Filed 7/7/17 P. v. Angrisani CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

SHANE CHRISTOPER ANGRISANI,

Defendant and Appellant.
H042557
(Monterey County
Super. Ct. No. SS111021A)
In 2011, pursuant to a negotiated plea agreement, defendant Shane Christopher Angrisani pleaded guilty to a violation of former Health and Safety Code section 11352 for transporting a controlled substance, namely heroin, with a stipulation that the offense involved transportation for personal use. He was initially placed on Proposition 36 probation, and later he was placed on three years of formal probation. In 2014, the Legislature decriminalized transportation of heroin for personal use by amending Health and Safety Code section 11352 to define “transports” to mean “transport for sale.” (Health & Saf. Code, § 11352, subd. (c); Stats. 2013, ch. 504, § 1, p. 4151.) In 2015, after many violations of probation, defendant was sentenced to a so-called split sentence pursuant to section 1170, subdivision (h)(5)(B), consisting of a three-year term with execution of the concluding 12-month portion of the term suspended and deemed a period of mandatory supervision.
On appeal, defendant now argues that, under In re Estrada (1965) 63 Cal.2d 740 (Estrada) and People v. Eagle (2016) 246 Cal.App.4th 275 (Eagle), he is entitled to the benefit of the post-conviction, ameliorative change in Health and Safety Code section 11352 because his conviction is not yet final. Defendant now asserts that the proper remedy is to reverse and remand the matter to allow him to withdraw his plea and allow the People to proceed on the original charges.
We conclude that, since transportation for personal use of a specified controlled substance was no longer a crime under Health and Safety Code section 11352 when the trial court imposed the term of imprisonment, the judgment cannot stand. The proper remedy in the particular circumstances of this case, however, is to reverse the judgment and remand with directions to the trial court to dismiss count 1 and to allow the People to withdraw from the plea bargain and reinstate the charges dismissed pursuant to the plea bargain.
I
Procedural History
A complaint, filed on May 31, 2011, alleged that defendant committed several crimes on or about May 27, 2011: (1) transportation of a controlled substance (heroin) in violation of former Health and Safety Code section 11352, subdivision (a), a felony (count 1); (2) possession of controlled substance paraphernalia in violation of Health and Safety Code section 11364, subdivision (a), a misdemeanor (count 2); and (3) contributing to the delinquency of a minor in violation of section 272, subdivision (a), a misdemeanor (count 3).
On June 6, 2011, pursuant to a plea agreement, defendant entered a plea of guilty to count 1 with a stipulation that the transportation was for personal use. Consistent with the plea agreement, the trial court initially placed him on Proposition 36 probation.
Proposition 36 probation was later terminated. Defendant was accepted into a drug treatment court program, but he was eventually terminated from the program. It appears that, on December 6, 2012, the trial court placed defendant on three years of formal probation under certain terms and conditions.
On May 14, 2015, defendant filed a petition for recall of sentence and resentencing of his conviction as a misdemeanor. On May 15, 2015, the trial court denied defendant’s petition on the ground that he had pled to Health and Safety Code section 11352, subdivision (a), which was not an offense subject to resentencing as a misdemeanor under section 1170.18.
After many probation violations, a sentencing hearing was scheduled for July 10, 2015. At the hearing on July 10, 2015, defense counsel suggested that one method of dealing with defendant’s conviction under the former Health and Safety Code section 11352 “would be to terminate his probation unsuccessfully and to no longer sentence him.” Subsequently, defense counsel asked the court not to impose a sentence that would involve more than a year in custody, that is a so-called split sentence, or, alternatively, to “simply terminat[e] his probation.”
The trial court imposed the lower, three-year term on the conviction for violating former Health and Safety Code section 11352, subdivision (a). Pursuant to section 1170, subdivision (h)(5)(B), the court suspended execution of the concluding 12 months of the term and deemed it a period of mandatory supervision subject to certain terms and conditions.
Defendant timely appeals from the July 10, 2015 judgment.
