Criminal defense counsel can seek to offer a factual basis in a controlled substance case that will not establish the nature of the substance sufficiently to trigger deportation as a result of involving a drug on the federal controlled substances list, by the following procedure:

(1) Draft a safe factual basis statement, for example:

At ___ p.m., on Month, Day, Year, at Address, in the county of Ventura, California, Mr. Defendant possessed [or possessed for sale] a controlled substance
prohibited under Health and Safety Code sec. 11377 [or 11378].

(2) Counsel can state this factual basis on the record at the new plea, and
ask the defendant, Isnt that correct?

(3) If the prosecution objects, counsel can argue (or submit a short memorandum) that naming the drug is unnecessary to avoid plea. People v. Guy (1980) 107 Cal. App. 3d 593, 601.

(4) Counsel can ask the court to accept the plea and rule the oral factual basis statement is sufficient under People v. Holmes (2002) 32 Cal. 4th 432.

It is safest to refuse to stipulate to the accuracy of any factual basis stated by the DA, or to a factual basis contained in the police report or preliminary hearing transcript, or other document. Counsel can point out: Your Honor, as you know, the police version many times differs from the defendants version of the facts, and therefore we are unable to stipulate to the accuracy of the [police report][px transcript][prosecutors version], but we hereby offer to admit the truth of the following factual basis.