Lead Opinion
Oрinion by Judge PAEZ; Dissent by Judge CALLAHAN; Dissent by Judge KOZINSKI.
Following Juan Jose Vidal’s plea of guilty to a violation of 8 U.S.C. § 1326, the district court imposed an eight-level sentence enhancement, pursuant to United States Sentencing Guidelines (“Guidelines” or “U.S.S.G.”) § 2L1.2(b)(l)(C) (2002),
In this appeal, we consider whether a prior conviction for a violation of section 10851(a) qualifies as an aggravated felony within the meaning of U.S.S.G. § 2L1.2(b)(l)(C) and 8 U.S.C. § 1101(a)(43)(G),
I.
In 1994, Juan Jose Vidal was charged in the Municipal Court of San Diego County with “unlawful driving or taking of a vehicle” in violation of California Vehicle Code section 10851(a).
On or about June 21, 1994 [Vidal] did willfully and unlawfully drive and take a vehicle, the personal property of GARY CRAWFORD, without the consent of and with intent to deprive the owner of title to and possession of said vehicle, in violation of Vehicle Code Section 10851(a).
Count Two charged Vidal with “receiving stolen property,” in violation of Penal Code section 496(a), for allegedly “buy[ing], receiving], concealing], selling], and withholding] a vehicle the property of GARY CRAWFORD, which had been stolen.”
Vidal pled guilty, pursuant to People v. West,
In 2003, Vidal was charged with and pled guilty to violating 8 U.S.C. § 1326. Pursuant to U.S.S.G. § 2L1.2(b)(l)(C) (2002), Vidal was subject to an eight-level sentence enhancement if he “previously was deported, or unlawfully remained in the United States, after ... a conviction for an aggravated felony.”
Vidal timely appealed his sentence, arguing that his 1994 conviction was not an aggravated felony and that Blakely v. Washington,
Duenas-Alvarez establishes that the term “theft offense” in 8 U.S.C. § 1101(a)(43)(G) “includes the crime of ‘aiding and abetting ’ a theft offense” and that, accordingly, the pоssibility of being convicted under section 10851(a) as an accomplice does not render the statute broader than the generic definition. Id. at 820. In so holding, the Court rejected the petitioner’s argument that even if the generic theft offense includes accomplice liability, California’s application of the natural and probable consequences doctrine would support a conviction based on conduct that would not qualify as generic aiding and abetting. See id. at 821-22 (overruling Penuliar v. Ashcroft,
Duenas-Alvarez thus left open the question we consider here: whether the possibility of being convicted under section 10851(a) as an accessory after the fact renders the statute categorically broader than the generic theft offense. In light of our determination that it does, we need not address Vidal’s alternative arguments that section 10851(a) is overly inclusive because California’s natural and probable consequences doctrine would allow for conviction without mens rea to commit theft and because joyriding and de minimis deprivations fall within the statute’s sweep. We also conclude, applying the modified categorical approach, that because Vidal’s plea pursuant to People v. West did not establish the factual predicate for his conviction, the record does not “unequivocally establish that [he] pleaded guilty to all the elements of the generic [theft] offense.” Li v. Ashcroft,
II.
Whether Vidal’s 1994 conviction constitutes an aggravated felony for purposes of U.S.S.G. § 2L1.2(b)(l)(C) is a question of law that we review de novo. United States v. Arellano-Torres,
III.
To determine whether the district court properly applied the eight-level enhancement in U.S.S.G. § 2L1.2(b)(l)(C) to Vidal’s conviction under California Vehicle Code section 10851(a), we employ the two-step test set forth in Taylor. We first consider whether the “full range of conduct covered by the criminal statute falls within the meaning of’ the generically defined theft offense. Chang v. INS,
A. Categorical Approach
Like several of our sister circuits,
1.
At common law, participants in a felony offense fell into four separate categories:
(1) first-degree principals, those who actually committed the crime in question;
(2) second-degree principals, aiders and abettors present at the scene of the crime; (3) accessories before the fact, aiders and abettors who helped the principal before the basic criminal event took place; and (4) accessories after the fact, persons who helped the principal after the basic criminal event took place.
Duenas-Alvarez,
In contrast, federal law, like many state criminal codes, has retained accessories after the fact as a separate category.
We have therefore held that a prior felony conviction for being an accessory after the fact to murder for hire does not fall within the generic definition of “crime of violence” so as to trigger the career offender enhancement in U.S.S.G. § 4B1.1 (1989). See United States v. Innie,
Application Note 4 to U.S.S.G. § 2L1.2 (2002)
This development whereby the accessory after the fact is dealt with in a distinct way is a most appropriate one and does not conflict at all with the modern tendency to abolish the distinctions between principals in the first degree, principals in the second degree, and accessories before the fact. The latter three types of offenders have all played a part in the commission of the crime and are quite appropriately held accountable for its commission. The accessory after the fact, on the other hand, had no part in causing the crime; his offense is instead that of interfering with the processes of justice and is best dealt with in those terms.
