Filed 6/10/14 P. v. C ortez CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE,

Plaintiff and Respondent,

v.

ERIKA C ORTEZ,

Defendant and Appellant. 2d Crim. No. B251734 (Super. Ct. No. 2012012892) (Ventura County)

Pursuant to a negotiated plea, Erika Cortez pled guilty to transporting heroin. (Health & Saf. Code, § 11 352 , subd. ( c ).) 1 She also

admitted that she suffered a prior conviction under section 11352, subdivision (a)
, (§ 11370.2, subd. (a))

, and that she had served a prior prison term (Pe n. Code, § 667.5, subd. (b)). T he trial court sentenced Cortez to the low term of three years on the transportatio n charge and a consecutive three years for the prior conviction. The court stuck the prior prison term enhancement. Because

1 All s tatutory references are to the Health and Safety C ode unless stated otherwise

.2

of a change in the law favorable to Cortez, the People concede we must

reverse and remand for a new trial.

DISCUSSION Cortez pled guilty in January 2013. She reques ted Proposition 36 probation. T he trial court held a hearing pursuant to People v. Dove (2004) 124 Cal.App.4th 1, to determ ine whether she was eligible. T he trial court placed the burden on Cortez to show her transport ation was for personal use. The court found she failed to carry her burden and denied her request for Proposition 36 probation. The court sentenced her to a six

- year term in August 2013. At the time of Cortez's plea and sentencing

, section 11352,

subdiv ision (a) provided in part, "[E]very person who transports . . . any controlled substance . . . shall be punished by imprisonment . . . for three, four, or five years." Effective January 1, 2014, the Legislature amended section 11352 to state, "For the pu rposes of this section 'transports' means t o transport for sale." ( Id. , subd. (c); Stats. 2013, ch. 504, § 1.) 2

The amendment makes it clear that transportation of a controlled substance for personal use is no longer an offense under section 11352.

Inst ead, transportation "for sale" is now an element of the offense. Thus the prosecution bears the burden of proof on the "for sale" element beyond a reasonable doubt. (See Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Criminal Trial, § 624, pp. 966

- 96 7.)

Absent a saving clause

, a defendant is entitled to the benefit of a more recent statute that mitigates punishment or decriminalizes the conduct. ( People v. Babylon (1985) 39 Cal.3d 719, 725.) A defendant is entitled to the

2 We grant a ppellant's Request for Judicial Notice, filed February 4, 2014. (Evid. Code, § 452, subd. (c).)3

benefit of a change in the law during the pendency of his appeal. ( Id.

, at pp.

721

- 722.) Nor does the defendant need a certifi cate of probable cause to

raise grounds on appeal that occur after entry of the plea. (See Pen. Code, § 1237.5.)

We reverse and remand for a new trial o n the question whether the transportation was for sale.

NOT TO BE PUBLISHED.

GILBERT, P. J.

We concur:

YEGAN, J.

PERREN, J.Donald D. Coleman, Ryan J. Wright, David Hirsch, Kevin J. McGee, Judges Superior Court County of Ventura

______________________________

Jonathan B. Steiner and Richard B. Lennon, California Appellate Project, under appointment by the Court of Appeal for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney Genera l, Lance E. Winters, Senior Assistant Attorney General, Paul A. Bernardino, Chung L. Mar and Jonathan J. Kline, Deputy Attorneys General, for Plaintiff and Respondent.