Still More on Descamps: An Application of Last Week’s Post

September 17, 2013
By Hanging Out with Carl Gunn


  • Remember that convictions under the California drug statutes don’t qualify as drug trafficking offenses under the straight categorical approach because the California controlled substance schedules include substances that aren’t in the federal controlled substance schedules.
  • The type of controlled substance may not be an element on which jurors must unanimously agree under California law.
  • If the type of controlled substance isn’t an element on which jurors must unanimously agree, then the statute isn’t a divisible statute under Descamps and applying the modified categorical approach to California drug convictions is impermissible.


The general Descamps (Descamps v. United States, 133 S. Ct. 2276 (2013)) issue I talked about last week has come up in a specific context in recent litigation in the Central District of California – and, I think, the Southern District of California – over application of the modified categorical approach to the California drug statutes. You may recall my prior posts aboutUnited States v. LealVega, 680 F.3d 1160 (9th Cir. 2012) (see my past posts – “Who Controls What’s a Controlled Substance?,” posted April 11, 2012, and “Some Good News and Some Bad News on Who Controls What’s a Controlled Substance,” posted June 5, 2012 – through the links at the right), in which the Ninth Circuit held that (1) convictions under the California drug statutes don’t qualify as federal “drug trafficking offenses” under the categorical approach because the California controlled substance schedules include substances that aren’t included in the federal controlled substance schedules, see id. at 1167, but (2) the modified categorical approach, which the Ninth Circuit at that time applied to even non-divisible statutes, could be used to bring the conviction within the federal “drug trafficking offense” definition, see id. at 1167-69.

A couple of issues are presented when considering whetherDescamps applies to the California statutes. First, there’s an issue – which I’m not sure has been raised yet – about whether a statute can be made divisible through its incorporation of another statute. The California drug statutes don’t themselves contain a list of types of controlled substances but reference other statutes which contain such a list. See, e.g., Cal. Health and Safety Code § 11351. This raises the question of whether such an incorporation by reference can make a statute divisible. Perhaps it can, but we won’t know unless and until we raise the issue.

Then the second issue, which has been litigated – and goes back to the general issue discussed in last week’s post – is whether the list of controlled substances is a list of alternative “elements” or merely a list of “alternative means.” As a test of that, does the jury have to unanimously find the type of controlled substance, or can the jurors disagree on the particular substance so long as they all agree it was one of the controlled substances in the list? For some sample briefing on the issue, see the sentencing brief attached here, written by one of our great deputy federal public defenders in this district, Firdaus Dordi, but I’ll summarize and add my two cents worth.

Perhaps surprisingly, but perhaps not, there isn’t any California case directly on point. (Remember you have to go to the state courts’ interpretation of their statutes in applying the categorical and modified categorical approaches.) But there are some cases that are suggestive. To begin, there are two cases where the defendants were charged with being under the influence of a controlled substance – Ross v. Municipal Court, 49 Cal. App. 3d 575 (1975) and Sallas v. Municipal Court, 86 Cal. App. 3d 737 (1978). Those cases strongly suggest that there does not need to be a unanimous finding of a specific controlled substance. The issue actually presented in those cases – on which the two courts disagreed – was whether an under the influence of a controlled substance complaint had to allege the controlled substance which the defendant was under the influence of. Rossheld the complaint didn’t need to allege the controlled substance, though the prosecution did need to provide prompt discovery. See id., 49 Cal. App. 3d at 579. Sallas, in contrast, held the complaint did need to allege the controlled substance,see id., 86 Cal. App. 3d at 742-43, though it indicated the complaint could allege more than one substance.

More noteworthy for our purposes is that both courts acknowledged and seemed to accept the practical impossibility of identifying a precise substance. The court in Ross noted “the obvious reason . . . that [the People] had no reasonably certain way of knowing what that substance was as they do have in possession and sale cases from chemical tests of the substance involved,” id., 49 Cal. App. 3d at 578, which would seem to apply to proof at trial just as much as allegations in the complaint. AndSallas qualified its holding with an explanation that also applies as equally to proof at trial as allegations in a complaint:

We do not hold, or suggest, that in such prosecutions the charge must pinpoint one of the many controlled substances of the statute. It may be that among them are families, or classes, or chemical groupings, of such substances with substantially the same qualities, symptoms and behavioral effects, and that constitutional demands would be satisfied by charging use or abuse of one of the substances of that family, class or group.

