Alternatives include:

CONTROLLED SUBSTANCES " CALIFORNIA -- ARGUMENT " IDENTITY OF THE DRUG IS NOT AN ELEMENT OF CALIFORNIA DRUG OFFENSES, SO MODIFIED CATEGORICAL ANALYSIS IS IMPROPER TO IDENTIFY DRUG
Convictions under California Health & Safety Code 11377 and 11378 do not categorically qualify as generic controlled substance offenses under settled case law. Moreover, because the statute of conviction is not divisible in the sense used by the Supreme Court in Descamps v. United States, 133 S. Ct. 2276 (2013), the Court cannot proceed to examine the record of conviction under the modified categorical analysis of the statute. Consequently, the convictions do not qualify as removable offenses. The Supreme Court in Descamps clarified the operation of the categorical analysis under Taylor v. United States, 495 U.S. 575 (1990). Descamps resolved a split in circuit authority regarding the scope and function of the modified categorical analysis (MCA). Contrary to the Ninth Circuits prior position, but consistent with the majority of other circuit courts, Descamps indicates that the MCA is not an exception to the first-stage categorical analysis of Taylor, but a supplemental tool in aid of the inquiry into the identity of the offense of conviction that is applied only in limited circumstances. See 133 S. Ct. at 2285. In particular, the MCA is resorted to: (1) only when the statute of conviction being compared to the generic offense for Taylor purposes is divisible; and (2) only to determine which alternative offense covered by the divisible statute was the basis of the conviction, not to determine what conduct underlies the predicate conviction. Under Descamps, the reasoning of the majority in United States v. Aguila Montes de Oca, 655 F.3d 915 (9th Cir. 2011) (en banc) (per curiam), is firmly rejected, so that the MCA cannot be consulted where the statute of conviction is indivisible. See id. at 2286-91. Moreover, Descamps roundly disapproved the Aguila-Montes majoritys implementation of the MCA to ferret out facts about the underlying conviction. See id. at 2287 (That approach . . . turns an elements-based inquiry into an evidence-based one.). Instead, the MCA can be used only to identify the specific subpart (offense) within the divisible statute of which the defendant was convicted. See id. at 2285 (Applied in that way"which is the only way we have ever allowed"the modified approach merely helps implement the categorical approach when a defendant was convicted of violating a divisible statute.). In Descampss case, he was convicted of burglary under California Penal Code 459. That statute defines the offense in terms of an overbroad element of entry that does not require the generic element required for federal burglary of an unprivileged or unlawful entry. See id. at 2282; accord Aguila-Montes, 655 F.3d at 944. The question was whether the statute would qualify as generic if the MCA were consulted. However, unlike the majority in Aguila-Montes, the Supreme Court clarified in Descamps that the second-stage analysis could never be employed to narrow Penal Code 459, because the statute was not only overbroad, but indivisible, and so the MCA is inapplicable: [W]e hold that sentencing courts may not apply the modified categorical approach when the crime of which the defendant was convicted has a single, indivisible set of elements. Id. at 2282. The Court also made clear that although Penal Code 459 contains a number of alternative locations which can be burgled (e.g., a house, a room, a mill, an outhouse, an airplane, a mine, etc.), these were just alternate target locations, different means for satisfying the one element of entry. Because the element entry was overbroad and indivisible, the MCA has no role to play in this case. The dispute here does not concern any list of alternative elements. Rather, it involves a simple discrepancy between generic burglary and the crime established in 459. The former requires an unlawful entry along the lines of breaking and entering. The latter does not, and indeed covers a lawful entry into a store, for example, with intent to commit simple shoplifting, as even the Government acknowledges. In Taylors words, then, Penal Code 459 define[s] burglary more broadly than the generic offense. And because that is true"because in California, to get a conviction, the prosecution need not prove that Descamps broke and entered"a 459 violation cannot serve as an ACCA predicate. Whether Descamps did in fact break and enter makes no difference. And likewise, whether he ever admitted to breaking and entering is irrelevant. Id. at 2285-86 (citations omitted). Applying Descamps, the Fourth Circuit Court of Appeals recently refused to employ the MCA for a Maryland sexual abuse of a child statute, holding that the enumerated list of ways to violate the law were alternative means rather than elements, and, as such, were irrelevant to our inquiry. United States v. Cabrera-Umanzor, 728 F.3d 347, 353 (4th Cir. 2013)(citing Descamps, 133 S.Ct. at 2285 n. 2). The same considerations apply here to California Health & Safety Code 11377 and 11378. Just like the overbroad entry in 459, the term controlled substance encountered in Health & Safety Code 11377 and 11378 is recognized as categorically overbroad, since it includes a broader range of substances than is found in the generic schedules of the federal Controlled Substances Act. See Ruiz-Vidal v. Gonzales, 473 F.3d 1072, 1076-78 (9th Cir. 2007); United States v. Leal-Vega, 680 F.3d 1160, 1167 (9th Cir. 2012). Thus, when a state complaint or information charges an offense involving a controlled substance, that term is overbroad and indivisible as is the entry in the burglary statute. Although controlled substance, like entry, can be subdivided into additional means by which the element can be satisfied, this does not create alternative elements in the sense used in Descamps, 133 S. Ct. at 2283-85. This is clear in both federal and state law. The Ninth Circuit has held that the identity of the specific controlled substance is not an element of a federal drug crime. See United States v. Hunt, 656 F.3d 906, 912 (9th Cir. 2011) (holding that pleading to a count alleging cocaine was not an admission to that fact, since We have held, however, that drug quantity and type are not formal elements of the offenses set out in 21 U.S.C. 841.). The same is true in California law: the identity of the drug is not an element that must be charged in the information, but simply a means of committing the offense. See Ross v. Municipal Court, 122 Cal. Rptr. 807, 809-10 (Ct. App. 1975)(the name of drug need not be charged in complaint because it is only a means by which [defendant] committed the crimeof being under the influence.) In fact, the California courts have held there is no fatal variance if the type of drug charged differs from the one proved at trial, which could not be the case if the identity of the drug were an element. See People v. Martin, 86 Cal. Rptr. 3d 858, 861 (Ct. App. 2008); People v. Bryant, 2007 WL 2356072, at *2 (Cal. Ct. App. 2007) (unpublished); People v. Howington, 284 Cal. Rptr. 883, 888 (Ct. App. 1991); People v. Gelardi, 175 P.2d 855, 857 (Cal. Ct. App. 1946) (calling the specification of the drug type in the information mere surplusage), disapproved on other grounds in People v. Perez, 401 P.2d 934 (Cal. 1965). As the Court held in Gelardi, [W]ithout any specification of either opiates or morphine the accusation is sufficient, for it follows the language of the statute, and nothing beyond that is required in the absence of a special demurrer. Ibid. (citing People v. Kinsley, 118 Cal.App. 593, 596)(emphasis added). And because the jury need only find that a controlled substance listed in the statute was involved, and so need not unanimously agree on which drug it was in order to convict, the various substances listed do not create alternative elements rendering the statute divisible and so amenable to the MCA. On this point of requiring jury unanimity, the Descamps majority and dissent were in agreement See Descamps, 133 S. Ct. at 2290 (noting as a reason why a hypothetical, overbroad element of weapon is not narrowed by a jury verdict because [t]he jurors need not all agree on whether the defendant used a gun or a knife or a tire iron); id. at 2296 (Alito, J., dissenting) (By an element, I understand the Court to mean something on which a jury must agree by the vote required to convict under the law of the applicable jurisdiction.). In a broader sense, both the Supreme Court and the Ninth Circuit have at least made clear that for a fact to be employed in the MCA, it must be necessary to sustain the prior conviction. See Moncrieffe v. Holder, 133 S.Ct. 1678, 1684-85 (2013): In other words, to satisfy the categorical approach, a state drug offense must meet two conditions: It must necessarily proscribe conduct that is an offense under the CSA, and the CSA must necessarily prescribe felony punishment for that conduct. Id. at 1685. Likewise, [i]t is not enough that an indictment merely allege a certain fact or that the defendant admit to a fact; the fact must be necessary to convicting that defendant. Aguila-Montes, 655 F.3d at 937. Because under federal and state law, the identity of the specific drug is not necessary to a proper pleading, a valid plea, or jury verdict, drug specifications in 11377 and 11378 do not create alternative elements rendering the statute amenable to the MCA under Descamps, and even if it did, is not a dispositive fact under the second-stage analysis as laid out in Moncrieffe and the surviving portions of Aguila- Montes. See United States v. Cazares, 123 F.3d 1241, 1246-47 (9th Cir. 1997) (guilty plea admits only allegations necessary to be proved for a conviction); Hunt, 656 F.3d at 912 (citing Cazares to hold that a guilty plea to a count containing a to wit: . . . cocaine allegation did not admit the type of drug). Convictions under California Health & Safety Code 11378 and 11377 are not categorically offenses relating to a controlled substance because the California schedule of controlled substances includes substances not federally regulated and, under Descamps, the Court may not use the modified categorical approach for these offenses because the identity of the drug involved in the offense is not an element of the offense. See Descamps v. United States, 133 S. Ct. 2276 (2013). Thanks to Michael Mehr.

