People v. Hernandez CA2/6

Filed 5/21/14 P. v. Hernandez CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B248005 (Super. Ct. No. 2012024438) Plaintiff and Respondent, (Ventura County)

v.

JOHN ROLLAND HERNANDEZ,

Defendant and Appellant.

John Rolland Hernandez appeals the judgment entered after he pled guilty to transporting methamphetamine (Health & Saf. Code,1 former § 11379, subd. (a)), and admitted a prior drug conviction (§ 11370.2, subd. (c)). Following appellant's plea, the trial court found by a preponderance of the evidence that the drugs appellant transported were not for his personal use and accordingly denied his request to be placed on Proposition 36 probation. (Pen. Code, §§ 1210.1, subd. (a), 11055, subd. (d)(2).) Imposition of sentence was suspended and appellant was granted 36 months formal probation with terms and conditions including that he serve one year in county jail. In his opening brief, appellant contended that the finding he did not transport the drugs for personal use was a fact that increased the mandatory minimum

1 All further undesignated statutory references are to the Health and Safety Code.

sentence and thus had to be decided by a jury by proof beyond a reasonable doubt, as contemplated in Apprendi v. New Jersey (2000) 530 U.S. 466, and its recent progeny Alleyne v. United States (2013) __ U.S. __ [133 S.Ct. 2151]. After the matter was set for oral argument, we granted appellant's request to file a supplemental brief and continue the argument. In his supplemental brief, appellant asserts that his conviction must be reversed in light of a recent amendment to section 11379 that makes transportation for sale, i.e., non-personal use, an element of the charge.2 The People concede the point. When appellant was convicted, section 11379 made any transportation of a controlled substance punishable as a felony.3 If the court found at sentencing that the transportation was for the defendant's personal use, i.e., not for sale, he or she was entitled to drug treatment probation under Proposition 36. (Pen. Code, § 1210.1, subd. (a); see People v. Dove (2004) 124 Cal.App.4th 1, 4-7.) If the court made a contrary finding, the defendant was ineligible for Proposition 36 probation. (Dove, at pp. 4, 10.) The defendant bore the burden of proving personal use by a preponderance of the evidence. (Id. at p. 10.) Effective January 2014, section 11379 was amended to expressly provide that "'transports' means to transport for sale." (Id. at subd. (c).) Accordingly, transportation of drugs for personal use no longer constitutes a violation of section 11379.4 The practical effect of this amendment is that transportation of drugs for sale as