People v. Burton CA5

DISCUSSION

I. Retroactive Application of Amended Section 11352

Defendant contends and the People concede that the amended version of section 11352 must be applied retroactively to his case because his judgment is not yet final. (See People v. Vieira (2005) 35 Cal.4th 264, 306 [for determining retroactive application of amendment to criminal statute, judgment is not final until time for petitioning United States Supreme Court for writ of certiorari has passed].) We agree. Defendant’s conviction for transportation of a controlled substance was not final when Assembly Bill 721 became effective on January 1, 2014 (2013-2014 Reg. Sess.). The amended statute essentially requires an additional element because it defines transportation as transportation for sale. (§ 11352, subd. (c).) We agree that the amended statute should be applied retroactively to defendant because it mitigates punishment. (In re Estrada (1965) 63 Cal.2d 740, 748 [“where the amendatory statute mitigates punishment and there is no saving clause, the rule is that the amendment will operate retroactively so that the lighter punishment is imposed”]; People v. Vinson (2011)

All statutory references are to…