Lead Opinion
Opinion by Judge REINHARDT; Dissent by Judge BYBEE.
ORDER
The dissent is amended to replace the citation to Wooten v. Superior Court on 2409 of the slip opinion with the following: Wooten v. Superior Court,
OPINION
I.
Once again we face the question of what is moral turpitude: a nebulous question that we are required to answer on the basis of judicially established categories of criminal conduct. Although that may not be a satisfactory basis for answering such a question, it is the role to which we are limited by precedent as a court of law. Furthermore, any answer based on other considerations would in all probability be unacceptable to one or another segment of society and could well divide residents of red states from residents of blue, the old from the young, neighbor from neighbor, and even males from females. There is simply no overall agreement on many issues of morality in contemporary society.
Morality is not a concept that courts can define by judicial decrees, and even less can it be defined by fiats issued by the Board of Immigration Appeals, to whose decisions the courts must give great deference. Yet, for the purpose of our immigration laws we are required to follow those determinations and to start by applying categories of offenses that the judiciary or the Board members appointed by the Attorney General have deemed morally turpitudinous in all of their applications. We call this the categorical approach. How sensible those decisions are and how close to rational concepts of morality they
II.
Victor Ocegueda Núñez appeals the Board of Immigration Appeals’ (BIA) affirmance of an Immigration Judge’s (IJ) decision ordering him removed to Mexico. The BIA determined that Ocegueda had been convicted of two crimes of moral turpitude and that he was thus statutorily ineligible for cancellation of removal under 8 U.S.C. § 1229b(b)(l)(B). Because we conclude that indecent exposure under § 314 of the California Penal Code is not categorically a crime of moral turpitude, we grant the petition and remand.
III. Factual and Procedural Background
Victor Ocegueda Núñez (“Ocegueda”),
On September 15, 2004, one day before the hearing on Ocegueda’s application for cancellation was to be held, the government filed a motion to pretermit. It argued that Ocegueda was statutorily ineligible for cancellation because he had been convicted of two crimes of moral turpitude during the past ten years: petty theft in 1995 and indecent exposure in 2003. The government’s only evidence of the petty theft conviction was an FBI Report indicating that Ocegueda had been arrested and charged with petty theft on May 25, 1995. The Report did not indicate the disposition of the charge. Although Ocegueda’s counsel was aware of the indecent exposure conviction, the motion to pretermit was apparently the first she had heard of Ocegueda’s 1995 arrest for petty theft. A single conviction for a crime involving moral turpitude is not a statutory bar to cancellation of removal if the maximum penalty does not exceed one year’s imprisonment, and if the individual is sentenced to six months or less. See 8 U.S.C. § 1182(a)(2)(A)(ii). Two convictions, however, render an alien ineligible for cancellation. 8 U.S.C. § 1229b(b)(l)(C).
Immediately after the government filed its motion to pretermit, Ocegueda filed an emergency motion to continue the hearing. He argued that he needed time to establish: (1) that indecent exposure was not a crime involving moral turpitude, and (2) that he had not actually been convicted of the petty theft offense. The IJ denied the motion.
At the September 16 hearing, the IJ questioned Ocegueda about the petty theft charge. He admitted that he had been arrested after a store security guard accused him of stealing a pair of pants and that he had subsequently appeared in court and paid a $100 fine. The IJ concluded that this testimony sufficed to establish a prior conviction for petty theft. The IJ determined that both petty theft
Oeedgueda appealed to the BIA. He argued that indecent exposure was not a crime of moral turpitude, and that the IJ’s denial of his motion for a continuance violated Due Process. He did not contest the classification of petty theft as a crime of moral turpitude. The BIA affirmed the IJ, concluding that indecent exposure, the offense proscribed by California Penal Code § 314, was also such a crime. It did not address the Due Process issue or the petty theft conviction except to agree with the IJ that Ocegueda’s two convictions for crimes of moral turpitude made him statutorily ineligible for cancellation.
On appeal, Ocegueda raises two challenges to the BIA’s decision. First, he argues that indecent exposure is not categorically a crime of moral turpitude. Second, he argues that his Due Process rights were violated because he never had an opportunity to respond to the government’s motion to pretermit. Because we agree that California Penal Code § 314 covers a broader range of offenses than the generic definition of crimes of moral turpitude, we hold that indecent exposure is not categorically such a crime. Accordingly, we need not reach the Due Process question.
