People v. Hammond CA3 ( 2014 )

Filed 10/16/14 P. v. Hammond CA3
Opinion following rehearing
NOT TO BE PUBLISHED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 This opinion has not been certified for publication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, C072045
Plaintiff and Respondent, (Super. Ct. No. 12NCR09173)
v. OPINION AFTER
REHEARING
SCOTT JAMES HAMMOND,
Defendant and Appellant.
Defendant Scott James Hammond appeals from his conviction of transportation of
methamphetamine (Health & Saf. Code, § 11379, subd. (a)),1 transportation of
oxycodone (§ 11352, subd. (a)), and possession of drug paraphernalia, a misdemeanor
(§ 11364.1). The conviction and grant of probation followed a court trial in which the
only evidence presented was a stipulated factual statement. The statement was read into
1 Further undesignated statutory references are to the Health and Safety Code.
1
the record by the prosecutor and, without objection, was augmented by defense counsel
before argument by both counsel.
Defendant filed an opening brief asserting the trial court committed reversible
error in failing to advise him, and obtain his waiver, of his constitutional rights to
confrontation and against self-incrimination, and arguing that evidence of his minimal
movement of the drugs from his pocket to the floor of his car was insufficient to prove
the element of carrying or conveying the substances required for transportation. Our
unpublished opinion filed on December 9, 2013, was written to affirm the judgment, but
thereafter, on our own motion, we ordered rehearing and directed the parties to file
supplemental briefing on whether “section 11379, as amended by Statutes 2013,
chapter 504, effective January 1, 2014, affects the disposition of [defendant’s]
conviction.” The briefing was to address whether the amendment of section 11379 to
provide that “ ‘ “transports” means to transport for sale’ ” requires modification of the
judgment and in what respects.
The parties agree that defendant is entitled to the benefit of the amendment of
section 11379, which, as amended, requires a finding that the methamphetamine was
being transported for sale. The parties also agree the record does not support such a
finding so that defendant’s conviction for transportation of methamphetamine must be
vacated. The parties disagree on the disposition. Defendant asserts that we must simply
vacate his conviction. The People argue the case should be remanded for further
proceedings. (Cf. People v. Figueroa (1993) 20 Cal.App.4th 65, 71 (Figueroa).) We
conclude that remand for retrial is required not only on defendant’s conviction for
violating section 11379, but also on defendant’s conviction for violating section 11352,
which was amended at the same time to include the same definition.
FACTS AND PROCEDURAL HISTORY
Defendant waived his right to a preliminary hearing. When arraigned on the
information, defendant waived advisement of his rights on the information. Defense
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counsel stated that he had discussed with defendant “waiving his right to a jury trial and
doing a court trial on this matter” but that they were “not stipulating” to transportation,
arguing that it was “a personal use case.” The People also waived trial by jury. The
court then engaged in the following colloquy with defendant:
“The Court: And Mr. Hammond, I don’t know if you heard what I was
mentioning to the last person who was waiving their right to a jury trial to have this issue
basically before what we call our appellate courts. We’re really looking at a set of
circumstances to have an area of law cleared up here. But just what I told him, based
upon the current set of the law, unless there’s some substantial difference on the facts that
you would be presenting me, I probably would find you guilty at a court trial.
“Do you understand that?
“The Defendant: Yes, sir.
“The Court: You still wish to have a court trial?
“The Defendant: Yes, sir.
“The Court: All right. And you know the difference? You had an opportunity to
talk to [defense counsel] about the difference between a court trial and a jury trial?
“The Defendant: No, but I heard you talking to the last guy.
“The Court: So you know the difference then?
“The Defendant: Yes, sir.
“The Court: Thank you, Mr. Hammond.”
