HULL, Acting P. J. —
Real party in interest Margarita Merced Rodas was granted probation in 2007 after entering a negotiated plea of no contest to transporting heroin under former Health and Safety Code section 11352. (Unless otherwise set forth, statutory references that follow are to the Health and Safety Code.) At the time, the statute prohibited transporting a controlled
The People petitioned for a writ of mandate directing the trial court to vacate its order allowing Rodas to withdraw her nearly nine-year-old plea. According to the People, Rodas's conviction had long been final for review purposes because she did not challenge the probation order within the six-month time limit set forth in Penal Code section 1018. The court thus acted in excess of its jurisdiction in granting the motion because Rodas was not entitled either to withdraw her plea or to the retroactive benefit of the intervening amendment to section 11352. We agree the trial court exceeded its jurisdiction by granting Rodas's motion to withdraw her no contest plea. We shall issue a peremptory writ of mandate directing the respondent superior court to vacate its order granting the motion to withdraw the no contest plea.
FACTS AND PROCEEDINGS
Based on an incident in October 2006, Rodas was charged with unlawfully transporting heroin (count 1), morphine (count 3), and hydrocodone (count 5) (§ 11352, former subd. (a)), and unlawfully possessing heroin (count 2), morphine (count 4), and hydrocodone (count 6) (§ 11350, former subd. (a)). The complaint also alleged a prior conviction for transportation of a controlled substance (enhancements a & b). (§ 11370.2, subd. (a).)
In July 2007, Rodas pleaded no contest to the count 1 transportation of heroin charge in exchange for dismissal of all remaining charges and enhancements. The felony plea form specifically states that she transported heroin "for personal use." Pursuant to Proposition 36, also known as the Substance Abuse and Crime Prevention Act of 2000, the court suspended imposition of sentence and, pursuant to the plea agreement, granted Rodas three years' probation with various terms and conditions. (Pen. Code, § 1210.1, subd. (a).) She did not appeal her conviction.
In October 2007, a few months after entering her plea, the court revoked Rodas's probation for allegedly violating certain probation conditions. The violation of probation was eventually dismissed in December 2007 and Rodas was reinstated to probation under the original terms and conditions.
A third violation of probation was filed in November 2008 alleging multiple violations. The probation officer recommended excluding Rodas from further Proposition 36 probation because she was unable or unwilling to comply with her probation terms. Despite this recommendation, after admitting the violation in December 2008, the court reinstated Rodas on probation.
In May 2009, a fourth violation of probation was filed against Rodas. The court revoked probation and ordered Rodas to appear for arraignment on the violation. Rodas, however, failed to appear and a bench warrant was later issued for her arrest.
Rodas's whereabouts remained unknown until 2015 when the public defender placed her cases on calendar to recall the outstanding warrant. In October 2015, after the amendment of section 11352 and the passage of Proposition 47, Rodas moved to vacate her felony conviction for transporting heroin (§ 11352, subd. (a)) and replace it with a misdemeanor conviction for possessing heroin (§ 11350, subd. (a)). Rodas argued that because the court suspended imposition of her sentence and granted her probation, no final judgment had ever been entered in her case. She was thus entitled to the retroactive benefit of section 11352's amended definition of "transports," which required transportation for sale and not simply transportation for personal use.
The People responded that such a remedy was improper and that Rodas should have, but did not, file a motion to withdraw her plea. After Rodas's counsel made an oral motion to withdraw her plea at the hearing, the court granted the motion and reinstated all of the counts and enhancements originally charged in the complaint.
The People originally appealed the court's ruling, but we dismissed the appeal for lack of an appealable order. The People then filed the instant writ petition. After this court issued an alternative writ to the Superior Court of Yolo County to show cause why the petition for writ of mandate should not be granted, Rodas filed an answer and opposed the petition.