IV. Jurisdiction and Standard of Review
Whether a crime involves moral turpitude is a question of law that we have jurisdiction to review pursuant to 8 U.S.C. § 1252(a)(2)(D). We review the BIA’s interpretation of the statute of conviction de novo. Marmolejo-Campos v. Holder,
V. Analysis
To determine if a crime involves moral turpitude, we first apply the categorical approach. Nicanor-Romero v. Mukasey,
If the crime does not qualify under the categorical approach, we apply the
A. Elements of § 314
California’s indecent exposure statute reads as follows:
Every person who willfully and lewdly ... [e]xposes his person, or the private parts thereof, in any public place, or in any place where there are present other persons to be offended or annoyed thereby ... is guilty of a misdemeanor.
Cal.Penal Code § 314(1).
The BIA correctly identified the elements of § 314. The provision prohibits: (1) sexually motivated exposure of one’s private parts; (2) in a public place or a place where others are present. With respect to the mens rea element, California courts require “proof beyond a reasonable doubt that the actor not only meant to expose himself, but intended by his conduct to direct public attention to his genitals for purposes of sexual arousal, gratification, or affront.” In re Smith,
B. Generic definition of “moral turpitude”
We have previously discussed at some length the inherent ambiguity of the phrase “moral turpitude” and the consistent failure of either the BIA or our own court to establish any coherent criteria for determining which crimes fall within that classification and which crimes do not.
Absent consistent or logical rules to follow as we determine whether a crime (other than one involving fraud) involves moral turpitude, our most useful guidance often comes from comparing the crime with others that we have previously deemed morally turpitudinous. See Navarro-Lopez,
See, e.g., In re Lopez-Meza, 22 I. & N. Dec. 1188, 1193 (BIA 1999) (identifying
This is no less true when it comes to sexual offenses. We have held that the following sex-related crimes are categorically crimes of moral turpitude: “lewd and lascivious conduct toward a child,” Schoeps v. Carmichael,
If we search far enough back into the case law of the BIA and other circuits, it is true that we find decisions holding that conduct that is “shocking],” not by virtue of its impact upon victims, but by virtue of its incompatibility with contemporary sexual attitudes is, on that basis alone, “morally turpitudinous.” At various times, the BIA and the courts have labeled as morally turpitudinous such offenses as consensual oral sex, Matter of Leyva, 16 I. & N. Dec. 118 (BIA 1977), consensual anal sodomy, Velez-Lozano v. INS,
Since these older cases were decided, the fluid boundaries of our nebulous “moral turpitude” standard have moved away from the rigid imposition of austere moral values on society as a whole and substantially in the direction of affording tolerance and individual liberty to those whose moral attitudes differ from the contemporary majority’s. Today, consensual sexual conduct among adults may not be deemed “base, vile, and depraved” as a matter of law simply because a majority of people happen to disapprove of a particular practice. Indeed, as with all crimes, if the conduct at issue were not offensive to at
C. § 314 and the Generic Definition of Moral Turpitude
We now turn to the question whether all of the conduct proscribed by § 314 falls within our generic definition of moral turpitude. The BIA concluded that indecent exposure under § 314 is categorically a crime of moral turpitude, which means that it must have found the answer to our question to be, yes. The BIA reached this conclusion in an unpublished opinion that does not rely on prior precedential decisions.
Therefore, we will defer to its determination only to the extent that it has the “power to persuade.” Here, we can dispose of that question quickly. As the Supreme Court stated in Skidmore v. Swift & Co.,
California’s indecent exposure statute criminalizes a range of conduct that offends the sensibilities of many, and perhaps most, people. We conclude that it does not, however, categorically meet the federal standard for moral turpitude. Some of the behavior that may be punished under the California statute would certainly qualify as morally turpitudinous, but that is not the question before us. Here we must determine whether the full range of conduct prohibited by the statute falls within the definition of that term. The answer to that question is no.
