BLOG BULLETS:

• Mathis not only upholds Rendon but raises doubt about the Ninth Circuit’s holding in Coronado v. Holder, 759 F.3d 977 (9th Cir. 2014), that the overbroad California drug statutes are divisible.
• One line of attack is Mathis’s citation of California Penal Code § 952 as an example of a state statute which courts could look to in deciding whether a list of alternatives is a list of elements; California courts have held this statute does not require allegation of a specific controlled substance.
• A sample supplemental letter brief recently filed in a pending appeal suggests several other lines of attack, including (1) a more recent Ninth Circuit case raising doubt about Coronado’s reliance on “fill in the controlled substance” model instructions, (2) Coronado’s failure to point to any case law or statutory signals like those described in Mathis, and (3) a “demand for certainty” which Mathis emphasizes is required.

 

NOW THE BLOG:

In my post last week, I talked about how the Supreme Court’s recent opinion in Mathis v. United States, 136 S. Ct. 2243 (2016), affirmed this Court’s holding in Rendon v. Holder, 764 F.3d 1077 (9th Cir. 2014), on what’s required for a statute with a list of alternatives to be found divisible and thereby allow use of the “modified categorical approach” in categorizing a prior conviction.  Rendon held, and Mathis affirmed, that the list of alternatives has to be a list of elements between which the jury has to unanimously choose, not a list of alternative means on which the jury doesn’t need to agree.

Mathis may do more than just leave standing what’s already established by Rendon and other Ninth Circuit cases, though.  Some recent e-mail traffic and briefing I’ve been exposed to suggests Mathis goes further and affirmatively undercuts at least one Ninth Circuit case.  That’s Coronado v. Holder, 759 F.3d 977 (9th Cir. 2014), in which the court held the California drug statutes – which are overbroad because the California controlled substance schedules include substances that aren’t included in the federal controlled substance schedules, see United States v. Leal-Vega, 680 F.3d 1160, 1167 (9th Cir. 2012) (posted about long ago in “Some Good News and Some Bad News on Who Controls What’s a Controlled Substance,” which can be found in the June 2012 link at the right) – are divisible.

The analysis of the divisibility issue in Coronado, while enough to be treated as controlling precedent (barely), is hardly in depth – or persuasive.  It disposes of the defendant’s argument that the type of controlled substance isn’t an element in a three-sentence footnote, made up of one sentence noting the argument; a second sentence simply asserting that “[n]either case he cites supports this contention”; and a third sentence stating the California model jury instructions “also undermine [the defendant’s] argument.”  Id., 759 F.3d at 985.  The opinion doesn’t describe how the jury instructions undermine the defendant’s argument – or even describe the instructions’ language – but independent examination of the instructions cited reveals they simply state, “The controlled substance was <insert type of controlled substance >,” CALCRIM 2304 (italics in original), or, “A person exercised control over or the right to control over an amount of (controlled substance), a controlled substance,” CALJIC 12.00, without saying only one controlled substance can be inserted.  I noted in a post last year that one Ninth Circuit judge – Judge Hawkins – has suggested that “[b]oth sides reasonably can marshal intermediate appellate case law in their favor,” and en banc review might therefore be warranted.  (See the post entitled “Don’t Give Up on the Challenge to the California Drug Statutes’ Divisibility” in the April 2015 link at the right, discussing Judge Hawkins’ concurring opinion in United States v. Ramirez-Macias, 584 Fed. Appx. 818 (9th Cir. 2014).)

Mathis may pave the way to overruling Coronado without en banc review, however, and I’ve seen a couple of arguments to that effect.  First – with apologies for not crediting the author, whom I’m told wants to remain anonymous and whose name I haven’t been given – I’ve seen the following argument lifted from a Rule 28(j) supplemental authority letter:

In Coronado v. Holder, 759 F.3d 977, 984-85 (9th Cir. 2014), this Court held that the California drug statutes are “divisible” and therefore subject to the modified categorical approach. But this Court did not point to any California law in reaching this determination. In Mathis, the Court specifically pointed to California Penal Code § 952 as the relevant source for determining California “elements versus means” and thus divisible versus indivisible statutes. See Mathis, [136 S. Ct. at 2256]. California cases have held that the specific type of controlled substance need not be alleged under section 952, see, e.g., People v. Howington, 233 Cal. App. 3d 1052, 1058-59 (1991); Ross v. Municipal Court, 49 Cal. App. 3d 575, 579 (1975); People v. Gelardi, 77 Cal. App. 2d 467, 470-72 (1946), and therefore the California drug statutes are not divisible. Because Coronado did not consider section 952 or this California case law, its reasoning has been undercut by Mathis, and therefore the opinion is no longer controlling. See, e.g., United States v. Lindsey, 634 F.3d 541, 549 (9th Cir. 2011) (citing Miller v. Gammie, 335 F.3d 889 (9th Cir. 2003) (en banc)).

Recall that the last case cited in this argument – Miller v. Gammie – allows a mere panel to overrule a prior case when the prior case is “clearly irreconcilable” with intervening Supreme Court or en banc precedent.  See id. at 900.

There’s also some other other angles developed in some supplemental briefing filed by DFPD Brianna Mircheff in our Los Angeles office, who’s becoming something of a brain trust on these categorical approach issues.  Her case is exciting because the panel sua sponte ordered supplemental briefing on the issue, in an order attached here.  Brianna’s actual briefing is attached here.  Just a summary doesn’t really do it justice, but there are several key points she makes.  First, she suggests that Coronado’s analysis is passing at best and the model jury instructions it relies on are ambiguous at best.  She also cites a recent case – Chavis-Solis v. Lynch, 803 F.3d 1004 (9th Cir. 2015) – that considered a state child pornography model instruction which directs courts to fill in conduct just like the model drug instructions cited in Coronado direct courts to fill in a controlled substance or substances.  Chavis-Solis suggests a wonderful response to Coronado’s apparent reliance on the fill in the controlled substance direction in the model instructions it relied on.  Chavis-Solis reasoned:

[T]he government reads too much into the fact that California’s model jury instructions have parentheses or brackets around the laundry list of acts that qualify as sexual conduct.  All the model jury instructions reveal is that at least one type of sexual conduct must be filled in so that the jury instruction will be complete.  Similarly, all we really learn from the government’s citation to People v. Hachler, No. A113880, 2007 WL 417622, at *7 (Cal. Ct. App. Nov. 27, 2007), is the unremarkable proposition that a jury must unanimously conclude that any given image depicts a minor engaged in real or simulated sexual conduct.  But this does not tell us that California juries must unanimously agree on which sexual conduct each image contains.

Chavez-Solis, 803 F.3d at 1013 (citations omitted).

Second, Brianna points out that Coronado’s focus on the mere listing of alternatives without an in depth analysis about whether a jury has to unanimously choose one of them is inconsistent with Mathis’s focus.  She points out that Coronado looked to nothing like the things Mathis said would show a list of alternatives was a list of elements.  It pointed to no case law, and it pointed to no statutory provisions like those Mathis suggested a court might find (differences in penalty, statutory requirements of what needs to be alleged, etc.).

Third, Brianna notes a point made by Mathis that my summary last week brushed by – that the original categorial approach case of Taylor v. United States, 495 U.S. 575 (1990), as well as the Court’s later cases, have what Mathis labeled a “demand for certainty.”  Mathis, 136 S. Ct. at 2257 (quoting Shepard v. United States, 544 U.S. 13, 21 (2005)).  Mathis recognizes that in some cases courts simply won’t be able to tell whether a list of alternatives is a list of elements or a list of mere alternative means and in that case, “a sentencing judge will not be able to satisfy ‘Taylor’s demand for certainty’ when determining whether a defendant was convicted of a generic offense.”  Mathis, 136 S. Ct. at 2257 (quoting Shepard, 544 U.S. at 21).

Even if these efforts to persuade a panel that Coronado is “clearly irreconcilable” with Mathis fail, they beef up Judge Hawkins’ suggestion that en banc review may be appropriate.  Consider raising the issue in order to preserve it for possible en banc review down the road.  When you have one of the Court’s own judges suggesting the possibility, . . . .