CAL POST CON " SAFE HAVENS " CONTROLLED SUBSTANCES OFFENSES " UNIDENTIFIED DRUG " PRACTICE ADVISORY
Summary. It is unnecessary to the validity of a guilty or no contest plea to identify the exact controlled substance, as long as the defendant admits that the substance s/he possessed is on the appropriate California controlled substances schedules. People v. Guy (1980) 107 Cal.App.3d 593, 601, 165 Cal.Rptr. 463 (knowledge of the character of a controlled substance means that the defendant knew it was a controlled substance, but s/he need not have known its precise chemical composition); People v. Garringer (1975) 48 Cal.App.3d 827 [121 Cal.Rptr. 922] (knowledge for the purpose of conviction under Health and Safety Code 11377, is knowledge of the controlled nature of the substance and not its precise chemical composition); CALCRIM 2300, p. 204 (Spring 2008) ("The People do not need to prove that the defendant knew which specific controlled substance (he/she) (sold/ furnished/ administered/ gave away/ transported/ imported), only that (he/she) was aware of the substance's presence and that it was a controlled substance."). Analysis. To convict a defendant of a California controlled substances offense, the District Attorney need not prove that the defendant knew the exact nature or chemical composition of the specific controlled substance at issue. The prosecution need only prove that the defendant knew that the substance was a controlled substance under California law. To establish possession of a controlled substance, the prosecution must prove two kinds of knowledge: (1) knowledge of the fact of possession, and (2) knowledge of the character of the thing possessed. (Witkin, Summary of Cal. Law (2d ed.1988) Criminal Law, 1006, p. 1139.) Proof of knowledge of the character of the thing possessed is almost invariably circumstantial"e.g., physical custody of the drug, attempts to conceal or dispose of it, evasive or contradictory explanations, admissions, etc. (See, e.g., People v. Williams (1971) 5 C.3d 211, 214 [insufficient evidence of knowledge that tablet in defendants constructive possession was restricted dangerous drug].) The only knowledge required to sustain a controlled substance conviction is knowledge of the controlled nature of the substance. Knowledge of the character of a controlled substance means that the defendant knew it was a controlled substance; he or she need not have known its precise chemical composition. (People v. Guy (1980) 107 Cal. App. 3d 593, 601]; see also People v. Garringer (1975) 48 Cal. App. 3d 827, 834"835 [Defendant need not know the chemical name or nature of substance, and may have even been incorrect as to which controlled substance it was, as long as he or she knew it was some controlled substance.].) Any more stringent rule as to knowledge would, for all practical purposes, make the statute inapplicable to anyone who had not personally performed a chemical analysis of the contraband in his possession. Needless to say, such was not the Legislatures intent (People v. Garringer, supra, 48 Cal.App.3d at p. 835.) In People v. Guy, the defendant was stopped for speeding but was found to be in possession of phencyclidine (PCP). He claimed that he thought the PCP was cocaine, having found the substance in a trash can, but he was convicted of possession for sale of PCP. The court of appeals upheld his conviction, finding that knowledge for the purpose of conviction . . . is knowledge of the controlled nature of the substance and not its precise chemical composition. (People v. Guy, supra, 107 Cal. App. 3d at p. 600; see also People v. Romero (1997) 55 Cal. App. 4th 147, 155 [finding defendant guilty of sale and transportation of cocaine, even if he thought he was trafficking exclusively in marijuana, because cocaine and marijuana are both controlled substances.].)

