Don’t Give Up on the Challenge to the California Drug Statutes’ Divisibility

April 21, 2015
By Hanging Out with Carl Gunn


  • Judge Graber’s dissent from the denial of rehearing en banc in Rendon v. Holder recognizes that the panel opinion in Rendon raises doubt about an earlier decision in Coronado v. Holder, 759 F.3d 977 (9th Cir. 2014) that rejects a challenge to the divisibility of the California drug statutes based on their failure to require unanimity on the type of drug.
  • Coronado is in fact subject to attack because (1) its analysis is minimal; (2) the state law authority it cites doesn’t really support its holding and the opinion ignores other state authority; and (3) at one last Ninth Circuit panel has suggested the holding in Coronado should be reconsidered en banc.
  • Also keep in mind that there’s an additional potential challenge to the divisibility of some of the California drug statutes because they criminalize multiple types of conduct, including transportation for personal use, and don’t appear to require unanimity on the type of conduct in which the defendant engaged.



Some of you may recall a post I put up three months after Descamps suggesting an argument that the California drug statutes aren’t divisible because juries aren’t required to unanimously agree on the type of drug involved in the offense.  (See “Still More on Descamps: An Application of Last Week’s Post” in the September 2013 link at the right.)  That argument was rejected, albeit in a footnote with relatively minimal analysis and no discussion of the cases cited in my post, in Coronado v. Holder, 759 F.3d 977 (9th Cir. 2014).  See id. at 985 n.4.

Judge Graber’s dissent from the denial of rehearing en banc in Rendon v. Holder which I discussed in my post last week recognizes that the panel opinion in Rendon raises doubt about Coronado.  She notes that “at least one judge questioned the correctness of Coronado under Rendon’s approach.”  Rendon v. Holder, ___ F.3d ___, 2015 WL 1474921, at *5 (9th Cir. April 2, 2015).  The doubt was expressed by Judge Hawkins in a concurring opinion in United States v. Ramirez-Macias, 584 Fed. Appx. 818 (9th Cir. 2014).  Judge Hawkins noted that “[b]oth sides reasonably can marshal intermediate appellate case law in their favor,” and went on to cite some of the same cases cited in my prior post.  Id. at 820.  (No, I’m not claiming he cited them because they were in my post, or even that he’d read my post.)  He then went even further and suggested that “[b]ecause the magnitude of this issue is great and because we should tread carefully as we interpret unclear areas of state law, the en banc court may wish to consider these issues or certify the jury unanimity question to the Supreme Court of California.”  Id.  While the docket reflects that a petition for rehearing was denied in that case (just the day before the order denying en banc review, and accompanying dissenting opinions, were filed in Rendon), the docket also reflects all the judges in Ramirez-Macias voted for and/or recommended en banc review.  Further, Judge Graber noted multiple pending petitions for rehearing in her Rendon dissent, not just the petition in Ramirez-MaciasSee id., 2015 WL 1474921, at *5.

Coronado does seem subject to attack, moreover.  It was decided before Rendon and, while it doesn’t reject the rule that something can be an “element” only if jury unanimity is required, it certainly doesn’t embrace that rule.  It simply states in a three-sentence footnote:

Coronado further argues that “the precise controlled substance possessed is not an essential element” of § 11377(a).  Neither case he cites supports this contention.  See People v. Palaschak, 9 Cal. 4th 1236, 40 Cal. Rptr. 2d 722, 893 P.2d 717, 720-21 (1995) (holding that an offender may be convicted of the offense of possessing drugs despite having ingested those drugs); People v. Martin, 169 Cal. App. 4th 822, 86 Cal. Rptr. 3d 858, 861-62 (2008) (finding no error where the defense failed to object to the specificity of the pleadings and the defendant was not prejudiced by the conflicting references to “cocaine” and “cocaine base” because the penalty of the offense was the same).  The jury instructions applicable to this offense also undermine Coronado’s argument.  See CALCRIM No. 2304 (2013); CALJIC 12.00 (2013).

Coronado, 759 F.3d at 985 n.4.

This reasoning falls short in several respects.  First, it ignores other cases that support the argument, which are cited in my prior post.  Second, the pattern jury instructions the footnote cites don’t really suggest anything one way or the other.  The CALJIC instruction indicates that the court should “[i]nsert the name of the controlled substance as alleged in the information,” which presumably means all of the substances alleged if more than one is alleged and/or just “controlled substance” if the specific type isn’t alleged.  The CALCRIM instruction simply tells the court to “insert type of controlled substance,” but doesn’t indicate that the court can’t enter more than one type if there’s more than one possibility.  And nothing in either instruction tells the jury it has to unanimously agree on the controlled substance if it’s given more than one option.

In sum, it’s worth trying to take Judge Hawkins up on his invitation for possible en banc review.  Coronado was decided before Rendon clearly established that jury unanimity is a requirement for divisibility, it has minimal analysis, it ignores pertinent state case law, and it cites jury instruction authority that is at best ambiguous about unanimity.

Finally, remember a second, alternative challenge to the divisibility of some of the California drug statutes.  That’s an argument from our Los Angeles Federal Public Defender office about the absence of a jury unanimity requirement in the California statutes criminalizing sale of drugs, such as California Health and Safety Code § 11352 (for most controlled substances) and 11360 (for marijuana).  Those statutes apply (or at least they did until the statute was amended in 2013, and remember that what matters is the statute as it was written at the time the defendant was convicted, not the statute as it’s written now) not just to sale but also to transportation for personal use, and there’s a very plausible argument that juries aren’t required to unanimously agree on which conduct the defendant engaged in.  For an outline of this argument and some sample pleadings, see the prior post mentioned in passing in last week’s post – entitled, “Another Descamps Angle on a California Drug Statute” – in the May 2014 link at the right.