Hector Ramirez v. Loretta E. Lynch

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

HECTOR GIOVANNI RAMIREZ, No. 08-72896

Petitioner,

Agency No.

v. A043-733-743

LORETTA E. LYNCH, Attorney

General, OPINION

Respondent.

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

November 20, 2014—Pasadena, California

Filed January 20, 2016

Before: Kim McLane Wardlaw and Richard A. Paez

Circuit Judges and Matthew F. Kennelly,* District Judge.

Opinion by Judge Paez

*

The Honorable Matthew F. Kennelly, District Judge for the U.S.

District Court for the Northern District of Illinois, sitting by designation.

2 RAMIREZ V. LYNCH

SUMMARY**

Immigration

The panel granted Hector Giovanni Ramirez’s petition for

review of the Board of Immigration Appeals’ decision that

his conviction for felony child abuse under California Penal

Code § 273a(a) constitutes a crime of violence under 18

U.S.C. § 16 and is therefore an aggravated felony.

The panel held that § 273a(a) does not qualify as a

categorical crime of violence because it is broader than the

generic federal definition in 18 U.S.C. § 16. The panel also

found that § 273a(a) is not a divisible statute, because the

alternative mens rea requirements are not elements but are

rather alternative means for accomplishing a single

indivisible crime. The panel thus found that Ramirez’s

conviction does not constitute an aggravated felony.

COUNSEL

Anna Benvenue (argued) and Robert B. Jobe, Law Office of

Robert B. Jobe, San Francisco, California, for Petitioner.

Anh-Thu P. Mai-Windle (argued), Senior Litigation Counsel

and Thomas B. Fatouros, Senior Litigation Counsel, United

States Department of Justice, Office of Immigration

Litigation, Washington, D.C.; Tony West, Assistant Attorney

**

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

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

RAMIREZ V. LYNCH 3

General, United States Department of Justice, Civil Division,

Washington, D.C., for Respondent.

OPINION

PAEZ, Circuit Judge:

Hector Giovanni Ramirez petitions for review of the

Board of Immigration Appeals’s (“BIA”) decision that his

conviction under California Penal Code section 273a(a) for

felony child abuse constitutes a crime of violence under

18 U.S.C. § 16(a) and (b) and therefore qualifies as an

aggravated felony under 8 U.S.C. § 1101(a)(43)(F). We

conclude that section 273a(a) is not a categorical crime of

violence and is not divisible. We thus agree with Ramirez

that his conviction does not constitute an aggravated felony,

and grant the petition and remand.

I.

A.

Ramirez is a native and citizen of El Salvador. He

immigrated to the United States as a lawful permanent

resident in 1992, and all of his immediate family members are

U.S. citizens. Ramirez graduated from high school in the

United States and subsequently enlisted in the U.S. Navy,

serving for four years.

In February 2000, Ramirez was convicted of felony child

abuse, in violation of section 273a(a), and was sentenced to

8 years and 4 months of imprisonment. Ramirez appealed his

conviction, which the California Court of Appeal affirmed.

4 RAMIREZ V. LYNCH

The Department of Homeland Security commenced

removal proceedings against Ramirez in February 2007,

alleging that he was subject to removal from the United States

under 8 U.S.C. § 1227(a)(2)(A)(iii) as an alien convicted of

a “crime of violence,” which is a deportable “aggravated

felony” under 8 U.S.C. § 1101(a)(43)(F) and 18 U.S.C. § 16.

The immigration judge found him removable as charged and

ordered him removed. Ramirez appealed to the BIA, arguing

that his conviction did not constitute a crime of violence and

therefore did not constitute an aggravated felony. The BIA

affirmed the IJ, concluding that a) section 273a(a) is a

divisible statute; and b) it contained a “direct infliction”

prong, which incorporated a mens rea element of general

intent, and was therefore a categorical match for the federal

definition of a crime of violence. The BIA, employing the

modified categorical approach, examined the records of

conviction contained in the administrative record and

concluded that Ramirez had been convicted of the direct

infliction prong. Ramirez filed a timely petition for review.

Although we lack jurisdiction to review the final orders

of removal of aliens convicted of certain crimes, 8 U.S.C.

§ 1252(a)(2)(C), we retain jurisdiction to determine our own

jurisdiction. Therefore, when the issue at hand is whether an

alien has committed an aggravated felony, “the jurisdictional

question and the merits collapse into one.” See Ye v. INS,

214 F.3d 1128, 1131 (9th Cir. 2000). Where, as here, the

BIA conducts an independent review of the IJ’s findings, we

review the BIA’s decision and not that of the IJ. Romero-

Ruiz v. Mukasey, 538 F.3d 1057, 1061 (9th Cir. 2008).

