Carlos Rendon v. Eric Holder, Jr.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CARLOS ALBERTO RENDON, No. 10-72239

Petitioner,

Agency No.

v. A092-080-719

ERIC H. HOLDER, JR., Attorney

General, OPINION

Respondent.

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

June 5, 2014—Pasadena, California

Filed August 22, 2014

Before: Stephen Reinhardt, Raymond C. Fisher,

and Mary H. Murguia, Circuit Judges.

Opinion by Judge Reinhardt

2 RENDON V. HOLDER

SUMMARY*

Immigration

The panel granted Carlos Alberto Rendon’s petition for

review of the Board of Immigration Appeals’ decision finding

him statutorily ineligible for cancellation of removal based on

his conviction for attempted second-degree burglary under

California state law.

The panel held as an initial matter that California Penal

Code § 459 is not a categorical match to the federal generic

attempted theft offense because it punishes a broader range of

conduct. The panel held that the BIA impermissibly applied

the modified categorical approach to determine that Rendon’s

CPC § 459 conviction qualified as an attempted theft

aggravated felony. The panel held that under Descamps v.

United States, 133 S. Ct. 2276 (2013), CPC § 459 is

indivisible as a matter of law, and that in the language at

issue: “with intent to commit grand or petit larceny or any

felony,” the use of the disjunctive “or” between “grand or

petit larceny” and “any felony” did not render the statute

divisible. The panel wrote that it necessarily follows from

Richardson v. United States, 526 U.S. 813, 815 (1999), that

the Supreme Court regards elements as circumstances upon

which a jury must unanimously agree but regards means as

circumstances on which the jury may disagree yet still

convict. The panel held that determining whether a

disjunctively worded statute is divisible or not requires

looking to whether the state treats the parts of the statute on

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

RENDON V. HOLDER 3

opposite sides of the “or” as alternative elements or

alternative means. The panel held that the substantive crimes

set forth in the language at issue are alternative means of

satisfying the intent element of CPC § 459, and the statute is

indivisible.

COUNSEL

Brigit G. Alvarez (argued), Law Office of Brigit G. Alvarez,

Los Angeles, California, for Petitioner.

Gary J. Newkirk (argued), Trial Attorney; Tony West,

Assistant Attorney General; Francis W. Fraser, Senior

Litigation Counsel; and Jacob A. Bashyrov, Trial Attorney,

United States Department of Justice, Civil Division,

Washington, D.C., for Respondent.

OPINION

REINHARDT, Circuit Judge:

In this case, we consider whether a statute written in the

disjunctive is divisible in light of the Supreme Court’s

decision in Descamps v. United States, 133 S. Ct. 2276

(2013). The statutory text at issue is a different portion of the

same statute that the Supreme Court encountered in

Descamps — California Penal Code section 459 — which

states, inter alia, that “[e]very person who enters any . . .

vehicle . . . , when the doors are locked, . . . with intent to

commit grand or petit larceny or any felony is guilty of

burglary.” Here, the Board of Immigration Appeals (BIA)

determined that petitioner’s conviction under section 459

4 RENDON V. HOLDER

qualified as an attempted theft offense, an aggravated felony

under 8 U.S.C. § 1101(a)(43)(U), by applying the modified

categorical approach. This approach is permissible only if

section 459 is divisible. We hold that the presence of an “or”

between “grand or petit larceny” and “any felony” does not,

in itself, render the statute divisible, and that, under

Descamps, section 459 is indivisible as a matter of law.

Therefore, the BIA’s use of the modified categorical

approach was impermissible, and we accordingly grant the

petition for review.

BACKGROUND

Petitioner Carlos Alberto Rendon, a native and citizen of

Mexico, was admitted to the United States in 1989 as a

Lawful Permanent Resident (LPR). On July 29, 1999, the

Immigration and Naturalization Service (INS) lodged a

charge against petitioner based on his 1996 second-degree

burglary conviction in California state court under section

459/460(b) of the California Penal Code. The INS contended

that this offense qualified as an aggravated felony under

8 U.S.C. § 1101(a)(43)(G) because it was “a theft offense . . .

or burglary offense for which the term of imprisonment [was]

at least one year.” On this basis, the INS alleged that

petitioner was subject to removal under 8 U.S.C.