Id. § 13.6 (emphases added).
Our analysis in United States v. Cox,
As described above, this distinction comports with general principles of criminal law. Application Note 4 to U.S.S.G. § 2L1.2 is titled “Aiding and Abetting, Conspiracies, and Attempts.” Along with solicitation, these are all offenses that require as one element the mens rea to achieve the commission of a particular crime. See 4 Wharton’s Criminal Law § 695 (defining mental state for attempt); 4 id. § 680 (defining mental state for conspiracy); § 38 (describing an accomplice as one who “with the intent to promote or facilitate the commission of the crime, ... solicits, requests, or commands the other person to commit it, or aids the other person in planning or committing it” and noting that “[t]he absence of mens rea precludes one from being an accomplice” (emphases added)). An accessory after the fact, in contrast, need only, with “knowledge] that a felony has been committed, render[ ] aid to the felon in order to protect him, hinder his apprehension, or facilitate his escape.... [I]t is obviously impossible for his mens rea to be the same as that of the felon whom he aids.” 1 id. § 33. Because one need only have assisted the offender with knowledge that the offense has already been committed in or
For these reasons, we conclude that an accessory after the fact to theft cannot be culpable of generic theft. Thus, if section 10851(a) extends liability to accessories after the fact, then an offense under this statute is not categorically an aggravated felony as defined in 8 U.S.C. § 1101(a)(43)(G).
2.
Section 10851(a) imposes criminal liability for the “[t]heft and unlawful driving or taking of a vehicle” on:
[a]ny person who drives or takes a vehicle not his or her own, without the consent of the owner thereof, and with intent either to permanently or temporarily deprive the owner thereof of his or her title to or possession of the vehicle, whether with or without intent to steal the vehicle, or any person who is a party or an accessory to or an accomplice in the driving or unauthorized taking or stealing....
Id. (emphasis added). Without reaching the parties’ dispute over this statute’s taking and intent requirements, we focus the crux of our inquiry solely on the phrase “party or an accessory to or an accomplice in.”
California explicitly abrogated the common-law distinction between principals and accessories before the fact in 1872, with the enactment of Penal Code section 971, which is still in effect. As the California Supreme Court definitively announced in People v. Collum, “in this State an acces-sary [sic] before the fact is not recognized. The law declares such an [sic] one a principal.”
California’s original vehicle theft statute was enacted in 1923, see Veh.Code § 146 (repealed in 1935 and reeodifed at § 503),
That section 10851(a)’s use of “accessory to” refers only to accessories after the fact&emdash;and not to accessories before the fact or accomplices&emdash;is further evidenced by comparing the statutory definitions of the terms in the Penal Code. Section 31 defines “principals” as “[a]ll persons concerned in the commission of a crime, ... whether they directly commit the act constituting the offense, or aid and abet in its commission, or, not being present, have advised and encouraged its commission”. Section 1111 defines an “accomplice” as “one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given.” By contrast, section 32, defines an “accessory” as one “who, after a felony has been committed, harbors, conceals or aids a principal in such felony, with the intent that said principal may avoid or escape from arrest, trial, conviction or punishment, having knowledge that said principal has committed such felony or has been charged with such felony or convicted thereof.” The California Penal Code therefore explicitly uses the term accessory to refer only to an accessory after the fact. See also People v. Horton,
We presume that a legislature does not employ redundant language in crafting a statute and are therefore obliged to read the terms “accessory” and “accomplice” in Vehicle Code section 10851(a) as referring to distinct, rather than overlapping, classes of offenders. See Am. Vantage Cos. v. Table Mountain Rancheria,
Because section 10851(a) expressly extends to one who is an “accessory to ... the driving or unauthorized taking or stealing,” and because Penal Code section 971 eliminates accessories before the fact as a recognized felon category,
[when a] state statute explicitly defines a crime more broadly than the generic definition, no “legal imagination,” Duenas-Alvarez,127 S.Ct. at 822 , is required to hold that a realistic probability exists that the state will apply its statute to conduct that falls outside the generic definition of the crime. The state statute’s greater breadth is evident from its text.
Id.
Vidal’s argument therefore differs from that advanced by the petitioner in Due-nas-Alvarez, who urged the Court to conclude that section 10851(a) was overly in-elusive because California’s application of the natural and probable consequences doctrine created the possibility that one could be convicted under this statute for conduct that would not categorically qualify as generic aiding or abetting. See
Vidal’s case also differs from James v. United States, — U.S. -,
The Government unavailingly relies on People v. Clark,
The Government’s suggested reading of Clark would require an assumption that the California Court of Appeal contravened its own “canon of interpretation requiring us to accord significance, if possible, to every word, phrase and sentence in pursuance of the legislative purpose.” United Farm Workers of Am. v. Agric. Labor Relations Bd.,
The Government’s reliance on Donnell is also misplaced. In that case, the Court of Appeal rejected an argument by the People that because the evidence showed that the defendant was not an “actual participant in the physical taking of [victim Dow-en’s] car[,] ... he could be found guilty of both taking and receiving the vehicle when he was later found driving it.”
