If the prosecution objects to striking the name of the specific controlled substance from the charge, on the ground that the prosecution will lose its ability to charge the current conviction as a prior controlled substances conviction in a future drug prosecution, counsel can stipulate that the current conviction may be used as a prior under that code section without admitting the exact nature of the controlled substance involved in the current case. Counsel can make it a People v. West stipulation, done for tactical reasons, rather than because the substance was in fact a certain substance, and expressly refuse to agree that the substance was in fact the substance identified in the original charge. Otherwise, the new conviction will cause deportation. See Health & Safety Code 11370.4(a) (making a prior involving heroin, cocaine base, or cocaine sufficient to justify a sentence enhancement), 11370.4(b) (making a prior involving methamphetamine, amphetamine, PCP, and its analogs sufficient to justify a sentence enhancement).

This type of plea bargain agreement is enforceable, regardless of whether the underlying substance in fact triggers the sentence enhancement. In People v. Miller, 202 Cal.App.4th 1450 (5th Dist. Jan. 27, 2012), the court agreed there was error in charging and accepting the plea to diazepam possession as a felony, because Health & Safety Code 11375(a), (c)(4), provided that offense was a misdemeanor, rather than a felony. The court, however, for reasons of public policy, conclude[d] appellant is estopped from vacating his plea and modifying his conviction, by his consent to the plea agreement. (Id. at 1452.)

In Feb., 2005, Miller pleaded guilty to possession of diazepam, in violation of Health & Safety Code 11350(a), and in April, 2005, received a sentence including three years probation, to terminate in April, 2008. Miller later attempted to vacate this conviction:

In April 2010, appellant filed a motion to vacate his plea and modify his conviction, on the grounds that a felony conviction for unlawful possession of diazepam was outside the trial court's subject matter jurisdiction, since at most this crime was a misdemeanor. Although the trial court agreed a mistake had been made, it denied the motion on grounds that equitable estoppel barred appellant from vacating his conviction. The trial court commented that appellant had received the benefit of a plea bargain in light of the fact that there was another felony available to the People to prosecute him, possession of Vicodin, which was dismissed as part of the plea. Appellant obtained the requisite certificate of probable cause and appealed the trial court's ruling. (Pen.Code, 1237.5.)

. . .

Appellant asserts a single claim: that the equitable estoppel doctrine has no application to the circumstances of his case. He contends equitable estoppel applies only where a person is looking to receive a benefit that reduces the direct penal consequences of the judgment, for example, a reduced sentence. He argues, however, that he has fulfilled all the requirements of the plea agreement and probation term, and is not asking to reduce the term or otherwise receive some sort of recompense for the error. Instead, he seeks essentially only to eliminate the collateral consequences of the erroneous conviction and plea to a felony, that is, the negatives associated with a felony conviction and the burden of declaring his prior conviction to potential employers and licensing agencies. (Footnote omitted.)

Respondent concedes that the plea agreement erroneously stated that diazepam possession was a felony and that appellant's plea to the same was in error. (Footnote omitted.) Respondent, however, asserts that appellant is estopped from modifying his conviction on equitable estoppel grounds. (Footnote omitted.) The facts are not in dispute and we review the application of the estoppel doctrine de novo, as a question of law. (See People v. Panizzon (1996) 13 Cal.4th 68, 80.) As noted above, we conclude that for reasons of public policy, appellant is estopped from asserting his claim of error to vacate and modify his conviction.

(Id. at 1455-56.)

The court here relied on People v. Ellis (1987) 195 Cal.App.3d 334, in which the defendant admitted as part of her plea bargain that her prior federal bank robbery conviction constituted a serious felony for enhancement purposes, when it did not in fact meet the California serious felony elements as a matter of law. (Id. at 342.) The Ellis court also found, however, that estoppel principles could apply where the court acted only in excess of its jurisdiction (as opposed to a complete lack of jurisdiction), by exceeding its statutory authority to accept an erroneous plea agreement: the issue was whether defendant, by her consent to the plea bargain ... should be estopped from later asserting a claim of error. (Id. at 343.)

The court distinguished in a footnote between simple estoppel and equitable estoppel:

Appellant's briefs confuse the doctrine of equitable estoppel with simple estoppel. The doctrine discussed in Ellis, and other cases involving criminal plea agreements in excess of jurisdiction, relates to simple estoppel, which generally provides that a party is barred from taking certain positions contrary to their previous actions, such as consenting to a plea agreement. (See City of Hollister v. Monterey Ins. Co. (2008) 165 Cal.App.4th 455, 486 and fn. 21.) The focus is on the actions of the party arguing against estoppel, not on the other involved parties. Equitable estoppel, however, generally discussed in the civil context, focuses on knowledge of the parties, intent and reliance. These elements are not part of the analysis in this case, as appellant conceded at argument. (See People v. Castillo (2010) 49 Cal.4th 145, 155 and fn. 10.)

(Id. at 1456, n.5.)

Therefore, the prosecution can obtain a guarantee of priorability without identifying the specific controlled substance in the new plea colloquy.