§ 1227(a)(2)(A)(iii) for having committed an aggravated

felony.1

1

The INS also filed a notice to appear alleging that petitioner was

subject to removal under 8 U.S.C. § 1227(a)(2)(A)(ii) because he had been

convicted of two other crimes which qualified as crimes of moral

turpitude. The Immigration Judge (IJ) ultimately agreed, and petitioner

did not challenge this finding in his most recent appeal to the BIA.

Therefore, petitioner’s removability is not at issue in this case. However,

RENDON V. HOLDER 5

On August 24, 1999, the Immigration Judge (IJ) agreed

with the INS that petitioner was removable and denied

petitioner’s request for adjustment of status and a waiver

under 8 U.S.C. § 1182(h) because, according to the IJ,

petitioner had been convicted of an aggravated felony, which

rendered him ineligible for such a waiver. On appeal, the

Board of Immigration Appeals (BIA) remanded to the IJ for

consideration of a subsequent BIA opinion interpreting the

meaning of “burglary offense” in 8 U.S.C. § 1101(a)(43)(G),

as well as conflicting federal court cases concerning the

intersection between state burglary convictions and crimes of

violence, which are aggravated felonies under 8 U.S.C.

§ 1101(a)(43)(F).

On remand, petitioner sought cancellation of removal

under 8 U.S.C. § 1229b(a). This time, the IJ determined that

petitioner’s 1996 second-degree burglary conviction was an

aggravated felony because it qualified under 8 U.S.C.

§ 1101(a)(43)(U) as an attempted theft offense.2 Commission

of an aggravated felony renders an alien statutorily ineligible

for cancellation of removal. 8 U.S.C. § 1229b(a)(3). As a

result, the IJ concluded that petitioner was statutorily

committing two crimes of moral turpitude does not render petitioner

statutorily ineligible for cancellation of removal. See 8 U.S.C. § 1229b(a).

2

8 U.S.C. § 1101(a)(43)(U) includes within the definition of an

aggravated felony “an attempt or conspiracy to commit an offense” in

8 U.S.C. § 1101(a)(43). Thus, a conviction for attempting to commit a

theft offense or a burglary offense — offenses which may be aggravated

felonies under 8 U.S.C. § 1101(a)(43)(G) — may be an aggravated felony

itself.

6 RENDON V. HOLDER

ineligible for cancellation of removal.3 The BIA dismissed

petitioner’s appeal of the IJ’s decision. In support of its

decision, the BIA looked to the contents of petitioner’s plea

to determine that he had been convicted of California Penal

Code section 459 for “entering a locked vehicle with the

intent to commit larceny, an aggravated felony” (emphasis

added). Petitioner filed a timely petition with this Court for

review of the BIA’s decision that his conviction under

California Penal Code section 459 was an aggravated felony

that rendered him ineligible for cancellation of removal.

We have jurisdiction under 8 U.S.C. § 1252(a)(2)(D) to

review questions of law, including whether a conviction

qualifies as an aggravated felony. Mandujano-Real v.

Mukasey, 526 F.3d 585, 588 (9th Cir. 2008). We review this

legal question de novo. Id.

DISCUSSION

Petitioner was convicted of second-degree burglary under

California Penal Code section 459, which states, inter alia,

that “[e]very person who enters any . . . vehicle . . . , when the

doors are locked, . . . with intent to commit grand or petit

larceny or any felony is guilty of burglary.” This conviction

qualifies as an aggravated felony if petitioner’s violation was

an attempted “theft offense . . . or burglary offense for which

the term of imprisonment [was] at least one year.” 8 U.S.C.

§ 1101(a)(43)(G); id. § 1101(a)(43)(U). Descamps held that

a conviction under section 459 does not qualify as a

conviction for generic burglary. 133 S. Ct. at 2293. The BIA

3

According to the IJ, this determination also prevented petitioner from

obtaining voluntary departure under 8 U.S.C. § 1229c or relief under

former section 212(c) of the Immigration and Nationality Act.

RENDON V. HOLDER 7

determined, however, that petitioner was ineligible for

cancellation of removal because his conviction under section

459 was for an attempted theft offense. We disagree.

Accordingly, we grant the petition and remand for further

proceedings consistent with this opinion.4

I

In order to determine whether a state conviction qualifies

as an attempted theft offense under the federal aggravated

felony statute, 8 U.S.C. § 1101(a)(43)(U), we use the

approach set forth in Taylor v. United States, 495 U.S. 575

(1990). See Gonzales v. Duenas-Alvarez, 549 U.S. 183,

185–87 (2007). That approach — deemed the “categorical

approach” — requires that courts “‘look only to the statutory

definitions’ — i.e., the elements — of a defendant’s prior

offenses, and not ‘to the particular facts underlying those

convictions’” when making a comparison between a prior

conviction and a federal, generic crime. Descamps, 133 S.

