1

Filed 4/13/15 P. v. Saldano 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication 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

(Sacramento)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

RAUL ROBERTO SALDANO,

Defendant and Appellant.

C074444

(Super. Ct. Nos. 11F06951, 

13F00647)

In case No. 13F00647, a jury convicted defendant Raul Roberto Saldano of 

possession of methamphetamine (Health & Saf. Code, § 11377),

1 as a lesser included 

offense to the charge of possession of methamphetamine for sale (§ 11378, subd. (a)

(count 1)); transportation of methamphetamine (§ 11379, subd. (a)(count 2)); possession 

of morphine (§ 11350), a lesser included offense to the charge of possession of morphine 

for sale (§ 11351 (count 3)); and transportation of morphine (§ 11352, subd. (a)

(count 4)). Defendant admitted a prior strike conviction. The court sentenced defendant 

 

1

 Undesignated statutory references are to the Health and Safety Code.
2

to state prison for eight years on count 4 and to six years on count 2, that term to run 

concurrently with count 42; and without imposing any sentences on counts 1 and 3,

purportedly stayed the sentences on those counts pursuant Penal Code section 654.3

On appeal defendant contends, and the People agree, that due to recent 

amendments by the Legislature to sections 11379 and 11352, his convictions for those 

offenses must be reversed pursuant to principles of equal protection as set forth in 

In re Estrada (1965) 63 Cal.2d 740 (Estrada). We too agree. 

Discussion

Defendant’s convictions in counts 1 through 4 arose from a search of his person 

conducted on January 29, 2013, by Sacramento City Police officers who had stopped him 

while he was walking down a street. The search revealed 12 baggies in defendant’s coat 

pocket, each containing 0.10 to 0.20 grams of methamphetamine, and a bottle containing 

51 morphine sulfate pills in his pants pocket. 

In 2013 sections 11379 and 11352 set forth various ways in which each section 

could be violated, including transporting, offering to transport, or attempting to transport 

either methamphetamine or morphine.4 While neither section defined what constituted 

 

2

 The court also found defendant in violation of his probation in case No. 11F06951, and 

imposed a concurrent four-year term. No issue is raised in this appeal regarding case 

No. 11F06951.

3

 This part of the trial court’s sentence was unauthorized. It is not possible to stay a 

sentence not imposed. “[If] a defendant suffers two convictions, punishment for one of 

which is precluded by [Penal Code] section 654, that section requires the sentence for 

one conviction to be imposed, and the other imposed and then stayed.” (People v. Deloza

(1998) 18 Cal.4th 585, 591-592, italics added; accord, People v. Alford (2010) 180 

Cal.App.4th 1463, 1468-1469).)

4

 In pertinent part, section 11379 provided: “(a) Except as otherwise provided in 

subdivision (b) and in Article 7 (commencing with Section 4211) of Chapter 9 of 

Division 2 of the Business and Professions Code, every person who transports, imports 

into this state, sells, furnishes, administers, or gives away, or offers to transport, import 
3

“transportation,” case law was clear -- “transport,” as used in such statutes, referred to 

any movement of contraband. For example, in People v. LaCross (2001) 91 Cal.App.4th 

182, 185, the court stated: “ ‘Transport,’ as used in [section 11379], has no technical 

definition. ‘Transportation of a controlled substance is established by carrying or 

conveying a useable quantity of a controlled substance with knowledge of its presence 

and illegal character.’ [Citation.] ‘To transport means to carry or convey from one place 

to another.’ [Citation.]” 

Operative January 1, 2014, while defendant’s appeal was pending, the Legislature 

amended sections 11379 and 11352 by adding subdivision (c) to each section. 

Subdivision (c) provides: “For purposes of this section, ‘transports’ means to transport 

for sale.” (§ 11379, subd. (c), added by Stats. 2013, ch. 504 (Assem. Bill No. 721), § 2; 

§ 11352, subd. (c), added by Stats. 2013, ch. 504 (Assem. Bill No. 721), § 1.)

