Osequeda-Nunez v. Holder

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

VICTOR OCEGUEDA NUNEZ, a.k.a. 

Victor Ocequeda Nunez, a.k.a.

Victor Nunez, No. 06-70219

Petitioner,

v.  Agency No.

A096-380-472

ERIC H. HOLDER JR., Attorney OPINION

General,

Respondent.



On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

April 19, 2007—San Francisco, California

Filed February 10, 2010

Before: Stephen Reinhardt, Jay S. Bybee and

Milan D. Smith, Jr., Circuit Judges.

Opinion by Judge Reinhardt;

Dissent by Judge Bybee

2371

OCEGUEDA NUNEZ v. HOLDER 2375

COUNSEL

Cheryl Franke, San Mateo, California, for the petitioner.

Ronald E. LeFevre, Office of the District Counsel, Depart-

ment of Homeland Security; Eric Warren Marsteller and Joce-

lyn Lopez Wright, Office of Immigration Litigation,

Department of Justice, Washington, D.C., for the respondent.

OPINION

REINHARDT, Circuit Judge:

I.

Once again we face the question of what is moral turpitude:

a nebulous question that we are required to answer on the

basis of judicially established categories of criminal conduct.

Although that may not be a satisfactory basis for answering

such a question, it is the role to which we are limited by pre-

cedent as a court of law. Furthermore, any answer based on

other considerations would in all probability be unacceptable

to one or another segment of society and could well divide

2376 OCEGUEDA NUNEZ v. HOLDER

residents of red states from residents of blue, the old from the

young, neighbor from neighbor, and even males from

females. There is simply no overall agreement on many issues

of morality in contemporary society.

Morality is not a concept that courts can define by judicial

decrees, and even less can it be defined by fiats issued by the

Board of Immigration Appeals, to whose decisions the courts

must give great deference. Yet, for the purpose of our immi-

gration laws we are required to follow those determinations

and to start by applying categories of offenses that the judi-

ciary or the Board members appointed by the Attorney Gen-

eral have deemed morally turpitudinous in all of their

applications. We call this the categorical approach. How sen-

sible those decisions are and how close to rational concepts of

morality they may come can be seen by considering one of

the offenses involved in the case before us. While under our

law numerous felonies are deemed not to be morally turpi-

tudinous, all acts of petty theft automatically qualify for that

label and the drastic legal consequences that may follow. As

some in today’s society might say, and with good reason, “Go

figure.”

II.

Victor Ocegueda Nuñez appeals the Board of Immigration

Appeals’ (BIA) affirmance of an Immigration Judge’s (IJ)

decision ordering him removed to Mexico. The BIA deter-

mined that Ocegueda had been convicted of two crimes of

moral turpitude and that he was thus statutorily ineligible for

cancellation of removal under 8 U.S.C. § 1229b(b)(1)(B).

Because we conclude that indecent exposure under § 314 of

the California Penal Code is not categorically a crime of

moral turpitude, we grant the petition and remand.

OCEGUEDA NUNEZ v. HOLDER 2377

III. Factual and Procedural Background

Victor Ocegueda Nuñez (“Ocegueda”),1 a native and citizen

of Mexico, entered the United States without inspection in

March 1993, at the age of 15. While in the United States, he

met and married his wife, a U.S. citizen, with whom he has

three U.S. citizen children. On June 30, 2003, the Department

of Homeland Security began removal proceedings against him

on the ground that he was present in the United States without

having been lawfully admitted or paroled. He conceded

removability, but applied for cancellation of removal pursuant

to 8 U.S.C. § 1229b(b)(1), on the basis that his removal would

result in exceptional and extremely unusual hardship to his

wife and children.

On September 15, 2004, one day before the hearing on

Ocegueda’s application for cancellation was to be held, the

government filed a motion to pretermit. It argued that

Ocegueda was statutorily ineligible for cancellation because

he had been convicted of two crimes of moral turpitude dur-

ing the past ten years: petty theft in 1995 and indecent expo-

sure in 2003. The government’s only evidence of the petty

theft conviction was an FBI Report indicating that Ocegueda

had been arrested and charged with petty theft on May 25,

1995. The Report did not indicate the disposition of the

charge. Although Ocegueda’s counsel was aware of the inde-

cent exposure conviction, the motion to pretermit was appar-

ently the first she had heard of Ocegueda’s 1995 arrest for

petty theft. A single conviction for a crime involving moral

turpitude is not a statutory bar to cancellation of removal if

the maximum penalty does not exceed one year’s imprison-

ment, and if the individual is sentenced to six months or less.

See 8 U.S.C. § 1182(a)(2)(A)(ii). Two convictions, however,

1

Multiple spellings of the petitioner’s name appear throughout the

record. We use Victor Ocegueda Nuñez, or Ocegueda, because that is the

spelling used by the petitioner himself.

2378 OCEGUEDA NUNEZ v. HOLDER

render an alien ineligible for cancellation. 8 U.S.C.

§ 1229b(b)(1)(C).

Immediately after the government filed its motion to preter-

mit, Ocegueda filed an emergency motion to continue the

hearing. He argued that he needed time to establish: (1) that

indecent exposure was not a crime involving moral turpitude,

and (2) that he had not actually been convicted of the petty

theft offense. The IJ denied the motion.

At the September 16 hearing, the IJ questioned Ocegueda

about the petty theft charge. He admitted that he had been

arrested after a store security guard accused him of stealing a

pair of pants and that he had subsequently appeared in court

and paid a $100 fine. The IJ concluded that this testimony suf-

ficed to establish a prior conviction for petty theft. The IJ

determined that both petty theft and indecent exposure are

crimes of moral turpitude and that Ocegueda was statutorily

ineligible for cancellation on the basis of the two convictions.

The IJ then concluded the hearing, without hearing any of

Ocegueda’s evidence that his removal would result in excep-

tional and extremely unusual hardship to his U.S. citizen fam-

ily.

Ocedgueda appealed to the BIA. He argued that indecent

exposure was not a crime of moral turpitude, and that the IJ’s

denial of his motion for a continuance violated Due Process.

He did not contest the classification of petty theft as a crime

of moral turpitude. The BIA affirmed the IJ, concluding that

indecent exposure, the offense proscribed by California Penal

Code § 314, was also such a crime. It did not address the Due

Process issue or the petty theft conviction except to agree with

the IJ that Ocegueda’s two convictions for crimes of moral

turpitude made him statutorily ineligible for cancellation.

On appeal, Ocegueda raises two challenges to the BIA’s

decision. First, he argues that indecent exposure is not cate-

gorically a crime of moral turpitude. Second, he argues that

OCEGUEDA NUNEZ v. HOLDER 2379

his Due Process rights were violated because he never had an

opportunity to respond to the government’s motion to preter-

mit. Because we agree that California Penal Code § 314 cov-

ers a broader range of offenses than the generic definition of

crimes of moral turpitude, we hold that indecent exposure is

not categorically such a crime. Accordingly, we need not

reach the Due Process question.

IV. Jurisdiction and Standard of Review

Whether a crime involves moral turpitude is a question of

law that we have jurisdiction to review pursuant to 8 U.S.C.

§ 1252(a)(2)(D). We review the BIA’s interpretation of the

statute of conviction de novo. Marmolejo-Campos v. Holder,

558 F.3d 903, 911 (9th Cir. 2009) (en banc). The BIA’s con-

clusion that a particular crime does or does not involve moral

turpitude is subject to different standards of review depending

on whether the BIA issues or relies on a published decision

in coming to its conclusion. If it does either, we accord Chev-

ron deference. Id. If it does neither, we defer to its conclusion

to the extent that it has the “power to persuade.” Id. at 909

(quoting Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)).

V. Analysis

[1] To determine if a crime involves moral turpitude, we

first apply the categorical approach. Nicanor-Romero v.

Mukasey, 523 F.3d 992, 999 (9th Cir. 2008), overruled on

other grounds by Marmolejo-Campos, 558 F.3d at 908-09.

This requires us to compare the elements of the crime to the

generic definition of moral turpitude and “decide whether the

conduct proscribed in the statute is broader than, and so does

not categorically fall within, this generic definition.” Id.

(quoting Huerta-Guevara v. Ashcroft, 321 F.3d 883, 887 (9th

Cir. 2003)). In making this determination, we must find “a

realistic probability, not a theoretical possibility, that the State

would apply its statute to conduct that falls outside the generic

definition” of moral turpitude. Id. at 1004 (quoting Gonzales

2380 OCEGUEDA NUNEZ v. HOLDER

v. Duenas-Alvarez, 549 U.S. 183, 193 (2007)). This realistic

probability can be established by showing that, in at least one

other case, “the state courts in fact did apply the statute in the

special (nongeneric) manner . . . .” Id. at 1004-05 (relying on

one case to establish a realistic probability); see also Matter

of Silva-Trevino, 24 I. & N. Dec. 687, 708 (2008) (same).2

If the crime does not qualify under the categorical

approach, we apply the modified categorical approach and

look to documents within the record of conviction to see

whether the conviction in the particular case involved moral

2

Relying on his dissent in a prior case, Judge Bybee challenges our con-

clusion that one case may establish a realistic probability. Dissent at 2399.

The dissent would be more “generous” to the government and would

impose a higher burden on the petitioner to show that the state in fact

applies its law to conduct that falls outside the generic definition of moral

turpitude. Id. We do not believe that such generosity is appropriate.

Duenas-Alvarez has not fundamentally changed the categorical approach,

which requires us to ask “whether the full range of conduct encompassed

by the statute constitutes a crime of moral turpitude.” Cerezo v. Mukasey,

512 F.3d 1163, 1166 (9th Cir. 2008) (internal quotation marks omitted).

Although the dissent is correct that not all of the Nicanor-Romero opinion

was joined by a majority of the panel, Dissent at 2399, the majority of the

panel did agree that “[t]o suggest that a state law does not apply to conduct

involving moral turpitude unless it is regularly applied to non-

turpitudinous conduct would not only bring an end to the ‘categorical’

approach, but would also require an entirely unmanageable standard.”

