People v. Burton CA5

Filed 9/24/15 P. v. Burton CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

THE PEOPLE, F068041 Plaintiff and Respondent, (Super. Ct. No. F12909238) v.

RICHARD LEE BURTON, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Fresno County. W. Kent Hamlin, Judge. Jean M. Marinovich, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and John G. McLean, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Levy, Acting P.J., Franson, J. and Peña, J.

Defendant Richard Lee Burton was convicted by no contest plea of misdemeanor driving without a license (Veh. Code, § 12500, subd. (a); count 2). Shortly thereafter, he was convicted by jury trial of transportation of a controlled substance (Health & Saf. Code, § 11352, subd. (a);1 count 1). On count 1, the trial court sentenced him to 11 years in prison as follows: four years, doubled to eight years pursuant to the Three Strikes law (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), plus three one-year prior prison term enhancements (Pen. Code, § 667.5, subd. (b)). The court granted him 277 days of custody credit and 276 days of conduct credit. We will reverse the judgment on count 1 and remand the matter for sentencing on count 2. DISCUSSION I. Retroactive Application of Amended Section 11352 Defendant contends and the People concede that the amended version of section 11352 must be applied retroactively to his case because his judgment is not yet final. (See People v. Vieira (2005) 35 Cal.4th 264, 306 [for determining retroactive application of amendment to criminal statute, judgment is not final until time for petitioning United States Supreme Court for writ of certiorari has passed].) We agree. Defendant’s conviction for transportation of a controlled substance was not final when Assembly Bill 721 became effective on January 1, 2014 (2013-2014 Reg. Sess.). The amended statute essentially requires an additional element because it defines transportation as transportation for sale. (§ 11352, subd. (c).) We agree that the amended statute should be applied retroactively to defendant because it mitigates punishment. (In re Estrada (1965) 63 Cal.2d 740, 748 [“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”]; People v. Vinson (2011)