Roberto Lopez Valencia v. Loretta E. Lynch

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROBERTO LOPEZ-VALENCIA, AKA No. 12-73210

Adelado Cortez,

Petitioner, Agency No.

A090-797-248

v.

LORETTA E. LYNCH, Attorney OPINION

General,

Respondent.

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

April 6, 2015—Pasadena, California

Filed August 17, 2015

Before: Andrew J. Kleinfeld, M. Margaret McKeown,

and Milan D. Smith, Jr., Circuit Judges.

Opinion by Judge McKeown

2 LOPEZ-VALENCIA V. LYNCH

SUMMARY*

Immigration

The panel granted Roberto Lopez-Valencia‘s petition for

review of the Board of Immigration Appeals’ decision finding

that his California state petty theft conviction constituted

an aggravated felony theft offense as defined by 8 U.S.C.

§ 1101(a)(43)(G).

The panel held that a California theft conviction,

including any offense for which the underlying substantive

offense charged was a violation of California Penal Code

§ 484, is not a categorical theft offense. Applying the

methodology established by Descamps v. United States, 133

S. Ct. 2276 (2013) and Rendon v. Holder, 764 F.3d 1077 (9th

Cir. 2014), the panel held that California’s theft statute is

both overbroad and indivisible, and that it does not match a

generic federal theft offense or a theft offense as defined in

8 U.S.C. § 1101(a)(43)(G). The panel emphasized that such

a conviction may thus not be subjected to the modified

categorical approach.

The panel wrote that to the extent United States v. Rivera,

658 F.3d 1073 (9th Cir. 2011), Carrillo-Jaime v. Holder, 572

F.3d 747 (9th Cir. 2009), and United States v. Corona-

Sanchez, 291 F.3d 1201 (9th Cir. 2002) (en banc), suggested

that a California theft conviction could qualify as a generic

theft offense, they are clearly irreconcilable with Descamps.

*

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

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

LOPEZ-VALENCIA V. LYNCH 3

COUNSEL

Jeremy Sanders (argued) and Kelly Schwartz (argued),

Supervised Law Students under the supervision of Kari E.

Hong, Boston College Law School, Ninth Circuit Appellate

Project, Newton, Massachusetts, for Petitioner.

Manning Evans (argued) and Joseph D. Hardy, United States

Department of Justice Office of Immigration Litigation,

Washington, D.C.; Joyce R. Branda, Acting Assistant

Attorney General, and Blair T. O’Connor, Assistant Director,

Civil Division, United States Department of Justice,

Washington, D.C., for Respondent.

OPINION

McKEOWN, Circuit Judge:

On its face, the task of figuring out whether a prior

offense qualifies as a “violent felony” under the Armed

Career Criminal Act or an “aggravated felony” under

immigration law would seem to be a straightforward

undertaking. After all, these categories conjure up the notion

of certain kinds of crimes. In practice, however, the

classification has been much more nuanced, and courts have

spent inordinate amounts of time parsing whether a crime

falls into one of these categories. The consequences are

significant as the answer may lead either to an enhanced

sentence under federal criminal law or to removal or a bar of

relief under immigration law.

Although it professed that prior caselaw “all but resolves”

the question, in Descamps v. United States the Supreme Court

4 LOPEZ-VALENCIA V. LYNCH

substantially altered the framework for determining whether

a prior state court conviction triggers certain consequences in

subsequent federal proceedings. 133 S. Ct. 2276, 2283

(2013). Adhering to the methodology established by

Descamps and our follow-on opinion in Rendon v. Holder,

764 F.3d 1077 (9th Cir. 2014), we conclude that a conviction

under California’s theft statute1 is not an aggravated felony

because it is not a “theft offense” as defined by 8 U.S.C.

§ 1101(a)(43)(G). To employ now-familiar legalese: a

conviction for “theft” in California is categorically not a

“generic theft offense” because it is both “overbroad” and

“indivisible,” and thus not susceptible to the “modified

categorical approach.” We grant Lopez-Valencia’s petition

and remand to the Board of Immigration Appeals for further

proceedings.

