Mr. Lopez was pulled over for failing to signal. He was found to have a stash of methamphetamine, a decent-sized wad of cash, a scale, and a cache of small plastic baggies. Lopez admitted to the cops he was selling. "I sell meth because I am living on the street, and I have to make money."
A jury convicted Lopez of possession for sale, HS 11378, and transportation, HS 11379. Lopez admitted having two prior convictions for transportation. He was given a total of fifteen years in prison. Six of the fifteen years came from two three-year enhancements under 11370.2 which adds three years for each prior HS 11379. Lopez appealed.
The Second District affirms.
The opinion resolves two main issues. The first issue, whether the trial court's instructional error requires reversal, is resolved convincingly. The second issue, whether a recent amendment to HS 11379 impacts the enhancement under 11370.2, is never really resolved, though the sentence is affirmed. To paraphrase a famous film line, the analysis of the second issues ends not with a bang, but a whimper.
Both issues revolve around 11379, the "transportation" charge. Prior to 2014, (thanks to the erudition of the California Supreme Court of the early 70s) a person was guilty of transportation of methamphetamine simply by possessing some quantity of meth and then moving, however small a distance. When a junkie took a rock from his pocket to put it in his pipe, that was a transportation. When the same junkie, with a dime bag in his jeans, rolled over in bed, that was a transportation. A prosecutor whom I admire, possessing a wry sense of humor, once opined he could obtain a transportation conviction based upon the rotation of the earth since the statute didn't specify a relevant inertial frameset.
Thankfully, in 2014, the legislature changed 11379 to require that the transportation of meth be for the purpose of sale, no doubt the original intent. The trial judge in Lopez's case, however, instructed the jury on the old statute, which did not require the sales intent. This was clearly error, however because the jury necessarily found Lopez guilty of possessing the same drugs for sale in its 11378 (possession for sale) verdict, the error was harmless.
The second issue was the 1170.2 enhancement. Section 1170.2 adds three years for each prior conviction for sales-related charges, save 11379 prior to 2013. Lopez argues that his 11379 convictions shouldn't count now, due to the recent amendment to 11379. The panel here "turns yella" and never really addresses the issue. It states that when lawmakers enact statutes that reference existing statutes, it the version of the referenced statute in effect at the time of the inaction that controls (which cuts against Lopez). But then it goes on to examine the legislative history of 11370.2 which states an intent to punish those engaged in the selling of narcotics (which cuts for Lopez). In the end the panel never really states a useful rule. Rather it states that the record is ambiguous as to whether Lopez's prior 11379 convictions were sales-related and affirms.
So which is it? Does the legislative history of 11370.2 require prior transportation cases to be sales-related, or just a junkie who rolls over in bed?
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