harmless beyond a reasonable doubt. (People v. Merritt (2017) 2 Cal.5th 819, 821-822 [failure to instruct on elements of a charged crime, while a "serious constitutional error," is subject to harmless error rather than reversible per se analysis "if the error at issue does not '"vitiat[e] all the jury's findings"'"]; People v. Mil (2012) 53 Cal.4th 400, 410-411, 415 [instruction omitting an element of a special circumstances allegation]; People v. Flood (1998) 18 Cal.4th 470, 502-503 [instruction that the People proved an element of the charged offense].) Reversal is required unless the prosecution can prove beyond a reasonable doubt that the error did not impact the verdict. (Id. at pp. 504-506.) For example, the error is harmless if the factual question posed by the omitted instruction was resolved adversely to the defendant under other properly given instructions. (Id. at p. 484; People v. Debouver (2016) 1 Cal.App.5th 972, 982-983.)
The trial court properly instructed the jury on the possession for sale count (§ 11378), including the "for sale" element. The jury concluded that Lopez possessed the methamphetamine with intent to sell it. (People v. Ramos (2016) 244 Cal.App.4th 99, 105 (Ramos) ["for sale" in section 11378 defined as specific intent to sell or that someone else will sell it].) The People contend that because the jury's verdict on the charge of possession for sale referred to the same controlled substance charged in the transportation count, it must follow that any error in omitting the "for sale" element is harmless.
Lopez disputes this contention. He argues instead that the Legislature amended section 11379 to require proof that the act of transporting the methamphetamine was done in order to, and with the existing intent to, accomplish a sale. He cites legislative history which he contends demonstrates this, including expressed goals of eliminating "redundant convictions" for both possession and transportation, and reducing the prison population.
2. The Legislative History
Lopez relies heavily upon comments reflecting an intent to statutorily abrogate the holding in People v. Rogers (1971) 5 Cal.3d 129 (Rogers). In that case, a driver (Rogers) was convicted of transporting drugs possessed by passengers in his vehicle, but acquitted of possessing drugs himself. He claimed on appeal the prosecution had to prove more than the mere presence of drugs in his moving vehicle. Because transportation was listed in the criminal statute alongside such acts as furnishing, selling or distributing drugs, he argued that proof of an intent to engage in trafficking activities was required. (Id. at pp. 134-135.) A sharply divided court (4-3) ruled otherwise, holding that mere transportation was sufficient under the language of the statute.
The Legislature abrogated Rogers in 2013 when it amended section 11379 to add subdivision (c). (Stats. 2013, ch. 504, § 2 (AB 721).) It did so by defining transports as meaning "transport for sale." Lopez contends the amendment was intended to limit criminal culpability to those situations in which the act of transportation was intended to accomplish an active sale, because this narrow interpretation is most consistent with the other stated goals of prison population reduction and elimination of duplicative convictions. The legislative history, however, does not support his contention. Instead, it demonstrates that the Legislature acted to distinguish drug traffickers from drug users, and to apply harsher consequences to traffickers.
Contrary to Lopez's contentions, the Rogers dissent did not argue that the statute required proof of an "active sale" at the moment of transportation. Instead, the dissent focused on the perceived injustice in elevating a lesser crime (possession) to a greater crime with significantly enhanced penalties based merely on the fact of movement. The example given was the defendant "arrested while standing motionless on the sidewalk and his companion arrested moments later while walking along the same street." (Rogers, supra, 5 Cal.3d at p. 146 (conc. & dis. opn. of Mosk, J.).)
It was, in fact, this distinction that motivated the Legislature to amend section 11379 to add subdivision (c). The Author's Statement includes the following statement: "'AB 721 would clarify the Legislature's intent to only apply felony drug transportation charges to individuals involved in drug trafficking or sales. Currently, an ambiguity in state law allows prosecutors to charge users—who are not in any way involved in drug trafficking—with TWO crimes for simply being in possession of drugs. While current law makes it a felony for any person to import, distribute or transport drugs, the term "transportation" used in Health and Safety Code has been widely interpreted to apply to ANY type of movement—even walking down the street—and ANY amount of drugs, even if the evidence shows the drugs are for personal use and there is no evidence that the person is involved in drug trafficking. As a result, prosecutors are using this wide interpretation to prosecute individuals who are in possession of drugs for only personal use, and who are not in any way involved in a drug trafficking enterprise.'" (Assem. Com. on Public Safety, Analysis of Assem. Bill No. 721 (2013-2014 Reg. Sess.) Apr. 16, 2013, p. 2, italics added.)
