Oscar Chavez Solis v. Loretta E. Lynch

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

OSCAR CHAVEZ-SOLIS, No. 11-73958

Petitioner,

Agency No.

v. A073-850-909

LORETTA E. LYNCH, Attorney

General, OPINION

Respondent.

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

June 4, 2015—Pasadena, California

Filed October 6, 2015

Before: Raymond C. Fisher, Jay S. Bybee,

and Carlos T. Bea, Circuit Judges.

Opinion by Judge Bybee

2 CHAVEZ-SOLIS V. LYNCH

SUMMARY*

Immigration

The panel granted Oscar Chavez-Solis’s petition for

review of the Board of Immigration Appeals’ decision

holding that his conviction for possessing child pornography

under California Penal Code § 311.11(a) is an aggravated

felony under 8 U.S.C. § 1101(a)(43)(I).

The panel held that CPC § 311.11(a) is not an aggravated

felony because it is categorically broader than any offense

described in the federal child pornography statute. The panel

also held that the modified categorical approach could not be

applied because the definition of “sexual conduct” in CPC

§ 311.4(d) is indivisible.

COUNSEL

Douglas Jalaie (argued), Los Angeles, California, for

Petitioner.

Stuart F. Delery, Principal Deputy Assistant Attorney

General; Jennifer Lightbody, Senior Litigation Counsel;

Ashley Y. Martin (argued), Attorney, Office of Immigration

Litigation, United States Department of Justice, Washington,

D.C., for Respondent.

*

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

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

CHAVEZ-SOLIS V. LYNCH 3

OPINION

BYBEE, Circuit Judge:

We are asked to decide whether a conviction for

possessing child pornography in violation of California Penal

Code § 311.11(a) is an aggravated felony under 8 U.S.C.

§ 1101(a)(43)(I). We conclude that § 311.11(a) sweeps in a

broader range of pornographic depictions than the federal

child pornography statute and thus is not an aggravated

felony. Accordingly, we grant the petition for review.

I

Oscar Chavez-Solis is a native and citizen of Mexico who

was admitted to the United States as a lawful permanent

resident in 1999. In 2011, he pleaded nolo contendere to

possessing or controlling child pornography in violation of

California Penal Code § 311.11(a). He was sentenced to 150

days’ imprisonment.

Two months later, the Department of Homeland Security

(DHS) took Chavez-Solis into custody and placed him in

removal proceedings. The Notice to Appear charged Chavez-

Solis with removability under 8 U.S.C. § 1227(a)(2)(A)(iii)

as an alien “convicted of an aggravated felony as defined in

[8 U.S.C. § 1101(a)(43)(I)].” Section 1101(a)(43)(I) defines

the term “aggravated felony” to include “an offense described

in [18 U.S.C. §§] 2251, 2251A, or 2252 . . . (relating to child

pornography).”

In proceedings before the Immigration Judge, DHS took

the position that Penal Code § 311.11(a) is an aggravated

felony under 8 U.S.C. § 1101(a)(43)(I) because it is described

4 CHAVEZ-SOLIS V. LYNCH

in both 18 U.S.C. § 2252(a)(2) (receipt of child pornography)

and § 2252(a)(4)(B) (possession of child pornography).

Chavez-Solis disagreed. Pointing to the California Court of

Appeal’s decision in Tecklenburg v. Appellate Division of the

Superior Court, 87 Cal. Rptr. 3d 460, 472–73 (Ct. App.

2009), he argued that, unlike federal courts applying the

federal statute, California courts have held that a defendant

who accesses child pornography on the Internet can be

convicted under § 311.11(a) for possessing images found in

his computer’s temporary cache even if he is unaware of the

cache.

