Nicanor-Romero v. Mukasey

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Tatyana LEVINA, Plaintiff-Appellant, v. SAN LUIS COASTAL UNIFIED SCHOOL DISTRICT, Defendant-Appellee.

No. 06-55179

United States Court of Appeals, Ninth Circuit

April 23, 2008

injunction pending appeal is granted in part.

The States’ authorized action to manage California sea lion predation at the Bonneville Dam is stayed to the extent their proposed actions involve the lethal taking of any sea lions. However, appellees have stated that they have the ability to transfer up to 19 California sea lions to zoos and aquaria. The court does not stay that portion of the NMFS Approval, and the States may proceed with the capture and relocation of such California sea lions at this time.

In addition, and consistent with the above discussion, the court sua sponte expedites this appeal. The parties may stipulate to proceed on the briefing already submitted in this appeal. In the alternative, the parties shall file simultaneous briefs on the merits. The opening briefs are due in the Clerk‘s office by May 1, 2008. Response briefs are due in the Clerk‘s office by May 5, 2008.

The Clerk shall calendar this case for oral argument on May 8, 2008 at 10:00 a.m. in Pasadena, California. The court anticipates that proceedings on the merits in the district court meanwhile will go forward pending this appeal.

SO ORDERED.

Marcy J.K. Tiffany, Wyner & Tiffany, Torrance, CA, for Plaintiff-Appellant.

Howard A. Friedman, Peter A. Sansom, Lozano Smith, Vista, CA, for Defendant-Appellee.

Before: DIARMUID F. O‘SCANNLAIN and MILAN D. SMITH, JR., Circuit Judges, and MICHAEL W. MOSMAN,^* District Judge.

ORDER

The petition for rehearing is GRANTED. The opinion filed on December 28, 2007, is withdrawn. A superseding memorandum disposition will be filed concurrently with this order. Further petitions for rehearing or rehearing en banc may be filed.

malum prohibitum offenses. The majority abandons both approaches.

I agree with the majority that “[w]e have not relied on a consistent or easily applied set of criteria” to judge what constitutes a crime involving moral turpitude, and I would applaud any effort to reconcile the cases and bring clarity to this area. Maj. Op. at 998. However, I believe that the majority‘s approach renders our precedents less comprehensible. The majority essentially eliminates an entire category of analysis from our jurisprudence and would require us to repudiate much of our precedent involving sexual offenses against minors. In my view, the majority has not tried to reconcile our cases so much as to upend them. Furthermore, in the process, the majority recasts § 647.6(a) in a way that renders it unrecognizable to California courts. The Supreme Court warned us this last Term that we must do more than apply our “legal imagination to a state statute‘s language.”

Gonzales v. Duenas-Alvarez, 549 U.S. 183, 127 S.Ct. 815, 822, 166 L.Ed.2d 683 (2007). No less can be said about applying our imagination to a state‘s caselaw.

I respectfully dissent.

I.

In this section, I first discuss how we have treated sexual offenses and then turn to how our precedent on moral turpitude applies to the California statute in question, California Penal Code § 647.6(a).

A.

“We have generally divided crimes involving moral turpitude into two basic types: those involving fraud and those involving grave acts of baseness or depravity.”

Galeana-Mendoza v. Gonzales, 465 F.3d 1054, 1058 (9th Cir.2006) (quoting

Carty v. Ashcroft, 395 F.3d 1081, 1083 (9th Cir.2005)). Although the latter category is not well-defined, both we and our sister circuits have consistently held that sexual offenses generally fall within that category. See

Morales v. Gonzales, 478 F.3d 972, 978 (9th Cir.2007) (immoral communication with a minor);

Gonzalez-Alvarado v. INS, 39 F.3d 245, 246-47 (9th Cir.1994) (incest) (per curiam);

Schoeps v. Carmichael, 177 F.2d 391, 394 (9th Cir.1949) (lewd and lascivious conduct);

Bendel v. Nagle, 17 F.2d 719, 720 (9th Cir.1927) (statutory rape); see also

Sheikh v. Gonzales, 427 F.3d 1077, 1082 (8th Cir.2005) (contributing to delinquency of a minor);

Maghsoudi v. INS, 181 F.3d 8, 14-15 (1st Cir.1999) (indecent assault);

Palmer v. INS, 4 F.3d 482, 485 (7th Cir.1993) (contributing to sexual delinquency of a minor);

Castle v. INS, 541 F.2d 1064, 1066 (4th Cir.1976) (carnal knowledge of a minor) (per curiam);

Marciano v. INS, 450 F.2d 1022, 1024 (8th Cir.1971) (statutory rape);

United States v. Kiang, 175 F.Supp.2d 942, 951-52 (E.D.Mich.2001) (fourth degree sexual assault).¹ Such offenses so violate contemporary moral standards that they “involve moral turpitude by their very nature.”

Gonzalez-Alvarado, 39 F.3d at 246 (internal quotation marks omitted).

Sexual offenses have consistently been classified as crimes involving moral turpitude irrespective of any injury to the victim, physical or otherwise. Sexual misconduct need not rise to the level of rape or involve physical assault to violate contemporary moral standards. In fact, to constitute a crime involving moral turpitude, the sexual misconduct need not even involve physical contact: We recently held that mere verbal communication with a minor “for immoral purposes of a sexual nature” is sufficiently contrary to American ethics to constitute a crime involving moral turpitude.

Morales, 478 F.3d at 978.

