1 Filed 11/20/14 P. v. Whigham CA1/4 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE, Plaintiff and Respondent,

v. MICHAEL DEAN WHIGHAM, Defendant and Defendant. A139920
(Contra Costa County Super. Ct. No. 51310440)

Defendant Michael Dean Whigham was pulle d over in a truck he was driving. A
search revealed cocaine base and over $500 in cash. A jury convicted him of transporting cocaine base (Health & Saf. Code, 1 § 11352, subd. (a)) and possessing cocaine base (§ 11350, subd. (a).) Defendant appeals, contending his s ection 11352 conviction cannot stand because the jury was not instructed that the requisite transportation was for sale and not for personal use, an element that came in to being after the jury found defendant guilty of this crime. The Attorney General conced es the amendment to section 11352 must be applied retroactively, but maintains that inasmuch as “the evidence overwhelmingly established that [defendant] sold drugs,” any error was harmless beyond a reasonable doubt. Having conducted a thorough examina tion of the record, we cannot conclude beyond a reasonable doubt that the jury verd ict would have been the same absent the omitted element. Accordingl y, we shall reverse the conviction on the transportation
count and remand for retrial.

1 All further undesignated statutory refere nces are to the Health and Safety Code.2 I. BACKGROUND A. Statement of Facts On October 12, 2012, at about 6:30 p.m., Contra Costa Sheriff Deputy Travis Wrangham was conducting surveillance at a Sh ell gas station in Ba y Point that was a known location for drug activity. Wrangham wa s dressed in plain clothes and conducted surveillance from a park ed, unmarked minivan with black ed out windows. A Mitsubishi sedan was parked two stalls away from him. A light blue Ford pickup truck driven by defendant arrived and parked in the space between Wrangham’s van and the Mitsubishi. The driver of the Mitsubishi, later identif ied as Mr. Gross, got out of his car and walked up to defendan t’s truck. Gross and defendant had a quick conversation. Gross
reached into the cab of the truck with money in hi s hand. A few seconds later, Gross
reached into the truck a second time. When Gross removed his hand from the truck it was in a closed fist, as if he was holding some thing. Wrangham believed that he had just witnessed a drug transaction. Gross returned to his car and promptly left the gas station. Defendant also left the gas station. As Wrangham was undercover , he did not contact
either defendant or Gross. Wrangham saw defendant’s pickup truck again later that same evening. At approximately 9:30 p.m., Wr angham notified Contra Cost a Sheriff’s Deputy Anthony Coniglio that the truck had been involved in an earlier drug transaction and it was possibly on its way to another drug transaction. Coniglio saw defendant run a stop sign. He pulled up behind defendant and activated his emergency lights. It took de fendant over a minute to pull over. As he drove, defendant was arching his back and lifting up his legs from the seat. Coniglio thought defendant was concealing or retrieving something in his pants. When defendant finally pulled over, Coniglio got out of his patrol car and walk ed up to defendant’s truck. Defendant was banging on the steering wheel and seats, and swearing loudly. Coniglio asked him to calm down, and he did. Coniglio asked defendant to get out of th e truck and asked for permission to search him and/or the truck for anythi ng illegal. Defendant said, “ ‘ Sure, man, go ahead’ ” and3 then added, “ ‘I just need a break. . . . Can you give me a break?’ ” Coniglio searched defendant and found a roll of money, approxim ately $500, in his left sock, and another $55 in his right front pocket. Coniglio noticed that defend ant had been keeping his right leg bent, making it difficult to conduct th e search. When Coniglio asked him to straighten out the pant leg, a clear plastic baggie fell out. The plastic baggie contained two smaller baggies. Each of the two sma ller baggies contained a pea-size, chunky, offwhite substance later identified as cocaine base , also known as rock cocaine. The total estimated weight of the cocaine base in the two baggies was 0.48 grams. Coniglio opined
that the street value of the recovered cocaine base was between $30 and $50, and that it was enough for about four doses. Based on Coniglio’s own observations, and what Wrangham ha d told him about what he had seen at the Shell gas station, Coniglio opined that defendant had possessed the cocaine base for the purpose of sale. 2 According to Coniglio, someone who only uses cocaine base does not have several separate ly packaged quantities of cocaine base on their person at the same time. He further explained that the amount of money found in defendant’s sock was significant because “whe n you have a lot of pr oduct you don’t have a lot of money, and when you don’t have a lot of product you have a lot of money.” In Coniglio’s opinion, defendant’s possession of only two baggies of cocaine base and a lot of money showed that he possessed the cocaine base for sale. Coniglio also noted that drug dealers often had money spread out on their person to avoid theft. B. Procedural History On May 29, 2013, the district attorney filed an information charging defendant with selling or transporting cocaine base (§ 11352, subd. (a)—coun t 1) and possession of cocaine base (§ 11350, subd . (a)—count 2). As to coun t 1, the information further alleged that defendant had sustained four prior narcotics convictions (§ 11370.2, subd. (a)). The information also alleged that defendant had sustained three prison priors (Pen. Code, § 667.5, subd. (b)).

