Filed 1/22/16

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE
THE PEOPLE, Plaintiff and Respondent,

v. GLORIA RAMOS, Defendant and Appellant. G0503 15 (Super. Ct. No. 13WF1004)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Carla Singer, Judge. Reversed in part, a ffirmed in part , and remanded for further proceedings

.

Correen Ferrentino, under appo intment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Melissa Mandel, Alana Cohen Butler and Laura Bagget t , Deputy Attorneys General, for Plaintiff and Respondent.2 A jury found d efendant Gloria Ramos guilty of several crimes, including transportation of heroin (Health & Saf. Code, § 11352, subd. (a) (section 11352)), and possession of methamphetamine for sale ( Health & Saf. Code, § 1 1378 (section 11378)) , both with various firearm enhancements

. The court granted probation and ordered
defendant to serve 365 days in jail

.

Defendant contends her transportation of heroin conviction must be
reversed , and may not be ret ried , in light of a recent amendment to section 11352 that makes transportation for sale, i.e., non

- personal use, an element of the charge. The People concede the amendment applies, but argue the conviction should nevertheless be
affirmed under the harmle ss error standard of review. Alternatively, the People contend retrial on the transportation of heroin charge is not barred by the double jeopardy clause.

Defendant also contends her possession of methamphetamine for sale
conviction must be reversed beca use there is insufficient evidence to prove she harbored

an y intent to personally sell the methamphetamine. The People disagree and argue there
is su fficient evidence defendant possessed the methamphetamine with the intent to sell it

.

We conclude the t ransportation of heroin conviction must be reversed and
remanded for further proceedings , but there is substantial evidence defendant possessed the methamphetamine with the requisite intent to sell it , so we affirm that conviction

. FACTS On April 4, 2013, Costa Mesa Police d etectives George Maridakis and
Jacob Slechta , and Patrol Officer Sean Leffingwell were watching a Nissan Versa as part of a narcotics investigation

. The Nissan belonged to Roger Hernandez, defendant’s
husband and a well

- known drug deal er

. At one point the police observed Hernandez t ake a duffle bag from someone he encountered on the street and put it in the trunk of the
Nissan . About 20 minutes later, Leffingwell stopped the Nissan a t Maridakis’s direct ion

. Hernandez was the driver a nd d efendant was the front seat passenger

.3 Maridakis asked Hernandez if there was anything illegal in the car.
Hernandez r esponded , “What’s going on[,]” while he manipulated something under his
seat and then reached for a large black purse sitting betw een defendant’s legs on the
floor

. Maridakis told Hernandez to get out of his car and tried to grab Hernandez’s wrist

. Hernandez resisted and started to yell.

At that point , Slechta told defendant to get out of the car. She appeared

nervous and made furtive glances at the black purse. She also repeatedly asked, “Why

. ” Slechta grabbed defendant to pull her out of the car , and she s cream ed “hysterically

. ”

Eventually, Hernandez and defendant were arrested and searched

. Hernandez was carrying $233 i n cash. The officers also searched Hernandez’s car.
Inside the black purse , the officers found : a small plastic bag gie containing a hairbrush, deodorant, and hair ties; a small, silver metal case containing a digital scale, multiple small, clear plastic bags , 1 6.8 grams of heroin , 2.9 grams of methamphetamine separated into two baggies , a glass pi p e, a round pill marked “Rx7,” and 28 re c tangular pills marked “G3722 , ” and an unregistered and loaded, .25

- c aliber pistol underneath the metal

case. In the du ffle bag in the trunk, they found 13 hypodermic needles and Suboxone

.

Defendant agreed to be interviewed and voluntarily waived her Miranda rights. ( Miranda v. Arizona (1966) 384 U.S. 436.) She acknowledged the black purse was hers , and admitted it ha d been within her control when she was in t he car. However,
defendant denied knowing anything about the drugs and gun found in side her purse

. A nd, though she “had heard people say that [her husband] was possibly involved in drug sales,” she did not belie ve these rumors.

At trial, Maridakis opined defendant and Hernandez possessed the methamphetamine for sale. He based t his opinion on the amount of the drug s possessed, the scale, cash, and baggies, and the fact some of the methamphetamine had been pack aged into smaller plastic baggies

. As for the heroin, Maridakis testified defendant and Hernandez possessed a usable qua n tity , but did not opine they possessed it for sale

.4 DISCUSSION
1. T ransportation of Heroin

- S ection 11352
When defendant was conv icted, section 11352 made any transportation of specified controlled substances, including heroin, punishable as a felony. Section 11352
then provided, “ e very person who transports

. . . (1) any controlled substance specified in
subdivision

. . . (c)

. . . of Section 11054

. . . shall be punished by imprisonment

. . . .” A t the time , section 11352 was interpreted to criminalize transportation of the specified drugs for personal use

. ( People v. Rogers (1971) 5 Cal.3d 129, 134

- 135; People v.
Emmal (1998) 6 8 Cal.App.4th 1313, 1316.)

After defendant was convicted, section 11352 was amended by add ing
sub div i si on (c), which now provide s, “For purposes of this section, ‘ transports ’ means to transport for sale.” Accordingly, transportation of heroin for perso nal use no longer
constitutes a violation of section 11352

. The practical effect of this amendment is that transportation of heroin for sale as opposed to personal use is now an element of the offense that must be decided by a jury b y proof beyond a reaso nable doubt. ( U.S. v.
Gaudin (1995) 515 U.S. 506, 510; People v. Flood (1998) 18 Cal.4th 470, 481.)