Judge Callahan’s dissent, in arguing that section 10851(a) extends to only principals and accomplices, points to California Jury Instruction (“CALJIC”) 14.36, which lists as elements of an offense under this statute:
1 A person took or drove a vehicle belonging to another person; 2 The other person had not consented to the taking or driving of [his][her] vehicle; and 3 When the person took or drove the vehicle, [he][she] had the specific intent to deprive the owner either permanently or temporarily of [his] [her] title to or possession of the vehicle.20
See Callahan Dissent at 1091. But the fact that this model jury instruction articulates the elements for principal liability does not limit the statute’s reach to principals. If the prosecution advanced a theory of aiding and abetting or accomplice liability, the jury would be given CALJIC 3.01
In sum, because section 10851(a) extends to accessories after the fact and because the generic theft offense only reaches principals and other similar offenders, we cannot conclude that the “full range of conduct” covered by this California statute would sustain a generic theft conviction. See Chang v. INS,
B. Modified Categorical Approach
A prior conviction based on an overly inclusive criminal statute that resulted from a guilty plea rather than a jury verdict will support a sentence enhancement only if the record confirms that the plea “ ‘necessarily’ rested on the fact identifying the [offense] as generic.” Shepard v. United States,
Consistent with Shepard, we applied the modified categorical approach in Smith and concluded that the defendant’s plea of nolo contendere to first degree burglary qualified as a violent felony within the meaning of U.S.S.G. § 4B1.2(1). See
The record here similarly fails to establish the factual predicate for Vidal’s plea of guilty pursuant to People v. West. The only two judicially noticeable documents before the district court were the Complaint and the written plea and waiver of rights form.
Moreover, in the context of a People v. West plea, “[a] court is not limited to accepting a guilty plea only to the offense charged but can accept a guilty plea to any reasonably related lesser offense.” People v. Tuggle,
In addition to the fact that Vidal did not plead “guilty as charged,” an indictment that merely recites the language of the statute, as does the 1994 Complaint, is insufficient to establish the offense as generic for purposes of a modified categorical analysis. See United States v. Lopez-Montanez,
When, as here, the statute of conviction is overly inclusive, “without a charging document that narrows the charge to generic limits, the only certainty of a generic finding lies ... in the defendant’s own admissions or accepted findings of fact confirming the factual basis for a
The California Supreme Court subsequently characterized a People v. West plea as a plea of nolo contendere that does not establish factual guilt. See In re Alvernaz,
Here, we lack a transcript of Vidal’s change of plea hearing or any recordation of the terms of his plea bargain. Although Vidal signed the written plea and waiver of rights form, he wrote only “People v. West ” in the section requesting a description of “facts as to each charge” to which he was pleading guilty. The form, like the Complaint, therefore fails to establish the factual predicate for Vidal’s plea. Because he did not plead guilty “as charged,” see Li,
The district court erred in applying the eight-level enhancement in U.S.S.G. § 2L1.2(b)(l)(C) on the basis of Vidal’s 1994 conviction under California Vehicle Code section 10851(a). In contrast to the generic theft offense, which encompasses principals and other similar offenders, section 10851(a) — read in light of California’s statutory abolition of accessory before the fact as a separate felon category — necessarily applies to accessories after the fact as well as principals and accomplices; the statute is therefore overly inclusive for purposes of a categorical analysis. Nor, applying the modified categorical approach, does the record confirm that Vidal was necessarily convicted for all the elements of the generic theft offense, in the absence of a transcript of the plea colloquy or any other memorialization of the factual basis for his People v. West plea. We therefore vacate the sentence and remand for resentencing.
VACATED and REMANDED.
Notes
. The district court relied on the 2002 Guidelines Manual.
. The application notes to U.S.S.G. § 2L1.2 provide that ''[f]or purposes of subsection (b)(1)(C), 'aggravated felony' has the meaning given that term in 8 U.S.C. § 1101(a)(43).” U.S.S.G. § 2L1.2, cmt. n. 2 (2002).
. He was charged sub nom “Jose Luis Martinez, aka Carlos Coral Cruz.”
. As noted above, the Guidelines commentary refers to the aggravated felony definition in 8 U.S.C. § 1101(a)(43).
. Vidal did not reassert his Blakely argument in his supplemental briefing to the en banc court. In light of our decision to vacate his sentence on other grounds, we need not address this issue, but we note that the argument is foreclosed by United States v. Smith,
. See, e.g., Abimbola v. Ashcroft,
. The Supreme Court quoted this definition with approval in Duenas-Alvarez,
. We use the term accomplice to refer generally to "[a] person who knowingly, voluntarily, and intentionally unites with the principal offender in committing a crime and thereby becomes punishable for it.” Black's Law Dictionary 17 (8th ed.2004). As we will explain, accessories after the fact do not fall within this definition. See also id. (noting that “not all authorities treat [the term accomplice ] as including an accessory after the fact”); Charles E. Torcia, Wharton’s Criminal Law § 38 (15th ed. 1993) ("The person is not an accomplice if he participated with the accused only as an accessory after the fact.”).