We start by recognizing one point that does not appear to be in dispute. Exposing oneself in a public place is not necessarily either “lewd” (as required by § 314) or “base, vile and depraved” (as required by our traditional definition of moral turpitude). For example, as the BIA and the California courts appear to agree, a sunbather who removes all his clothes to tan on an unoccupied public beach and wakes to find himself surrounded by offended beachgoers has done nothing either lewd or depraved and thus is neither in violation of § 314 nor guilty of a morally turpitudinous act. See Smith,
In a number of important respects, California courts have construed “sexual motivation” quite broadly. As one would expect, exposure is “sexually motivated” if it is done with the intent to sexually gratify the actor. However, “the statute ... also reaches the specific intent to create sexual arousal in those persons observing the defendant.” People v. Conway,
It is not the burden of the prosecution to prove that the observer was in fact offended by the conduct but only that the conduct was such that defendant should know that the observer “may be offended.” Although the distinction is a subtle one, it is significant. The thrust of this inquiry is the state of mind of defendant — whether he should know that his conduct may offend another. Whether the observer thereafter is offended thus has minimal evidentiary bearing upon defendant’s preceding state of mind.
People v. Rylaarsdam,
The statute thus encompasses three quite different types of “sexually motivated” exposure. A person may be convicted under § 314 for exposing himself for the purposes of his own sexual gratification, for the purpose of sexual gratification of the viewer, or for the purpose of offending the viewer in a sexual way. As the California Court of Appeal recently confirmed:
[W]hile insult is a common feature of the paradigmatic indecent exposure [under§ 314], it is not a necessary element of the crime. A purpose of affronting the victim may satisfy part of the mens rea, but it is not necessary; the crime is also complete if the defendant acts for purposes of his own or the victim’s (presumably imagined) arousal or gratification, whether or not he intends to cause affront or believes he is doing so.
Earle,
1. Exposure for sexual gratification
With respect to both mens rea and actus reus, § 314 in its first two manifestations — exposure with the intent to sexually gratify oneself or the viewer — is quite similar to the crime of “annoyfing] ... a[ ] child,” (defined as engaging in objectively irritating conduct toward an underage victim when motivated by an abnormal sexual interest in victim), which we recently held not to be categorically a crime of moral turpitude. Nicanor-Romero,
Because there is no requirement that the viewers actually be offended by the exposure, and because the purpose of the conduct may be the “sexual arousal or gratification” of the viewer, rather than the exposer, California courts have, under § 314, upheld convictions for nude dancing at bars. For example, in People v. Conway, the
defendant was a waitress and dancer in a beer bar. While she was clothed when serving beer, she was observed to undress and perform naked on a raised platform located along one wall of the barroom. She openly displayed her private parts to the nearby customers, paying most of her attention to those customers who placed money on the platform for defendant.
Conway,
Erotic, completely nude dancing is offensive to many people. It is not, however, so “base, vile, and depraved” that it shocks the conscience. As a plurality of the Supreme Court explained, “nude dancing ... is expressive conduct, although ... it falls only within the outer ambit of the First Amendment’s protection.” City of Erie,
2. Exposure for sexual affront
The application of the statute to nude dancing is sufficient to resolve this case in Ocegueda’s favor. Despite the ambiguity
Both our court and the BIA have repeatedly held that simple assault and battery are not categorically crimes of moral turpitude. See Morales-Garcia,
Section 314, as interpreted by the California courts, also encompasses “offensive or provocative ... insults,” Solon, 24 I. & N. Dec. at 241, as well as the conduct of “pranksters with poor judgment.” Rodriguez-Herrera,
Because nude dancers and partially exposed purveyors of “sexual” insults have been convicted under § 314, there is “a realistic probability, not a theoretical possibility, that the State would apply [the indecent exposure] statute to conduct that falls outside the generic definition of [moral turpitude].” Duenas-Alvarez,
VI.
Because indecent exposure as defined by Cal.Penal Code § 314, and as construed by California courts, is not categorically a crime involving moral turpitude, the BIA erred in determining on the record before it that Ocegueda was statutorily ineligible for cancellation of removal. We therefore GRANT the petition and REMAND for further proceedings consistent with this opinion.
PETITION GRANTED AND REMANDED.
Notes
. Multiple spellings of the petitioner’s name appear throughout the record. We use Victor Ocegueda Núñez, or Ocegueda, because that is the spelling used by the petitioner himself.