Nicanor-Romero, 523 F.3d at 1005. Moreover, the majority specifically

rejected Judge Bybee’s admonition that “it is unwise to rely on a single

unpublished decision.” Id. at 1024 (Bybee, J., dissenting). To the extent

that there may be any doubt whether these views constituted a part of the

majority’s holding, we adopt them here. Further, where a criminal statute,

as interpreted by the courts, encompasses conduct that is not morally turpi-

tudinous and has actually been applied to punish such conduct, it requires

no “legal imagination,” Duenas-Alvarez, 549 U.S. at 193, to conclude that

there is a realistic probability that the state would once again so apply it.

Cf. Cerezo, 512 F.3d at 1167 (“[W]here . . . the state statute plainly and

specifically criminalizes conduct outside the contours of the federal defini-

tion, we do not engage in judicial prestidigitation by concluding that the

statute ‘creates a crime outside the generic definition of a listed crime.’ ”)

(quoting Duenas-Alvarez, 549 U.S. at 193).

OCEGUEDA NUNEZ v. HOLDER 2381

turpitude. However, because the only information before the

IJ was the fact of conviction, Ocegueda’s conviction of inde-

cent exposure can qualify as a crime of moral turpitude on the

record before us only if it so qualifies under the categorical

approach.

A. Elements of § 314

California’s indecent exposure statute reads as follows:

Every person who willfully and lewdly . . . [e]xposes

his person, or the private parts thereof, in any public

place, or in any place where there are present other

persons to be offended or annoyed thereby . . . is

guilty of a misdemeanor.

Cal. Penal Code § 314(1).

[2] The BIA correctly identified the elements of § 314. The

provision prohibits: (1) sexually motivated exposure of one’s

private parts; (2) in a public place or a place where others are

present. With respect to the mens rea element, California

courts require “proof beyond a reasonable doubt that the actor

not only meant to expose himself, but intended by his conduct

to direct public attention to his genitals for purposes of sexual

arousal, gratification, or affront.” In re Smith, 497 P.2d 807,

810 (Cal. 1972); see also People v. Archer, 119 Cal. Rptr. 2d

783, 786 (Cal. Ct. App. 2002) (holding that “sexual” modifies

“arousal,” “gratification”, and “affront”).

B. Generic definition of “moral turpitude”

We have previously discussed at some length the inherent

ambiguity of the phrase “moral turpitude” and the consistent

failure of either the BIA or our own court to establish any

coherent criteria for determining which crimes fall within that

classification and which crimes do not.3 See, e.g., Marmolejo-

3

We have held that, at this stage of our analysis, we “rel[y] on our own

generalized definition” of the term moral turpitude because the BIA has

2382 OCEGUEDA NUNEZ v. HOLDER

Campos, 558 F.3d at 909 (“ ‘[M]oral turpitude’ is perhaps the

quintessential example of an ambiguous phrase.”); id. at 921

(Berzon, J., dissenting) (“[T]he BIA’s precedential case law

regarding the meaning of the phrase ‘crime involving moral

turpitude’ . . . is a mess of conflicting authority.”); Nicanor-

Romero, 523 F.3d at 997-99 (summarizing Ninth Circuit law

on moral turpitude and recognizing that “[w]e have not relied

on a consistent or easily applied set of criteria” to identify

crimes of moral turpitude). Our definition tells us only that

crimes of moral turpitude are crimes that involve either fraud

or “base, vile, and depraved” conduct that “shock[s] the pub-

lic conscience.” Navarro-Lopez v. Gonzales, 503 F.3d 1063,

1074-75 (9th Cir. 2007) (en banc) (Reinhardt, J., concurring

for the majority) (internal quotation marks removed).

[3] Absent consistent or logical rules to follow as we deter-

mine whether a crime (other than one involving fraud)

involves moral turpitude, our most useful guidance often

comes from comparing the crime with others that we have

previously deemed morally turpitudinous. See Navarro-

Lopez, 503 F.3d at 1075 (Reinhardt, J, concurring for the

majority) (“Under our current test for moral turpitude, we

compare a crime’s depravity with that of crimes we have pre-

viously determined to be base, vile, and depraved . . . .”). A

review of BIA and Ninth Circuit precedent reveals that non-

fraudulent crimes of moral turpitude almost always involve an

intent to harm someone, the actual infliction of harm upon

someone, or an action that affects a protected class of victim.4

failed to provide any generic definition to which we could meaningfully

defer. Marmolejo-Campos v. Holder, 558 F.3d at 910.

4

We do not suggest that every crime that has been held by us to involve

moral turpitude falls within this grouping. There are a number of excep-

tions or outliers. See, e.g., Marmolejo-Campos v. Holder, 558 F.3d 903

(9th Cir. 2009) (en banc) (deferring to the BIA’s conclusion that driving

under the influence without a license is a crime of moral turpitude). The

difficulty of discerning any logical justification for these exceptions is one

OCEGUEDA NUNEZ v. HOLDER 2383

See, e.g., In re Lopez-Meza, 22 I. & N. Dec. 1188, 1193 (BIA

1999) (identifying “murder, rape, robbery, kidna[p]ping, vol-

untary manslaughter, some involuntary manslaughter

offenses, aggravated assaults, mayhem, theft offenses, spousal

abuse, child abuse, and incest” as crimes of moral turpitude);

Morales-Garcia v. Holder, 567 F.3d 1058, 1065-66 (9th Cir.

2009) (explaining that assault is not generally a crime of

moral turpitude unless it involves either intentional infliction

of serious harm or infliction of harm on a protected class of

victim); Marmolejo-Campos v. Gonzales, 503 F.3d 922, 927

(9th Cir. 2007) (D.W. Nelson, J., dissenting), reheard in banc,

of the reasons we have repeatedly concluded that our own and the BIA’s

case law on moral turpitude is inconsistent and incoherent. See, e.g., id.

at 910 (stating that the BIA has “fail[ed] to particularize the term [moral

turpitude] in any meaningful way”) (internal quotation marks removed);

Nicanor-Romero, 523 F.3d at 997-99 (recognizing that “[w]e have not

relied on a consistent or easily applied set of criteria” to identify crimes

of moral turpitude). Our characterization does not seek to encompass

every single crime that has been held to involve moral turpitude (largely

because we do not think there is any meaningful characterization that can

do so). Rather, we intend to identify only the general grouping into which

the vast majority of crimes of moral turpitude fall.

The intent to harm is usually key to satisfying what the BIA has said

is the defining characteristic of a crime of moral turpitude: “evil intent.”

Matter of Flores, 17 I. & N. Dec. 225, 277 (BIA 1980) (“[E]vil or mali-

cious intent is . . . the essence of moral turpitude.”); but see Matter of

Medina, 15 I. & N. Dec. 611, 614 (BIA 1976) (“[The] presence or absence

of a corrupt or vicious mind is not controlling” in deciding whether a

crime involves moral turpitude.). The intentional or reckless commission

of an act that causes harm to someone—even where the harm was not spe-

cifically intended—can also satisfy this “evil intent” requirement. See

Matter of Franklin, 20 I. & N. Dec. 867 (BIA 1994) (holding that involun-

tary manslaughter is a crime of moral turpitude). And, where a protected

class of victim is involved, such as children or individuals who stand in

a close relationship to the perpetrator, both the BIA and this court have

been flexible about the intent “requirement,” extending the category of

crimes of moral turpitude to encompass even unintentional acts that only

threaten harm. See, e.g., Morales v. Gonzales, 478 F.3d 972, 978 (9th Cir.

2007) (holding that “communication with a minor for immoral purposes”

is a crime of moral turpitude).

2384 OCEGUEDA NUNEZ v. HOLDER

558 F.3d 903 (9th Cir. 2009) (citing cases in which the BIA

and Ninth Circuit determined that burglary, assault and bat-

tery, malicious mischief, alien smuggling, assault with a

deadly weapon, indecency, rioting, and money laundering are

not crimes of moral turpitude).

This is no less true when it comes to sexual offenses. We

have held that the following sex-related crimes are categori-

cally crimes of moral turpitude: “lewd and lascivious conduct

toward a child,” Schoeps v. Carmichael, 177 F.2d 391, 394

(9th Cir. 1949); incest, Gonzalez-Alvarado v. INS, 39 F.3d

245, 246 (9th Cir. 1994); knowing possession of child por-

nography, United States v. Santacruz, 563 F.3d 894, 897 (9th

Cir. 2009); and communication with a minor for immoral pur-

poses, Morales v. Gonzales, 478 F.3d 972, 978 (9th Cir.

2007). We have also recognized that rape is categorically a

crime of moral turpitude. Navarro-Lopez, 503 F.3d at 1075

(Reinhardt, J, concurring for the majority). These crimes uni-

versally involve either actual infliction of harm or a protected

class of victim; most often a combination of the two. In fact,

never without the presence of at least one of these factors

have we deemed a sexual offense to involve moral turpitude.

If we search far enough back into the case law of the BIA

and other circuits, it is true that we find decisions holding that

conduct that is “shock[ing],” not by virtue of its impact upon

victims, but by virtue of its incompatibility with contempo-

rary sexual attitudes is, on that basis alone, “morally turpitudi-

nous.” At various times, the BIA and the courts have labeled

as morally turpitudinous such offenses as consensual oral sex,

Matter of Leyva, 16 I. & N. Dec. 118 (BIA 1977), consensual

anal sodomy, Velez-Lozano v. INS, 463 F.2d 1305 (D.C. Cir.