We have also recognized that baseness and depravity inhere in offenses committed against particularly vulnerable victims, such as children or spouses. We have held, for example, that both spousal abuse and child abuse are crimes involving moral turpitude, even though under California law, they are merely variations on the offense of battery—which is not itself a crime involving moral turpitude. See CAL. PENAL CODE § 243(e)(1) (battery against one‘s spouse);

Grageda v. INS, 12 F.3d 919, 922 (9th Cir.1993) (noting that spousal status makes spousal abuse a more grievous offense than assault);

Guerrero de Nodahl v. INS, 407 F.2d 1405, 1405-07 (9th Cir.1969) (child abuse); Matter of Garcia-Hernandez, 23 I & N Dec. 590, 591, 594 (BIA 2003) (noting that battery as defined in the California Penal Code is not a crime involving moral turpitude). In holding spousal abuse to be a crime involving moral turpitude, we observed that

an adult is not as helpless of a victim as a child; nevertheless, a spouse is committed to a relationship of trust with, and may be dependent upon, the perpetrator. This relationship makes the crime of spousal abuse different from violence between strangers or acquaintances, which, depending on the wording of the statute, is not necessarily a crime of moral turpitude.

Grageda, 12 F.3d at 922. Our recognition that the victim‘s vulnerability or intimate relationship with her victimizer can render an act inherently base or vile simply reflects contemporary American mores.

Perhaps no conduct so unequivocally violates American ethics as that which encompasses both of these categories, namely sexual predation upon the most vulnerable members of our society. Children in particular—because of their naiveté, their dependence on adults, and their inability to understand, flee, or resist such advances—are vulnerable to adults who seek to take advantage of them sexually. Thus, we find such conduct especially repulsive and worthy of the severest moral opprobrium. Cf.

New York v. Ferber, 458 U.S. 747, 757, 763, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982) (noting that the “prevention of sexual exploitation and abuse of children constitutes a government objective of surpassing importance” and holding on that basis that child pornography, unlike adult pornography, falls outside First Amendment protection). Put differently, sexual misconduct, particularly such conduct directed toward children, falls neatly into the category of crimes that are malum in se. Courts have long considered the distinction between malum in se and malum prohibitum crimes to be the main, if not the deciding, factor in determining whether a crime involves moral turpitude. See, e.g.,

Quintero-Salazar, 506 F.3d at 694 (“Because § 261.5(d) defines conduct that is malum prohibitum in at least some cases, it cannot categorically be a crime of moral turpitude.“);

Hyder v. Keisler, 506 F.3d 388, 391 (5th Cir.2007) (“Moral turpitude has been defined as an act which is per se morally reprehensible and intrinsically wrong, or malum in se . . . .” (quoting

Hamdan v. INS, 98 F.3d 183, 186 (5th Cir.1996)));

Nguyen v. Chertoff, 501 F.3d 107, 109 n. 3 (2d Cir.2007) (same);

Recio-Prado v. Gonzales, 456 F.3d 819, 821 (8th Cir.2006) (finding “that moral turpitude inheres in” the crime of maliciously and intentionally firing a weapon into an occupied dwelling because it was “undoubtedly malum in se“);

Padilla v. Gonzales, 397 F.3d 1016, 1020 (7th Cir.2005) (“We have acknowledged that the distinction between crimes that involve moral turpitude and those that don‘t corresponds to the distinction between crimes that are mala in se and those that are mala prohibita.“);

Beltran-Tirado v. INS, 213 F.3d 1179, 1184-85 (9th Cir.2000) (relying on distinction between malum prohibitum and malum in se to conclude that a malum prohibitum crime did not involve moral turpitude); In re Flores, 17 I & N Dec. 225, 227 (B.I.A.1980) (defining moral turpitude “as an act which is per se morally reprehensible and intrinsically wrong or malum in se, so it is the nature of the act itself and not the statutory prohibition of it which renders a crime one of moral turpitude“).

The reprehension with which we view such acts explains the consistent, and uncontradicted, determinations by federal courts that sexual misconduct targeting children involves moral turpitude, even where the criminal provision requires no injury or even contact. Such conduct directed at “a minor is inherently wrong and contrary to the accepted rules of morality and the duties owed between persons.”

Morales, 478 F.3d at 978. This is so even where the defendant acted with no specific criminal intent: Because such conduct is so base and vile in and of itself, the defendant commits a crime of moral turpitude simply by willfully committing the wrongful act. See Matter of Torres-Varela, 23 I & N Dec. 78, 84 (BIA 2001); Matter of Tran, 21 I & N Dec. 291, 293 (BIA 1996) (noting that moral turpitude is present “[w]here knowing or intentional conduct is an element of a morally reprehensible offense“).

B.

Section 647.6(a) falls squarely within this category of sexual offenses that we have deemed to involve moral turpitude. The provision criminalizes acting with an abnormal sexual intent so as to “annoy[] or molest[] any child under 18 years of age.” One can be convicted of violating § 647.6(a) only by committing “an act that is objectively and unhesitatingly viewed as irritating or disturbing, prompted by an abnormal sexual interest in children.”

Terry v. Davis Cmty. Church, 131 Cal.App.4th 1534, 33 Cal.Rptr.3d 145, 154 n. 3 (2005); accord

In re Gladys R., 1 Cal.3d 855, 83 Cal.Rptr. 671, 464 P.2d 127, 137 (1970) (noting that § 647.6(a) is “narrow” and limited to offenders “motivated by unnatural or abnormal sexual interest or intent“);

People v. Maurer, 32 Cal.App.4th 1121, 38 Cal.Rptr.2d 335, 338 (1995) (noting that § 647.6(a) is violated only by a disturbing act “motivated by an unnatural or abnormal sexual interest or intent with respect to children” (emphasis and internal quotation marks omitted)). Acting offensively or in a way “designed to disturb, irritate, . . . injure, or at least tend to injure” a child,

People v. Lopez, 19 Cal.4th 282, 79 Cal.Rptr.2d 195, 965 P.2d 713, 717 (1998), for the purposes of satisfying one‘s own “unnatural or abnormal sexual interest” or with such intent shocks the American conscience and is regarded as universally repulsive in this country. Under our cases involving sexual offenses, the universal condemnation accorded such acts by contemporary Americans is sufficient to qualify violations of § 647.6(a) as crimes involving moral turpitude.

Section 647.6(a) applies only to a “comparatively narrow province” of conduct.