“We do not defer [under Chevron U.S.A., Inc. v. Natural

Resources Defense Council, Inc., 467 U.S. 837 (1984)] to

BIA interpretations of state law or of provisions of the federal

RAMIREZ V. LYNCH 5

criminal code referenced within, but not part of, the

Immigration and Nationality Act,” (INA) including 18 U.S.C.

§ 16. Ortega-Mendez v. Gonzales, 450 F.3d 1010, 1014 (9th

Cir. 2006) (citing Parilla v. Gonzales, 414 F.3d 1038, 1041

(9th Cir. 2005)). Therefore, we review de novo the decision

of the BIA.

B.

To assess whether a state conviction qualifies as an

aggravated felony, we generally employ the “categorical

approach” to determine whether the state offense matches the

“generic” federal definition of the pertinent offense listed in

the INA: here, a crime of violence under 18 U.S.C. § 16(a) or

(b).1 Moncrieffe v. Holder, 133 S. Ct. 1678, 1684 (2013).

We do so by “compar[ing] the elements of the statute of

conviction with a federal definition of the crime to determine

whether conduct proscribed by the statute is broader than the

generic federal definition.” Rodriguez-Castellon v. Holder,

733 F.3d 847, 853 (9th Cir. 2013) (internal quotation marks

and citation omitted). In making this comparison, we must

rely exclusively on the elements of the two crimes, “[b]ecause

we examine what the state conviction necessarily involved,

not the facts underlying the case, [and so] must presume that

the conviction ‘rested upon [nothing] more than the least of

th[e] acts’ criminalized.” Moncrieffe, 133 S. Ct. at 1684

1

In Dimaya v. Lynch, 803 F.3d 1110 (9th Cir. 2015), petition for reh’g

en banc filed (Nov. 18, 2015), we recently held that 18 U.S.C. § 16(b) is

unconstitutionally vague under Johnson v. United States, 135 S. Ct. 2551

(2015). The opinion in Dimaya was filed after briefing and oral argument

in this case, and the parties did not argue that the definition of “crime of

violence” articulated in 18 U.S.C. § 16(b) was void for vagueness.

Because we grant the petition on other grounds, we do not address the

validity of 18 U.S.C. § 16(b) in this opinion.

6 RAMIREZ V. LYNCH

(emphasis added). We “then determine whether even those

acts are encompassed by the generic federal offense.” Id.;

Descamps v. United States, 133 S. Ct. 2276, 2283 (2013)

(“The key . . . is elements, not facts.”).

In identifying the elements of the statute of conviction, we

look not only to the text of the statute, but also to how state

courts have interpreted and applied the statute. Covarrubias

Teposte v. Holder, 632 F.3d 1049, 1054 (9th Cir. 2011). We

must determine whether there exists “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.” Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193

(2007). Additionally, if the federal generic offense is not

itself a crime, but rather a classification of crimes, like

“crime[s] of violence,” then we also compare the crime of

conviction with other crimes determined to fall within that

classification. Cerezo v. Mukasey, 512 F.3d 1163, 1166 (9th

Cir. 2008). If, after conducting this categorical analysis, we

conclude that the state statute of conviction criminalizes more

conduct than the federal generic offense, then the state

conviction does not fall within the federal definition, and will

not qualify as an aggravated felony crime of violence for

immigration purposes. See Descamps, 133 S. Ct. at 2283.

In a “narrow range of cases,” when the statute at issue is

divisible, we may employ a “modified categorical approach.”

Id. at 2283–85 (citation omitted). A divisible statute lists

alternative sets of elements, in essence “several different

crimes.” Id. at 2284. “If at least one, but not all of those

crimes matches the generic version, a court needs a way to

find out which the defendant was convicted of.” Id. at 2285.

In these instances, we may look beyond the elements of the

statute to the documents of conviction, i.e., to “the state

RAMIREZ V. LYNCH 7

charging document, a signed plea agreement, jury

instructions, guilty pleas, transcripts of a plea proceeding and

the judgment,” to determine whether the petitioner was

convicted of a set of elements that falls within the generic

definition. Fernandez-Ruiz v. Gonzales, 466 F.3d 1121, 1132

(9th Cir. 2006) (citing Hernandez-Martinez v. Ashcroft,

343 F.3d 1075, 1076 (9th Cir. 2003)). The modified

categorical approach is thus “a tool” that allows us to apply

the categorical approach. Descamps, 133 S. Ct. at 2285.