1972), and “overt and public homosexual activity” Matter of

Alfonzo-Bermudez, 12 I. & N. Dec. 225 (BIA 1967). These

cases remind us that private, consensual homosexual conduct,

which the Supreme Court held to be constitutionally protected

in Lawrence v. Texas, 539 U.S. 558 (2003), was not so long

ago deemed “base and depraved” and a crime of moral turpi-

OCEGUEDA NUNEZ v. HOLDER 2385

tude in some courts. See, e.g., Williams v. State, 316 So. 2d

362, 363-64 (Ala. 1975) (“[W]e have no hesitancy whatever

in arriving at the conclusion that a crime that consists of sex-

ual relations between persons of the same sex . . . involves

moral turpitude. . . . The practice of sodomy is inherently

inimical to the general integrity of the human person, and [i]s

clearly an offense involving moral turpitude . . . .”) (internal

quotation marks omitted).

Since these older cases were decided, the fluid boundaries

of our nebulous “moral turpitude” standard have moved away

from the rigid imposition of austere moral values on society

as a whole and substantially in the direction of affording toler-

ance and individual liberty to those whose moral attitudes dif-

fer from the contemporary majority’s. Today, consensual

sexual conduct among adults may not be deemed “base, vile,

and depraved” as a matter of law simply because a majority

of people happen to disapprove of a particular practice.

Indeed, as with all crimes, if the conduct at issue were not

offensive to at least a majority, there would be no reason to

prohibit it and thus render it a criminal act. More is required

for moral turpitude. See Navarro-Lopez, 503 F.3d at 1071

(holding that a definition of moral turpitude that encompassed

all criminal conduct would be overbroad and contrary to the

intent of Congress).

C. § 314 and the Generic Definition of Moral Turpitude

We now turn to the question whether all of the conduct pro-

scribed by § 314 falls within our generic definition of moral

turpitude. The BIA concluded that indecent exposure under

§ 314 is categorically a crime of moral turpitude, which

means that it must have found the answer to our question to

be, yes. The BIA reached this conclusion in an unpublished

opinion that does not rely on prior precedential decisions.5

5

The BIA’s decision cites one precedential case, Matter of Mueller, but

only for the purpose of rejecting petitioner’s argument that Mueller

2386 OCEGUEDA NUNEZ v. HOLDER

Therefore, we will defer to its determination only to the extent

that it has the “power to persuade.” Here, we can dispose of

that question quickly. As the Supreme Court stated in Skid-

more v. Swift & Co., 323 U.S. 134, 139 (1944), deference

should be given according to the “thoroughness evident in

[the agency’s] consideration, the validity of its reasoning, its

consistency with earlier and later pronouncements, and all

those factors which give it power to persuade, if lacking

power to control.” See also Marmolejo-Campos, 558 F.3d at

909. The BIA’s one-paragraph analysis rests entirely on the

ipse dixit statement that because § 314 requires a sexual moti-

vation, it is a crime of moral turpitude. We do not find the

BIA’s cursory, conclusory analysis in any way persuasive and

therefore do not defer to its conclusion with respect to the

morally turpitudinous nature of § 314.

California’s indecent exposure statute criminalizes a range

of conduct that offends the sensibilities of many, and perhaps

most, people. We conclude that it does not, however, categor-

ically meet the federal standard for moral turpitude. Some of

the behavior that may be punished under the California statute

would certainly qualify as morally turpitudinous, but that is

not the question before us. Here we must determine whether

the full range of conduct prohibited by the statute falls within

the definition of that term. The answer to that question is no.

[4] We start by recognizing one point that does not appear

to be in dispute. Exposing oneself in a public place is not nec-

essarily either “lewd” (as required by § 314) or “base, vile

and depraved” (as required by our traditional definition of

moral turpitude). For example, as the BIA and the California

required it to conclude that indecent exposure was not a crime of moral

turpitude. 11 I. & N. Dec. 268 (BIA 1965). The BIA found that Mueller

was distinguishable because the statute it examined did not require a sex-

ual motivation. The BIA did not rely on Mueller to determine that § 314

is a crime of moral turpitude, but rather determined only that Mueller did

not control.

OCEGUEDA NUNEZ v. HOLDER 2387

courts appear to agree, a sunbather who removes all his

clothes to tan on an unoccupied public beach and wakes to

find himself surrounded by offended beachgoers has done

nothing either lewd or depraved and thus is neither in viola-

tion of § 314 nor guilty of a morally turpitudinous act. See

Smith, 497 P.2d at 810. Similarly, the California courts have

indicated that they would not uphold a § 314 conviction for

urinating in public, because exposure motivated by the need

to relieve oneself is not properly classified as “lewd.” Id. at

810 n.4. Under § 314, it is the sexual intent with which the

exposure occurs that transforms it into an act that is criminal,

rather than an act that is merely improper or inappropriate.

Thus, the question we must next answer is whether, by limit-

ing § 314 to “sexually motivated” exposure, California courts

have limited it to conduct all of which can properly be

described as morally turpitudinous.6 For the reasons we now

discuss, the answer once more is no.

[5] In a number of important respects, California courts

have construed “sexual motivation” quite broadly. As one

would expect, exposure is “sexually motivated” if it is done

with the intent to sexually gratify the actor. However, “the

statute . . . also reaches the specific intent to create sexual

arousal in those persons observing the defendant.” People v.

Conway, 162 Cal. Rptr. 877, 879 (Cal. App. Dep’t Super. Ct.

1979) (emphasis added), partially disapproved of by Morris

v. Municipal Court, 652 P.2d 51, 58 n.13 (Cal. 1982); see also

People v. Earle, 91 Cal. Rptr. 3d 261, 277 (Cal. Ct. App.

2009). Additionally, the statute is satisfied if a person acts for

the purposes of “sexual affront,” which involves neither sex-

ual gratification of the actor nor the viewer, but rather an

intent on the part of the actor to “insult” or “offend” in a sex-

ual way. See Archer, 119 Cal. Rptr. 2d at 786-87. Finally, the

statute’s requirement that there be “present other persons to

6

To answer this question, we do not consider, as the dissent suggests,

Dissent at 2396-97, whether the conduct is “lewd,” but rather whether it

is “base, vile, and depraved.” See supra at 2381-85.

2388 OCEGUEDA NUNEZ v. HOLDER

be offended or annoyed thereby” is fulfilled when the expo-

sure occurs in the presence of individuals who might in theory

be offended by the conduct, even if, in actuality, they are not:

It is not the burden of the prosecution to prove that

the observer was in fact offended by the conduct but

only that the conduct was such that defendant should

know that the observer “may be offended.” Although

the distinction is a subtle one, it is significant. The

thrust of this inquiry is the state of mind of defendant

—whether he should know that his conduct may

offend another. Whether the observer thereafter is

offended thus has minimal evidentiary bearing upon

defendant’s preceding state of mind.

People v. Rylaarsdam, 181 Cal. Rptr. 723, 728 (Cal. App.

Dep’t Super. Ct. 1982).7

[6] The statute thus encompasses three quite different

types of “sexually motivated” exposure. A person may be

convicted under § 314 for exposing himself for the purposes

of his own sexual gratification, for the purpose of sexual grat-

ification of the viewer, or for the purpose of offending the

7

The facts of People v. Rylaarsdam are illustrative of the problems

inherent in judging whether particular sexual conduct is so offensive and

shocking as to involve “moral turpitude.” That case upheld a conviction

under § 314 for an incident that took place in a motion picture booth at an

adult bookstore where gay pornography was being shown. 181 Cal. Rptr.

at 725-27. The bookstore was a “cruising place” where gay men often

went to meet other gay men. The defendant stuck his finger into a hole

between his booth and an adjacent booth — commonly known as a “glory

hole” — in which an undercover police officer “happened to be sitting.”

This “overture” was not received negatively, and the two men made eye

contact through the hole. The defendant interpreted the response as a

receptiveness to further sexual advances. He then inserted his penis

through the hole into the adjacent booth, a function that the hole was

designed to serve. Id. We need not rely on this case in making our deter-

mination, however, because, as we discuss infra, § 314 reaches other con-

duct that even more obviously fails to qualify as morally turpitudinous.

OCEGUEDA NUNEZ v. HOLDER 2389

viewer in a sexual way. As the California Court of Appeal

recently confirmed:

[W]hile insult is a common feature of the paradig-

matic indecent exposure [under § 314], it is not a

necessary element of the crime. A purpose of

affronting the victim may satisfy part of the mens

rea, but it is not necessary; the crime is also com-

plete if the defendant acts for purposes of his own or

the victim’s (presumably imagined) arousal or grati-

fication, whether or not he intends to cause affront

or believes he is doing so.

Earle, 91 Cal. Rptr. 3d at 277 (analyzing mental elements of

§ 314) (internal quotation marks removed); see also Cal. Jury

Instr. 16.220 (2009) (stating that, to prove violation of § 314,

government must show that the defendant exposed him or

herself “with the specific intent to direct public attention to

[his][her] genitals for the purpose of [his][her] own sexual

arousal or gratification, or that of another or of sexually

insulting or offending others”).

1. Exposure for sexual gratification

[7] With respect to both mens rea and actus reus, § 314 in

its first two manifestations—exposure with the intent to sexu-

ally gratify oneself or the viewer— is quite similar to the

crime of “annoy[ing] . . . a[ ] child,” (defined as engaging in

objectively irritating conduct toward an underage victim when

motivated by an abnormal sexual interest in victim), which we

recently held not to be categorically a crime of moral turpi-

tude. Nicanor-Romero, 523 F.3d at 1000. Neither offense

requires that the “victim” actually be harmed or even bothered

by the offender’s conduct. Id. Nor does either require that the

offender intend any harm; rather, in both cases, the statutory

elements may be satisfied as long as the offender’s motivation

was “sexual” and he should have known that his conduct may

be offensive (in the case of indecent exposure) or irritating (in

2390 OCEGUEDA NUNEZ v. HOLDER

the case of annoying a child). We held that the crime of “an-

noy[ing] . . . a[ ] child” is not a crime of moral turpitude, even

though that crime does share one characteristic with other

crimes we have found morally turpitudinous: a protected class

of victim. Nicanor-Romero, 523 F.3d at 1002-03. Indecent

exposure, in contrast, as interpreted by the California courts,

does not categorically have anything in common with the type

of crime we have normally held to involve moral turpitude. It

can be committed without any intention of harming anyone,

it need not result in actual harm, and it does not necessarily

involve a protected class of victim. Thus, under Nicanor-

Romero, § 314 would appear not to prohibit only conduct that

is morally turpitudinous and thus does not categorically con-

stitute a crime of moral turpitude. Indeed, as we now explain,

“[California] courts in fact [have] appl[ied]” the statute to

reach non-morally turpitudinous conduct. Duenas-Alvarez,

549 U.S. at 193.

[8] Because there is no requirement that the viewers actu-

ally be offended by the exposure, and because the purpose of

the conduct may be the “sexual arousal or gratification” of the

viewer, rather than the exposer, California courts have, under

§ 314, upheld convictions for nude dancing at bars. For exam-

ple, in People v. Conway, the

defendant was a waitress and dancer in a beer bar.