Nothing in the legislative history demonstrates an intent to distinguish between defendants engaged in trafficking activities generally and those engaged in "active sales" at the precise moment of transportation. Instead, it evinces an intent to distinguish mere users from traffickers. This is evident from the author's comments above, as well as the succinct argument in support, which directly addresses Justice Mosk's dissent in Rogers: "AB 721 will correct the unwarranted interpretation that punishes an individual much more harshly if he is arrested walking down the street in possession of a small amount of illegal drugs than an individual who is arrested with the exact same quantity of drugs, but who is just sitting on a bench. AB 721 will provide that an individual may be punished for 'transporting' an illegal drug only if he or she is transporting that drug for purposes of sale. AB 721 simply corrects the 'unjust' and 'absurd' result foreseen long ago by Justice Mosk, and provides that similarly situated individuals should be treated similarly by the law."
This argument was submitted by The California Attorneys for Criminal Justice and was included in the analysis by the Senate Committee on Public Safety of Assembly Bill No. 721 (2013-2014 Reg. Sess.) June 10, 2013, page 5. --------
In summary, Lopez contends that "an interpretation [of section 11379] that would permit a finding that [he] possessed drugs 'for sale' to substitute for a finding that he transported drugs with the specific intent of selling them would undo the very object of the amendment." We disagree for the reasons set forth above. We also note that in amending the statute, the Legislature contemplated that a person might be charged with both possession and transportation as long as there is an intent to sell. (Conc. in Sen. Amends. to Assem. Bill No. 721 (2013-2014 Reg. Sess.) Aug. 29, 2013, p. 2 ["This bill makes it expressly clear that a person charged with [transportation] must be in possession of drugs with the intent to sell"].)
3. People v. Ramos
This case is unlike Ramos, supra, 244 Cal.App.4th 99, in which the defendant was convicted of possession of methamphetamine for sale and transportation of heroin, and the trial court failed to instruct on the "for sale" element for the transportation charge. The Court of Appeal reversed the transportation of heroin conviction without relying on the jury's conviction for possession of methamphetamine for sale. (Id. at p. 104.) Lopez argues that the same result should follow here. But in Ramos the jury found only that the defendant had the intent to sell the methamphetamine. (Ibid.) It did not consider whether she intended to sell the heroin. Here, the jury found that Lopez intended to sell the methamphetamine as part of the possession count.
Because the jury found that Lopez possessed the same controlled substance at the same time for purposes of sale under properly given instructions, there is no reversible error.
B. The Challenge to the Sentence Enhancements
At the time of Lopez's trial and sentencing, section 11370.2, subdivision (c) required the trial court to impose on any person convicted of a violation of section 11379 "a full, separate, and consecutive three-year term for each prior felony conviction." (Former § 11370.2, subd. (c).) Because Lopez's two prior convictions fell within this statute, the court properly imposed two consecutive three-year sentence enhancements.
During the pendency of this appeal, the Legislature removed a number of prior convictions from the list of priors that qualify a defendant for the imposition of an enhancement under section 11370.2, subdivision (c). Violations of section 11379 are among the convictions that no longer qualify for an enhancement. (See Stats. 2017, ch. 677, § 1, eff. Jan. 1, 2018.)
In People v. Millan (2018) 20 Cal.App.5th 450, 455-456 (Millan), the Court of Appeal held that "the amendment to . . . section 11370.2, subdivision (c) lessens punishment for a person such as Millan whose prior convictions no longer qualify for the three-year . . . section 11370.2, subdivision (c) enhancement. Rather than being subjected to a three-year enhancement for each prior conviction, such persons are no longer subject to any enhanced punishment pursuant to the amended statute." The court further determined the amended statute applies retroactively to a defendant whose case is not yet final. (Ibid.; Zabala, supra, 19 Cal.App.5th at pp. 344-345; see In re Estrada, supra, 63 Cal.2d at pp. 745, 747-748 ["The amendatory act imposing the lighter punishment can be applied constitutionally to acts committed before its passage provided the judgment convicting the defendant of the act is not final"].)
The People concede, and we agree, the amendments to section 11370.2, subdivision (c) lessen the punishment for a person such as Lopez whose case is not yet final on appeal and whose prior convictions no longer qualify for the three-year sentence enhancement. (See Millan, supra, 20 Cal.App.5th at pp. 455-456; Zabala, supra, 19 Cal.App.5th at p. 344.) Accordingly, we modify the judgment to strike the two consecutive three-year sentence enhancements. (Id. at p. 344.)
DISPOSITION
In light of the amendments to section 11370.2, subdivision (c), effective January 1, 2018, the two consecutive three-year sentence enhancements imposed under former section 11370.2, subdivision (c) are stricken. The superior court clerk is directed to prepare and transmit to the California Department of Corrections and Rehabilitation an amended abstract of judgment reflecting the modified sentence, which now consists of a total prison term of nine years. As so modified, the judgment is affirmed.
NOT TO BE PUBLISHED.
TANGEMAN, J. We concur:
GILBERT, P. J.
PERREN, J.
Juan C. Dominguez, Judge
Superior Court County of Los Angeles
Mary Jo Strnad, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Paul M. Roadarmel, Jr. and Steven D. Matthews, Supervising Deputy Attorneys General, and David E. Madeo, Deputy Attorney General, for Plaintiff and Respondent.