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Filed 6/23/14 P. v. Smith 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication 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

(Yolo)

THE PEOPLE,

Plaintiff and Respondent,

v.

RENEE MICHELLE SMITH,

Defendant and Appellant.

C073638

(Super. Ct. No. CR-F-12-

0002896 )

A jury found defendant Renee Michelle Smith guilty of transporting 

methamphetamine, possession of methamphetamine, possession of drug paraphernalia, 

and being under the influence of a controlled substance. The trial court later found true 

allegations that defendant was twice previously convicted of drug-related offenses. The 

trial court granted defendant probation. Defendant appeals.

Defendant’s sole claim on appeal is that under In re Estrada (1965) 63 Cal.2d 740 

(Estrada), the recent amendments to Health and Safety Code section 113791

(transportation of methamphetamine) should be applied retroactively to reverse her drug 

 

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 Undesignated statutory references are to the Health and Safety Code.
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transportation conviction. The People agree with defendant’s contention and so do we. 

Accordingly, we reverse defendant’s drug transportation conviction but affirm the 

judgment in all other respects.

BACKGROUND

On July 22, 2012, law enforcement found defendant sitting in the front passenger 

seat of a car in the Cache Creek Casino parking lot. Two other individuals were also in 

the car. Inside the car, law enforcement found a glass pipe with 0.10 grams of 

methamphetamine in it and a small vial containing another 0.10 grams of 

methamphetamine. Defendant admitted to law enforcement that she was under the 

influence of methamphetamine, and that she had smoked methamphetamine from the 

pipe found in the car.

Defendant was charged with transporting methamphetamine (§ 11379, subd. (a)),

possession of methamphetamine (§ 11377, subd. (a)), possession of paraphernalia 

(§ 11364, subd. (a)), and being under the influence of a controlled substance (§ 11550, 

subd. (a)). The People further alleged defendant was twice previously convicted of drugrelated charges, including possession of a controlled substance for purposes of sale. 

(§ 11378.)

Defendant pleaded not guilty to all charges and on April 24, 2013, a jury found her 

guilty as charged. The trial court later found true the allegations that defendant was 

previously convicted of two drug-related offenses and awarded defendant probation 

pursuant to Proposition 36/Penal Code section 1210.1. Defendant appeals.

DISCUSSION

On appeal, defendant contends that under Estrada, the recent amendments to 

section 11379 (transportation of methamphetamine) should be applied retroactively to 

reverse her drug transportation conviction. Defendant argues there was no evidence 

admitted at trial that she was transporting methamphetamine for purposes of sale. She 
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therefore argues that under the amended section 11379, her conviction for transportation 

of methamphetamine must be reversed. 

The People agree with defendant’s contention.

Among other things, section 11379 provides that any person who “transports”

specified controlled substances including methamphetamine shall be punished by 

imprisonment. (§ 11379 [and its predecessor version, Stats. 2001, ch. 841, § 7, pp. 6870-

6871].) Courts had interpreted the word “transports” to include transport of controlled 

substances for personal use. (People v. Rogers (1971) 5 Cal.3d 129, 134-135; People v. 

Eastman (1993) 13 Cal.App.4th 668, 673-677.) But the Legislature recently amended 

section 11379 to define “transports” as transport for sale. (§ 11379, subd. (c); Stats. 

2013, ch. 504, §§ 1-2.) Those amendments took effect on January 1, 2014, after 

defendant’s conviction and sentencing.

The amended statute does not contain saving clauses which evince the 

Legislature’s intent that the amendments apply prospectively only. According to the 

author, the purpose of the amendments was to limit felony drug transportation charges to 

individuals involved in drug trafficking. (Assem. Com. on Public Safety, Rep. on Assem. 

Bill No. 721 (2013-2014 Reg. Sess.) Apr. 15, 2013, p. 2.) The amendments make it 

“ ‘expressly clear that a person charged with this felony must be in possession of drugs 

with the intent to sell. Under [the amendments], a person in possession of drugs ONLY 

for personal use would remain eligible for drug possession charges. However, personal 

use of drugs would no longer be eligible for a SECOND felony charge for 

transportation.’ ” (Ibid.) The amendments benefit a defendant by requiring proof of an 

additional element -- intent to sell -- for a felony drug transportation conviction, and by 

eliminating criminal liability for drug transportation in cases involving possession for 

personal use. The parties agree that retroactive application of the amended statute is 

consistent with the legislative intent of the amendments. The parties also agree the 

amendments to section 11379 took effect when the judgment against defendant was not 
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yet final. (People v. Rossi (1976) 18 Cal.3d 295, 304 [the rule applies to any proceeding, 

which at the time of the supervening legislation, has not yet reached final disposition in 

the highest court authorized to review it].)

Under the present circumstances, we adhere to the well-established principle that 

“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” if the amended statute takes effect before the judgment of conviction becomes 

final. (Estrada, supra, 63 Cal.2d at pp. 744, 748.) The rule articulated in Estrada applies 

to amendments which add to the elements of a crime or enhancement. (People v. Vinson

(2011) 193 Cal.App.4th 1190, 1197-1199; People v. Todd (1994) 30 Cal.App.4th 1724, 

1728-1730; People v. Figueroa (1993) 20 Cal.App.4th 65, 68 (Figueroa).) Under 

Estrada, defendant is entitled to the benefit of the amendments to section 11379. 

(People v. Vinson, at pp. 1197-1199; People v. Todd, at pp. 1728-1730; Figueroa, at 

p. 68.) Accordingly, we will reverse the drug transportation conviction.

Defendant contends we need not remand the matter for further proceedings 

because there is insufficient evidence in the record to prove she was transporting the 

methamphetamine for the purpose of sale. The People agree; we do not accept the 

People’s concession. We will remand the matter for further proceedings. “Where, as 

here, evidence is not introduced at trial because the law at that time would have rendered 

it irrelevant, the remand to prove that element is proper and the reviewing court does not 

treat the issue as one of sufficiency of the evidence. [Citation.]” (Figueroa, supra, 

20 Cal.App.4th at p. 72.)

DISPOSITION

The judgment regarding defendant’s conviction for transporting methamphetamine 

is reversed and remanded for possible retrial. The People shall have 60 days following 

remittitur from this court to reinstate the charge for transporting methamphetamine and 

retry that charge under amended section 11379. 
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The judgment regarding sentencing also is vacated, and the matter is remanded to 

the trial court for resentencing in accordance with this opinion. 

In all other respects, the judgment is affirmed.

 BLEASE , Acting P. J.

We concur:

 NICHOLSON , J.

 HOCH , J.