Opinion
NOT TO BE PUBLISHED
Monterey County Super. Ct. Nos. HC6501, SS011575A
BAMATTRE-MANOUKIAN, ACTING P.J.
I. INTRODUCTION
In 2002, defendant was convicted by plea of violating Health and Safety Code section 11352, subdivision (b) (hereafter section 11352(b)), which prohibits the transportation for sale of specified controlled substances between noncontiguous counties in California. The court suspended imposition of sentence and placed defendant on probation for five years with various terms and conditions, including that she serve 120 days in county jail.
All further statutory references are to the Health and Safety Code unless otherwise indicated.
In 2009, defendant filed a motion to vacate judgment under Penal Code section 1016.5 and a petition for a writ of error coram nobis. Among other things, defendant argued that section 11352(b) was an enhancement and not a substantive offense. The superior court denied the motion and petition on April 7, 2009.
On appeal, defendant contends that section 11352(b) is an enhancement rather than a substantive crime, and thus the superior court lacked subject matter jurisdiction and the judgment of conviction is void. Second, defendant asserts that because the waiver and plea form that she signed only referred to section 11352(b), which is an enhancement according to defendant, she was not properly advised about the possible immigration consequences of her conviction pursuant to Penal Code section 1016.5.
For reasons that we will explain, we determine that section 11352(b) describes a substantive crime and, accordingly, we will affirm the superior court’s April 7, 2009 order.
II. BACKGROUND
Defendant’s Offense
The following facts are taken from the probation officer’s report, which was based in part on a report by Salinas Valley State Prison. On June 23, 2001, defendant, who lived in San Bernardino County, went to visit her boyfriend in prison. Defendant’s boyfriend was an inmate at Correctional Training Facility in Monterey County. Upon her arrival, she was served with a search warrant. The search warrant was based upon information that was obtained during the monitoring of inmate telephone calls. The search of defendant yielded approximately 9.5 grams of black tar heroin. Defendant admitted to a “conspiracy to traffic narcotics into the prison” and also admitted that drugs were in her car, which was parked on prison grounds. Two bindles of heroin were found in defendant’s car. Defendant admitted that “she had picked up some of the heroin from a person in Corona, California and that additional drugs were mailed to her.” She received a “money order for $150 as payment for coming to the prison.”
Complaint
On June 28, 2001, defendant was charged by complaint with bringing a controlled substance into a jail or prison (Pen. Code, § 4573; count 1) and transportation for sale of a controlled substance to a noncontiguous county (Health & Safety Code, § 11352, subd. (b); count 2).
We take judicial notice of the complaint filed in Monterey County Superior Court, case No. MS011575A. (Evid. Code, § 452, subd. (d).)
Plea and Sentencing
On January 3, 2002, defendant and her attorney signed a written form entitled “WAIVER OF RIGHTS PLEA OF GUILTY/NO CONTEST.” In the form, defendant indicated that she was “pleading Guilty/No Contest to the offense(s) of: 11352(b).” The form included a space for identifying any “enhancements and/or priors” that were being admitted, and this portion of the form was left blank. The form reflected defendant’s understanding that if she is “not a citizen of the United States a plea of ‘Guilty’/‘No contest’ could result in deportation, exclusion from admission to this country, and/or denial of naturalization.”
That same day, defendant pleaded guilty to a “violation of... section 11352(b), as alleged in the complaint in count 2, ” with the understanding that she would receive felony probation and up to one year in county jail. The court took count 1, bringing a controlled substance into a jail or prison (Pen. Code, § 4573), under submission for dismissal.
On February 22, 2002, the court suspended imposition of sentence and placed defendant on probation for five years with various terms and conditions, including that she serve 120 days in county jail. Defendant was awarded custody credit for one day served. The court dismissed count 1 (Pen. Code, § 4573) pursuant to Penal Code section 1385.
Motion to Vacate Judgment and Petition for Writ of Error Coram Nobis
On January 9, 2009, defendant filed a motion to vacate judgment under Penal Code section 1016.5 and a petition for a writ of error coram nobis and a writ of habeas corpus.