. Relying on his dissent in a prior case, Judge Bybee challenges our conclusion that one
. We have held that, at this stage of our analysis, we "reify] on our own generalized definition” of the term moral turpitude because the BIA has failed to provide any generic definition to which we could meaningfully
. We do not suggest that every crime that has been held by us to involve moral turpitude falls within this grouping. There are a number of exceptions or outliers. See, e.g., Marmolejo-Campos v. Holder,
The intent to harm is usually key to satisfying what the BIA has said is the defining characteristic of a crime of moral turpitude: "evil intent.” Matter of Flores, 17 I. & N. Dec. 225, 277 (BIA 1980) ("[E]vil or malicious intent is ... the essence of moral turpitude.”); but see Matter of Medina, 15 I. & N. Dec. 611, 614 (BIA 1976) ("[The] presence or absence of a corrupt or vicious mind is not controlling” in deciding whether a crime involves moral turpitude.). The intentional or reckless commission of an act that causes harm to someone — even where the harm was not specifically intended — can also satisfy this "evil intent” requirement. See Matter of Franklin, 20 I. & N. Dec. 867 (BIA 1994) (holding that involuntary manslaughter is a crime of moral turpitude). And, where a protected class of victim is involved, such as children or individuals who stand in a close relationship to the perpetrator, both the BIA and this court have been flexible about the intent "requirement,” extending the category of crimes of moral turpitude to encompass even unintentional acts that only threaten harm. See, e.g., Morales v. Gonzales,
. The BIA's decision cites one precedential case, Matter of Mueller, but only for the purpose of rejecting petitioner's argument that Mueller required it to conclude that indecent exposure was not a crime of moral turpitude. 11 I. & N. Dec. 268 (BIA 1965). The BIA found that Mueller was distinguishable because the statute it examined did not require a sexual motivation. The BIA did not rely on Mueller to determine that § 314 is a crime of moral turpitude, but rather determined only that Mueller did not control.
. To answer this question, we do not consider, as the dissent suggests, Dissent at 1138-39, whether the conduct is "lewd,” but rather whether it is "base, vile, and depraved.” See supra at 1130-33.
. The facts of People v. Rylaarsdam are illustrative of the problems inherent in judging whether particular sexual conduct is so offensive and shocking as to involve "moral turpitude.” That case upheld a conviction under § 314 for an incident that took place in a motion picture booth at an adult bookstore where gay pornography was being shown.
. Conway remains good law in relevant part, despite the California Supreme Court's subsequent disapproval of some of its language. See Morris,
The dissent argues at length that Conway is "weak[] precedent” because "the law relating to nude dancing has changed dramatically since Conway was decided.” Dissent at 1144-46. But the change in law to which the dissent refers has significantly strengthened Conway's conclusion that § 314's application to nude dancing does not violate the First Amendment. In the years since Conway was decided, the Supreme Court has on two occasions upheld public nudity ordinances against First Amendment challenges, even though the ordinances had the effect of completely banning "totally nude erotic dancing performed by women” and requiring that, "[erotic] dancers must wear, at a minimum, pasties’ and a 'G-string.' ” City of Erie v. Pap’s A.M.,
. The Supreme Court has not been clear about the exact level of protection to which nude dancing is entitled. For our analysis here, it is relevant only that nude dancing is expressive conduct protected to some extent by the First Amendment and that an ordinance prohibiting public nudity that has the effect of banning nude dancing may nonetheless be constitutional, although a full majority of the Court has yet to agree on the reason for the latter proposition. See City of Erie,
. The dissent’s argument that it is inappropriate to rely on an unpublished opinion to establish a realistic probability that a statute will be applied to conduct that falls outside the generic definition of moral turpitude, Dissent at 1147-48 n.4, is foreclosed by precedent. See Castillo-Cruz v. Holder,
. These cases may at first appear difficult to reconcile with the Court of Appeal's earlier decision in People v. Dallas TV, which reversed a 16-year-old boy’s § 314 conviction for mooning oncoming traffic because there was no evidence that the boy had acted with sexual intent.
