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People v. Superior Court (Margarita Merced Rodas)

California Court of Appeals, Third District, Yolo

April 13, 2017

THE PEOPLE, Petitioner,

          Pub. & Mod. Order 4/20/17

         ORIGINAL PROCEEDINGS: Petition for Writ of Mandate from an order of the Superior Court of Yolo County No. CRF065575, Paul K. Richardson, Judge. Peremptory Writ issued.

          Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Catherine Chatman and R. Todd Marshall, Supervising Deputy Attorneys General, Larenda R. Delaini and Nicholas M. Fogg, Deputy Attorneys General for Petitioner.

          No appearance for Respondent.

          Tracie Olson, Public Defender, Ronald Johnson, Deputy Public Defender for Real Party in Interest.

          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 substance for personal use. (Former § 11352, subd. (a).) After violating probation on several occasions, Rodas eventually absconded and her whereabouts were unknown until 2015 when she appeared in court and filed a motion to vacate her felony transportation conviction and replace it with a misdemeanor sentence for simple possession. Rodas sought the retroactive benefit of a 2014 statutory amendment to section 11352 that required transportation for sale rather than merely for personal use. (§ 11352, subd. (a).) The trial court later granted her oral motion to withdraw her plea and reinstated the original charges.

         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' 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' motion to withdraw her no contest plea. The ruling vacating the no contest plea and reinstating the charges is reversed and the matter is remanded to the trial court for appropriate proceedings on the probation violation allegation.


         Based on an incident in October 2006, Rodas was charged with unlawfully transporting heroin (count 1), morphine (count 3), and hydrocodone (count 5) (former § 11352, subd. (a)), and unlawfully possessing heroin (count 2), morphine (count 4), and hydrocodone (count 6) (former § 11350, 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' 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 second violation of probation was filed in April 2008 alleging Rodas failed to enter into and complete a drug treatment program. A month later, Rodas admitted the violation and the court reinstated probation.

         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' 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' counsel made an oral motion to withdraw her plea at the hearing, the court granted the motion and ...

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