In an oral decision, the Immigration Judge determined

that Chavez-Solis’s § 311.11(a) conviction constituted an

aggravated felony under 8 U.S.C. § 1101(a)(43)(I). The

Immigration Judge compared the statutes and reasoned that

“[t]he essential elements of California Penal Code Section

311.11[(a)], as well as those under 2252(a)(4)(B) are

essentially the same.” Acknowledging that Tecklenburg

construed § 311.11(a) broadly, the Immigration Judge

responded, “That is exactly the point. . . . [B]oth [state and

federal] statues [sic] are so broad they are virtually identical

. . . .” The Immigration Judge concluded that Chavez-Solis

was ineligible for adjustment of status, cancellation of

removal, and voluntary departure, and ordered him removed

to Mexico.

Chavez-Solis appealed to the Board of Immigration

Appeals. Reviewing de novo, the Board concluded that

“[t]he offense defined by section 311.11(a) . . . is ‘described

in’ 18 U.S.C. § 2252 because the essential elements of the

California offense are the same as those described by

18 U.S.C. §§ 2252(a)(2) and (a)(4)(B).” As for the

Tecklenburg decision, the Board reasoned that the defendant

CHAVEZ-SOLIS V. LYNCH 5

in Tecklenburg did “knowingly possess or control images of

child pornography,” and thus could have been convicted

under 18 U.S.C. § 2252. The Board thus agreed with the

Immigration Judge that a violation of Penal Code § 311.11(a)

is an offense described in 18 U.S.C. § 2252 and accordingly

dismissed the appeal.

Chavez-Solis filed a timely petition for review with this

court. We have jurisdiction to review questions of law

decided by the Board of Immigration Appeals, 8 U.S.C.

§ 1252(a)(1), (a)(2)(D), and “[w]hether an offense is an

aggravated felony for removal purposes is a question of law”

that we review de novo, Chuen Piu Kwong v. Holder,

671 F.3d 872, 876 (9th Cir. 2011) (brackets omitted) (quoting

Morales-Alegria v. Gonzales, 449 F.3d 1051, 1053 (9th Cir.

2006)).

II

We determine whether a state law child pornography

conviction is an aggravated felony as defined in 8 U.S.C.

§ 1101(a)(43)(I) by applying the categorical approach

outlined in Taylor v. United States, 495 U.S. 575 (1990).

Under that approach, we “make a categorical comparison of

the elements of the statute of conviction and the generic

definition of an aggravated felony, as found in

§ 1101(a)(43).” Aguilar-Turcios v. Holder, 740 F.3d 1294,

1300 (9th Cir. 2014). Here, that means we must compare the

elements of California Penal Code § 311.11(a) with those of

18 U.S.C. §§ 2252(a)(2) and 2252(a)(4)(B).

6 CHAVEZ-SOLIS V. LYNCH

A

The statute of conviction here, California Penal Code

§ 311.11(a), punishes a person who “knowingly possesses or

controls any matter, representation of information, data, or

image, . . . the production of which involves the use of a

person under 18 years of age, knowing that the matter depicts

a person under 18 years of age personally engaging in or

simulating sexual conduct.” “Sexual conduct,” in turn, means

“actual or simulated”

sexual intercourse, oral copulation, anal

intercourse, anal oral copulation,

masturbation, bestiality, sexual sadism, sexual

masochism, penetration of the vagina or

rectum by any object in a lewd or lascivious

manner, exhibition of the genitals or pubic or

rectal area for the purpose of sexual

stimulation of the viewer, any lewd or

lascivious sexual act as defined in Section

288, or excretory functions performed in a

lewd or lascivious manner.

Id. § 311.4(d)(1).

The federal possession statute, 18 U.S.C.

§ 2252(a)(4)(B),1 punishes a person who “knowingly

possesses, or knowingly accesses with intent to view, [any]

matter which contain[s] any visual depiction . . . if—(i) the

producing of such visual depiction involves the use of a

1

We focus our attention on 18 U.S.C. § 2252(a)(4)(B), the provision of

the federal statute that, like Penal Code § 311.11(a), punishes simple

possession of child pornography.

