Case Information
*2 PAEZ, Circuit Judge:
Hеctor Giovanni Ramirez petitions for review of the Board of Immigration Appeals’s (“BIA”) decision that his conviction under California Penal Code section 273a(a) for felony child abuse constitutes a crime of violence under 18 U.S.C. § 16(a) and (b) and therefore qualifies as an aggravated felony under 8 U.S.C. § 1101(a)(43)(F). We conclude that section 273a(a) is not a categorical crime of violence and is not divisible. We thus agree with Ramirez that his conviction does not constitute an aggravated felony, *3 and grant the petition and remand.
I.
A. Ramirez is a native and citizen of El Salvador. He immigrаted to the United States as a lawful permanent resident in 1992, and all of his immediate family members are U.S. citizens. Ramirez graduated from high school in the United States and subsequently enlisted in the U.S. Navy, serving for four years.
In February 2000, Ramirez was convicted of felony child abuse, in violation of section 273a(a), and was sentenced to 8 years and 4 months of imprisonment. Ramirez appealed his conviction, which the California Court of Appeal affirmed. The Department of Homeland Security commenced removal proceedings against Ramirez in February 2007, alleging that he was subject to removal from the United States under 8 U.S.C. § 1227(a)(2)(A)(iii) as an alien convicted of a “crime of violence,” which is a deportable “aggravated felony” under 8 U.S.C. § 1101(a)(43)(F) and 18 U.S.C. § 16. The immigration judge found him removable as charged and ordered him removed. Ramirez appealed to the BIA, arguing that his conviction did not constitute a crime of violence and therefore did not constitute an aggravated felony. The BIA affirmed the IJ, concluding that a) section 273a(a) is a divisible statute; and b) it contained a “direct infliction” prong, which incorрorated a mens rea element of general intent, and was therefore a categorical match for the federal definition of a crime of violence. The BIA, employing the modified categorical approach, examined the records of conviction contained in the administrative record and concluded that Ramirez had been convicted of the direct infliction prong. Ramirez filed a timely petition for review.
Although we lack jurisdiction to review the final orders
of removal of aliens convicted of certain crimes, 8 U.S.C.
§ 1252(a)(2)(C), we retain jurisdiction to determine our own
jurisdiction. Therefore, when the issue at hand is whether an
alien has committed an aggravated felony, “the jurisdictional
question and the merits collapse into one.”
See Ye v. INS
“We do not defer [under
Chevron U.S.A., Inc. v. Natural
Resources Defense Council, Inc.
, 467 U.S. 837 (1984)] to
BIA interpretations of state law or of provisions of the federal
criminal code referenced within, but not part of, the
Immigration and Nationality Act,” (INA) inсluding 18 U.S.C.
§ 16.
Ortega-Mendez v. Gonzales
,
B.
To assess whether a state conviction qualifies as an
aggravated felony, we generally employ the “categorical
approach” to determine whether the state offense matches the
“generic” federal definition of the pertinent offense listed in
the INA: here, a crime of violence under 18 U.S.C. § 16(a) or
(b).
[1]
Moncrieffe v. Holder
,
6 R AMIREZ V . L YNCH (emphasis added). We “then determine whether even those acts are encompassed by the generic federal offense.” Id .; Descamps v. United States , 133 S. Ct. 2276, 2283 (2013) (“The key . . . is elements, not facts.”).
In identifying the elements of the statute of conviction, we
look not only to the text of the statute, but also to how state
courts have interpreted and applied the statute.
Covarrubias
Teposte v. Holder
,
In a “narrow range of cases,” when the statute at issue is
divisible, we may employ a “modified categorical approach.”
Id.
at 2283–85 (citation omitted). A divisible statute lists
alternative sets of elements, in essence “several different
crimes.”
Id.
at 2284. “If at least one, but not all of those
crimes matches the generic version, a court needs a way to
find out which the defendаnt was convicted of.”
