Nunez v. Holder

modify right to restitu- enlarge 24 to his litiga- intervening in the California

tion tion.

IV. Conclusion judgment of the district court is AFFIRMED. Ocegueda NUNEZ, a.k.a. Victor

Victor Nunez, Ocequeda a.k.a. Victor Petitioner, Nunez, Jr., Attorney Eric H. HOLDER General, Respondent.

No. 06-70219. Appeals, United States Court of Ninth Circuit. Argued April and Submitted 2007. Filed Feb. 2010. Amended Feb.

ORDER The dissent is amended to replace the Superior citation Wooten v. Court on slip opinion 2409 of the the following: with Court, Superior 113 Cal.Rptr.2d Wooten (Cal.Ct.App.2001) (setting aside an in- charging formation two individuals for pimping pandering where defendants perform hired women to sexual acts on customers); each other and OPINION

REINHARDT, Judge: Circuit

I. again question Once we face the of what turpitude: question is moral a nebulous required that we are to answer on the judicially categories basis of established of criminal Although may conduct. that not satisfactory answering be basis for such it is question, the role to which we are by precedent limited as a court of law. Furthermore, any answer based on other considerations would in all probability be unacceptable segment to one or another society and could well divide residents of blue, red states from residents of the old young, neighbor neighbor, from the from Mateo, Franke, CA, Cheryl for the San and even males from females. There is petitioner. simply agreement many no overall is- LeFevre, E. of the Ronald Office Dis- morality in contemporary society. sues of Counsel, Department trict of Homeland Morality not a can concept courts Security; Eric Warren Marsteller and Jo- decrees, by judicial and even less define celyn Lopez Wright, Immigration Office of by by can it be defined fiats issued Justice, Litigation, Department Wash- Immigration Appeals, Board of to whose DC, respondent. for ington, give great courts must decisions the defer- Yet, purpose ence. for the of our immi- required to gration laws we are follow by ap- those determinations and to start judi- plying categories of offenses that the ciary appointed or the Board members REINHARDT, Before: STEPHEN Attorney General have deemed moral- SMITH, S. BYBEE and MILAN D. JAY in their ly turpitudinous applications. all of JR., Judges. Circuit categorical approach. call this the We REINHARDT; Opinion by Judge How sensible those decisions are and how concepts morality they close to rational by Judge Dissent BYBEE. held, considering govern- cancellation was to be may come can be seen one pretermit. ment filed a motion to It ar- of the offenses involved the case before gued Ocegueda statutorily ineligi- law numerous felo- us. While under our cancellation he morally turpitu- are deemed not to be ble for because had been nies dinous, automatically turpitude all convicted of two crimes of moral petty acts of theft legal during past years: petty that label the drastic ten theft qualify for exposure consequences follow. As some 1995 and indecent today’s society might say, good government’s only petty and with evidence of the reason, Report theft conviction was an FBI indi- figure.” “Go

cating Ocegueda had been arrested II. charged petty May with theft on Report 1995. The did indicate Ocegueda appeals Núñez Victor disposition charge. Although of the Oce- (BIA) Appeals’ affir- Immigration Board of gueda’s counsel was aware of the indecent (IJ) Immigration Judge’s of an de- mance conviction, to preter- the motion ordering cision him removed to Mexico. apparently mit was the first she had heard Ocegueda The BIA determined that had Ocegueda’s theft. petty 1995 arrest been convicted of two crimes of moral A single involving conviction for a crime statutorily turpitude and that he was thus statutory turpitude moral is not a bar to ineligible for cancellation of removal under if maximum cancellation removal 1229b(b)(l)(B). § Because we U.S.C. penalty year’s impris- does not exceed one exposure conclude that indecent onment, and if the individual is sentenced § 314 of the California Penal Code is not See to six months or less. U.S.C. turpitude, a crime of moral 1182(a)(2)(A)(ii). convictions, Two how- grant petition we and remand. ever, ineligible render an alien for cancel- 1229b(b)(l)(C). Background III. Factual and Procedural lation. 8 U.S.C. Ocegueda (“Ocegueda”),1 Immediately government Victor Núñez a after the filed Mexico, pretermit, native and citizen of entered the its motion to an Ocegueda filed inspection emergency United States without in March motion hearing. to continue the age at the of 15. in the argued While Unit- He he needed time to estab- (1) States, wife, ed he met a and married his lish: that indecent not a was citizen, turpitude, U.S. with whom he has three U.S. crime moral and 30, 2003, actually citizen children. On June that he had not been convicted of Department Security began petty of Homeland theft offense. The IJ denied the proceedings against removal him on the motion. ground that he present was the United September At the hearing, the IJ having lawfully States without been admit- questioned Ocegueda about the theft petty paroled. removability, ted or He conceded charge. He admitted that he had been applied but pur- cancellation of removal security guard arrested after store ac- 1229b(b)(l), suant to 8 U.S.C. on the him stealing pair pants cused and basis that his removal would result ex- that he subsequently appeared had ceptional extremely hardship and unusual paid court and fine. The IJ con- $100

to his wife and children. testimony cluded that this to es- sufficed 15, 2004, September day

On one a prior petty before tablish conviction for theft. hearing Ocegueda’s application petty for The IJ determined that both theft Núñez, Multiple spellings petitioner’s Ocegueda Ocegueda, of the name because that appear throughout spelling petitioner the record. We use Victor is the used himself. Cir.2009) (9th (en banc). crimes of moral F.3d exposure are indecent particular conclusion that a statutori- The BIA’s Ocegueda was turpitude and or does not involve moral on the basis of crime does for cancellation ly ineligible subject to different standards of then conclud- tude is convictions. IJ the two BIA depending on whether the is- hearing review hearing, without ed the published or relies on a decision that his removal sues evidence Ocegueda’s either, extremely coming to its conclusion. If it does exceptional result in would deference. Id. If it family. citizen we accord Chevron hardship to his U.S. unusual neither, defer to its conclusion to does BIA. He ar- to the Oeedgueda appealed “power per- the extent that has the exposure was not indecent gued (quoting suade.” Id. at 909 Skidmore v. that the IJ’s turpitude, moral crime of Co., 65 S.Ct. & U.S. Swift vio- for a continuance denial of his motion (1944)). 89 L.Ed. He did not contest lated Due Process. theft as a crime of petty classification of Analysis V. BIA affirmed the turpitude. The moral if To determine a crime involves IJ, exposure, the concluding that indecent turpitude, apply we first the cate Penal proscribed offense gorical approach. Nicanor-Romero It also such a crime. did Code (9th Cir.2008), Mukasey, 523 F.3d or the Due Process issue not address the grounds by overruled on other Marmole except agree with petty theft conviction jo-Campos, 558 F.3d at 908-09. This re two convictions for Ocegueda’s IJ quires compare us to the elements of the him made statu- turpitude crimes of moral generic crime to the definition of moral for cancellation. torily ineligible and “decide whether the conduct turpitude raises two chal- appeal, Ocegueda On than, proscribed in the statute is broader First, he lenges to the BIA’s decision. within, categorically and so does not fall exposure is not cate- argues that indecent generic (quoting this definition.” Id. turpitude. a crime of moral Sec- gorically Ashcroft, Huerta-Guevara v. ond, rights that his Due Process argues he (9th Cir.2003)). making this deter never had an were violated because he mination, proba must “a realistic we find respond govern- to to the opportunity bility, possibility, not a theoretical that the pretermit. Because we ment’s motion apply would its statute to conduct State Penal agree that California Code generic that falls outside the definition” of than range a broader of offenses covers turpitude. (quoting Id. at 1004 of moral generic definition of crimes Duenas-Alvarez, Gonzales v. U.S. exposure we hold that indecent turpitude, (2007)). 193, 127 815, 166L.Ed.2d 683 S.Ct. a crime. Accord- is not such probability realistic can be estab This ingly, we need not reach the Due Process that, by showing lished least one question. case, courts in fact did other “the state apply special (nongener in the the statute Review IV. Jurisdiction and Standard of ic) (relying manner....” Id. at 1004-05 on a crime involves moral Whether probabili a realistic one case establish question is a of law that we have turpitude Silva-Trevino, 24 I. ty); see also Matter to 8 U.S.C. jurisdiction pursuant to review (2008) (same).2 & N. Dec. 1252(a)(2)(D). the BIA’s in We review qualify If the crime does not of the statute of conviction de terpretation Holder, apply the categorical approach, Marmolejo-Campos v. novo. case, challenges prior Judge Bybee our conclusion that one Relying a 2. on his dissent in (2) parts; public place one’s in a or categorical approach private and look to modified of conviction place present. documents within the record where others are With partic- element, in the to see whether the conviction respect to the mens rea Califor How- ular involved moral case require “proof beyond nia courts a reason ever, only information before because only able doubt that the actor not meant to conviction, Ocegue- the fact of the IJ was himself, expose but intended his con exposure can conviction of indecent da’s public geni duct to direct attention to his turpitude a crime of moral on qualify as arousal, purposes gratifi tals for of sexual qualifies if it so the record before us cation, Smith, or affront.” In re 7 Cal.3d approach. categorical under the 497 P.2d (1972); Archer, People see also 98 Cal. §of A. Elements App.4th exposure statute indecent California’s (holding that “sexual” modifies reads as follows: “arousal,” “affront”). “gratification”, and Every person willfully lewdly who [e]xposes person, private