CHAVEZ-SOLIS V. LYNCH 7

minor engaging in sexually explicit conduct; and (ii) such

visual depiction is of such conduct.”2 Another section defines

“sexually explicit conduct” as actual or simulated

(i) sexual intercourse, including genital-

genital, oral-genital, anal-genital, or oral-anal,

whether between persons of the same or

opposite sex;

(ii) bestiality;

(iii) masturbation;

(iv) sadistic or masochistic abuse; or

(v) lascivious exhibition of the genitals or

pubic area of any person.

18 U.S.C. § 2256(2)(A).

The statutes overlap in many respects:

Both statutes require knowing possession, including

knowledge that the pornography depicts a minor engaged in

sexual conduct. The California statute is somewhat more

clear on its face, as it uses the word “knowingly” to qualify

“possesses or controls” and then again uses the word

2

We omit the provision’s jurisdictional element (which requires that the

visual depiction be transported in interstate or foreign commerce or

produced using materials transported in interstate or foreign commerce)

because a mere jurisdictional element does not render a federal statute

narrower than a state statute for purposes of the categorical inquiry. See

United States v. Castillo-Rivera, 244 F.3d 1020, 1024 (9th Cir. 2001).

8 CHAVEZ-SOLIS V. LYNCH

“knowing” with reference to the fact that an actual minor is

depicted engaging in sexual conduct. The federal statute, by

contrast, uses the word “knowingly” only at the beginning,

suggesting that it might modify only the verbs it

precedes—“possesses” and “accesses.” Nevertheless, we

have held that § 2252(a)(4)(B)’s scienter requirement applies

to all elements of the offense: “[T]he government must show

that the defendant knew that . . . the materials portrayed

sexually-explicit conduct and . . . that he knew that the

materials depicted minors engaged in such conduct.” United

States v. Merino-Balderrama, 146 F.3d 758, 761 (9th Cir.

1998) (citing United States v. X-Citement Video, Inc.,

513 U.S. 64, 78 (1994)).

Both statutes require possession or control. Chavez-Solis

tries to make something of the fact that the federal statute

says only “possesses,” not “possesses or controls” as

§ 311.11(a) does. But there is no legally significant

distinction between these terms. We have explained that a

defendant “possesses” child pornography under the federal

statute if he “exercise[s] dominion and control over it.”

United States v. Romm, 455 F.3d 990, 999 (9th Cir. 2006)

(citation, internal quotation marks, and brackets omitted).

Both statutes require that the matter depict an actual

minor and define “minor” as a person under the age of 18.

Compare Cal. Penal Code § 311.11(a) (“the production of

[the matter] involves the use of a person under 18 years of

age . . . [and] the matter depicts a person under 18 years of

age personally engaging in or simulating sexual conduct”)

with 18 U.S.C. § 2252(a)(4)(B) (“the producing of such visual

depiction involves the use of a minor engaging in sexually

explicit conduct[] and . . . such visual depiction is of such

CHAVEZ-SOLIS V. LYNCH 9

conduct”) and id. § 2256(1) (“‘minor’ means any person

under the age of eighteen years”).

Finally, both statutes define sexual conduct to include

much (but not all) of the same conduct. Both statutes

encompass “actual” and “simulated” sexual intercourse, oral

sex, anal sex, masturbation, bestiality, sexual sadism, sexual

masochism, and lascivious exhibition of the genitals or pubic

area. Compare Cal. Penal Code § 311.4(d)(1) (defining

“sexual conduct”) with 18 U.S.C. § 2256(2)(A) (defining

“sexually explicit conduct”).

We have previously determined that “the essential

elements of [Penal Code] section 311.11 and those of

18 U.S.C. § 2252(a)(4)(B) are the same” and that there is no

“meaningful distinction” between the two statutes’ definitions

of sexual conduct. Armijo v. Mukasey, 266 F. App’x 511,

512–13 (9th Cir. 2008). We must now reevaluate our prior

nonprecedential conclusion in Armijo in light of new

arguments, to which we now turn.