In the statutory motion to vacate judgment, defendant asserted that the “waiver and plea form omitted the substantive charge under § 11352(a), treated § 11352(b) as the substantive charge instead of an enhancement, and left the line for enhancement blank.” According to defendant, because the waiver and plea form failed “to distinguish between a substantive offense of... § 11352(a) and an enhancement under § 11352(b), ” the recitals in the form were “ineffective to admonish [her] of [Penal Code section] 1016.5 consequences” and “she could not and did not waive these rights.”
Penal Code section 1016.5 provides in part: “(a) Prior to acceptance of a plea of guilty or nolo contendere to any offense punishable as a crime under state law, except offenses designated as infractions under state law, the court shall administer the following advisement on the record to the defendant: [¶] If you are not a citizen, you are hereby advised that conviction of the offense for which you have been charged may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States. [¶] (b)... If, after January 1, 1978, the court fails to advise the defendant as required by this section and the defendant shows that conviction of the offense to which defendant pleaded guilty or nolo contendere may have the consequences for the defendant of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States, the court, on defendant’s motion, shall vacate the judgment and permit the defendant to withdraw the plea of guilty or nolo contendere, and enter a plea of not guilty. Absent a record that the court provided the advisement required by this section, the defendant shall be presumed not to have received the required advisement.”
In the petition for a writ of error coram nobis, defendant contended that she “lacked [the] specific intent required for [a] sentence enhancement under... § 11352(b), ” she was “ignorant” of this “factual defense, ” and this “mistake of fact” supported a writ of error coram nobis. In the context of arguing that her former counsel failed to inform her “of the charges against her and the defenses thereto, ” defendant stated that her former counsel “did not inform” her that “§ 11352(b) was an enhancement to § 11352(a).”
In the petition for a writ of habeas corpus, defendant claimed that her trial counsel provided ineffective assistance.
According to the motion and petition, defendant “anticipate[d] either of two remedies: (1) an order vacating the judgment, or (2) an order striking the enhancement under... § 11352(b) and recharacterizing her conviction as a substantive offense under... § 11352(a), which would render it no longer void.” In support of the motion and petition, defendant submitted an affidavit stating that she was a Canadian national and had been a lawful permanent resident in the United States since 1983. Defendant also submitted an affidavit from an immigration attorney, who was representing her in connection with immigration proceedings. The attorney stated that defendant was a lawful permanent resident of the United States; “[t]he exclusive basis for the imminent deportation of [defendant] is her conviction of... § 11352(b)”; and she was excludable from the United States and ineligible for naturalization as a result of the conviction.
Court’s Order Regarding Motion and Petition
On April 7, 2009, the court issued a written order denying defendant’s motion to vacate judgment and petition for writ of error coram nobis and for writ of habeas corpus. Regarding the motion to vacate judgment, the court determined that “[a] violation of... § 11352(b) is a distinct substantive offense, ” and defendant failed to show the lack of an admonishment under Penal Code section 1016.5 and prejudice. Regarding the petition for writ of error coram nobis, the court explained that the new fact claimed by defendant, ignorance of a legal defense, was not a fact that would have prevented rendition of the judgment, as required for issuance of a writ of coram nobis. Lastly, regarding the petition for writ of habeas corpus, the court found that defendant was not in state custody, which was a prerequisite for issuance of the writ.
Notice of Appeal
On May 14, 2009, defendant filed a notice of appeal regarding the court’s April 7, 2009 order denying her motion to vacate judgment and petition for writ of error coram nobis.
Motion for Reconsideration and Order
On June 9, 2009, defendant filed in the superior court a motion for reconsideration of the order denying her motion to vacate judgment and petition for writ of error coram nobis. Defendant argued that the court lacked “fundamental jurisdiction” to punish her because she pleaded guilty to section 11352(b), which defendant believed was an enhancement rather than a substantive offense. In support of the argument that section 11352(b) is an enhancement, defendant referred to, among other things, legislative history. Defendant asserted that the judgment was void and her motion was “ripe, ” despite the pendency of her appeal.
This court granted defendant’s motion to augment the record on appeal to include her June 9, 2009 motion for reconsideration and “any order made by the trial court on defendant’s motion for reconsideration.”