BACKGROUND

The facts essential to this appeal are not disputed. Lopez-

Valencia, a native and citizen of Mexico, became a lawful

permanent resident of the United States in 1989. In late 2004,

he pleaded nolo contendere to a violation of California Penal

Code Section 666 (petty theft as defined in California Penal

Code Sections 484 and 488 with a sentence enhancement due

to prior qualifying convictions), and was sentenced to a term

of three years of probation. Several months later, Lopez-

Valencia was arrested for possession of a controlled

1

California defines the substantive offense of theft in Penal Code

Section 484. Other Penal Code sections define the degrees of theft and

sentence enhancements for certain offenses. See, e.g., Cal. Penal Code

§§ 487 (grand theft), 488 (petty theft), 666 (petty theft with qualifying

prior convictions). Our use of the terms “theft conviction” or “theft

statute” refer to any offense for which the substantive, underlying offense

charged is a violation of Penal Code Section 484.

LOPEZ-VALENCIA V. LYNCH 5

substance. He admitted to violating the terms of his

probation and was sentenced to two years in state prison. In

2010, Lopez-Valencia was convicted of violating California

Health and Safety Code Section 11550 (being under the

influence of a controlled substance).

Following his second conviction, Lopez-Valencia was

placed in removal proceedings. The Immigration Judge (IJ)

ruled that both of Lopez-Valencia’s convictions rendered him

removable. The BIA affirmed on the ground that Lopez-

Valencia’s conviction “constitutes an aggravated felony”

because it is a “theft offense” as defined by 8 U.S.C.

§ 1101(a)(43)(G). In light of this ruling, the BIA declined to

address the IJ’s finding that Lopez-Valencia was also

removable due to his conviction under Section 11550.

ANALYSIS

The central issue in this appeal is whether a conviction

under California’s theft statute may qualify as an “aggravated

felony” because it is a “theft offense” as defined by 8 U.S.C.

§ 1101(a)(43)(G).2 Just four years ago, we answered

“sometimes” to this question. See United States v. Rivera,

658 F.3d 1073, 1077–78 (9th Cir. 2011) (holding that a

conviction for theft in California may be an aggravated felony

if the record “establish[es] that [the defendant] pleaded guilty

to a generic theft offense”). In Descamps, however, the

Supreme Court rejected certain aspects of our circuit’s

method of determining whether a state conviction is an

aggravated felony. Following the instructions of both

2

We have jurisdiction to answer this question under 8 U.S.C. § 1252,

and our review is de novo. Rosales-Rosales v. Ashcroft, 347 F.3d 714,

717 (9th Cir. 2003).

6 LOPEZ-VALENCIA V. LYNCH

Descamps and our subsequent decision in Rendon, we hold

that a California conviction for theft is never an aggravated

felony because it is categorically not a theft offense.3

Descamps prescribes a “three-step process” to determine

whether a prior conviction is an aggravated felony.

Medina-Lara v. Holder, 771 F.3d 1106, 1111 (9th Cir. 2014).

At the first step, we compare the elements of the state offense

to the elements of the generic offense defined by federal law.

Id. at 1112. If this “categorical approach” reveals that the

elements of the state crime are the same as or narrower than

the elements of the federal offense, then the state crime is a

categorical match and every conviction under that statute

qualifies as an aggravated felony. See Taylor v. United

States, 495 U.S. 575, 599 (1990). When a statute is

“overbroad,” meaning that it criminalizes conduct that goes

beyond the elements of the federal offense, we turn to step

two: determining whether the statute is “divisible” or

“indivisible.” Medina-Lara, 771 F.3d at 1112. If the statute

is indivisible, “our inquiry ends, because a conviction under

an indivisible, overbroad statute can never serve as a

predicate offense.” Id. Only when a statute is overbroad and

divisible do we turn to step three—the “modified categorical

approach.” At this step, we may examine certain documents

from the defendant’s record of conviction to determine what

elements of the divisible statute he was convicted of

violating. Id. at 1113; see Descamps, 133 S. Ct. at 2293.

The parties agree that our resolution of the first step is

dictated by precedent that was not called into question by

3

Because Lopez-Valencia’s conviction is not a “theft offense,” we do

not address his claim that he was not sentenced to a term of imprisonment

of more than one year.

LOPEZ-VALENCIA V. LYNCH 7

Descamps. We have consistently held that “a petty theft

conviction, under Cal. Penal Code §§ 484(a) and 666, is not

a categorical match to the federal definition of a theft

offense.” Rivera, 658 F.3d at 1077; see also Carrillo-Jaime

v. Holder, 572 F.3d 747, 751 (9th Cir. 2009); United States v.

