P.

I. BACKGROUND

At a rave party in Los Angeles on December 31, 2009, defendant Zachary Edward Davis sold undercover police officer Romeo Rubalcava two blue pills for $20. Defendant was arrested along with a second man he consulted during the transaction. As officers approached, the second man discarded a clear plastic bag containing 19 additional blue pills. Defendant was charged with sale and

1 possession for sale of a controlled substance. (Health & Saf. Code, §§ 11379, subd. (a), 11378.)1 At trial, a criminalist testified that he tested the two pills defendant sold and a representative sample of the 19 discarded pills. The two pills and the sample contained “M.D.M.A. or Ecstasy.” The criminalist did not elaborate on the chemical composition of the drug. His lab report, which was admitted in evidence, identified the pills as 3,4-methylenedioxymethamphetamine. Officer Rubalcava described Ecstasy as a party drug, the effects of which can last up to 24 hours. He did not further explain its effects on the user. In closing, the prosecutor argued that the jury had to find the substance defendant possessed and sold was “Ecstasy.” The jury instructions and verdict forms on both counts…

The question presented here is the sufficiency of the evidence to prove a given material is a controlled substance regulated by the Health and Safety Code. Specifically, may a jury properly infer that 3,4-methylenedioxymethamphetamine (MDMA) is controlled based solely on its chemical name, when that substance is not listed in the code? We conclude that evidence of MDMA’s chemical name, standing alone, is insufficient to prove the material is a controlled substance.

I. BACKGROUND

At a rave party in Los Angeles on December 31, 2009, defendant Zachary Edward Davis sold undercover police officer Romeo Rubalcava two blue pills for $20. Defendant was arrested along with a second man he consulted during the transaction. As officers approached, the second man discarded a clear plastic bag containing 19 additional blue pills. Defendant was charged with sale and possession for sale of a controlled substance. (Health & Saf. Code, §§ 11379, subd. (a), 11378.)

*357 At trial, a criminalist testified that he tested the two pills defendant sold and a representative sample of the 19 discarded pills. The two pills and the sample contained “M.D.M.A. or Ecstasy.” The criminalist did not…

I concur. The People proved that the blue pills defendant sold to the undercover police officer contained 3,4-methylene-dioxymethamphetamine (MDMA), commonly known as Ecstasy, but it failed to prove that MDMA is a controlled substance. Accordingly, defendant’s convictions of selling and possessing a controlled substance cannot stand.

It appears that MDMA is a controlled substance, specifically, that it is either an analog of, or contains, a controlled substance, either amphetamine or methamphetamine. (People v. Becker (2010) 183 Cal.App.4th 1151, 1155-1156 [ 107 Cal.Rptr.3d 856 ]; People v. Silver (1991) 230 Cal.App.3d 389, 392-396 [ 281 Cal.Rptr. 354 ]; see maj. opn., ante, at pp. 358-359.) But this is so as a matter of fact, not as a matter of law. Whether MDMA is a controlled substance is not a fact a court or jury can judicially notice. Here, the prosecution elicited from the expert that the substance contained MDMA, but it neglected to establish further that MDMA is either an analog of or contains either amphetamine or methamphetamine.

Assuming, as the Becker and Silver cases indicate, MDMA is a controlled substance, it is unfortunate that the prosecution has to prove this…