. This provision appears as Application Note 5 in the 2007 Guidelines Manual.
.We recognize that there is some tension between Shumate and Cox, and Innie insofar as they read Application Note 1 to § 4B1.2 as non-exhaustive. Compare Shumate,
. "For purposes of this guideline — ‘Crime of violence’ and ‘controlled substance offense’ include the offenses of aiding and abetting, conspiring, and attempting to commit such offenses.”
. We concluded in Rivera-Sanchez that a conviction for solicitation of a drug trafficking offense did not trigger a sentence enhancement under § 2L1.2(b)(1)(A) because the Controlled Substances Act, to which 8 U.S.C. § 1101(a)(43)(B) refers in defining a drug trafficking offense, covers attempt and conspiracy but not solicitation.
. Until recently, three separate California statutes addressed vehicle theft: Penal Code section 487(d)(1), which establishes grand theft of an automobile as a felony; Penal Code section 499b, which formerly punished as a misdemeanor the taking of "any automobile, bicycle, motorcycle, or other vehicle or motorboat or vessel, for the purpose of temporarily using or operating the same;’’ and Vehicle Code section 10851. In 1996, the California legislature amended Penal Code section 499b so as to reach only the temporary taking of a "bicycle or motorboat or vessel,” 1996 Legis. Serv. ch. 660, § 1, in order to avoid duplication with section 10851, id. ch. 660 § 3. Accordingly, vehicle theft is now prosecuted under Penal Code section 487(d)(1), which requires proof of intent permanently to deprive the owner of her property, see People v. Marquez,
. See also People v. Bailey,
. The 1939 statute, which was recodified in 1959 as section 10851, similarly extended felon liability to "[a]ny person who assists in, or is a party or accessory to or an accomplice in any such driving, or unauthorized taking or stealing.”
. The Government’s citation to the legislative history of a different statute, see Cal. Bill Analysis, A.B. 928 Sen., July 8, 2003, is unpersuasive: the Senate Committee's criticism of section 10851(a)’s phrasing in the context оf its discussion of a proposed amendment to an unrelated section of the Penal Code does not conclusively demonstrate that section 10851(a) of the Vehicle Code does not extend to accessories after the fact.
. As previously noted, Penal Code section 971 predated the original vehicle theft statute by several decades.
.For this reason, our holding is not at odds with Gomez-Mendez. See
. California’s canon of interpretation accords with federal principles. In Stenberg v. Carhart,
. Judge Callahan's dissent cites both CALJIC 14.36 and California Criminal Jury Instruction ("CALCRIM”) 1820 in support of its argument that section 10851(a) does not extend to accessories after the fact. CALJIC was formerly produced and revised by judges of the Superior Court of Los Angeles County. In 2005, the Judicial Council of California adopted the CALCRIM; pursuant to Rule 2.1050 of the California Rules of Court, CAL-CRIM "are the official instructions for use in the state of California.” The Superior Court of Los Angeles County agreed to stop maintaining CALJIC once the Judicial Council approves its criminal instructions.
CALJIC 14.36 and CALCRIM 1820 vary in phrasing but are consistent in their articulation of the basic elements of a section 10851 offense for purposes of principal liability. As discussed in the text, however, these instructions' enumeration of a theory of principal liability in no way impedes a prosecution under section 10851(a) as an accessory after the fact, with an appropriately modified jury instruction.
. "A person aids and abets the[commission] [or] [attempted commission] of a crime when he or she: (1) With knowledge of the unlawful purpose of the perpetrator, and (2) With the intent or purpose of committing or encouraging or facilitating the commission of the crime, and (3) By act or advice aids, promotes, encourages or instigates the commission of the crime. [A person who aids and abets the [commission] [or] [attempted commission] of a crime need not be present at the scene of the crime.] [Mere presence at the scene of a crime which does not itself assist the commission of the crime does not amount to aiding and abetting.] [Mere knowledge that a crime is being committed and the failure to prevent it does not amount to aiding and abetting.]”
. "An accomplice is a person who [is][was] subject to prosecution for the identical offense charged [in Count[s] _ against the defendant on trial by reason of [aiding and abetting] [or][being a member of a criminal conspiracy]].”