While she was clothed when serving beer, she was

observed to undress and perform naked on a raised

platform located along one wall of the barroom. She

openly displayed her private parts to the nearby cus-

tomers, paying most of her attention to those cus-

tomers who placed money on the platform for

defendant.

Conway, 162 Cal. Rptr. at 878.8 See also People ex rel. Hicks

8

Conway remains good law in relevant part, despite the California

Supreme Court’s subsequent disapproval of some of its language. See

OCEGUEDA NUNEZ v. HOLDER 2391

v. Sarong Gals, 103 Cal. Rptr. 414, 415 (Cal. Ct. App. 1972)

(noting multiple arrests of dancers at a topless-bottomless bar

for violating § 314).

[9] Erotic, completely nude dancing is offensive to many

people. It is not, however, so “base, vile, and depraved” that

it shocks the conscience. As a plurality of the Supreme Court

Morris, 652 P.2d at 58 n.13. Although Morris excludes conduct protected

by the First Amendment from § 314’s reach, there is nothing in Morris to

suggest that a conviction for nude dancing in a bar would violate the First

Amendment. Morris held only that “[a]n enactment prohibiting nonob-

scene nude dancing which extends beyond establishments serving alcohol

is presumptively overbroad.” Id. at 57-58 (emphasis added). Under Mor-

ris, restrictions on nude dancing in establishments serving alcohol do not

violate the First Amendment.

The dissent argues at length that Conway is “weak[ ] precedent”

because “the law relating to nude dancing has changed dramatically since

Conway was decided.” Dissent at 2405-08. But the change in law to which

the dissent refers has significantly strengthened Conway’s conclusion that

§ 314’s application to nude dancing does not violate the First Amendment.

In the years since Conway was decided, the Supreme Court has on two

occasions upheld public nudity ordinances against First Amendment chal-

lenges, even though the ordinances had the effect of completely banning

“totally nude erotic dancing performed by women” and requiring that,

“[erotic] dancers must wear, at a minimum, ‘pasties’ and a ‘G-string.’ ”

City of Erie v. Pap’s A.M., 529 U.S. 277, 283-84 (2000) (plurality); see

also Barns v. Glen Theatre, Inc., 501 U.S. 560 (1991) (plurality). As the

California courts have recognized, Barns and Erie establish that nude

dancing receives less First Amendment protection than Morris had

assumed. See Krotz v. San Diego, 39 Cal. Rptr. 3d 535, 545 (Cal. Ct. App.

2006) (“Had Morris been decided today, we have no doubt that it would

have recognized the limits on the First Amendment protection extended by

the United States Supreme Court [in Barnes and Erie].”); Tiley B., Inc. v.

City of Newport Beach, 81 Cal. Rptr. 2d 6, 16-18 (Cal. Ct. App. 1998)

(rejecting First Amendment challenge to ordinance banning public nudity,

including nude dancing, and stating that Morris’s expansive interpretation

of First Amendment protection for nude dancing had been “foreclosed by

Barnes“). Thus, the developments in First Amendment law referred to by

the dissent have neither weakened Conway nor called into question Mor-

ris’s conclusion that nude dancing in bars may be banned without offend-

ing the Constitution. See also note 9, infra, at p. 2392.

2392 OCEGUEDA NUNEZ v. HOLDER

explained, “nude dancing . . . is expressive conduct, although

. . . it falls only within the outer ambit of the First Amend-

ment’s protection.” City of Erie, 529 U.S. at 289. It would be

odd indeed to hold that conduct that is entitled to some pro-

tection in order to keep our society free is also flatly “contrary

to the societal duties we owe each other.”9 Navarro-Lopez,

503 F.3d at 1069. Nude dancing, moreover, is a prototypical

victimless crime. Whatever one’s view of the merits of such

conduct, it is simply not base, vile, and depraved. As with the

conduct at issue in Rylaarsdam, see p. 2388 n.7, supra, it may

shock certain individuals but not those who patronize the

establishment in order to see or take part in it. It does not

cause them physical or psychological harm and it certainly

does not shock their conscience.

2. Exposure for sexual affront

The application of the statute to nude dancing is sufficient

to resolve this case in Ocegueda’s favor. Despite the ambigu-

ity of the term “moral turpitude,” it is as clear as can be that

nude dancing lies outside its boundaries. However, in case

any doubt remains, we need consider only that in its third

manifestation—exposure with the intent to sexually offend the

viewer—§ 314 encompasses conduct that cannot under any

reasonable definition of the term be classified as “moral turpi-

tude.”

Both our court and the BIA have repeatedly held that sim-

ple assault and battery are not categorically crimes of moral

turpitude. See Morales-Garcia, 567 F.3d at 1065. This is, in

9

The Supreme Court has not been clear about the exact level of protec-

tion to which nude dancing is entitled. For our analysis here, it is relevant

only that nude dancing is expressive conduct protected to some extent by

the First Amendment and that an ordinance prohibiting public nudity that

has the effect of banning nude dancing may nonetheless be constitutional,

although a full majority of the Court has yet to agree on the reason for the

latter proposition. See City of Erie, 529 U.S. at 302; see also supra, note

8.

OCEGUEDA NUNEZ v. HOLDER 2393

part, because they encompass “de minimus conduct or harm,

such as offensive or provocative physical contact or insults,

which is not ordinarily considered to be inherently vile,

depraved, or morally reprehensible.” In re Solon, 24 I. & N.

Dec. 239, 241 (2007); see also Fernandez-Ruiz v. Gonzales,

468 F.3d 1159, 1168-69 (9th Cir. 2006) (holding that the

crime of “knowingly touching another person with the intent

to injure, insult, or provoke” does not involve moral turpi-

tude). Similarly, in another context—addressing the crime of

property damage, rather than assault—we held that Washing-

ton’s “malicious mischief” offense was not categorically a

crime of moral turpitude because it encompassed the destruc-

tion of “as little as $250.00 of another’s property with an evil

wish to annoy” and thus “extends to include pranksters with

poor judgment.” Rodriguez-Herrera v. INS, 52 F.3d 238, 240

(9th Cir. 1995).

[10] Section 314, as interpreted by the California courts,

also encompasses “offensive or provocative . . . insults,”

Solon, 24 I. & N. Dec. at 241, as well as the conduct of

“pranksters with poor judgment.” Rodriguez-Herrera, 52 F.3d

at 240. Two examples suffice to illustrate the point. In one

recent case, the California Court of Appeal upheld the convic-

tion under § 314 of a defendant who, in a fit of “road rage,”

exposed his penis and yelled “suck [my] dick” at an adjacent

driver. Archer, 119 Cal. Rptr. 2d at 786-87. In the second

case, the court upheld the conviction of a 12-year-old boy

who pulled down his pants during class and showed his penis

to two female classmates. People v. Lionel M., No. H031030,

2007 WL 2924052 (Cal. Ct. App. Oct. 9, 2007) (unpublished).10

10

The dissent’s argument that it is inappropriate to rely on an unpub-

lished opinion to establish a realistic probability that a statute will be

applied to conduct that falls outside the generic definition of moral turpi-

tude, Dissent at 2411-12 n.4, is foreclosed by precedent. See Castillo-Cruz

v. Holder, 581 F.3d 1154, 1161 n.9 (9th Cir. 2009) (explaining that unpub-

lished opinions are pertinent to show how a statute has been applied in

practice); Vizcarra-Ayala v. Mukasey, 514 F.3d 870, 876 n. 3 (9th Cir.

2394 OCEGUEDA NUNEZ v. HOLDER

On both occasions, the court found that § 314’s mental state

requirement was satisfied because the defendant had acted

with the purpose of “sexually insulting or offending” the view-

er.11 The former defendant’s conduct was surely crass and the

latter’s was just as obviously inappropriate. However, neither

act could rationally be characterized as inherently base, vile

and depraved.12 Compared to the other crimes we have

2008) (same). It is also illogical. Our concern is with whether individuals

have been convicted under § 314 for non-morally turpitudinous conduct.

A conviction is no less real because it was upheld in an unpublished,

rather than a published opinion. Indeed, the majority of people who are

convicted under § 314 almost certainly never go to trial at all, but rather

plead guilty to the charge. Contrary to the dissent’s contention, a lack of

published cases or appellate-level cases does not imply a lack of convic-

tions.

11

These cases may at first appear difficult to reconcile with the Court

of Appeal’s earlier decision in People v. Dallas W, which reversed a 16-

year-old boy’s § 314 conviction for mooning oncoming traffic because

there was no evidence that the boy had acted with sexual intent. 102 Cal.

Rptr. 2d 493 (Cal. Ct. App. 2000). However, the cases can be harmonized

on the basis that mooning is widely recognized as “a defiant or amusing

gesture” that is not related to sex, while exposing one’s penis necessarily

has a sexual connotation. Dallas, 102 Cal. Rptr. 2d at 493 n.1. Indeed, the

trial court in Dallas had found that the defendant had acted with the intent

to cause generic affront only. Id. The Court of Appeal concluded that an

intent to cause non-sexual affront was insufficient to support the defen-

dant’s § 314 conviction.