. The dissent accuses us of waging a "collateral attack” on the California courts’ decisions in Archer and Lionel. Dissent at 1139, 1148. To the contrary, we fully credit the California courts’ descriptions of the facts of those cases. We also accept the courts' carefully reasoned conclusions that the conduct at issue in each case constituted a violation of § 314. In fact, it is precisely because we accept the state courts' determinations that the facts, as described in the state courts’ opinions, support convictions under § 314 that we conclude that § 314 covers a broader range of offenses than those that are morally turpitudinous. There is no need for us to conduct any independent investigation into the record, as the dissent suggests. Dissent at 1139. We evaluate the cases on the basis of the written opinions, as we have always done in applying the categorical approach. See, e.g., Castillo-Cruz,
Dissenting Opinion
dissenting:
California punishes persons who “willfully and lewdly ... expose [their] private parts” in a public place or in a place where there are unwilling persons. CAL. PE
Despite the clarity of California’s indecent exposure statute, punishing persons who “wilfully and lewdly ... expose [their] private parts,” the majority holds that Ocegueda’s conviction is not a crime involving moral turpitude. Maj. Op. at 1127-28. The majority does not expressly argue that such lewd conduct is not a crime involving moral turpitude. Instead, the majority points to three convictions that, in its opinion, did not involve lewd conduct. First, the majority claims that California has “upheld convictions for nude dancing at bars.” Maj. Op. at 1135. No it hasn’t, at least not in any way that counts under Duenas-Alvarez. The one nude dancing case the majority cites, People v. Conway,
Whatever Ocegueda did to get himself convicted of indecent exposure, we can be fairly confident that it involved more than being a nude dancer at a bar or a “tasteless prank.” Because I believe that Ocegueda’s conviction for indecent exposure under § 314 is categorically a crime involving moral turpitude, I would uphold the decision of the Board of Immigration Appeals and deny the petition. I respectfully dissent.
I
Section 1229b(b)(l) of Title 8 gives the Attorney General discretionary authority to cancel the removal of an alien who is inadmissible to or deportable from the United States. To qualify for cancellation of removal under this section, an alien must establish, among other requirements, that he or she (1) “has been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of [the alien’s application for cancellation of removal],” and (2) “has been a person of good moral character during such period.” 8 U.S.C.
In this case, the only evidence tendered by the government is the fact Oeegueda was convicted of violating § 314, California’s indecent exposure statute. Thus, absent additional documentation, Ocegueda’s conviction only qualifies under 8 U.S.C. § 1182 (a)(2) (A) (i)(I) if § 314 categorically describes conduct involving moral turpitude.
The Supreme Court has placed a critical limit on the scope of our inquiry under the categorical approach. In Gonzales v. Duenas-Alvarez,
We have held that “the Supreme Court squarely placed the burden on the alien to demonstrate a realistic probability that the state would apply the offense in a way that falls outside the generic definition of the crime.” Ortiz-Magana v. Mukasey,
The import of Duenas-Alvarez in this case is clear. We may not apply our “legal imagination,” but must find a “realistic probability” that California is enforcing its indecent exposure law outside a generic definition of “moral turpitude.” Proof of such a “realistic probability” requires “cases” in which California courts “in fact” applied the statute in a nongeneric fashion. The majority claims that “[t]his realistic probability can be established by showing that, in at least one other case, ‘the state courts in fact did apply the statute in the special (nongeneric) manner....’” Maj. Op. at 1129 (quoting Nicanor-Romero v. Mukasey,
Moreover, for reasons I explained in my dissent in Nicanor-Romero, I think that to satisfy Duenas-Alvarez we need something more than scouring state records to see if we can find a conviction that we think falls outside some generic ideal. As
II
As Ocegueda declined to come forward with any evidence that California applied the indecent exposure statute to him in a “special (nongeneric) manner,” we are left to consider how California construes and applies § 314 in the main. With DuenasAlvarez in mind, I address first the generic standards for a crime of moral turpitude. I then address standards for obtaining a conviction under § 314 and discuss how California courts have applied those standards in fact. Lastly, I address the cases the majority uses to show that California applies § 314 to conduct outside the generic definition of a crime involving moral turpitude.
