People v. Johnson CA3

Filed 4/11/14 P. v. Johnson CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C072506

Plaintiff and Respondent, (Super. Ct. No. 12SCR07723)

v.

STEVEN ALLEN JOHNSON,

Defendant and Appellant.

Defendant Steven Allen Johnson appeals from a grant of formal probation following a “slow plea” to transportation of methamphetamine. (Health & Saf. Code, § 11379, subd. (a).)1 The parties stipulated and the trial court found that defendant did not transport the methamphetamine with intent to sell, but only for personal use. After this appeal was filed, the Legislature amended section 11379 to make intent to sell an element of the offense of transportation. Defendant contends that under the rule

1 Undesignated section references are to the Health and Safety Code.

1

of In re Estrada (1965) 63 Cal.2d 740 (Estrada) he is entitled to the benefit of the amended statute, his conviction is therefore invalid, and he cannot be retried under section 11379. The Attorney General agrees. We agree with both parties. The parties disagree on the remedy, however. Defendant asserts that we must simply vacate his conviction. The Attorney General asserts instead that we should remand the matter to the trial court so that the prosecutor can decide whether to refile the case as a simple possession case. (Cf. People v. Figueroa (1993) 20 Cal.App.4th 65, 71 (Figueroa).) We agree with the Attorney General. We therefore reverse and remand for further proceedings consistent with this opinion, as explained in the disposition. (At pp. 6-7, post.) FACTUAL AND PROCEDURAL BACKGROUND On April 19, 2012, a complaint was filed charging defendant with transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a); count I), unlawful possession of hypodermic needles and syringes (Bus. & Prof. Code, former § 4140; count II),2 and being under the influence of methamphetamine (Health & Saf. Code, § 11550, subd. (a); count III). After the complaint was deemed an information and defendant was arraigned, the parties jointly filed the following statement: “The Defendant having waived his right to a trial by jury and this case having been set for a Court trial on August 22, 2012 in the Glenn County Superior Court, the parties to this case hereby submit the following stipulated factual statement and agree that the Court may enter its verdict and judgment on said facts: