good morning your honor it's me at least the court sarah weinman on behalf of the parent mr rodriguez mr rodriguez entered a plea pursuant to a plea bargain that plea bargain was that mr rodriguez would plead contest to general controlled substances in the plural under california health and safety code eleven three fifty one contingent upon positive lab results showing a usable quantity of controlled substances the lab results came back positive for controlled substances prompting the state court to issue a minute orders stating that mr rodriguez his conviction was to count one as per plea bargain and every other conviction record beginning with a change plea form through to that minute order reflects the controlled substances language of the plea bargain in fact beyond the complaint there is no mention of heroin or any other specific drug type in the conviction reza california allow you to be convicted without specifying any controlled substance in particular yes and i would point the court to the california cases cited in the opening brief it pages twenty two and twenty three  particular to ross the municipal court in which a complaint alleging use of a controlled substance was found to be sufficient here because the affirmative language showed that the plea bargain not per the complaint and because the affirmative language in the plea bargain showed that the plea agreement was to controlled substances this makes mr rodriguez his conviction overbroad and of record one hundred where which provides client pleads no contest to h s eleven three fifty one count one plea contingent upon a showing of positive and usable quantities of controlled substances dismiss all other other more serious charges and or risking the possibility of a longer sentence if i thought change the substance involved at all it doesn't mention drug type it changes the count to controlled substances in the plural under eleven three fifty one dismissing all other allegations and again that's contingent on lab results showing a part of testing positive for a usable quantity of controlled substances then they love to be using substances plural the form has both the singular and the plural so i'm not sure that there's really been an amendment of the of the criminal complaint the language where that the language on the change of play form which provides for the contingency states that the state specifically that the contingency is that lab results have to test positive for controlled substances and the i found some the same very same page says possess purchase risk a controlled substance plural opposite there to infer that there's been any amendment to count one i would point to the language on the change of plea form indicating that this bargain was reached as a result of plea bargaining was agreed to by the district attorney and that the district attorney thereby agreed to dismiss all other allegations contingent upon positive showing of controlled substances in the plural but that the positive in the lab test has nothing to do with with whether it's it's it's a given substance that has to do with quantity so why should this provide any basis to suspect the substance is something other than what count one charges because the contingency again was for a usable quantity of any controlled substance under the statute so here what we have is my client admitted guilt to controlled substances under the statute assuming that they could prove any controlled substances under the statute so this is that is part of vs singular i'm a little confused because isn't your point just that it might not be heroin and some of the substances that it could be even if it's a single one substance there are substances in california law that wouldn't meet the federal definition that's right so what might what happened here is what my client is effectively saying i'm guilty of some version of controlled substances as long as the lads can prove it he's not saying i'm guilty of the count as charged and so has the he's but it's to count one what ever change count one to make it a different substance the in which we have in which abstract of judgment or minute orders stating simply count one has been read to refer back to the complaint here the minute order specifically says we refer back to the plea bargain and we look to plea bargain and we see that this was a negotiated plea to controlled substance contingent on lab results showing a usable quantity of controlled substances under eleven through fifty one which we as we know includes a broader range of drug types and that covered by the federal you have an argument about the fine that would be given for heroin that wasn't given are there are fines for other controlled substances under california law can you tell us a little bit more about your argument about the lack of a fine  i'm not aware of other mandatory fines would be imposed under other for other drug types what with the complete states as part of count one was that mr rodriguez possessed more than to pay but no mandatory fine was imposed that it at a very minimum add some ambiguity that mr rodriguez pleaded to the count as charged in the complaint and just to get back to my point about just the ambiguity has to do with quantity what the substance was we don't know if it has to do with quantity or the substance there were two allegations there one was a quantity and one was to substance and the only thing the change of plea does is talk about measuring quantity of controlled substances and the confirmation of last hearing state's usable quantity and the minute order states we look back to the pre bargain which only specifies controlled substances so here again what he was charged with  would be just missed beyond help to those that takes that's pretty clear that he's not being convicted of meth right and it's also clear that all other allegations in the count would be dismissed so again you know mathis recently stated that one of the basic reasons we use the categorical or modified categorical approach is to avoid unfairness to defendants here what exactly is unfair mean it was any realistic possibility it was something other than heroin or for that matter math which would also qualify again we know from ross municipal court that a combat charging document that surprised me at a charge to controlled substances is sufficient under california law we have language here that the count one was per the plea bargain and the plea bargain states controlled substances that is sufficient under california law that was the bargain reached by my client to rewrite at this point the bargain for terms to read back in the language from the camp complaint would be to good morning your honour's may please the court column the donald for the united states united states is asking this court to affirm rodriguez's sentence there's there's no ambiguity in the conviction documents that were before the california state court that were before the district court and enhancement was appropriate count one of the complaint charged rodriguez with the possession for sale of heroin there's no dispute that that is a drug trafficking offense three reliable court records then confirm that rodriguez none of the cases do that's why we have this entire band of case law that says we're trying to decipher whether this is a prior drug