12

The dissent accuses us of waging a “collateral attack” on the Califor-

nia courts’ decisions in Archer and Lionel. Dissent at 2397, 2413. To the

contrary, we fully credit the California courts’ descriptions of the facts of

those cases. We also accept the courts’ carefully reasoned conclusions that

the conduct at issue in each case constituted a violation of § 314. In fact,

it is precisely because we accept the state courts’ determinations that the

facts, as described in the state courts’ opinions, support convictions under

§ 314 that we conclude that § 314 covers a broader range of offenses than

those that are morally turpitudinous. There is no need for us to conduct

any independent investigation into the record, as the dissent suggests. Dis-

sent at 2397. We evaluate the cases on the basis of the written opinions,

as we have always done in applying the categorical approach. See, e.g.,

Castillo-Cruz, 581 F.3d at 1161. To do otherwise would render the appli-

cation of Duenas-Alvarez wholly impractical.

OCEGUEDA NUNEZ v. HOLDER 2395

deemed to involve moral turpitude, the defendants’ actions

were relatively harmless. See supra Part V.B. The only differ-

ence between their acts and the provocative insults and taste-

less pranks that we have previously held to be non-morally

turpitudinous is the element of sexuality involved. But our

society is past the point where transitory nudity or a brief ref-

erence to sex necessarily transforms an otherwise de minimus

provocation into a morally turpitudinous offense. There are

obviously circumstances under which unwanted, sexually

motivated exposure would be highly threatening, intrusive,

and psychologically damaging to viewers. However, as our

two examples make clear, § 314 reaches far beyond such

harmful conduct to encompass mere acts of provocation, bad

taste, and failed humor. Although inappropriate and offensive,

these acts are not “base, vile, and depraved,” nor do they

shock the conscience.

***

[11] Because nude dancers and partially exposed purvey-

ors of “sexual” insults have been convicted under § 314, there

is “a realistic probability, not a theoretical possibility, that the

State would apply [the indecent exposure] statute to conduct

that falls outside the generic definition of [moral turpitude].”

Duenas-Alvarez 549 U.S. at 193 (2007). Here the “state courts

in fact did apply the statute in the special (nongeneric) manner

for which [Ocegueda] argues.” Id. Indecent exposure is there-

fore not, categorically, a crime of moral turpitude. Califor-

nia’s statute, as interpreted by state court judges, has not been

limited to conduct that can objectively be held to meet our

standardless standard that governs moral turpitude.

VI.

[12] Because indecent exposure as defined by Cal. Penal

Code § 314, and as construed by California courts, is not cate-

gorically a crime involving moral turpitude, the BIA erred in

determining on the record before it that Ocegueda was statu-

2396 OCEGUEDA NUNEZ v. HOLDER

torily ineligible for cancellation of removal. We therefore

GRANT the petition and REMAND for further proceedings

consistent with this opinion.

PETITION GRANTED AND REMANDED.

BYBEE, Circuit Judge, dissenting:

California punishes persons who “willfully and lewdly . . .

expose [their] private parts” in a public place or in a place

where there are unwilling persons. CAL. PENAL CODE § 314(1).

The California Supreme Court has read § 314 to reach only

one who “intentionally direct[s] attention to his genitals for

sexual purposes.” In re Smith, 497 P.2d 807, 810 (Cal. 1972).

In Gonzales v. Duenas-Alvarez, the Supreme Court told us

that to find that California’s indecent exposure statute is a

crime outside the generic definition of a crime involving

moral turpitude “requires more than the application of legal

imagination to a state statute’s language.” Indeed, “[i]t

requires a realistic probability, not a theoretical possibility,

that the State would apply its statute to conduct that falls out-

side the generic definition of [the] crime.” 549 U.S. 183, 193

(2007). But “legal imagination” and “theoretical possibilities”

are the warp and woof of the majority’s decision.

Despite the clarity of California’s indecent exposure stat-

ute, punishing persons who “wilfully and lewdly . . . expose

[their] private parts,” the majority holds that Ocegueda’s con-

viction is not a crime involving moral turpitude. Maj. Op. at

2376. The majority does not expressly argue that such lewd

conduct is not a crime involving moral turpitude. Instead, the

majority points to three convictions that, in its opinion, did

not involve lewd conduct. First, the majority claims that Cali-

fornia has “upheld convictions for nude dancing at bars.” Maj.

Op. at 2390. No it hasn’t, at least not in any way that counts

under Duenas-Alvarez. The one nude dancing case the major-

OCEGUEDA NUNEZ v. HOLDER 2397

ity cites, People v. Conway, 162 Cal. Rptr. 877 (Cal. App.

Dep’t Super. Ct. 1979), was expressly disapproved by the

California Supreme Court in 1982, Morris v. Municipal

Court, 652 P.2d 51, 58 n.13 (1982), and the case has not been

cited since. And, I am quite confident that there is nude danc-

ing going on in California bars even as I write this, and no one

is being arrested under § 314. So much for a “realistic proba-

bility.” Second, the majority discovered two other cases that

it thinks demonstrate § 314’s overbreadth. One involved inde-

cent exposure during a “road rage” incident, People v. Archer,

119 Cal. Rptr. 2d 783 (Cal. Ct. App. 2002), and the other (an

unpublished decision) involved indecent exposure to twelve

year-old girls at school, People v. Lionel M., 2007 WL

2924052 (Cal. Ct. App. Oct. 9, 2007). Without any record on

which to base its judgment, the majority dismisses conduct

the California courts found to be lewd as “relatively harm-

less” and merely “provocative insults and tasteless pranks.”

Maj. Op. at 2395. The majority’s collateral attack on these

convictions is wholly inappropriate in this context and, at

best, revisionist history.

Whatever Ocegueda did to get himself convicted of inde-

cent exposure, we can be fairly confident that it involved

more than being a nude dancer at a bar or a “tasteless prank.”

Because I believe that Ocegueda’s conviction for indecent

exposure under § 314 is categorically a crime involving moral

turpitude, I would uphold the decision of the Board of Immi-

gration Appeals and deny the petition. I respectfully dissent.

I

Section 1229b(b)(1) of Title 8 gives the Attorney General

discretionary authority to cancel the removal of an alien who

is inadmissible to or deportable from the United States. To

qualify for cancellation of removal under this section, an alien

must establish, among other requirements, that he or she (1)

“has been physically present in the United States for a contin-

uous period of not less than 10 years immediately preceding

2398 OCEGUEDA NUNEZ v. HOLDER

the date of [the alien’s application for cancellation of remov-

al],” and (2) “has been a person of good moral character dur-

ing such period.” 8 U.S.C. § 1229b(b)(1)(A)-(B). Section

1101(f)(3) provides that an alien cannot establish good moral

character if the alien has been convicted of a crime listed in

8 U.S.C. § 1182(a)(2)(A)-(B), which includes a “crime

involving moral turpitude.” 8 U.S.C. § 1182(a)(2)(A)(i)(I).

In this case, the only evidence tendered by the government

is the fact Ocegueda was convicted of violating § 314, Cali-

fornia’s indecent exposure statute. Thus, absent additional

documentation, Ocegueda’s conviction only qualifies under 8

U.S.C. § 1182(a)(2)(A)(i)(I) if § 314 categorically describes

conduct involving moral turpitude.

The Supreme Court has placed a critical limit on the scope

of our inquiry under the categorical approach. In Gonzales v.

Duenas-Alvarez, 549 U.S. 183 (2007), the Court explained,

“to find that a state statute creates a crime outside the generic

definition of a listed crime in a federal statute requires more

than the application of legal imagination to a state statute’s

language.” Id. at 193. Rather, “[i]t requires a realistic proba-

bility, not a theoretical possibility, that the State would apply

its statute to conduct that falls outside the generic definition

of a crime.” Id. The Court continued, “[t]o show that realistic

probability, an offender . . . must at least 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.

We have held that “the Supreme Court squarely placed the

burden on the alien to demonstrate a realistic probability that

the state would apply the offense in a way that falls outside

the generic definition of the crime.” Ortiz-Magana v.

Mukasey, 542 F.3d 653, 660 (9th Cir. 2008). Ordinarily, we

begin by asking whether the “state statute plainly and specifi-

cally criminalizes conduct outside the contours of the federal

definition.” Cerezo v. Mukasey, 512 F.3d 1163, 1167 (9th Cir.

OCEGUEDA NUNEZ v. HOLDER 2399

2008). If we think the statute is too broad, we will “still con-

sider whether California courts have interpreted the [statute]

more narrowly so as to make it applicable only to conduct

which involves moral turpitude.” Id. at 1167-68. Although it

seems less likely, we may also entertain an argument the state

courts have expanded what the statute “plainly and specifi-

cally criminalizes.”

The import of Duenas-Alvarez in this case is clear. We may

not apply our “legal imagination,” but must find a “realistic

probability” that California is enforcing its indecent exposure

law outside a generic definition of “moral turpitude.” Proof of

such a “realistic probability” requires “cases” in which Cali-

fornia courts “in fact” applied the statute in a nongeneric fash-

ion. The majority claims that “[t]his realistic probability can

be established by showing that, in at least one other case, ‘the

state courts in fact did apply the statute in the special (non-

generic) manner . . . .’ ” Maj. Op. at 2380 (quoting Nicanor-

Romero v. Mukasey, 523 F.3d 992, 1004-05 (9th Cir. 2008)).

I question whether just any single case will satisfy Duenas-

Alvarez. The case the majority cites for the proposition,

Nicanor-Romero, relied on a single, unpublished decision for

evidence of the “realistic probability.” That portion of the

opinion, however, was the opinion of a single judge and thus

is not the judgment of the court. See Nicanor-Romero, 523

F.3d at 1005-07 (opinion of W. Fletcher, J.); id. at 1011 (Pre-

gerson, J., specially concurring); id. at 1022-24 & n.11

(Bybee, J., dissenting).