B

Chavez-Solis argues that § 311.11(a) prohibits depictions

of a broader range of “sexual conduct” than 18 U.S.C.

§ 2252(a)(4)(B) prohibits. We conclude that § 311.11(a) is

indeed broader in this regard. Chavez-Solis also argues that

Penal Code § 311.11(a) has been applied more broadly than

the federal statute in cases involving child pornography found

in a computer’s cache. In light of our conclusion that

§ 311.11(a) is categorically broader than 18 U.S.C.

§ 2252(a)(4)(B), we decline to address this issue.

10 CHAVEZ-SOLIS V. LYNCH

1

Section 311.11(a)’s broader scope is readily apparent

from its text. The federal definition of “sexually explicit

conduct” includes only five types of conduct: (i) sexual

intercourse, (ii) bestiality, (iii) masturbation, (iv) sadistic or

masochistic abuse, and (v) lascivious exhibition of the

genitals or pubic area. 18 U.S.C. § 2256(2)(A). California’s

definition of “sexual conduct” includes the same five types of

conduct: “sexual intercourse, . . . masturbation, bestiality,

sexual sadism, sexual masochism, . . . [and] exhibition of the

genitals or pubic or rectal area for the purpose of sexual

stimulation of the viewer.” Cal. Penal Code § 311.4(d)(1).

But the California statute does not stop there.

California’s definition of “sexual conduct,” unlike the

federal statute, goes on to include “any lewd or lascivious

sexual act as defined in Section 288.” Id.3 Section 288

prohibits “any lewd or lascivious act . . . upon or with the

body, or any part or member thereof, of a child who is under

the age of 14 years, with the intent of arousing, appealing to,

or gratifying the lust, passions, or sexual desires of that

person or the child.” Id. § 288(a).

3

California’s definition of “sexual conduct” also lists “penetration of the

vagina or rectum by any object in a lewd or lascivious manner” and

“excretory functions performed in a lewd or lascivious manner.” Cal.

Penal Code § 311.4(d)(1). Although these provisions have no explicit

analogue in the federal statute, both provisions may always involve

“lascivious exhibition of the genitals or pubic area” as that term is used in

the federal statute. We therefore focus on the definition’s “lewd or

lascivious sexual act” provision, which, as the text of § 288 makes clear,

does not always involve exhibition of the genitals or pubic area.

CHAVEZ-SOLIS V. LYNCH 11

Section 288 is quite broad. As the California Supreme

Court has explained, “[n]othing in [§ 288] restricts the

manner in which [the prohibited] contact can occur or

requires that specific or intimate body parts be touched.”

People v. Martinez, 903 P.2d 1037, 1041 (Cal. 1995). “[A]ny

touching of an underage child is ‘lewd or lascivious’ within

the meaning of section 288 where it is committed for the

purpose of sexual arousal.” Id. at 1042. And, as the language

of § 288 expressly states, “a touching of ‘any part’ of the

victim’s body is . . . prohibited.” Id. at 1041 (quoting Cal.

Penal Code § 288(a)).

Taken at face value, California’s definition of “sexual

conduct” must be quite broad too, as it explicitly

encompasses the full range of conduct proscribed by § 288.

See Cal. Penal Code § 311.4(d)(1) (definition of “sexual

conduct” includes “any lewd or lascivious sexual act as

defined in Section 288” (emphasis added)); see also People

v. Wallace, 14 Cal. Rptr. 2d 67, 75 (Ct. App. 1992) (“Since

sections 288 and 311.4 cover the same subject matter, we

should construe them together so as to harmonize them, and

if possible, maintain the integrity of both statutes.”),

overruled on other grounds by Martinez, 903 P.2d at 1048.

No provision of the federal statute’s definition of

“sexually explicit conduct” can be read to encompass “any

touching” on “any part” of a child’s body with the intent of

arousing sexual desires. California’s child pornography

statute thus sweeps in depictions of a broader range of

“sexual conduct” than the federal child pornography statute

encompasses. On this basis, Penal Code § 311.11(a) is

categorically overinclusive.