Ct. at 2283 (quoting Taylor, 495 U.S. at 600). If the state

statute under which the defendant was previously convicted

has the same elements as, or is narrower than, the federal,

generic crime, then the prior conviction can serve as an

aggravated felony predicate. Id. However, if the state

“statute sweeps more broadly than the generic crime, a

conviction under that law cannot count as an [aggravated

felony] predicate, even if the defendant actually committed

the offense in its generic form.” Id.

4

Because we grant the petition, we need not reach petitioner’s argument

that he could not be deemed ineligible for cancellation of removal based

on a ground that was not charged in his notice to appear.

8 RENDON V. HOLDER

For the limited purpose of “help[ing to] implement the

categorical approach,” id. at 2285, the Court has recognized

a “narrow range of cases” in which courts may apply the

“modified categorical approach,” id. at 2283 (quoting Taylor,

495 U.S. at 602) (internal quotation marks omitted). The

modified categorical approach allows courts to look beyond

the statutory text to a limited set of documents to determine

the elements of the state offense of which the defendant was

convicted when some alternative elements of the state crime

would match the federal, generic crime, and other alternative

elements would not. See id. at 2285. Recently, the Supreme

Court in Descamps explained that courts may use the

modified categorical approach only when a statute is divisible

— i.e., “lists multiple, alternative elements, and so effectively

creates ‘several different . . . crimes.’” Id. (quoting Nijhawan

v. Holder, 129 S. Ct. 2294, 2303 (2009)) (emphasis added).

The Court contrasted divisible statutes with those that are

indivisible — i.e., contain a “single, indivisible set of

elements” constituting a single crime — for which the

modified categorical approach is inappropriate. Id. at 2282.

This decision abrogated our earlier decision in United States

v. Aguila-Montes de Oca, 655 F.3d 915, 927–28 (9th Cir.

2011) (en banc), in which we had asserted that courts could

use the modified categorical approach when a statute is

indivisible, yet missing an element of the federal, generic

crime. Thus, after Descamps we may apply the modified

categorical approach only when the state statute at issue is

divisible.5 If the state statute at issue is overbroad and

5

Although Descamps discussed the issue of divisibility in the context

of a sentence enhancement under the Armed Career Criminal Act

(ACCA), we have applied Descamps in the context of collateral

immigration consequences. See, e.g., Coronado v. Holder, No. 11-72121,

2014 WL 3537027 (9th Cir. July 18, 2014) (applying Descamps to

RENDON V. HOLDER 9

indivisible, we may not apply the modified categorical

approach, and we must hold that petitioner has met his burden

for establishing that he was not convicted of an aggravated

felony.6

II

A.

In this case, the BIA applied the modified categorical

approach to determine that petitioner’s conviction under

determine whether a state drug conviction rendered an alien inadmissible

for violating a law relating to a controlled substance as defined by federal

law); Aguilar-Turcios v. Holder, 740 F.3d 1294 (9th Cir. 2014) (applying

Descamps to determine whether an alien was removable for having

committed an aggravated felony). Thus, we have no doubt that Descamps

applies to this case.

6

Our decision in Young v. Holder, 697 F.3d 976, 989 (9th Cir. 2012) (en

banc), does not require a different result. Young held that, when a court

applies the modified categorical approach, a petitioner cannot demonstrate

eligibility for cancellation of removal on an inconclusive record because,

in such a case, it is both “possible that Petitioner’s prior conviction

constitutes an aggravated felony” and “possible that it does not.” Id. at

990. That is because the modified categorical approach allows a court

reviewing a prior conviction under a divisible statute to determine which

of “several different . . . crimes” was at issue. Descamps, 133 S. Ct. at

2285 (quoting Nijhawan, 129 S. Ct. at 2303) (internal quotation marks

omitted). In contrast, a defendant convicted of an indivisible statute has

necessarily committed the one crime at issue, and that crime is either a

match to the federal, generic crime, or it is not. The record is never

inconclusive. Thus, if the petitioner establishes that the statute under

which he was convicted is indivisible and punishes a broader range of

conduct than the federal, generic crime, it is never possible for that

conviction to qualify as an aggravated felony, and the petitioner has met

his burden. We need not, and do not, decide whether Young is

incompatible with Moncrieffe v. Holder, 133 S. Ct. 1678 (2013).