II
Factual History
The probation officer’s report, filed December 6, 2012, provided the following description of the circumstances of the offense in this case. At approximately 1:00 p.m. on May 27, 2011, a Salinas police officer observed that the passenger in a black 1992 Honda Accord was not wearing his safety belt. The officer stopped the vehicle, which was being driven by defendant. “The passenger, a male juvenile, said he was on his way home to retrieve his wallet.” The officer noticed a wallet on the passenger’s seat, and when the officer retrieved the wallet, a baggie fell from it. The brown powder inside the baggie appeared to be heroin. “The officer drew his duty weapon and radioed for assistance.” After additional officers arrived, defendant and the juvenile were arrested. Both of them told police that “they went to Orchard Supply Hardware store and purchased the heroin from a connection there.” Defendant said that “he was going to be placed at the Sun [S]treet residential program later in the day and that he was on probation.”
II
Discussion
A. Legal Background
1. Amendment of Health and Safety Code section 11352
When defendant committed the offense charged in count 1 during May 2011, Health and Safety Code section 11352, subdivision (a), provided in pertinent part: “Except as otherwise provided in this division, every person who transports . . . any controlled substance specified in subdivision . . . (c) . . . of Section 11054 . . . shall be punished by imprisonment in the state prison for three, four, or five years.” (Stats. 2000, ch. 8, § 5, p. 51, italics added.)
Before the 2013 amendment of Health and Safety Code section 11352, the word “transports” as used in that section had been construed to include transportation for personal use. (See People v. Cortez (1985) 166 Cal.App.3d 994, 997-998; cf. People v. Rogers (1971) 5 Cal.3d 129, 135 (Rogers) [word “transports” in former Health and Safety Code section 11531, which made it a crime to transport marijuana, included transportation for personal use and was not limited to transportation for sale or distribution].) Effective January 1, 2014, subdivision (c) was added to Health and Safety Code section 11352 by amendment. (Stats. 2013, ch. 504, § 1, p. 4151; Gov. Code, § 9600, subd. (a).) It states: “For purposes of this section, ‘transports’ means to transport for sale.”
2. Estrada’s Retroactivity Rule
Under Estrada, “courts ordinarily presume that newly enacted legislation lessening a criminal punishment is intended to apply ‘to all cases not yet reduced to final judgment on the statute’s effective date.’ ” (People v. Conley (2016) 63 Cal.4th 646, 655 (Conley).) In Estrada, the California Supreme Court held that “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.” (Estrada, supra, 63 Cal.2d at p. 748.) In Estrada, the court reasoned: “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. 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. This intent seems obvious, because to hold otherwise would be to conclude that the Legislature was motivated by a desire for vengeance, a conclusion not permitted in view of modern theories of penology.” (Id. at p. 745.)
“Estrada itself recognized that when the Legislature has amended a statute to lessen the punishment, its determination as to which statute should apply to all convictions not yet final, ‘either way, would have been legal and constitutional.’ [Citations.]” (People v. Floyd (2003) 31 Cal.4th 179, 188-189 (Floyd).) “Because the Estrada rule reflects a presumption about legislative intent, rather than a constitutional command, the Legislature . . . may choose to modify, limit, or entirely forbid the retroactive application of ameliorative criminal law amendments if it so chooses.” (Conley, supra, 63 Cal.4th at p. 656.)
No equal protection problem arises from giving a statute lessening the punishment for a particular offense only prospective effect. (Floyd, supra, 31 Cal.4th at p. 188.) “ ‘The Legislature properly may specify that such statutes are prospective only, to assure that penal laws will maintain their desired deterrent effect by carrying out the original prescribed punishment as written.’ [Citations.] The voters have the same prerogative. [Citation.]” (Ibid.) “[T]he Fourteenth Amendment does not forbid statutes and statutory changes to have a beginning, and thus to discriminate between the rights of an earlier and later time.” (Sperry & Hutchinson Co. v. Rhodes (1911) 220 U.S. 502, 505.)
The Supreme Court has explained that the Estrada rule represents “an important, contextually specific qualification to the ordinary presumption that statutes operate prospectively.” (People v. Brown (2012) 54 Cal.4th 314, 323 (Brown); § 3 [“No part of [the Penal Code] is retroactive, unless expressly so declared”].) “When the Legislature has amended a statute to reduce the punishment for a particular criminal offense, we will assume, absent evidence to the contrary, that the Legislature intended the amended statute to apply to all defendants whose judgments are not yet final on the statute’s operative date. [Citation.]” (Brown, supra, at p. 323.) This assumption is based “on the premise that ‘ “[a] legislative mitigation of the penalty for a particular crime represents a legislative judgment that the lesser penalty or the different treatment is sufficient to meet the legitimate ends of the criminal law.” ’ [Citation.]” (Ibid., italics omitted.)
