P. v. Tillotson

1
Filed 10/13/16 P. v. Tillotson CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Placer)
----
THE PEOPLE,
Plaintiff and Respondent,
v.
JEFFREY ALLEN TILLOTSON,
Defendant and Appellant.
C080749
(Super. Ct. No. 62-074170)
Does the resentencing provision of Proposition 47, Penal Code section 1170.18,1
apply to a change in the law limiting the crime of transportation of a controlled substance
(Health & Saf. Code, § 11379) to transportation for the purpose of sale? Defendant
Jeffrey Allen Tillotson, in his appeal from the trial court’s denial of his section 1170.18
petition, says that it does. We hold that is does not.
1 Undesignated statutory references are to the Penal Code.

-- 1 of 6 --

2
BACKGROUND
We dispense with the facts of defendant’s crimes, as they are unnecessary to
resolve this appeal.
In April 2008, defendant pleaded no contest to transportation of methamphetamine
(Health & Saf. Code, § 11379, subd. (a)) and was placed on three years’ formal
probation. In July 2009, probation was terminated and defendant was sentenced to an
eight-month prison term for the offense, as part of a three-year four-month term involving
convictions for possession of a controlled substance (Health & Saf. Code, § 11377, subd.
(a)) and felony failure to appear (§ 1320, subd. (b)) in unrelated cases.
In June 2015, defendant filed a section 1170.18 petition seeking redesignation of
the transportation offense to misdemeanor possession of methamphetamine. The trial
court denied the petition, finding the crime was ineligible for section 1170.18 relief.
DISCUSSION
Defendant collaterally attacked his conviction in the trial court through a petition
brought pursuant section 1170.18, which was enacted as part of Proposition 47. (People
v. Rivera (2015) 233 Cal.App.4th 1085, 1092.) “Proposition 47 makes certain drug- and
theft-related offenses misdemeanors unless the offenses were committed by certain
ineligible defendants.” (Id. at p. 1091.) Subdivision (a) of section 1170.18 states: “A
person currently serving a sentence for a conviction, whether by trial or plea, of a felony
or felonies who would have been guilty of a misdemeanor under the act that added this
section (‘this act’) had this act been in effect at the time of the offense may petition for a
recall of sentence before the trial court that entered the judgment of conviction in his or
her case to request resentencing in accordance with Sections 11350, 11357, or 11377 of
the Health and Safety Code, or Sections 459.5, 473, 476a, 490.2, 496, or 666 of the Penal
Code, as those sections have been amended or added by this act.” A person who has
completed his or her sentence “may file an application before the trial court that entered

-- 2 of 6 --

3
the judgment of conviction in his or her case to have the felony conviction or convictions
designated as misdemeanors.” (§ 1170.18, subd. (f).)
While the statutes defining the crime of transportation of a controlled substance
were amended in 2013 to include a requirement that the transportation be for the purpose
of sale (see Health & Saf. Code, §§ 11379, subd. (c), 11352, subd. (c)), these changes
were enacted by the Legislature (Stats. 2013, ch. 504, §§ 1, 2) rather than through
Proposition 47. The transportation offenses are not included as crimes subject to the
redesignation and resentencing procedure set forth in Health and Safety Code section
1170.18.
Although Proposition 47 did not purport to change and does not reference Health
and Safety Code section 11379, defendant nonetheless maintains that Health and Safety
Code section 1170.18 is a vehicle for reducing his transportation conviction to a
conviction for misdemeanor possession where the transportation was for personal use.
He is wrong.
The legislative amendment to Health and Safety Code section 11379 did not
include an explicit savings clause prohibiting retroactive application of the amended
statutory language, nor is there any other indication of “clear legislative intent” that the
amended statutory language is only to be applied prospectively. (People v. Rossi (1976)
18 Cal.3d 295, 299.) Because the amendment benefits a defendant by eliminating
criminal liability for drug transportation in cases involving possession for personal use, it
must be applied retroactively to any case in which the judgment was not final when the
amendment occurred. (See In re Estrada (1965) 63 Cal.2d 740, 745.) Since defendant’s
conviction was long final at the time of the amendment, the changes to Health and Safety
Code section 11379 do not apply to his case.
Defendant notes that Estrada does not bar retroactive application of a change to
the law to final judgments of conviction when the Legislature intends for the change to
apply retroactively. (See People v. Flores (1979) 92 Cal.App.3d 461, 472-473.) He

