Filed 7/25/17 P. v. Solorzano 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
(Yolo)
----




THE PEOPLE,

Plaintiff and Respondent,

v.

EDUARDO GUTIERREZ SOLORZANO,

Defendant and Appellant.
C081075

(Super. Ct. No. CRF20132542)





Defendant Eduardo Guiterrez Solorzano appeals the trial court’s denial of his motion to vacate his 2013 felony conviction for transporting marijuana under former Health and Safety Code section 11360. (Unless otherwise set forth, statutory section references that follow are to the Health and Safety Code.) At the time of his plea, the statute prohibited transporting marijuana. (Former § 11360, subd. (a).) Subsequently, defendant sought to benefit from the retroactive application of a statutory amendment to section 11360 that required transportation for sale, rather than personal use (§ 11360, subd. (a)), and moved to vacate his felony conviction for transportation and have the trial court impose a misdemeanor sentence for possession of marijuana under section 11357, subdivision (c). The trial court denied the motion. We shall affirm the judgment.
FACTS AND PROCEEDINGS
In January 2013, a Woodland police officer stopped defendant and located 204 grams of marijuana in defendant’s vehicle. Defendant pleaded no contest to transporting marijuana. (Former § 11360, subd. (a).) In March 2013, in accordance with the plea agreement, the trial court suspended imposition of judgment and granted defendant three years’ probation under Penal Code section 1210.1 (Proposition 36). In October 2013, defendant admitted he had violated probation and the trial court reinstated him on probation. In May 2015, defendant admitted a second violation of probation and the trial court reinstated him on probation.
Defendant made a motion to vacate his felony conviction in September 2015. In January 2016, after briefing and oral argument by the parties, the trial court denied the motion.
DISCUSSION
Among other things, section 11360 provides that any person who “transports” marijuana shall be punished by imprisonment. (§ 11360.) At the time defendant pleaded no contest to transporting marijuana in violation of section 11360, subdivision (a), courts had interpreted that provision as applying to transportation for both personal use and sale. (People v. Rogers (1971) 5 Cal.3d 129, 134-135, superseded by statute; People v. Eastman (1993) 13 Cal.App.4th 668.) But, effective January 1, 2016, the Legislature amended section 11360 to define “transport” to mean “transport for sale.” (See Assem. Bill No. 730 (Stats. 2015-2016, Reg. Sess., ch. 77, § 1; Cal. Const., art. IV, § 8, subd. (c)(1).) The purpose of the amendments is to require a conviction for transportation of marijuana to include proof of intent to sell, as is currently the case for numerous other drugs. (See Sen. Rules Com., Rep. on Assem. Bill No. 730 (2015-2016 Reg. Sess.) June 10, 2015, pp. 3-4.) The amendments benefit defendant by requiring proof of an additional element--intent to sell--for a felony drug transportation conviction, and by eliminating criminal liability for drug transportation in cases involving possession for personal use. (Ibid.)
Defendant contends the trial court erred in denying his motion to vacate his felony conviction for transporting marijuana. Under In re Estrada (1965) 63 Cal.2d 740, “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. (Id. at pp. 744, 748.) Defendant contends under Estrada, the recent amendments to section 11360 must be applied retroactively to require that we vacate his conviction, as his conviction was not final when the amendments took effect. He argues his conviction was not final because the trial court suspended imposition of sentence. The People argue the relevant date under Estrada is when the time for direct appeal has passed and the determination of guilt is final. The People contend that date is determined by Penal Code section 1237, subdivision (a). That is, that defendant’s conviction was final for purposes of review at the time the amendment took effect. We recently decided a virtually identical issue in People v. Superior Court (Rodas) (2017) 10 Cal.App.5th 1316 (Rodas).
As we discussed in Rodas the resolution of this issue involves the interplay between Penal Code sections 1018 and 1237. (Rodas, supra, 10 Cal.App.5th at p. 1322; Pen. Code, §§ 1018, 1237, subds. (a) & (b).) “Penal Code section 1018 provides, in pertinent part, ‘On application of the defendant at any time before judgment or within six months after an order granting probation is made if entry of judgment is suspended, the court may, and in case of a defendant who appeared without counsel at the time of the plea the court shall, for a good cause shown, permit the plea of guilty to be withdrawn and a plea of not guilty substituted. . . . This section shall be liberally construed to effect these objects and to promote justice.’ (Italics added.) [¶] Penal Code section 1237 delineates when a defendant may appeal from a final judgment of conviction. (Pen. Code, § 1237, subd. (a).) An order granting probation is identified in Penal Code section 1237 as a ‘final judgment’ for purposes of taking an appeal. (Ibid.)” (Rodas, at p. 1322.) Penal Code section 1018’s six-month time limit for withdrawing a guilty plea after an order granting probation with entry of judgment suspended is mandatory rather than directory. (Rodas, at p. 1324.) In addition, “because the order granting probation constitutes a final judgment of conviction under Penal Code section 1237 (Pen. Code, § 1237, subd. (a)), the order was directly appealable. (Ibid.) Under section 1237 of the Penal Code, a defendant may challenge the merits of his conviction on an appeal from the order granting probation. [Citation.] If the time to appeal the probation order lapses without an appeal having been taken, however, the defendant may not thereafter challenge the underlying conviction when appealing a subsequent order revoking probation and imposing a suspended sentence. [Citation.]” (Rodas, at p. 1325.) Finally, a defendant seeking appellate review of a guilty or no contest plea must “fully and timely comply” with Penal Code section 1237.5, and California Rules of Court, rules 8.304(a), (b) & 8.308(a), which make clear defendant has 60 days to file a notice of appeal from the probation order. (Rodas, at p. 1325, quoting In re Chavez (2003) 30 Cal.4th 643, 651.)
Because defendant did not appeal the trial court’s order granting probation, the judgment of conviction for transporting marijuana became final for retroactivity purposes in 2013. He is not entitled to the benefits of the amendment to section 11360, effective almost three years later. “In other words, in this context, although imposition of [defendant’s] sentence was suspended, the process to appeal the conviction based on [his] no contest plea has ended, rendering final the conviction for retroactivity purposes.” (Rodas, supra, 10 Cal.App.5th at p. 1326.)
DISPOSITION
The judgment is affirmed.



HULL , J.



We concur:



BLEASE , Acting P. J.



MAURO , J.