In re Gladys R., 83 Cal.Rptr. 671, 464 P.2d at 137; see also

People v. Pallares, 246 P.2d 173, 177 (Cal.Ct.App.1952) (holding that § 647.6(a) does not prohibit mere “annoyance” of a minor). California courts take seriously the requirement that the conduct supporting a § 647.6(a) conviction be objectively offensive. See, e.g.,

People v. Kongs, 30 Cal.App.4th 1741, 37 Cal.Rptr.2d 327, 331 (1994) (holding that “the section must be construed reasonably as setting up an objective test for annoyance or molestation“). As

People v. Carskaddon, 49 Cal.2d 423, 318 P.2d 4 (1957), illustrates, when the conduct does not rise to that level, a conviction under § 647.6(a) will not stand. In that case, the defendant had approached two children, aged six and four, in a public park and walked a short distance with them on a sidewalk.

Id. at 5. The court overturned the conviction, noting that the record contained no evidence of any lewd or obscene behavior on the defendant‘s part.

Id. at 5-6. In other words, the defendant‘s conduct lacked the objectively offensive act required under the statute.

More importantly, the statute does not extend even to all offensive conduct; it reaches only offensive conduct that is motivated by an abnormal sexual interest in the child. See, e.g.,

Lopez, 79 Cal.Rptr.2d 195, 965 P.2d at 717. The statute targets the motivation common to sexual predators of all types, but it criminalizes only those predators who specifically direct their abnormal interests toward children under the age of 18, presumably in recognition of such children‘s special vulnerability to those driven by such motives. This limitation makes sense in light of the purpose of this statute, which is to protect “children from interference by sexual offenders, and the apprehension, segregation and punishment of the latter.”

In re Gladys R., 83 Cal.Rptr. 671, 464 P.2d at 137 (quoting

People v. Moore, 137 Cal.App.2d 197, 290 P.2d 40, 41 (1955)); see also

People v. Thompson, 206 Cal.App.3d 459, 253 Cal.Rptr. 564, 569 (1988). A desire to prey sexually on any member of our society, much less the most vulnerable members, so fundamentally offends the contemporary American moral sensibility that it unquestionably involves moral turpitude.

Finally, California itself recognizes the moral gravity of the offense. Violations of § 647.6(a) are “viewed as base, vile and depraved” and are, therefore, deemed to involve “moral turpitude.”

Brewer v. Dep‘t of Motor Vehicles, 93 Cal.App.3d 358, 155 Cal.Rptr. 643, 648 (1979). The California Penal Code defines violations of § 647.6(a) as “sexual abuse,” CAL. PENAL CODE § 11165.1, and perpetrators who are convicted under this provision must register as sex offenders with the State of California, CAL. PENAL CODE § 290(a)(1)(A), (a)(2)(A); cf.

Kongs, 30 Cal.App.4th 1741, 37 Cal.Rptr.2d 327, 331 (1994) (“For the most part, [this section] has been applied to incidents of explicit sexual conduct....“).

II

Having demonstrated that § 647.6(a) falls comfortably within our standard approach to sexual offenses, I now turn to the problems attending the novel test proposed by the majority and demonstrate that it wreaks havoc on our precedent involving such offenses. The majority accomplishes this by dividing the offense into decontextualized actus reus and mens rea components. Isolating these elements from each other,² the majority then concludes that neither element suffices to render the prohibited conduct morally turpitudinous. See Maj. Op. 998-1003.

The majority‘s new analysis not only departs from our prior analysis, it does violence to the integrity of § 647.6(a). The majority does precisely what California courts have expressly refused to do: It has completely isolated the actus reus and mens rea from each other, bringing about “an unrealistic separation of motivation and acts.”

Thompson, 253 Cal.Rptr. at 568; see also id. (“We doubt the court [in

Carskaddon, 318 P.2d at 4-6] intended to separate the two elements when it made its general statement about [§ 647.6(a)].“);

People v. Dunford, 2003 WL 1275417, at *6 (Cal.Ct.App. March 19, 2003) (noting that some, but not all, photography of fully clothed children is morally offensive because it is “the motivation in combination with the perpetrator‘s disturbing conduct” that determines whether an act falls within the statute‘s scope). In the sections that follow, I explain why the majority‘s actus reus/mens rea analysis is artificial and why it is inconsistent with our precedents.

A.

The majority suggests that a crime cannot involve moral turpitude unless the actus reus results in some sort of injury to the victim, whether physical or psychological; such injury, it implies, is the sine qua non of base or depraved conduct. See Maj. Op. at 1000-01. However, as I noted above, we have never required a showing of injury as a prerequisite to classifying a sexual offense as a crime involving moral turpitude, and such a requirement is simply irrelevant to determining the moral offensiveness of such acts.

The majority objects that § 647.6(a) covers non-sexual touching or behavior involving no physical contact whatsoever. Maj. Op. at 1000. This characterization of the statute‘s requirements is tendentious at best.³ But even if accurate, the majority‘s objection simply is irrelevant given our prior approach to sexual offenses. For example, the provision at issue in our recent decision in

Morales provided that “a person who communicates with a minor for immoral purposes, or a person who communicates with someone the person believes to be a minor for immoral purposes, is guilty of a gross misdemeanor.” WASH. REV. CODE § 9.68A.090(1), quoted in

Morales, 478 F.3d at 978. To violate that provision, the defendant need only engage in mere verbal communication with a minor “for immoral purposes of a sexual nature.”

Morales, 478 F.3d at 978 (citing

State v. Hosier, 157 Wash.2d 1, 133 P.3d 936, 941 (2006)). Despite the absence of any requirement that there be physical contact, we held that mere “[s]exual communication with a minor is inherently wrong and contrary to the accepted rules of morality and the duties owed between persons.”

Id. As such, violation of the statute “categorically constitutes a crime involving moral turpitude.”⁴

Id.