12 CHAVEZ-SOLIS V. LYNCH

2

The government argues that Chavez-Solis has failed to

show a “realistic probability,” Gonzales v. Duenas-Alvarez,

549 U.S. 183, 193 (2007), that a defendant would ever be

convicted under § 311.11(a) for possessing a depiction of a

lewd or lascivious sexual act as defined in § 288. We

disagree.

In Duenas-Alvarez, the Supreme Court clarified how

courts should apply the categorical inquiry:

[T]o 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.

Id. at 193. One way a petitioner can show the requisite

“realistic probability” of prosecution for conduct that falls

outside the generic definition is to “point to his own case or

other cases in which the state courts in fact did apply the

statute in the special (nongeneric) manner for which he

argues.” Id.

But that is not the only way. We have explained that if “a

state statute explicitly defines a crime more broadly than the

generic definition, no ‘legal imagination’ 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

CHAVEZ-SOLIS V. LYNCH 13

the crime.” United States v. Grisel, 488 F.3d 844, 850 (9th

Cir. 2007) (en banc) (citation omitted); see also United States

v. Vidal, 504 F.3d 1072, 1082 (9th Cir. 2007) (en banc).

Accordingly, when a “state statute’s greater breadth is evident

from its text,” a petitioner need not point to an actual case

applying the statute of conviction in a nongeneric manner.

Grisel, 488 F.3d at 850. The petitioner may simply “rely on

the statutory language to establish the statute as overly

inclusive.” Vidal, 504 F.3d at 1082.

The statute of conviction here explicitly prohibits

possessing depictions of a minor “engaging in or simulating

sexual conduct, as defined in subdivision (d) of Section

311.4.” Cal. Penal Code § 311.11(a). And § 311.4(d)

explicitly includes conduct—“any lewd or lascivious sexual

act as defined in Section 288”—that is neither included in nor

fairly encompassed by the federal definition of “sexually

explicit conduct.” Under Grisel and Vidal, there is thus a

“realistic probability” that California will apply § 311.11(a)

to depictions that are not covered by the federal child

pornography statute. Chavez-Solis has no need to point to

any actual prosecution.

In any event, People v. Wallace, shows a reasonable

probability of prosecution under § 311.4(d)’s “lewd or

lascivious sexual act” prong. See 14 Cal. Rptr. 2d at 71.

Wallace involved a prosecution for, among other crimes, the

offense of using a minor to produce a film depicting sexual

conduct in violation of Penal Code § 311.4(c). Like

§ 311.11(a), § 311.4(c) incorporates the definition of “sexual

conduct” found in § 311.4(d). The defendant, Wallace,

videotaped two teenage girls taking off their clothes in a

seductive manner. One of the girls, at Wallace’s urging,

revealed her breasts to the camera, and both girls pulled their

14 CHAVEZ-SOLIS V. LYNCH

bikini bottoms away from the skin to show their tanlines. Id.

at 69–70. Based on the videotapes, a jury convicted Wallace

of violating § 311.4(c). Id. at 68–69.

Wallace argued on appeal that there was insufficient

evidence that the videos depicted “sexual conduct” within the

meaning of § 311.4(d). The California Court of Appeal

disagreed. Although the court determined that “the girls did

not actually exhibit their genital, pubic or rectal areas,” id. at

76, “there was credible evidence from which the jury could

draw rational inferences that [the] defendant did commit two

or three lewd acts on the body of the victims,” id. at 71. For

example, the court noted, the defendant encouraged the girls

to expose their bodies while he filmed them and, as a result

of that encouragement, “Tina exposed her breasts and Jenny

pulled down a portion of her underpants.” Id. This

constituted a “lewd or lascivious touching” because, as the

court explained, “the necessary touching may be done by the

child victim . . . on the child’s own person at the instigation

of the defendant.” Id.