trafficking offense we can look back to the complaint so the complaint talked about heroin and an amount yes if both of those things had been found he would have needed a fine right i think that's right so there was no find so we know something changed in the change of police so how do we have any reason to think that it was the quantity that changed an heroin the change we know something changed he didn't actually plead to this count because he couldn't have right where he pled he pled to the substantive count well the special allegation the special allegation was dismissed it's a very simple answer either one hundred specifically states that all other charges counts and allegations dismissed but why why i mean i read that it's just meaning that count two is dismissed how do you read that as we should interpret that to mean that the quantity goes away but not the drug and otherwise count one is left can you explain more why you're saying that i think i can your honor so the the fine provision is a special obligation so the are on the same page in terms of calling that so when when it's referred to it e r one hundred that's something different from counts it means allegations really mean special allegations i think they're saying that that's the way that i would read that that we can see that from the face of the complaint can we i mean it doesn't i don't and that's where the quantity is specified fourteen reporter grams that's correct your honor you're in doubt that that's what's called in the field a special allegation not in my mind i didn't dig into that specific term i think both parties refer to it as a special obligation in our briefs that's the way that i understand it and i think that that in the plea for more it refers to all other counts charges and allegations i don't know what that would be referring to if it wasn't referring to that special fine allegation there's nothing else in there count to includes a methamphetamine charge and it's just a straight one count so i don't know why that would be the additional delineation between counts charges and out with in fact the only time the word alleged in the complaint appears now third paragraph of count one is that correct the word alleged does does appear in that particular paragraph but anywhere else is my question doesn't look like it to me i'm doing a bit of speed reading i don't see it anywhere else in the complaint the word allow your argument i would assume would be that since that's the only place the word allegation or alleged occurs the  allegations besides custom of usage obviously refers to this one quote allegation i would again that's correct you are now with respect to the the remainder of the documents that specifically show that rodriguez count one we also have the plea colloquy we have the transcript where the court twice confirms that rodriguez was pleading to count one and the court at the end of it said now this is all contingent on positive labs being returned the court there didn't say anything about you know that amendment had been made that controlled substances generally would would would suffice he just said look this is contingent on positive labs being being returned and that's perfectly appropriate at that time the labs hadn't come back and so the government hadn't proved that the drug was what they said it was that is heroin so i would say the only difference between this case and the five other cases for him is a ban ak or not zero is that the lab results haven't returned back yet at sentencing in this case do you agree that you can be convicted under california law for a controlled substance without specifying which one there's very old case law that they were lying on that that possibly suggest that but i would say no and the reason is because the entire reason why the categorical approach is available to us is that a controlled substance is an essential element of eleven three fifty one that comes straight from tory jimenez and this is another quote from tory minutes california state law treats the type of controlled substance as a separate element with respect to drug offenses that's not the entire reason why the modified categorical approach is available to this court that's what allows us to look to the complaint to see what specific drug the defendant pled to name of eleven three fifty one is possession or purchase for sale of a controlled substance so that's that's why it's noted there as count one and that it's merely the name of the offense but the specificity required under california law is provided in the complaint where the da went further to provide that the specific drug type was heroin and unless the court has any further questions i will say you would concede that the government has a burn of proving that clarity by clear and convincing evidence that we do just to pick up on that very last point specificity is not required under what the government agrees is very well established case law in a charging decision and those cases that i cited once again state that charge to controlled substances is sufficient under california law doesn't that create the tension he's discussing though i mean maybe that means our case law is wrong about how we read california law and whether we can apply the modified categorical procida all i do think that matters requires coronado to be document to the charge to controlled substances and i would also i want to get to the government's point that clear evidence has been provided here clear and convincing evidence to meet their burden far from it you know this this court has held that where the records are ambiguous the the judgment from an order requires a specific language as per the complaint in order to tie the charges in the complaint to the conviction here you don't hear about this so i haven't understood this terminology really of special allegation do you agree that this alleged thing about the quantity and the fine is the is  and is what the change of plea was referring to by allegation it is a special allegation it is one of the allegations in count one another allegation is where count one says to wit heroin which this court has held that any language following to w find somebody guilty take the easy case guilty of murder and then they find true the special allegation that a firearm was used that comes back separately on the jury verdict form they have to find that i infer the same thing what happened here allegation was dismissed we don't want we do that there's exactly that language in the special and the change of plea for i disagree your honor the change of plea form says all other charges counts allegations dismissed there's no specificity that refers to the include to wit heroin and so you're saying that the virt a jury verdict form would have count one and then would have an allegation for heroin and would have an allegation for quantity it wouldn't all be part of the  the drug type wouldn't be part of the count one first question the jury would answer i can't say that i've seen injured verdict form for this particular final language so i can't answer that question based on experience what i can usable quantity of controlled stuff it is a practice known state court to have a separate special verdict form on quantity you know in a count one situation like this again i'm not certain your honor