... his or the B. Generic definition of thereof, any place, or in parts “moral turpitude” present are other any place where there previously have We discussed at annoyed persons to be offended length ambiguity some the inherent of the thereby guilty of a misdemeanor. phrase turpitude” “moral and the consis 314(1). Cal.Penal Code tent BIA failure either the or our own any court to establish coherent criteria for correctly The BIA identified the provision prohib determining which crimes fall within that elements of (1) sexually its: motivated classification and which crimes do not.3 may probability. rely single unpublished case establish realistic unwise to deci- J., (Bybee, dissenting). would Dissent 1140. The dissent be more sion.” Id. at 1024 To “generous” government to the and would im- the extent that there be doubt wheth- pose higher petitioner burden on the part major- er constituted a these views Further, applies show that the state in fact its law to ity’s holding, adopt we them here. generic statute, conduct that falls outside the defini- interpreted by where a criminal courts, tion of moral Id. We do not be- encompasses conduct that is not mor- generosity appropriate. lieve that such is ally turpitudinous actually ap- and has been fundamentally conduct, has not plied punish requires Duenas-Alvarez to such no changed categorical approach, Duenas-Alvarez, which re- “legal imagination,” 549 quires range us to ask "whether the full of at U.S. 127 S.Ct. to conclude that encompassed conduct the statute consti- probability there is a realistic that the state turpitude.” tutes a crime of moral Cerezo, Cerezo again apply would so once it. 512 Cf. (9th Cir.2008) Mukasey, 512 F.3d 1166 (“[Wjhere F.3d at 1167 ... the state statute (internal omitted). quotation Although marks plainly specifically and criminalizes conduct is the dissent correct that not all of the Nica- definition, outside the contours of the federal opinion joined by majority nor-Romero a engage judicial prestidigitation we do not panel, of Dissent of by concluding that the statute 'creates crime panel agree suggest did that a "[t]o generic outside the definition of a listed apply involving law state does not to conduct Duenas-Alvarez, ”) (quoting crime.' 549 U.S. turpitude regularly applied moral unless it is 815). 127 S.Ct. nonturpitudinous only to conduct would not that, bring 'categorical' approach, stage end We an to the have held at this of our entirely "reify] generalized require unmanage- analysis, but would also an we on our own Nicanor-Romero, turpitude able standard.” definition” of the term moral be- Moreover, majority specifically provide any gener- at 1005. cause the BIA has failed to rejected Judge Bybee's meaningfully admonition "it ic to which we definition could

1131 See, logical 558 F.3d at Absent consistent or e.g., Marmolejo-Campos, rules (“‘[Mjoral we follow as determine whether a crime turpitude’ perhaps (other fraud) involving than one an involves example ambiguous of quintessential (Berzon, turpitude, guidance moral our most useful J., at 921 dissent phrase.”); id. from (“[Tjhe comparing often comes the crime precedential BIA’s case law ing) with others that we previously have meaning phrase of the regarding morally turpitudinous. deemed See Na turpitude’ moral ... is a ‘crime (Reinhardt, varro-Lopez, 503 F.3d at 1075 authority.”); conflicting mess of Nicanor- (“Under J, concurring majority) for the Romero, (summarizing 523 F.3d at 997-99 turpitude, our current test for moral we turpitude law on moral Ninth Circuit compare a depravity crime’s with that of recognizing that have not relied on a “[w]e crimes have previously determined to easily set of criteria” applied consistent or ”). base, vile, depraved.... be A re identify turpitude). crimes of moral view BIA precedent and Ninth Circuit us that crimes of Our definition tells reveals that non-fraudulent crimes of mor turpitude are crimes that involve turpitude always al almost involve an in “base, vile, depraved” either fraud or someone, tent to harm the actual infliction con “shock[s] someone, upon of harm an or action that Gonzales, Navarro-Lopez science.” a protected affects class of victim.4 (9th Cir.2007) (en banc) 1063, 1074-75 F.3d (Reinhardt, J., majority) See, concurring for the e.g., Lopez-Meza, re I. & N. (internal removed). (BIA 1999) marks Dec. quotation (identifying Holder, Marmolejo-Campos usually key satisfy- defer. The intent to harm is F.3d at 910. ing defining what the BIA has said is the turpitude: characteristic of crime of moral every suggest that crime that has 4. We do not Flores, "evil intent.” Matter 17 I. & N. turpitude held to involve moral been us (BIA 1980) ("[E]vil Dec. mali- or grouping. within this There are a num- falls turpi- cious intent is the essence of moral See, e.g., exceptions ber of or outliers. Mar- tude.”); Medina, but see Matter I. & N. Holder, (9th molejo-Campos v. F.3d 903 (BIA 1976) ("[The] presence Dec. Cir.2009) (en banc) (deferring to the BIA's corrupt absence of or vicious mind is not driving conclusion that under the influence controlling” deciding whether crime in- without a license is a crime of moral tude). turpitude.). volves moral The intentional or difficulty discerning any logical reckless commission of an act that causes exceptions justification for these is one of the harm to someone—even where the harm was repeatedly reasons we have concluded that specifically satisfy intended —can also this our own and the BIA's case law on moral turpitude requirement. is inconsistent and incoherent. "evil intent” See Matter of See, Franklin, e.g., (stating (BIA 1994) id. at the BIA has I. & Dec. N. particularize to the "fail[ed] [moral term tur- (holding involuntary manslaughter that is a (internal any meaningful way”) pitude] in And, turpitude). pro- crime of moral where a Nicanor-Romero, removed); quotation marks involved, tected class of victim is such as (recognizing 523 F.3d 997-99 that "[w]e children or who individuals stand in close easily ap- have not relied on a consistent or relationship perpetrator, the both the BIA plied identify set criteria” to crimes of and this court have been flexible about turpitude). Our characterization moral does "requirement,” extending category intent encompass every single not seek to crime that turpitude encompass of crimes of moral turpitude has been held to involve moral even unintentional acts that threaten (largely because do not think there is See, Gonzales, e.g., v. harm. Morales 478 F.3d so). meaningful can characterization that do 972, Cir.2007) (9th (holding that "com- Rather, identify only general we intend to pur- with a minor munication for immoral grouping into which vast poses” turpitude). is a crime of moral turpitude crimes of moral fall. holding that we find decisions “murder, robbery, kidna[p]ping, vol true rape, “shocking],” conduct that is virtue involuntary untary manslaughter, some victims, impact upon of its but virtue offenses, aggravated as manslaughter incompatibility contemporary its with sex offenses, saults, mayhem, spousal theft is, alone, ual attitudes on that basis “mor abuse, abuse, and incest” as crimes of child times, ally At turpitudinous.” various turpitude); moral Morales-Garcia BIA have as moral and the courts labeled (9th Holder, F.3d 1065-66 Cir. ly turpitudinous such offenses as consensu 2009) gener is not (explaining assault sex, I. Leyva, al oral Matter 16 & N. turpitude of moral unless it ally crime (BIA 1977), consensual anal sod Dec. 118 infliction of seri involves either intentional INS, omy, Velez-Lozano v. 463 F.2d 1305 pro ous harm or infliction of harm on a (D.C.Cir.1972), and “overt and ho victim); Marmolejo-Cam class of tected activity” mosexual Matter (9th of Alfonzo-Ber Gonzales, 503 F.3d pos (BIA mudez, 1967). 12 I. & N. Dec. 225 Cir.2007) (D.W. Nelson, J., dissenting), re private, These cases remind us that con (9th Cir.2009) banc, heard in 558 F.3d 903 conduct, homosexual sensual which Su (citing cases in which the BIA and Ninth preme constitutionally Court held to be burglary, Circuit determined assault Texas, protected Lawrence v. 539 U.S. mischief, battery, malicious alien 123 S.Ct. 156 L.Ed.2d 508 smuggling, deadly weapon, with a assault (2003), long ago was not so deemed “base indecency, money laundering rioting, and depraved” turpi and a crime of moral turpitude). are not of moral crimes See, e.g., tude some courts. Williams v. This is no less true when comes State, Ala.App. 316 So.2d 363- have held that sexual offenses. We (1975) (“[W]e hesitancy have no whatev categori sex-related crimes are following arriving er the conclusion that a cally turpitude: crimes of moral “lewd and crime that consists of sexual relations be child,” Schoeps lascivious conduct toward a persons tween of the same sex involves (9th Carmichael, 177 F.2d Cir. turpitude.... practice moral of sod 1949); incest, INS, Gonzalez-Alvarado v. omy inherently general inimical to (9th Cir.1994); knowing 39 F.3d integrity of human person, and [i]s possession pornography, of child United clearly turpi an offense (9th Santacruz, States v. 563 F.3d ....”) (internal quotation tude marks Cir.2009); mi and communication with a omitted). purposes, nor for immoral Morales v. Gon decided, Since these older cases were (9th Cir.2007). zales, the fluid boundaries of our nebulous “mor- recognized rape We have also is cate turpitude” away al standard have moved gorically a crime of moral Na rigid imposition from the of austere moral (Reinhardt, varro-Lopez, F.3d at 1075 society values on as a whole and substan- J, concurring majority). for the These tially affording the direction of tolerance universally in crimes involve either actual liberty and individual to those whose moral protected fliction of harm or a class of contemporary attitudes differ from the victim; most often a combination of the Today, majority’s. consensual sexual con- fact, presence two. never without the among duct adults not be deemed of at least one of these factors have we “base, vile, depraved” and as a matter of deemed a sexual offense to moral involve simply people law because a of turpitude. happen disapprove particular prac- to of a crimes, enough Indeed, If we search far back into the if tice. as with all circuits, case law of the BIA and other it is conduct at issue were not offensive to at any way in sory analysis persuasive no reason and majority, there would be least a therefore do not defer to its conclusion it a criminal it and thus render prohibit to morally respect turpitudinous with to the turpitude. moral required for act. More § nature of 314. F.3d at. 1071 Navarro-Lopez, 503 See of moral that a definition (holding exposure California’s indecent criminal con- encompassed that all tude range criminalizes a statute contrary to be overbroad and duct would many, that offends the sensibilities of Congress). the intent most, that it perhaps people. We conclude not, however, categorically meet the does § Definition 314 and the Generic C. turpitude. federal standard for moral Turpitude of Moral that pun Some of the behavior be all question turn to the whether We now ished under the California statute would §by 314 falls proscribed of the conduct certainly qualify morally turpitudinous, of moral tur- generic within our definition question but that is not the before us. BIA concluded that indecent pitude. The Here we must determine the full whether § 314 is exposure by range prohibited of conduct the statute turpitude, crime of moral which means falls within the definition of that term. answer to our that it must have found the to that question The answer is no. be, BIA this yes. to reached question by recognizing point We start one opinion in an unpublished conclusion not in appear dispute. that does to be precedential deci- rely prior does not on in Exposing public place oneself is not sions.5 (as necessarily required by either “lewd” Therefore, defer to its de we will 314) (as “base, § and depraved” vile that it has only termination to the extent required by our traditional definition of Here, can persuade.” “power turpitude). example, moral For as the As the dispose question quickly. of that BIA and the courts appear Supreme Court stated Skidmore agree, a sunbather who removes all his Co., 134, 139, 65 S.Ct. & 323 U.S. unoccupied public clothes to tan on an Swift (1944), deference should 89 L.Ed. to find beach wakes himself surround according “thoroughness to the given be beachgoers offended has done noth ed consideration, agency’s] [the evident ing depraved either lewd or and thus is consistency validity reasoning, of its its § guilty neither violation of 314 nor of a later pronouncements, Smith, with earlier and morally turpitudinous act. See give power all those factors which Similarly, 497 P.2d 810. lacking power if to control.” persuade, the California courts have indicated Marmolejo-Campos, See also they uphold would not 314 conviction one-paragraph analysis The BIA’s urinating public, exposure because for entirely ipse dixit rests on the statement motivated the need to relieve oneself is moti requires properly that because sexual not classified as “lewd.” Id. at vation, turpitude. a crime of moral n. 4. it is the it is Under sexual cursory, exposure not BIA’s conclu- intent with which the occurs We do find the precedential distinguishable cites one found that Mueller was be- 5. The BIA's decision Mueller, case, require only pur- cause the statute it examined did not Matter but rely rejecting petitioner's argument BIA did pose a sexual motivation. The required that indecent Mueller to determine that 314 is a crime of Mueller it to conclude turpitude, but rather not a crime of moral determined (BIA 1965). did not control. & N. Dec. 268 The BIA that Mueller 11 I. 1134 criminal, requirement “present an act that ute’s that there be