Although the evidence was sufficient to convict under

§ 311.4(d)’s “lewd or lascivious sexual act” prong, the court

ultimately reversed the § 311.4(c) conviction because it

concluded that the verdict was tainted by the trial court’s “any

touching” jury instruction. See id. at 76. In the court’s view,

the “touching of the victims had to be lewd and lascivious,

regardless of [the defendant’s] specific intent.” Id. at 75.

This interpretation of § 288 was later overruled by the

California Supreme Court in People v. Martinez, which

“adhere[d] to the long-standing rule that section 288 is

violated by ‘any touching’ of an underage child accomplished

with the intent of arousing the sexual desires of either the

perpetrator or the child.” 903 P.2d at 1048. But Martinez did

CHAVEZ-SOLIS V. LYNCH 15

nothing to cast doubt on Wallace’s determination that

sufficient evidence established that the videotapes in question

depicted a lewd or lascivious sexual act but not a lascivious

exhibition of the genitals or pubic area. If anything, Martinez

clarified that Wallace’s § 311.4(c) conviction was not tainted

by erroneous instructions and thus, in retrospect, should have

been upheld. Wallace thus clearly shows a defendant can be

prosecuted and convicted under California’s child

pornography laws based on the “lewd or lascivious sexual

act” prong of § 311.4(d)’s definition of “sexual conduct.”

The government contends that Wallace should be

distinguished because it involved a § 311.4(c) prosecution,

not a § 311.11(a) prosecution, and that “state courts have

distinguished § 311.4(c), and other offenses that target the

actual use of minors to produce images, from the simple

possession offense at § 311.11(a).” But the two decisions the

government identifies—People v. Haraszewski, 137 Cal.

Rptr. 3d 641 (Ct. App. 2012), and People v. Shields, 131 Cal.

Rptr. 3d 82 (Ct. App. 2011)—distinguished § 311.11(a) only

with respect to the question of how many crimes a defendant

can be charged with having committed.4 These decisions say

nothing about the meaning of “sexual conduct” in the statute,

nor has the government identified any state court decision

applying the term “sexual conduct” more narrowly in a

possession case than in a use-of-a-minor case. On the

4

Compare People v. Manfredi, 86 Cal. Rptr. 3d 810, 811 (Ct. App.

2008) (possession of multiple child pornography images chargeable as

only one § 311.11(a) offense), with Haraszewski, 137 Cal. Rptr. 3d at 656

(Penal Code § 311.2(d), which proscribes the duplication of child

pornography, authorizes a separate conviction for each duplication), and

Shields, 131 Cal. Rptr. 3d at 89 (Penal Code § 311.4(c), which proscribes

the use of a minor to produce child pornography, authorizes a separate

conviction for each “piece of media created”).

16 CHAVEZ-SOLIS V. LYNCH

contrary, at least one California court has explained that,

when interpreting § 311.4(d)’s definition of “sexual conduct,”

the “same principles . . . apply” with respect to a § 311.11(a)

charge as to a § 311.4(c) charge. People v. Kongs, 37 Cal.

Rptr. 2d 327, 336 (Ct. App. 1995).5

The government does not dispute that Wallace and this

case both turn on the same definition of “sexual conduct”

found in § 311.4(d). And under our precedents, that is

enough to satisfy Duenas-Alvarez. Our decision in Medina-

Lara v. Holder, 771 F.3d 1106 (9th Cir. 2014), is instructive.

Medina argued that his statute of conviction for possessing a

firearm under Penal Code § 12022(c) was categorically

overinclusive because the federal generic offense had an

exception for antique firearms whereas the state statute had

no such explicit exception. Although Medina could not point

to any antique firearm prosecutions under § 12022(c), he was

able to point to antique firearm prosecutions under other

California statutes that incorporated the same definition of

“firearm” as § 12022(c). Id. at 1116. The government argued

that this was insufficient to show a “realistic probability”

under Duenas-Alvarez. Id.