At the court trial, the parties submitted and “agree[d] that the Court may enter its
verdict and judgment” on a stipulated factual statement. At the court’s request, the
prosecutor read the stipulated factual statement into the record:
“On March 25, 2012 Glenn County Sheriff’s deputies Jon Owens and Jason
Holley were on patrol near the City of Orland. At approximately 9:30 p.m. they observed
a car parked in the driveway at 6379 County Road 200. The car had its driving lights on
and the location of the vehicle was suspicious because the house in front of which the car
3
was parked was vacant. Deputy Owens contacted the driver, subsequently identified as
Scott Hammond and asked him what he was doing at the residence. Hammond, who
appeared to be under the influence of methamphetamine, indicated that he had just driven
to a friend’s residence behind the 6379 CR 200 address and was planning on heading
back to his mother’s residence on County Road G. As Owens had approached the vehicle
he had observed the driver fumbling around on the front seat. Owens asked Hammond if
he was on probation or parole. Hammond replied that he was on probation and that his
driver’s license was suspended. Hammond was asked if he had anything illegal on his
person or in the vehicle. He replied that he had a pipe in his pocket and there was some
meth[amphetamine] under the front seat. Hammond was also asked what he had been
doing when he saw the deputies pull up. Hammond responded that he had been trying to
hide his meth[amphetamine] and a few ‘Percocet’. A search of Hammond’s person and
vehicle was conducted. A meth[amphetamine] pipe was found in his pants pocket, a
small baggie of white crystalline substance was found under the driver’s seat, and nine
325 mg Percocet tablets were found scattered under the seat on the floor board.
Hammond was asked about the white crystalline substance and acknowledged that it was
methamphetamine. Hammond stated that he had just purchased the meth[amphetamine]
that date and that it was a ‘20 sack’ (street parlance for a twenty dollar bag) and that it
contained approximately .2 grams. Hammond stated that he intended to use the
meth[amphetamine] himself, but was planning on dropping off the Percocet at a friend’s
house.
“The suspected methamphetamine and Percocet was sent to the Department of
Justice laboratory in Chico. It was determined that the small baggie contained .36 grams
of methamphetamine and that the Percocet tablets in fact contained oxycodone (Percocet
is a trade name for an acetaminophen/oxycodone combination).”
The court inquired whether defense counsel had any additional stipulations.
Defense counsel stated that “the methamphetamine found was of a quantity for personal
4
use and there was no intent to distribute.” The court then entertained argument from both
parties.
The prosecutor argued that the facts supported transportation even though the
officers did not observe the car move, citing the vacant house, the car with its lights
turned on, and defendant’s statement acknowledging that he had just arrived. The
prosecutor argued laboratory testing established the substances found were contraband
and the quantity was of a usable amount. Finally, the prosecutor argued that the
methamphetamine pipe established the paraphernalia count. The prosecutor stated, “The
People have essentially abandoned the [Health and Safety Code section] 11550 and
[Vehicle Code section] 14601.2 [violations] that would have been charged in this case.”
Defense counsel argued that defendant’s “admission” that he had “driven” to the
location did not establish “where the drugs came from,” noting that the officers did not
observe defendant transport the drugs and there was “no evidence that the location was
not where he had purchased the drugs or gotten the drugs.” Defense counsel also argued
that the amounts were for personal use. Upon the court’s inquiry about defendant’s
statement that he planned to transport to furnish to someone else, defense counsel argued
defendant’s intent to do so did not establish movement. Defense counsel conceded that
the officer observed defendant “fumbling his hands in an effort to -- [¶] . . . [¶] . . .
conceal it.”
In convicting defendant on both transportation counts, the court concluded that the
movement required for transportation may be minimal and that the movement from
defendant’s “pocket to [the] floor” was sufficient. The court also convicted defendant of
the paraphernalia count. The court acquitted defendant of counts III and V, “based upon
the lack of no [sic] presentation of evidence.”
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DISCUSSION
I
Defendant contends the trial court prejudicially erred in failing to advise him of
his constitutional rights upon submission of his case on a stipulated factual statement.
Claiming that his submission was a “slow plea,” defendant argues that the stipulated
factual statement admitted every evidentiary fact or element of the charged offenses,
requiring advisement and waiver of his rights. He claims a review of the entire record
reflects that he did not submit with an understanding and waiver of his constitutional
rights. The People argue that the circumstances here do not reflect a “slow plea” because
defendant’s guilt was “fully contested” in that defense counsel argued there was no
evidence of transportation and that defendant was guilty of only possession. We
conclude this was not a “slow plea” and any error by the trial court in accepting the
stipulated facts without advisements was harmless.
Boykin-Tahl advisements and “slow pleas.”
Prior to accepting a defendant’s guilty or no contest plea, a trial court must inform
the defendant of his constitutional rights (jury trial, confrontation, and self-incrimination)
and obtain his waiver. (Boykin v. Alabama (1969) 395 U.S. 238, 242-244 [23 L.Ed.2d
274, 279-280] (Boykin); People v. Howard (1992) 1 Cal.4th 1132, 1175, 1176, 1179;
In re Tahl (1969) 1 Cal.3d 122, 132 (Tahl).) A defendant’s stipulation to all the
evidentiary facts or elements of an offense required for conviction also necessitates
advisement and waiver of these rights if the stipulation is tantamount to a plea of guilty.