10 RENDON V. HOLDER

California Penal Code section 459 was an attempted theft

offense, which is an aggravated felony under 8 U.S.C.

§ 1101(a)(43)(U) and 8 U.S.C. § 1101(a)(43)(G). We review

only whether petitioner’s conviction qualifies as an attempted

theft offense because “[o]ur review is limited to the BIA’s

decision and the grounds” upon which it found petitioner

ineligible for cancellation of removal. Vargas-Hernandez v.

Gonzales, 497 F.3d 919, 921–22 (9th Cir. 2007).7

As an initial matter, California Penal Code section 459 is

not a categorical match to the federal, generic crime of an

attempted theft offense because section 459 punishes a

broader range of conduct than a generic attempted theft

offense. Section 459 states, inter alia, that “[e]very person

who enters any . . . vehicle . . . , when the doors are locked,

. . . with intent to commit grand or petit larceny or any felony

is guilty of burglary” (emphasis added). A generic attempted

theft offense includes two elements: “[1] an intent to commit

a theft offense . . . [and] [2] an overt act constituting a

substantial step towards the commission of the offense.”8

Ngaeth, 545 F.3d at 801. Our precedent squarely holds that

section 459 punishes a broader range of conduct than the

7

Indeed, the government’s argument is confined to whether petitioner’s

conviction qualifies as an attempted theft offense, rather than any other

aggravated felony.

8

Because we ultimately hold that section 459 (or at least the portion that

provides, “with intent to commit grand or petit larceny or any felony”) is

indivisible and that, as a result, a sentencing court cannot conclude that the

conduct underlying a particular conviction involved the intent to commit

theft, it follows that we also cannot conclude that a defendant took a

“substantial step” toward theft in any given case. Contra Ngaeth v.

Mukasey, 545 F.3d 796, 802 (9th Cir. 2008) (per curiam); Hernandez-

Cruz v. Holder, 651 F.3d 1094, 1104–05 (9th Cir. 2011).

RENDON V. HOLDER 11

generic crime of an attempted theft offense because “[s]ection

459 may be violated by an attempt to commit a crime other

than theft — for example, by breaking into a vehicle with the

intent to commit arson.” Id.9

Before Descamps, we would have applied the modified

categorical approach to determine whether the documents we

are permitted to examine in implementing that approach

reveal that petitioner intended to commit theft. See, e.g., id.

at 801–02. However, in light of Descamps, we cannot

employ that approach unless the statute is divisible. Here, we

conclude that it is not.

B.

Descamps addressed the proper method for distinguishing

divisible statutes from indivisible statutes. The critical

distinction is that while indivisible statutes may contain

multiple, alternative means of committing the crime, only

divisible statutes contain multiple, alternative elements of

functionally separate crimes. See Descamps, 133 S. Ct. at

2285 n.2; United States v. Cabrera-Gutierrez, No. 12-30233,

2014 WL 998173, at *8 n.16 (9th Cir. Mar. 17, 2014)

(“[U]nder Descamps, what must be divisible are the elements

of the crime, not the mode or means of proving an element.”).

This distinction explains why the modified categorical

approach is appropriate only for divisible statutes — because

9

It bears noting that this conclusion from Ngaeth is clearly correct. See

People v. Montoya, 874 P.2d 903, 911 n.8 (Cal. 1994) (explaining that the

text of section 459 and the cases interpreting it establish that a defendant

may be convicted under the statute for entering with the intent to commit

any felony, rather than only theft offenses, and listing cases that prove the

point).

12 RENDON V. HOLDER

the modified categorical approach as applied to a divisible

statute may reveal which alternative element the state charged

and the jury or judge found when only some alternative

elements match the federal, generic crime. In other words, as

Descamps explained, when a state statute punishes a broader

range of conduct than a federal, generic crime, “only divisible

statutes enable a sentencing court to conclude that a jury (or

judge at a plea hearing) has convicted the defendant of every

element of the generic crime.” 133 S. Ct. at 2290. That is

because “[a] prosecutor charging a violation of a divisible

statute must generally select the relevant element from its list

of alternatives. And the jury, as instructions in the case will

make clear, must then find that element, unanimously and

beyond a reasonable doubt.” Id. (citation and footnote

omitted).