. Judge Callahan's assertion that a section 10851(a) conviction will lie only when the elements of CALJIC 14.36 are found, see Cal
. Judge Callahan's dissent draws from Dunn v. Superior Court,
Because the defendant in Dunn was charged with “being an accessory after the fact as that charge related to auto theft” under Penal Code § 32, Id., Judge Callahan reads this to demonstrate that "Califоrnia courts require prosecutions under an accessory after the fact theory of liability to be brought under Penal Code § 32, even if the underlying offense is a violation of Vehicle Code § 10851(a).” Callahan Dissent at 1095 (emphasis added). But as Dunn later makes clear, the predicate vehicle theft felony to the section 32 charge was not pursuant to Vehicle Code section 10851(a), but rather to the Penal Code, presumably Penal Code section 487(d)(1) (grand vehicle theft). See id. at 248 (explaining that "Petitioner ... was subjected to two preliminary hearings after being charged with the theft of the automobile, first under the Vehicle Code and second under the Penal Code”). At most, therefore, Dunn supports the irrelevant point that to prosecute someone as an accessory to grand theft of a vehicle, the prosecution must separately al
. Although the federal pre-sentence report includes some information about Vidal’s 1994 conviction under section 10851(a), we may not rely on this document. See United States v. Franklin,
. For this reason, the fact that the Complaint alleged facts supporting principal liability does not establish that Vidal was convicted as a principal. Contrary to Judge Callahan’s assertion, see Callahan Dissent at 1096-97 n.7, the common-law rule against holding a defendant jointly liable as a principal and accessory after the fact based on the same conduct is not implicated by our conclusion that on this record, Vidal could have been convicted as an accessory after the fact instead of as, not in addition to, a principal.
. California case law indicates that California prosecutors regularly employ generic charging language similar to that alleged in the 1994 Complaint when prosecuting section 10851(a) offenses. See, e.g., People v. Moon,
. See also id. at 419-20 (“[I]f the accusatory pleading adequately notifies the defendant that the People will seek to prove the elements of a lesser offense, the court has jurisdiction to convict of that lesser offense although the statutory definition of the lesser crime does not logically compose a part of the greater.” (citing People v. Marshall,
. As discussed above, because section 10851(a) expressly identifies accessories after the fact, the prosecution need not have separately charged Vidal under Penal Code section 32 to have convicted him based on an accessory-after-the-fact theory.
Dissenting Opinion
join, dissenting:
I respectfully dissent.
Although I agree that we must apply the Taylor v. United, States,
I would affirm the district court and hold that a violation of Vehicle Code § 10851(a) is categorically a theft offense for the purposes of the 8-level enhancement under U.S.S.G. § 2L1.2(b)(l)(C), because Vehicle Code § 10851(a) does not include accessory after the fact liability under California law.
I.
The majority argues that although the Supreme Court concluded that aiding and abetting liability did not make California Vehicle Code § 10851(a) overbroad under the categorical approach in Gonzales v. Duenas-Alvarez, — U.S.-,
A. California Vehicle Code § 10851(a) is categorically a theft offense.
As acknowledged by the majority, we apply a “modern, generic definition” that defines a “theft offense” as:
*1091 a taking of property or an exercise of control over property without consent with the criminal intent to deprive the owner of rights and benefits of ownership, even if such deprivation is less than total or permanent.
United States v. Espinoza-Cano,
Applying the modern, generic definition of theft offense, the elements of a violation of Vehicle Code § 10851(a) categorically qualify a conviction under the section as a theft offense. California Vehicle Code § 10851(a) states:
Any person who drives or takes a vehicle not his or her own, without the consent of the owner thereof, and with intent either to permanently or temporarily deprive the owner thereof of his or her title to or possession of the vehicle, whether with or without intent to steal the vehicle, or any person who is a party or an accessory to or an accomplice in the driving or unauthorized taking or stealing, is guilty of a public offense and, upon conviction thereof, shall be punished by imprisonment in a county jail for not more than one year or in the state prison or by a fine of not more than five thousand dollars ($5,000), or by both the fine and imprisonment.
We must consider “whether the elements of the offense are of the type that would justify its inclusion” within a theft offense, James v. United States, — U.S.-,
B. Accessory liability does not make § 10851(a) overbroad.
As applied, the word “accessory” in Vehicle Code § 10851(a) means an accom
to find that a state statute creates a crime outside the generic definition of a listed crime in a federal statute requires more than the application of legal imagination to a state statute’s language. It requires a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime.
Duenas-Alvarez, — U.S. at -,
Although Vehicle Code § 10851(a) includes the word “accessory,” the word has a common law meaning.
1. California Penal Code § 32 sets forth a crime separate and distinct from the felony itself.
“[I]n California one who is an accessory to a felony thereby commits a crime which is separate and distinct from the felony itself.” People v. Mitten,
Every person who, after a felony has been committed, harbors, conceals or*1093 aids a principal in such felony, with the intent that said principal may avoid or escape from arrest, trial, conviction or punishment, having knowledge that said principal has committed such felony or has been charged with such felony or convicted thereof, is an accessory to such felony.