(People v. Adams (1993) 6 Cal.4th 570, 576-583 (Adams); People v. Little (2004)
115 Cal.App.4th 766, 772-773, 778 (Little).)
A “slow plea” is “ ‘an agreed-upon disposition of a criminal case via any one of a
number of contrived procedures which does not require the defendant to admit guilt but
results in a finding of guilt on an anticipated charge and, usually, for a promised
punishment.’ Perhaps the clearest example of a slow plea is a bargained-for submission
6
on the transcript of a preliminary hearing in which the only evidence is the victim’s
credible testimony, and the defendant does not testify and counsel presents no evidence
or argument on defendant’s behalf. Such a submission is ‘tantamount to a plea of guilty’
because ‘the guilt of the defendant [is] apparent on the basis of the evidence presented at
the preliminary hearing and . . . conviction [is] a foregone conclusion if no defense [is]
offered.’ (Bunnell v. Superior Court [(1975)] 13 Cal.3d [592,] 602 [(Bunnell)]; accord,
People v. Levey [(1973)] 8 Cal.3d [648,] 651.)” (People v. Wright (1987) 43 Cal.3d 487,
496 (Wright).)
Here, in a simple case predicated on the search of defendant’s vehicle by two law
enforcement officers, defendant agreed to a joint statement of the officers’ account of the
search, together with his own version of how he came into possession of the drugs and
how he intended to use them. His own statements as set forth in the stipulation provided
the basis for his counsel’s argument challenging the sufficiency of the evidence for
transportation–that the evidence showed only unlawful possession, which would not
suffice to prove transportation. The stipulation was notably lacking in any direct
evidence of transportation beyond his possession of a relatively small quantity of drugs.
As augmented by defendant’s counsel, without objection by the prosecution, the
stipulation provided there was no intent to distribute the drugs and the methamphetamine
was of a quantity for personal use. Submissions are not considered slow pleas “[i]f it
appears on the whole that the defendant advanced a substantial defense” (Wright, supra,
43 Cal.3d at p. 497) or where “the facts revealed . . . are essentially undisputed but
counsel makes an argument to the court as to the legal significance to be accorded them”
(id. at p. 496). Significantly, while convicted of transporting methamphetamine and
oxycodone, and of possession of drug paraphernalia, defendant was acquitted of being
under the influence and of driving on a suspended license.
True, the evidence contained in the stipulated factual statement was the only
evidence used against defendant; the prosecutor did not present any additional evidence.
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(See Adams, supra, 6 Cal.4th at p. 581.) The prosecutor even abandoned pursuing the
counts charging being under the influence and driving on a suspended license, apparently
because the stipulated facts failed to sustain those charges. Defendant’s stipulation
“implicitly and necessarily covered all the evidentiary facts required for a conviction and
imposition of punishment” on the remaining charges. (Little, supra, 115 Cal.App.4th at
p. 778.)
Although the facts in the stipulated statement were undisputed, defense counsel
argued that the officers did not see defendant move the car and that the drugs were
possessed for personal use. Defense counsel made “an argument to the court as to the
legal significance to be accorded” to the stipulated facts. (Wright, supra, 43 Cal.3d at
p. 496.) Defendant claims that counsel’s argument was ineffective since transportation
for personal use is included in a transportation charge. Defense counsel argued that there
was not any evidence of transportation because the officers did not see defendant move
the car. Defense counsel argued from the beginning that it was a possession case. His
argument contested the sufficiency of the evidence for transportation, a substantial
defense since “[e]vidence of unlawful possession is not evidence of transportation.”
(People v. Kilborn (1970) 7 Cal.App.3d 998, 1002-1003.) Thus, the submission was not
tantamount to a guilty plea, and for that reason, “Boykin-Tahl” advisements were not
required, defendant’s arguments to the contrary notwithstanding. (See People v. Sanchez
(1995) 12 Cal.4th 1, 29-30; Wright, supra, 43 Cal.3d at p. 496.) Defendant has failed to
demonstrate a reasonable probability that he would have obtained a more favorable result
absent his stipulation to the facts. Thus, the trial court’s error in accepting the stipulated
facts without compliance with Bunnell was harmless. Moreover, defendant’s waiver of
his right against self-incrimination was not required since he did not testify. (Sanchez, at
p. 30.)