5

The government notes that California courts have adopted the same

factors that federal courts use to determine whether an image depicts a

lascivious exhibition of the genitals or pubic area. But this similarity of

analysis makes sense because the California and federal statutes contain

nearly identical exhibition provisions. See Kongs, 37 Cal. Rptr. 2d at 334

(adopting the federal Dost test as the test for “determining whether there

has been a prohibited exhibition of a minor’s genitals, pubic, or rectal

area” because the California and federal statutes’ exhibition provisions

“mean[] the same thing”). The government has not identified any

California case narrowing § 311.4(d)’s “lewd or lascivious sexual act”

provision to acts that lewdly exhibit a minor’s genitals or pubic area.

Indeed, Wallace is directly to the contrary.

CHAVEZ-SOLIS V. LYNCH 17

We agreed with Medina:

[O]ur inquiry must focus on California’s

interpretation of former § 12001(b) [the

provision defining “firearm”] rather than

convictions based on § 12022(c). . . . It does

not matter if the conduct is criminalized by

former § 12021(c)(1), . . . by

§ 12022(c), . . .or by former § 12025(a) . . . .

Because the common link . . . is the

§ 12001(b) definition of firearm, our analysis

should center on that statute.

Id. Because Medina had pointed to another case applying the

state statute in a nongeneric manner—even though it was a

different statute that merely shared the same definition of

“firearm”—we determined that “Medina’s challenge easily

passes the Duenas-Alvarez bar.” Id.

The same is true here. Wallace shows that § 311.4(d) has

been applied in a manner broader than the generic federal

offense. It does not matter if the conduct is criminalized by

§ 311.11(a), by § 311.4(c), or by any other provision.

Because the common link is § 311.4(d)’s definition of “sexual

conduct,” we focus our analysis on § 311.4(d).

Both on its face and as applied, § 311.4(d) encompasses

a broader range of sexual conduct than does the definition of

“sexually explicit conduct” in the federal statute.

Accordingly, because § 311.4(d) is incorporated into

§ 311.11(a), there is a realistic probability, not just a

theoretical possibility, that § 311.11(a) will be applied to

conduct not described in the federal child pornography

statute. Section 311.11(a) is therefore categorically broader

18 CHAVEZ-SOLIS V. LYNCH

than any “offense described in [18 U.S.C. §§] 2251, 2251A,

or 2252.” 8 U.S.C. § 1101(a)(43)(I).

III

When a petitioner’s state statute of conviction is not a

categorical aggravated felony, we can sometimes apply a

“modified categorical approach.” This test allows us to look

beyond the statutory text to a limited set of documents to

determine whether the petitioner was necessarily convicted of

all the elements of the federal generic offense. See Sanchez-

Avalos v. Holder, 693 F.3d 1011, 1014–15 (9th Cir. 2012),

abrogated in part by Descamps v. United States, 133 S. Ct.

2276 (2013). This approach is available, however, only when

the state statute of conviction is “divisible,” meaning it “lists

multiple, alternative elements, and so effectively creates

several different . . . crimes.” Rendon v. Holder, 764 F.3d

1077, 1083 (9th Cir. 2014) (alterations in original) (quoting

Descamps, 133 S. Ct. at 2285 (internal quotation marks

omitted)). The government contends that § 311.4(d)’s

definition of “sexual conduct” is divisible, such that we

should remand to the BIA for it to apply the modified

categorical approach in the first instance.6 We disagree and

hold that § 311.11(a)’s reference to “sexual conduct” does not

create different crimes, each one depending on the particular

6

Invoking the Supreme Court’s decision in INS v. Ventura, 537 U.S. 12

(2002) (per curiam), the government also argues that we should remand

the case for the Board of Immigration Appeals to determine in the first

instance whether the modified categorical approach should be applied.