The elements of a violation of Penal Code § 32 are: that a felony was committed, that the defendant “harbored, concealed or aided a principal in that felony with the specific intent that the principal avoid or escape arrest, trial, conviction or punishment”; and that “defendant did so with knowledge that the principal committed the felony.” People v. Magee,
For example, for theft offenses, a defendant cannot be convicted as an accessory after the fact for being in possession of goods that he knows are stolen, but must be convicted of being in receipt of stolen property. See People v. Stakem, 40 Cal.599, 601 (1871) (stating that someone who recеives property with guilty knowledge that it was stolen is guilty of receiving stolen property and not as an accessory after the fact). Violations of California Penal Code § 32 must be pled and proven, including the identification of the underlying felony and the person that the defendant allegedly concealed or protected. See People v. Garnett,
Although California abrogated the common law distinction between an accessory before the fact, an accomplice at the scene, and a principal in 1872 by enacting Penal Code § 971,
2. Under California law, being an accessory after the fact to a violation of Vehicle Code § 10851(a) must be prosecuted as a violation of Penal Code § 32.
The conclusion that California requires that the government allege accessory after the fact liability as a separate offense under Penal Code § 32 is bolstered by the California Court of Appeal’s decision in Dunn v. Superior Court,
After the government filed an information that revived all the counts in the second complaint, the defendant moved to dismiss the kidnapping, robbery, and receiving stolen property counts under California Penal Code § 1387, which bars prosecution for crimes that have been “terminated” twice аgainst a defendant.
The majority now speculates that the “auto theft” referred to in Dunn was actually grand theft of an automobile, a violation of Penal Code § 487(d). Majority Op. at 1085 n. 24. The majority speculates that because the language concerning being subjected to two preliminary hearing concerning the theft of the automobile includes a reference to the Penal Code, that the opinion must refer to Penal Code § 487. Id. The majority’s theory is not only pure speculation in light of the opinion’s specific reference to Vehicle Code § 10851(a), but ignores the opinion’s specific discussion of its holding that the termination of the auto theft charge under Vehicle Code § 10851(a) and the subsequent termination of a robbery charge under Penal Code § 211 constituted the two terminations that precluded further prosecution for the taking of an automobile. Dunn, 206 CaLRptr. at 247-48 (stating “[hjere, the essence of the auto theft and robbery is the same since the robbery was specifically alleged to be the taking of the same automobile” and issuing a peremptory writ of mandate to dismiss the robbery count). The court of appeal in Dunn specifically stated that, “[a] defendant cannot be expected to move for dismissal of a count not included in the information,” and specified the charges, including the robbery count, that were actually in the information. Id. at 244, 248. The entire point of the Supreme Court’s admonition against reaching for “theoretiсal possibilities” is to prevent the type of strained interpretation the majority attempts to apply to Dunn to read in a connection to Penal Code § 487 or other theories of liability when none exists, or ever existed. Duenas-Alvarez, — U.S. at-,
As demonstrated by the facts in Dunn, California courts require prosecutions under an accessory after the fact theory of liability to be brought under Penal Code § 32, even if the underlying offense is a violation of Vehicle Code § 10851(a). Charges under Penal Code § 32 are treated as independent allegations and violations. Therefore, there is no need to discuss theoretical possibilities, or even realistic probabilities, about the extent of liability under California Vehicle Code § 10851 because the existence of Penal Code § 32 and the case law showing that California uses it to prosecute accessories after the fact when the underlying felony is a vehicle theft is sufficient to show that Vehicle Code § 10851(a) is not categorically overbroad. See Cal.Penal Code § 32; Cal.Penal Code § 972; Duenas-Alvarez, -U.S. at-,
We recently recognized that because Penal Code § 32 is a separate and distinct offense, convictions for the substantive offense do not include accessory after the fact liability for the purposes of the categorical test under Taylor. United States v. Gomez-Mendez,
This position is consistent with our treatment of accessory after the fact liability under 18 U.S.C. § 3 when applying the
3. California’s treatment of accessory after the fact liability is equivalent to liability under 18 U.S.C. § 3.
The federal accessory after the fact statute, 18 U.S.C. § 3, states in relevant part, “[wjhoever, knowing that an offense against the United States has been committed, receives, relieves, comforts or assists the offender in order to hinder or prevent his apprehension, trial or punishment, is an accessory after the fact.”
As a result, an accessory after the fact cannot be convicted as a principal on the same set of facts as a matter of law. See United States v. Taylor,
C. Joyriding falls within the generic definition of a theft offense.
Vidal advances an alternative argument that Vehicle Code § 10851(a) is not categorically a theft offense because it includes joyriding. At the time Vidal entered his plea, California had a separate joyriding statute, Penal Code § 499b, which read in pertinent part:
Any person who shall, without the permission of the owner thereof, take any automobile, bicycle, motorcycle, or other vehicle or motorboat or vessel, for the purpose of temporarily using or operating the same, shall be deemed guilty of a misdemeanor....9
The distinction between Vehicle Code § 10851(a) and the joy-riding statute was that the joyriding statute required the intent to use or operate the vehicle without the permission of the оwner, while “one
For the purposes of analyzing whether or not Vehicle Code § 10851(a) is categorically a theft offense, however, the distinction should not have any effect on our analysis.