Corona-Sanchez, 291 F.3d 1201, 1208 (9th Cir. 2002) (en

banc). This is so because the elements of a generic federal

theft offense are: “[1] a taking of property or an exercise of

control over property [2] without consent [3] with the

criminal intent to deprive the owner of rights and benefits of

ownership, even if such deprivation is less than total or

permanent.” Rivera, 658 F.3d at 1077 (alterations in original)

(quoting Carrillo-Jaime, 572 F.3d at 750). California’s theft

statute, however, “expressly criminalizes certain conduct—

such as theft of labor, false credit reporting, and theft by false

pretenses—that do not satisfy the generic definition.” Id. As

we recently confirmed in Garcia v. Lynch, California’s theft

statute is “overbroad”: some people who have been convicted

under it committed a generic theft offense, while some have

not. 786 F.3d 789, 794 (9th Cir. 2015) (per curiam). So far,

so good.

The sledding gets tougher at step two: whether the statute

is divisible. Before Descamps, this step was absent from our

jurisprudence. For any overbroad statute, divisible or not, we

“look[ed] beyond the statute of conviction to determine

whether the facts proven at trial or admitted by the defendant

as part of his guilty plea establish[ed] that the defendant was

convicted of all the elements of the relevant federal generic

offense.” Sanchez-Avalos v. Holder, 693 F.3d 1011, 1014–15

(9th Cir. 2012). Thus in Rivera, we applied the modified

categorical approach to a theft conviction without pausing to

analyze whether the statute was divisible. 658 F.3d at 1077.

8 LOPEZ-VALENCIA V. LYNCH

The Supreme Court rejected this approach in Descamps.

Abrogating our opinion in United States v. Aguila-Montes de

Oca, 655 F.3d 915 (9th Cir. 2011) (en banc), and addressing

a circuit split stemming from cases that employed the Aguila-

Montes methodology, the Court instructed that a court may

only apply the modified categorical approach to “divisible

statute[s].” Descamps, 133 S. Ct. at 2285. It explained that

a divisible statute “lists multiple, alternative elements, and so

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

Nijhawan v. Holder, 557 U.S. 29, 41 (2009)). If a statute

does not list alternative elements, but merely encompasses

different means of committing an offense, the statute is

“indivisible” and the modified categorical approach “has no

role to play.” Id.

Following Descamps, in Rendon we clarified how to

distinguish truly divisible from indivisible statutes. 764 F.3d

at 1084–90. There, we held that divisibility hinges on

whether the jury must unanimously agree on the fact critical

to the federal statute. Id. at 1085 (“[A] jury faced with a

divisible statute must unanimously agree on the particular

offense of which the petitioner has been convicted . . . .”). By

contrast, a statute is indivisible if “the jury may disagree” on

the fact at issue “yet still convict.” Id. at 1086.

As the nuances and intricacies of the modified categorical

approach are usually explained through a hypothetical crime

involving guns and axes, we employ one here. Imagine a

statute that criminalizes assault with “a gun or an axe.” A

federal law imposes penalties only for defendants previously

convicted of “gun offenses.” If state law makes clear that a

defendant can be found guilty only if all twelve jurors agree

that the defendant used a gun or if all twelve jurors agree the

defendant used an axe, the statute has alternative elements

LOPEZ-VALENCIA V. LYNCH 9

and is divisible. The court may then apply the modified

categorical approach to determine whether the defendant was

accused and convicted of using a gun or an axe. If, however,

the defendant can be convicted with six jurors believing the

defendant used a gun and six jurors believing the defendant

used an axe,4 the statute lists alternative means and is

indivisible.

Applying Rendon to California’s theft statute is not

complicated. The statute is indivisible because the jury need

not unanimously agree on how the defendant committed

theft.5 In California, “[i]t has long been the general rule . . .

that when a single crime can be committed in various ways,

jurors are not required to unanimously agree upon the mode

of commission.” People v. Griffin, 90 Cal. App. 4th 741, 750

(2001). The California Supreme Court has spoken directly on

juror unanimity under the theft statute, reasoning that while

all jurors must agree that the defendant committed some form

of unlawful taking, it is “immaterial whether or not [the jury]

agreed as to the technical pigeonhole into which the theft

fell.” People v. Nor Woods, 233 P.2d 897, 898 (Cal. 1951).

