Offense
Bring CS or paraphernalia into jail without permission
Aggravated Felony (AF)
Appears not to be an AF because intent to distribute is not required, but 4573.5, .6 or .8. is far better.
Crime Involving Moral Turpitude (CIMT)
Because the statute does not require intent to distribute, and permission could be granted, it ought not to be a CIMT. See 11377.
Other Removal Grounds
May be charged as deportable and inadmissible CS if federal CS is involved. While there are defenses, it appears that a plea to 4573.5, .6 or even .8 is far better.
Advice and Comments
CS Conviction. A much better plea is to 4573.5 or .6.
If that is possible, there are arguments that 4573 is not a CS offense for immigration purposes, based on the Graves decision on 4573.6.1Sections 4573 (bringing in) and 4573.6 (possessing) both prohibit conduct involving California controlled substances within a jail or similar area. The Ninth Circuit held that no conviction under 4573.6 is an offense relating to a federally defined controlled substance (CS). U.S. v. Graves, 925 F.3d 1036 (9th Cir. 2019). Therefore no 4573.6 conviction is a CS offense for any immigration purpose. Some, but not all, of the Graves findings also apply to 4573. The following is an argument that 4573 also can benefit from Graves, but 4573.6 is far safer.
Section 4573 prohibits bringing or sending in without permission “any controlled substance, the possession of which is prohibited by Division 10 (commencing with Section 1100) of the Health and Safety Code, any device, contrivance, instrument, or paraphernalia intended to be used for unlawfully injecting or consuming a controlled substance…” Note that “controlled substance” is singular.
Section 4573.6 prohibits possessing without authorization “any controlled substances, the possession of which is prohibited by Division 10 (commencing with Section 11000) of the Health and Safety Code, any device, contrivance, instrument, or paraphernalia intended to be used for unlawfully injecting or consuming controlled substances ….” Note that “controlled substances” is plural.
Under the categorical approach, both 4573 and 3473.6 are overbroad as CS offenses because the California schedules include substances not on the federal list. The question is, are these statutes also divisible as to the substance. If they are divisible, an immigration (or federal criminal court) judge can look to the individual’s record of conviction to see if it establishes the specific substance.
In U.S. v. Graves, supra, the Ninth Circuit held that PC 4573.6 is overbroad and also indivisible as to the substance. Therefore no conviction is a CS for immigration purposes, even if the person pled to a specific controlled substance (although that plea would be a very bad idea, since immigration judges may not know about any of these cases). So, section 4573.6 is the preferred plea.
Some but not all of the Graves rationales also apply to PC 4573. The court found that 4573.6 is indivisible because it prohibits possessing “substances” in the plural. “This suggests that contemporaneous possession of multiple controlled substances is only a single crime under section 4573.6, and the type of controlled substance is merely a means and not a list of alternative elements.” Second, on the same point, it noted that “a California state court has explicitly held that contemporaneous possession of two or more discrete controlled substances at the same location constitutes one offense under section 4573.6. See People v. Rouser, 69 Cal. Rptr. 2d 563, 564 (Cal. Ct. App. 1997).” Graves at p. 1040.
ICE will argue that these rationales do not apply to PC 4573, which refers to a controlled “substance,” not “substances.” However, despite the difference in language, arguably it would make no sense for the legislature have intended PC 4573 to have the substances be different elements, while intending PC 4573.6 to have them be different means. But this use of the term “substances” is what makes 4573.6 the better plea.
The court’s third rationale should apply to both statutes. In Graves at p. 1040-41, the court stated:
Third, as discussed in Rouser, section 4573.6 is part of a completely different code and is aimed at different problems compared to sections of the Health and Safety Code. While “section 4573.6 appears to be aimed at problems of prison administration,” sections of the Health and Safety Code are “designed to protect the health and safety of all persons within [the state’s] borders … by regulating the traffic in narcotic drugs.” Rouser, 69 Cal. Rptr. 2d at 566–67 (internal quotation marks omitted). Thus, our precedents holding certain California statutes within the Health and Safety Code divisible as to the controlled substance do not necessarily apply to section 4573.6. See Martinez-Lopez, 864 F.3d at 1036 (announcing “[w]e took this case en banc to revisit the divisibility of California drug statutes” and citing a section of the Health and Safety Code); United States v. Ocampo-Estrada, 873 F.3d 661, 668 (9th Cir. 2017) (noting that the principle from Martinez-Lopez “logically extends past section 11352 to other California drug laws”).
We conclude, therefore, that California Penal Code § 4573.6 is not a divisible statute ….
While Graves is a federal criminal case that examines whether 4573.6 is a “felony drug offense,” the same rationale—that the purpose of a statute and even its placement in the code helps to define the statute—applies in immigration law. See, e.g., Matter of Batista-Hernandez , 21 I&N Dec. 955, 961 (BIA 1997) (accessory after the fact is not a CS offense even if the principal committed trafficking in controlled substance, because the purpose of the statute is not to regular drugs; “the nature of being an accessory after the fact lies essentially in obstructing justice and preventing the arrest of the offender.”) Graves and Rouser indicate that this can be a factor in finding that a statute is not divisible for a particular purpose.
See Advice to 11377 regarding non-federally defined substances. See.