People v. Ramirez CA5

California Court of Appeal Mar 1, 2016 No. F069851Unpublished

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Holding. The court reversed the defendant's conviction for transportation of heroin because the statute requires proof of intent to sell, which was absent, and affirmed the conviction for possession of heroin, noting that Proposition 47 relief must be sought via petition in the trial court.

Issues

Whether the conviction for transportation of heroin must be reversed due to the retroactive application of the 'transport for sale' requirement.
Whether there was sufficient evidence to support the conviction for possession of a usable amount of heroin.
Whether Proposition 47 mandates an automatic reduction of a felony conviction to a misdemeanor for a defendant whose judgment is not yet final.

Disposition. reversed in part and affirmed in part

Quotations verified verbatim against the opinion

“As amended, section 11352 requires that the transportation be for purposes of sale.”

“Where, as here, the People failed to produce any evidence that defendant was transporting the heroin for purposes of sale as required by section 11352, subdivision (c), the evidence is insufficient to sustain the conviction”

“Proposition 47, however, does not provide for an automatic resentencing for a defendant currently serving a felony sentence and is not automatically applicable to those whose judgments are not yet final.”

Filed 3/1/16 P. v. Ramirez 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F069851 Plaintiff and Respondent, (Super. Ct. No. 14CM7016) v.

RAYMOND ANDREW RAMIREZ, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Kings County. Donna L. Tarter, Judge. James F. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lewis A. Martinez and Amanda D. Cary, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Levy, Acting P.J., Poochigian, J. and Detjen, J.

INTRODUCTION Appellant Raymond Andrew Ramirez (hereafter defendant) was convicted of violating Health and Safety Code1 section 11352, subdivision (a), transportation of heroin (count 1), and of violating section 11350, subdivision (a), possession of heroin (count 2). He raises numerous challenges to the count 1 conviction, contends the evidence is insufficient to support the count 2 conviction, and asserts Proposition 47 entitles him to an automatic reduction of his felony conviction to a misdemeanor and resentencing. We reverse his count 1 conviction and reject his other contentions. FACTUAL AND PROCEDURAL SUMMARY On October 26, 2013, officers Oscar Torres and Herlinda Rodriguez were on patrol in Corcoran when they saw defendant riding a bicycle on Whitley Avenue shortly after 3:00 p.m. Defendant was stopped and agreed to a search of his person. Torres conducted a search, during which he found a small metal container attached to a key chain in one of defendant’s pockets. The container emitted a strong odor of vinegar, which Torres knew to be consistent with black tar heroin. Inside the container were four bindles, each about the size of a penny. Torres opened one of the bindles and saw a substance that was consistent with the appearance of black tar heroin. Defendant was arrested and admitted that the substance inside the bindles was heroin for his personal use. Defendant stated he used approximately one-half gram per day of heroin and had last used the night before his arrest. He stated the four bindles were for his use later that day. Subsequent testing of one bindle confirmed that it contained .075 grams of heroin. Each of the bindles, including packaging, weighed 0.1 grams and the four bindles combined weighed 0.4 grams.

People v. Ramirez CA5

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