Id., 86 Cal. App. 3d at 744. This reasoning, like the reasoning inRoss, would seem to apply equally to proof at trial. These cases thus clearly imply, if they do not hold, that the prosecution does not need to prove – and the jury does not need to unanimously find – the precise controlled substance which the defendant is under the influence of.

One could argue that these under the influence cases don’t reflect how the California courts would rule in sale or possession for sale cases where the prosecutors have the actual substance to test. But there is dictum in at least one case, albeit a simple possession case. The case is People v. Romero, 55 Cal. App. 4th 147 (1997), and it’s actually noteworthy for two reasons. First, it notes the “pleading requirement” in Sallas and Ross without any suggestion that those cases are distinguishable because they are under the influence cases. Second, Romero then states that “this pleading requirement does not transmute the offense of possession of a controlled substance into as many different offenses as there are controlled substances.” Id. at 156. This statement that the statute does not create “different offenses” stands in direct contrast to language from Descamps, which I quoted in my post last week, that a divisible statute “effectively creates ‘several different . . . crimes.’” Descamps, 133 S. Ct. at 2285 (quoting Nijhawan v. Holder, 557 U.S. 29, 41 (2009)) (emphasis added). See also Descamps, 133 S. Ct. at 2285 n.2 (stating that Taylor v. United States, 495 U.S. 575 (1990),Shepard v. United States, 544 U.S. 13 (2005), and Johnson v. United States, 559 U.S. 133 (2010) all rested on “the explicit premise” that the underlying state statutes “contain[ed] statutory phrases that cover several different . . . crimes, not several different methods of committing one offense” (internal quotations omitted)).

Though federal case law on federal statutes does not control the rule for California statutes, it is interesting to note that there is dictum suggesting unanimity on the substance is not required in a federal prosecution either. The Ninth Circuit stated in United States v. Hunt, 656 F.3d 906 (9th Cir. 2011) that “drug quantity and type are not formal elements of the offenses set out in 21 U.S.C. § 841” and that “a defendant can plead guilty to 21 U.S.C. § 841(a) without admitting the type of drug.” Hunt, 656 F.3d at 912 (citing United States v. Thomas, 355 F.3d 1191, 1195, 1198 (9th Cir. 2004)). Jury findings and/or a defendant admission may be required in some cases, but that’s only because drug type sometimes affects the maximum sentence and thereby triggers the rule of Apprendi v. New Jersey, 530 U.S. 466 (2000). As the Ninth Circuit explained in United States v. Toliver, 351 F.3d 423 (9th Cir. 2003):

The drug quantity and type determinations are [in some instances] the “functional equivalent[s] of an element of a greater offense,” because they are facts that have the potential to increase the statutory maximum sentence.Apprendi, 530 U.S. at 494 n.19, 120 S. Ct. 2348. For purposes of Apprendi, then, these facts must be submitted to the jury, . . . .

There is a difference, however, between a formal offense “element” . . . and the “functional equivalent of an element” under Apprendi. We label a fact an “element” under Apprendi only because it has a particular effect. . . .

Indeed, drug quantity and type need only be treated as “functional equivalent[s]” of formal elements of an offense when a particular drug type or quantity finding would expose a defendant to an increased maximum statutory sentence, as they do not constitute formal elements of separate and distinct offenses under section 841(b)(1). When drug quantity or type would not have such an effect, they need not be accorded this special treatment.

Toliver, 351 F.3d at 430 (emphasis added). Thus, even federal law may not treat drug type as an “element” which the defendant must admit or the jury must unanimously agree upon, at least where it doesn’t affect the statutory maximum sentence.

The bottom line is there’s a real interesting and viable argument that could make a big difference in a lot of our cases. So get out there and push it.