Moreover, for reasons I explained in my dissent in

Nicanor-Romero, I think that to satisfy Duenas-Alvarez we

need something more than scouring state records to see if we

can find a conviction that we think falls outside some generic

ideal. As I wrote in Nicanor-Romero, “I do not believe that

the Supreme Court in Duenas-Alvarez meant for us to take the

least generous approach possible in analyzing state cases

under the categorical approach . . . .” 523 F.3d at 1023

(Bybee, J., dissenting). As judges, we are, or should be, well

2400 OCEGUEDA NUNEZ v. HOLDER

aware of our own mortality. Just as our occasional, uncor-

rected errors do not represent the body of the law of the

United States, we should hesitate before taking a single, pos-

sibly aberrant state case and elevating it to state law. A con-

sidered case from the state’s highest court or appellate court

would be strong evidence of the meaning of the statute. A sin-

gle decision of a lower state court—particularly when the

decision is dated or the opinion is not carefully considered—

does not, in my view, satisfy the petitioner’s duty to show the

“realistic probability.” As the Supreme Court told us, “To

show that realistic possibility, an offender, of course, may

show that the statute was so applied in his own case. But he

must at least point to his own or other cases in which the state

courts in fact did apply the statute in the special (nongeneric)

manner for which he argues.” Duenas-Alvarez. 549 U.S. at

193 (emphasis added).

II

As Ocegueda declined to come forward with any evidence

that California applied the indecent exposure statute to him in

a “special (nongeneric) manner,” we are left to consider how

California construes and applies § 314 in the main. With

Duenas-Alvarez in mind, I address first the generic standards

for a crime of moral turpitude. I then address standards for

obtaining a conviction under § 314 and discuss how Califor-

nia courts have applied those standards in fact. Lastly, I

address the cases the majority uses to show that California

applies § 314 to conduct outside the generic definition of a

crime involving moral turpitude.

A

We have “consistently defined ‘moral turpitude’ as involv-

ing conduct that is inherently base, vile, or depraved, and con-

trary to the private and social duties man owes to his fellow

men or to society in general.” Navarro-Lopez v. Gonzales,

503 F.3d 1063, 1068 (9th Cir. 2007) (en banc). This definition

OCEGUEDA NUNEZ v. HOLDER 2401

is “employed by the BIA” and is “relatively consistent

throughout the federal courts.” Id.

In general, we have “divided crimes involving moral turpi-

tude into two basic types: ‘those involving fraud and those

involving grave acts of baseness or depravity.’ ” Galeana-

Mendoza v. Gonzales, 465 F.3d 1054, 1058 (9th Cir. 2006)

(quoting Carty v. Ashcroft, 395 F.3d 1081, 1083 (9th Cir.

2005)); see also In re Ajami, 22 I. & N. Dec. 949, 950 (BIA

1999); Matter of Short, 20 I. & N. Dec. 136, 139 (BIA 1989).

In non-fraud cases, we have looked to “accepted moral stan-

dards” for guidance in determining the types of behavior that

involve moral turpitude. See Rodriguez-Herrera v. INS, 52

F.3d 238, 240 (9th Cir. 1995).

The federal courts have long held that sexual offenses vio-

late “accepted moral standards” and come within the category

of “grave acts of baseness or depravity.” These offenses

include indecent assault, Maghsoudi v. INS, 181 F.3d 8, 10-11

(1st Cir. 1999); lewd and lascivious conduct, Schoeps v. Car-

michael, 177 F.2d 391, 394 (9th Cir. 1949); statutory rape,

Castle v. INS, 541 F.2d 1064, 1066 (4th Cir. 1976); Marciano

v. INS, 450 F.2d 1022, 1024 (8th Cir. 1971); incest, Morales

v. Gonzales, 478 F.3d 972, 978 (9th Cir. 2007); and contribut-

ing to the sexual delinquency of a minor, Sheikh v. Gonzales,

427 F.3d 1077, 1082 (8th Cir. 2005); Palmer v. INS, 4 F.3d

482, 485 (7th Cir. 1993). Unlike other types of crimes falling

into the category of grave and base acts, sexual offenses have

generally been classified as crimes involving moral turpitude

irrespective of any injury to the victim, physical or otherwise.

Sexual misconduct also need not involve physical assault to

violate contemporary moral standards; even fully consensual

conduct can involve moral turpitude. See, e.g., Franklin v.

INS, 72 F.3d 571, 588 (8th Cir. 1995) (noting that statutory

rape is a crime of moral turpitude); Castle, 541 F.2d at 1066

(same); Marciano, 450 F.2d at 1024 (same). In fact, the sex-

ual misconduct in question need not even involve a threat of

physical contact. For example, we have held that merely com-

2402 OCEGUEDA NUNEZ v. HOLDER

municating with a minor “for immoral purposes of a sexual

nature” involves moral turpitude because “[s]exual communi-

cation with a minor is inherently wrong and contrary to the

accepted rules of morality and the duties owed between per-

sons.” Morales, 478 F.3d at 978.

B

California’s indecent exposure statute reads, in relevant

part: “Every person who willfully and lewdly . . . [e]xposes

his person, or the private parts thereof, in any public place, or

in any place where there are present other persons to be

offended or annoyed thereby . . . is guilty of a misdemeanor.”

CAL. PEN. CODE § 314, subd. 1. The California Supreme Court

has held that indecent exposure encompasses only conduct

that “is sexually motivated” and thus requires “proof beyond

a reasonable doubt that the actor not only meant to expose

himself, but intended by his conduct to direct public attention

to his genitals for purposes of sexual arousal, gratification, or

affront.” In re Smith, 497 P.2d 807, 810 (Cal. 1972); see also

People v. Archer, 119 Cal. Rptr. 2d 783, 786 (Cal. Ct. App.

2002) (interpreting term “sexual” in Smith as modifying all

three words that follow).

The California Supreme Court has applied § 314’s require-

ment of “lewd” intent narrowly. In Smith, the defendant went

to a public beach, removed all of his clothes, and fell asleep

on a towel. 497 P.2d at 808. The police arrived several hours

later and arrested the defendant; at this time, several other

people were also present on the beach. Id. The Smith court

concluded that the defendant’s conduct did not violate § 314,

reasoning that “[a]bsent additional conduct intentionally

directing attention to his genitals for sexual purposes, a per-

son, as here, who simply sunbathes in the nude on an isolated

beach does not ‘lewdly’ expose his private parts within the

meaning of section 314.” Id. at 810.

California courts have consistently applied § 314 only to

conduct falling within the scope of the rule laid down in

OCEGUEDA NUNEZ v. HOLDER 2403

Smith. See, e.g., People v. Johnson, 51 Cal. Rptr. 3d 893, 895

(Cal. Ct. App. 2006) (upholding conviction under § 314 of a

prisoner who was observed by a female prison guard mastur-

bating in his cell, “with the brightest cell lights turned on,

while making eye contact with her”); People v. Davey, 34

Cal. Rptr. 3d 811, 812-13 (Cal. Ct. App. 2005) (upholding

defendant’s conviction under § 314 for exposing himself to

multiple children simultaneously); In re Michael H., 27 Cal.

Rptr. 3d 627, 629 (Cal. Ct. App. 2005) (upholding conviction

under § 314 of a juvenile who entered a neighbor’s house,

removed his clothes, and went into her bedroom where she

was sleeping), overruled on other grounds by In re Lemanuel

C., 158 P.3d 148 (Cal. 2007); People v. Noriega, 22 Cal. Rptr.

3d 382, 383-84 (Cal. Ct. App. 2004) (upholding defendant’s

conviction under § 314 for exposing his genitals to several

individuals, including children, on public transport); People v.

Britt, 128 Cal. Rptr. 2d 290, 291-92, 295 (Cal. Ct. App. 2002)

(upholding conviction under § 314 of man seen by minor chil-

dren while he was masturbating outside their open window

while looking inside); Archer, 119 Cal. Rptr. 2d at 785-86

(upholding conviction under § 314 of defendant who exposed

his genitals and made an obscene comment to another driver

in a road rage incident).

By contrast, California courts have reversed convictions

under § 314 in cases either where there is no evidence that the

defendant exposed his genitals or where there is no evidence

that the offending conduct was accompanied by lewd intent.

For example, in People v. Massicot, 118 Cal. Rptr. 2d 705

(Cal. Ct. App. 2002), the defendant had concealed his genitals

but exposed other parts of his body, including his buttocks

and thighs, by appearing in lace underpants and a lace bra.

The Court of Appeal reversed the conviction, holding that the

statutory phrase “[e]xposes his person” applied only where

the defendant displayed his or her entire unclothed body,

including the genitals. Id. at 709-710. Similarly, in In re Dal-

las W., 102 Cal. Rptr. 493 (Cal. Ct. App. 2000), the Court of

Appeal held that a juvenile who had twice “moon[ed]”

2404 OCEGUEDA NUNEZ v. HOLDER

oncoming traffic could not be convicted under § 314 because

there was no evidence that he had bared his buttocks in public

with lewd intent. Id. at 494. The Dallas court also disap-

proved of the standard jury instructions used in that case

because they permitted conviction on a finding that the defen-

dant had acted with the intent to cause affront to others, even

if that affront was non-sexual in nature. Id. at 494-95.

The majority agrees that “[u]nder § 314, it is the sexual

intent with which the exposure occurs that transforms it into

an act that is criminal, rather than an act that is merely

improper or inappropriate.” Maj. Op. at 2387. But for the

majority, California’s careful application of § 314 to only

lewd conduct is not enough, and it obliquely argues that “sex-

ual intent” or lewdness no longer qualifies as moral turpitude.

Instead, the majority attempts to whittle down a crime of

moral turpitude to conduct that necessarily involves “either

actual infliction of harm or a protected class of victim; most

often a combination of the two.” Maj. Op. at 2384. Unless

lewd conduct no longer qualifies as moral turpitude, Califor-

nia’s indecent exposure statute categorically satisfies 8 U.S.C.