The majority further objects that § 647.6(a) does not require the child to be offended by, irritated by, or even aware of the act. Maj. Op. at 1000. This objection again misses the point. After all, it is unlikely that many young children are aware of the “repulsive [] nature” of the act perpetrated upon them by their molesters.

Schoeps, 177 F.2d at 394. Our revulsion at the inappropriate touching of a minor is not ameliorated if the child happens to be sleeping or is otherwise unaware of the offensive contact, and we do not view sexual communication with a minor less blameworthy if the minor fails to recognize the offensive nature of the communication. Cf.

State v. Hosier, 124 Wash.App. 696, 103 P.3d 217, 222 (2004) (noting that it would be absurd to require the minor targeted with immoral communication as defined in the statute at issue in

Morales to be able to understand the offensive nature of the communication because that reading would “restrict the statute‘s application to victims sexually mature beyond their years, or [] omit from its reach the very victims it is intended to protect“). What is lost in the majority‘s analysis is the fact that we find such acts so repulsive in part because we do not expect children to be sexually aware, and because we find actions that impose such awareness on them—or take advantage of their lack of awareness—to be especially depraved. It is for precisely this reason that § 647.6(a) criminalizes acts that are objectively disturbing or irritating: It would be absurd to rely on the subjective feelings of a two-year-old in determining whether the act was offensive.⁵

B.

The majority‘s handling of the mens rea element similarly upends our precedents. The majority objects that the mens rea for § 647.6(a) “does not pose a particularly high hurdle” for the prosecution because it provides only for a reasonable mistake-of-age defense and requires no specific intent to commit a crime. Maj. Op. at 1000-02. The majority improperly conflates a defendant‘s “negligen[ce] in believing that the victim is eighteen or older” with “negligence-based crimes,” which generally do not involve moral turpitude. Maj. Op. at 1001-02. A negligent assault, for example, “is unintentional, unwitting, and committed without contemplation of the risk of injury involved.”

Partyka v. Att‘y Gen., 417 F.3d 408, 414 (3d Cir.2005). Whether a negligence-based crime is a crime involving moral turpitude bears no relation to whether a crime that would otherwise constitute a crime involving moral turpitude is subject to a negligent mistake-of-age defense. Cf.

Castle, 541 F.2d at 1066 (“It is unnecessary for judicial or administrative officials to examine the extenuating factors which an offender [convicted for the crime of carnal knowledge of a minor] might raise in his attempt to cleanse himself of the stigma of moral obliquity where the commission of the crime itself must necessarily involve moral turpitude. The inherent nature of the offense rather than the circumstances surrounding the transgression is the determinative element.“). Neither we nor any of our sister circuits have ever required the availability of such a defense in the context of sexual offenses, particularly those directed at minors.

Under the majority‘s mens rea analysis, it is doubtful that any statute criminalizing behavior directed at children would qualify as a crime of moral turpitude so long as it did not provide for a good faith mistake-of-age defense. See Maj. Op. at 1001-02. Even if such a defense were available, the majority‘s analysis calls into question whether any crime dependent on the victim‘s age can categorically involve moral turpitude given the ever-present possibility that a child just below the age threshold might be sufficiently precocious that the conduct does not “shock the public conscience.”⁶ Id. at 999-1000; see also id. at 1001-02. This result would be, to put it mildly, counterintuitive: In many instances, it is the fact that the wrongful act is directed at a child that makes it especially base or vile.

C.

In sum, however appropriate the majority‘s approach might be for non-sexual crimes whose moral offensiveness is less clear, it is simply irreconcilable with our cases involving sexual misconduct, particularly where that misconduct is directed at minors. A brief example will illustrate this insurmountable conflict.

The majority‘s reasoning directly contradicts our recent decision in

Morales, where we held that communication with a minor for immoral purposes under Washington law is a crime involving moral turpitude. See

478 F.3d at 978. The statute at issue in that case punishes communication—whether through “words or conduct“—with a minor “for immoral purposes of a sexual nature.”

Id. The Washington provision requires neither injury nor contact, and it lacks a mistake of age defense. In other words, under the majority‘s approach, it is indistinguishable from § 647.6(a) and should not be classified as a crime involving moral turpitude.

The conflict, however, runs deeper. Not only are the actus reus and mens rea elements of § 9.68A.090 analogous to those at issue here; the scope of conduct prohibited by both provisions is also remarkably similar. We have previously noted that much of the conduct prohibited by the Washington statute falls outside the scope of sexual abuse of a minor as we have defined it,

Parrilla v. Gonzales, 414 F.3d 1038, 1042-43 (9th Cir.2005) (holding that WASH. REV. CODE § 9.68A.090 does not categorically involve sexual abuse of a minor), and the Washington Supreme Court has confirmed that § 9.68A.090 broadly “prohibits communication with children for the predatory purpose of promoting their exposure to and involvement in sexual misconduct.”⁷

State v. McNallie, 120 Wash.2d 925, 846 P.2d 1358, 1364 (1993). Furthermore, Washington courts have noted that the statute must apply even to communications not understood by the target, because not to apply them in such cases would defeat the very purpose of the statute by “restrict[ing] the statute‘s application to victims sexually mature beyond their years [and] omit[ting] from its reach the very victims it is intended to protect.”

Hosier, 103 P.3d at 222. The prohibited conduct includes indirect communication, such as sexually explicit notes left on a minor‘s lawn, even where the minor has herself never seen the notes, or on the fence of a kindergarten, even though the children were unable to read. See

State v. Hosier, 157 Wash.2d 1, 133 P.3d 936, 940–43 (2006). It can also involve a game of truth or dare at a slumber party where the host suggested “dares” to the minors, including “(1) for a 12-year-old boy to walk next door and sexually proposition [the host‘s] neighbor, (2) for a boy to touch a girl‘s breasts, and (3) for 12-year-old girls to go outside and expose themselves.”