Moreover, “[i]t retains the categorical approach’s central

feature: a focus on the elements, rather than the facts, of a

crime,” as well as its “basic method.” Id.

With these principles in mind, we first examine the

generic federal definition of a crime of violence under

18 U.S.C. § 16, and then turn to section 273a(a) of the

California Penal Code.

II.

The initial briefing in this case took place before the

Supreme Court issued its opinions in Moncrieffe and

Descamps, and before we issued our opinion in Rendon v.

Holder, 764 F.3d 1077 (9th Cir. 2014). While Ramirez

initially agreed that the modified categorical approach was

appropriate, he now contends that section 273a(a) is

indivisible and categorically is not a crime of violence. The

parties filed supplemental briefs, which we have duly

considered, addressing the impact of these decisions on

Ramirez’s case.

The government does not dispute that section 273a(a) is

not a categorical match to the federal generic definition of a

crime of violence. Instead, the government argues, as it has

8 RAMIREZ V. LYNCH

throughout, that section 273a(a) is a divisible statute, and

that we should therefore apply the modified categorical

approach. The government further contends that the court

may determine from documents in the administrative record

that Ramirez was convicted of the direct infliction prong of

section 273a(a), which provides criminal penalties for any

person who, “under circumstances or conditions likely to

produce great bodily harm or death . . . inflicts [upon a child]

unjustifiable physical pain or mental suffering.” The

government argues that this prong falls within the generic

definition of a “crime of violence” under both 18 U.S.C.

§ 16(a) and (b).

The federal generic crime at issue, § 16, defines a “crime

of violence” as either:

(a) an offense that has as an element the use,

attempted use, or threatened use of physical

force against the person or property of

another, or

(b) any other offense that is a felony and that,

by its nature, involves a substantial risk that

physical force against the person or property

of another may be used in the course of

committing the offense.

In Leocal v. Ashcroft, the Supreme Court determined that

“‘use’ of force” signifies intentional conduct—“active

employment”—and encompasses a mens rea element greater

than negligence. 543 U.S. 1, 9–10 (2004). The petitioner in

Leocal had been convicted of drunk driving, and the Court

held that this conduct could not fall within either § 16(a) or

(b), because § 16(b), like § 16(a), does not encompass

RAMIREZ V. LYNCH 9

negligent conduct. Id. at 9–11. Rather, “[t]he reckless

disregard in § 16 relates not to the general conduct or to the

possibility that harm will result from a person’s conduct, but

to the risk that the use of physical force against another might

be required in committing a crime.” Id. at 10 (footnote

omitted). A person who drives while intoxicated incurs a

substantial risk that people in the vicinity will experience

force. Id. However, even in the event that the drunk driver’s

victims experienced force, the driver could not be said to

have “used” that force. Id. at 10–11. Nor does the drunk

driver intend to accomplish some criminal purpose and

foresee the risk of force that purpose entailed. Id. Thus, the

probability that victims of the crime will experience force

does not alone render criminal conduct a “crime of violence.”

Id.

Following Leocal, in Fernandez-Ruiz, we held that

“offenses committed through reckless, or grossly negligent,

use of force” likewise cannot constitute “crimes of violence,”

under either § 16(a) or (b). 466 F.3d at 1132. Recklessness,

though more culpable than negligence, does not encompass

the level of intent required to meet the definition of “‘use’ of

force” laid out by the Court in Leocal. Moreover, although

it is not entitled to deference, the BIA agreed with our

interpretation that 18 U.S.C. § 16 does not encompass crimes

with mens rea elements of recklessness or negligence in its

recent decision, Matter of Chairez-Castrejon, 26 I. & N. Dec.

349, 352–53 (BIA 2014), vacated in part on other grounds,

26 I. & N. Dec. 478 (BIA 2015). Thus, in order for a

person’s conviction to qualify as a crime of violence, he or

she must have “use[d] force” with a mens rea that

incorporates a degree of intent greater than does negligence

or recklessness.

10 RAMIREZ V. LYNCH

III.

A.

Turning to the state statute at issue, California Penal Code

section 273a(a) provides:

(a) Any person who, under circumstances or

conditions likely to produce great bodily harm

or death, [1] willfully causes or permits any

child to suffer, or [2] inflicts thereon

unjustifiable physical pain or mental

suffering, or [3] having the care or custody of

any child, willfully causes or permits the

person or health of that child to be injured, or

[4] willfully causes or permits that child to be

placed in a situation where his or her person

or health is endangered, shall be punished by

imprisonment in a county jail not exceeding

one year, or in the state prison for two, four,

or six years.

