Filed 5/5/17 P. v. Coats 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
(Glenn)
----



THE PEOPLE,

Plaintiff and Respondent,

v.

WILLIAM LLOYD COATS,

Defendant and Appellant.


C074799

(Super. Ct. No. 11NCR08620)





Defendant William Lloyd Coats was convicted of transportation of a controlled substance and misdemeanor resisting arrest. The trial court sentenced him to 12 years in prison.
Defendant now contends his transportation conviction must be reversed because he is entitled to retroactive application of the amendment to Health and Safety Code section 11352, which requires that a controlled substance be transported for sale. The People agree and urge remand for further proceedings. Defendant also claims the sentence enhancements attached to his transportation conviction must be vacated.
We agree defendant is entitled to retroactive application of the amendment to section 11352. We will reverse his transportation conviction and the related sentencing enhancements and remand the matter to the trial court for further proceedings.
BACKGROUND
Much of the underlying facts are not relevant to the issue on appeal. It is sufficient to explain that in 2011, an information charged defendant with transportation of a controlled substance (hydromorphone) (§ 11352, subd. (a) - count 1) and misdemeanor resisting a peace officer (Pen. Code, § 148, subd. (a)(1) - count 2). As to count 1, the information further alleged defendant had a prior strike conviction (Pen. Code, § 667, subds. (b)-(i)), three prior prison terms (Pen. Code, § 667.5), and a prior drug related conviction (§ 11370.2, subd. (a)).
Following defendant’s first trial in February 2013, a jury found him guilty on count 2, but was unable to reach a verdict on count 1. At his second trial in April 2013, a jury found him guilty of transporting a controlled substance, and he admitted the special allegations. The trial court sentenced defendant to an aggregate term of 12 years in prison, consisting of the following: eight years for transportation of a controlled substance (the middle term of four years, doubled for the prior strike conviction), a consecutive three years for the prior drug offense, a consecutive year for the prior prison terms, and a concurrent year for misdemeanor resisting arrest.
DISCUSSION
Defendant contends his conviction for transportation of a controlled substance must be reversed based on the 2014 amendment to section 11352, which requires that the controlled substance be transported for sale. He adds that the enhancements attached to that conviction must be vacated.
At the time the jury convicted defendant for transportation of a controlled substance, section 11352, subdivision (a) made transportation of specified controlled substances punishable as a felony. (People v. Ramos (2016) 244 Cal.App.4th 99, 102.) “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 [controlled substances] for personal use no longer constitutes a violation of section 11352. The practical effect of this amendment is that transportation of [controlled substances] 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, at pp. 102-103.)
“Generally, ‘where the amendatory statute mitigates punishment and there is no saving clause, the rule is that the amendment will operate retroactively so that the lighter punishment is imposed’ if the amended statute takes effect before the judgment of conviction becomes final. (In re Estrada (1965) 63 Cal.2d 740, 744, 748.)” (People v. Eagle (2016) 246 Cal.App.4th 275, 279.) Here, defendant’s conviction was not final at the time of the amendment to section 11352 and the People agree he is entitled to benefit retroactively from the statutory changes.
Defendant also contends the enhancements related to the transportation conviction must also be vacated. We agree those enhancements cannot stand without a transportation conviction. (§ 11370.2, subd. (a) [imposition of enhancement requires conviction of transportation for sale]; Pen. Code, §§ 667.5, subd. (b) & 667, subd. (c) [each requiring a new felony conviction to impose recidivist enhancement].)
The People contend, however, the matter should be remanded to provide the district attorney the opportunity to elect how to proceed, specifically, whether to retry the matter. We agree. When a statutory amendment adds an additional element to an offense, the prosecution must be afforded the opportunity to establish the additional element upon remand. (People v. Figueroa (1993) 20 Cal.App.4th 65, 71-72, fn. 2.) Accordingly, such a retrial generally would not be barred by the double jeopardy clause or ex post facto principles because the question of whether defendant transported the hydromorphone was not relevant to the charges at the time of his trial and, thus, the question was never tried. (See id. at pp. 69-72 & fn. 2.)
DISPOSITION
Defendant’s conviction for transportation of a controlled substance, and the related sentencing enhancements, are reversed. The matter is remanded to the trial court for further proceedings.



/S/
MAURO, J.



We concur:



/S/
BLEASE, Acting P. J.



/S/
DUARTE, J.