State v. Montoya, 2008 WL 464075, *3 (Wash.Ct.App. Feb. 25, 2008). If, as we held in

Morales, the conduct covered by WASH. REV. CODE § 9.68A.090 categorically involves moral turpitude, the majority is obligated to offer a plausible explanation as to how conduct prohibited by § 647.6(a) is materially distinguishable.⁸

The majority insists that it does not intend to repudiate prior decisions finding sexual misconduct to be morally turpitudinous, but the fact remains that the majority‘s test is novel and cannot be reconciled with our precedents involving sexual misconduct. In those cases, we have never looked either to the victim‘s injury, awareness, or understanding or to whether the defendant acted with specific intent; rather, we have consistently evaluated the prohibited conduct in light of contemporary American ethics and the distinction between malum in se and malum prohibitum. The majority, with no explanation, jettisons this approach and replaces it with a test that fails to account for much of what we find most offensive in sexually motivated conduct directed at children.

III

The majority‘s new, but flawed, method really comes home to roost when it analyzes California cases the majority thinks prove that we cannot employ the categorical approach. See

Duenas-Alvarez, 127 S.Ct. at 822.

First, the majority completely misstates California law. The majority asserts: “[T]he unnatural or abnormal nature of a defendant‘s sexual interest under § 647.6(a) may be shown by the mere fact that the subject of the interest was underage.” Maj. Op. at 1001. Then, so that there can be no misunderstanding of its position, the majority repeats its misreading of California law: “That is, a sexual interest that would be natural and normal if motivated by conduct directed at an 18-year old becomes unnatural or abnormal under § 647.6(a) if directed at someone who is underage.” Id. With all due respect, that is not California law.

The majority‘s erroneous interpretation of the mens rea element derives in part from a logical error: The majority improperly infers the required mens rea from its understanding of the prohibited conduct, and because the conduct in some cases would not be offensive if directed toward an adult woman, the majority reasons that the victim‘s age alone explains California‘s decision to prohibit the conduct. This reasoning is precisely backwards. California courts have made clear that it is the offensive conduct plus the predatory sexual interest that brings conduct within the scope of the statute; or stated differently, § 647.6(a) punishes those who have an unnatural or abnormal sexual interest in a child and have acted that interest out in some objectively offensive way.

The California courts could not have been more clear on this point. As the California Court of Appeal explained, § 647.6(a) punishes “an abnormal sexual interest or intent manifested by acts of annoyance or molestation toward children.”

Brewer, 155 Cal.Rptr. at 648 (emphasis added); see also

Lopez, 79 Cal.Rptr.2d 195, 965 P.2d at 717 (conduct must be “motivated by an unnatural or abnormal sexual interest in the victim” (internal quotation marks omitted));

Kongs, 37 Cal.Rptr.2d at 331 (holding that “the acts forbidden [by the statute] are those motivated by an unnatural or abnormal sexual interest or intent with respect to children“);

Thompson, 253 Cal.Rptr. at 568 (holding that acts must be “motivated by an abnormal or unnatural sexual interest in the child victim” to violate § 647.6(a)).⁹

Correctly understood, then, a § 647.6(a) conviction requires not merely negligence with regard to the victim‘s age; it also necessarily involves an unnatural or abnormal sexual interest in the child victim. This predatory sexual interest is sufficiently evil to render the prohibited acts morally turpitudinous; indeed, they would be such even if directed at an adult.

Without support for its conclusion in what the California courts have said, the majority resorts to selective factual distinctions to determine what factual showing § 647.6(a) requires for conviction. It points to three cases, two of which are unpublished decisions, and gives us its own reading of the facts. See Maj. Op. at 1000-02, 1005-07. I do not think the cases fall the majority‘s way. In

People v. Dunford, 2003 WL 1275417 (Cal.Ct.App. March 19, 2003), for example, the California Court of Appeal upheld the conviction of a defendant who was charged with surreptitiously taking photographs of fully clothed young girls.

Id. at *1-2. The majority thinks it obvious that no one would find it “unnatural or abnormal” for an adult man to take pictures of non-sexual parts of the body of a fully clothed adult woman. See Maj. Op. at 1000-01. In most cases, I would agree, but the majority‘s hypothetical differs markedly from the facts of

Dunford and glosses over the mental state that brought the defendant‘s actions in that case within the scope of § 647.6(a). In

Dunford, the defendant persistently followed three female children and photographed them over the course of several weeks in various locations around their neighborhood.

Dunford, 2003 WL 1275417, at *1.

Dunford had a previous conviction under § 647.6(a) for taking photos of an 11-year-old girl and three of her friends with “a camera attached to the belt loop of his pants” with “[h]is pants . . . unzipped and his penis . . . protruding.”

Id. at *2. On another occasion, the defendant had been seen “secretively photographing young girls in bathing suits” at a public swimming pool.

Id.

Nothing in

Dunford supports the majority‘s implication that Dunford‘s sexual interest was abnormal or unnatural because his victims were under the age of eighteen. Indeed, the California Court of Appeal was pellucid on this point. It stated that “[w]hether the defendant‘s conduct was objectively annoying is distinct from the issue of whether the defendant had an actual perverse sexual motive,” because “[s]ection 647.6 is violated by conduct that would unhesitatingly irritate a normal person and that is motivated by an unnatural or abnormal sexual interest in the victim.”

Id. at *3. It freely acknowledged that “the act of viewing children for sexual pleasure may not, in itself, be criminal,” and that “a person photographing a scene open to the public, without more, does not violate section 647.6.”

Id. at *3-*4. The court concluded:

Dunford‘s argument is premised on the erroneous belief that the conduct required under the statute must be objectively sexual.... [S]ection 647.6 may proscribe conduct or acts that are not themselves lewd or obscene. Rather the objectively annoying conduct must be motivated by an abnormal or unnatural sexual interest in the child victim. It is the motivation in combination with the perpetrator‘s disturbing conduct that limits the scope of the statute.

