P v. Ramos (4th Dist., Div.3): Amendment to HS11352 Requires Retrial.

Ms. Ramos was a passenger in a motorcar that was stopped by the police.  Her purse was found to contain heroin, methamphetamine, and a gun.  A jury convicted her of possession of methamphetamine for sale and transportation of heroin, Health and Safety Code section 11352.

At the time of her conviction, 11352, transportation of narcotics (a more severe crime than possession), only required that you possessed some heroin and then moved it, no matter how far.  It was an embarrassingly silly statute, made even more so by California's Supreme Court's statutory interpretation.  Any movement would suffice.  So, moving the heroin from your pocket to your spoon? That's a transportation.  Having the heroin in your pocket and walking down your hallway to the bathroom?  That's a transportation.  The earth's continual rotation?  Well, no prosecutor was ever that clever (or imbecilic).

So before Ramos' conviction was final, that gaggle of half-anonymous asses, aka the California state legislature, had a moment of clarity and changed 11352 to require the transportation be for purposes of sale.  So now you could walk down your own hallway with heroin in your pocket without being convicted of the severe felony of transportation (unless you intended to sell it to your roommate at the end of the hall).

The problem is that there was no evidence introduced at Ramos' trial that the heroin was possessed for sale.  Which is logical since, at the time, the prosecutor didn't have to prove it was possessed for sale to get a conviction.  So while everyone agrees the statutory changes apply to Ramos, Ramos asserts her transportation conviction must be reversed and retrial barred, while the State asserts that the conviction should be affirmed under the harmless error standard.

The panel reverses the transportation conviction and remands the matter for further proceedings (retrial).  The State's argument that harmless error applies is properly rejected; Ramos has the right to have the missing element, possession for sale, determined by a jury, not an appellate panel.  Furthermore because the State had no need to introduce evidence of sales at trial (the transportation charge not requiring it at the time), remand is required to provide them the opportunity to do so.