While the jury faced with a divisible statute must

unanimously agree on the particular offense of which the

petitioner has been convicted (and thus, the alternative

element), the opposite is true of indivisible statutes; the jury

need not so agree. For example, if the statute at issue is

indivisible, the jury would not need to agree on the particular

substantive crime that the defendant intended as long as all

jurors find that the defendant intended to commit at least one

of “grand or petit larceny or any felony.” To illustrate this

point, the Descamps Court used an example from Aguila-

Montes where a state statute criminalized assault with a

“weapon,” while a federal enhancement statute applied only

if the defendant was convicted of assault with a gun. The

Court explained that “[a]s long as the statute itself requires

only an indeterminate ‘weapon,’ that is all the indictment

must (or is likely to) allege and all the jury instructions must

(or are likely to) mention. And most important, that is all the

jury must find to convict the defendant. The jurors need not

RENDON V. HOLDER 13

all agree on whether the defendant used a gun or a knife or a

tire iron . . . , because the actual statute requires the jury to

find only a ‘weapon.’ And even if in many cases, the jury

could have readily reached consensus on the weapon used, a

later sentencing court cannot supply that missing judgment.”

Id. In other words, Descamps held that indivisible statutes

are indivisible precisely because the jury need not agree on

anything past the fact that the statute was violated. As long

as the defendant’s conduct violates the statute, the jury can

disagree as to how, and a later sentencing court cannot

conclude that the jury in fact agreed on the particular means

of commission.

Of course, this logic need not be limited to statutes with

indeterminate words (e.g., “weapon”) that are only implicitly

divisible (“gun, knife, tire iron, etc.”). Any statutory phrase

that — explicitly or implicitly — refers to multiple,

alternative means of commission must still be regarded as

indivisible if the jurors need not agree on which method of

committing the offense the defendant used. Otherwise, the

Court’s express purpose for separating indivisible statutes

from divisible statutes — preventing sentencing courts from

finding facts on which a jury did not have to agree, rather

than elements on which a jury did have to agree — would be

undermined. To be clear, it is black-letter law that a statute

is divisible only if it contains multiple alternative elements,

as opposed to multiple alternative means. Id. at 2285. Thus,

when a court encounters a statute that is written in the

disjunctive (that is, with an “or”), that fact alone cannot end

the divisibility inquiry. Only when state law requires that in

order to convict the defendant the jury must unanimously

agree that he committed a particular substantive offense

contained within the disjunctively worded statute are we able

14 RENDON V. HOLDER

to conclude that the statute contains alternative elements and

not alternative means.

That the distinction between elements and means is

reflected in the requisite jury findings is well-established in

Supreme Court precedent. For example, in Richardson v.

United States, 526 U.S. 813, 815 (1999), the Court

encountered a federal statute forbidding any person from

engaging in a “continuing criminal enterprise,” which the

statute defined as involving a “continuing series of

violations.” The question at issue was whether the jury was

required to unanimously agree on which particular violations

constituted the “series of violations.” Id. at 816. The Court

explained that while a “a jury in a federal criminal case

cannot convict unless it unanimously finds that the

Government has proved each element,” a “federal jury need

not always decide unanimously . . . which of several possible

means the defendant used to commit an element of the

crime.” Id. at 817 (emphasis added). On the assumption that

three violations constitutes a “series,” the Court held that “[i]f

the statute creates a single element, a ‘series,’ in respect to

which individual violations are but the means, then the jury

need only agree that the defendant committed at least three of

all the underlying crimes the Government has tried to prove”

but “need not agree about which three,” while “if the statute

makes each ‘violation’ a separate element, then the jury must

agree unanimously about which three crimes the defendant

committed.” Id. at 818. It necessarily follows from

Richardson that the Supreme Court regards elements as those

circumstances on which the jury must unanimously agree,

while it regards means as those circumstances on which the

jury may disagree yet still convict. Indeed, the Descamps

Court cited Richardson for the proposition that “the only facts

the court can be sure the jury . . . found [unanimously and

RENDON V. HOLDER 15

beyond a reasonable doubt] are those constituting elements of

the offense.” 133 S. Ct. at 2288 (citing Richardson, 526 U.S.

at 817) (emphasis added).10

Both binding and persuasive precedent provide further

support for our conclusion that the distinction between

elements and means parallels the need for juror agreement.

