People v. Neiderbrach CA3

Filed 5/21/15 P. v. Neiderbrach CA3 Received for positng 7/7/15 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (San Joaquin) ----

THE PEOPLE, C075224

Plaintiff and Respondent, (Super. Ct. No. MF035159A)

v.

JOHN THOMAS NEIDERBRACH,

Defendant and Appellant.

A jury found defendant John Thomas Neiderbrach guilty of possession of methamphetamine for sale (Health & Saf. Code, § 11378)1 and transportation of methamphetamine (former § 11379). The trial court sentenced him to three years in county jail followed by one year of mandatory supervision.

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

1

Defendant appeals, claiming that recent amendments to section 11379 render his conviction for possessing methamphetamine for sale a lesser included offense of his transportation conviction. Disagreeing, we affirm. BACKGROUND Facts of Defendant’s Conviction On August 17, 2012, Manteca Police Sergeant Chris Mraz was working narcotics enforcement. As she drove, she saw defendant, with whom she was “very familiar,” coming toward her from the opposite direction on a bicycle. She called out, “John, come here. I want to talk to you.” Defendant rode past her truck and made a U-turn. As Mraz watched him in her mirror, he reached down into his pocket, removed a baggie, dropped the baggie onto the street, and then rode up alongside her truck. The discarded baggie was later determined to contain 3.55 grams of methamphetamine. Defendant denied knowing anything about the drugs. At trial, the People’s drug expert testified to finding indicia of packaging for sale in defendant’s residence. The amount of methamphetamine found, 3.5 grams--commonly referred to as an “eight ball” and typically containing at least 35 doses--was also significant because it is a popular weight to sell. Defendant’s cell phone contained several text exchanges which the expert believed to concern methamphetamine dealing. Based on the totality of the circumstances, the expert testified defendant possessed the methamphetamine for sale. Section 11379 At the time of defendant’s conviction, section 11379, subdivision (a) provided that any person who “transports” specified controlled substances including methamphetamine shall be punished by imprisonment. (§ 11379; Stats. 2011, ch. 15, § 174.) The courts had interpreted the word “transports” to include transporting controlled substances for personal use. (People v. Rogers (1971) 5 Cal.3d 129, 134-135 (Rogers); People v. Eastman (1993) 13 Cal.App.4th 668, 673-677.) Effective January 1, 2014 (after