transforms into merely improper persons annoyed than an act that is other to be offended or rather Thus, thereby” exposure we is fulfilled when the inappropriate. question whether, in the of individuals who by limiting presence must next answer is occurs might theory by offended the con- “sexually exposure, § 314 to motivated” be duct, if, actuality, they have limited it to conduct even are not: California courts properly all of can be described as which prosecution It is not of the the burden morally turpitudinous.6 For the reasons in fact prove the observer was of- discuss, we now the answer once more is fended the conduct but that the no. conduct such that was defendant should “may know that the observer be offend- important In a number of re Although ed.” the distinction is a subtle spects, California courts have construed one, significant. it is The thrust of this broadly. quite “sexual motivation” As one inquiry is the state of mind of defen- “sexually expect, exposure would moti dant —whether he should know that his vated” if it is done with the intent offend another. Whether However, sexually gratify the actor. “the the observer thereafter is offended thus specific statute ... reaches the intent also evidentiary bearing upon has minimal persons to create sexual arousal in those preceding defendant’s state of mind. observing People v. Con defendant.” People Rylaarsdam, Cal.App.3d 130 way, Supp. Cal.App.3d Cal.Rptr. 103 162 (1982).7 Supp. Cal.Rptr. 181 added), (emphasis partially encompasses The statute thus disapproved Municipal Morris v. Court, quite types “sexually three different Cal.Rptr. 32 Cal.3d A (1982); exposure. person may motivated” be 652 P.2d n. see also convicted under Earle, exposing himself People Cal.App.4th (2009). purposes gratifi for the of his own sexual Cal.Rptr.3d Additionally, cation, purpose gratifica for the of sexual person the statute if a is satisfied acts for viewer, purpose tion of the or for the affront,” purposes of “sexual which offending way. in a sexual As viewer gratification involves neither sexual of the Appeal recently the California Court of viewer, actor nor the an but rather intent confirmed: on the part of the actor to “insult” or Archer, way. “offend” a sexual See insult is a common [W]hile feature of the Finally, paradigmatic at 786-87. the stat- indecent [under question, gay 6. To answer this do not consid- to meet other men. The defendant stuck er, suggests, finger as the dissent Dissent at 1138- his into a hole between his booth and "lewd,” adjacent commonly whether the conduct is but rather an known as a booth— "base, vile, depraved.” "glory whether it is See police hole”—in which an undercover supra at 1130-33. "happened sitting.” officer to be This "over- negatively, ture” was not received and the Rylaarsdam People eye through 7. The facts of are illus- two men made contact the hole. problems judging interpreted response trative of the inherent The defendant as a particular receptiveness whether sexual conduct is so offen- to further sexual advances. He shocking penis through sive and to involve as "moral then inserted his the hole into booth, upheld adjacent tude.” That case a conviction under a function that the hole place designed rely 314 for an incident took in a was to serve. Id. We need not determination, picture making motion booth at an adult bookstore on this case in our however, because, gay infra, pornography being where shown. as we discuss at 725-27. The bookstore was reaches other conduct that even more obvi- "cruising place” gay ously qualify morally turpitudinous. where men often went fails to 314], necessary element of child” is not a crime of moral turpi a[] it is not a tude, affronting though A even that crime does purpose the crime. share rea, the mens may satisfy part of one characteristic with other we victim crimes necessary; not the crime is also morally turpitudinous: pro but have found pur- Nicanor-Romero, for complete if the defendant acts tected class of victim. (presum- of his own or the victim’s poses exposure, 523 F.3d at 1002-03. Indecent gratification, ably imagined) arousal contrast, in interpreted by as the Califor he intends to cause af- courts, whether or not categorically any nia does not have doing front or believes he is so. in thing type common with the of crime we normally turpi have held to involve moral Earle, (analyzing at 277 any tude. It can be committed without 314) (internal quota- mental elements of harming anyone, intention of it need not removed); Jury see also Cal. tion marks harm, in result actual and it does not that, (stating prove Instr. 16.220 necessarily a protected involve class of vic government must show violation Thus, Nicanor-Romero, § tim. under him or herself exposed that the defendant appear prohibit only not to would conduct intent to direct specific “with morally turpitudinous that is and thus does genitals pur- for the attention to [his][her] categorically constitute a crime of mor own sexual arousal or pose of[his][her] Indeed, turpitude. al as explain, or that of another or of sexu- we now gratification, others”). offending in ally insulting or courts fact “[California] [have] applfied]” non-morally the statute to reach Exposure gratification 1. for sexual Duenas-Alvarez, turpitudinous conduct. respect to both mens rea With 193, 127 549 U.S. at S.Ct. 815. reus, § in man actus its first two there no requirement Because with the intent ifestations — actually by the viewers be offended sexually gratify oneself or the viewer—is exposure, purpose and because the of the “annoyfing] similar to the crime of quite may be the “sexual arousal or (defined child,” in engaging ... ]a[ viewer, gratification” of the rather than objectively irritating conduct toward an have, exposer, California courts motivated an underage victim when upheld dancing for nude convictions victim), sexual interest which abnormal example, People at For bars. Con- recently not to held be way, crime of moral Nicanor-Rome defendant was a waitress and dancer ro, offense 1000. Neither re a beer bar. While she was clothed actually quires the “victim” be beer, serving when she was observed to harmed or even bothered the offender’s perform undress and naked on a raised require conduct. Id. Nor does either platform along located one wall of the harm; rather, the offender intend openly displayed pri- barroom. her She cases, statutory may elements be both customers, parts nearby vate to the long satisfied as as the offender’s motiva paying of her attention to most those tion was “sexual” and he should have placed money customers who on the that his conduct offensive known be platform defendant. (in exposure) or irri the case of indecent (in child). Conway, Cal.Rptr. 878.8 See also tating annoying the case of Gals, 27 “annoy[ing] People Sarong ex rel. Hicks v. held the crime We part, quent disapproval language. Conway good law in relevant of some of its remains Morris, Supreme P.2d at despite Court's subse- See the California 414, 46, Navarro-Lopez, other.”9 at Cal.App.3d (1972) moreover, (noting multiple dancing, proto- arrests of dancers 1069. Nude is a violating topless-bottomless at a bar for typical victimless crime. Whatever one’s 314). conduct, view of the merits of such it is base, vile, simply depraved. not and As Erotic, completely dancing nude is offen at in Rylaarsdam, with the conduct issue not, however, It so many people. sive to is p. may see 1134 n. it supra, shock “base, vile, it depraved” shocks pa- certain individuals but not those who plurality the conscience. As a of the Su tronize the establishment in order to see explained, dancing “nude preme Court part or take in it. It does not cause them conduct, expressive although ... it is falls physical psychological harm and it cer- only within the outer of the First ambit tainly does not shock their Erie, conscience. protection.” City Amendment’s It would 529 U.S. S.Ct. 1382. 2. Exposure for sexual affront be odd indeed to hold that conduct that is protection application entitled to some order of the to statute nude keep society flatly dancing our free is also “con is sufficient to resolve this case in trary Ocegueda’s Despite to the societal duties we owe each favor. ambiguity Although pro- protection n. 13. Monis excludes conduct Amendment than Morris had as by tected the First Amendment from 314's Diego, sumed. See v. San 136 Cal. Krontz reach, nothing suggest there is Monis to App.4th Cal.Rptr.3d dancing that a conviction for nude in a bar (2006) ("Had today, Monis been decided would violate the Amendment. First Morris recognized have no doubt that it would have only prohibiting held that "[a]n enactment the limits protection First Amendment dancing nonobscene nude which extends be- by Supreme extended the United States yond serving pre- establishments alcohol is Erie].”)-, B., Tily [in Court Barnes and Inc. sumptively (empha- overbroad.'' Id. at 57-58 Beach, City Newport Cal.App.4th added). Morris, sis Under restrictions on () (rejecting 16-18 First dancing serving nude in establishments alco- challenge banning Amendment to ordinance hol do not violate the First Amendment. public nudity, including dancing, nude argues length Conway The dissent stating expansive interpretation that Morris's precedent” "the law "weak[] because re- protection of First Amendment for nude lating dancing changed to nude has dramati- ”). dancing had been "foreclosed Bames cally Conway since was decided.” Dissent at Thus, developments in First Amendment change 1144-46. But the in law to which law referred to the dissent have neither significantly strength- the dissent refers has Conway question weakened nor called into Conway's appli- ened conclusion that 314's dancing Monis’s conclusion that nude dancing cation to nude does not violate the offending bars be banned without years First Amendment. In the since Con- 9, infra, Constitution. See also note at 1136. decided,