Effective January 1, 2014, the Legislature amended section 11352 by adding subdivision (c), which provides, "For purposes of this section, `transports' means to transport for sale." (§ 11352, subd. (c); Stats. 2013, ch. 504, § 1.) The amendment intended to criminalize the transportation of drugs for the purpose of sale and not the transportation of drugs for personal use. (See Assem. Conc. Sen. Amends. to Assembly Bill No. 721 (2013-2014 Reg. Sess.) as amended June 27, 2013, p. 2 ["`This bill makes it expressly clear that a person charged with this felony must be in possession of drugs with the intent to sell. Under AB 721, a person in possession of drugs ONLY for personal use would remain eligible for drug possession charges. However, personal use of drugs would no longer be eligible for a SECOND felony charge for transportation'"].)
Following the statute's amendment, "transportation of heroin for personal use no longer constitutes a violation of section 11352." (People v. Ramos (2016) 244 Cal.App.4th 99, 102 [197 Cal.Rptr.3d 738] (Ramos).) "The practical effect of this amendment is that transportation of heroin for sale as opposed to personal use is now an element of the offense that must be decided by a jury by proof beyond a reasonable doubt." (Id. at pp. 102-103.)
The People contend Rodas's conviction was final for purposes of review at the time the amendment to section 11352 took effect, and, thus, she was not entitled to relief under Estrada. They primarily base their finality argument on the interplay between two statutes, Penal Code section 1018, which addresses when a guilty plea may be withdrawn, and Penal Code section 1237, which delineates when a criminal defendant may appeal. (Pen. Code, §§ 1018, 1237, subds. (a) & (b).)
Penal Code section 1237 delineates when a defendant may appeal from a final judgment of conviction. (Pen. Code, § 1237, subd. (a).) An order granting probation is identified in Penal Code section 1237 as a "final judgment" for purposes of taking an appeal. (Ibid.)
Based on the above statutory provisions, the People argue that Rodas had to move to withdraw her no contest plea within six months of the court's order granting probation. Once that time period passed without any such motion having been filed, the court lacked jurisdiction to allow Rodas to withdraw her plea. And, because Rodas could have but did not appeal the probation order under Penal Code section 1237, the judgment of conviction is now final for retroactivity purposes because she is precluded from challenging the underlying conviction in any subsequent appeal.
Rodas, on the other hand, argues that there has never been a sentence or final judgment in her matter because the court suspended imposition of sentence and granted her Proposition 36 probation. (Pen. Code, § 1210.1, subd. (a) [Prop. 36 "[p]robation shall be imposed by suspending the imposition of sentence"].) In her view, in the absence of any such final judgment, the ameliorative benefit of the amendment to section 11352 would apply under Estrada.
In defending the challenged order, Rodas cites this court's recent decision in People v. Eagle (2016) 246 Cal.App.4th 275 [200 Cal.Rptr.3d 773] (Eagle), which involved an identical amendment to section 11379 concerning the transportation of methamphetamine. She similarly relies on Ramos, supra, 244 Cal.App.4th at page 103, which considered the amendment to section 11352 at issue here.
While it is true that both Eagle and Ramos applied the respective amendments to sections 11352 and 11379 retroactively, the People in those cases, unlike here, conceded Estrada applied. (Eagle, supra, 246 Cal.App.4th at p. 279; Ramos, supra, 244 Cal.App.4th at p. 103.) None of the parties in Eagle referenced Penal Code section 1018, however. (See Eagle, supra, 246
The defendant in Ramos, moreover, appealed her conviction following a jury trial. (Ramos, supra, 244 Cal.App.4th at p. 100.) It was during the pendency of the appeal that the court accepted the parties' concession that the amendment to section 11352 applied under Estrada. (Ramos, at pp. 102-103.) The fact that the amendment applied under the circumstances presented in Ramos, however, is unremarkable. (See People v. Yearwood (2013) 213 Cal.App.4th 161, 171-172 [151 Cal.Rptr.3d 901] ["`Cases in which judgment is not yet final include those in which a conviction has been entered and sentence imposed but an appeal is pending when the amendment becomes effective'"].) The People's concession in Ramos simply does not shed light on whether the trial court had jurisdiction to allow Rodas to withdraw her plea in this case.
