Did You Know that “And” Really Means “Or”? (At Least Every Now and Then)

October 16, 2012
By Hanging Out with Carl Gunn


  • Charges of alternative ways of committing a crime require proof of just one of the alternatives even when the charge is in the conjunctive, so a plea admits only one of the alternatives alleged, not every one.
  • This means the prior conviction doesn’t qualify under the categorical approach for evaluating prior convictions for federal enhancement provisions if any one of the alternatives alleged doesn’t qualify, at least absent some other narrowing judicial record.
  • The Ninth Circuit’s Snellenberger case suggesting the contrary has been overruled.


Last week, I wrote about some good news in the categorical/modified categorical approach area (see “They May Reverse the Ninth Again! (But This Time We Want It.)” linked at right), and I left you hanging with the promise of more good news to come “next week.” Well, “next week” is now this week, and it’s time for another post and time to share this other good news. But as always (or at least usually), some background on the problem and the issue, which hopefully provides a few extra nuggets of knowledge along the way.

You may have noticed that most criminal statutes provide for multiple, alternative ways of committing a crime. As one example, the California statute for sale of a controlled substance applies not just to people who sell a controlled substance, but to “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. Cal. Health and Safety Code § 11352(a). The word “or” means, as we would expect, that a person violates this statute if he does any one of those things. Put in more technical terms, the statute is worded in the “disjunctive.”

You may also have noticed that almost every charging instrument in California, or at least the vast majority of them, alleges all, or at least most, of the subject statute’s different alternatives rather than choosing just the one. (And most federal indictments do the same, by the way.) But the charging instrument almost always uses the word “and” instead of “or” (again, federal indictments do the same; this isn’t just some strange California thing), so an information charging a defendant with violating California Health and Safety Code § 11352(a) typically alleges that the defendant “did transport, import into this state, sell, furnish, administer, and give away,and offer to transport, import into this state, sell, furnish, administer, and give away, and attempt to import into this state, or transport” a controlled substance. (Emphasis added.) Put in more technical terms, the charge is in the “conjunctive” even though the statute is in the “disjunctive.”

Read literally, this would seem to require the prosecutor to prove that the defendant did every one of those things, which would put most of us defense attorneys in heaven. But it’s well established that even though the charging document uses the word “and,” the prosecutor needs to prove and the jury needs to find only one of the alternatives alleged. As the Ninth Circuit noted in a case which is itself now quite old:

Although the practice is based upon reasoning which is obscure with age, it is still proper to charge conjunctively the elements of a crime which is denounced disjunctively in the statute, and a finding of any one of the said elements will support a verdict of guilty.

Arrellanes v. United States, 302 F.2d 603, 609 (9th Cir. 1962).See also Turner v. United States, 396 U.S. 398, 420 (1970) (“The general rule is that when a jury returns a guilty verdict on an indictment charging several acts in the conjunctive, as Turner’s indictment did, the verdict stands if the evidence is sufficient with respect to any one of the acts charged.”)

What does this have to do with the categorical and modified categorical approaches that we’ve been discussing? It means that a defendant convicted in a trial on this sort of charging document could have been convicted of any one of the alternatives, at least in the absence of narrowing jury instructions which Taylor v. United States, 495 U.S. 575 (1990) says can be considered under the modified categorical approach. (For more on this, see the April 3, 2012 blog titled “Enhance Your Litigation Skills by Challenging Enhancements,” which can be found through the April 2012 link at the right.) That in turn means the conviction doesn’t qualify under the federal definition if any one of the alternatives charged is insufficient. California Health and Safety Code § 11352 is actually a good example, because as pointed out in the April 17, 2012 blog titled “More on the Categorical Approach for Applying Federal Prior Conviction Enhancement Statutes” (also found through the April, 2012 link at the right), section 11352’s “transports” alternative includes transportation for personal use, which doesn’t qualify as the sort of drug trafficking offense that’s required for various federal sentencing guidelines enhancements such as the career offender guideline, the felon in possession of a firearm guideline, and the illegal reentry guideline.

So what does this suggest about the effect of a conviction under one of these charging documents when the conviction was by guilty plea rather than trial? Logically, the result ought to be the same; because the defendant could have pled guilty by admitting any one of the alternatives, the conviction shouldn’t qualify if any one of the alternatives charged is insufficient, at least absent some other judicial record narrowing the plea to a specific one of the alternatives. As the Ninth Circuit explained in a slightly different context in United States v. Cazares, 121 F.3d 1241 (9th Cir. 1997):

The inference to be drawn from these decisions [holding that the effect of a guilty plea is the same as if the defendant had been found guilty by a jury] is that allegations not necessary to be proved for a conviction . . . are not admitted by a plea. Any other rule would be inconsistent with the rationale underlying these decisions that “[t]he effect [of a guilty plea] is the same as if [defendant] had been tried before a jury and had been found guilty on evidence covering all the material facts.” (Citation omitted.) Under the government’s argument, [the defendant’s] guilty plea would be given greater effect than [the codefendant’s] conviction of the same offense after a jury trial.

Id. at 1247. This case and its rationale was applied by the Ninth Circuit to the categorical approach in Malta-Espinoza v. Gonzales, 478 F.3d 1080 (9th Cir. 2007), see id. at 1082 & n.3.

Unfortunately, the Ninth Circuit sitting en banc arguably decided the question differently in United States v. Snellenberger, 548 F.3d 699 (9th Cir. 2008) (en banc). It did this seemingly without really thinking about it, which was probably because it wasn’t a central subject of the briefing in the case and the court was badly fractured over other issues. In rejecting a backup defense argument that the burglary charge in that case included premises other than the “building” that the federal definition of “burglary” requires, the court simplistically reasoned, in just two sentences and without any consideration of the above case law and its reasoning:

[The minute order] establish[es] that [the defendant] pleaded nolo contendere to count 1, which charged him with ‘enter[ing] an inhabited dwelling house and trailer coach and inhabited portion of a building occupied by Peter MacPherson, with the intent to commit larceny and any felony.” Because the three noun phrases are connected by “and” rather than “or,” the charging document and minute order . . . establish that [the defendant] committed burglary of a dwelling.

Id. at 701.

This bad news segues into the good news which is the subject of this post, however. Last month, in another en banc decision –Young v. Holder, No. 07-70949, 2012 WL 4074668 (9th Cir. Sept. 17, 2012) (en banc) (first brought to our attention here in Los Angeles by DFPD Brianna Fuller) – the court considered the issue, as well as the foregoing case law, more carefully. Citing both Malta-Espinoza and Cazares and their reasoning – and case law from other circuits on the issue – the court overruledSnellenberger’s passing holding and went back to the holdings in the prior cases. As summed up at the end of the court’s analysis:

In sum, when either “A” or “B” could support a conviction, a defendant who pleads guilty to a charging document alleging “A and B” admits only “A” or “B.” Thus, when the record of conviction consists only of a charging document that includes several theories of the crime, at least one of which would not qualify as a predicate conviction, then the record is inconclusive under the modified categorical approach.

Young, No. 07-70949, 2012 WL 4074668, at *8 (emphasis in original).

So “and” in a charging document means “or” in every context. Remember that when you’re parsing those court records under the modified categorical approach.