2 The trial court qualified Coniglio as an expert on possession for sale of cocaine base.4 On July 31, 2013, a jury convicted defendant of both counts. The trial court found three of the four prior narcotics convic tions and all three prison priors true. On September 11, 2013, the trial court se ntenced defendant to a split sentence of four years in county jail follo wed by two years of mandatory supervision. Defendant filed a timely notice of appeal the same day.
II. DISCUSSION At the time of defendant’s transportati on conviction, section 11352, subdivision (a) provided that “every person who transports . . . any controlled substance . . . shall be punished by imprisonment . . . for three, fo ur, or five years.” Case law construed the statute to cover any transportation of a co ntrolled substance with knowledge of its presence and illegal character, regardless of wh ether the defendant in tended to sell the drug. ( People v. Glasper (2003) 113 Cal.App.4th 1104, 1113; People v. Cortez (1985) 166 Cal.App.3d 994, 997-998; see also People v. Emmal (1998) 68 Cal.App.4th 1313, 1317-1318 [interpreting anal ogous provision in § 11379]; People v. Eastman (1993) 13 Cal.App.4th 668, 676-677, 676, fn. 8 [same].) After defendant’s conviction, section 11352 was amended, (Stats.2013, ch. 504, § 1, eff. Jan. 1, 2014), to add subdivision (c), 3 which provides: “For purposes of this section, ‘transports’ means to transport for sale.” (See also amended § 11379, su bd. (c) (Stats.2013, ch. 50 4, § 2) adding identical language.)

3 Section 11352 now reads: “( a) Except as otherwise provid ed 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, administ er, or give away, or attempts to import into this state or transport . . . any co ntrolled substance [in specified statutes] which is a narcotic drug . . . shall be punished by imprison ment . . . for three, four, or five years. [¶] (b ) Notwithstanding the penalty prov isions of subdivision (a), any person who transports any contro lled substances specified in subdivision (a) within this state from one county to another noncon tiguous county sha ll be punished by imprisonment . . . for three, six, or nine year s. [¶] (c) For purposes of this section, ‘transports’ means to transport for sale. [¶] (d) This section does not preclude or limit the prosecution of an individual for aiding and abetting the commiss ion of, or conspiring to commit, any act proh ibited by this section.”5 Defendant contends his convi ction for transportation must be reversed because the jury was permitted to convict on this charge even if it belie ved that the narcotics were possessed for personal use. “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 su fficient should apply to every case to which it constitutionally could apply. The amendatory act im posing 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.” ( In re Estrada (1965) 63 Cal.2d 740, 745.) The parties agree that under Estrada the amendment to sec tion 11352 applies to this case, and so do we. The parties, howev er, disagree about the effect of the amended statute on the instant case. Defendant argu es his transportation conviction must be
reversed and remanded for a new trial on the transportation element, while the Attorney General argues the matter should be affirmed under Chapman v. California (1967) 386 U.S. 18 ( Chapman ) because any error was harmless bey ond a reasonable doubt, in light of the “overwhelming evidence” th at defendant sold drugs. Defendant’s theory of prejudice rests on the possibility that th e jury might have convicted him of transportation even if it de termined his possession of cocaine base was for personal use. Defendant does not apply the Chapman standard but relies instead on People v. Guiton (1993) 4 Cal.4th 1116 ( Guiton ) to support his theory of prejudice.
Defendant cites Guiton for the proposition that “ ‘if a jury is presented with multiple theories supporting conviction on a single char ge and on review on e theory is found’ legally defective, that is, the theory does not present a legally sufficient basis for conviction, reversal is require d unless substantial reasons exis t to find that the verdict was based on a legally valid theory. . . . ( People v. Llamas (1997) 51 Cal.App.4th 1729, 1740.)” In Guiton, however, the California Supreme Cour t observed that it was “not then6 presented with the situation of a jury’s having been instructed with a legally adequate and a legally inadequate theory and that [it] therefore ‘need not decide the exact standard of review’ in such circumstances.” ( People v. Cross (2008) 45 Cal.4th 58, 70 (concur. opn. of Baxter, J. [noting that issue Guiton was not dispositive on alte rnate-theory error as
Cross “only now presents that issue”].)
To the extent defendant asserts that the Chapman harmless-error standard does not apply in the instant case, he is plainly mi staken, as the United States Supreme Court
made clear in Hedgpeth v. Pulido (2008) 555 U.S. 57, that “drawing a distinction between alternate-theory erro r and . . . instructional erro rs . . . would be ‘patently illogical,’ given that such a distinction ‘ “red uces to the strange claim that, because the jury . . . received bo th a ‘good’ charge and a ‘bad’ ch arge on the issue, the error was somehow more pernicious than . . . where the only charge on th e critical issue was a mistaken one.” ’ [Citations.]” ( Id. at p. 61, italics omitted.) Here, the amendment to section 11352 re quiring that transportation be for sale
added an element to that crime th at did not exist at the time th e jury decided this case. As the new element applies retroactively, the ju ry’s conviction of defendant without being
instructed on the new elemen t is equivalent to situa tions where defendants were convicted using instructions that omitted an element of the offense. As the high court explained in Neder v. United States (1999) 527 U.S. 1, 15 ( Neder ), the Chapman standard applies where a jury instruction erroneously om its an element of an offense. Under the Chapman standard, reviewing courts consider “whether it appears ‘beyond a reasonable doubt that the error complain ed of did not contribute to the verdict obtained.’ ” ( Ibid. )