Whether or not joyriding is de minimus also should not affect our decision of whether or not the temporary deprivation of the owner’s rights of ownership is categorically a theft offense. Such speculation regarding the facts of the case is not allowed under the categorical approach. See Duenas-Alvarez, — U.S. at -,
II.
We must heed the Supreme Court’s instructions in Duenas-Alvarez and apply accessory liability in a manner consistent with how California actually interprets and implements accessory liability under Vehicle Code § 10851(a) and Penal Code § 32. Vidal’s judgment of conviction was for violating Vehicle Code § 10851(a). In order to sustain a conviction for violating Vehicle Code § 10851(a), the government was required to prove that “1. The defendant took or drove someone else’s vehicle without the owner’s consent; and 2. When the defendant did so, (he/she) intended to deprive the owner of possession or ownership of the vehicle for any period of time.” CALCRIM 1820. Accessory after the fact liability is not part of the statutory definition of liability under Vehicle Code § 10851(a) because California has created a separate and distinct crime for being an accessory after the fact by enacting Penal Code § 32.
Vidal was convicted of a substantive offense under Vehicle Code § 10851(a). Therefore, as a matter of law, he could not be prosecuted as an accessory after the fact to the substantive offense, absent additional conduct of helping a principal after the crime. See Riley,
. The Model Penal Code defines "deprive” as:
(a) to withhold property of another permanently or for so extended a period as to appropriate a major portion of its economic value, or with intent to restore only upon payment of reward or other compensation; or
(b) to dispose of the property so as to make it unlikely that the owner will recover it.
Model Penal Code § 223.0(1).
. Prior to the enactment of Penal Code § 971, which abolished the distinction between principals, accomplices and accessories before the fact, the California Penal Code stated that "[a]n accessory is he or she who stands by and aids, abets or assists; or who, not being present aiding, аbetting or assisting, hath advised and encouraged the perpetration of the crime.” People v. Schwartz,
. The majority cites a 1946 case, People v. Slayden,
. California Penal Code § 971 states:
The distinction between an accessory before the fact and a principal, and between principals in the first and second degree is abrogated; and all persons concerned in the commission of a crime, who by the operation of other provisions of this code are principals therein, shall hereafter be prosecuted, tried and punished as principals and no other facts need be alleged in any accusatory pleading against any such person than are required in an accusatory pleading against a principal.
. The remainder of 18 U.S.C. § 3 states:
Except as otherwise expressly provided by any Act of Congress, an accessory after the fact shall be imprisoned not more than one-half the maximum term of imprisonment or (notwithstanding section 3571) fined not more than one-half the maximum fine prescribed for the punishment of the principal, or both; or if the principal is punishable by life imprisonment or death, the accessory shall be imprisoned not more than 15 years.
. In addition, "the offense of being an accessory after the fact is clearly different from aiding and abetting,” because an accessory after the fact does not aid in the commission of the underlying offense or agree to commit the crime. United States v. Innie,
.Because I conclude that a violation of Vehicle Code § 10851(a) is categorically a theft offense, I do not reach the modified categori
. People v. Magusin,
. California amended Penal Code § 499b in 1996 to restrict its application to bicycles, motorboats or vessels. Ch. 660, § 1, 1996 Cal. Stat. The reason for the amendment was "to clarify and streamline existing law by deleting provisions in Section 499b of the Penal Code that are generally duplicative of provisions in subdivision (a) of Section 10851 of the Vehicle Code.” Id. § 3.
. Although the California courts have concluded that a violation of 499b is not necessarily a lesser included offense of a violation of Vehicle Code § 10851(a), they have concluded that when a defendant is charged with "driving and taking” a car, it becomes a lesser included offense. See People v. Moon,
Dissenting Opinion
join, dissenting:
The Supreme Court just this Term instructed us that “to find that a state statute creates a crime outside the generic definition of a listed crime in a federal statute requires more than the application of legal imagination.” Gonzales v. Duenas-Alvarez, — U.S.-,
Vidal argues that the statute under which he was convicted, Cal. Veh. Code § 10851, is broader than the generic definition of “theft offense” because it purports to punish individuals who are merely accessories after the fact. But he cannot point to his own case, nor to any other case in the 84-year history of the statute, where the state has applied section 10851 in such an idiosyncratic manner. On its face, this case seems squarely controlled by Duenas-Alvarez.
The complicating factor — and the fulcrum of the majority’s analysis — is our intervening en banc opinion in United States v. Grisel,
Assuming that Grisel does create a “plain language” exception to Duenas-Al-varez, that exception must be read nаrrowly, lest it swallow up the rule. In other words, Grisel’s exception should apply only to statutes that are capable of no other rational interpretation. The statute in Grisel was a model of such clarity: Not only did it specify that it covered booths, vehicles, boats and aircraft, but it also expressly recognized that, in so doing, it was augmenting the ordinary meaning of “building.” Id. at 850 (citing Or.Rev.Stat. § 164.205(1)). Grisel thus plausibly concluded that “[t]he [state] legislature expressly recognized the ordinary, generic meaning of burglary and consciously defined second-degree burglary more broadly by extending the statute to non-buildings.”