According to the enrolled bill report, "The purpose of this bill is to eliminate late withdrawal of pleas which often prejudices the prosecution because of the passage of time.... [¶] The Attorney General states that `defendants who have already received the benefit of probation should not be entitled to greater rights to withdraw their guilty pleas than other defendants who are sentenced to state prison.' Also, a lengthy delay after the original plea of guilty may result in missing witnesses, faulty recollections, and other problems in bringing the case to trial." (Off. of Criminal Justice Planning, Enrolled Bill Rep. on Assem. Bill No. 2174 (1991-1992 Reg. Sess.) Sept. 5, 1991.)
Rodas's contention that Penal Code section 1018 does not apply because she does not seek a "statutory remedy in nature" is without merit. The statute governs when a trial court may grant a motion to withdraw a guilty plea (Pen. Code, § 1018), which is precisely what Rodas asked the trial court to do below.
We also conclude that In re May (1976) 62 Cal.App.3d 165, 167-169 [133 Cal.Rptr. 33] (May), which Rodas argues should control the instant matter, does not dictate a different result. There, the court granted a petition for writ of habeas corpus to set aside the trial court's order modifying probation to include a jail term after the Legislature had amended the statute to which the defendant pleaded guilty to make the offense a misdemeanor punishable by a fine. May was decided decades before the Legislature amended Penal Code section 1018 to include the strict six-month time limit for withdrawing a guilty plea when the court grants probation. (Stats. 1991, ch. 421, § 1, p. 2172.) Because May did not consider Penal Code section 1018 and the statute's effect on a court's jurisdiction to grant a belated motion to withdraw a no contest plea, the opinion is not helpful.
Penal Code section 1237.5 and the implementing rules of court, moreover, make it clear that Rodas had 60 days to file a notice of appeal from the probation order and a statement of reasons for issuance of a certificate of probable cause. (Pen. Code, § 1237.5; Cal. Rules of Court, rules 8.304(a) & (b), 8.308(a).) This she did not do. Nor did she petition the United States Supreme Court for a writ of certiorari challenging the judgment of conviction. (See U.S. Supreme Ct. Rules, rule 13.1 [a petition for writ of certiorari seeking review of a state court judgment must be filed within 90 days after entry of the judgment].)
As our Supreme Court has recognized, "[s]trict adherence to procedural deadlines and other requirements governing appeals that emanate from judgments entered upon pleas of guilty or no contest is vital, in view of the circumstance that such judgments represent the vast majority of felony and misdemeanor dispositions in criminal cases." (Chavez, supra, 30 Cal.4th at p. 654, fn. 5, italics added.) Allowing Rodas to withdraw her plea and set aside the judgment of conviction at this late stage would violate the important public policy of strictly adhering to procedural deadlines in these types of cases and — as noted by Chavez — fundamentally undermine the finality of a majority of the criminal matters in California.
Such a result would also have the absurd effect of encouraging defendants to violate the terms of their probation in the hopes of extending the probation term to take advantage of any beneficial changes in the law during the probationary period. And it would severely prejudice the People by virtue of the passage of time — the precise reason the Legislature amended Penal Code section 1018 to include the six-month limitation for withdrawing guilty pleas. (Miranda, supra, 123 Cal.App.4th at p. 1133.)
While we conclude the court lacked jurisdiction under Penal Code section 1018 to allow Rodas to withdraw her plea, we recognize that the rules governing writs of coram nobis may apply under the circumstances. In People v. Totari (2003) 111 Cal.App.4th 1202, 1206 [4 Cal.Rptr.3d 613], for example, the court stated: "The `normal rules' for withdrawal of a plea, when the strict time limits set forth in Penal Code section 1018 have expired, are identical to the rules for obtaining a writ of coram nobis." Because Rodas did not petition for a writ of coram nobis in the court below, however, we express no view as to the applicability of, or availability of relief under, such a petition. (Miranda, supra, 123 Cal.App.4th at p. 1134, fn. 7.)
Let a peremptory writ of mandate issue directing the respondent superior court to vacate its April 14, 2016, order granting the oral motion of real party in interest to withdraw her guilty plea, and to further vacate the court's order reinstating the complaint, and to enter a new order denying the motion to withdraw the guilty plea.
Murray, J., and Hoch, J., concurred.