Ninth Circuit

CONVICTION " LEGALLY COGNIZABLE SENTENCE OR FINAL JUDGMENT REQUIRED TO CONSTITUTE CONVICTION FOR DRUG SENTENCE PURPOSES
United States v. Suarez, 682 F.3d 1214 (9th Cir. Jun. 22, 2012) (where a plea never ripens into either a final judgment or a legally cognizable sentence, there is no final prior conviction for purposes of 21 U.S.C. 841(b)(1)(A), which increases punishment for recidivism; deferred action under California Penal Code 1000.1, et seq., is not a "final" conviction for this purpose).

Lower Courts of Ninth Circuit

CAL CRIM DEF " FRAUD OFFENSES " HARVEY WAIVER
The California Supreme Court held that the sentencing court was precluded from sentencing the defendant on the basis of conduct covered in dismissed counts. People v. Harvey (1979) 25 Cal.3d 754. Trial courts therefore accept Harvey waivers from defendants, as part of plea bargains, to allow the court to sentence and impose restitution orders on the basis of conduct covered in dismissed counts. Therefore, the defendant can plead to a single count of a fraud offense, involving an actual loss of $10,000 or less, and obtain dismissal of all other fraud counts, and the court can order restitution for all fraud conduct including conduct covered in dismissed counts, without creating a fraud offense aggravated felony. This is because to constitute a fraud aggravated felony, the loss to the victim(s) from the offense of conviction alone must exceed $10,000. Any loss not caused by the count of conviction, but merely from conduct covered in dismissed counts, does not count for this purpose.

CAL CRIM DEF " SAFE HAVENS " MALICIOUS WITNESS DISSUASION " CRIME OF VIOLENCE " CRIMES OF MORAL TURPITUDE " REALISTIC PROBABILITY OF PROSECUTION
People v. Wahidi, 222 Cal.App.4th 802, 807, 166 Cal.Rptr.3d 416 (2d Dist. Dec. 30, 2013) (defendants request that victim and defendant settle their dispute by Islamic mediation, rather than a criminal case, was held to be both knowing and malicious, within the meaning of the malicious witness dissuasion statute, Penal Code 136.1(a)(2), even though the defendant did not demand the victim drop the charges or threaten any violence: There is no substantial evidence that Wahidi intended to vex, annoy, harm, or injure Khan when Wahidi approached Khan in the mosque. But the evidence does show that Wahidi intended to thwart or interfere in any manner with the orderly administration of justice by convincing Khan not to testify at the preliminary hearing the next day. Under the definition of malice in section 136, Wahidi maliciously attempted to dissuade Khan from testifying.") (emphasis added). Note. Under this decision, California law now defines Penal Code 136.1(a)(2) as including conduct such as a civilized request to resolve an issue according to religious belief and conscience that in no sense of the word involves an element of violence (18 U.S.C. 16(a) or by its nature creates a substantial risk of violence (18 U.S.C. 16(b)). This offense therefore does not constitute an aggravated felony crime of violence. In addition, the conduct here is not depraved, and does not involve an intent to vex, annoy, harm, or injure another. It should therefore not be considered a crime of moral turpitude. It includes conduct motivated solely by religious belief and conscience. This sufficiently establishes a realistic probability of prosecution under this statute for non-removable conduct to prevent a conviction for violating this statute from constituting an aggravated felony crime of violence or crime involving moral turpitude. Thanks to Daniel G. DeGriselles.