In United States v. Cabrera-Gutierrez, we considered

whether an Oregon sexual abuse statute was divisible because

it covered sexual intercourse both where the victim, although

capable of consenting, does not consent, and where the victim

is incapable of consenting. 2014 WL 998173, at *5. We

explained that, under Descamps, “what must be divisible are

the elements of the crime, not the mode or means of proving

an element,” and the statute at issue was therefore indivisible

because the state in a case concerning this Oregon statute

“need[s to] prove only that a defendant has engaged in

intercourse with another and that the other ‘does not consent

thereto.’” Id. at *8 & n.16. In other words, the state does not

need to prove (and the judge or jury does not need to find)

one particular theory of non-consent, and as a result, “a

sentencing court cannot tell whether the jury or judge

10

The interplay between the majority and dissent in Descamps further

confirms our understanding of how to perform a proper divisibility

inquiry. The Descamps dissent characterized the majority opinion as

holding that a statute is divisible “only if the offense in question includes

as separate elements all of the elements of the generic offense,” and that

an “element” is “something on which a jury must agree by the vote

required to convict under the law of the applicable jurisdiction.” 133 S.

Ct. at 2296 (Alito, J., dissenting). While the majority contested the

dissent’s argument that the Court’s prior cases are inconsistent with this

method of distinguishing divisible statutes from indivisible statutes, the

majority did not contest the dissent’s characterization of how the majority

distinguishes divisible statutes from indivisible statutes. See 133 S. Ct. at

2285 n.2 (majority opinion).

16 RENDON V. HOLDER

convicted a defendant of intercourse with a victim who did

not actually consent or a victim who lacked capacity to

consent.” Id. at *8.11 The Fourth Circuit has reasoned

similarly. See United States v. Royal, 731 F.3d 333, 341 (4th

Cir. 2013), cert. denied, 134 S. Ct. 1777 (2014) (holding that

“offensive physical contact” and “physical harm” are “merely

alternative means of satisfying a single element” of the

11

While we have found, in a few cases decided after Descamps, that

statutes written in the disjunctive are divisible without inquiring into the

need for juror unanimity, those cases are either distinguishable from the

present case or consistent with our approach. In two cases, it was

impossible for the state to allege and the jury to find that the defendant

violated the alternative parts of the statute simultaneously, whereas it is

certainly possible for the state to allege and the jury to find that a

defendant charged with violating section 459 had the intent to commit

both a theft offense and a non-theft felony following entry. See United

States v. Quintero-Junco, 754 F.3d 746, 752 (9th Cir. 2014) (a statute

punishing a person who “engag[es] in sexual contact with any person who

is fifteen or more years of age without consent of that person or with any

person who is under fifteen years of age if the sexual contact involves only

the female breast” (quoting Ariz. Rev. Stat. § 13-1404) (internal quotation

marks omitted)); Duenas-Alvarez v. Holder, 733 F.3d 812, 814–15 (9th

Cir. 2013) (a statute “impos[ing] criminal liability in the alternative on

principals as well as on accessories after the fact”). In Murillo-Prado v.

Holder, 735 F.3d 1152, 1157 (9th Cir. 2013) (per curiam), the Arizona

statute contained a list of alternative definitions of racketeering, each as

its own subsection of the statute. We relied on pre-Descamps Ninth

Circuit precedent (without mentioning Descamps) holding the modified

categorical approach applicable to the statute; there was no indication that,

under Arizona law, a jury could disagree regarding which portion of the

racketeering definition was at issue, yet still convict. Perhaps most telling

is Coronado v. Holder, 2014 WL 3537027, at *5 n.4, in which the

petitioner argued that a disjunctive statute contained alternative means,

rather than alternative elements, and we properly looked beyond the

statutory text to state case law and jury instructions to evaluate and

ultimately reject that contention. See also Ragasa v. Holder, 752 F.3d

1173, 1176 (9th Cir. 2014) (relying on Coronado to reach the same

conclusion regarding a similarly structured statute).

RENDON V. HOLDER 17

Maryland assault statute, rather than alternative elements,

because “Maryland juries are not instructed that they must

agree ‘unanimously and beyond a reasonable doubt’ on

whether the defendant caused ‘offensive physical contact’ or

‘physical harm’ to the victim; rather, it is enough that each

juror agree only that one of the two occurred, without settling

on which”).

Our conclusion here also mirrors the BIA’s understanding

of Descamps. After argument in this case, the BIA revisited

its method of determining whether a statute is divisible. See

Matter of Chairez, 26 I & N Dec. 349, 352–54 (BIA 2014)

(reconsidering Matter of Lanferman, 25 I & N Dec. 721 (BIA

2012), and ultimately “withdraw[ing] from that decision to

the extent that it is inconsistent with Descamps,” id. at 354).