Id.
at 2285.
In these instances, we may look beyond the elements of the
statute to the documents of conviction, i.e., to “the state
charging document, a signed plea agreement, jury
instructions, guilty pleas, transcripts of a plea proceeding and
the judgment,” to determine whether the petitioner was
convicted of a set of elements that falls within the generic
definition.
Fernandez-Ruiz v. Gonzales
,
With these principles in mind, we first examine the generic federal definition of a crime of violence under 18 U.S.C. § 16, and then turn to section 273a(a) of the California Penal Code.
II.
The initial briefing in this case took place before the Supreme Court issued its opinions in Moncrieffe and Descamps , and before we issued our opinion in Rendon v. Holder , 764 F.3d 1077 (9th Cir. 2014). While Ramirez initially agreed that the modified categorical approach was appropriate, he now contends that section 273a(a) is indivisible and categorically is not a crime of violence. The parties filed supplemental briefs, which we have duly considered, addressing the impact of these decisions on Ramirez’s case.
The government does not dispute that section 273a(a) is not a categorical match to the federal generic definition of a crime of violence. Instead, the government argues, as it has throughout, that section 273a(a) is a divisible statute, and that we should therefore apply the modified categorical approach. The government further contends that the court may determine from documents in the administrative record that Ramirez was convicted of the direct infliction prong of section 273a(a), which provides criminal penalties for any person who, “under circumstances or conditions likely to produce great bodily harm or death . . . inflicts [upon a child] unjustifiable physical pain or mental suffering.” The government argues that this prong falls within the generic definition of a “crime of violence” under both 18 U.S.C. § 16(a) and (b).
The federal generic crime at issue, § 16, defines a “crime of viоlence” as either:
(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
(b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.
In
Leocal v. Ashcroft
, the Supreme Court determined that
“‘use’ of force” signifies intentional conduct—“active
employment”—and encompasses a mens rea element greater
than negligence.
Following
Leocal
, in
Fernandez-Ruiz
, we held that
“offenses committed through reckless, or grossly negligent,
use of force” likewise cannot сonstitute “crimes of violence,”
under either § 16(a) or (b).
10 R AMIREZ V . L YNCH III.
A. Turning to the state statute at issue, California Penal Code section 273a(a) provides:
(a) Any person who, under circumstances or conditions likely to produce great bodily harm or death, [1] willfully causes or permits any child to suffer, or [2] inflicts thereon unjustifiable physical pain or mental suffering, or [3] having the care or custody of any child, willfully causes or permits the person or health of that child to be injured, or [4] willfully causеs or permits that child to be placed in a situation where his or her person or health is endangered, shall be punished by imprisonment in a county jail not exceeding one year, or in the state prison for two, four, or six years.
(brackets and numbers added). It is undisputed here that
section 273a(a) criminalizes conduct that would not
necessarily entail any affirmative “use” of force, and
encompasses passive, negligent conduct. For example, the
statute criminalizes conduct that “permits any child to suffer,”
“permits the person or health of thаt child to be injured,” and
“permits that child to be placed in a situation where his or her
person or health is endangered.” California case law
confirms that section 273a(a) is an “omnibus statute,”
meaning that a violation “can occur in a wide variety of
situations: the definition broadly includes both active and
passive conduct, i.e., child abuse by direct assault and child
*9
endangering by extreme neglect.”
People v. Sargent
,
Although section 273a(a) requires a mens rea of
“willful[ness]” for the three prongs of the statute that
criminalize indirect infliction of harm or passive conduct, the
California Supreme Court hаs interpreted “willful[ness]” in
this context to require proof only of criminal negligence.
People v. Valdez
,
While section 273a(a) is not categorically a crime of
violence, the indirect and direct infliction prongs of the
statute are phrased in the disjunctive. Therefore, we next
consider whether section 273a(a) is divisible.
Descamps
,
133 S. Ct. at 2284–85;
see also Medina-Lara v. Holder
B.