way Supreme Court has on upheld public nudity two occasions ordi- Supreme 9. The Court has not been clear against challenges, nances First Amendment protection about the exact level of to which though even the ordinances had the effect of dancing analysis nude is entitled. For our completely banning "totally nude erotic here, only dancing it is relevant that nude dancing performed by requir- women” and expressive protected to some extent that, wear, ing "[erotic] dancers must at a ” by the First Amendment and that an ordi- minimum, pasties’ 'G-string.' City and a prohibiting public nudity nance that has the A.M., 277, 283-84, Pap’s Erie v. 529 U.S. banning dancing may effect of nude nonethe- (2000) (plu- 120 S.Ct. 146 L.Ed.2d 265 constitutional, although less be Theatre, Inc., a full rality); see also Barnes Glen yet agree of the Court has on the reason for 501 U.S. 111 S.Ct. 115 L.Ed.2d Erie, proposition. City the latter See (plurality). As the California 1382; recognized, supra, U.S. at courts have Bames and Erie 120 S.Ct. see also es- dancing tablish that nude receives less First note 8. clear turpitude,” term “moral is as a crime of moral of the it encompassed tude because the destruc- dancing lies outside its can be that nude as tion little of “as of another’s $250.00 However, in case doubt boundaries. property annoy” with an evil wish remains, we need consider its pranksters thus “extends to include with in- exposure with the third manifestation — poor judgment.” Rodriguez-Herrera sexually the viewer— 314 tent to offend (9th INS, Cir.1995). 52 F.3d encompasses conduct that cannot under interpreted by Section as the any reasonable definition of the term be courts, encompasses also “offen turpitude.” as “moral classified Solon, insults,” provocative sive or court and the BIA have re Both our I. N. at & Dec. as well as the conduct and bat peatedly simple held assault “pranksters of with poor judgment.” Rod of moral tery are not crimes riguez-Herrera, 52 at F.3d 240. Two ex Morales-Garcia, amples suffice to illustrate turpitude. point. See 567 F.3d the case, one recent the California Court of is, in part, they at 1065. This because Appeal upheld under conviction harm, encompass “de minimus conduct or who, a rage,” of defendant a fit of “road provocative physical such as offensive or exposed penis yelled his [my] “suck insults, ordinarily contact or which is not Archer, adjacent dick” at an driver. vile, inherently depraved, considered to be case, at 786-87. In the second Solon, 24 morally reprehensible.” or In re the court upheld the conviction of a 12- (2007); I. & N. Dec. see also year-old boy pulled who down pants his Gonzales, Fernandez-Ruiz F.3d during class and showed his penis to two (9th Cir.2006) (holding 1168-69 M., People female classmates. v. Lionel “knowingly touching the crime another (Cal.Ct. H031030, No. 2007 WL 2924052 insult, person injure, with the intent to or 2007) App. Oct. (unpublished).10 On provoke” turpi does not involve moral occasions, both the court found that tude). Similarly, in another context—ad § 314’s mental requirement state was sat dressing property damage, the crime of isfied because the defendant had acted rather than assault —we held that Wash purpose “sexually insulting with the ington’s offending” “malicious mischief’ offense was the viewer.11 The former de- argument inappro- published appellate-level 10. The dissent’s that it is a lack of cases or rely priate unpublished opinion to on an to imply cases does not a lack of convictions. probability establish a realistic that a statute applied will be to conduct that falls outside appear at These cases first difficult to generic turpitude, definition of moral Dis- Appeal's reconcile with the Court of earlier n.4, by prece- sent 1147-48 is foreclosed TV, People decision in v. Dallas which reversed Holder, dent. See 581 F.3d Castillo-Cruz 16-year-old boy’s § a 314 conviction for (9th Cir.2009) (explaining 1161 n. 9 mooning oncoming traffic there because was unpublished opinions pertinent are to boy that the no evidence had acted with sexu applied prac- show how statute has been Cal.App.4th intent. al 102 Cal. tice); Vizcarra-Ayala Mukasey, However, (2000). Rptr.2d 493 the cases can Cir.2008) (9th (same). 876 n. 3 It is also mooning be harmonized on the basis that illogical. Our concern is with whether indi- widely recognized amusing as “a defiant or viduals have been convicted under 314 for sex, gesture” that is not related to while ex non-morally turpitudinous conduct. A con- posing penis necessarily one's has sexual upheld viction is no less real because it was Dallas, Cal.Rptr.2d at connotation. unpublished, published opin- an rather than Indeed, Indeed, n. 1. trial court in had Dallas people ion. who are found that the defendant had acted with the certainly never convicted 314 almost all, generic only. intent to cause affront Id. The go plead guilty trial at but rather to contention, charge. Contrary Appeal concluded that an intent dissent's Court of exposure] indecent statute to conduct surely was crass and fendant’s conduct obviously inappropri- just as generic [mor- latter’s falls outside the definition However, rationally act could Duenas-Alvarez, neither ate. al 549 U.S. turpitude].” base, inherently vile as (2007). be characterized Here the S.Ct. to the other depraved.12 Compared apply in fact the statute “state courts did deemed to involve moral crimes we have manner special (nongeneric) were rel- turpitude, the defendants’ actions [Ocegueda] argues.” which Id. Indecent Part atively supra harmless. See V.B. not, categorically, therefore exposure is their difference between acts of moral California’s crime provocative insults and tasteless statute, interpreted state court previously that we have held to be pranks to conduct judges, has not been limited non-morally the element turpitudinous is objectively that can be held to meet our society sexuality of involved. But our governs standardless standard that moral point transitory nudity or a past the where necessarily brief reference to sex trans- provoca- forms an otherwise de minimus VI. morally turpitudinous tion into a offense. exposure as defined Because indecent obviously