“The basis of [the] decision in Estrada was [the court’s] quest for legislative intent.” (In re Pedro T. (1994) 8 Cal.4th 1041, 1045.) “To ascertain whether a statute should be applied retroactively, legislative intent is the ‘paramount’ consideration . . . .” (People v. Nasalga (1996) 12 Cal.4th 784, 792 (Nasalga) (plur. opn. of Werdegar, J.).) Estrada merely “articulates a presumption of statutory construction.” (Conley, supra, 63 Cal.4th at p. 662.) “The Estrada rule rests on an inference that, in the absence of contrary indications, a legislative body ordinarily intends for ameliorative changes to the criminal law to extend as broadly as possible, distinguishing only as necessary between sentences that are final and sentences that are not. (See Estrada, supra, 63 Cal.2d at p. 745.)” (Id. at p. 657.)
But Estrada’s “presumption does not govern when the statute at issue includes a ‘saving clause’ providing that the amendment should be applied only prospectively. [Citations.]” (Conley, supra, 63 Cal.4th at p. 656.) While a statute’s express savings clause “unquestionably suffice[s] to override the Estrada presumption, the ‘absence of an express saving clause . . . does not end “our quest for legislative intent.” ’ [Citation.]” (Ibid.) Where a statute does not contain an express saving clause, “we must look for any other indications of legislative intent.” (Nasalga, supra, 12 Cal.4th at p. 794 (plur. opn. of Werdegar, J.); cf. Conley, supra, at p. 658.)
The forfeiture rule does not apply to Estrada claims. (See Nasalga, supra, 12 Cal.4th at p. 789, fn. 4 (plur. opn. of Werdegar, J.).) Imposition of the greater punishment under the old statute is an unauthorized sentence where the Estrada rule governs. (Ibid.; see People v. Scott (1994) 9 Cal.4th 331, 354.)
Estrada’s presumption of retroactivity to a nonfinal judgment of conviction also applies where a former crime is decriminalized or where an offense’s elements are changed so that certain conduct is no longer a crime. (See e.g., People v. Collins (1978) 21 Cal.3d 208, 212-213 (Collins); People v. Rossi (1976) 18 Cal.3d 295, 299-304 (Rossi); People v. Babylon (1985) 39 Cal.3d 719, 727-728.) In Rossi, after a nonjury trial, the trial court found the defendant guilty of five counts of violating former section 288a. (Rossi, supra, at p. 298.) When the defendant committed the charged acts, former section 288a “broadly proscribed all oral copulation, even between consenting adults.” (Rossi, supra, at p. 298, fn. omitted.) “After the trial court rendered its judgment of conviction, it suspended proceedings and placed defendant on probation for three years” (ibid.), and the defendant appealed from the judgment of conviction. (Ibid.)
On appeal in Rossi, the People conceded that the defendant’s conduct was no longer criminal under section 288a as amended “after the rendition of judgment but before its finality by the lapse of the period for appeal.” (Rossi, supra, 18 Cal.3d at p. 298.) The defendant contended that “her conviction should be reversed because, before the conviction became final, the Legislature amended section 288a of the Penal Code so as to legalize her conduct.” (Ibid.)
The California Supreme Court observed in Rossi that “numerous precedents demonstrate that the common law principles reiterated in Estrada apply a fortiorari when criminal sanctions have been completely repealed before a criminal conviction becomes final.” (Rossi, supra, 18 Cal.3d at p. 301.) It stated: “As the United States Supreme Court has observed, it is ‘the universal common-law rule that when the legislature repeals a criminal statute or otherwise removes the State’s condemnation from conduct that was formerly deemed criminal, this action requires the dismissal of a pending criminal proceeding charging such conduct. The rule applies to any such proceeding which, at the time of the supervening legislation, has not yet reached final disposition in the highest court authorized to review it.’ (Bell v. Maryland (1964) 378 U.S. 226, 230.) In the instant case, this ‘universal common-law rule’ mandates the reversal of defendant’s conviction.” (Id. at p. 304.)