In
Descamps
, the Supreme Court clarified that a
“prosecutor charging a violation of a divisible statute must
generally select the relevant element from its list of
alternatives.
And the jury, as instructions in the case will
make clear, must then find that element, unanimously and
beyond a reasonable doubt.
”
In Almanza-Arenas v. Lynch , we recently outlined a three- step process for conducting this divisibility analysis under Descamps . No. 09-71415, slip op. at 10–24 (9th Cir. Dec. 28, 2015). First, we examine the text of the statute of conviction to determine whether it contains multiple crimes with distinct elements, or instead describes alternative means for accomplishing a single crime. We next examine the conviction documents to determine whether we may confirm our statutory analysis. Finally, we verify that our reading is consistent with the way in which stаte courts have construed the statute of conviction.
We turn first to the statutory text. The first part of section 273a(a) requires that the conduct at issue be done “under circumstances or conditions likely to produce great bodily harm or death.” The second part of the statute contains four prongs, worded in the disjunctive, which enumerate the ways in which a person can criminally abuse or endanger a child. Although this part of the statute is worded in the disjunctive, “[t]he mere use of the disjunctive term ‘or’ does not automatically make a statute divisible.” Almanza-Arenas Nо. 09-71415, slip op. at 16 n.11. Here, the text of section *11 273a(a) suggests that the four prongs constitute separate means of committing a single offense. However, because the text of the statute is not clear on its face, we turn to the available conviction documents since such documents may disclose whether the statute is divisible. See id. at 14.
Where, as here, the defendant was tried and convicted by
a jury, we look first to the charging document and jury
instructions.
See Taylor v. United States
,
R AMIREZ V . L YNCH 15 record in this case does not contain the trial court’s jury instructions. However, there was a model jury instruction in place at the time of Ramirez’s conviction, California Jury Instructions–Criminal (CALJIC) No. 9.37. As explained in detail below, this pattern jury instruction did not require unanimity as to which prong of the statute the defendant violated.
Finally, we examine California state law, including model
jury instructions, to confirm that the statute is not divisible.
Under the California constitution, “[i]n a criminal case, a jury
verdict must be unanimous. . . . [and] the jury must agree
unanimously the defendant is guilty of a
specific
crime.”
People v. Russo
,
There is an exception to the juror unanimity requirement,
for a “continuous course of conduct.” In the contеxt of
section 273a(a), a prosecutor can allege a pattern of abuse,
and, in such a case, the jury need not agree unanimously as to
which specific acts the defendant committed within that
pattern.
People v. Ewing
,
A California Court of Appeal case, People v. Vargas *13 251 Cal. Rptr. 904 (Cal. Ct. App. 1988), illustrates how “theories,” as opposed to elements, and the continuous course of conduct exception work in a section 273a(a) prosecution. In Vargas , the prosecution alleged a continuous course of conduct, and argued that either the defendant had violated section 273a(a) by herself inflicting injuries upon her child, or by permitting her co-habitant to injure him and by failing to seek adequate treatment for his injuries. Id. at 909. On appeal, the defendant argued that, while the jury need not be unanimous as to her specific acts within the course of conduct alleged, the jury was required to unanimously agree upon one of the prosecution’s two theories. Id. The court disagreed:
Where a single course of conduct is proved at trial it is permissible for members of the jury to determine that the underlying facts establish a violation of the statute under different legal theories such as direct infliction of abuse or permitting the child’s health or safety to be endangered. The jury need not agree unanimously on the legal theory that defines a given set of facts as criminal conduct.
Id.
(emphases added). The court reasoned that “[t]he
Legislature has seen fit to proscribe
equally, without
distinction as to the available punishment, any
violation of
section 273a, subdivision [(a)].”
Id.