Other

CAL CRIM DEF " NATURE OF CONVICTION " RECORD OF CONVICTION "FACTUAL BASIS STIPULATION " PRACTICE ADVISORY
In People v. Palmer, the California Supreme Court held that as part of a defendants change of plea, there is no invariable requirement that the defense stipulate to any specific document in order to establish a factual basis for the plea. It seems clear, under People v. Palmer (2013) 58 Cal.4th 110, 164 Cal.Rptr.3d 841, that the trial court is not required to collect such a stipulation We now make clear that, while inclusion of such reference in the stipulation is desirable as a means of eliminating any uncertainty regarding the existence of a factual basis, the trial court may satisfy its statutory duty by accepting a stipulation from counsel that a factual basis for the plea exists without also requiring counsel to recite facts or refer to a document in the record where, as here, the plea colloquy reveals that the defendant has discussed the elements of the crime and any defenses with his or her counsel and is satisfied with counsels advice. (Ibid. at ___.) To protect the defendant against adverse immigration consequences, criminal defense counsel should make every attempt not to stipulate to any particular document as the factual basis for the plea. Some prosecutors may insist upon a specific factual basis as part of a plea bargain. Some judges may simply hew to their personal practice of requiring a stipulation by reference to a specific document. Palmer does not actually hold that a defendant is entitled to refuse stipulation to a specific record document, but a defendant can never be compelled to enter a stipulation. It simply holds that a plea is permissible even without a stipulation to a particular document. From the clients standpoint, there will rarely ever be a situation where it is in a clients immigration interest to augment his or her change of plea with additional facts. Defense counsel if possible should adhere to the following guidelines: Defense counsel should attempt to enter a general stipulation that some factual basis exists, without reference to any specific document. This approach is approved in Palmer, if the Palmer requirements are met. There is no requirement of a factual basis of any kind for a plea to a misdemeanor offense. People v. Ballard (1978) 84 Cal.App.3d 885. If the court insists on a stipulation by reference to a specific document, defense counsel should stipulate that the court may find a factual basis in the specific document without agreeing that anything in that document is true. People v. French (2008) 43 Cal.4th 36, 50-51; People v. Thoma (2007) 150 Cal.App.4th 1096, 1104.) In French, the court stated: Furthermore, nothing in the record indicates that defendant, either personally or through his counsel, admitted the truth of the facts as recited by the prosecutor. Defense counsel stated that she had discussed the facts of the case at length with defendant and that she had allowed defendant to view a portion of the tapes of interviews of the victims, which had been provided to the defense in discovery. As noted earlier, when asked by the trial court whether she believed there was a sufficient factual basis for the no contest pleas, defense counsel stated, "I believe the People have witnesses lined up for this trial that will support what the D.A. read in terms of the factual basis, and that's what they'll testify to." Indeed, counsel was careful to state that she agreed that witnesses would testify to the facts as recited by the prosecutor; she did not stipulate that the prosecutor's statements were correct. Under the circumstances of this case, defense counsel's stipulation to the factual basis cannot reasonably be construed as an admission by the defendant sufficient to satisfy the Sixth Amendment requirements established in Cunningham, supra, ___ U.S. ___, 127 S.Ct. 856, 166 L.Ed.2d 856. (People v. French, supra, 43 Cal.4th at 50-51.) If it is necessary to refer to a specific document, be selective, choose a document that merely recites the basic essential elements of the charged offense and no more. This may be true, for example, of the charging document. Or counsel can consider stipulating to only certain portions of a record document. Finally, California law allows the defendant to make an oral or written admission to establish a factual basis for a plea. People v. Holmes (2002) 32 Cal.4th 432. Counsel can control the contents of the defendants admission, by stating it for him, and then asking, Isnt that correct? Counsels wording of the defendants admission can then add detailed facts that do not damage the defendants immigration position, such as the date and place of the offense, the time of day, or the nature of the car the defendant was driving, and complete the admission with a statement of the elements of the offense that is insufficient to cause the conviction to come within a ground of deportation or trigger any other immigration consequence. For example, counsel can say, Mr. Defendant, isnt it true that on March 4, 2014, at the corner of Hollywood and Vine, Los Angeles, California, within the County of Los Angeles, while driving a blue Camaro, you did possess a controlled substance prohibited under Health and Safety Code 11377(a)? This would be sufficient to constitute a factual basis for a possession offense, but does not identify the particular controlled substance involved, except that it is on the California schedule. This preserves the argument that the conviction does not trigger deportation, because the particular substance might be on the state but not the federal list. See Matter of Paulus, 11 I. & N. Dec. 274 (BIA 1965). Defense counsel can also personally stipulate that he or she has conducted an investigation into the facts of the case, and personally believes that a factual basis exists, and on that basis, enters a stipulation that a factual basis exists, without identifying a specific document or eliciting an admission from the defendant. The basis is technically then counsel's review and not what is contained in the documents themselves. Entering a plea under People v. West (1970) 3 Cal.3d 595, also aids the defense in refusing to admit the truth of any factual basis, since the defendant is explicitly declining to admit guilt of the charge to which a plea is entered.

