California Court of Appeals, Third District, Yolo
& Mod. Order 4/20/17
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.
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
appearance for Respondent.
Olson, Public Defender, Ronald Johnson, Deputy Public
Defender for Real Party in Interest.
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.
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.
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).)
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.
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
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.
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
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
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
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 ...