Apart from the Boykin-Tahl advisements, which are constitutionally mandated,
courts in California are also compelled to give Boykin-Tahl-like advisements in all guilty
8
plea and submission cases as “a judicially declared rule of criminal procedure.”
(People v. Barella (1999) 20 Cal.4th 261, 266.). In Bunnell, supra, 13 Cal.3d at p. 605,
our Supreme Court decreed that “in all cases in which the defendant seeks to submit his
case for decision on the transcript or to plead guilty, the record shall reflect that he has
been advised of his right to a jury trial, to confront and cross-examine witnesses, and
against self-incrimination.”
Additionally, “[i]n cases in which there is to be a submission without a reservation
by the defendant of the right to present evidence in his own defense he shall be advised of
that right.” (Bunnell, supra, 13 Cal.3d at p. 605.) “If a defendant does not reserve the
right to present additional evidence and does not advise the court that he will contest his
guilt in argument to the court, the defendant shall be advised of the probability that the
submission will result in a conviction of the offense or offenses charged.” (Ibid.)
Finally, “In all guilty plea and submission cases the defendant shall be advised of the
direct consequences of conviction . . . .” (Ibid.)
Because these “Bunnell” advisements are not constitutionally compelled, the
failure to give them is reversible error only if it is reasonably probable the defendant
would have obtained a more favorable result had he been advised concerning the
consequences of a conviction and his rights to cross-examine and subpoena witnesses
against him and his privilege against self-incrimination, and declined to submit the case.
Defendant has not met his burden of demonstrating such a probability. Indeed, the facts
suggest the contrary.
Initially, we note that defendant’s waiver of his right against self-incrimination
was not required. “For submissions not tantamount to a guilty plea, a trial court’s failure
to advise the defendant of his right against self-incrimination is implicated only to the
extent defendant surrendered the right.” (Sanchez, supra, 12 Cal.4th at p. 30.) Here,
defendant never surrendered his right; he chose not to testify. Thus, there was no
requirement of a personal, on-the-record waiver. (Ibid.) With respect to the waiver of
9
jury trial, defense counsel informed the court that he had discussed with defendant
“waiving his right to a jury trial and doing a court trial on this matter.” The court advised
defendant that based on the court’s understanding of the facts, he would likely be found
guilty. Defendant professed his understanding of the right to jury trial, as the court had
earlier explained to another litigant, and defendant affirmed his decision to waive the
right. Counsel then recited the stipulation, which was little more than an account of
defendant’s various admissions to law enforcement at the scene of his detention.
Notwithstanding the court’s dire prediction, defendant was acquitted of two counts. He
received probation. It is hard to believe that defendant would have obtained a more
favorable result had he been given the required advisements. In any event, he has not met
his burden of demonstrating such.
II
Defendant challenged the sufficiency of the evidence to support his convictions
for transportation, specifically the element of carrying or conveying. Because the recent
amendment of sections 11352 and 11379 added a definition of “transport” to mean
“transport for sale,” we must first discuss defendant’s entitlement to the benefit of the
amendment. Although defendant sought the benefit of the amendment to section 11379
only and this court directed briefing on whether section 11379, as amended, affected the
disposition of his conviction for violating section 11379 only, the same statutory change
was made at the same time to section 11352. Defendant was convicted of violating
section 11352, transportation of oxycodone. Thus, we include a discussion of that section
as well since defendant challenged the sufficiency of the evidence to support that
conviction.
When defendant committed his current transportation of oxycodone offense,
section 11352, subdivision (a) and former subdivision (b) provided:
“(a) Except as otherwise provided in this division, every person who transports,
imports into this state, sells, furnishes, administers, or gives away, or offers to transport,
10
import into this state, sell, furnish, administer, or give away, or attempts to import into
this state or transport (1) any controlled substance specified in subdivision (b), (c), or (e),
or paragraph (1) of subdivision (f) of Section 11054, specified in paragraph (14), (15), or
(20) of subdivision (d) of Section 11054, or specified in subdivision (b) or (c) of
Section 11055, or specified in subdivision (h) of Section 11056, or (2) any controlled
substance classified in Schedule III, IV, or V which is a narcotic drug, unless upon the
written prescription of a physician, dentist, podiatrist, or veterinarian licensed to practice
in this state, shall be punished by imprisonment pursuant to subdivision (h) of
Section 1170 of the Penal Code for three, four, or five years.