“ Neder analogized instructional errors that ar guably prevent the jury from finding an
element of an offense to the erroneous admission or exclusion of evidence. [Citation.] In such cases, ‘the harmless-error inquiry must be essentially the same: Is it clear beyond a
reasonable doubt that a rationa l jury would have found the defendant guilty absent the error?’ ” ( People v. Gonzalez (2014) 60 Ca1.4th 533, 663.) “[W]here a reviewing court concludes beyond a reasonable doubt that the omitted element wa s uncontested and supported by overwhelming evid ence, such that the jury ve rdict would have been the7 same absent the error, the e rroneous instruction is properly found to be harmless.” ( Neder, supra, 527 U.S. at p. 17.) Thus, in analyzing whethe r an error was harmless, “ Neder instructs us to ‘conduct a thorough examination of the record. If, at th e end of that examination, the court cannot conclude beyond a reasonable doubt that th e jury verdict would have been the same absent the error—for example, where the defendant contested th e omitted element and
raised evidence sufficient to support a contrary finding—it should not find the error harmless.’ [Citation.] On the other hand, instructional error is harmless ‘where a reviewing court concludes beyond a reasona ble doubt that the omitted element was uncontested and supporte d by overwhelming evidence.’ [Citations.]” ( People v. Mil (2012) 53 Cal.4th 400, 417.) Our task, then, “is to dete rmine ‘whether the record contains evidence that could rationally lead to a contrary finding with respect to the omitted element.’ [Citations.]” ( Ibid .) Having conducted a thorough examination of the record, we cannot say that the omitted element of transportation for sale was harmless beyond a reasonable doubt. Although the evidence of intent to sell here is sufficien t to support a ju ry’s finding that defendant transported the cocaine base for pu rposes of sale, it is not, contrary to the Attorney General’s assertion, overwhelming and the jury could have had a reasonable
doubt on the matter. Based on the locati on of the transaction, and Wrangham’s experience, it was likely that a drug trans action could have occu rred. Despite this likelihood, there was also plen ty of room for doubt in that the only evidence of a drug transaction having ta ken place was Wrangham ’s speculation. Wrangham’s testimony that he believedhe saw defendant engage in a hand-tohand drug transaction does not show beyond a reasonable doubt that defendant transported drugs to the Shell station for pu rposes of sale. Wrangham described seeing Gross, who had cash in his hand, put his hand inside defendant’s truck, and then take his hand out with closed fist. Wrangham, who was undercover at the time, did not approach
either defendant or Gross at the Shell station to verify the nature of the transaction. Also,8 there is no evidence that Gross, upon leav ing the gas station, was ever stopped or
searched.
Nor does the evidence of defendant’s subs equent traffic stop establish that he transported the cocaine base for purposes of sale. On recross-ex amination, Coniglio
testified that defendant’s fa ilure to immediately pull over and his anger at being pulled
over were indicative that defendant had “something ille gal” in his possession. Accordingly, although defendant’s demeanor suggested his consciousness of guilt of something illegal, this evidence is as consistent with transportation for personal use as it is with transportation for sale. The remaining evidence is likewise insufficient to es tablish beyond a reasonable doubt that defendant transported the cocaine base for sale. Specif ically, the amount of cocaine base and its packaging, though indicativ e of an intent to sell, was also consistent with personal use. On cross-examination, Co niglio testified that the amount of cocaine