(brackets and numbers added). It is undisputed here that

section 273a(a) criminalizes conduct that would not

necessarily entail any affirmative “use” of force, and

encompasses passive, negligent conduct. For example, the

statute criminalizes conduct that “permits any child to suffer,”

“permits the person or health of that child to be injured,” and

“permits that child to be placed in a situation where his or her

person or health is endangered.” California case law

confirms that section 273a(a) is an “omnibus statute,”

meaning that a violation “can occur in a wide variety of

situations: the definition broadly includes both active and

passive conduct, i.e., child abuse by direct assault and child

RAMIREZ V. LYNCH 11

endangering by extreme neglect.” People v. Sargent,

970 P.2d 409, 414–15 (Cal. 1999) (quoting People v. Smith,

678 P.2d 886, 890–91 (Cal. 1984)).

Although section 273a(a) requires a mens rea of

“willful[ness]” for the three prongs of the statute that

criminalize indirect infliction of harm or passive conduct, the

California Supreme Court has interpreted “willful[ness]” in

this context to require proof only of criminal negligence.

People v. Valdez, 42 P.3d 511, 519–20 (Cal. 2002) (holding

that criminal negligence is the appropriate standard for the

indirect infliction prongs of section 273a(a), and explaining

that “[w]e do not think the Legislature’s use of the word

‘willful’ is inconsistent with a criminal negligence standard”);

see also People v. Peabody, 119 Cal. Rptr. 780 (Cal. Ct. App.

1975), cited with approval by Walker v. Superior Court,

763 P.2d 852, 866–67, 880 (Cal. 1988). Because willfulness

under section 273a(a) does not require greater proof of

culpability than criminal negligence, willfulness in this

context does not meet the definition of “‘use’ of force”

elucidated by the Court in Leocal. 543 U.S. at 9–10; see also

Fernandez-Ruiz, 466 F.3d at 1132. A review of California

case law confirms that courts have applied section 273a(a) to

criminally negligent conduct. See, e.g., People v. Kinkead,

96 Cal. Rptr. 2d 121 (Cal. Ct. App. 2000) (affirming the

conviction of a defendant who fell asleep next to his

three-year-old daughter, after ingesting methamphetamine,

marijuana, and alcohol and being up for days, and

asphyxiated her); People v. Toney, 90 Cal. Rptr. 2d 578 (Cal.

Ct. App. 1999) (affirming the conviction of a defendant who

left several containers of highly flammable and caustic

chemicals on the floor of a residence inhabited by his wife’s

six-year-old son). Thus, we agree with the government that

section 273a(a) is not a categorical match to the federal

12 RAMIREZ V. LYNCH

generic definition of a crime of violence because it

criminalizes conduct that falls outside this definition.

While section 273a(a) is not categorically a crime of

violence, the indirect and direct infliction prongs of the

statute are phrased in the disjunctive. Therefore, we next

consider whether section 273a(a) is divisible. Descamps,

133 S. Ct. at 2284–85; see also Medina-Lara v. Holder,

771 F.3d 1106, 1112 (9th Cir. 2014). We hold that it is not.

B.

In Descamps, the Supreme Court clarified that a

“prosecutor charging a violation of a divisible statute must

generally select the relevant element from its list of

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

make clear, must then find that element, unanimously and

beyond a reasonable doubt.” 133 S. Ct. at 2290 (emphasis

added) (citation and footnote omitted). Applying Descamps,

we recently explained that “[t]he critical distinction is that

while indivisible statutes may contain multiple, alternative

means of committing the crime, only divisible statutes

contain multiple, alternative elements of functionally separate

crimes.” Rendon, 764 F.3d at 1084–85. Therefore, the key

question we must ask when determining a statute’s

divisibility is whether a jury would have to be unanimous in

finding those separate elements. Chavez-Solis v. Lynch,

803 F.3d 1004, 1013–14 (9th Cir. 2015); Lopez-Valencia v.

Lynch, 798 F.3d 863, 868 (9th Cir. 2015); Rendon, 764 F.3d

at 1084–85. “Otherwise, the Court’s express purpose for

separating indivisible statutes from divisible statutes—

preventing sentencing courts from finding facts on which a

jury did not have to agree, rather than elements on which a

RAMIREZ V. LYNCH 13

jury did have to agree—would be undermined.” Rendon, 764

F.3d at 1085–86.

