Trial court’s failure to instruct jury that transportation of a controlled substance requires proof that the transportation was for sale was harmless where jury found that defendant possessed the same drugs with intent to sell. Police stopped Lopez for a traffic violation and found methamphetamine and other paraphernalia for selling drugs in his car. Lopez told police he sold meth because he was living on the street and needed to make money. A jury convicted him of both possession of drugs for sale and transportation of drugs (Health & Saf. Code, §§ 11378, 11379), and found true related enhancements. Lopez appealed, arguing that the trial court erred in failing to instruct the jury that “transports” means to transport for sale. Held: Affirmed. Section 11379 prohibits transportation of a controlled substance. As of January 2014, a violation of this section requires proof that the transportation was for sale. The trial court’s failure to instruct the jury that “transport” means “transport for sale” was error. However, the error was harmless because the factual question posed by the omitted instruction was resolved adversely to Lopez under another properly given instruction. On the possession for sale count, the jury was instructed on the “for sale” element and concluded that Lopez possessed the same methamphetamine at the same time with intent to sell it. The court distinguished People v. Ramos (2016) 244 Cal.App.4th 105, where different controlled substances supported the defendant’s possession and transportation convictions. After considering the legislative history for the 2014 amendment to section 11379, the court disagreed with Lopez’s argument that section 11379 now requires proof that the act of transporting the controlled substance was done in order to accomplish a sale.
Sentence enhancements under Health and Safety Code section 11370.2 for prior section 11379 convictions were properly imposed even though prior convictions did not require proof of intent to sell. Lopez also argued that the trial court erred in imposing enhancements under section 11370.2 for his two prior section 11379 convictions from 2003 because the prior convictions did not require proof of intent to sell. The Court of Appeal disagreed. Although section 11379 was amended in 2014 to define “transport” as “transport for sale,” there has been no corresponding amendment to section 11370.2, which provides an additional term for each prior felony conviction of enumerated drug offenses, including section 11379. Although Lopez argued that section 11370.2 should be interpreted to refer only to the amended version of section 11379 in order to effectuate legislative intent, the court, applying special rules of statutory interpretation, concluded that nothing in the legislative history suggests that the Legislature intended to modify section 11370.2 when it amended section 11379. While it may be logical for both the substantive section 11379 offense and the related enhancement to be amended in the same manner, the Legislature has not taken this step and it is beyond the court’s role to do so. The court also concluded that Apprendi v. New Jersey (2000) 530 U.S. 466, 490 does not require a jury to find beyond a reasonable doubt that Lopez transported a controlled substance for sale before the section 11370.2 enhancements may be imposed because Apprendi does not apply to proof of prior convictions. The court also concluded that retroactive relief under In re Estrada (1965) 63 Cal. 2d 704, 745 was not available under the circumstances of this case because the judgments on Lopez’s 2003 convictions were final before the amendments to section 11379 in 2014.
The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/B267494.PDF