4

This oft-repeated hypothetical may seem silly due to the improbability

that someone would ever commit an assault while holding an axe in one

hand and a gun in the other. But of course, our world is a surprising place,

and improbability is not the same as impossibility. See N. Mariana

Islands v. Kaipat, No. 94-0086, 1995 WL 1943007, at *1 (N. Mar. I. Oct.

23, 1995), aff’d, 91 F.3d 151 (9th Cir. 1996) (describing a robbery that

resulted in charges being levied for both “assault with a rifle” and “assault

with an axe”).

5

In Garcia, we “assume[d] . . . without deciding,” that California’s theft

statute is divisible because “the question of divisibility was not raised in

the briefs and oral argument” and the decision was based on “other

grounds.” 786 F.3d at 795 n.8. With the benefit of fulsome briefing and

argument, we do not make that assumption here.

10 LOPEZ-VALENCIA V. LYNCH

Thus, a defendant may be convicted of “theft” if six jurors

believe that he committed larceny (which is a form of theft

that meets the federal generic definition) and six jurors

believe that he committed theft of labor (which is not). See

id. (holding that California has no requirement that jurors be

instructed “that they must agree upon the method by which

the theft was committed”); Judicial Council of California

Criminal Jury Instruction 1861 (“You may not find the

defendant guilty of theft unless all of you agree that the

People have proved that the defendant committed theft under

at least one theory. But all of you do not have to agree on the

same theory.”).

Although the California Supreme Court’s unequivocal

statements on jury unanimity in theft prosecutions are

sufficient to support our conclusion that the statute is

indivisible, the state legislature has gone a step further.

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

statute must generally select the relevant element from its list

of alternatives,” Descamps, 133 S. Ct. at 2290, California

exempts theft prosecutions from such a requirement. Section

952 of the Penal Code states that “[i]n charging theft it shall

be sufficient to allege that the defendant unlawfully took the

labor or property of another.” This approach is not the

hallmark of a statute that encompasses different crimes with

separate elements. See People v. Ashley, 267 P.2d 271, 279

(Cal. 1954) (noting that California’s laws governing theft

prosecutions “remove the technicalities that existed in the

pleading and proof of [different theft] crimes at common

law”).

Because the statute is overbroad and indivisible, our

inquiry ends at step two—the modified categorical approach

“has no role to play.” Descamps, 133 S. Ct. at 2285. We

LOPEZ-VALENCIA V. LYNCH 11

should not go further to examine any of the documents

contained in Lopez-Valencia’s record of conviction.

The government seeks to escape this conclusion by

seeking to add a fourth step to our process for invoking the

modified categorical approach. It points out that some

California courts have described the theft statute as

encompassing several different “substantive . . . offenses,”

and that distinct jury instructions exist for each form of theft.

See People v. Nazary, 120 Cal. Rptr. 3d 143, 153 (Ct. App.

2010); Judicial Council of California Criminal Jury

Instructions 1800 (larceny), 1804 (false pretenses), 1805

(theft by trick), and 1806 (embezzlement). Thus, after a trial

in which the only charge against the defendant is theft by

embezzlement and the evidence presented at trial only

supports a theory of theft by embezzlement, the jury will be

instructed on the elements of embezzlement. Although

California does not require juror unanimity on the mode of

theft committed, the government urges that a brief glance at

the charging documents will allow us to determine whether

juror disagreement was likely in any given case. In its view,

when the charging documents point to a single theory of theft

we can assume that the state “would have proven the

elements of the particular type of theft alleged and the jury

would have been instructed accordingly.”

This detour harkens back to the factual approach adopted

in the now-abrogated Aguila-Montes decision and “turns an

elements-based inquiry into an evidence-based one.”

Descamps, 133 S. Ct. at 2287. The Court clarified in

Descamps that the question of whether a statute is divisible is

a legal question about what “different crimes” are contained

within a single statute, not a factual question about the

prosecution’s theory of any given case. Id. at 2285. When a

12 LOPEZ-VALENCIA V. LYNCH

statute contains alternative means rather than alternative

elements, the charging documents will never shed any light

on the only question the modified categorical approach seeks

to answer: what elements the defendant was convicted of

violating.