According to the legislative history, the purpose of subdivision (c) was to clarify 

that it was the Legislature’s intent in enacting sections 11352 and 11379, that these 

sections be applied to individuals involved in drug trafficking or sales, not to persons 

walking down the street in possession of an amount of controlled substance sufficient 

only for personal use. (Assem. Bill No. 721, 3rd reading Apr. 19, 2013 (2013-2014 Reg. 

Sess.) p. 2.) 

 

into this state, sell, furnish, administer, or give away, or attempts to import into this state 

or transport any [specified] controlled substance . . . shall be punished by imprisonment 

pursuant to subdivision (h) of Section 1170 of the Penal Code for a period of two, three, 

or four years.”

 In pertinent part, section 11352 provided: “(a) Except as otherwise provided in this 

division, every person who transports, imports into this state, sells, furnishes, administers, 

or gives away, or offers to transport, import into this state, sell, furnish, administer, or 

give away, or attempts to import into this state or transport [] any [specified] controlled 

substance . . . shall be punished by imprisonment pursuant to subdivision (h) of 

Section 1170 of the Penal Code for three, four, or five years.”
4

Relying on Estrada, defendant contends he is entitled to the benefit of the new 

amendment even though it was enacted after he committed his offenses. The People 

concede the issue and we agree. 

“When the Legislature amends a statute so as to lessen the punishment it has 

obviously expressly determined that its former penalty was too severe and that a lighter 

punishment is proper as punishment for the commission of the prohibited act. It is an 

inevitable inference that the Legislature must have intended that the new statute imposing 

the new lighter penalty now deemed to be sufficient should apply to every case to which 

it constitutionally could apply. The amendatory act imposing the lighter punishment can 

be applied constitutionally to acts committed before its passage provided the judgment 

convicting the defendant of the act is not final.” (Estrada, supra, 63 Cal.2d at p. 745.) 

Here, the amendments clearly benefit defendants with pending methamphetamine or 

morphine transportation cases, and for whom there is insufficient proof of possession for 

sale, by rendering them immune from prosecution under sections 11379 or 11352 and the 

more severe punishment provided by these sections.

People v. Figueroa (1993) 20 Cal.App.4th 65 (Figueroa), is analogous to the 

present case. There, the defendant was convicted of sale and possession for sale of 

cocaine base (§§ 11352, subd. (a), 11351.5, respectively.) Because the offenses took 

place within 1,000 feet of an elementary school, the defendant’s sentence for the two 

convictions was enhanced by three years pursuant to section 11353.6, subdivision (b). 

(Figueroa, at pp. 68-69.) While the defendant’s appeal was pending, the Legislature 

amended the enhancement statute to require that for the enhancement to apply to sections 

11351.5 and 11352 the offenses must occur while school was in session or minors were 

using the facility. (Id. at p. 69.)

The defendant in Figueroa argued that the amendment should apply to him 

because the evidence given at trial was insufficient to support a true finding of the section 

11353.6, subdivision (b), enhancement. (Figueroa, supra, 20 Cal.App.4th at p. 69.) 
5

Relying on Estrada and Tapia v. Superior Court (1991) 53 Cal.3d 282, the latter is which 

applied Estrada to enhancements, the Figueroa court agreed that the defendant was 

entitled to the benefit of the amendment. (Figueroa, at p. 71.) However, because the 

prosecution had no reason to prove whether school was in session or children were 

present under the pre-amendment statute, the appellate court remanded the matter to 

afford the People the opportunity to prove such facts. (Id. at pp. 71-72.) 

We shall reverse defendant’s convictions in counts 2 and 4. However, unlike the 

circumstances in Figueroa, we need not remand the matter to afford the People the 

opportunity to prove the controlled substances were possessed for sale because, as the 

People appropriately concede, the jury acquitted defendant of the possession for sale 

charges and convicted him of the lesser included offense of illegal possession of

methamphetamine and morphine in counts 1 and 3 respectively. Accordingly, we dismiss 

counts 2 and 4. 

Disposition

The sentence is vacated. The convictions in counts 2 and 4 are reversed and those 

counts dismissed. The matter is remanded for sentencing on counts 1 and 3.

5

 MURRAY , J.

We concur:

 BLEASE , Acting P. J.

 HULL , J.

 

5

 See fn. 3, ante.