On June 16, 2009, the superior court issued a written order stating that it had “no jurisdiction to entertain the instant motion [for reconsideration] by virtue of [defendant] having filed a Notice of Appeal on May 14, 2009.” The court further stated that it found “unpersuasive [defendant’s] contention that the court has jurisdiction to entertain this motion because the judgment is void.”
III. DISCUSSION
Defendant was convicted of violating section 11352(b). On appeal, defendant argues that the superior court abused its discretion in two respects. First, defendant contends that section 11352(b) is an enhancement rather than a substantive crime, and thus the superior court lacked subject matter jurisdiction and the judgment of conviction is void. Second, defendant asserts that the waiver and plea form, which only referred to section 11352(b), failed to identify a substantive crime, and consequently she was not properly advised about the possible immigration consequences of her conviction pursuant to Penal Code section 1016.5.
As a preliminary matter, defendant appears to acknowledge in her reply brief on appeal that she did not specifically seek to vacate the judgment in the superior court on the ground that section 11352(b) is an enhancement and that therefore the superior court lacked fundamental jurisdiction and the judgment of conviction is void. Although she did make this contention in her motion for reconsideration, the superior court explained that it was without jurisdiction to “entertain” the motion because defendant had already filed a notice of appeal. Defendant now suggests that “remand to the trial court is appropriate for consideration of whether [she] was convicted of an enhancement and whether such a conviction would exceed jurisdiction....”
We will consider the merits of defendant’s appeal. Whether the superior court lacked fundamental jurisdiction and whether the judgment is accordingly void is an issue that may be raised at any time. (People v. Thomas (1959) 52 Cal.2d 521, 528 (Thomas); People v. Vasilyan (2009) 174 Cal.App.4th 443, 450 (Vasilyan).) Defendant has already made the contention that section 11352(b) is an enhancement and not a crime in the context of her statutory motion to vacate judgment and petition for writ of error coram nobis. Thus, the superior court has already considered defendant’s main point on appeal and the superior court specifically determined that a violation of section 11352(b) is a substantive offense. Rather than have the superior court consider the argument concerning section 11352(b) again, judicial economy dictates that we address the contention in the context of defendant’s current appeal. Moreover, the People have responded to the merits of the matter in their brief on appeal, and they do not make any argument that this matter should be remanded and considered by the superior court (again) before a decision by this court. We therefore turn to the substance of defendant’s first contention on appeal, that the superior court lacked subject matter jurisdiction and the judgment is void because section 11352(b) is an enhancement rather than a substantive crime.
Penal Code section 681 provides that “[n]o person can be punished for a public offense, except upon a legal conviction in a Court having jurisdiction thereof.” “ ‘In other words, the court in a criminal trial, like the court in a civil proceeding, must have jurisdiction of the subject matter (in criminal cases, the offense).’ [Citation.]” (Vasilyan, supra, 174 Cal.App.4th at p. 449.) Penal Code section 15 defines a “crime or public offense” as “an act committed or omitted in violation of a law forbidding or commanding it, and to which is annexed, upon conviction, ” certain punishment, such as imprisonment or a fine. (Italics added.) Thus, the definition of a “crime” is “in the conjunctive; both of the conditions must be satisfied before the act will constitute a crime [citation].” (McComb v. Superior Court (1977) 68 Cal.App.3d 89, 96-97.)
“It follows that if there is no crime, the court lacks subject matter jurisdiction.” (Vasilyan, supra, 174 Cal.App.4th at p. 450.) Moreover, “an ensuing judgment is void, and such a judgment is vulnerable to direct or collateral attack at any time.” (Ibid.; Thomas, supra, 52 Cal.2d at p. 528 [“Fundamental jurisdictional defects... do not become irremediable when a judgment of conviction becomes final without appeal (or even after affirmance on appeal....)”]; People v. Wallace (2003) 109 Cal.App.4th 1699, 1704 (Wallace) [on appeal, “we cannot affirm a conviction and sentence imposed for a crime that does not exist”].) The defect of a lack of subject matter jurisdiction may be raised by a motion to vacate the judgment. (Thomas, supra, 52 Cal.2d at pp. 528-529; Vasilyan, supra, 174 Cal.App.4th at pp. 453-454.)