Id. at *6 (footnote and citations omitted). I am firmly convinced that Dunford‘s conduct, motivated by such an obviously predatory sexual interest, would be offensive even if directed at an adult woman, much less at three pre-pubescent girls, including one as young as six. California has chosen to punish only those with such abnormal and unnatural desires who target children. I cannot fathom how that means that § 647.6(a) does not categorically define a crime involving moral turpitude.¹⁰

A second case cited by the majority,

People v. Thompson, 206 Cal.App.3d 459, 253 Cal.Rptr. 564 (1988), is simply irrelevant: The defendant in that case did not challenge the trial court‘s determination that he was motivated by an unnatural or abnormal sexual interest. Thompson followed a twelve-year old girl on a bicycle, passing her some ten times. The child was so afraid that she went to a nearby residence—someone she did not know—shaking, crying and asking for help. The resident noticed the car pass her home an additional three to four times.

Id. at 565-66. On appeal, Thompson claimed that § 647.6 required a “lewd or obscene act.” The court rejected his argument, stating that the section “only requires proof of articulable, objective acts which would cause a normal person to be unhesitatingly irritated, provided the acts are motivated by an abnormal or unnatural sexual interest in the child victim.”

Id. at 568. The court found that there was sufficient evidence that Thompson engaged in conduct that, objectively viewed, annoyed the victim. The court specifically noted that Thompson did “not challenge the sufficiency of the evidence of abnormal sexual intent” and did not address that question.

Id. at 568. Nothing in

Thompson supports the majority‘s theory.

Finally, Judge Fletcher places the greatest weight on

People v. Villareal, 2003 WL 21153430 (Cal.Ct.App. May 20, 2003), a two-page, unpublished decision.¹¹ See Maj. Op. at 1005-07.

Villareal arises in an unusual procedural setting.

Villareal had prior (unspecified) felony convictions and was on probation. His hearing in this case was to revoke his probation because he had violated § 647.6(a).

Villareal contested the sufficiency of the evidence to support the order revoking his probation.

Villareal had stopped a thirteen-year old girl and asked her name and where she was going.

Villareal then asked her if she had gone “to see the flag,” a reference to a remote area known as a “make-out point.”

Id. at *1 & n. 2. He told her that “when I look at you I see stars,” which the girl took—based on the way that he “smirk[ed]

at her” as “inappropriately sexual.”

Id. at *1. The victim, describing herself as “scared and violated,” began running from Villareal, who followed her in his truck and continued to talk to her. Villareal finally drove away. The victim complained to her mother, a police officer, who confronted Villareal. When a second officer arrived and arrested Villareal, he told the second officer that the victim was “a cute girl.” At his probation violation hearing, Villareal explained that when he saw the victim “there was like a glimmering around her like an aura of some sort. I see things sometimes. And so it made me excited and that‘s why I stopped.”

Id. at *1. He admitted that “his comment about seeing stars was ‘kind of inappropriate, being that it was kind of strange,‘” and although he denied having any sexual intent in speaking to the victim, he stated “I remember I felt happy about it, that I had seen that and it seemed kind of special and I was happy.”

Id.

The California Court of Appeal concluded in a very brief unpublished opinion that there was sufficient evidence to support revoking Villareal‘s probation. The court first recited the standard, conduct (1) that “a normal person would unhesitatingly be irritated by” and (2) that was “motivated by an unnatural or abnormal sexual interest.”

Id. at *2 (internal quotation marks and citations omitted). The court found that “stopp[ing] to talk to a 13-year old girl who was walking alone on an isolated street,” referring to “a local ‘make out’ spot and to seeing stars” would irritate a normal person and “demonstrate that the conversation was motivated by [Villareal‘s] sexual interest in [the victim].”

Id. The court pointed to the victim‘s testimony that she believed that his “comments were sexual in nature and testified that he was ‘smirking’ at her.”

Id.

Judge Fletcher claims that he does not question whether

Villareal is a “proper holding that Villareal violated § 647.6(a).” Maj. Op. at 1006. But that is exactly what he has done. Judge Fletcher retells the story from Villareal‘s perspective—Villareal saw a “cute” girl, thought she was older, asked her if she had been to a make-out spot, said he saw “stars,” and then followed her in his truck to offer her a ride. See Maj. Op. at 1005-06. But that sterile retelling is not what the victim testified to, or what the trier of fact was required to find. The victim told a story of a prelude to a rape—of being approached by a stranger who “smirk[ed]” and asked “inappropriately sexual” comments; of being followed by the man in his truck even after she ran away from him; of being “scared and violated.” The trier of fact heard both stories, including from Villareal himself, who admitted that his comments were “inappropriate” and “kind of strange” and admitted that seeing stars around her “made [him] excited” and “happy” and “seemed kind of special.” The trier of fact determined that Villareal engaged in offensive behavior that was motivated by unnatural or abnormal sexual interest in the victim, a judgment Judge Fletcher concedes was a “proper holding.” Given that

Villareal—and every other § 647.6(a) case, both published and unpublished—involves conduct that fits within our prior definition of “moral turpitude,” I have no hesitation in concluding that Nicanor-Romero was convicted of a crime involving moral turpitude.

Finally, I object to the use of an unpublished decision in this way. I do not believe that the Supreme Court in

Duenas-Alvarez meant for us to take the least generous approach possible in analyzing state cases under the categorical approach, as Judge Fletcher does in his discussion of

Villareal. California courts universally require a showing that the defendant was motivated by an abnormal or unnatural sexual interest—in other words, a predatory interest—in addition to evidence that the victim was a minor. In most of the reported cases, the court makes clear that the defendant was motivated by that type of interest; in the sole reported case the majority cites as suggesting that the mens rea is something less, the question of the defendant‘s mens rea was not even raised on appeal. See

Thompson, 253 Cal.Rptr. at 566. Judge Fletcher is thus left with two cases,

Dunford, which I have shown clearly sets forth the abnormality of the defendant‘s sexual interest, and

Villareal, where the court admittedly spends little time dealing with the question of the nature of the defendant‘s sexual interest and which a majority of this panel has found to involve a crime of moral turpitude. See Concurring Op. at 1011.