The prosecutor need not
elect to prove either direct infliction or passive conduct, or
negligence or general intent, nor must the court give a
unanimity instruction. Instead, so long as the jury agrees
unanimously that the defendant engaged in a course of
conduct containing acts that violate section 273a(a), the
prosecution can meet its burden of proof. Thus, even where
direct infliction is alleged (as it was in
Vargas
), a jury could
convict a defendant of a violation of the whole statute,
including the direct infliction prong, notwithstanding that the
jury agrees that the defendant committed only negligent or
passive conduct. Direct infliction is merely a “legal
theor[y],”
id.
, and not a “discrete crime.”
Russo
,
While “[a] prosecutor charging a violation of a
divisible
statute must generally select the relevant element from its list
of alternatives,”
Descamps
, 133 S. Ct. at 2290 (emphasis
added), a prosecutor charging section 273a(a) need not
choose among its “legal theories.” Recently, we explained
*14
that statutes which the prosecutor may allege in their entirety
without seeking a unanimous jury verdict on one particular
prong must be considered indivisible. Employing the
modified categorical approach and imposing a collateral
consequence on the basis of such a conviction risks “potential
unfairness” to a defendant who gained nothing by arguing at
trial that he or she violated one prong of the statute, but not
the other.
Lopez-Valencia
,
Another California case, although it post-dates Ramirez’s
conviction, provides an additional clear example of California
courts treating the different prongs as interchangeable “legal
theories.” It also further underscores the futility of arguing
one prong in place of another, confirming that the conundrum
we noted in
Lopez-Valencia
applies here. In
In re L.K.
[e]ven though the juvenile court erred in its reasoning , a ruling or decision, itself correct in law, will not be disturbed on appeal merely because given for a wrong reason. If right upon any theory of the law applicable to the case, it must be sustained regardless of the considerations which may have moved the trial court to its conclusion.
Id. at 349 (emphasis added) (quotation marks omitted). That is, while the evidence might not support a conviction under the direct infliction prong, so long as it supported a conviction under any prong, the state carried its burden of proof. Therefore, even in the unusual circumstance where the record specifies a finding on solely the direct infliction prong (as opposed to the more typical case, in which the prosecution makes a general allegation that the defendant violated the statute with a continuous course of conduct) it cannot be determined with certainty that the defendant directly inflicted any kind of force or committed a general intent crime.
California jury instructions for section 273a(a) implement
the California courts’ distinction between elements and “legal
theories.” Citing to
Vargas
, the use notes that accompany the
jury instructions for section 273a(a), CALJIC No. 9.37 from
1996 (the latest edition prior to Ramirez’s conviction)
explicitly state that the juror unanimity instruction, CALJIC
No. 17.01, “is not required when the same act or omission
may have been either intentional or criminal negligence.”
[3]
[3]
CALJIC No. 9.37 was not updated between 1996 and 2002. In 2002,
CALJIC No. 9.37 was revised to reflect the holding of
Valdez
, which held
that criminal negligence was the appropriate standard for the indirect
infliction prongs.
Valdez
,
That is, a jury need not be unanimous as to criminal negligence or general intent, even where it must be unanimous as to the underlying conduct. Thus, these alternative mens rea requirements are not “elements” for purposes of Lopez-Valencia , Rendon or Descamps . Rather, they are alternative means for accomplishing a single indivisible crime.
IV.
Our examination of the text of section 273a(a), the Shepard documents, and California case law reveаls that the state need not prove that a defendant committed a violation of section 273a(a) under a particular prong; the four prongs are instead alternative “legal theories” which the prosecution may argue, and none of which the jury need decide upon unanimously. Because section 273a(a) is not a divisible statute, our analysis stops here. Under the categorical approach, section 273a(a) is broader than 18 U.S.C. § 16, and therefore not a “crime of violence,” nor does it qualify on that basis as an aggravated felony.
Because the Board erred when it determined that Ramirez had been convicted of an aggravated felony, we grant the petition and remand.
Petition GRANTED and REMANDED.