A
We have “consistently defined ‘moral turpitude’ as involving conduct that is inherently base, vile, or depraved, and contrary to the private and social duties man owes to his fellow men or to society in general.” Navarro-Lopez v. Gonzales,
In general, we have “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,
The federal courts have long held that sexual offenses violate “accepted moral standards” and come within the category of “grave acts of baseness or depravity.” These offenses include indecent assault, Maghsoudi v. INS,
B
California’s indecent exposure statute reads, in relevant part: “Every person who willfully and lewdly ... [ejxposes his person, or the private parts thereof, in any public place, or in any place where there are present other persons to be offended or annoyed thereby ... is guilty of a misdemeanor.” Cal. Pen. Code § 314, subd. 1. The California Supreme Court has held that indecent exposure encompasses only conduct that “is sexually motivated” and thus requires “proof beyond a reasonable doubt that the actor not only meant to expose himself, but intended by his conduct to direct public attention to his genitals for purposes of sexual arousal, gratification, or affront.” In re Smith,
The California Supreme Court has applied § 314’s requirement of “lewd” intent narrowly. In Smith, the defendant went to a public beach, removed all of his clothes, and fell asleep on a towel.
California courts have consistently applied § 314 only to conduct falling within the scope of the rule laid down in Smith. See, e.g., People v. Johnson,
By contrast, California courts have reversed convictions under § 314 in cases either where there is no evidence that the defendant exposed his genitals or where there is no evidence that the offending conduct was accompanied by lewd intent. For example, in People v. Massicot,
The majority agrees that “[ujnder § 314, it is the sexual intent with which the exposure occurs that transforms it into an act that is criminal, rather than an act that is merely improper or inappropriate.” Maj. Op. at 1133-34. But for the majority, California’s careful application of § 314 to only lewd conduct is not enough, and it obliquely argues that “sexual intent” or lewdness no longer qualifies as moral turpitude. Instead, the majority attempts to whittle down a crime of moral turpitude to conduct that necessarily involves “either actual infliction of harm or a protected class of victim; most often a combination of the two.” Maj. Op. at 1132. Unless lewd conduct no longer qualifies as moral turpitude, California’s indecent exposure statute categorically satisfies 8 U.S.C. § 1182’s requirement of a “crime involving moral turpitude.” Whatever the “fluid boundaries of our nebulous ‘moral turpitude,’ ” indecent exposure bears no resemblance to “consensual sexual conduct among adults” and, as defined by California, is “conduct ... offensive to at least a majority.” Maj. Op. at 1132-33.
C
Notwithstanding the narrow scope the California courts have given § 314, the majority cites to three cases that it contends demonstrate that California “construed ‘sexual motivation’ quite broadly” and punishes conduct that, in fact, does not involve moral turpitude.
1
The principal case the majority uses to create a “realistic probability” that California will use § 314 to punish conduct that is not morally turpitudinous is a thirty year-old nude dancing case, People v. Conway,
In Conway, the appellate division of the Los Angeles Superior Court upheld a municipal court conviction of a waitress and dancer in a beer bar who performed naked on a raised platform “displaying] her private parts.” Conway,
Conway cannot establish a realistic probability that California would use § 314 to convict nude dancers in a nude entertainment venue of indecent exposure. There is no need to discuss whether mere nude dancing is so “base, vile, or depraved” that it “shocks the conscience.” For purposes of this case, I am willing to assume that nude dancing in bars, without more, is not morally turpitudinous, although I am not sure that anything in the Supreme Court’s jurisprudence compels that assumption. See City of Erie v. Pap’s A.M.,
In 1968, the California Supreme Court overturned a conviction under § 314 for topless dancing at a nightclub. In re Giannini,
A year after Hicks, the California Supreme Court overruled In re Giannini in Crownover v. Musick,
The Los Angeles Superior Court’s decision in Conway was issued in 1979 when Crownover was still good law. In Conway, the court explicitly found that Crownover precluded the defendant’s claim that her dancing was protected by the First Amendment. Conway,
A ban on nude dancing cannot be sustained on the theory that it regulates only conduct and does not impinge upon protected speech. Nonobscene nude dancing cannot be barred without, in some cases, infringing upon constitutionally protected expression. [ ]An enactment prohibiting nonobscene nude dancing which extends beyond establishments serving alcohol is presumptively overbroad.