Judge Fletcher takes me to task for objecting to his use of an unpublished opinion to satisfy the requirements of

Duenas-Alvarez. See Maj. Op. at 1004-05. There may be situations where the “realistic probability” requirement of

Duenas-Alvarez is satisfied by relying on unpublished decisions. But this certainly is not one of those situations, and this case illustrates precisely why it is unwise to rely on a single unpublished decision (or to elevate to published status an unpublished California decision, see Maj. Op. at App. A) to determine whether there is a “realistic probability” that California prosecutors use § 647.6(a) to convict individuals for non-morally turpitudinous conduct. There is no in-depth discussion in

Villareal, as there likely would be in a published opinion, of the elements of the crime. Furthermore, the procedural posture of

Villareal—revocation of probation, not a trial after indictment or information—means that the standard of proof was lower than the “beyond a reasonable doubt” standard required in a criminal trial.¹² See

Villareal, 2003 WL 21153430, at *2 (“Before revoking appellant‘s probation, the trial court was required to find by a preponderance of the evidence, that he violated section 647.6, subdivision (a).” (emphasis added) (citing

People v. Rodriguez, 51 Cal.3d 437, 272 Cal.Rptr. 613, 795 P.2d 783, 785 (1990))). However it is characterized,

Villareal does not demonstrate “a realistic probability . . . that the State would apply its statute to conduct that falls outside the generic definition.”

Duenas-Alvarez, 127 S.Ct. at 822. Given the unanimous view and consistent application of the statutory requirements by California courts, I do not believe that we may seize on a cursory discussion in an unpublished opinion to support a conclusion that the statute fails the categorical test. Rather, we should evaluate the offensiveness of the defendant‘s conduct in

Villareal, and in all other cases, in light of the necessary finding that the defendant acted with an abnormal or unnatural sexual intent.

IV

Nicanor-Romero was convicted under a statute that requires the willful commission of an act that by its very nature is reprehensible and contrary to American ethics. California courts view violation of § 647.6(a) as a sex crime involving moral turpitude. So should we. I would find that Nicanor-Romero is removable under 8 U.S.C. § 1227(a)(2)(A)(i).

I respectfully dissent.

Notes

1

Although statutory rape has long been considered a crime involving moral turpitude, we recently held that California Penal Code § 261.5(d), which makes it a crime for an individual twenty-one years of age or older to engage in sexual intercourse with a minor who is under sixteen years of age, “is not categorically a crime involving moral turpitude within the meaning of the immigration statutes.”

Quintero-Salazar v. Keisler, 506 F.3d 688, 694 (9th Cir.2007). In reaching that conclusion, however, we relied on the distinction between crimes that are malum in se and malum prohibitum, see

id. at 693-94, an approach that the majority abandons.

2

The majority objects that I am the one who errs by failing to consider the mens rea and actus reus in conjunction with each other. Maj. Op. at 1002-03. True, the majority purports to “consider the actus reus and mens rea requirements together,” id. at 1002, and claims to derive its conclusion “[b]ased on the combination of § 647.6(a)‘s actus reus and mens rea requirements,” id. at 1002. But nowhere in the opinion does the majority consider the two elements together; it is always and only focused on one or the other. See, e.g., id. at 1001 (“The mens rea requirement, like the actus reus requirement, does not pose a particularly high hurdle to conviction....“).

3

The cases cited by the majority involved touchings that were admittedly not sexual in the sense of involving contact with the victim‘s sexual organs, but they certainly were sexual in the sense that the contact was motivated by the defendant‘s sexual desire. See, e.g.,

In re Hudson, 143 Cal.App.4th 1, 49 Cal.Rptr.3d 74, 76-78 (2006) (noting defendant‘s prior convictions for child molestation and his possession of child pornography);

People v. McFarland, 78 Cal.App.4th 489, 92 Cal.Rptr.2d 884, 886 (2000) (noting defendant‘s prior lewd conduct convictions and noting the defendant‘s statement to the victim‘s mother that he “had to come see [her] beautiful children“). Again, the majority misses this precisely because of its unwarranted and entirely novel separation of the elements of the offense from each other.

4

Our holding in

Morales renders irrelevant the majority‘s objection that because gestures and words are conduct sufficient for conviction under § 647.6(a), it cannot categorically be a crime involving moral turpitude. See Maj. Op. at 1000 (citing

United States v. Pallares-Galan, 359 F.3d 1088, 1101 (9th Cir.2004)). It is true that in

Pallares-Galan, we rejected the contention that convictions under this statute categorically constituted child abuse under the Immigration and Nationality Act because it does not require physical contact. See

359 F.3d at 1101. But the majority provides no explanation why, after

Morales, we should place any weight on the absence of a physical-contact element in determining whether violation of § 647.6(a) involves moral turpitude.

5

The requirement that the conduct be objectively offensive is an important qualifier, as it prevents the statute from being either over or under inclusive: Objectively offensive conduct does not include conduct that an over-sensitive child would find offensive, but it does include offensive conduct that a naive child would not recognize as such. See

Pallares, 246 P.2d at 177 (noting that the objective requirement excludes “a childish and wholly unreasonable subjective annoyance“);

Carskaddon, 318 P.2d at 5 (“Ordinarily, the annoyance or molestation which is forbidden is not concerned with the state of mind of the child but it is the objectionable acts of defendant which constitute the offense.” (internal quotation marks omitted)).

