Trial court lacked jurisdiction to grant motion to withdraw nine-year-old plea to accord defendant the benefit of a statutory amendment requiring that transportation of drugs be for purposes of sale. In 2007 Rodas pleaded no contest to transporting heroin for personal use under former Health and Safety Code section 11352 and was granted probation. She violated probation on several occasions and then absconded. In 2015, she filed a motion to vacate her felony transportation conviction and replace it with misdemeanor possession of heroin. She sought the retroactive application of a 2014 amendment to section 11352 that requires the transportation to be for sale rather than personal use. The trial court allowed her to withdraw her plea and reinstated the original charges. The People petitioned for a writ of mandate directing the trial court to vacate its order. Held: Trial court’s order reversed. Prior to the January 1, 2014 amendment to section 11352, courts interpreted the word “transports” in the statute to include transporting a controlled substance for personal use. However, the Legislature amended section 11352 to require that the transportation be for sale. Penal Code section 1018 permits withdrawal of a guilty plea for good cause shown within six months after an order granting probation if entry of judgment is suspended. Because the six-month time limit in section 1018 is mandatory, the trial court lacked jurisdiction to grant defendant’s motion to withdraw her plea. [Editor’s Note: The court noted that although the trial court lacked jurisdiction under section 1018 to allow Rodas to withdraw her plea, the rules of coram nobis may apply under the circumstances.]

Because defendant failed to appeal after the grant of probation, her drug transportation conviction became final for retroactivity purposes in 2007. Rodas argued that the sentence in her case was not final because the court suspended imposition of sentence and granted her Proposition 36 probation. Based on this view, she argued that the ameliorative benefit of the amendment to section 11352 applied under In re Estrada (1965) 63 Cal.2d 740. The court disagreed. Generally, where an amended statute ameliorates punishment and there is no savings clause, the statute will operate retroactively to cases not yet final when the statute takes effect. Here, the order granting probation was a final judgment and was directly appealable. (Pen. Code, § 1237, subd. (a).) Rodas had 60 days to appeal after her 2007 grant of probation. Once that period passed, she could not challenge the underlying conviction when appealing a subsequent order revoking probation and imposing a suspended sentence. Rodas did not appeal the court’s order granting probation, so her conviction became final for retroactivity purposes in 2007. As a result, she was not entitled to the benefit of the amendment to section 11352, which became effective nearly seven years later in 2014. The Court of Appeal disagreed with dicta in People v. Amons (2005) 1245 Cal.App.4th 855, which recognized that a defendant who is granted probation with imposition of sentence suspended is entitled to the ameliorative benefit of a change in the law even though the judgment is final for purposes of appeal.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/C082363.PDF