Where statute criminalizing transportation of drugs was amended to add transportation for sale as an element of the charge, it applies retroactively to a defendant convicted under the former statute. A jury convicted Ramos of transportation of heroin (Health & Saf. Code, § 11352, subd. (a)), possession of methamphetamine for sale (Health & Saf. Code, § 11378), and found gun enhancements true. On appeal she challenged her conviction for transporting heroin in light of a recent amendment to section 11352 that requires that the transportation be for sale. Held: Reversed and remanded. When Ramos was convicted, section 11352 made any transportation of certain controlled substances, including heroin, punishable as felonies. After Ramos’ conviction, section 11352 was amended by adding subdivision (c), which provides that “For purposes of this section, ‘transports’ means to transport for sale.” This requires the fact that the drug was transported for sale be proved beyond a reasonable doubt. The amendment is retroactive and reversal of Ramos’ conviction is therefore required.
Defendant’s transportation of heroin charge may be retried. The transportation offense may be retried even though there was no evidence presented at Ramos’ first trial that the heroin was transported for sale. At the time of Ramos’ trial, section 11352 did not contain this element and, in this situation, the proper procedure is to remand the case so that the element may be proved. The reviewing court does not treat the matter as one of insufficiency of the evidence.
The evidence supported defendant’s conviction for possession of methamphetamine for sale. Ramos was arrested while a passenger in a car driven by her husband, a known drug dealer. She claimed the evidence was insufficient to prove she personally intended to sell the methamphetamine found in the car. To prove the methamphetamine was possessed for sale, a defendant must either possess the illegal drug with the specific intent to sell it or with the specific intent that someone else will sell it. Ramos admitted ownership of a purse that contained large quantities of heroin, methamphetamine, a digital scale, and packaging materials. This was sufficient circumstantial evidence to support the conviction.
The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/G050315.PDF