§ 1182’s requirement of a “crime involving moral turpitude.”

Whatever the “fluid boundaries of our nebulous ‘moral turpi-

tude,’ ” indecent exposure bears no resemblance to “consen-

sual sexual conduct among adults” and, as defined by

California, is “conduct . . . offensive to at least a majority.”

Maj. Op. at 2385.

C

Notwithstanding the narrow scope the California courts

have given § 314, the majority cites to three cases that it con-

tends demonstrate that California “construe[s] ‘sexual motiva-

tion’ quite broadly” and punishes conduct that, in fact, does

not involve moral turpitude.1 Maj. Op. at 2387. The first case

1

Although we have clearly held that “the Supreme Court squarely

placed the burden on the alien to demonstrate a realistic probability that

OCEGUEDA NUNEZ v. HOLDER 2405

is a conviction for “nude dancing at bars.” Maj. Op. at 2390.

The remaining two are cases that, by the majority’s lights,

represent a “tasteless prank” or “de minimus provocation.”2

Maj. Op at 2392-95.

1

The principal case the majority uses to create a “realistic

probability” that California will use § 314 to punish conduct

that is not morally turpitudinous is a thirty year-old nude

dancing case, People v. Conway, 162 Cal. Rptr. 877, 879

(Cal. App. Dep’t Super. Ct. 1979). Conway was expressly dis-

approved by the California Supreme Court in 1982 in Morris

v. Mun. Court, 652 P.2d 51, 58 n.13 (1982), and has not been

cited since. There is no evidence whatsoever that Conway is

good law or that California has any intention of using § 314

to try to punish mere nude dancing.

In Conway, the appellate division of the Los Angeles Supe-

rior Court upheld a municipal court conviction of a waitress

and dancer in a beer bar who performed naked on a raised

platform “display[ing] her private parts.” Conway, 162 Cal.

Rptr. at 878. The court reasoned that her specific intent to

create sexual arousal in observers met the lewd and wilful

requirements of § 314. Id. at 878-79. The majority argues that

the dancing in Conway was not so “base, vile, or depraved”

that it “shocks the conscience” and, therefore, a conviction

under § 314 cannot be categorically a crime of moral turpi-

tude. Maj. Op. at 2390-91.

the state would apply the offense in a way that falls outside the generic

definition of the crime,” Ortiz-Magana v. Mukasey, 542 F.3d 653, 660

(9th Cir. 2008), the majority took the burden of proof upon itself.

Ocegueda did not cite to any of the three California cases relied upon by

the majority.

2

The majority discusses People v. Rylaarsdam, 181 Cal. Rptr. 723 (Cal.

Super. 1982), at some length, but concludes that it “need not rely on this

case.” Maj. Op. at 2388 n.7.

2406 OCEGUEDA NUNEZ v. HOLDER

Conway cannot establish a realistic probability that Califor-

nia would use § 314 to convict nude dancers in a nude enter-

tainment venue of indecent exposure. There is no need to

discuss whether mere nude dancing is so “base, vile, or

depraved” that it “shocks the conscience.” For purposes of

this case, I am willing to assume that nude dancing in bars,

without more, is not morally turpitudinous, although I am not

sure that anything in the Supreme Court’s jurisprudence com-

pels that assumption. See City of Erie v. Pap’s A.M., 529 U.S.

277 (2000) (upholding, a municipal ordinance banning public

nudity against a First Amendment challenge); Barnes v. Glen

Theatre, Inc., 501 U.S. 560 (1991); City of Newport v. Iaco-

bucci, 479 U.S. 92 (1986) (per curiam); New York State

Liquor Auth. v. Bellanca, 452 U.S. 714 (1981) (per curiam).

Not only is Conway the only case since 1979 to use § 314 to

uphold a conviction of a nude dancer, but Conway was

decided when the law relating to nude dancing teetered back

and forth from protected to unprotected expression under the

First Amendment. Conway is even weaker precedent in show-

ing a realistic probability that California will use § 314 to

punish nude dancing because the law relating to nude dancing

has changed dramatically since Conway was decided: Conway

relied on a decision that has been overruled, and its reasoning

is doubtful.

In 1968, the California Supreme Court overturned a convic-

tion under § 314 for topless dancing at a nightclub. In re

Giannini, 446 P.2d 535, 536-38 (1968). The court found that

dance was a form of expression protected by the First Amend-

ment, and thus the conviction for indecent exposure was

unconstitutional. Id. Four years later, the California Court of

Appeal upheld an injunction prohibiting owners of a bar from

using the premises for lewdness in People ex rel. Hicks v.

Sarong Gals, 103 Cal. Rptr. 414 (1972). The court noted that

there had been arrests at the bar under § 314, but found that

the activities went well beyond nude dancing protected by the

First Amendment under In Re Giannini. Id. at 417-418.

Rather, these activities were “purely and simply obscene acts

OCEGUEDA NUNEZ v. HOLDER 2407

performed for the purpose of inciting the sexual desires and

imaginations of a group of randy, beer-drinking patrons.” Id.

at 418. The Sarong Gals bar featured live entertainment

involving naked females masturbating on stage, male custom-

ers masturbating while watching a naked dancer simulate sex-

ual intercourse, naked females allowing customers to look

into her innards and vigorously rubbing items in private areas.

Id. at 417. Such activity is obscene by any standards, but in

1972, the court was clearly justified in finding such activity

to be obscene and thus not protected as a form of expression.

See Miller v. California, 413 U.S. 15, 24 (1973). It is clear

that § 314 was used in this situation to arrest people for com-

mitting obscene acts and not as a way to convict nonobscene

nude dancing.

A year after Hicks, the California Supreme Court overruled

In Re Giannini in Crownover v. Musick, 509 P.2d 497 (1973).

In Crownover, the court upheld city ordinances that prohib-

ited the service of food or drink by “topless” women or “bot-

tomless” persons of either sex and prohibited live acts by any

such persons. Id. at 430-31. The court found both activities to

be conduct, not speech, and concluded that regulation of these

activities was justified by “considerations of public morals

and general welfare.” Id. at 427.

The Los Angeles Superior Court’s decision in Conway was

issued in 1979 when Crownover was still good law. In Con-

way, the court explicitly found that Crownover precluded the

defendant’s claim that her dancing was protected by the First

Amendment. Conway, 162 Cal. Rptr. at 879-80 (stating that

“defendant places her reliance on In re Giannini[,] and that

case was overruled in Crownover v. Musick. . . . [W]e are

bound by Crownover . . . .” (internal citations omitted)). Just

three years after Conway, however, Crownover was overruled

by Morris v. Municipal Court, 652 P.2d 51 (1982). Morris

established the current law for regulation of nude dancing in

California. The court concluded:

2408 OCEGUEDA NUNEZ v. HOLDER

A ban on nude dancing cannot be sustained on the

theory that it regulates only conduct and does not

impinge upon protected speech. Nonobscene nude

dancing cannot be barred without, in some cases,

infringing upon constitutionally protected expres-

sion. [ ]An enactment prohibiting nonobscene nude

dancing which extends beyond establishments serv-

ing alcohol is presumptively overbroad.

Id. at 564-65. In a footnote, Morris specifically disapproved

Conway “to the extent it is inconsistent with the present opin-

ion.” Id. at 565 n.13. I cannot find any case after Morris

where a court upholds a conviction for indecent exposure of

a nude entertainer in a bar, and Conway has not been cited

since by any court. There is, thus, no support whatsoever,

except the majority’s ipse dixit, that “Conway remains good

law in relevant part.” Maj. Op. at 2390 n.8. If anything in

Conway survives, it is plainly not the majority’s claim that

“California courts [will], under § 314, uph[o]ld convictions

for nude dancing at bars.” Maj. Op. at 2390.3

Even if, as purely theoretical matter, there remains a sliver

of unprotected, nude entertainment which is not so “base, vile,

and depraved” that it “shocks the conscience” but neverthe-

less could be prosecuted under § 314 as indecent exposure,

there is no indication that there is a “realistic probability” of

conviction in the future. The statute requires that the exposure

occur in a “public place, or in any place where there are pres-

3

The majority argues that the Supreme Court’s decisions in Pap’s and

Barnes have “significantly strengthened Conway’s conclusion that § 314

application to nude dancing does not violate the First Amendment.” Maj.

Op. at 2391 n.8. The majority’s statement is true but irrelevant. Whether

California may, consistent with the First Amendment, regulate nude danc-

ing is utterly beside the point. The only thing we need to know is whether

California uses § 314 to regulate nude dancing in bars. Aside from Con-

way, there is no evidence whatsoever for the majority’s conclusion that

“California courts have, under § 314, upheld convictions for nude dancing

at bars.” Maj. Op. at 2390.

OCEGUEDA NUNEZ v. HOLDER 2409

ent other persons to be offended or annoyed thereby.” CAL.

PEN. CODE § 314, subd. 1. It is unlikely that a conviction

would stand for an individual who exposed herself or himself

in an establishment devoted to nude dancing. Realistically,

any person who attended a venue expecting nude entertain-

ment would not be offended or annoyed by seeing the object

of his or her presence.

More importantly, there is ample evidence that California

and its municipalities tolerate nude dancing and do not regard

it as violation of § 314. California regulates businesses that

serve alcohol, including bars featuring nude dancers, but it

does not do so through § 314. So far as I can determine from

the published cases, in the past twenty years, no nude dancing

or nude entertainment cases in California courts have even

mentioned § 314. The majority of these cases deal with regu-

lating alcohol licenses of commercial establishments that

offer such entertainment, and a number of them show sensi-

tivity to First Amendment questions surrounding nude danc-

ing. See SP Star Enter. v. City of Los Angeles, 93 Cal. Rptr.