“(b) Notwithstanding the penalty provisions of subdivision (a), any person who
transports for sale any controlled substances specified in subdivision (a) within this state
from one county to another noncontiguous county shall be punished by imprisonment
pursuant to subdivision (h) of Section 1170 of the Penal Code for three, six, or nine
years.” (Stats. 2011, ch. 15, § 154.)
Effective January 1, 2014, section 11352 was amended to delete “for sale” after
the word “transports” in subdivision (b) and to add two subdivisions:
“(c) For purposes of this section, ‘transports’ means to transport for sale.
“(d) This section does not preclude or limit the prosecution of an individual for
aiding and abetting the commission of, or conspiring to commit, any act prohibited by
this section.” (Stats. 2013, ch. 504, § 1.)
When defendant committed his current transportation of methamphetamine
offense, section 11379, subdivision (a) and former subdivision (b) provided:
“(a) Except as otherwise provided in subdivision (b) and in Article 7
(commencing with Section 4211) of Chapter 9 of Division 2 of the Business and
Professions Code, every person who transports, imports into this state, sells, furnishes,
administers, or gives away, or offers to transport, import into this state, sell, furnish,
administer, or give away, or attempts to import into this state or transport any controlled
11
substance which is (1) classified in Schedule III, IV, or V and which is not a narcotic
drug, except subdivision (g) of Section 11056, (2) specified in subdivision (d) of
Section 11054, except paragraphs (13), (14), (15), (20), (21), (22), and (23) of
subdivision (d), (3) specified in paragraph (11) of subdivision (c) of Section 11056,
(4) specified in paragraph (2) or (3) of subdivision (f) of Section 11054, or (5) specified
in subdivision (d) or (e), except paragraph (3) of subdivision (e), or specified in
subparagraph (A) of paragraph (1) of subdivision (f), of Section 11055, unless upon the
prescription of a physician, dentist, podiatrist, or veterinarian, licensed to practice in this
state, shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 of
the Penal Code for a period of two, three, or four years.
“(b) Notwithstanding the penalty provisions of subdivision (a), any person who
transports for sale any controlled substances specified in subdivision (a) within this state
from one county to another noncontiguous county shall be punished by imprisonment
pursuant to subdivision (h) of Section 1170 of the Penal Code for three, six, or nine
years.” (Stats. 2011, ch. 15, § 174.)
Effective January 1, 2014, section 11379 was amended to delete “for sale” after
the word “transports” in subdivision (b) and to add two subdivisions:
“(c) For purposes of this section, ‘transports’ means to transport for sale.
“(d) Nothing in this section is intended to preclude or limit prosecution under an
aiding and abetting theory or a conspiracy theory.” (Stats. 2013, ch. 504, § 2.)
Defendant’s convictions were not final on January 1, 2014, the effective date of
the amendment. (People v. Vieira (2005) 35 Cal.4th 264, 306 [judgment not final until
time for petitioning for writ of certiorari in U.S. Supreme Court has passed].) Both
sections 11352 and 11379 now require proof that the defendant transported the controlled
substances for sale, rather than just transported the controlled substances under the case
law interpretation of the former statute. Previously, “transport” did not have a technical
meaning peculiar to the law and meant “ ‘to carry or convey from one place to another.’ ”
12
(People v. LaCross (2001) 91 Cal.App.4th 182, 185 (LaCross).) The movement required
was the movement of the controlled substance “ ‘from place to place, rather than merely
held at one location.’ ” (Id. at p. 186; see also People v. Ormiston (2003)
105 Cal.App.4th 676, 684-685 (Ormiston) [“the requirement of volitional transport of
methamphetamine from one location to another avoids any unwarranted extension of the
statute to restrained minimal movement within a residence or other confined area that
does not facilitate trafficking, distribution or personal use of drugs”].)
Legislative amendments are presumed to apply prospectively unless stated
otherwise or extrinsic sources reflect clearly that the Legislature intended the amendment
to apply retroactively. (Pen. Code, § 3; In re E.J. (2010) 47 Cal.4th 1258, 1272;
People v. Vinson (2011) 193 Cal.App.4th 1190, 1195 (Vinson).) In amending
sections 11352 and 11379, the Legislature did not state expressly whether the amendment
applied prospectively or retroactively. Thus, we review the legislative history for
legislative intent. (E.J., supra, 47 Cal.4th at p. 1272.)