In this case, defendant contends section 11352(b), of which she was convicted, is an enhancement, and that the substantive crime is contained in section 11352(a).
Section 11352 states as follows: “(a) Except as otherwise provided in this division, every person who transports, imports into this state, sells, furnishes, administers, or gives away, or offers to transport, import into this state, sell, furnish, administer, or give away, or attempts to import into this state or transport (1) any controlled substance specified in subdivision (b), (c), or (e), or paragraph (1) of subdivision (f) of Section 11054, ... or (2) any controlled substance classified in Schedule III, IV, or V which is a narcotic drug, unless upon the written prescription of a physician, dentist, podiatrist, or veterinarian licensed to practice in this state, shall be punished by imprisonment in the state prison for three, four, or five years. [¶] (b) Notwithstanding the penalty provisions of subdivision (a), any person who transports for sale any controlled substances specified in subdivision (a) within this state from one county to another noncontiguous county shall be punished by imprisonment in the state prison for three, six, or nine years.” Relevant here, heroin is a controlled substance specified in section 11054, subdivision (c)(11).
As we have stated, a “crime or public offense” is “an act committed or omitted in violation of a law forbidding or commanding it, and to which is annexed, upon conviction, ” certain punishment. (Pen. Code, § 15.) Our Supreme Court has explained that a statute describes a substantive offense if it defines or sets forth elements of a new crime. (Robert L. v. Superior Court (2003) 30 Cal.4th 894, 899 (Robert L.).)
In contrast, “ ‘[e]nhancements typically focus on an element of the commission of the crime or the criminal history of the defendant which is not present for all such crimes and perpetrators and which justifies a higher penalty than that prescribed for the offenses themselves. That is one of the very purposes of an enhancement’s existence.’ [Citation.]” (People v. Rayford (1994) 9 Cal.4th 1, 9 (Rayford).) An enhancement is “an additional term of imprisonment added to the base term.” (Cal. Rules of Court, rule 4.405(3), italics added; Robert L., supra, 30 Cal.4th at pp. 898-899 [citing Cal. Rules of Court, former rule 4.405(c)].) The California Supreme Court has explained that when “the statute neither uses the language ‘an additional term’ nor ‘enhancement, ’ and does prescribe confinement for one of three terms, ... we have no basis on which to characterize it as an enhancement.” (Rayford, supra, 9 Cal.4th at pp. 9-10.)
“The California Supreme Court has recognized, however, that statutory provisions which are not ‘enhancements’ in the strict sense” may nevertheless be “ ‘penalty provisions’ as opposed to substantive offenses....” (Wallace, supra, 109 Cal.App.4th at p. 1702.) “Unlike an enhancement, which provides for an additional term of imprisonment, [a penalty provision] sets forth an alternate penalty for the underlying felony itself, when the jury has determined that the defendant has satisfied the conditions specified in the statute.” (People v. Jefferson (1999) 21 Cal.4th 86, 101.) The California Supreme Court has “distinguished a penalty provision” as follows: “ ‘[A] penalty provision prescribes an added penalty to be imposed when the offense is committed under specified circumstances. A penalty provision is separate from the underlying offense and does not set forth elements of the offense or a greater degree of the offense charged. [Citations.]’ [Citation.]” (Robert L., supra, 30 Cal.4th at p. 899.)
For example, in Robert L., supra, 30 Cal.4th 894, the California Supreme Court determined that Penal Code section 186.22, subdivision (d) is an alternate penalty provision rather than a substantive offense or an enhancement. Penal Code section 186.22, subdivision (d) states that “[a]ny person who is convicted of a public offense punishable as a felony or a misdemeanor, ” committed for the benefit of a criminal street gang, “shall be punished by imprisonment in the county jail... or by imprisonment in the state prison for one, two, or three years.” The court explained that this subdivision is “not a sentence enhancement because it does not add an additional term of imprisonment to the base term; instead, it provides for an alternate sentence when it is proven that the underlying offense has been committed for the benefit of, or in association with, a criminal street gang. Neither is it a substantive offense because it does not define or set forth elements of a new crime.” (Robert L., supra, 30 Cal.4th at p. 899.) Rather, it “prescribes an alternate penalty when the underlying offense is committed under specified circumstances; here, for the benefit of, at the direction of, or in association with, a criminal street gang.” (Id. at p. 900.)
