People v. Cortez CA2/6

DISCUSSION

Cortez pled guilty in January 2013. She requested Proposition 36 probation. The trial court held a hearing pursuant to People v. Dove (2004) 124 Cal.App.4th 1, to determine whether she was eligible. The trial court placed the burden on Cortez to show her transportation was for personal use. The court found she failed to carry her burden and denied her request for Proposition 36 probation. The court sentenced her to a six-year term in August 2013. At the time of Cortez's plea and sentencing, section 11352, subdivision (a) provided in part, "[E]very person who transports . . . any controlled substance . . . shall be punished by imprisonment . . . for three, four, or five years." Effective January 1, 2014, the Legislature amended section 11352 to state, "For the purposes of this section 'transports' means to transport for sale." (Id., subd. (c); Stats. 2013, ch. 504, § 1.)2 The amendment makes it clear that transportation of a controlled substance for personal use is no longer an offense under section 11352. Instead, transportation "for sale" is now an element of the offense. Thus the prosecution bears the burden of proof on the "for sale" element beyond a…