Although the government’s “modified modified”

categorical approach was not explicitly rejected by Rendon,

it is inconsistent with the analysis in that case. Rendon

involved California’s burglary statute, which criminalizes

entering a vehicle with the intent to commit “larceny or any

felony.” Cal. Penal Code § 459. In burglary trials, California

courts have a sua sponte duty to instruct the jury on the

elements of larceny or the other felony the state alleges that

the defendant intended to commit. People v. Hughes, 39 P.3d

432, 472 (Cal. 2002). Thus, in prosecutions for burglary, as

in prosecutions for theft, there may be instances where the

prosecution alleges only that the defendant intended to

commit larceny and the jury is instructed only on the

elements of larceny. Rendon held, however, that Section 459

is indivisible because there is no requirement that the jury

unanimously agree whether the defendant intended to commit

larceny or another felony. See 764 F.3d at 1088–89. Rather,

due to the phrasing of the statute, the practical possibility of

a conviction being obtained despite juror disagreement

renders the statute indivisible.

The government’s approach also risks “potential

unfairness” to the defendant down the road, long after the

conviction at issue. Taylor, 495 U.S. at 601. The categorical

approach exists in large part to ensure that the imposition of

a consequence in federal proceedings does not hinge on a fact

that was irrelevant to a defendant’s earlier conviction. See

Descamps, 133 S. Ct. at 2287. Without the requirement that

LOPEZ-VALENCIA V. LYNCH 13

the jury unanimously agree on a fact, a defendant has no

reason to introduce evidence that would disprove it. See id.

at 2289 (“A defendant, after all, often has little incentive to

contest facts that are not elements of the charged

offense—and may have good reason not to.”).

In a theft prosecution in California, there is no

requirement that the charging documents spell out the

defendant’s offense with any particularity. See Cal. Penal

Code § 952. The indictment may well reference theft by

larceny, and the evidence adduced at trial may be consistent

with that theory. But if, in fact, the defendant obtained the

property through false pretenses, he would have no reason to

tell the jury his version of events: The jury would simply be

instructed on both larceny and false pretenses and told that it

is of no consequence whether they believe the state’s story or

the defendant’s story so long as they unanimously agree that

he committed some form of unlawful taking. See Judicial

Council of California Criminal Jury Instruction 1861.

This procedure does not track the Supreme Court’s

description of a prosecution under a divisible statute, in which

the prosecutor must “select the relevant element from [the

statute’s] list of alternatives” and the jury must find those

specific “element[s] unanimously and beyond a reasonable

doubt.” Descamps, 133 S. Ct. at 2290. The requirement of

juror unanimity on a set of elements that matches the federal

offense—not speculation that jurors in a specific case

unanimously agreed on a set of facts that matches the federal

definition—is the only safeguard against this unfairness. We

thus decline the government’s suggestion to insert a

“modified modified” fourth step to alter our “three-step

approach” to evaluating whether state crimes trigger federal

consequences.

14 LOPEZ-VALENCIA V. LYNCH

CONCLUSION

California’s theft statute is both overbroad and

indivisible. Full stop. The statute should not be subjected to

the modified categorical approach, and a conviction under it

can never be a “theft offense” as defined in 8 U.S.C.

§ 1101(a)(43)(G).6 Because the BIA did not address the IJ’s

alternate holding that Lopez-Valencia is removable due to his

conviction under Section 11550 of California’s Health and

Safety Code, we remand for further proceedings.

PETITION GRANTED and REMANDED.

6

As noted above, Descamps substantially altered our circuit’s

framework for applying the modified categorical approach. To the extent

that United States v. Rivera, 658 F.3d 1073, 1077 (9th Cir. 2011),

Carrillo-Jaime v. Holder, 572 F.3d 747, 751 (9th Cir. 2009), and United

States v. Corona-Sanchez, 291 F.3d 1201, 1208 (9th Cir. 2002) (en banc),

suggested that a conviction for theft in California could qualify as a

generic theft offense, we conclude that those cases are “clearly

irreconcilable” with Descamps. See Miller v. Gammie, 335 F.3d 889, 900

(9th Cir. 2003) (en banc).