Filed 5/16/17 P. v. Bechtel 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
(Yuba)
----



THE PEOPLE,

Plaintiff and Respondent,

v.

JON EARL BECHTEL,

Defendant and Appellant.
C076663

(Super. Ct. No. CRF13-597)







Convicted of transporting marijuana, defendant Jon Earl Bechtel asks us to remand this matter for further proceedings due to the Legislature’s subsequent amendment requiring the transportation be for sale. The Attorney General agrees with defendant, as do we.
A jury convicted defendant of transporting marijuana (Health & Saf. Code, former § 11360, subd. (a); Stats. 2011, ch. 15, § 162), along with cruelty to an animal (Pen. Code, § 597, subd. (b)), and resisting a peace officer. (Pen. Code, § 148, subd. (a)(1).) The trial court also found defendant had a prior conviction subject to the “Three Strikes” law.
The court sentenced defendant to a state prison term of nine years four months, calculated as follows: eight years for the unlawful transportation (the upper term of four years, doubled for the prior strike) plus 16 months for the animal cruelty (one-third the middle term, doubled for the prior strike).
Defendant appealed from the judgment. He attacked only the transportation conviction, contending his punishment for transportation without sale, compared with other statutes prohibiting transportation of various illegal drugs only when transported for sale, violated constitutional equal protection.
After the parties completed briefing, the Legislature amended Health and Safety Code section 11360 (section 11360). Among other things, section 11360 provides that any person who “transports” marijuana shall be punished. (Health & Saf. Code, § 11360.) Courts had interpreted the word “transports” to include transport of controlled substances for personal use. (See People v. Rogers (1971) 5 Cal.3d 129, 134-135; People v. Eastman (1993) 13 Cal.App.4th 668.) But the Legislature amended section 11360 to define “transport” to mean “transport for sale.” (See Assem. Bill No. 730 (2015-2016 Reg. Sess.).) That amendment took effect on January 1, 2016. (See Cal. Const., art. IV, § 8, subd. (c)(1).)
At issue is whether the amendment applies to defendant now. It does. “[W]here 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 (Estrada).)
The 2016 amendment to section 11360 satisfies the Estrada requirements. First, the amended statute mitigates the punishment. It does this by adding an additional element to the crime of which defendant was convicted. The Estrada rule applies to amendments which add elements to a crime or enhancement. (See People v. Vinson (2011) 193 Cal.App.4th 1190, 1197-1199.)
Second, the amendments do not contain a saving clause. That omission, coupled with the benefit in a possibly reduced sentence to defendant, shows the Legislature intended the amendments to apply retroactively. “When the Legislature amends a statute so as to lessen the punishment it has obviously expressly determined that its former penalty was too severe and that a lighter punishment is proper as punishment for the commission of the prohibited act. It is an inevitable inference that the Legislature must have intended that the new statute imposing the new lighter penalty now deemed to be sufficient should apply to every case to which it constitutionally could apply.” (Estrada, supra, 63 Cal.2d at p. 745.)
Third, the amendment took effect before the judgment is final. For purposes of determining the amendment’s retroactive application, a judgment is not final until the time for petitioning the United States Supreme Court for a writ of certiorari has passed. (People v. Vieira (2005) 35 Cal.4th 264, 306.) Obviously, that time has not passed.
Accordingly, defendant is entitled to the benefit of the amendments to Health and Safety Code section 11360 under the rule established in Estrada.
 
DISPOSITION
The conviction for transportation of marijuana under section 11360 is reversed and the matter is remanded for further proceedings. In all other respects, the judgment is affirmed.



NICHOLSON , J.



We concur:



BLEASE , Acting P. J.




ROBIE , J.