From the beginning, the intent of Assembly Bill No. 721 was to eliminate the
possibility that a person could be convicted of transportation for transporting a small
amount of controlled substance for personal use, noting that prosecutors had been double-
charging defendants for both possession and transportation of controlled substances even
when there was no evidence of intent to sell or involvement in drug trafficking.
(See Assem. Com. on Public Safety, comments on Assem. Bill No. 721 (2013-2014 Reg.
Sess.) Feb. 21, 2013, pp. 2-3; see also Sen. Com. on Public Safety, comments on Assem.
Bill No. 721 (2013-2014 Reg. Sess.), for hearing on June 11, 2013, pp. 4-5.) Because
courts had interpreted “transport” to mean any movement of the controlled substance
(Ormiston, supra, 105 Cal.App.4th at p. 683 [walking]; LaCross, supra, 91 Cal.App.4th
at p. 183 [riding a bicycle]), Assembly Bill No. 721 was meant to “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
13
individual who is arrested with the exact same quantity of drugs, but who is just sitting on
a bench,” to correct the “ ‘unjust’ and ‘absurd’ result foreseen long ago by Justice Mosk
[in his dissent in People v. Rogers (1971) 5 Cal.3d 129, 145-146], and [to provide] that
similarly situated individuals should be treated similarly by the law.” (Sen. Com. on
Public Safety, comments on Assem. Bill No. 721, supra, at p. 7.)
In re Estrada (1965) 63 Cal.2d 740 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.” (Id. at p. 748.) Vinson,
supra, 193 Cal.App.4th 1190 considered whether the amendment to Penal Code
section 666, requiring proof of at least three prior convictions, not just one, was
retroactive. (Vinson, at pp. 1193-1194.) Following Estrada, Vinson reasoned that the
amendment “had the effect of mitigating punishment by raising the level of recidivism
required before a defendant can be sentenced to state prison.” (Vinson, at p. 1199.)
Applying the amendment retroactively was consistent with the legislative intent “to save
money and space in order to partially offset the higher costs and inmate population
occasioned by increasing sentences for sexual predators.” (Ibid.)
Here, the amendment makes it less likely that defendant will be convicted and
punished for transportation of oxycodone (§ 11352) and transportation of
methamphetamine (§ 11379). We conclude the Legislature intended that the amendment
applies retroactively. Thus, defendant is entitled to the benefit of the amendment. We
apply the new law in the discussion that follows.
III
In his opening brief, defendant challenged the evidence to support his conviction
for transportation of methamphetamine (§ 11379), and in his supplemental brief, he
claimed the new law affected the analysis of the evidence for that conviction. In his
opening brief, defendant also challenged the evidence to support his conviction for
transportation of oxycodone (§ 11352), but in his supplemental brief, he did not claim the
14
new law affected the analysis of the evidence for that conviction. He should have, as will
be seen.
Defendant was sitting in a car parked in the driveway of a vacant house, and the
car lights were on. Defendant had just driven to the location, explaining a friend lived
behind the vacant house. He had been trying to hide the drugs when the officer
approached. Defendant was under the influence of methamphetamine. A
methamphetamine pipe was found in his pants pocket, a small baggie of white crystalline
substance was found under the driver’s seat, and nine 325-milligram Percocet tablets
were found scattered under the seat on the floorboard. Defendant knew the white
substance was methamphetamine, stating that he had just purchased a “20 sack”or
0.2 gram of methamphetamine “that date.” Defendant intended to use the
methamphetamine but planned to drop off the Percocet at a friend’s house. A laboratory
test revealed that the small baggie contained 0.36 gram of methamphetamine and that the
Percocet tablets in fact contained oxycodone.
At arraignment on the complaint deemed an information, defense counsel claimed
defendant’s defense to the two transportation charges was personal use so that defendant
would be eligible for drug treatment. The court commented that defense counsel was
“just arguing that [he thought] there should be an exception [to the transportation
charges] because it’s personal use as oppose[d] to the issue of transportation[.]” Defense
counsel responded that he was thinking of a case that “talks about trafficking, importing,
or inserting illicit drugs into the stream of commerce.”