There are circumstances under § and as construed unwanted, Cal.Penal Code sexually expo- which motivated courts, a California is not highly threatening, sure would be intru- sive, psychologically damaging and involving turpitude, to crime moral the BIA However, examples viewers. as our two in determining erred on the record before clear, beyond § far make 314 reaches such Ocegueda statutorily ineligible it that encompass harmful conduct to mere acts of removal. therefore cancellation We taste, of provocation, bad and failed hu- petition GRANT the and REMAND for mor. Although inappropriate and offen- proceedings with further consistent this sive, “base, vile, these are not acts opinion. depraved,” they nor do shock the con- RE- PETITION GRANTED AND science. MANDED. BYBEE, Judge, dissenting: Circuit partially

Because nude dancers and ex- persons “willful- punishes who posed purveyors of “sexual” insults have ly lewdly ... expose private § [their] been convicted under there is “a parts” in a in a probability, place place realistic not a where pos- theoretical sibility, apply unwilling persons. the State would there are PE- [the CAL. facts, cause raora-sexualaffront was insufficient to the as described in the state courts’ support opinions, support § § the defendant’s 314 conviction. convictions under § that we conclude that 314 covers broader morally range than that are of offenses those waging 12. The dissent accuses us of a "collat- turpitudinous. There is no need for us to eral attack” on the California courts’ deci- any independent investigation conduct into in Archer and sions Lionel. Dissent at record, suggests. the as the dissent Dissent at contrary, fully 1148. To the credit the 1139. We evaluate cases on basis descriptions California courts’ of the facts of always opinions, we have done accept the written those cases. We also care- courts' See, approach. applying categorical fully reasoned conclusions that the conduct at Castillo-Cruz, e.g., F.3d at 1161. To do in each issue case constituted violation of fact, precisely application In it is because we otherwise would render impractical. accept wholly the state courts' determinations that Duenas-Alvarez 314(1). Second, the probability.” Su- a “realistic ma- The California NAL CODE reach has read 314 to preme jority discovered two other cases that Court “intentionally attention direct[s] who one demonstrate thinks 314’s overbreadth. In re purposes.” for sexual genitals to his exposure during involved indecent One Smith, 7 Cal.3d Archer, incident, rage” People “road (1972). v. Due- Gonzales P.2d Cal.App.4th nas-Alvarez, told us Supreme Court (an (2002), unpublished other deci- expo- that California’s indecent that to find sion) involved indecent to twelve generic is a crime outside the sure statute school, year-old girls People v. Lionel of a crime definition M., (Cal.Ct.App. 2007 WL 2924052 Oct. application more than the “requires tude 2007). any record on which Without lan- legal imagination state statute’s judgment, base its dismisses Indeed, a realistic requires guage.” “[i]t the California courts found to conduct be probability, possibility, not a theoretical “relatively merely lewd as harmless” and apply would its statute that the State pranks.” insults and tasteless “provocative generic defi- that falls outside Maj. Op. majority’s at 1138. The collateral crime.” 549 U.S. [the] nition wholly inap- attack on these convictions is (2007). 815, 166 L.Ed.2d 683 127 S.Ct. best, and, propriate this context revi- imagination” and “theoretical “legal But history. sionist the woof of the possibilities” warp are and majority’s decision. Ocegueda get Whatever did himself exposure, convicted of indecent we can be clarity the inde

Despite California’s fairly confident it involved more than statute, punishing persons exposure cent a nude dancer or a being at a bar “taste- lewdly “wilfully expose and [their] who prank.” I believe that majority the holds that less Because Oce- private parts,” a crime in exposure conviction is not conviction Ocegueda’s gueda’s for indecent turpitude. Maj. Op. at volving moral categorically § under 314 is crime involv- majority expressly not 1127-28. The does turpitude, uphold I would ing moral the lewd is not a argue that such Immigration decision of the Board of Ap- Instead, involving crime moral deny I peals petition. respectfully and majority points three convictions dissent. that, opinion, in its not involve lewd did First, majority claims conduct. I “upheld has convictions for nude 1229b(b)(l) gives Section of Title 8 Maj. at 1135. No it dancing Op. at bars.” discretionary Attorney authority General hasn’t, way in that counts at least not cancel the removal of an alien who The one nude under Duenas-Alvarez. to or from deportable inadmissible cites, majority People case the dancing To qualify United States. cancellation Conway, Cal.App.3d 162 Cal. Supp. section, of removal under this an alien (1979), Rptr. disap expressly establish, among requirements, must other proved by Supreme the California Court (1) physically he or she “has been Court, Municipal Morris present the United States for continu- P.2d Cal.3d years of not than 10 imme- period ous less (1982), and case has not been n. 13 diately preceding the date of alien’s [the And, I am confident that quite cited since. removal],” application for cancellation dancing going there is nude on Califor good “has moral this, person been a I no one is nia bars even as write during § period.” So much for character such U.S.C. being arrested 1229b(b)(l)(A)-(B). 1101(f)(3) § Mukasey, Section definition.” Cerezo v. (9th Cir.2008). provides that an alien cannot establish If we think the if good moral character the alien has been broad, statute is too we will “still consider convicted of a crime listed 8 U.S.C. whether California courts have interpreted 1182(a)(2)(A)-(B), which includes narrowly more so as to make the[statute] involving turpitude.” “crime moral 8 it applicable only to conduct which involves 1182(a)(2)(A)(i)(I). U.S.C. turpitude.” moral Id. at 1167-68. Al- case, though likely, may seems less also this evidence tendered entertain an government Oeegueda argument is the fact the state courts violating expanded was convicted of Califor- have “plainly what the statute Thus, exposure nia’s statute. indecent ab- specifically criminalizes.” documentation, Ocegueda’s sent additional import The of Duenas-Alvarez in this only qualifies conviction under 8 U.S.C. apply “legal case is clear. We our (a)(2)(A)(i)(I) §if imagination,” but find a must “realistic describes conduct probability” that enforcing California is its tude. indecent generic law outside a Supreme placed The Court has a critical turpitude.” definition of “moral Proof of limit scope inquiry on the of our under the such a probability” requires “realistic categorical approach. In Gonzales v. Due- “cases” in which California courts “in fact” nas-Alvarez, 549 U.S. 127 S.Ct. applied the statute in a nongeneric fashion. (2007), 166 L.Ed.2d 683 ex- Court claims that “[t]his realistic plained, “to find that a state statute cre- probability can by showing be established ates a crime generic outside the definition that, case, in at least one other ‘the state aof listed crime in a federal statute re- apply courts in fact did the statute in the quires more than application legal the special (nongeneric) Maj. manner....’” imagination language.” to a state statute’s Op. (quoting at 1129 Nicanor-Romero v. Rather, Id. at 127 S.Ct. 815. “[i]t (9th Mukasey, 523 F.3d 1004-05 Cir. requires a probability, realistic not a theo- 2008)). question just I any single whether retical possibility, that the ap- State would satisfy case will Duenas-Alvarez. ply its statute to conduct that falls outside case the proposition, cites for the generic the definition of a crime.” Id. The Nicanor-Romero, single, relied on a un continued, Court show that realistic “[t]o published decision for evidence the “re probability, an offender must at least probability.” alistic That portion of the point to his own case or other cases in however, opinion, opinion was the of a which the state courts in fact apply did the single judge and thus is not the judgment statute in special (nongeneric) the manner Nicanor-Romero, of the court. See 523 argues.” for which he Id. Fletcher, (opinion F.3d at 1005-07 of W. We have held that Supreme “the Court J.); J., id. at 1011 (Pregerson, specially squarely placed the burden on the alien to concurring); at (By id. 1022-24 & n. 11 demonstrate a realistic probability that the bee, J., dissenting). state would apply way the offense in a Moreover, explained I in my reasons generic falls outside the definition of the Nicanor-Romero, in dissent I think that to crime.” Ortiz-Magana Mukasey, (9th Cir.2008). satisfy Duenas-Alvarez we need some- F.3d Ordinarily, thing than begin by asking scouring whether more state records the “state plainly specifically statute if criminalizes see we can find a conviction that we

conduct outside the contours of the federal think falls generic outside some ideal. As Nicanor-Romero, involving of a crime mor- generic “I do not definition I wrote in Due- Supreme turpitude. Court al believe us to take the least meant for nas-Alvarez A analyzing possible approach generous ap- categorical cases under state “consistently defined ‘moral We have J., (Bybee, at 523 F.3d proach____” involving conduct that is in- turpitude’ as are, or should judges, we dissenting). As base, vile, depraved, or and con- herently be, mortality. own Just aware of our well man trary private to the and social duties occasional, errors do uncorrected as our society in to his fellow men or to owes law of the body of the represent Gonzales, general.” Navarro-Lopez v. States, before we should hesitate United (9th Cir.2007) (en 1063, 1068 503 F.3d single, possibly aberrant state taking a banc). “employed This definition A con elevating it to state law. case and “relatively through- BIA” and is consistent highest the state’s court case from sidered out the federal courts.” Id. strong evi court would be appellate In have “divided in general, we crimes A statute. meaning of the dence of into two basic volving turpitude state court— lower single decision ‘those fraud and those types: dated or the decision is particularly when deprav acts of baseness or involving grave carefully considered— is not opinion ” Gonzales, ity.’ Galeana-Mendoza view, not, satisfy petition my does (9th Cir.2006) (quoting F.3d probabili to show the “realistic duty er’s (9th Ashcroft, F.3d Carty v. us, told “To Supreme Court ty.” As the Cir.2005)); Ajami, 22 I. & see also re offender, an possibility, that realistic show (BIA 1999); N. Dec. Matter of course, may show that the statute (BIA 1989). Short, 136, 139 20 I. & N. Dec. But he must in his own case. applied so cases, looked to “ac In non-fraud we have or other cases to his own point least guidance in moral standards” for cepted apply courts in fact did which the state that in determining types of behavior (nongeneric) manner special in the statute Rodriguez- See volve moral Duenas-Alvarez, argues.” for which he (9th INS, 238, 240 Herrera v. (emphasis S.Ct. U.S. Cir.1995). added). long have held that