Penal Code section 186.22, subdivision (d) states in its entirety: “Any person who is convicted of a public offense punishable as a felony or a misdemeanor, which is committed for the benefit of, at the direction of or in association with, any criminal street gang with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison for one, two, or three years, provided that any person sentenced to imprisonment in the county jail shall be imprisoned for a period not to exceed one year, but not less than 180 days, and shall not be eligible for release upon completion of sentence, parole, or any other basis, until he or she has served 180 days. If the court grants probation or suspends the execution of sentence imposed upon the defendant, it shall require as a condition thereof that the defendant serve 180 days in a county jail.”
Regarding section 11352, we believe that subdivision (b) describes a substantive offense. While subdivision (a) generally makes it a crime to “transport[]” or “sell[]” specified controlled substances (§ 11352(a)), subdivision (b) forbids a person who “transports for sale” specified controlled substances “within this state from one county to another noncontiguous county” (§ 11352(b)). Subdivision (b) thus defines or sets forth elements of a new crime. In an analogous context, we observe that section 11350 prohibits the possession of specified controlled substances, and section 11351 prohibits possession for sale. The latter, possession for sale, is a substantive offense. (See People v. Perez (2005) 35 Cal.4th 1219, 1232 [“section 11351 criminalizes” possession for sale of certain controlled substances].) This supports our conclusion that while section 11352(a) describes the offense of transportation of specified controlled substances, section 11352(b) describes a substantive offense regarding transportation for sale.
Section 11350 states in part: “(a) Except as otherwise provided in this division, every person who possesses (1) any controlled substance specified in subdivision (b) or (c), or paragraph (1) of subdivision (f) of Section 11054, specified in paragraph (14), (15), or (20) of subdivision (d) of Section 11054, or specified in subdivision (b) or (c) of Section 11055, or specified in subdivision (h) of Section 11056, or (2) any controlled substance classified in Schedule III, IV, or V which is a narcotic drug, unless upon the written prescription of a physician, dentist, podiatrist, or veterinarian licensed to practice in this state, shall be punished by imprisonment in the state prison. [¶] (b) Except as otherwise provided in this division, every person who possesses any controlled substance specified in subdivision (e) of Section 11054 shall be punished by imprisonment in the county jail for not more than one year or in the state prison.”
Section 11351 states: “Except as otherwise provided in this division, every person who possesses for sale or purchases for purposes of sale (1) any controlled substance specified in subdivision (b), (c), or (e) of Section 11054, specified in paragraph (14), (15), or (20) of subdivision (d) of Section 11054, or specified in subdivision (b) or (c) of Section 11055, or specified in subdivision (h) of Section 11056, or (2) any controlled substance classified in Schedule III, IV, or V which is a narcotic drug, shall be punished by imprisonment in the state prison for two, three, or four years.”
Defendant argues that “section 11352(a) contains a defense based on a medical prescription that would be inapplicable in the context of a 11352(b) charge unless the latter is an enhancement to a violation of section 11352(a).” (Fn. omitted.)
Defendant’s argument does not persuade us that section 11352(b) sets forth an enhancement rather than a substantive offense. She fails to explain why a physician’s prescription for a specified controlled substance would authorize the patient to transport for sale the controlled substance to another person, as prohibited by section 11352(b). We also observe that section 11350, subdivision (a), prohibits the possession of specified controlled substances “unless upon the written prescription of a physician” (§ 11350, subd. (a)), whereas section 11351, which prohibits possession for sale, does not contain such an exception for a physician’s prescription.
Defendant also cites People v. Miranda (2008) 161 Cal.App.4th 98 (Miranda) to support her argument that section 11352(b) is an enhancement.