base found on defendant was enough for approximately f our doses and worth between $30 and $50. Coniglio opined that the ma nner in which defendant kept money hidden on his person was consistent with th e practices of drug dealers. Additionally, the omitted elem ent (transportation for sale) was contested at trial. In fact, the focus of defense counsel’s entire argument was that defendant was a drug user not a drug dealer. Defense co unsel told the jury that “the reason that we are here is because the Prosecution is trying to make a man with .4 grams of cocaine for personal use into a felon and a drug dealer.” Defens e counsel described the prosecution’s “theory of sales” as “very weak,” and argued this was nothing more than a case of “simple possession.” Defense pointed out that the polic e “never stopped Mr. Gross to see if Mr. Gross actually had drugs.” Defense counsel fu rther noted that the “t wo pea-sized doses,” “at the most $50 worth,” was “[o]bviously an amount that could be for personal use.” Defense also highli ghted the lack of indicia of sales in this case, to wit: no evidence of text messages suggesting drug transactions, scales, packaging materials, or weapons were found in defendant’s possession. As for the $500 in defendant’s sock, defense counsel argued to the jury that “there are people in different situa tions than we are, there are9 people who can’t afford or don’t have acce ss to a bank account, [and] people who [do not] trust the bank.” Counsel ad ded that in this type of situ ation, “you are going to keep your money in your sock if you are a man . . . [or] in your bra if you are a woman, but because somebody” is in a “different” situati on “doesn’t mean that they’re a drug dealer. That doesn’t mean that they are guilty of a crime or th at the government has enough evidence to label them as a drug dealer.” In short, the evidence and inferences that may reasonably be drawn from the
evidence discussed above do no t prove defendant transported the cocaine base for purposes of sale so overwhelmingly that the jury could not have had a reasonable doubt on the matter. Consequen tly, we cannot conclude th at the omitted element of transportation for sale resulted in an error that was harmless beyond a reasonable doubt. Accordingly, defendant’s conviction for trans portation of a controlled substance must be reversed and the case remanded to give th e People the opportunity to prove beyond a reasonable doubt that defendant transpor ted the cocaine base for sale. (See People v. Figueroa (1993) 20 Cal.App.4th 65, 71-72, fn. 2 [s tatutory amendment retroactively adding additional element to offense allowed prosecution to estab lish additional element on remand without offending doub le jeopardy or ex post facto principles].) We shall remand the case for this purpose.
III. DISPOSITION The judgment is reversed as to the co nviction for unlawfully transporting cocaine
base. The matter is remanded to the trial cour t so that the People may decide whether to retry defendant for transporting cocaine ba se with the element that defendant was transporting the cocaine base for sale. If th e People elect to retry defendant, the trial court shall proceed accordingl y. If the People do not elect to retry defendant, the trial
court shall vacate defendant’s conviction for transporting cocaine base. The judgment regarding sentencing is also reversed a nd the matter is remanded for resentencing in
accordance with this opinion. In all other respects, the judgment is affirmed.10 _ ____________ ____________ REARDON, J.

I concur:

_____________ ____________ RIVERA, J.1 Dissent in People v Whigham A139920

I respectfully dissent. I agree with the Attorney General that the evidence was overwhelming that appellant was engaged in th e transportation of cocaine base for sale (Health & Saf. Code, § 11352). Accordingly, the error in failing to inst ruct the jury that the transportation had to be for sale and not for personal use was harmless beyond a reasonable doubt. ( Chapman v. California (1967) 386 U.S. 18.)
I dissent.

_____________ _____________ RUVOLO, P. J.

A139920, People v. Whigham