Although not a named substance, MDMA qualifies as a controlled substance within the meaning of the Health and Safety Code because its chemical name contains the word “methamphetamine.” A jury found Davis guilty of sale and possession of a controlled substance, MDMA. Davis argued that because MDMA is not listed in the applicable statutes as a controlled substance, the prosecution was required to produce expert testimony comparing the substance’s chemical structure and physiological effects to that of a listed controlled substance. Relying on People v. Le (2011) 198 Cal.App.4th 1031, Davis argued his conviction must be reversed because he did not stipulate that MDMA is a controlled substance and the prosecution offered no expert testimony that the “language of a controlled substance statute or the analog statute” had been met. Disagreeing with the holding in Le, the Court of Appeal here stated it applied “common sense in concluding that the chemical name of the substance, by including the term ‘methamphetamine'” supported the inference that MDMA contained a controlled substance. The court took judicial notice of treatises that verified “MDMA’s chemical name reflects its component elements, which include methamphetamine and, by extension, amphetamine.”

The court’s error in failing to instruct the jury it must determine that MDMA is a controlled substance, was harmless error. Davis argued that whether MDMA is a controlled substance or controlled substance analog, is an element of the offense which must be found by the jury, and the court’s failure to so instruct was error. While agreeing that the jury should have been so instructed, the Court of Appeal found that because MDMA’s status as a controlled substance is an inference rather than a presumption, any error was harmless. Further, defendant effectively conceded the omitted element by failing to request its inclusion in instructions, failing to object to the instructions as given, and not arguing failure of proof to the jury. When a defendant effectively concedes an omitted element, any instructional error resulting from the omission of that element, is harmless. (People v. Flood (1998) 18 Cal.4th 470, 504.)