Read narrowly, faithful to its own mode of analysis, Grisel can be reconciled with Duenas-Alvarez. Where it’s clear from the statutory text that the legislature con-
To reach its conclusion that section 10851 “explicitly” covers accessories after the fact, the majority exercises plenty of “legal imagination;” it imputes to the state legislature conscious awareness of legal developments over the prior half century, maj. op. at 1081, and leans hard on the presumption that the legislature would not have written a statute using redundant language, id. Both the imputation and the presumption are weak, as we know very well that legislatures are not omniscient and that they do, on occasion, use redundant language. That avoiding redundancy was not high on the list of legislative priorities is manifest from the last sentence of the section as enacted in 1923:
Any person who assists in, or is a party or accessory to or an accomplice in, any such stealing or unauthorized taking or driving, shall also be deemed guilty of a felony.
Ch. 226, § 146, 1923 Cal. Stat. 564, 564 (emphasis added) (codified as amended at Cal. Veh. Code § 10851(a)). A “party” is a principal or an accomplice, more likely the latter. Either way, the term does no useful work, as it duplicates the phrase “[a]ny person who shall drive a vehicle not his own without the consent of the owner thereof,” which is a few lines above, or the word “accomplice,” which is just six words below. Id. But it gets worse: The sentence opens with the phrase “[a]ny person who assists in.” Id. What conceivable purpose could that language serve that wasn’t already satisfied by “accomplice,” “accessory” or “party”?
Nor did this legislature seem to worry much about overlap with other statutes, or it would have omitted the entire sentence quoted above. After all, California already had laws imposing liability on accomplices and accessories. Cal. Penal Code §§ 31, 32; see People v. Garnett,
At most, the majority has shown that including accessories after the fact within the sweep of section 10851 is a plausible reading of the statute. But Judge Callahan’s dissent offers a reading that is at least as plausible. In these circumstances, we cannot say that the state legislature made the kind of conscious choice to broaden the statute that was at the heart of Grisel, and we therefore cannot hold that the statute’s “plain” language creates a “realistic probability” the state will apply it to accessories after the fact. Because Vidal cannot point to a single case where the statute has been applied to an accessory after the fact, he hasn’t met his burden of showing a “realistic probability” that California would so apply it. Dueñas-
I also agree with Judge Callahan that section 10851 is a “theft offense” for purposes of U.S.S.G. § 2L 1.2(b)(1)(C), even though it unquestionably covers joyriding — that is, the temporary unauthorized use of someone else’s vehicle without an intent to permanently deprive the owner of possession or ownership. See, e.g., In re Derec M.,
[T]he taking of property or an exercise of control over property without consent with the criminal intent to deprive the owner of rights and benefits of ownership, even if such deprivation is less than total or permanent.
Duenas-Alvarez,
Under this definition, a defendant need not intend to permanently deprive the rightful owner of the property altogether in order to be guilty of a generic theft offense. It is enough if he intends to temporarily deprive the owner of “rights and benefits of ownership.” Someone who drives off with another person’s vehicle certainly intends to deprive the owner of some of the rights and benefits of ownership — at the very least, his right to uninterrupted use and possession of the vehicle. Driving the vehicle without authorization also exposes thе owner to serious risks, which — even if they do not come to pass — further interfere with his incidents of ownership. Joyriding risks damage to the vehicle, which would cause a very serious, possibly permanent, deprivation of the owner’s rights and benefits. The owner also risks liability for injuries or damage the stranger causes while joyriding. Moreover, while the vehicle is out being joy-ridden, the owner cannot use it himself, which may cause him distress and annoyance, may require him to obtain substitute transportation (a taxi or rental vehicle) and may prevent him from reaching his destination on time. Joyriding thus seems to fall squarely within a straightforward application of the generic definition of a theft offense.
Defendant and amicus, Duenas-Alvarez, nevertheless argue that joyriding is different because the joyrider not only deprives the owner of his rights temporarily, but also intends the deprivation to be temporary from the start. Amicus describes this as “glorified borrowing.” However, the fact that the defendant intends to deprive the owner of his rights only temporarily does not necessarily mean that the deprivation will be so limited. What is intended to be only a temporary deprivation may very well result in serious and permanent losses to the owner, both monetary and psychological. Not knowing that the vehicle will be returned, the owner will have to make other arrangements, call the police to report the loss and, ultimately, might regain the vehicle damaged, dirty and low on gas — conditions that will require time and money to remedy. Doubtless for these reasons, a substantial majority of the states label joyriding as “theft,” as demonstrated by the helpful compilation of state statutes provided by the government in its brief. Appellee United States’ Supplemen
For these reasons, and those stated by Judge Callahan in her persuasive dissent, I would affirm the district court’s imposition of defendant’s sentencing enhancement.