At the court trial, the parties submitted and “agree[d] that the Court may enter its
verdict and judgment” on a stipulated factual statement “presented by both the defense
and the People.” The factual statement was signed by both the prosecutor and defense
counsel. At the court’s request, the prosecutor read the stipulated factual statement into
the record. At the conclusion of the prosecutor’s reading of the factual statement, the
court asked defense counsel whether he had any additional stipulations. Defense counsel
15
stated that the amount of methamphetamine found was an amount for personal use with
no intent to distribute. Defense counsel did not claim that the Percocet (oxycodone) was
for defendant’s personal use or that he had no intent to distribute it. The court did not ask
the prosecutor whether he agreed to the additional stipulation.
The parties argued their respective positions on the evidence. The prosecutor
claimed defendant drove to the location and intended to go somewhere else with both the
methamphetamine and the oxycodone, establishing both transportation charges. Defense
counsel claimed there was no evidence “where the drugs came from, whether they were
there, the deal went down there, or where he was before,” and there was no evidence that
the officers saw defendant drive to the location. Defense counsel added that the
“amounts involved are for personal use. And I’m asking the court, number two, to find
that this is not transportation based upon the fact that this is for personal use and there . . .
was no danger that this was going to be distributed to the community at large.” The court
responded, “[O]n the personal use I can understand the argument on the 11379 charge,
but we have evidence, the statement of [defendant] about -- he was going to transport to
furnish somebody else.” Defense counsel replied that “[defendant] may have the intent to
do it but that hadn’t happened.”
The court noted defense counsel’s “argument” that there had to be proof “of intent
to sell or distribute” for transportation but determined correctly that the “[then] current
state of the law [of] transportation d[id] not require an intent to sell or distribute.” The
court noted the then current law required only minimal movement. Under the
circumstances and law at the time, the court reasonably concluded that defendant had
driven the car with the methamphetamine and oxycodone to that location.
As previously discussed, the offense of transportation now requires that the
prosecution prove defendant transported the controlled substance for sale. Defendant “is
entitled to have the jury decide every essential element of the crime . . . charged against
him, no matter how compelling the evidence may be against him. [Citations.]”
16
(Figueroa, supra, 20 Cal.App.4th at p. 71.) Remand for retrial is not barred by the
double jeopardy or the ex post facto clause. (Id. at pp. 71-72 & fn. 2.)
The People claim that “retrial [of the section 11379 charge] would be
inappropriate in this specific case because of the apparent stipulation at trial that
[defendant] did not transport the methamphetamine for purposes of sale.” We reject the
People’s concession that the prosecutor stipulated the methamphetamine was not
transported for sale or distribution but instead for personal use. The parties entered into a
written stipulation of the facts and agreed that the court would consider the facts in the
written stipulation for purposes of the court trial. The prosecutor did not stipulate either
orally or in writing to defense counsel’s additional “stipulation.” And the court
recognized defense counsel’s additional “stipulation” for what it was–argument–which
did not reflect the then current state of the law. The prosecutor was not obligated to agree
or object to the irrelevant fact inserted unilaterally by defense counsel. “Where, as here,
evidence is not introduced at trial because the law at that time would have rendered it
irrelevant, the remand to prove that element is proper and the reviewing court does not
treat the issue as one of sufficiency of the evidence.” (Figueroa, supra, 20 Cal.App.4th
at p. 72.)
Defendant was under the influence of methamphetamine when he was arrested.
He claimed he bought 0.2 gram of methamphetamine. The lab test, however, revealed
that defendant had 0.36 gram of methamphetamine at the time of his arrest. There was no
evidence with respect to whether the quantity defendant possessed was enough to show
defendant intended to sell because it was not an issue at the time of trial. We will remand
for retrial on the section 11379 violation.
Remand is also required for defendant’s violation of section 11352. Defendant’s
violation under the amended version of the law requires a finding that the oxycodone was
transported for sale. While defendant claimed he planned to “drop[] off” the Percocet
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tablets at a friend’s house, the issue whether he intended to sell all or some of the tablets
was not relevant at the time of trial and was not determined.
DISPOSITION
Defendant’s convictions for transportation of oxycodone (§ 11352; count II) and
transportation of methamphetamine (§ 11379; count I) are reversed and remanded. In all
other respects, the judgment is affirmed.
RAYE , P. J.
We concur:
ROBIE , J.
HOCH , J.
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