The amendment to the drug transportation statute, adding an additional element to the offense, applies to cases not yet final. In 2013 Eagle, pleaded no contest to transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a)) and resisting a police officer (Pen. Code, § 148, subd. (a)(1)), and admitted several enhancements. Imposition of sentence was suspended and he was placed on probation. After Health and Safety Code section 11379 was amended (to add as an element of the offense that the transportation be for sale) and Proposition 47 was passed, Eagle moved to reduce his felony drug conviction to a misdemeanor. His motion was denied and he appealed. Held: Reversed and remanded. At the time Eagle entered his plea, section 11379, subdivision (a) required only that a defendant transport a specified controlled substance. Courts had interpreted the word “transports” to include transporting controlled substances for personal use. Effective January 1, 2014, the section was amended to define “transports” as meaning to transport for sale. Generally, when a statutory amendment mitigates punishment and there is no savings clause, the amendment applies retroactively to nonfinal judgments of conviction. The People conceded that Eagle’s judgment was not final and that he was entitled to benefit retroactively from the changes to section 11379. However, the Court of Appeal could not simply reduce the conviction to a lesser included offense. “When a statutory amendment adds an additional element to an offense, the prosecution must be afforded the opportunity to establish the additional element upon remand.” This does not violate double jeopardy because the question of whether Eagle transported the methamphetamine for sale was not previously at issue and the question was never tried.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/C079075.PDF