But deciding whether a state statute is divisible requires neither factual

development nor agency expertise. Ventura is thus inapposite, and we

decline to remand this issue to the Board of Immigration Appeals. See

Fernandez-Ruiz v. Gonzales, 466 F.3d 1121, 1132–35 (9th Cir. 2006) (en

banc).

CHAVEZ-SOLIS V. LYNCH 19

sexual conduct depicted in an alleged image of child

pornography. Rather, this definition simply lists numerous

ways in which an image may be considered to depict “sexual

conduct” and thus qualify for the single crime of possession

of child pornography.

Although § 311.4(d)’s definition of “sexual conduct” is

worded in the disjunctive, the jury is not required to find that

the pornographic materials portray any particular type of

sexual conduct—only that the materials portray sexual

conduct. See, e.g., Wallace, 14 Cal. Rptr. 2d at 75–76

(quoting trial court’s jury instructions, which stated that “[f]or

the purpose of this trial, the sexual conduct means any of the

[types of conduct listed in § 311.4(d)]” (some emphases

omitted)); People v. Ciccarelli, No. H032864, 2009 WL

3635891, at *7 (Cal. Ct. App. Nov. 4, 2009) (holding that no

unanimity instruction under § 311.11(a) was necessary

because “the jury may divide or be uncertain as to the exact

way defendant was guilty of the single crime of possessing

child pornography”). California jury instructions reveal what

common sense suggests—California juries are not required to

unanimously agree on what sexual conduct appears in a

particular image in order to convict a defendant of possession

of child pornography. See Jury Instruction #33, People v.

Dillard, No. 02SF0413, 2003 WL 24293940 (Cal. Super. Ct.

June 25, 2003) (instructing the jury by giving the entire

definition of “sexual conduct” from § 311.4(d) in a

possession case under § 311.11(a)); Special Jury Instruction

311.11(a) #4, People v. Melvyn, No. 01HF0262, 2002 WL

33008958 (Cal. Super. Ct. May 7, 2002) (same).

The government’s arguments to the contrary are

unpersuasive. We agree that pattern jury instructions are a

useful tool in assessing the divisibility of state statutes. See

20 CHAVEZ-SOLIS V. LYNCH

Rendon, 764 F.3d at 1087 n.11. But the government reads too

much into the fact that California’s model jury instructions

have parentheses or brackets around the laundry list of acts

that qualify as sexual conduct. See CALJIC No. 10.83

(model jury instruction for Penal Code § 311.11(a));

CALCRIM No. 1141 (using § 311.4(d) definition of “sexual

conduct” in distribution of obscene materials instruction);

CALCRIM Guide, at xxvi (2015) (“When the user must

choose one of two or more options in order to complete the

instruction, the choice of necessary alternatives is presented

in parentheses . . . . The instructions use brackets to provide

optional choices that may be necessary or appropriate,

depending on the individual circumstances of the case . . . .

Finally, both parentheses and brackets may appear in the

same sentence to indicate options that arise depending on

which necessary alternatives are selected . . . .”). All the

model jury instructions reveal is that at least one type of

sexual conduct must be filled in so that the jury instruction

will be complete. Similarly, all we really learn from the

government’s citation to People v. Hachler, No. A113880,

2007 WL 4171622, at *7 (Cal. Ct. App. Nov. 27, 2007), is the

unremarkable proposition that a jury must unanimously

conclude that any given image depicts a minor engaged in

real or simulated sexual conduct. But this does not tell us that

California juries must unanimously agree on which sexual

conduct each image contains.

Section 311.4(d) is indivisible, and the modified

categorical approach is thus foreclosed. See Rendon,

764 F.3d at 1086 (holding that a statute is divisible “[o]nly

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”).

CHAVEZ-SOLIS V. LYNCH 21

IV

We hold that Chavez-Solis’s conviction under California

Penal Code § 311.11(a) does not qualify as an aggravated

felony under 8 U.S.C. § 1101(a)(43)(I) and that he is

therefore not removable on that basis. We GRANT the

petition for review and REMAND for further proceedings

consistent with this opinion.