CONTROLLED SUBSTANCES " CALIFORNIA -- ARGUMENT " IDENTITY OF THE DRUG IS NOT AN ELEMENT OF CALIFORNIA DRUG OFFENSES, SO MODIFIED CATEGORICAL ANALYSIS IS IMPROPER TO IDENTIFY DRUG
Convictions under California Health & Safety Code 11377 and 11378 do not categorically qualify as generic controlled substance offenses under settled case law. Moreover, because the statute of conviction is not divisible in the sense used by the Supreme Court in Descamps v. United States, 133 S. Ct. 2276 (2013), the Court cannot proceed to examine the record of conviction under the modified categorical analysis of the statute. Consequently, the convictions do not qualify as removable offenses. The Supreme Court in Descamps clarified the operation of the categorical analysis under Taylor v. United States, 495 U.S. 575 (1990). Descamps resolved a split in circuit authority regarding the scope and function of the modified categorical analysis (MCA). Contrary to the Ninth Circuits prior position, but consistent with the majority of other circuit courts, Descamps indicates that the MCA is not an exception to the first-stage categorical analysis of Taylor, but a supplemental tool in aid of the inquiry into the identity of the offense of conviction that is applied only in limited circumstances. See 133 S. Ct. at 2285. In particular, the MCA is resorted to: (1) only when the statute of conviction being compared to the generic offense for Taylor purposes is divisible; and (2) only to determine which alternative offense covered by the divisible statute was the basis of the conviction, not to determine what conduct underlies the predicate conviction. Under Descamps, the reasoning of the majority in United States v. Aguila Montes de Oca, 655 F.3d 915 (9th Cir. 2011) (en banc) (per curiam), is firmly rejected, so that the MCA cannot be consulted where the statute of conviction is indivisible. See id. at 2286-91. Moreover, Descamps roundly disapproved the Aguila-Montes majoritys implementation of the MCA to ferret out facts about the underlying conviction. See id. at 2287 (That approach . . . turns an elements-based inquiry into an evidence-based one.). Instead, the MCA can be used only to identify the specific subpart (offense) within the divisible statute of which the defendant was convicted. See id. at 2285 (Applied in that way"which is the only way we have ever allowed"the modified approach merely helps implement the categorical approach when a defendant was convicted of violating a divisible statute.). In Descampss case, he was convicted of burglary under California Penal Code 459. That statute defines the offense in terms of an overbroad element of entry that does not require the generic element required for federal burglary of an unprivileged or unlawful entry. See id. at 2282; accord Aguila-Montes, 655 F.3d at 944. The question was whether the statute would qualify as generic if the MCA were consulted. However, unlike the majority in Aguila-Montes, the Supreme Court clarified in Descamps that the second-stage analysis could never be employed to narrow Penal Code 459, because the statute was not only overbroad, but indivisible, and so the MCA is inapplicable: [W]e hold that sentencing courts may not apply the modified categorical approach when the crime of which the defendant was convicted has a single, indivisible set of elements. Id. at 2282. The Court also made clear that although Penal Code 459 contains a number of alternative locations which can be burgled (e.g., a house, a room, a mill, an outhouse, an airplane, a mine, etc.), these were just alternate target locations, different means for satisfying the one element of entry. Because the element entry was overbroad and indivisible, the MCA has no role to play in this case. The dispute here does not concern any list of alternative elements. Rather, it involves a simple discrepancy between generic burglary and the crime established in 459. The former requires an unlawful entry along the lines of breaking and entering. The latter does not, and indeed covers a lawful entry into a store, for example, with intent to commit simple shoplifting, as even the Government acknowledges. In Taylors words, then, Penal Code 459 define[s] burglary more broadly than the generic offense. And because that is true"because in California, to get a conviction, the prosecution need not prove that Descamps broke and entered"a 459 violation cannot serve as an ACCA predicate. Whether Descamps did in fact break and enter makes no difference. And likewise, whether he ever admitted to breaking and entering is irrelevant. Id. at 2285-86 (citations omitted). Applying Descamps, the Fourth Circuit Court of Appeals recently refused to employ the MCA for a Maryland sexual abuse of a child statute, holding that the enumerated list of ways to violate the law were alternative means rather than elements, and, as such, were irrelevant to our inquiry. United States v. Cabrera-Umanzor, 728 F.3d 347, 353 (4th Cir. 2013)(citing Descamps, 133 S.Ct. at 2285 n. 2). The same considerations apply here to California Health & Safety Code 11377 and 11378. Just like the overbroad entry in 459, the term controlled substance encountered in Health & Safety Code 11377 and 11378 is recognized as categorically overbroad, since it includes a broader range of substances than is found in the generic schedules of the federal Controlled Substances Act. See Ruiz-Vidal v. Gonzales, 473 F.3d 1072, 1076-78 (9th Cir. 2007); United States v. Leal-Vega, 680 F.3d 1160, 1167 (9th Cir. 2012). Thus, when a state complaint or information charges an offense involving a controlled substance, that term is overbroad and indivisible as is the entry in the burglary statute. Although controlled substance, like entry, can be subdivided into additional means by which the element can be satisfied, this does not create alternative elements in the sense used in Descamps, 133 S. Ct. at 2283-85. This is clear in both federal and state law. The Ninth Circuit has held that the identity of the specific controlled substance is not an element of a federal drug crime. See United States v. Hunt, 656 F.3d 906, 912 (9th Cir. 2011) (holding that pleading to a count alleging cocaine was not an admission to that fact, since We have held, however, that drug quantity and type are not formal elements of the offenses set out in 21 U.S.C. 841.). The same is true in California law: the identity of the drug is not an element that must be charged in the information, but simply a means of committing the offense. See Ross v. Municipal Court, 122 Cal. Rptr. 807, 809-10 (Ct. App. 1975)(the name of drug need not be charged in complaint because it is only a means by which [defendant] committed the crimeof being under the influence.) In fact, the California courts have held there is no fatal variance if the type of drug charged differs from the one proved at trial, which could not be the case if the identity of the drug were an element. See People v. Martin, 86 Cal. Rptr. 3d 858, 861 (Ct. App. 2008); People v. Bryant, 2007 WL 2356072, at *2 (Cal. Ct. App. 2007) (unpublished); People v. Howington, 284 Cal. Rptr. 883, 888 (Ct. App. 1991); People v. Gelardi, 175 P.2d 855, 857 (Cal. Ct. App. 1946) (calling the specification of the drug type in the information mere surplusage), disapproved on other grounds in People v. Perez, 401 P.2d 934 (Cal. 1965). As the Court held in Gelardi, [W]ithout any specification of either opiates or morphine the accusation is sufficient, for it follows the language of the statute, and nothing beyond that is required in the absence of a special demurrer. Ibid. (citing People v. Kinsley, 118 Cal.App. 593, 596)(emphasis added). And because the jury need only find that a controlled substance listed in the statute was involved, and so need not unanimously agree on which drug it was in order to convict, the various substances listed do not create alternative elements rendering the statute divisible and so amenable to the MCA. On this point of requiring jury unanimity, the Descamps majority and dissent were in agreement See Descamps, 133 S. Ct. at 2290 (noting as a reason why a hypothetical, overbroad element of weapon is not narrowed by a jury verdict because [t]he jurors need not all agree on whether the defendant used a gun or a knife or a tire iron); id. at 2296 (Alito, J., dissenting) (By an element, I understand the Court to mean something on which a jury must agree by the vote required to convict under the law of the applicable jurisdiction.). In a broader sense, both the Supreme Court and the Ninth Circuit have at least made clear that for a fact to be employed in the MCA, it must be necessary to sustain the prior conviction. See Moncrieffe v. Holder, 133 S.Ct. 1678, 1684-85 (2013): In other words, to satisfy the categorical approach, a state drug offense must meet two conditions: It must necessarily proscribe conduct that is an offense under the CSA, and the CSA must necessarily prescribe felony punishment for that conduct. Id. at 1685. Likewise, [i]t is not enough that an indictment merely allege a certain fact or that the defendant admit to a fact; the fact must be necessary to convicting that defendant. Aguila-Montes, 655 F.3d at 937. Because under federal and state law, the identity of the specific drug is not necessary to a proper pleading, a valid plea, or jury verdict, drug specifications in 11377 and 11378 do not create alternative elements rendering the statute amenable to the MCA under Descamps, and even if it did, is not a dispositive fact under the second-stage analysis as laid out in Moncrieffe and the surviving portions of Aguila- Montes. See United States v. Cazares, 123 F.3d 1241, 1246-47 (9th Cir. 1997) (guilty plea admits only allegations necessary to be proved for a conviction); Hunt, 656 F.3d at 912 (citing Cazares to hold that a guilty plea to a count containing a to wit: . . . cocaine allegation did not admit the type of drug). Convictions under California Health & Safety Code 11378 and 11377 are not categorically offenses relating to a controlled substance because the California schedule of controlled substances includes substances not federally regulated and, under Descamps, the Court may not use the modified categorical approach for these offenses because the identity of the drug involved in the offense is not an element of the offense. See Descamps v. United States, 133 S. Ct. 2276 (2013). Thanks to Michael Mehr.

