Can a defendant appeal from his conviction for possession of a controlled substance for transportation?

On count 2, the jury found defendant not guilty of possession of a controlled substance for sale. That verdict resolved whether defendant intended to sell the methamphetamine found in his vehicle. (People v. Montero (2007) 155 Cal.App.4th 1170, 1175 [intent to sell is an element of the crime of possession for sale].) Accordingly, we must reverse the conviction on count 3, and defendant may not be retried on the count 3 charge for transportation of a controlled substance because the jury found the prosecution failed to prove he possessed the methamphetamine for sale.

The Attorney General agrees that the count 3 conviction must be reversed, but urges us to remand the case for resentencing. The Attorney General asserts that because the trial court "imposed" sentence on count 3 and utilized that sentence as the base term, reversal of the count 3 conviction requires resentencing. But the trial court expressly stated that it suspended imposition of sentence and ordered defendant to probation. "When the trial court suspends imposition of sentence, no judgment is then pending against the probationer, who is subject only to the terms and conditions of the probation. [Citations.] The probation order is considered to be a final judgment only for the 'limited purpose of taking an appeal therefrom.' [Citation.]" (People v. Howard (1997) 16 Cal.4th 1081, 1087.) While defendant may appeal from his conviction based on the

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