Defendant contends , the People concede, and we agree, the amend ment is
retroactive and it applies to defendant

. ( People v. Brown (2012) 54 Cal.4th 314, 3 19

- 320; People v. Wright (2006) 40 Cal.4th 81, 90 ; People v. Collins (1978) 21 Cal.3d 208, 213 ; People v. Rossi (1976) 18 Cal.3d 295, 301; In re Estrada (1965) 63 Cal.2d 740, 744

- 748 ; Sekt v. Justice ’ s Court (1945) 26 Cal.2d 297, 304

- 306 .)

However, the p arties do not agree what the application of the amendment
means here

. Defendant contends , and we agree, her transportation of heroin conviction
must be reversed , because the jury did not determine whether the heroin she transported
was for sale rather tha n personal use. Further, defendant argues she cannot be retried
because the amendment decriminalized her transportation of the heroin in this case. This argument must fail, because it presumes the heroin she transported was for personal use.5 D efendant a lso suggests remand is inappropriate because Maridakis did not opine the heroin was possessed for sale, and the evidence supports a theory of personal use and simple possession. Defendant is not correct. “ Where, as here, evidence is not
introduced at tri al 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. ” ( People v. Figueroa (19 93 ) 20 Cal.App.4th 65, 72.)

Th e People , citing People v. Wright , supra , 40 Cal.4th at p ages 98

- 99, contend the transportation of heroin conviction need not be reversed, because the
omission of the sale or personal use element was harmless beyond a reasonable doubt
under the standard se t forth in Chapman v

. California (1967) 386 U.S. 18, 24. To this end, t he People argue the same evidence which supported defendant’s possession of methamphetamine for sale conviction also supports the conclusion the heroin she transported was not for pers onal use.

We are not persuaded it is proper to assess the problem under the harmless
error rubric. In Wright , the retroactive application of a newly enacted affirmative defense
resulted in an instructional error which implicated the defendant’s “due proc ess right to present a defense

. . . .” ( People v. Wright , supra , 40 Cal.4th at p. 98. ) I n this case, the retroactive application of the amendment impermissibly deprives defendant of her
constitutional right to a jury trial on an element of the charged o ffense. ( People v. Figueroa , supra , 20 Cal.App.4th at p. 71 [d efendant entitled to have the jury decide every
essential element of the crime charged , no matter how compelling the evidence may be ].)
But even if it is proper to assess the problem under th e Chapman standard, under these circumstances we cannot say omission of the sale or personal use element was harmless beyond a reasonable doubt. Thus, the heroin transportation conviction must be reversed.

Finally, the People contend , defendant does not dispute, and we conclude,
remand and retrial on the transportation of heroin charge is not barred by the double jeopardy clause

. ( People v. Figueroa , supra , 20 Cal.App.4th at p. 72, fn. 2.)6

2

. Possession of Methamphetamine for Sale

- S ection 113 78

D efendant contends her possession of methamphetamine for sale conviction must be reversed because there is insufficient evidence to prove she personally harbored any intent to sell the methamphetamine. We reject this claim.

Our role when reviewing the s ufficiency of the evidence is to evaluate the whole record in the light most favorable to the judgment to determine whether it discloses
substantial evidence

— evidence that is reasonable, credible, and of solid value

— from
which a reasonable trier of fact co uld find the defendant guilty beyond a reasonable
doubt. ( Jackson v. Virginia (1979) 443 U.S. 307, 318

- 319; People v. Story (2009) 45 Cal.4th 1282, 1296; People v. Johnson (1980) 26 Cal.3d 557, 578.) Moreover, w e must accept any logical inferences the ju ry could have drawn from any circumstantial
evidence , because “ it is the jury, not the appellate court that must be convinced of the
defendant ’ s guilt beyond a reasonable doubt.” ( People v. Zamudio (2008) 43
Cal.4th 327, 357

- 358.)

Defendant admitted ow nership and control over her purse , and l arge quantities of heroin and methamphetamine, a digital scale, and packaging materials were
found in it

. Consequently , there is ample circumstantial evidence from which the jury could reasonably infer she possesse d the methamphetamine “with the intent of selling it and with knowledge of both its presence and illegal character. [Citation.]” ( People v. Meza (1995) 38 Cal.App.4th 1741, 1745

- 1746 .)

Lastly, d efendant points to In re Christopher B. (1990 ) 219 Cal.Ap p.3d 4 5 5, 466 , and argues possession for sale requires the defendant to possess the
controlled substance with the specific intent to personally sell it. We disagree

. “[T] the defendant needs to either (1) possess the specific intent to sell the controlled substance personally, or (2) possess the specific intent that someone else will sell the controlled
substance. ” ( People v. Parra , (1999) 70 Cal.App.4th 222, 22 7 ; see also People v. Consuegra (1994) 26 Cal.App.4th 1726, 1732, f n. 4.)7 DISPOSITION
The tran sportation of heroin conviction is conditionally reversed. On remand, defendant is entitled to either admit the “transport for sale” element of the
current version of section 113 52 , or have a new jury trial on that charge

. If s he chooses the former optio n, her sentence shall remain the same and the conviction on that charge
shall be reinstated as of that date. The judgment is affirmed in all other respects.

THOMPSON, J.

WE CONCUR:

RYLAARSDAM, ACTING P. J.

IKOLA, J.