The federal courts II “accepted moral sexual offenses violate category and come within standards” forward declined to come Ocegueda As depravity.” or “grave acts baseness applied any that California with evidence assault, include indecent These offenses in statute to him a the indecent (1st INS, 8, 10-11 Maghsoudi v. 181 F.3d manner,” we are left “special (nongeneric) conduct, Cir.1999); and lascivious lewd how California construes to consider Carmichael, 391, F.2d 394 v. 177 Schoeps § in the main. With Duenas- applies 314 (9th Cir.1949); Castle v. statutory rape, mind, gener- I address first Alvarez (4th Cir.1976); INS, 1064, 1066 541 F.2d moral for a crime of ic standards (8th INS, 1022, 1024 450 F.2d Marciano for obtain- I address standards tude. then Gonzales, Cir.1971); incest, Morales v. 478 § and discuss a conviction under ing (9th Cir.2007); 972, and contrib- F.3d applied have those how courts minor, delinquency of a uting to the sexual Lastly, I address the standards fact. 1077, Gonzales, 427 F.3d Sheikh majority uses to show Cali- cases the INS, (8th Cir.2005); F.3d Palmer outside the § 314 to conduct applies fornia (7th Cir.1993). types Unlike other of Smith as modifying all three words that falling category grave follow). crimes into the acts, and base sexual gener- offenses have Supreme The California ap- Court has ally been classified as crimes plied § requirement 314’s of “lewd” intent turpitude irrespective any injury moral Smith, narrowly. In the defendant went victim, physical to the or otherwise. Sexu- beach, to a removed all of his al physi- misconduct also need not involve clothes, asleep and fell on a towel. 102 cal contemporary assault to violate police 497 P.2d at 808. The standards; fully even consensual conduct arrived several hours later and arrested See, can involve moral e.g., defendant; time, at this several other INS, (8th Franklin v. 72 F.3d people were also present on the beach. Cir.1995) (noting that statutory rape is a Id. The Smith court concluded that Castle, crime of moral turpitude); defendant’s conduct did not violate (same); Marciano, at 1066 450 F.2d at “[ajbsent reasoning that additional conduct (same). fact, the sexual miscon- intentionally directing gen- attention to his duct in question need not even involve itals for purposes, person, here, sexual physical threat of example, contact. For simply who sunbathes in the nude on an merely

we have held that communicating isolated beach ‘lewdly’expose does not his with a minor purposes “for immoral of a private parts within meaning of section sexual turpitude nature” involves moral “[sjexual 314.” Id. because communication with a inherently minor is wrong contrary California courts consistently ap have the accepted rules of morality and the plied § falling within Morales, duties owed between persons.” the scope of the rule laid down in Smith. 478 F.3d at 978. See, Johnson, e.g., People v. 145 Cal. App.4th 895, (2006) 51 Cal.Rptr.3d B (upholding conviction under 314 of a California’s indecent exposure statute prisoner who was observed a female reads, part: “Every relevant person prison guard cell, masturbating in his willfully lewdly who [ejxposes his brightest on, “with the lights cell turned person, private thereof, or the parts making eye her”); while contact with Peo public place, in any place where there ple v. Davey, 133 Cal.App.4th 34 Cal. present are persons other to be offended Rptr.3d 812-13 (upholding de or annoyed thereby ... guilty of a mis fendant’s conviction expos 314 for demeanor.” Cal. Pen. Code subd. 1. ing himself multiple children simulta The California Supreme Court has held neously); H., In re Michael 128 Cal. that indecent exposure encompasses only App.4th conduct that sexually “is motivated” and (2005) (upholding § conviction under 314 requires “proof beyond thus a reasonable juvenile of a neighbor’s who entered a doubt that only actor not meant house, clothes, removed his and went into himself, expose but intended his con her bedroom where she was sleeping), public duct to direct geni attention to his overruled on grounds by other In re Lem arousal, tals for purposes of sexual gratifi C., 33, 597, anuel 41 Cal.Rptr.3d Cal.4th 58 cation, Smith, or affront.” In re 7 Cal.3d (2007); 158 P.3d 148 362, People Noriega, v. 335, 807, 102 Cal.Rptr. 497 P.2d 810 (1972); 124 Archer, Cal.App.4th People Cal.Rptr.3d see also v. 98 Cal. (2004) App.4th 119 Cal.Rptr.2d (upholding 383-84 defendant’s con (2002) (interpreting term § “sexual” viction under 314 for exposing geni- his in na if that affront was non-sexual individuals, including chil- even to several tais Britt, People ture. Id. at 494-95. dren, transport); public Cal.Rptr.2d Cal.App.4th “[ujnder § majority agrees that The conviction 291-92, (upholding expo- intent with which the it is the sexual by minor chil- man seen § 314 of under it into an act occurs that transforms sure masturbating outside he was while dren criminal, act that rather than an that is inside); looking while open window their inappropriate.” Maj. merely improper Archer, (uphold- at 785-86 majority, But at 1133-34. for the Op. § 314 of defendant under ing conviction application careful 314 to California’s an and made exposed genitals his who enough, conduct is not only lewd in a another driver comment to obscene argues that “sexual intent” or obliquely incident). rage road tur- longer qualifies no as moral lewdness contrast, courts have re California By Instead, majority attempts pitude. in cases versed convictions turpitude a crime of moral whittle down that the there is no evidence either where necessarily involves “either conduct or where exposed genitals his defendant infliction protected of harm or a actual offending is no evidence there victim; most often a combination class of by lewd intent. accompanied was Maj. Op. at of the two.” 1132. Unless Massicot, 97 People example, For moral longer qualifies lewd conduct no Cal.Rptr.2d 705 Cal.App.4th indecent turpitude, California’s (2002), his defendant had concealed statute satisfies 8 U.S.C. exposed parts other his genitals but of a “crime requirement 1182’s thighs, by including his buttocks body, turpitude.” moral Whatever the “fluid and a lace underpants in lace appearing ‘moral boundaries of our nebulous reversed the Appeal The Court of bra. ” tude,’ exposure bears no resem- indecent conviction, statutory holding that to “consensual sexual conduct blance “[ejxposes person” applied his phrase and, among adults” as defined Califor- displayed his or her where the defendant nia, “conduct ... offensive to at least including geni body, unclothed entire majority.” Maj. Op. at 1132-33. Similarly, in In re at 709-710. tals. Id. W., 102 Cal. Cal.App.4th Dallas C (2000), Appeal the Court Rptr.2d scope the Notwithstanding the narrow twice juvenile who had held given courts have “moon[edj” traffic could not be oncoming three that it con- majority cites to cases § 314 because there convicted under “con- that California tends demonstrate his buttocks that he had bared no evidence quite broadly” ‘sexual motivation’ intent. Id. 494. strued with lewd that, fact, punishes conduct does disapproved of the Dallas court also The Maj. Op. at turpitude.1 involve in that jury instructions used standard is a conviction for 1134. The first case conviction on they permitted case because Maj. Op. at 1135. dancing “nude bars.” acted the defendant had finding that, others, by the remaining two are cases cause affront to with the intent to crime,” Ortiz-Magana Mukasey, Although clearly held that “the we have 653, (9th Cir.2008), majority the placed F.3d 660 Supreme squarely the burden Court Ocegue- proof upon itself. probability the burden of took to demonstrate a realistic the alien any the three California did not cite to apply offense in a da the would the state upon by majority. generic cases relied way definition that Mis outside 1144

majority’s more, lights, represent a “tasteless is not morally turpitudinous, al prank” provocation.”2 or “de minimus though I am not sure that anything in the Maj. Op at 1136-38. Supreme jurisprudence Court’s compels assumption. City See Erie v. Pap’s A.M., 277, 1382, 529 U.S. 120 S.Ct. principal