CD4:15.34;AF:6.30;CMT3:10.31;PCN:10.15; CPCN:2.10; 11.21
While the Board of Immigration Appeals has previously held that a nonimmigrant would have to affirmatively show that the firearm in the particular case actually was an antique (Matter of Mendez-Orellana (BIA 2010) 25 I&N Dec 254, 255), it would appear that the Supreme Court overruled that finding in Moncrieffe v Holder (2013) 133 SCt 1698, 1673. In Moncrieffe, the Court both reaffirmed that a statute defining an offense of conviction must be evaluated solely on the minimum conduct sufficient to commit it, and specifically discussed the antique firearm exception. The Court stated that as long as there is a realistic probability that antique firearms actually are prosecuted under the state statute at issue, a conviction should not be held a deportable firearm offense. Despite Moncrieffe, however, there is real uncertainty as to how the antique firearm defense will be treated in immigration court, and defense counsel should not count on it to save a defendant from deportation " unless the weapon involved in the offense really was a qualifying antique firearm. Otherwise, if the general antique firearm defense is the only alternative, the plea should be restricted to California offenses in which antique firearms actually have been prosecuted. See former Cal. P.C. 12022 (armed with antique weapon while committing felony) and former P.C. 12021 (possession by felon), and their current equivalent statutes, and see, e.g., People v. Gossman, 2003 WL 22866712 (2003); People v. McGraw, 2004 WL 928379 (2004). The California Penal Code, unlike 18 U.S.C. 921(a)(3), makes it a crime to possess an antique firearm. Penal Code 25400(a); see Gil v. Holder, 651 F.3d 1000, 1005 (9th Cir. 2011) (holding that conviction under predecessor California statute met federal gun definition even though former statute included conviction for an antique firearm, because antique firearm was an affirmative defense, rather than an element of the offense). Despite the fact that convictions under the California statute would seem necessarily to fail the categorical inquiry, a noncitizen convicted under this provision still must show a realistic probability that California would prosecute a defendant for having an antique weapon. See Moncrieffe v Holder, ___ US ___, 133 SCt 1678, 1693 (2013). See also People v. Robinson (2011) 199 CA4th 707, 131 CR3d 177 (affirming that California firearms definition, applicable to the state felon in possession offense, Penal Code 12021, criminalizes possession of antique or inoperable firearms); People v. Wolfe (2003) 114 Cal.App.4th 177, 7 Cal.Rptr.3d 483 (California prosecution for possession of a firearm, after having suffered a conviction for a felony or qualifying misdemeanor, in violation of Penal Code 12021(c)(1), based on possession of a Winchester 16"gauge shotgun and a bolt-action Sharps shotgun, which appeared to be antique firearms); People v. Claseman (1986) 183 Cal.App.3d Supp. 1, 229 Cal.Rptr. 453 (documenting prosecution for violation of Penal Code 12025(a), carrying a firearm concealed in a vehicle, on the basis of an antique firearm; conviction reversed since firearm was inoperable, not because it was an antique).

CAL POST CON " SAFE HAVEN " KICKBACK FOR MEDICAL REFERRAL CRIMES OF MORAL TURPITUDE " REGULATORY OFFENSES
People v. Guiamelon, 205 Cal.App.4th 383, 140 Cal.Rptr.3d 584 (Apr. 24, 2012) (affirming conviction of a physician under Business and Professions Code 650 for paying illegal fees to persons who referred patients qualified for federal and state programs to her practice, where court would not construe 650 to add a scienter requirement not included in the statute as enacted).

