Another Circuit Supports the Argument that the California Drug Statutes Aren’t Divisible.

September 6, 2016
By Hanging Out with Carl Gunn


  • A Tenth Circuit case supports the argument that the California drug statutes aren’t divisible and the holding to the contrary in Coronado v. Holder, 759 F.3d 977 (9th Cir. 2014), is wrong.
  • The Tenth Circuit case does hold Coronado’s ultimate holding was correct, but it bases that holding on a conclusion that jury unanimity on statutory alternatives is not required for a statute to be divisible, and that reasoning was rejected in the Supreme Court’s subsequent decision in Mathis v. United States, 136 S. Ct. 2243 (2016).
  • What remains standing in the Tenth Circuit case is its conclusion that California case law does not require jury unanimity on the type of controlled substance, which makes the California drug statutes indivisible under Mathis.



To add more to the earlier posts questioning the divisibility of the California drug statutes because of a failure to require unanimity on the type of controlled substance (see last week’s post, “An Update on Mathis’s Effect on the Ninth Circuit Case Law Holding the California Drug Statutes Divisible”; “Mathis May Open Up More Doors Than You Think,” also in the August 2016 link at the right; “Don’t Give Up On the Challenge to the California Drug Statutes’ Divisibility,” in the April 2015 link at the right; and “Still More on Descamps: An Application of Last Week’s Post,” in the September 2013 link at the right), I recently ran across a Tenth Circuit case supporting our position that jury unanimity isn’t required and so the statute isn’t divisible.  The case is United States v. Trent, 767 F.3d 1046 (10th Cir. 2014).

While the statute directly at issue in Trent was a different drug statute – specifically, the Oklahoma conspiracy statute as applied to Oklahoma’s manufacturing a controlled substance statute, see id. at 1052 – Trent considered in some depth the California drug statutes and the Ninth Circuit’s decision holding them divisible in Coronado v. Holder, 759 F.3d 977 (9th Cir. 2014).  See Trent, 767 F.3d at 1056, 1059-60.  Trent opined in the end that “the Ninth Circuit got it right in Coronado,” Trent, 767 F.3d at 1060, but not because California law requires jury unanimity on the type of controlled substance.  Instead, Trent opined that a finite list of alternatives makes a statute divisible even if they aren’t “elements” upon which a jury has to unanimously agree.  The court reasoned:

At times (as with the California drug statutes) the alternative statutory phrases may not be “elements” in the full sense of the term as used in Richardson [v. United States, 526 U.S. 813 (1999)] and Schad [v. Arizona, 501 U.S. 624 (1991)], but for the purposes of the modified-categorical-approach analysis, that “shortcoming” is generally irrelevant.  We think that is the thrust of the Court’s response to Justice Alito’s Descamps [v. United States, 133 S. Ct. 2276 (2013)] dissent, in which he argued that the Court’s precedents had not required that the alternative statutory phrases be elements in the traditional sense.  The Court wrote:

[I]f the dissent’s real point is that distinguishing between ‘alternative elements’ and ‘alternative means’ is difficult, we can see no real-world reason to worry.  Whatever a statute lists (whether elements or means), the documents we approved in Taylor [v. U.S., 495 U.S. 575, 110 S. Ct. 2143, 109 L. Ed. 2d 607 (1990)] and Shepard [v. U.S., 544 U.S. 13, 125 S. Ct. 1254, 161 L. Ed. 2d 295 (2005)] – i.e., indictment, jury instructions, plea colloquy, and plea agreement – would reflect the crime’s elements.  So a court need not parse state law in the way the dissent suggests: When a state law is drafted in the alternative, the court merely resorts to the approved documents and compares the elements revealed there to those of the generic offense.

Descamps, 133 S. Ct. at 2285 n. 2.

Trent, 767 F.3d at 1060-61.

This reasoning is of course no longer defensible after the Supreme Court’s decision in Mathis v. United States, 136 S. Ct. 2243 (2016).  Indeed, Trent was one of the specific cases Mathis cited on the side of the circuit split it rejected.  See Mathis, 136 S. Ct. at 2251 n.1.  The Mathis opinion also rejected the interpretation of its Descamps footnote 2 that the Trent opinion adopted.  See Mathis, 136 S. Ct. at 2255; compare id. at 2264 (Breyer, J., dissenting) (citing Descamps, 133 S. Ct. at 2285 n.2); id. at 2268 (Alito, J., dissenting) (same).

What does remain standing is Trent’s analysis of the California drug statutes, mentioned in passing in the quote two paragraphs above.  Perhaps overlooking the contrary footnote in Coronado – or perhaps recognizing it as a limited and insufficient analysis (see the “Mathis May Open More Doors Than You Think” post suggesting this in the August 2016 link at the right) – Trent considered the very same cases cited in the Judge Hawkins dissent discussed in the April 2015 post cited above (“Don’t Give Up On the Challenge to the California Drug Statutes’ Divisibility”) and concluded California law does not require jury unanimity on the type of controlled substance.  It explained:

[I]n the Richardson/Schad sense, the identity of the drug apparently is not an element.  California case law suggests that the jury need not agree on which controlled substance the defendant possessed.  In Ross v. Municipal Court, 49 Cal. App. 3d 575, 122 Cal. Rptr. 807 (1975), a defendant was charged with using and being under the influence of a controlled substance.  He challenged the complaint on the ground that it did not identify the controlled substance.  The court, noting that the complaint may not have identified the controlled substance because it was not known, held that the complaint was adequate even though “it did not tell [the defendant] the means by which he committed the crime.”  Id. at 579, 122 Cal. Rptr. 807 (emphasis added); see People v. Romero, 55 Cal. App. 4th 147, 64 Cal. Rptr. 2d 16, 17, 22 (1997) (stating that in a prior case the court did not have to decide whether the defendant had sold mescaline or had sold LSD because the defendant “was guilty of a single offense, sale of a controlled substance”; pleading a particular controlled substance “does not transmute the offense of possession of a controlled substance into as many different offenses as there are controlled substances”).
Trent, 767 F.3d at 1059-60.  Compare United States v. Ramirez-Macias, 584 Fed. Appx. 818, 820 (9th Cir. 2014) (Hawkins, J., concurring) (also citing Ross and Romero).

This reasoning in Trent is directly on point and is both more persuasive and more in-depth than the three-sentence Coronado footnote I discussed in the post last month.  Add it to the arguments in that post and last week’s post and keep pushing the issue.