In Collins, which also involved former section 288a, the defendant appealed “from a judgment of conviction, claiming the conduct which produced his conviction was no longer a crime at the time the trial judge imposed sentence.” (Collins, supra, 21 Cal.3d at p. 211.) After the defendant had entered a plea to oral copulation (former § 288a) pursuant to a plea bargain, “the court suspended criminal proceedings, found the defendant to be a mentally disordered sex offender and committed him to Patton State Hospital for an indefinite period ([former] Welf. & Inst. Code, § 6316).” (Collins, supra, at p. 211.) While the defendant was committed, “the Legislature repealed Penal Code section 288a and enacted a new section of the same number which became effective on January 1, 1976.” (Ibid.) The new law decriminalized “the act of oral copulation between consenting, nonprisoner adults.” (Ibid.) After criminal proceedings were reinstated, the trial court, over the defendant’s objection, sentenced the defendant to “state prison for one to fifteen years.” (Id. at pp. 211-212.)
The Supreme Court in Collins concluded that the case was “clearly controlled” by its decision in Rossi. (Collins, supra, 21 Cal.3d at p. 213.) The court stated that “an amendment eliminating criminal sanctions is a sufficient declaration of the Legislature’s intent to bar all punishment for the conduct so decriminalized.” (Ibid.) The court declared: “[The] [d]efendant’s conviction had not been reduced to final judgment when new section 288a became effective—and under the new section the act that he admitted, and upon which his guilty plea and conviction were based, was no longer punishable. It follows that the sentence cannot be allowed to stand.” (Ibid., fn. omitted.) The court concluded that “the proper remedy is to reverse the judgment with directions to dismiss the count involved herein” (id. at p. 214), stating that “[a] conviction cannot stand on appeal when it rests upon conduct that is no longer sanctioned.” (Ibid.)
The court further concluded in Collins that “the prosecution has been deprived of the benefit of its bargain by the relief granted” and that therefore “the dismissed counts may be restored.” (Collins, supra, 21 Cal.3d at p. 215.) The court explained: “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. Whether the defendant formally seeks to withdraw his guilty plea or not is immaterial; it is his escape from vulnerability to sentence that fundamentally alters the character of the bargain.” (Ibid., italics added; see Harris v. Superior Court (2016) 1 Cal.5th 984, 993 [recognizing that, in Collins, the Supreme Court “allowed the People to withdraw from a plea agreement before sentencing where a change in the law had decriminalized the offense to which the defendant had pled” because “[t]he change eviscerated the judgment and the underlying plea bargain entirely, and it did so before the judgment”].)
A court has recently considered the same statutory amendment as one at issue here. In People v. Ramos (2016) 244 Cal.App.4th 99 (Ramos), a jury found the defendant guilty of several crimes, including transportation of heroin (Health & Saf. Code, § 11352, subd. (a).) (Ramos, supra, at p. 100.) But after the defendant was convicted, section 11352 was amended by adding subdivision (c) to define “transports.” (Ramos, supra, at pp. 102-103.) On appeal, the defendant contended, the People conceded, and the appellate court agreed, that the amendment of Health and Safety Code section 11352 retroactively applied to the defendant. (Ramos, supra, at p. 103.)
In Eagle another court recently considered a statutory amendment analogous to the one at issue here. In that case, the defendant pleaded no contest to a charge of transportation of a controlled substance (methamphetamine) pursuant to a plea agreement, and the court granted probation. (Eagle, supra, 246 Cal.App.4th at p. 278.) Subsequently, the Legislature amended section 11379 to define “transports” to mean “transport for sale.” (§ 11379, subd. (c); Stats. 2013, ch. 504, § 2, p. 4151.) The defendant unsuccessfully moved to vacate his conviction for transporting methamphetamine, and he appealed from the order denying his motion. (Eagle, supra, at p. 277.) On appeal, the People conceded, and the appellate court agreed, that the defendant was “entitled to benefit retroactively from the changes to section 11379” on the ground that his judgment of conviction of felony transportation of methamphetamine was not yet final. (Id. at p. 279.)
While both Ramos and Eagle reversed a conviction of transportation of a controlled substance, neither court directed the trial court to, upon remand, dismiss the transportation of a controlled substance charge. (Ramos, supra, 244 Cal.App.4th at p. 105; Eagle, supra, 246 Cal.App.4th at p. 280) Instead, both cases provided a remedy of a new trial. (See Ramos, supra, at pp. 103, 105 [upon remand, defendant may “admit the ‘transport for sale’ element of the current version of section 11352” or have a new jury trial on that charge]; Eagle, supra, at p. 280 [“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”; “retrial is not barred by the double jeopardy clause or ex post facto principles”].) Eagle also indicated that the defendant must be given an opportunity to withdraw his plea. (Eagle, supra, at p. 277.)