BLOG"CAL POST CON"SAFE HAVEN"CALIFORNIA WITNESS DISSUASION OFFERS AN IMMIGRATION-SAFE ALTERNATIVE DISPOSITION, ESPECIALLY IN DOMESTIC VIOLENCE CASES
A plea to simple witness dissuasion, in violation of California Penal Code 136.1(b), does not trigger deportation under any ground, at least if there is no sentence imposed of one year or more in custody, whether or not execution is suspended. See generally N. TOOBY & J. ROLLIN, SAFE HAVENS: HOW TO IDENTIFY AND CONSTRUCT NON-DEPORTABLE CONVICTIONS (2005) (updated monthly on www.NortonTooby.com. There may well be a factual basis for a plea to this offense in many domestic cases. For example, the defendant may have urged his wife: Honey, please dont call the cops. Even if there is no factual basis, it may be possible to enter a plea of nolo contendere without admitting factual guilt, under People v. West (1970) 3 Cal.3d 595. This statute punishes anyone who attempts to prevent or dissuade another person who has been the victim of a crime or who is witness to a crime from making a police report, filing a charge and assisting the prosecution, or seeking an arrest. There is no requirement of any malice or violence in connection with this subdivision. This conviction should not be considered a crime involving moral turpitude. It involves no malice or other culpable mental state. Compare Penal Code 136.1(a). See People v. Upsher, 155 Cal.App.4th 1311, 1320 (2007). It should not be considered a crime of violence, because it involves no element of force and includes non-violent verbal persuasion. Ibid. Compare Penal Code 136.1(c). It does not trigger any other conviction-based ground of deportation. The only possible exception is that it might be considered to be an obstruction of justice aggravated felony, under INA 101(a)(43)(S), 8 U.S.C. 1101(a)(43)(S), but only if a sentence of one year or more imprisonment is imposed (whether or not execution is suspended). To protect against this possibility, it is safer to enter a plea to dissuading someone from filing a police report, a violation of Penal Code 136.1(b)(1), because that cannot be considered interference with an ongoing judicial proceeding. See Matter of Espinoza-Gonzalez, 22 I. & N. Dec. 889, 892-93 (BIA 1999); Salazar-Luviano v. Mukasey, 551 F.3d 857, 862-63 (9th Cir. 2008). See also Renteria-Morales v. Mukasey, 551 F.3d 1076 (9th Cir. Dec. 12, 2008), replacing 532 F.3d 949 (9th Cir. 2008). Failing that, leave the record of conviction vague as to the subdivision (e.g., (1), (2), or (3)) to take advantage of the burden of proof on the government to show deportability and the minimum-conduct rule. This offense is punishable as an alternative felony-misdemeanor by a state prison sentence of 16 months, two or three years, or by up to a year in the county jail. It is also a strike. Penal Code 1192.7(c)(37). (Note: it is not a strike under the alternative statute, Penal Code 667.5(c)(20), unless a gang enhancement is found true.) This means that upon a new conviction of any felony, the strike prior may be pleaded and proved, and, if found true, will double any state prison sentence imposed for the new offense. This feature makes this alternative disposition more attractive to certain prosecutors, who may be more willing to agree to vacate a deportable disposition, and allow the defendant to plead guilty to this alternative knowing that if the defendant suffers a new felony conviction, the prison sentence would be doubled, providing a greater incentive toward law-abiding behavior in the future. This alternative felony-misdemeanor can still be reduced to a misdemeanor upon successful completion of probation, under Penal Code 17(b)(3). This reduction, however, would not eliminate its consideration as a strike prior if the defendant is convicted of a new felony. Penal Code 667(d)(1). But the offense, after reduction, would be a misdemeanor for all other purposes, including immigration purposes. LaFarga v. INS, 170 F.3d 1213 (9th Cir. 1999).