3d 152 (Cal. Ct. App. 2009) (holding that an adult nude enter-

tainment club’s argument that alcohol restrictions regulated

speech lacked merit); Krontz v. City of San Diego, 39 Cal.

Rptr. 3d 535 (Cal. Ct. App. 2006) (upholding city’s suspen-

sion of a nude entertainment establishment’s license when the

establishment violated the rule that dancers must be six feet

away from patrons); Dep’t of Alcoholic Beverage Control v.

Alcoholic Beverage Control Appeals Bd., 121 Cal. Rptr. 2d

729 (Cal. Ct. App. 2002) (upholding suspension of a license

because the nude entertainment club violated alcoholic bever-

age control regulations); Wooten v. Superior Court, 113 Cal.

Rptr. 2d 195 (Cal. Ct. App. 2001) (reversing conviction for

pimping and pandering where defendants hired women to per-

form sexual acts on each other and not customers); Tily B.,

Inc. V. City of Newport Beach, 81 Cal. Rptr. 2d 6 (Cal. Ct.

App. 1998) (holding that the city’s ordinance prohibiting nude

dancing and requiring pasties and g-strings during perfor-

mances did not violate the First Amendment); Smith v. County

2410 OCEGUEDA NUNEZ v. HOLDER

of Los Angeles, 29 Cal. Rptr. 2d 680 (Cal. Ct. App. 1994)

(holding that a city ordinance prohibiting nude dancing was

too vague to survive constitutional scrutiny); Thomas v.

County of Los Angeles, 283 Cal. Rptr. 815 (Cal. Ct. App.

1991) (same); City of Rancho Cucamonga v. Warner Consult-

ing Servs., 262 Cal. Rptr. 349 (Cal. Ct. App. 1989) (upholding

regulations on nude dancing in places that serve alcohol);

Stroh v. Midway Restaurant Sys., 226 Cal. Rptr. 153 (Cal. Ct.

App. 1986) (same). We too have dealt with some of the prob-

lems in the regulation of nude dancing establishments in Cali-

fornia. See United States v. Inzunza, 580 F.3d 894 (9th Cir.

2009) (appeal by members of San Diego City Council con-

victed of accepting bribes to repeal the “no touch” ordinance

for nude dancing). The reality is that no one in California

seems to be concerned with nude dancing per se. Certainly,

there is no evidence that in past 30 years anyone has been

prosecuted under § 314 for nude dancing in bars.

The majority’s proposed use of Conway strips the Supreme

Court’s limitation in Duenas-Alvarez of any real meaning.

When the Supreme Court said a “realistic probability” it

meant something more than dredging up a case from the

Superior Court that was expressly disapproved 28 years ago

by the California Supreme Court and has not been cited since.

2

The majority cites the last two cases as examples of Cali-

fornia punishing a “tasteless prank” or “de minimus provoca-

tion.” Maj. Op. at 2392-95. The first case, People v. Archer,

119 Cal. Rptr. 2d 783 (Cal. Ct. App. 2002), involved a male

driver who exposed his genitals to a female driver and then

yelled a sexually explicit comment to her in a road rage inci-

dent. The majority dismisses the incident as “crass” and

involving only “transitory nudity.” Maj. Op. at 2393-95. That

characterization is quite unfair to the California courts. Archer

appealed his conviction for indecent exposure on the grounds

that there was no evidence that he acted with “lewd” intent.

OCEGUEDA NUNEZ v. HOLDER 2411

Beginning from the premise that “ ‘lewd’ is an essential ele-

ment of the offense,” the Court of Appeal found there was

sufficient evidence to uphold his conviction. 119 Cal. Rptr. 2d

at 785 (quoting In re Smith, 497 P.2d at 810). The court

worked carefully through the California Supreme Court’s

seminal decision on § 314, In re Smith, and the then-recent

decision of the Court of Appeal dismissing a conviction under

§ 314 for mooning, In re Dallas W., 102 Cal. Rptr. 2d 493

(Cal. Ct. App. 2000). In In re Smith, the California Supreme

Court held that “lewd” intent meant that the accused “direc-

t[ed] public attention to this genitals for purposes of sexual

arousal, gratification, or affront.” 497 P.2d at 810. The Dallas

court had held that the adjective “sexual” modified all three

of the terms that followed “arousal, gratification, and affront.”

In re Dallas, 102 Cal. Rptr. 2d at 494. The Dallas court had

found that “Dallas acted only to annoy and affront people and

not with ‘sexual intent in the sense that he intended to arouse

himself or a third person by his act’ . . . . Dallas did not vio-

late section 314 [by mooning traffic].” Id. at 495 (emphasis in

original). Archer claimed that he too merely intended to

offend or annoy his victim by exposing his penis to a female

driver. The Court of Appeal rejected this argument because “it

is enough if the defendant exposed himself for purposes of

‘sexual affront.’ ” Archer, 119 Cal. Rptr. 2d at 786-87.

Accordingly, “a defendant who intentionally exposes ‘his per-

son, or the private parts thereof’ to another for the purpose of

sexually insulting or offending the other person commits inde-

cent exposure in violation of section 314.” Id. at 787. The

court concluded that “[Archer’s] act of exposing his penis . . .

accompanied by the comment ‘suck [my] dick’ ” was suffi-

cient evidence to support his conviction under § 314. Id.

The majority also points to an unpublished opinion of the

Court of Appeal, People v. Lionel M., 2007 WL 2924052

(Cal. Ct. App. Oct. 9, 2007).4 In Lionel, a twelve year-old boy

4

According to Cal. R. Ct. 8.1115, “an opinion of a California Court of

Appeal or superior court appellate division that is not certified for publica-

2412 OCEGUEDA NUNEZ v. HOLDER

called “hey, look” to two twelve-year old girls in his class.

Lionel had pulled his pants down and exposed his penis. Lio-

nel appealed his conviction under § 314 on the grounds that

he did not have “lewd” intent. The Court of Appeal reviewed

In re Smith, In re Dallas, and Archer. The court stated that

merely exposing his genitals would not have been sufficient

to convict Lionel under § 314. It found that “this case includes

additional facts suggesting a lewd intent:

[Lionel] approached the two girls, gained their atten-

tion, and then exposed his penis. The exposure of his

genitalia was not, as in Smith, a consequence of pas-

sive nudity, but a deliberate action directed at two

young girls. . . . [Lionel] did not, for example step

to the front of the room to briefly flash the entire

class or streak through the school halls; instead he

targeted Devyn and Marlena and ensured they

observed his private parts from a close distance . . . .

[Lionel’s] choice to highlight only his penis provides

adequate evidence of the sexual nature of the

offense.

Although the circumstances surrounding [Lio-

nel’s] action are subject to other reasonable interpre-

tations, we find sufficient support for the trial court’s

implied finding that appellant acted with the purpose

of a sexual affront.

Id. at *2-*3.

tion or ordered published must not be cited or relied on by a court or a

party in any other action.” The only exceptions are for when the opinion

is relevant to a res judicata, collateral estoppel, or criminal or disciplinary

action stating reasons for a decision affecting the same defendant. I ques-

tion whether the majority should rely on this unpublished opinion.

We have long had a rule against citation of our own unpublished dispo-

sitions, 9th Cir. R. 36-3, for reasons that have been well explained. See

Alex Kozinski & Stephen Reinhardt, Please Don’t Cite This!, CAL.

LAWYER 43 (June 2000).

OCEGUEDA NUNEZ v. HOLDER 2413

Based on its own reading of these cases, the majority finds

that these incidents were not “highly threatening, intrusive,

[or] psychologically damaging” to the victims but were “mere

acts of provocation, bad taste, and failed humor.” Maj. Op. at

2395. The majority’s conclusion is way beyond any evidence

in the cases or the record before us. In fact, the California

courts have rejected the claim that § 314 reaches “mere acts

of provocation, bad taste, and failed humor.” As the Califor-

nia Court of Appeal said in In re Dallas W. (the “mooning”

case), “Dallas may have been guilty of some other offense,

and he certainly exhibited bad judgment and poor taste—but

the trial court’s findings make it clear that Dallas did not vio-

late section 314.” 102 Cal Rptr. 2d at 495 (citation omitted;

emphasis in original).

The majority’s characterization of Archer and In re Lionel

M. is one of two things. Either it is a collateral attack on the

judgments because the majority simply doesn’t believe the

evidence or, even worse, it is a determination that lewd con-

duct is categorically no longer a crime of moral turpitude. If

it is a collateral attack, it is sorely misplaced. We have no

competence in this proceeding to question the findings of the

California courts, and the fact that judges on our court might

have taken a different view on direct review of those cases is

of no moment. The California courts found that Archer and

Lionel deliberately engaged in lewd conduct in a public place

and that is a “crime involving moral turpitude.”

If, however, the majority means to remove lewd conduct

from the category of crimes involving moral turpitude, its dis-

cussion is a wholesale assault on sex crimes as crimes involv-

ing moral turpitude. As our cases demonstrate, it is too late

for the majority to take that position, but one reads the major-

ity opinion wondering how any sex crimes will satisfy its

standards.

III

Our morality is not the measure of “accepted moral stan-

dards.” Rodriguez-Herrera, 52 F.3d at 240. California is in a

2414 OCEGUEDA NUNEZ v. HOLDER

far better position to determine those moral standards. What-

ever inclination California might once have had to regulate

nude dancing, it is clear that one may now dance nude in bars

with aplomb. But California continues to draw a line against

those who expose their genitals in public when they do so

“lewdly,” meaning “for purposes of sexual arousal, gratifica-

tion, or affront.” In re Smith, 497 P.2d at 810. That members

of our court might have taken a different view of the evidence

in a state case does not change that fact. It certainly does not

satisfy Ocegueda’s burden of showing “a realistic probability,

not a theoretical possibility, that [California] would apply its

[indecent exposure] statute to conduct that falls outside the

generic definition of a crime [involving moral turpitude].”

Duenas-Alvarez, 549 U.S. at 193.

I would deny the petition. I respectfully dissent.