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Filed 3/20/15 P. v. Phu 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication 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.

DUC PHU,

Defendant and Appellant.

C073986

(Super. Ct. No. 12F00716)

Appointed counsel for defendant Duc Phu asked this court to review the record to 

determine whether there are any arguable issues on appeal. (People v. Wende (1979) 

25 Cal.3d 436 (Wende).) We directed the parties to file supplemental letter briefs 

discussing whether a recent amendment to Health and Safety Code section 11379 affects 

defendant’s conviction for transportation of a controlled substance.
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Based on our review of the record and the supplemental letter briefs filed by the 

parties, we will reverse the judgment, vacate the plea, reinstate the original charges, and 

remand the matter to the trial court for further proceedings.

BACKGROUND

Defendant drove a vehicle containing approximately 19.4 grams of 

methamphetamine on January 26, 2012. He drove the vehicle for the benefit of the Tiny 

Rascal Gangsters street gang. 

In an amended consolidated information, the People charged defendant with

various felonies and misdemeanors, and alleged a number of sentencing enhancements. 

Defendant moved the trial court to have his appointed counsel discharged pursuant 

to People v. Marsden (1970) 2 Cal.3d 118 (Marsden). The trial court denied the motion. 

Defendant pleaded no contest to transportation of a controlled substance (Health & 

Saf. Code, § 11379, subd. (a) -- count three) and admitted that he committed the crime for 

the benefit of a criminal street gang and that he was previously convicted of a serious or 

violent felony. 

Prior to sentencing, defendant moved to withdraw his plea based on ineffective 

assistance of counsel. The trial court held a closed hearing and ultimately denied 

defendant’s motion to withdraw his plea. 

Pursuant to the terms of the plea agreement, the trial court sentenced defendant to 

11 years in state prison, dismissed the remaining charges, awarded presentence credit, 

and ordered defendant to pay various fines and fees. The trial court denied defendant’s 

request for a certificate of probable cause. 

DISCUSSION

Appointed appellate counsel filed an opening brief setting forth the facts of the 

case and asking this court to review the record and determine whether there are any 

arguable issues on appeal. (Wende, supra, 25 Cal.3d 436.) Defendant was advised by 

counsel of the right to file a supplemental brief within 30 days of the date of filing the 
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opening brief. More than 30 days elapsed and we received no communication from 

defendant.

We subsequently directed the parties to file supplemental letter briefs discussing 

whether a recent amendment to Health and Safety Code section 11379 affects defendant’s 

conviction for transportation of a controlled substance. We have reviewed the entire 

record and the supplemental letter briefs.

Among other things, Health and Safety Code section 11379 provides that any 

person who “transports” specified controlled substances, including methamphetamine, 

shall be punished by imprisonment. (Health & Saf. Code, § 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 Health and Safety Code section 11379 

to define “transports” as transport for sale. (Health & Saf. Code, § 11379, subd. (c); 

Stats. 2013, ch. 504, §§ 1-2.) The amendment took effect on January 1, 2014, after 

defendant's conviction and sentencing. 

The amended statute does not contain a saving clause evincing the Legislature's 

intent that the amendment apply prospectively only. According to the author, the purpose 

of the amendment was to limit felony drug transportation charges to individuals involved 

in drug trafficking. (Assem. Com. on Pub. Safety, Rep. on Assem. Bill No. 721 (2013-

2014 Reg. Sess.) Apr. 15, 2013, coms.) The amendment made it “ ‘expressly clear that a 

person charged with this felony must be in possession of drugs with the intent to sell. 

Under [the amendment], 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 

amendment benefits a defendant by requiring proof of an additional element -- intent to 

sell -- for a felony drug transportation conviction, and by eliminating criminal liability for 
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drug transportation in cases involving possession for personal use. Thus, retroactive 

application of the amended statute is consistent with the legislative intent of the 

amendment. Moreover, the amendment to Health and Safety Code section 11379 took 

effect when the judgment against defendant was not 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. (In re Estrada (1965) 63 Cal.2d 740, 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.) Under Estrada, 

defendant is entitled to the benefit of the amendment to Health and Safety Code section 

11379. (People v. Vinson, supra, 193 Cal.App.4th at pp. 1197-1199; People v. Todd, 

supra, 30 Cal.App.4th at pp. 1728-1730; People v. Figueroa, supra, 20 Cal.App.4th at 

p. 68.) 

Accordingly, based on our review of the record and the supplemental letter briefs 

filed by the parties, we will reverse the judgment, vacate the plea, reinstate the original 

charges, and remand the matter to the trial court for further proceedings.
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DISPOSITION

The judgment is reversed, the plea is vacated, and the original charges are 

reinstated. The matter is remanded to the trial court for further proceedings.

 MAURO , J.

We concur:

 BLEASE , Acting P. J.

 HULL , J.