INTRODUCTION AND PROCEDURAL BACKGROUND
Aftеr a magistrate denied his motion to suppress, and the trial court denied his renewed motion to suppress, Oscar Millan pled guilty to one count of transporting methamphetamine ( Health & Saf. Codе, § 11379, subd. (a) ; count 1), admitted having suffered four prior drug-related convictions
On apрeal, Millan's primary contention is that the trial court erred in denying his motion to suppress. Millan argues that the trial court should have granted the motion to suppress because law enforcement agents conducted a warrantless search of his rental car without probable cause and the People failed to prove that an exception to the Fourth Amendment's warrant requirement applied. Millan also contends that the trial court erred in imposing penalty assessments on a drug program charge ( Health & Saf. Code, § 11372.7, subd. (a) ) and a lab analysis charge ( id. , § 11372.5, subd. (a) ) and that this сourt should reduce the trial court's imposition of a $3,000 restitution fine ( Pen. Code, § 1202.4, subd. (a) ) and a $3,000 parole revocation restitution fine (id. , § 1202.45) to $300 each in accordance with the trial court's purpоrted intention to impose the minimum possible fines that the court could legally impose.
In our initial opinion in this matter, we concluded that the trial court did not err in denying the motion to suppress because there is substantial
In a petition for rehearing, Millan requests that we grant rehearing and remand the matter to the trial court with directions to strike the enhancements imposed pursuant to Health and Sаfety Code section 11370.2, subdivision (c). Millan argues that his prior drug-related convictions no longer constitute qualifying convictions under Health and Safety Code section 11370.2, subdivision (c), due to a change in the lаw effective January 1, 2018, and that the change in the law applies retroactively to him pursuant to In re Estrada (1965)
II.
FACTUAL BACKGROUND
At the change of plea hearing, Millan admitted that he "unlawfully transported controlled substances for the purpose of sales"
III.
DISCUSSION
A.-C.
In a petition for rehearing, Millan argues that his sentence must be reversed because his prior convictions for violations of Health and Safety Code sections 11379 and 11378 no longer constitute qualifying convictions under Health and Safety Code section 11370.2, subdivision (c) due to an amendment to that statute that applies retroactively to him pursuant to Estrada . In an answer, the People acknowlеdge that the amendment to Health and Safety Code section 11370.2, effective January 1, 2018, would apply to Millan pursuant to Estrada and that his current sentence would be unauthorized as of that date.
1. The amendment to Health and Safety Code section 11370.2
Former Health and Safety Code section 11370.2, subdivision (c) provided in relevant part:
"Any person convicted of a violation of, or of a conspiracy to violate, Section ... 11379 with respect to any substance containing a controlled substance specified in paragraph (1) or (2) of subdivision (d) of Section 11055 shall receive, in addition to any other punishment authorized by law, including Section 667.5 of thе Penal Code, a full, separate, and consecutive three-year term for each prior felony conviction of, or for each prior felony conviction of conspiracy to violate, Section 11351, 11351.5, 11352, 11378 , 11378.5, 11379 , 11379.5, 11379.6, 11380, 11380.5, or 11383, whether or not the prior conviction resulted in a term of imprisonment." (Italics added.)
Senate Bill 180, effective January 1, 2018, removes a number of prior convictions frоm the list of prior convictions that qualify a defendant for the imposition of an enhancement under section 11370.2, subdivision (c). Among those convictions that no longer serve to qualify a defendant for an enhancement under Health and Safety Code section 11370.2, subdivision (c) are convictions for violations of
Health and Safety Code section 11370.2, subdivision (c) currently provides:
"Any person convicted of a violation of, or of a conspiracy to violate, [Health and Safety Code] Section 11378 or 11379 with respect to any substance containing a controlled substance specified in paragraph (1) or (2) of subdivision (d) of Section 11055 shall receive, in addition to any otherpunishment authorized by law, including Section 667.5 of the Penal Code, a full, separate, and consecutive threе-year term for each prior felony conviction of, or for each prior felony conviction of conspiracy to violate, Section 11380, whether or not the prior convictiоn resulted in a term of imprisonment." (Stats. 2017, ch. 677 (S.B. 180) § 1, eff. Jan 1, 2018.)
2. Estrada
In Estrada , supra ,
"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 сommission 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." ( Id. at p. 745,, 48 Cal.Rptr. 172 .) 408 P.2d 948
"The rule in Estrada has been applied to statutes governing penalty enhancements, as well as to statutes governing substantive offenses." ( People v. Nasalga (1996)
"A judgment becomes final when the availability of an appeal and the time for filing a petition for certiorari [with the United States Supreme Court] have expired." ( People v. Smith (2015)
3. Application
We agree with the parties that Estrada applies in this case and that the reсent amendment to Health and Safety Code section 11370, subdivision (c) requires the reversal of Millan's sentence.
IV.
DISPOSITION
Millan's sentence is reversed and the matter is remanded to the trial court with directions to strike the Health and Safety Code section 11370.2, subdivision (c) enhancements and to resentence Millan. In all other respects, the judgment is affirmed.
WE CONCUR:
HALLER, Acting P. J.
DATO, J.
Certified for Partial Publication.
Notes
Pursuant to California Rules of Court, rule 8.1110, this opinion is certified for publication with the exception of parts III.A, III.B, and III.C.
As discussed below, the Legislature recently amended Health and Safety Code section 11370.2, subdivision (c) to narrow the list of prior offenses that qualify a defendant for an enhancement under this provision. (Stats. 2017, ch. 677 (S.B. 180) § 1.) We address the effect оf this amendment on Millan's sentence in the text below.
Unless otherwise specified, all subsequent statutory references are to the Penal Code.
Because there was no trial in this case, we recite the factual basis for Millan's guilty plea. We discuss the facts related to Millan's motions to suppress in part III.A, post .
See footnote *, ante .
After the People filed their answer, we issued an order granting rehearing and permitting the parties to file further supplemental briefs and to request oral argument. Neither party has filed an additional brief or requested oral argument.
(See People v. Zabala (2018)