-- 3 of 6 --

4
additionally points out that retroactive application is not an issue when the legislative
amendment merely clarifies existing law. (See Carter v. California Dept. of Veterans
Affairs (2006) 38 Cal.4th 914, 922 (Carter) [“[a] statute that merely clarifies, rather than
changes, existing law is properly applied to transactions predating its enactment”].)
Asserting that the legislative history of the bill changing the transportation statute shows
it was intended to merely clarify existing law, defendant concludes the change to the
transportation offense should apply to his conviction.
In People v. Rogers (1971) 5 Cal.3d 129 (Rogers), our Supreme Court held that
the offense of transportation of marijuana (Health & Saf. Code, former § 11531) did not
require “a specific intent to transport contraband for the purpose of sale or distribution,
rather than personal use.” (Rogers, supra, at pp. 132, 134.) As the court explained,
“Neither the word ‘transport,’ the defining terms ‘carry,’ ‘convey,’ or ‘conceal,’ nor
[Health and Safety Code former] section 11531 read in its entirety, suggests that the
offense is limited to a particular purpose or purposes. [¶] . . . [N]othing in that section
exempts transportation . . . of marijuana for personal use. Had the Legislature sought to
restrict the offense of transportation to situations involving sale or distribution, it could
easily have so provided.” (Id. at pp. 134-135.) Until the recent changes to the
transportation statutes, it remained the law in California that the illegal transportation of
controlled substances did not require the transportation to be for purposes of sale. (See
People v. Eastman (1993) 13 Cal.App.4th 668, 674-677.)
The “ ‘interpretation of a statute is an exercise of the judicial power the
Constitution assigns to the courts’ ” and “[w]hen [the California Supreme Court] ‘finally
and definitively’ interprets a statute, the Legislature does not have the power to then state
that a later amendment merely declared existing law. [Citation.]” (Carter, supra,
38 Cal.4th at p. 922.) Any legislative intent is irrelevant to the question of whether an
amendment changes or clarifies the law. In Rogers, the Supreme Court held that
transportation of a controlled substance did not include a requirement that the

-- 4 of 6 --

5
transportation be intended for sale. The Legislature did not clarify that decision when it
added the for sale requirement. Rather, it legislatively overruled Rogers.
Finally, defendant argues that he is entitled to retroactive application of the change
to the transportation crime as a matter of equal protection. He is not.
Defendant claims “the legislature has adopted a classification that affects people
who have convictions for simple possession of a controlled substance, for personal use as
opposed for sale,” and that he is similarly situated to those persons. Not so.
“However, the Legislature was entitled to assume that the potential for harm to
others is generally greater when narcotics are being transported from place to place,
rather than merely held at one location. The Legislature may have concluded that the
potential for increased traffic in narcotics justified more severe penalties for
transportation than for mere possession or possession for sale, without regard to the
particular purpose for which the transportation was provided, a matter often difficult or
impossible to prove. Moreover, a more severe penalty for those who transport drugs may
have been deemed appropriate to inhibit the frequency of their own personal use and to
restrict their access to sources of supply, or to deter the use of drugs in vehicles in order
to reduce traffic hazards and accidents, as well as to deter occurrences of sales or
distributions to others. The relative privacy and increased mobility afforded by the
automobile offers expanded opportunities for the personal use and acquisition of drugs;
greater penalties may legitimately be imposed to curtail those opportunities.” (Rogers,
supra, 5 Cal.3d at pp. 136-137, fns. omitted.)
Nor does it violate equal protection to limit the retroactive application of a change
in the law that reduces criminal liability. “ ‘[T]he 14th Amendment does not forbid
statutes and statutory changes to have a beginning, and thus to discriminate between the
rights of an earlier and later time.’ ” (People v. Floyd (2003) 31 Cal.4th 179, 191,
quoting Sperry & Hutchinson Co. v. Rhodes (1911) 220 U.S. 502, 505 [55 L.Ed. 561,
563].)

-- 5 of 6 --

6
Section 1170.18 is not a vehicle for the retroactive application of changes in the
law outside those brought by Proposition 47. This is particularly true where, as here, the
change in the law does not apply to defendant’s case.
DISPOSITION
The judgment (order) is affirmed.
NICHOLSON , Acting P. J.
We concur:
DUARTE , J.
RENNER , J.

-- 6 of 6 --