In Miranda, the Third Appellate District addressed section 11379. The defendant was convicted by jury of possession of methamphetamine for sale (§ 11378, count 1), transportation of methamphetamine (§ 11379, subd. (a), count 2), and transportation of methamphetamine from a noncontiguous county for purpose of sale (§ 11379, subd. (b), count 3). (Miranda, supra, 161 Cal.App.4th at p. 101, fn. 2.) The defendant’s convictions on counts 1 and 2, possession for sale and transportation, were set aside by the trial court “because, as pled, they were lesser included offenses of count 3, ” transportation from a noncontiguous county for purpose of sale. (Ibid.) The defendant was sentenced to nine years in prison on count 3. (Ibid.)
Section 11379 states: “(a) Except as otherwise provided in subdivision (b) and in Article 7 (commencing with Section 4211) of Chapter 9 of Division 2 of the Business and Professions Code, every person who transports, imports into this state, sells, furnishes, administers, or gives away, or offers to transport, import into this state, sell, furnish, administer, or give away, or attempts to import into this state or transport any controlled substance which is (1) classified in Schedule III, IV, or V and which is not a narcotic drug, except subdivision (g) of Section 11056, (2) specified in subdivision (d) of Section 11054, except paragraphs (13), (14), (15), (20), (21), (22), and (23) of subdivision (d), (3) specified in paragraph (11) of subdivision (c) of Section 11056, (4) specified in paragraph (2) or (3) of subdivision (f) of Section 11054, or (5) specified in subdivision (d) or (e), except paragraph (3) of subdivision (e), or specified in subparagraph (A) of paragraph (1) of subdivision (f), of Section 11055, unless upon the prescription of a physician, dentist, podiatrist, or veterinarian, licensed to practice in this state, shall be punished by imprisonment in the state prison for a period of two, three, or four years. [¶] (b) Notwithstanding the penalty provisions of subdivision (a), any person who transports for sale any controlled substances specified in subdivision (a) within this state from one county to another noncontiguous county shall be punished by imprisonment in the state prison for three, six, or nine years.”
Section 11378 states: “Except as otherwise provided in Article 7 (commencing with Section 4211) of Chapter 9 of Division 2 of the Business and Professions Code, every person who possesses for sale any controlled substance which is (1) classified in Schedule III, IV, or V and which is not a narcotic drug, except subdivision (g) of Section 11056, (2) specified in subdivision (d) of Section 11054, except paragraphs (13), (14), (15), (20), (21), (22), and (23) of subdivision (d), (3) specified in paragraph (11) of subdivision (c) of Section 11056, (4) specified in paragraph (2) or (3) of subdivision (f) of Section 11054, or (5) specified in subdivision (d), (e), or (f), except paragraph (3) of subdivision (e) and subparagraphs (A) and (B) of paragraph (2) of subdivision (f), of Section 11055, shall be punished by imprisonment in the state prison.”
On appeal, the defendant contended that his conviction on count 3, transportation from a noncontiguous county for purpose of sale, violated the corpus delicti rule, because the trial court instructed the jury that “on the issue of transportation between noncontiguous counties, ... it ‘may be proved by the defendant’s statements alone.’ ” (Miranda, supra, 161 Cal.App.4th at p. 101; see also id. at p. 106.)
The Third Appellate District concluded that the corpus delecti rule had not been violated. The court explained that the “corpus delicti rule precludes conviction where the corpus of the offense has been established on the basis of a defendant’s uncorroborated statements.” (Miranda, supra, 161 Cal.App.4th at p. 101.) The court stated that the rule “requires proof of every element of the ‘body of the crime’ necessary to show the commission of a crime by somebody, i.e. ‘the fact of injury, loss, or harm, and the existence of a criminal agency as its cause.’ [Citation.] However, ... it does not include... the facts necessary for the enhancement of the penalty for an offense [citation].” (Id. at pp. 107-108, italics and fn. omitted.)
Turning to the case before it, the Third Appellate District stated: “In this case there is no claim the elements of the underlying offense of subdivision (a) of section 11379, that the crime of transporting illicit narcotics occurred, were not met without defendant’s statements. That fully satisfies the corpus delicti rule that requires proof of ‘the fact of injury, loss, or harm, and the existence of a criminal agency as its cause.’ [Citation.] Section 11379, subdivision (b), upon which defendant relies, did no more than enhance the ‘penalty provisions of subdivision (a)’ when any person ‘transports for sale any controlled substances specified in subdivision (a) within this state from one county to another noncontiguous county....’ [Citation.]” (Miranda, supra, 161 Cal.App.4th at p. 108.)