The BIA explained that, after Descamps, a statute is divisible

only if, inter alia, “it lists multiple discrete offenses as

enumerated alternatives or defines a single offense by

reference to disjunctive sets of ‘elements,’ more than one

combination of which could support a conviction.” Id. at 353

(citing Descamps, 133 S. Ct. at 2281, 2283). Directly in line

with our approach in this case, the BIA further explained that

“an offense’s ‘elements’ are those facts about the crime

which ‘[t]he Sixth Amendment contemplates that a jury —

not a sentencing court — will find . . . unanimously and

beyond a reasonable doubt.’” Id. (quoting Descamps, 133 S.

Ct. at 2288). The BIA applied its new, post-Descamps

approach to the Utah statute at issue, a criminal statute

punishing certain discharges of a firearm which included a

mens rea element requiring that the defendant acted with

“intent, knowledge, or recklessness.” Id. at 352. Despite the

fact that the mental states in the statute were written in the

disjunctive, the BIA did precisely what we hold is necessary

when courts encounter a statute written in the disjunctive: it

18 RENDON V. HOLDER

asked whether “Utah law requires jury unanimity regarding

the mental state with which the accused discharged the

firearm.” Id. at 354. The BIA correctly explained that “[i]f

Utah does not require such jury unanimity, then it follows

that intent, knowledge, and recklessness are merely

alternative ‘means’ by which a defendant can discharge a

firearm, not alternative ‘elements’ of the discharge offense.”

Id.

In this case, we apply the Descamps method of

distinguishing divisible statutes from indivisible statutes to

California Penal Code section 459. Section 459 punishes

individuals who enter, inter alia, a locked vehicle12 with the

intent to commit a crime. As we explain below, the state does

not require that the prosecution prove and the jury

unanimously find that the defendant intended to commit any

particular offense following entry. Rather, it is sufficient that

the defendant had the requisite intent to commit larceny or

any felony, whether or not the jurors disagree regarding the

particular offense the defendant intended to commit. Thus,

we hold that the particular substantive crime the defendant

intended to commit is not an element of section 459; rather,

the various substantive crimes that the defendant may intend

to commit are simply alternative means of satisfying one

element — that of criminal intent to commit a listed offense

following entry. Accordingly, section 459 is indivisible.

12

In addition to people who enter locked vehicles, section 459 also

applies to “[e]very person who enters any house, room, apartment,

tenement, shop, warehouse, store, mill, barn, stable, outhouse or other

building, tent, vessel, . . . floating home, . . . railroad car, locked or sealed

cargo container, whether or not mounted on a vehicle, trailer coach, . . .

any house car, . . . inhabited camper, . . . aircraft . . . , or mine or any

underground portion thereof.”

RENDON V. HOLDER 19

C.

In sum, we determine whether a disjunctively worded

state statute is divisible or not by looking to whether the state

treats the parts of the statute on opposite sides of the “or” as

alternative elements or alternative means.13 In this case,

California state law is clear: the jury need not be unanimous14

regarding the particular offense the defendant intended to

commit in order to convict under section 459. All the

prosecution must prove is that the defendant intended to

commit an offense listed in the statute — namely, “grand or

petit larceny or any felony.” The jury need not agree on

which of the substantive offenses the defendant intended to

commit — only that he intended to commit an offense listed

in the statute. Therefore, the substantive crimes are

alternative means of satisfying the intent element of the

statute, and the statute is indivisible. As a result, we are

unable to conclude that petitioner was convicted of having the

intent to commit a theft offense rather than a non-theft felony.

13

While the Supreme Court reserved the question whether a court

seeking to determine a crime’s elements “should take account not only of

the relevant [state] statute’s text, but of judicial rulings interpreting it,”

Descamps, 133 S. Ct. at 2291, this court has looked to the state courts to

determine the elements of state law, see Banuelos-Ayon v. Holder,

611 F.3d 1080, 1084 (9th Cir. 2010). It is both consistent with Descamps

and most faithful to its reasoning to review state law regarding the

unanimity of jury verdicts for the purpose of determining whether a

disjunctively worded statute contains alternative elements or alternative

means. We need not, and do not, decide whether it is appropriate to

review state law to determine anything further when performing a

divisibility analysis in light of Descamps.

14

“In a [California] criminal case, a jury verdict must be unanimous.”

People v. Russo, 25 P.3d 641, 645 (Cal. 2001).

