The long awaited decision in United States v. Martinez-Lopez, --- F.3d ---, No. 14-50014 (9th Cir. 2017) (en banc), is here. And it is not good news for criminal defendants.
The conclusion is that the Cal drug statutes -- such as HS 11352 -- are divisible with regard to both their controlled substance requirement and actus reus requirement.
This means that, for purposes of determining whether a prior Cal. conviction is a federal sentencing-enhancement predicate, courts can use the modified categorical approach -- i.e., consult the conviction documents to determine the elements to which the defendant pleaded guilty. So, for example, if the defendant admitted to selling cocaine, the prior conviction will qualify as a drug trafficking offense.
[Had the decision on divisibility come out the other way -- that the Cal. drug statutes were not divisible -- these prior drug convictions would almost never qualify as federal predicates]
There are persuasive dissents. And Judge Bybee notes he is "concurring in part and dissenting in part, but frustrated with the whole endeavor."