CAL POST CON"PRACTICE ADVISORY"SAFE HAVEN"PAULUS DEFENSE"GIVING THE DA PRIORABILITY WITHOUT AGREEING THE SUBSTANCE IS METH
If the prosecution objects to striking the name of the specific controlled substance from the charge, on the ground that the prosecution will lose its ability to charge the current conviction as a prior controlled substances conviction in a future drug prosecution, counsel can stipulate that the current conviction may be used as a prior under that code section without admitting the exact nature of the controlled substance involved in the current case. Counsel can make it a People v. West stipulation, done for tactical reasons, rather than because the substance was in fact a certain substance, and expressly refuse to agree that the substance was in fact the substance identified in the original charge. Otherwise, the new conviction will cause deportation. See Health & Safety Code 11370.4(a) (making a prior involving heroin, cocaine base, or cocaine sufficient to justify a sentence enhancement), 11370.4(b) (making a prior involving methamphetamine, amphetamine, PCP, and its analogs sufficient to justify a sentence enhancement). This type of plea bargain agreement is enforceable, regardless of whether the underlying substance in fact triggers the sentence enhancement. In People v. Miller, 202 Cal.App.4th 1450 (5th Dist. Jan. 27, 2012), the court agreed there was error in charging and accepting the plea to diazepam possession as a felony, because Health & Safety Code 11375(a), (c)(4), provided that offense was a misdemeanor, rather than a felony. The court, however, for reasons of public policy, conclude[d] appellant is estopped from vacating his plea and modifying his conviction, by his consent to the plea agreement. (Id. at 1452.) In Feb., 2005, Miller pleaded guilty to possession of diazepam, in violation of Health & Safety Code 11350(a), and in April, 2005, received a sentence including three years probation, to terminate in April, 2008. Miller later attempted to vacate this conviction: In April 2010, appellant filed a motion to vacate his plea and modify his conviction, on the grounds that a felony conviction for unlawful possession of diazepam was outside the trial court's subject matter jurisdiction, since at most this crime was a misdemeanor. Although the trial court agreed a mistake had been made, it denied the motion on grounds that equitable estoppel barred appellant from vacating his conviction. The trial court commented that appellant had received the benefit of a plea bargain in light of the fact that there was another felony available to the People to prosecute him, possession of Vicodin, which was dismissed as part of the plea. Appellant obtained the requisite certificate of probable cause and appealed the trial court's ruling. (Pen.Code, 1237.5.) . . . Appellant asserts a single claim: that the equitable estoppel doctrine has no application to the circumstances of his case. He contends equitable estoppel applies only where a person is looking to receive a benefit that reduces the direct penal consequences of the judgment, for example, a reduced sentence. He argues, however, that he has fulfilled all the requirements of the plea agreement and probation term, and is not asking to reduce the term or otherwise receive some sort of recompense for the error. Instead, he seeks essentially only to eliminate the collateral consequences of the erroneous conviction and plea to a felony, that is, the negatives associated with a felony conviction and the burden of declaring his prior conviction to potential employers and licensing agencies. (Footnote omitted.) Respondent concedes that the plea agreement erroneously stated that diazepam possession was a felony and that appellant's plea to the same was in error. (Footnote omitted.) Respondent, however, asserts that appellant is estopped from modifying his conviction on equitable estoppel grounds. (Footnote omitted.) The facts are not in dispute and we review the application of the estoppel doctrine de novo, as a question of law. (See People v. Panizzon (1996) 13 Cal.4th 68, 80.) As noted above, we conclude that for reasons of public policy, appellant is estopped from asserting his claim of error to vacate and modify his conviction. (Id. at 1455-56.) The court here relied on People v. Ellis (1987) 195 Cal.App.3d 334, in which the defendant admitted as part of her plea bargain that her prior federal bank robbery conviction constituted a serious felony for enhancement purposes, when it did not in fact meet the California serious felony elements as a matter of law. (Id. at 342.) The Ellis court also found, however, that estoppel principles could apply where the court acted only in excess of its jurisdiction (as opposed to a complete lack of jurisdiction), by exceeding its statutory authority to accept an erroneous plea agreement: the issue was whether defendant, by her consent to the plea bargain ... should be estopped from later asserting a claim of error. (Id. at 343.) The court distinguished in a footnote between simple estoppel and equitable estoppel: Appellant's briefs confuse the doctrine of equitable estoppel with simple estoppel. The doctrine discussed in Ellis, and other cases involving criminal plea agreements in excess of jurisdiction, relates to simple estoppel, which generally provides that a party is barred from taking certain positions contrary to their previous actions, such as consenting to a plea agreement. (See City of Hollister v. Monterey Ins. Co. (2008) 165 Cal.App.4th 455, 486 and fn. 21.) The focus is on the actions of the party arguing against estoppel, not on the other involved parties. Equitable estoppel, however, generally discussed in the civil context, focuses on knowledge of the parties, intent and reliance. These elements are not part of the analysis in this case, as appellant conceded at argument. (See People v. Castillo (2010) 49 Cal.4th 145, 155 and fn. 10.) (Id. at 1456, n.5.) Therefore, the prosecution can obtain a guarantee of priorability without identifying the specific controlled substance in the new plea colloquy.

CAL POST CON " SAFE HAVEN " CRIME OF MORAL TURPITUDE " UNAUTHORIZED USE OF PUBLIC MONEY
Stark v. Superior Court, 52 Cal.4th 368 (Aug. 1, 2011 ) (a violation of Penal Code 424, unauthorized use of public money, is a general intent crime requiring that the defendant knew or was criminally negligent in failing to know that his actions and omissions were without lawful authority or contrary to legal requirements).

CAL POST CON " SAFE HAVEN " CRIME OF MORAL TURPITUDE " UNAUTHORIZED USE OF PUBLIC MONEY " NO ELEMENT OF INTENT TO DEFRAUD
Stark v. Superior Court, 52 Cal.4th 368 (Aug. 1, 2011) (To this end, a violation of section 424 is committed by a public officer when he uses public funds in a manner forbidden by law even though he may have no fraudulent intent when he does so.... It is sufficient that he intentionally committed the forbidden act. . . . [There is] no basis for the claim that there must exist in the mind of the transgressor a specific purpose or intent to violate law.); quoting People v. Dillon (1926) 199 Cal. 1,7, 248 P. 230.

CAL POST CON"VEHICLES"MOTION TO STRIKE SURPLUSAGE"JUVENILE COURT EXCEEDED ITS AUTHORITY TO AMEND PETITION OVER PROSECUTION OBJECTION
In re Jeffrey H. (2011) 196 Cal.App.4th 1052 (disposition reversed, on grounds juvenile court exceeded its authority in amending the petition over the prosecution's objection).

CAL POST CON " SAFE HAVEN " BATTERY CAUSING SERIOUS BODILY INJURY
California Penal Code 243(d), battery causing serious bodily injury, which can be a strike if it is a felony, may be an immigration-safe disposition if there is no sentence imposed, suspended or not, of one year or more. If the record of conviction does not disclose the age of the child, this conviction does not constitute a sexual abuse of a minor aggravated felony. It is also not a registerable offense. Because there is no element requiring an intent to harm, this offense, like simple battery, should not be considered a crime of moral turpitude or crime of violence. Even if it is considered a crime of violence, it is not an aggravated felony because there is no one year sentence imposed. Thanks to Michael Mehr.

CAL POST CON " SAFE HAVEN " SEX OFFENDER REGISTRATION
California Penal Code 288a, oral copulation, does not require sex offender registration. See People v. Hofsheier (2006) 37 Cal.4th 1185 (equal protection argument comparing oral copulation to actual intercourse which is nonregistrable). Similarly, unlawful sex with a minor, under Penal Code 261.5, does not require sex offender registration. The record must be clear of any information that the victim is a minor or it will be a deportable crime of child abuse.

CAL POST CON " SAFE HAVEN " MARIJUANA DEFINED " PAULUS DEFENSE
Marijuana means all parts of the plant Cannabis sativa L. Health & Safety Code 11018. This excludes Cannabis Indica. This definition is the same as the definition of marijuana listed in the federal Controlled Substances Act, 21 U.S.C. 802(16).