6

The majority‘s approach would arguably produce the same result in cases involving convictions for child abuse, which we have categorized as a crime involving moral turpitude. See

Guerrero de Nodahl, 407 F.2d at 1406-07. Under our precedent, simple assault is not a crime involving moral turpitude, and under the categorical approach, even assault with a deadly weapon does not constitute such a crime. See, e.g.,

Carr v. INS, 86 F.3d 949, 950-51 (9th Cir.1996);

Komarenko v. INS, 35 F.3d 432, 435 (9th Cir.1994); Matter of Short, 20 I & N Dec. 136, 139 (BIA 1989). Yet, under California law, the statute defining child abuse is essentially identical to the statute defining assault—the only difference is that the former statute requires the victim to be a child.

People v. Smith, 35 Cal.3d 798, 201 Cal.Rptr. 311, 678 P.2d 886, 891 (1984) (“The elements of section 245 [as-sault with a deadly weapon] and the offense here [child abuse] are strikingly similar; the principal difference is that the assault prohibited by section 273a is committed on a child.” (footnote omitted)); see also

People v. Valdez, 27 Cal.4th 778, 118 Cal.Rptr.2d 3, 42 P.3d 511, 517 (2002) (noting the similarity between child abuse, assault, and assault with a deadly weapon). If child abuse is a crime involving moral turpitude only because of the age of the victim, it could not survive the majority‘s rigorous mens rea requirement. After all, under the categorical approach, one would have to account for the possibility that the defendant made an “honest but unreasonable” mistake as to the victim‘s age, and according to the majority, the lack of such a defense would be fatal. Yet we and other circuits have held that abuse of a child violates American ethics and is therefore a crime involving moral turpitude. See, e.g.,

Guerrero de Nodahl, 407 F.2d at 1406-07.

7

This broad interpretation derives in part from the legislature‘s declared motivation for enacting this provision: “‘The legislature finds that the prevention of sexual exploitation and abuse of children constitutes a government objective of surpassing importance. The care of children is a sacred trust and should not be abused by those who seek commercial gain or personal gratification based on the exploitation of children.‘”

State v. McNallie, 120 Wash.2d 925, 846 P.2d 1358, 1363 (1993) (quoting WASH. REV. CODE § 9.68A.001).

8

None of the reasons given by the majority provides a plausible basis for distinguishing these two statutes. Maj. Op. at 1002-04. First, the majority emphasizes that the communications under § 9.68A.090 have the purpose of exposing the minor to, or involving him or her in, sexual misconduct. Maj. Op. at 1002-04. It may be true that the Washington and California statutes are not coextensive on this point, but I fail to see why it is relevant. California punishes offensive conduct motivated by unnatural or abnormal sexual interest. That is surely a form of sexual misconduct directed at minors. Second, although the specific-intent requirement does represent a material distinction between § 9.68A.090 and § 647.6(a), specific intent has never been treated as a dispositive factor in the moral turpitude inquiry, as the majority itself recognizes. See Maj. Op. at 998 (citing Matter of Torres-Varela, 23 I. & N. Dec. 78, 83 (BIA 2001)). Finally, just as in § 647.6(a), the Washington statute‘s “actus reus requirement does ‘not necessarily require harm or injury, whether psychological or physical.‘” Maj. Op. at 1000 (quoting

United States v. Baza-Martinez, 464 F.3d 1010, 1015 (9th Cir.2006)). Given that the majority concludes that, absent such a requirement, it cannot find that § 647.6(a) is a crime of moral turpitude, id., I fail to see how it can simultaneously believe that

Morales was properly decided and that its test properly states the law of moral turpitude.

9

The California Jury Instructions confirm this interpretation of the statute. They make the victim‘s age an element of the actus reus and describe the mens rea simply as “motivated by an unnatural or abnormal sexual interest.” CAL. MODEL JURY INSTRUCTIONS § 16.440.

10

The majority‘s implication that a defendant‘s mental state can never render normally innocuous conduct morally offensive reflects an almost willful blindness to the danger sexual predators pose to potential victims of all ages. To take just one real-world example, the New York Times recently reported the controversy surrounding Jack McClellan, a self-professed pedophile who spends much of his time taking nonsexual photographs of children in public places. Jennifer Steinhauer, Parents’ Ire Grows at Pedophile‘s Unabashed Blog, N.Y. TIMES, July 27, 2007, at A1. McClellan has also created websites where he has posted “nonsexual pictures of children . . . intended to promote the acceptance of pedophiles, and to direct other pedophiles to events and places where children tended to gather.” Id. Apparently, in the majority‘s view, were McClellan to be convicted under § 647.6(a), the only reason for deeming his actions morally offensive would be that his subjects were underage children; his conduct would be entirely innocuous if directed at adult women, notwithstanding his predatory sexual interest in the subjects of his photography, because the photography itself is nonsexual. I cannot agree.

11

Judge Pregerson does not join in Judge Fletcher‘s reliance on

Villareal, see Concurring Op. at 1011, which means that a majority of this panel believes that

Villareal does not demonstrate “‘a realistic probability . . . that the State would apply its statute to conduct that falls outside the generic definition.‘”

Duenas-Alvarez, 127 S.Ct. at 822. Without

Villareal or any other California case to support the majority‘s determination that § 647.6(a) criminalizes at least some conduct that is not morally turpitudinous, we are left simply with the majority‘s imaginative conjecture that “‘a misdemeanor conviction under § 647.6(a) can be based on behavior that, while criminal, does not rise to the level of a “crime involving moral turpitude.“‘” Concurring Op. at 1011.

12

Judge Fletcher says that this distinction only makes a difference if the behavior covered by the statute varies with the standard of proof. Maj. Op. at 1007. But I suspect that the standard of proof played a major role in defense counsel‘s strategy at the parole revocation hearing—and, accordingly, the issues on which the California court commented in its terse two-page decision.

*

The Honorable Michael W. Mosman, United States District Judge for the District of Oregon, sitting by designation.

Case Details

Case Name: Nicanor-Romero v. Mukasey

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Apr 24, 2008

Citation: 523 F.3d 992

Docket Number: 03-73564

Court Abbreviation: 9th Cir.