In a concurring opinion, Justice Sims disagreed with the majority’s analysis regarding the corpus delecti rule. (Miranda, supra, 161 Cal.App.4th at p. 109 (conc. opn. of Sims, J.).) Justice Sims believed that “transportation between noncontiguous counties is an element of the offense defined by Health and Safety Code section 11379, subdivisions (a) and (b)” but that California law did not require “independent proof of every element of a crime to satisfy the corpus delicti rule. Rather, ... it is sufficient for independent evidence to show that some crime was committed.” (Ibid., fn. and italics omitted(conc. opn. of Sims, J.).) Justice Sims concluded that “here the evidence showed commission of the crime of felony transportation of a controlled substance, ” (ibid. (conc. opn. of Sims, J.)), and “[t]his prima facie showing of defendant’s felony violation of section 11379, subdivision (a) (transportation of a controlled substance), was sufficient to satisfy the corpus delicti rule with respect to a violation of section 11379, subdivision (b)” (id. at p. 113 (conc. opn. of Sims, J.)).
Although Miranda, supra, 161 Cal.App.4th 98 involved section 11379, which pertains to different controlled substances than section 11352, section 11379, subdivision (b) regarding transport for sale between noncontiguous counties is worded similarly to section 11352(b), which is the provision at issue in the case before us. The People in the present case emphasize that in Miranda, the defendant’s conviction under section 11379, subdivision (a) was set aside by the trial court because it was a lesser included offense of the conviction under section 11379, subdivision (b). The People maintain that “[t]hus, section 11379(b) was regarded as a substantive offense” by the Miranda court.
Notwithstanding the Miranda court’s determination that subdivision (b) of section 11379 “did no more than enhance the ‘penalty provisions of subdivision (a)’ ” (Miranda, supra, 161 Cal.App.4th at p. 108), the Miranda court concluded that the defendant in that case had been properly convicted under section 11379, subdivision (b). (Miranda, supra, 161 Cal.App.4th at pp. 101-102 & fn. 2; id. at p. 108.) Thus, the Miranda court treated section 11379, subdivision (b) as a substantive offense. To the extent Miranda suggests that section 11379, subdivision (b) is a penalty provision and does not describe a substantive offense, we agree with Justice Sims that transportation between noncontiguous counties is an element of an offense prohibiting transport for sale between noncontiguous counties, and we conclude that section 11352(b) describes a substantive offense. (See People v. Patterson (1999) 72 Cal.App.4th 438, 440 [section 11379, subdivision (b) “makes it illegal to transport for sale specified controlled substances within this state from one county to another noncontiguous county”].)
In a footnote in her opening brief on appeal, defendant suggests that legislative history supports the construction of section 11352(b) (and section 11379, subdivision (b) as discussed in Miranda, supra, 161 Cal.App.4th 98) as an enhancement or a penalty provision. On October 22, 2009, this court granted defendant’s request to take judicial notice of several items of legislative history concerning section 11352(b). In her opening brief on appeal, however, defendant fails to identify any specific item of legislative history that supports her position and fails to explain why the item supports her position.
Defendant’s second contention on appeal, that she was not properly advised about the possible immigration consequences of her conviction pursuant to Penal Code section 1016.5, is based on the premise that the waiver and plea form that she signed only identified an enhancement, not a substantive crime, when it referred to section 11352(b). Because we disagree with defendant’s premise that section 11352(b) is an enhancement and not a substantive crime, her contention concerning the lack of proper advisement under Penal Code section 1016.5 is without merit.
IV. DISPOSITION
The superior court’s April 7, 2009 order denying defendant’s motion to vacate judgment and petition for writ of error coram nobis is affirmed.
I CONCUR: MCADAMS, J.
I CONCUR IN THE JUDGMENT ONLY. MIHARA, J.