People v. Contreras CA6

Filed 10/16/14 P. v. Contreras CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, H039231 (Monterey County Plaintiff and Respondent, Super. Ct. Nos. SS121025A, SS122013A)

v.

JESUS CONTRERAS,

Defendant and Appellant.

Defendant Jesus Contreras pleaded guilty to transportation of a controlled substance and, in a subsequent case, no contest to possession of marijuana in jail. On appeal, he contends that a recent amendment to the transportation statute (Health & Saf. Code, § 11379) mitigated the punishment for this offense and must be applied retroactively to his act of transporting methamphetamine without intent to sell. He further disputes a laboratory analysis fee and other assessments imposed at the sentencing hearing along with a narcotics offender registration requirement. Finally, defendant requests correction of a clerical error in the abstract of judgment. We find defendant’s first argument to be well taken and therefore reverse the judgment, rendering moot the remaining issues. Background On June 25, 2012, defendant was charged in case No. SS121025A with transporting a controlled substance (methamphetamine), in violation of Health and Safety Code section 11379, subdivision (a); resisting, delaying, or obstructing a peace officer

(Pen. Code, § 148, subd. (a)(1)); and two counts of driving with a license suspended for reckless driving, with two prior convictions (count 3, Veh. Code, § 14601.1, subd. (a), and count 4, Veh. Code, § 14601, subd. (a)). Attached to the transportation count was an allegation that defendant had a prior strike conviction for carjacking, for which he had served a prison term. (Pen. Code, § 215, 1170.12, subd. (c)(1); § 667.5, subd. (b).) Defendant pleaded guilty to all of these charges, with an indicated sentence of five years instead of “up to nine,” contingent on his not “get[ting] into trouble” before the November 2 sentencing date. On October 22, 2012, a new charge was filed in case No. SS122013A, this time for possession of marijuana in jail (Pen. Code, § 4573.6, subd. (a)), with an allegation of the same prior strike conviction for carjacking. Sentencing in SS121025A was continued to November 14 and thereafter to November 21, 2012. On November 14, 2012, defendant entered a negotiated plea of no contest to the new charge in SS122013A and admitted the special allegation, in exchange for a two-year term (one-third the midterm, doubled) consecutive to the sentence in SS121025A, as well as dismissal of a third case. On November 21, 2012, defendant was sentenced in SS121025A to seven years and in SS122013A to two years, for a total prison term of nine years. The court also imposed a $205 laboratory analysis fee under Health and Safety Code section 11372.5, subdivision (a), and other assessments, and it ordered defendant to register as a narcotics offender under Health and Safety Code section 11590. From the December 17, 2012 judgment defendant filed this timely appeal, followed by the issuance of a certificate of probable cause. Discussion The basis of the trial court’s grant of defendant’s request for a certificate of probable cause was “the retroactive application of the amendment, by Assembly Bill 721, of Health and Safety Code section 11379, the statute under which the defendant was