20 RENDON V. HOLDER

The first California case to address the issue of jury

unanimity regarding the defendant’s intent in section 459

cases was People v. Failla, 414 P.2d 39 (Cal. 1966). There,

the Supreme Court of California rejected the argument that it

was “necessary for all the jurors to agree on what particular

felony or felonies” the defendant intended at the time of

entry, reasoning instead that section 459 “sets forth only one

act which constitutes the offense, but that act may be

presented to the jury on several different ‘theories.’” Id. at

44. As a result, the court declared that “in prosecutions for

burglary . . . the jurors need not be instructed that to return a

verdict of guilty they must all agree on the specific ‘theory’

of the entry — i.e., what particular felony or felonies the

defendant intended at the time — provided they are told they

must be unanimous in finding that a felonious entry took

place.” Id. at 45.

Relying on Failla, subsequent cases have made it clear

that the jury need not agree on whether a defendant charged

with violating section 459 had the intent to commit a theft

offense or a non-theft felony. For example, in People v.

Smith, 78 Cal. App. 3d 698 (Ct. App. 1978), the court cited

Failla for the proposition that the defendant “could have been

found guilty if six of the jurors agreed that defendant had the

intent to steal while the remaining six found that he had an

intent to commit an assault by means likely to produce great

bodily injury. . . . [A]s long as each of the twelve jurors finds

that defendant had the specific intent to commit either of the

two crimes mentioned, it is immaterial as to the division of

the jurors between the two intended crimes.” Id. at 708.

People v. Griffin, 90 Cal. App. 4th 741 (Ct. App. 2001),

reached the same conclusion and specifically rejected the

argument that because Failla did not involve any allegation

of an intent to commit theft, it was distinguishable from those

RENDON V. HOLDER 21

cases that do include such an allegation. See id. at 752

(“[T]he fact that Failla did not involve theft as an alternative

theory of guilt does not provide a meaningful basis to

distinguish it from the facts of the . . . case.”).15 By now, the

rule concerning juror agreement regarding the defendant’s

intent in section 459 cases is so well-established that the

Supreme Court of California has used it as an example to

demonstrate the difference between “discrete crimes, which

require a unanimity instruction, and theories of the case,

which do not.” Russo, 25 P.3d at 646.

California law overwhelmingly dictates the conclusion

that the jury in a case concerning an alleged violation of

section 459 need not be unanimous regarding whether the

defendant intended to commit a theft offense or any other

felony. Thus, the fact that section 459 contains two types of

offenses preceding an “or” and a general category of offenses

following the “or” is in itself of no significance. Because the

jury could convict a defendant of section 459 without

agreeing on whether the defendant had the intent to commit,

on the one hand, “grand or petit larceny,” or, on the other

15

In Griffin, the court explained that “[i]t has long been the general rule

in California . . . that when a single crime can be committed in various

ways, jurors are not required to unanimously agree upon the mode of

commission.” 90 Cal. App. 4th at 750 (citing People v. Sutherland,

17 Cal. App. 4th 602, 612 (Ct. App. 1993)). This rule is known as the

“Sullivan rule,” named for People v. Sullivan, 65 N.E. 989 (N.Y. 1903).

It holds that “where a statute prescribes disparate alternative means by

which a single offense may be committed, no unanimity is required as to

which of the means the defendant employed so long as all the members of

the jury are agreed that the defendant committed the offense as it is

defined by the statute.” Sutherland, 17 Cal. App. 4th at 613. It follows

that we must take great care when considering California state violations

as a prior offense because a disjunctively worded California statute may

simply be listing alternative means rather than alternative elements.

22 RENDON V. HOLDER

hand, any non-theft felony, we (and the BIA) cannot

determine that the jury in such a case concluded, beyond a

reasonable doubt, that the defendant attempted to commit a

theft offense rather than a non-theft felony. As a result, the

language at issue — “with intent to commit grand or petit

larceny or any felony” — is indivisible, and the use of the

modified categorical approach is not permissible. See

Descamps, 133 S. Ct. at 2282.

CONCLUSION

We hold that petitioner’s conviction under California

Penal Code section 459 cannot qualify as an attempted theft

offense under 8 U.S.C. § 1101(a)(43)(U) and therefore does

not render petitioner ineligible for cancellation of removal on

that basis. We therefore GRANT the petition for review,

REVERSE the decision of the BIA, and REMAND to the

BIA for further proceedings consistent with this opinion.

PETITION GRANTED AND REMANDED.