B. Sentencing after Amendment of Statute Effectively Decriminalizing Conduct
The parties are not disputing that the Estrada presumption of retroactivity applies with respect to defendant’s conviction under former Health and Safety Code section 11352. The issue seems to be the availability and nature of any remedy.
As indicated, we asked for supplemental briefing to clarify the issues on appeal. (See ante, fn. 3.) Defendant originally claimed that this case was distinguishable from Eagle, supra, 246 Cal.App.4th 275, but that at a minimum he should be allowed to withdraw his plea to former Health and Safety Code section 11352 consistent with Eagle. Now defendant asserts that “[t]he defendant in Eagle was in the same procedural posture” as is he.
In response to our request for supplemental briefing, the People have withdrawn their concession that defendant is in the same position as the defendant in Eagle, and now assert that defendant is not entitled to withdraw his plea to a violation of former Health and Safety Code section 11352 as suggested in Eagle. They now rely instead on the very recent case of People v. Superior Court (Rodas) (2017) 10 Cal.App.5th 1316 (Rodas), and they assert that the remedy sought by defendant is “time-barred” by section 1018.
In Rodas, Margarita Rodas was “granted probation in 2007 after entering a negotiated plea of no contest to transporting heroin under former Health and Safety Code section 11352.” (Rodas, supra, 10 Cal.App.5th at p. 1318.) At the time of her plea, “the statute prohibited transporting a controlled substance for personal use. (§ 11352, former subd. (a).)” (Id. at pp. 1318-1319.) After violating probation multiple times and then absconding, she appeared in court in 2015, and she filed a “motion to vacate her felony transportation conviction and replace it with a misdemeanor sentence for simple possession.” (Id. at p. 1319) The trial court granted her oral motion to withdraw her plea. (Ibid.) “The People petitioned for a writ of mandate directing the trial court to vacate its order allowing Rodas to withdraw her nearly nine year-old plea.” (Ibid.)
In granting writ relief, the appellate court pointed out that neither Eagle nor Ramos had considered section 1018 (Rodas, supra, 10 Cal.App.5th at p. 1323), which authorizes a time limited, statutory motion to withdraw a guilty plea for good cause. The appellate court reasoned: “Because the six-month time limitation in Penal Code section 1018 is mandatory, the trial court had no discretion to disregard the failure to file a timely motion to withdraw. ([People v.] Miranda [(2004)] 123 Cal.App.4th [1124,] 1126.) Where, like here, a defendant moves to withdraw his or her guilty or no contest plea beyond the period proscribed in Penal Code section 1018, the court lacks jurisdiction to consider or grant the motion. (Miranda, at p. 1134.) Thus, the trial court exceeded its jurisdiction in granting Rodas’ motion to withdraw her plea.” (Id. at p. 1324.)
The procedural posture in this case is unlike both Eagle and Rodas in that defendant did not bring a motion to withdraw his plea in the court below. This is an appeal from a judgment of conviction, not from an order denying a motion to withdraw a plea. It is also undisputable that, since defendant is appealing from the judgment of conviction, defendant’s judgment is not final for Estrada purposes. (See Nasalga, supra, 12 Cal.4th at p. 789, fn. 5 (plur. opn. of Werdegar, J.); see also Estrada, supra, 63 Cal.2d at p. 744.)
In this case, a remand for a trial is not the appropriate remedy. Since Defendant’s plea was explicitly based on transportation for personal use, and there is no basis in the record to suppose that the People could possibly prove transportation for sale, it must be concluded that his conduct does not constitute a crime under the current Health and Safety Code section 11352 and the Estrada rule precludes punishment under that section. Accordingly, it is our conclusion that, under Collins, the conviction must be reversed and the trial court must, upon remand, dismiss count 1 (Health & Saf. Code, § 11352, subd. (a)) and allow the People to withdraw from the plea bargain and reinstate the charges dismissed pursuant to it. (See Collins, supra, 21 Cal.3d at pp. 214-215.)
DISPOSITION
The judgment is reversed. Upon remand, the trial court is directed to dismiss count 1 (Health & Saf. Code, § 11352, subd. (a)) and allow the People to withdraw from the plea bargain and reinstate the charges dismissed pursuant to it.




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ELIA, J.

WE CONCUR:



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RUSHING, P. J.



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PREMO, J.