The majority (2000) case the uses to L.Ed.2d 265 (upholding, a municipal create a probability” “realistic that Califor banning ordinance public nudity against a § punish nia will use 314 to conduct that is First Amendment challenge); v. Barnes morally turpitudinous thirty year- is a Theatre, Inc., 560, Glen 501 U.S. 111 S.Ct. case, dancing People old nude Conway, 2456, (1991); 115 L.Ed.2d 504 City of 7, 877, 103 Cal.App.3d Supp. 162 Cal.Rptr. Iacobucci, Newport 92, 479 U.S. (1979). Conway expressly was disap 383, (1986) S.Ct. 93 L.Ed.2d (per cu proved by the California Supreme Court riam); New Liquor York State Auth. v. Court, 1982 Morris v. Mun. 32 Cal.3d Bellanca, 714, 452 U.S. 101 S.Ct. 186 Cal.Rptr. 652 P.2d 58 n.13 curiam). (per L.Ed.2d 357 only Not (1982), and has not been cited since. Conway is case since 1979 to use There is no evidence whatsoever that Con § uphold 314 to a conviction of a nude way good is law or that California has dancer, but Conway was decided when the § intention of using try 314 to punish to relating law dancing nude teetered back dancing. mere nude and forth from protected unprotected expression under the First Amendment. In Conway, appellate division of the Conway is precedent even weaker in show Angeles Superior Los upheld Court a mu ing a probability realistic that California nicipal court conviction of a waitress and § will punish use 314 to nude dancing be dancer in a performed beer bar who naked cause relating the law dancing to nude has platform on a raised “displaying] pri her changed dramatically since Conway was parts.” vate Conway, 162 Cal.Rptr. at Conway decided: relied on a decision that 878. The court reasoned that specific her overruled, has been reasoning its intent to create sexual arousal observers doubtful. met the requirements lewd and wilful § 314. Id. at 878-79. The majority ar Supreme California Court gues that dancing in Conway was not overturned conviction under 314 for “base, vile, so depraved” that it “shocks topless dancing at a nightclub. In re and, therefore,

the conscience” a conviction Giannini, Cal.2d 72 Cal.Rptr. 314 cannot be categorically a (1968). 446 P.2d 536-38 The court crime of moral Maj. Op. at found that dance awas form of expression 1135-36. protected by Amendment, the First thus the

Conway cannot conviction for establish a indecent realistic probability that years later, unconstitutional. Id. Four would use to convict nude dancers in a California Court of Appeal upheld nude enter- an tainment injunction venue of exposure. prohibiting indecent owners of a bar from There is no using premises need discuss whether mere in People lewdness dancing “base, vile, nude Gals, so ex rel. or de- Hicks v. Sarong 27 Cal. praved” App.3d (1972). “shocks the Cal.Rptr. conscience.” The case, For purposes of this I willing am to court noted that there had been arrests at bars, assume that nude dancing in without the bar under but found that People Rylaars discusses length, some but concludes that it "need not dam, (Cal.Super.1982), rely Maj. Op. on this case.” at 1134 n.7. explicitly found that Crownover dancing nude court beyond well went activities claim precluded the defendant’s that her First under by the Amendment protected Rather, protected by First dancing was Id. at 417-418. re In Giannini Conway, Cal.Rptr. at simply and Amendment. “purely were these activities places purpose (stating that “defendant her for the 879-80 performed acts obscene Giannini[,\ and imagina and reliance on In re that case inciting sexual desires randy, beer-drinking in v. was overruled Crownover Musick. group tions of a Sarong by at 418. The Gals bound Crownover ....” Id. are patrons.” [W]e omitted)). (internal entertainment live Just three bar featured citations masturbating stage, however, Conway, years naked females Crownover after masturbating while watch by Municipal male customers was Morris overruled Court, sexual inter 553, 494, dancer simulate ing Cal.Rptr. naked 32 Cal.3d course, allowing customers (1982). females naked Morris established 652 P.2d 51 vigorously her innards to look into regulation law for of nude the current 417. in areas. Id. at rubbing private items The court conclud dancing in California. standards, any activity by is obscene Such ed: justified clearly in the court was

but dancing A cannot ban on nude be sus- activity to be obscene and in such finding theory regulates on the tained expression. as a form of protected thus not impinge upon and does not California, 413 U.S. See Miller protected speech. nude Nonobscene (1973). It L.Ed.2d 419 is S.Ct. without, in dancing cannot be barred in this situation § 314 was used clear that cases, upon infringing some constitu- committing for obscene people to arrest en- tionally protected expression. [ ]An way as a to convict nonob acts and not prohibiting nonobscene nude actment dancing. scene nude beyond establish- dancing which extends Hicks, serving presumptively Su- is year A after ments alcohol in In re Giannini preme Court overruled overbroad. Musick, 405, 107 9 Cal.3d Crownover 564-65, Cal.Rptr. at P.2d Id. (1973). In Cal.Rptr. 509 P.2d 497 footnote, specifically In a dis 51. Morris Crownover, city upheld the court ordi- Comoay extent it is in approved “to the the service of food prohibited nances that opinion.” Id. present consistent with by “topless” women “bottom- or drink I find case after at n. 13. cannot prohibited persons

less” of either sex a conviction upholds where court Morris persons. Id. by any acts such at 430- live of nude entertain indecent 497. The Cal.Rptr. 509 P.2d bar, in has not cited Conway er been conduct, to be court found both activities is, thus, any court. There no since regulation speech, and concluded that whatsoever, except majority’s support justified “consid- of these activities dixit, good law ipse “Conway remains general erations morals and wel- Maj. Op. at 1135-36 n.8. part.” relevant fare.” Id. survives, it plain anything Conway If P.2d 497. majority’s that “California ly not the claim [will], 314, uph[o]ld convic courts Angeles Superior

The Court’s deci- Los Maj. dancing Op. at bars.” in 1979 tions for nude Conway was issued when sion good Conway, 1135.3 was still law. Crownover dancing application to nude argues Supreme sion that Maj. Amendment.” does not violate First Pap’s and Bames have Court's decisions majority's Op. n.8. The statement strengthened Conway's at 1136 "significantly conclu- 1146 matter, if, purely go, Cal.App.4th Cal.Rptr.3d

