In 2009, California filed an Information charging Ruiz-Vidal with sale and possession for sale of a controlled substance, which the Information identified as methamphetamine. Ruiz-Vidal pleaded no contest to simple possession—a lesser included offense of the sale charge. Because the original complaint did not contain a charge for simple possession, Ruiz-Vidal argued that the record of conviction did not establish what substance was involved in his conviction, and thus, under the modified categorical approach, he was not removable for the conviction.
The Ninth Circuit disagreed, finding that because Ruiz-Vidal specifically pled to a lesser included offense of Count 1 (the sale and possession of methamphetamine charge), the Court could consider the substance identified in Count 1 under the modified categorical approach. "California defines a lesser included offense as: '[w]here an offense cannot be committed without necessarily committing another offense, the latter is a necessarily included offense.' California courts determine whether an offense is necessarily included by reviewing whether the facts actually alleged in the accusatory pleading include all the elements of the lesser offense, so that the greater offense cannot be committed without also committing the lesser offense." Moreover, "because possession of each different drug under California Health and Safety Code § 11377(a) constitutes an entirely separate offense, the indictment charged him with the specific offense of sale of methamphetamine, not sale of a controlled substance. A conviction for possession of any other drug couldn’t be a lesser included offense to sale of methamphetamine." Finally, the court noted that "[d]uring the colloquy, the judge specifically asked Ruiz-Vidal whether there was a factual basis for a conviction under the possession offense 'lesser included to count 1.'" This, the court determined, provided the necessary link between the substance listed in count 1 and Ruiz-Vidal's conviction.
Unclear from the decision is how a simple possession conviction can be properly characterized as an aggravated felony. Crimmigration nerds across the country (or at least one in Los Angeles) are dying to know.
The full text of Ruiz-Vidal v. Lynch can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/06/17/11-73433.pdf