People v. Posada CA3

Filed 4/12/16 P. v. Posada CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Placer) ----

THE PEOPLE, C079119

Plaintiff and Respondent, (Super. Ct. No. 62081814A)

v.

DONALD ROBERT POSADA,

Defendant and Appellant.

Defendant Donald Robert Posada appeals from the trial court’s denial of his petition for resentencing under the provisions of Proposition 47. (Pen. Code, § 1170.18.) Defendant acknowledges that, on its face, Proposition 47 does not apply to his sentences for transportation of controlled substances under Health and Safety Code sections 11352 and 11379.1 Instead, he argues that, given recent statutory amendments, his convictions should be treated as if they were for possession of a controlled substance under sections

1 Undesignated statutory references are to the Health and Safety Code.

1

11350 and 11377, offenses that are eligible for resentencing under Proposition 47. The 2013 statutory amendments2 defendant relies on eliminate the crime of transportation for personal use. Defendant contends these amendments clarified rather than changed existing law, and therefore may be applied to his convictions. He also argues the trial court’s denial of his request for resentencing violated his right to equal protection under the Fourteenth Amendment because he is similarly situated to individuals who were sentenced under these recent statutory changes. We disagree. Several decades ago, our Supreme Court interpreted the word “transports” to include transport of controlled substances for personal use. (People v. Rogers (1971) 5 Cal.3d 129, 134-135.) The Legislature’s decision to limit transportation of a controlled substance to transportation for sale was a change in the law that applies prospectively. Accordingly, we affirm the trial court’s order. I. BACKGROUND3 On July 8, 2008, Deputy Sheriff Gregg Hopping stopped defendant for speeding and driving a vehicle without license plates. While they were conversing, Deputy Hopping detected a strong odor of alcohol and observed open bottles in a beer box or case in the back seat. Concerned that defendant may have consumed alcohol and that there were open containers in the vehicle, Deputy Hopping asked defendant to step out of the car and defendant complied. Deputy Hopping arrested defendant’s passenger after searching the passenger and finding a glass methamphetamine pipe. A second methamphetamine pipe was found in the interior of the car. An inventory search of the car uncovered a cosmetic bag that contained a third pipe, five white tablets Deputy