Id. at 564-65,
More importantly, there is ample evidence that California and its municipalities tolerate nude dancing and do not regard it as violation of § 314. California regulates businesses that serve alcohol, including bars featuring nude dancers, but it does not do so through § 314. So far as I can determine from the published cases, in the past twenty years, no nude dancing or nude entertainment cases in California courts have even mentioned § 314. The majority of these cases deal with regulating alcohol licenses of commercial establishments that offer such entertainment, and a number of them show sensitivity to First Amendment questions surrounding nude dancing. See SP Star Enter. v. City of Los Angeles,
The majority’s proposed use of Conway strips the Supreme Court’s limitation in Duenas-Alvarez of any real meaning. When the Supreme Court said a “realistic probability” it meant something more than dredging up a case from the Superior Court that was expressly disapproved 28 years ago by the California Supreme Court and has not been cited since.
2
The majority cites the last two cases as examples of California punishing a “tasteless prank” or “de minimus provocation.” Maj. Op. at 1136-38. The first case, People v. Archer, 98 Cal.App.4th 402,
The majority also points to an unpublished opinion of the Court of Appeal, People v. Lionel M.,
[Lionel] approached the two girls, gained their attention, and then exposed his penis. The exposure of his genitalia was not, as in Smith, a consequence of passive nudity, but a deliberate action directed at two young girls.... [Lionel] did not, for example step to the front of the room to briefly flash the entire class or streak through the school halls; instead he targeted Devyn and Marlena and ensured they observed his private parts from a close distance---- [Lionel’s] choice to highlight only his penis provides adequate evidence of the sexual nature of the offense...
Although the circumstances surrounding [Lionel’s] action are subject to other reasonable interpretations, we find sufficient support for the trial court’s implied finding that appellant acted with the purpose of a sexual affront.
Id. at *2-*3.
Based on its own reading of these cases, the majority finds that these incidents were not “highly threatening, intrusive, [or] psychologically damaging” to the victims but were “mere acts of provocation, bad taste, and failed humor.” Maj. Op. at 1138. The majority’s conclusion is way beyond any evidence in the cases or the record before us. In fact, the California courts have rejected the claim that § 314 reaches “mere acts of provocation, bad taste, and failed humor.” As the California Court of Appeal said in In re Dallas W. (the “mooning” case), “Dallas may have been guilty of some other offense, and he certainly exhibited bad judgment and poor taste^ — but the trial court’s findings make it clear that Dallas did not violate section Slip.”
The majority’s characterization of Archer and In re Lionel M. is one of two things. Either it is a collateral attack on the judgments because the majority simply doesn’t believe the evidence or, even worse, it is a determination that lewd conduct is categorically no longer a crime of moral turpitude. If it is a collateral attack, it is sorely misplaced. We have no competence in this proceeding to question the findings of the California courts, and the fact that judges on our court might have taken a different view on direct review of those cases is of no moment. The California courts found that Archer and Lionel deliberately engaged in lewd conduct in a public place and that is a “crime involving moral turpitude.”
If, however, the majority means to remove lewd conduct from the category of crimes involving moral turpitude, its discussion is a wholesale assault on sex crimes as crimes involving moral turpitude. As our cases demonstrate, it is too late for the majority to take that position, but one reads the majority opinion wondering how any sex crimes will satisfy its standards.
Ill
Our morality is not the measure of “accepted moral standards.” Rodriguez-
I would deny the petition. I respectfully dissent.
. Although we have clearly held that “the Supreme Court squarely placed the burden on the alien to demonstrate a realistic probability that the state would apply the offense in a way that Mis outside the generic definition of the crime,” Ortiz-Magana v. Mukasey,
. The majority discusses People v. Rylaarsdam,
. The majority argues that the Supreme Court's decisions in Pap’s and Bames have "significantly strengthened Conway's conclusion that § 314 application to nude dancing does not violate the First Amendment.” Maj. Op. at 1136 n.8. The majority's statement is
. According to Cal. R. Ct. 8.1115, "an opinion of a California Court of Appeal or superior court appellate division that is not certified for publication or ordered published must not be cited or relied on by a court or a party in any other action.” The only exceptions are for when the opinion is relevant to a res judicata, collateral estoppel, or criminal or disciplinary action stating reasons for a decision affecting the same defendant. I question
We have long had a rule against citation of our own unpublished dispositions, 9th Cir. R. 36-3, for reasons that have been well explained. See Alex Kozinski & Stephen Reinhardt, Please Don't Cite This!, Cal. Lawyer 43 (June 2000).