Even as theoretical 136 39 (2006) (upholding city’s suspension of 535 of a unprotected, there remains sliver nude “base, vile, nude entertainment which establishment’s license entertainment is not so the when establishment violated the rule that it the depraved” “shocks con- away that dancers must be six feet from prose- science” but nevertheless be could patrons); Dep’t Beverage Alcoholic Con § exposure, cuted 314 as under indecent of Beverage Appeals trol v. Alcoholic Control that there is no indication there is “real- Bd., 880, 121 Cal.App.4th Cal.Rptr.2d 99 probability” istic of in the fu- conviction (2002) suspension (upholding 729 of a li requires expo- ture. The statute that the cense because nude entertainment club “public sure occur in a or in place, regula violated alcoholic control beverage place present per- where there are other Court, tions); Wooten v. Superior 93 Cal. annoyed thereby.” sons to be offended or (2001) App.4th 113 Cal.Rptr.2d 195 § It subd. 1. is un- Pen. Cal. Code aside an (setting charging information two likely that a conviction would stand for an pimping individuals for and pandering exposed individual who herself himself or defendants perform where hired women to in an establishment devoted to nude danc- sexual acts on each other and not custom ing. Realistically, any person who attend- B., ers); Tily City Inc. v. Newport of expecting ed venue nude entertainment Beach, Cal.App.4th Cal.Rptr.2d 69 81 6 annoyed by would not be offended or see- (1998) (holding city’s ordinance ing object of presence. his or her prohibiting nude dancing requiring importantly, More there ample evi pasties and g-strings during performances dence that municipalities California and its Amendment); did violate not the First dancing regard tolerate nude and do County Angeles, Smith Los Cal. of § regulates violation of 314. California (1994) App.4th alcohol, including businesses that serve (holding city prohibiting ordinance dancers, bars featuring nude it does but dancing vague nude too survive through not do so 314. So far as I can scrutiny); constitutional Thomas v. Coun cases, published determine from ty Angeles, Cal.App.3d Los past twenty years, dancing no nude (1991) (same); Cal.Rptr. City Ran nude entertainment in California cases Cucamonga cho Consulting Warner courts have even mentioned 314. The Servs., 213 Cal.App.3d Cal.Rptr. regulat of these cases deal with (1989) (upholding regulations nude ing alcohol licenses of commercial estab dancing places alcohol); serve entertainment, lishments that offer such Midway Sys., Stroh v. Restaurant 180 Cal. and a of them sensitivity number show (1986) App.3d First questions Amendment surrounding (same). We too have dealt with some of nude See dancing. City SP Star Enter. v. problems the regulation of nude Los Angeles, Cal.App.4th 93 dancing establishments in California. See Cal.Rptr.3d 152 (holding that an Inzunza, United States 580 F.3d 894 (9th Cir.2009) adult nude entertainment argument club’s (appeal by members of San regulated speech alcohol restrictions City Diego Council of accepting convicted merit); lacked Krontz v. City repeal San Die- bribes to touch” “no ordinance may, true but Conway, irrelevant. Whether Aside from bars. there is no evi- Amendment, regulate majority’s consistent with First dence whatsoever for the conclu- have, dancing utterly nude point. beside sion that “California courts only thing upheld we need to know dancing is whether Cali- nude convictions for regulate dancing Maj. Op. fornia uses 314 to nude bars.” at 1135. dancing). reality is that no then-recent decision of the of Appeal for nude The Court dismissing in to be concerned a conviction under for one California seems 314 W., dancing Certainly, mooning, se. In re Dallas per Cal.App.4th 85 with nude (2000). in past years Cal.Rptr is evidence that 102 .2d 493 In In re there no Smith, prosecuted § 314 the anyone Supreme has been California Court held in dancing nude that “lewd” intent meant that the accused for bars. to this genitals “direct[ed] attention Conway majority’s The use of proposed arousal, purposes gratifica for of sexual in strips Supreme Court’s limitation tion, 102 Cal.Rptr. or affront.” any meaning. of real Duenas-Alvarez P.2d at The court 810. Dallas had held Supreme Court said a “realistic When the adjective “sexual” modified all something it meant more than probability” “arousal, three of terms that followed Superior from dredging up case Dallas, and In re gratification, affront.” expressly disapproved that was Court Cal.Rptr.2d at 494. The court Dallas Supreme Court years ago by only annoy had found that “Dallas acted to and has not been cited since. people and affront and not with ‘sexual in intent the sense that he intended to arouse or a person by himself third his majority the last two cases as The cites act’.... Dallas did not violate section 314 examples punishing of California a “taste at 495 [by mooning (empha traffic].” Id. prank” provocation.” or “de minimus less original). in claimed sis Archer that he case, Maj. The first Peo Op. at 1136-38. merely to annoy too intended offend or his Archer, Cal.App.4th 119 Cal. ple by exposing penis victim to a his female (2002),involved a male driver Rptr.2d 783 rejected of Appeal driver. The Court this exposed genitals his to female driver who enough “it if argument because the de sexually com yelled explicit and then purposes fendant for of exposed himself rage to in a The ment her road incident. ” Archer, 119 Cal.Rptr ‘sexual affront.’ .2d incident “crass” majority dismisses the Accordingly, at 786-87. “a defendant who only nudity.” “transitory and exposes person, intentionally ‘his or the That Maj. at 1137-38. characteriza Op. parts thereof another private to for the courts. tion is unfair to the California quite sexually insulting offending of or purpose Archer conviction for inde appealed his person expo the other commits indecent grounds cent on that there of 314.” sure violation section Id. no acted evidence that he with “lewd” The 787. court concluded that “[Archer’s] Beginning premise intent. from the “ penis ... exposing accompanied act of his ‘lewd’ is an essential element of the of ” [my] the comment ‘suck dick’ was fense,” Appeal there the Court of found his support sufficient evidence convic uphold was sufficient evidence to his con tion under 314. Id. (quoting viction. 119 Smith, points unpub re P.2d at also to an In 810). carefully through opinion Appeal, of the of Peo The court worked lished Court (Cal.Ct. M., Supreme ple the California Court’s seminal v. Lionel WL 2924052 2007).4 Lionel, Smith, App. re Oct. In a twelve decision on and 8.1115, opinion According opinion Cal. when the relevant a res R. Ct. "an for Appeal superior of a California Court of or judicata, estoppel, or collateral criminal or appellate that is certified court division disciplinary stating action reasons for a deci- publication published or must not ordered affecting question I sion the same defendant. party relied a court be cited or exceptions are other action.” The rejected claim “hey, to two courts have year-old boy called look” provocation, “mere twelve-year class. reaches acts bad girls old his Lionel taste, exposed and failed humor.” As the Califor- pulled pants had his down and his nia Appeal his conviction un- Court In re Dallas penis. appealed Lionel said (the case), grounds “mooning” § 314 on that he did not W. “Dallas have der offense, Appeal guilty have “lewd” intent. The Court been some other he Smith, Dallas, judgment poor certainly reviewed In re In re exhibited bad merely stated that ex- the trial make findings Archer. The court taste^—but court’s genitals his would not have been it clear that Dallas not violate section posing did Slip.” (citation at sufficient to convict Lionel under 314. added). omitted; emphasis It found that “this case includes additional suggesting a lewd intent”: facts majority’s The characterization of Arch- approached girls, the two [Lionel] er In re M. is of Lionel one two attention, gained exposed their and then things. Either it a collateral on attack penis. genitalia The of his his the judgments majority simply the because Smith, not, consequence in a of or, doesn’t believe the evidence even passive nudity, but a deliberate action worse, it a con- is determination lewd young girls.... directed two [Lionel] longer duct is no a crime of not, example step did front of moral If it is a at- collateral briefly room flash entire class tack, sorely it is have no misplaced. We halls; through or streak the school in- in competence proceeding this to question targeted Devyn stead he and Marlena courts, findings the California they private his and ensured observed judges might the fact that our court on from parts a close distance---- [Lion- view have taken different on direct re- highlight penis choice to his el’s] view of those cases is no moment. The provides adequate evidence of sexual California courts found Archer and nature of the offense... deliberately engaged Lionel con- lewd

Although the circumstances surround- in public place duct and that is a “crime ing subject action are to other [Lionel’s] involving turpitude.” moral interpretations, reasonable we find suffi- If, however, majority to re- means support implied cient for the trial court’s category move lewd conduct from the finding appellant acted with the involving turpitude, crimes its dis- moral of a purpose sexual affront. on cussion is wholesale assault sex Id. at *2-*3. crimes as crimes moral cases, on reading Based its own of these demonstrate, our tude. As cases it is too majority finds these incidents majority position, late for the to take that intrusive, “highly threatening, were not majority opinion but one won- reads psychologically damaging” the vic- [or] satisfy dering how sex crimes will its provocation, tims but were “mere acts of standards. taste, Maj. Op.

bad and failed humor.” Ill majority’s way conclusion is beyond any morality evidence the cases or the Our is not the measure “ac- fact, Rodriguez- cepted record before us. the California standards.” 36-3, rely have ex- whether should this un- for reasons that been well published opinion. plained. Stephen See Alex & Rein- Kozinski hardt, This!, Cal. long against Lawyer have a rule Please Don't Cite We had citation of (June 2000). unpublished dispositions, our 9th Cir. own R.

H49 (OCN Inc., 7452); in a Fiberlink Charter Herrera, at 240. California (OCN 776C); LC, those mor FirstWorld to determine CA-CCO position far better (OCN CA, 7839); A+ Wireless inclination Cali So. al Whatever standards. Inc., Advantage Wireless-CA regulate have had to once might fornia d/b/a (OCN 822A); one now clear that Communica dancing, it is MPower nude (OCN 8322); aplomb. But with Corp-CA, nude bars tions Choice dance (OCN 885B); against to draw line Telecomm, continues LLC-CA genitals their Intl, expose those who Trans National Communications (OCN “lewdly,” meaning “for so 864C); they when do Commpart Inc.-CA 2419 arousal, (OCN gratification, sexual 869C); purposes of ners, Alle LLC-CA Smith, (OCN affront.” In re 8782); giance Telecom, Inc.-CA That members of our at 810. P.2d Communications, OneStar LLC-MD a different view of have taken might court (OCN 9992); Integrated Communica case not in a state does the evidence (OCN Consultants, tions Inc.-CA certainly It change fact. does (OCN 9397); NTCH-California, Inc. “a showing burden of satisfy Ocegueda’s 9607); Telemex International-CA pos not a theoretical probability, realistic (OCN 998B); Bay Area Cellular Tele apply would its sibility, that [California] phone; Services, Inc. Pacific Centrex statute exposure] [indecent (OCN 3662); Bullseye Telecom, CA of a generic definition falls outside the (OCN 069A); Inc.-CA Comm South turpitude].” Due [involving moral crime (OCN 400A); Companies, Ar Inc.-CA nas-Alvarez, S.Ct. 549 U.S. Communications, (4553); Inc.-CA rival Blue Casa Communications LLC-CA (OCN 111B); I deny petition. respectfully I Phone Cali would Comcast (OCN 7610); fornia Commu dissent. LLC-CA Inc., Express nications Com Ex d/b/a Inc., press; ITS ECI Comms d/b/a (OCN 3630); Network Services-CA Communications, Ernest Inc.-CA (OCN 4961); Excel Telecommunica (OCN 243A); tions, Express Inc.-CA COUNTY COMMUNI NORTH (OCN Telephone Services, Inc.-CA CORP., Plain CATIONS California, 093A); Naps Inc. Global tiff-Appellant, (OCN 5300); In CA Touch Communi (OCN 047B); cations, Inc.-CA & CATALOG TECH CALIFORNIA Solutions, Lightyear Network LLC- NOLOGY, CTT Telecomms d/b/a (OCN 5370); Communi CA McGraw (OCN 573B), Defendant, (OCN cations, 5597); Metropoli Inc. California, Met tan Telecomms d/b/a LLC, Co. CA TGEC Communications (OCN 180A); tel-CA PNG Telecomms (OCN 5969); United States Cellular Comms CA Powernet Global (OCN d/b/a Corp-California, 6261); GTE (OCN 240B); Pointe Communications (OCN Inc., 6339); Tampa, Mobilnet of (OCN 2595); Corp-CA Preferred Car (OCN Holdings, Inc., Arch Wireless Services, Inc., rier Phones For d/b/a Cellular, 6630); Dorado El d/b/a (OCN 5428); Telephone In (OCN All Service 6980); Cellular Mountain Friendlylec corporated, CA (OCN Inc., Properties, d/b/a Fiber Brooks (OCN Solutions, 2015); Inc. VCOM Company, 7219); Phone The Other

Case Details

Case Name: Nunez v. Holder

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Feb 17, 2010

Citation: 594 F.3d 1124

Docket Number: 06-70219

Court Abbreviation: 9th Cir.