In Almanza-Arenas v. Lynch, we recently outlined a three-

step process for conducting this divisibility analysis under

Descamps. No. 09-71415, slip op. at 10–24 (9th Cir. Dec. 28,

2015). First, we examine the text of the statute of conviction

to determine whether it contains multiple crimes with distinct

elements, or instead describes alternative means for

accomplishing a single crime. We next examine the

conviction documents to determine whether we may confirm

our statutory analysis. Finally, we verify that our reading is

consistent with the way in which state courts have construed

the statute of conviction.

We turn first to the statutory text. The first part of section

273a(a) requires that the conduct at issue be done “under

circumstances or conditions likely to produce great bodily

harm or death.” The second part of the statute contains four

prongs, worded in the disjunctive, which enumerate the ways

in which a person can criminally abuse or endanger a child.

Although this part of the statute is worded in the disjunctive,

“[t]he mere use of the disjunctive term ‘or’ does not

automatically make a statute divisible.” Almanza-Arenas,

No. 09-71415, slip op. at 16 n.11. Here, the text of section

273a(a) suggests that the four prongs constitute separate

means of committing a single offense. However, because the

text of the statute is not clear on its face, we turn to the

available conviction documents since such documents may

disclose whether the statute is divisible. See id. at 14.

Where, as here, the defendant was tried and convicted by

a jury, we look first to the charging document and jury

instructions. See Taylor v. United States, 495 U.S. 575, 602

14 RAMIREZ V. LYNCH

(1990); see also Shepard v. United States, 544 U.S. 13, 16

(2005). The charging document—an Information—draws no

distinction between the direct and indirect infliction prongs of

section 273a(a). The Information alleges three separate

violations of section 273a(a), two of which occurred on the

same day, with each count alleging an enhancement under

California Penal Code section 12022.7(a). Each count simply

repeats the text of the statute, listing all four prongs and

alleging violations of each. The abstract of judgment

similarly does not draw a distinction between the indirect and

direct infliction prongs. It succinctly records that Ramirez

was convicted of three violations of section 273a(a), each

with a section 12022.7(a) enhancement.2 The administrative

2

Ramirez received a statutory sentence enhancement under California

Penal Code section 12022.7(a), which is reflected in the abstract of

judgment, and which the government argues establishes that Ramirez was

convicted of a crime of violence once the modified categorical approach

is applied. As we conclude that section 273a(a) is indivisible, we decline

to examine the sentence enhancement, which is not a “crime” of which

Ramirez was “convicted” for the purposes of 8 U.S.C.

§ 1227(a)(2)(A)(iii). However, even were we to consider it, section

12022.7(a) does not meet the definition of a crime of violence either, as

it has clearly been applied to defendants who committed crimes recklessly

or negligently. See People v. Guzman, 91 Cal. Rptr. 2d 885, 886–87 (Cal.

Ct. App. 2000) (applying section 12022.7(a) in a case where the defendant

had been convicted of driving under the influence); see also People v.

Arndt, 90 Cal. Rptr. 2d 415, 419 (Cal. Ct. App. 2000) (imposing an

enhanced sentence under section 12022.7(a) on a man convicted of felony

driving under the influence of a drug and transporting cocaine); People v.

Sainz, 88 Cal. Rptr. 2d 203, 207 (Cal. Ct. App. 1999) (affirming an

enhancement under section 12022.7 on a man convicted of driving under

the influence and stating: “In most instances, when a defendant driving

under the influence of alcohol or drugs causes great bodily injury, he or

she will ‘personally inflict[]’ it” within the meaning of section 12022.7).

Section 12022.7(a) thus clearly falls outside the definition of “crime of

violence.”

RAMIREZ V. LYNCH 15

record in this case does not contain the trial court’s jury

instructions. However, there was a model jury instruction in

place at the time of Ramirez’s conviction, California Jury

Instructions–Criminal (CALJIC) No. 9.37. As explained in

detail below, this pattern jury instruction did not require

unanimity as to which prong of the statute the defendant

violated.

Finally, we examine California state law, including model

jury instructions, to confirm that the statute is not divisible.

Under the California constitution, “[i]n a criminal case, a jury

verdict must be unanimous. . . . [and] the jury must agree

unanimously the defendant is guilty of a specific crime.”

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

“when the evidence suggests more than one discrete crime,

either the prosecution must elect among the crimes or the

court must require the jury to agree on the same criminal act.”

Id. But, “where the evidence shows only a single discrete

crime but leaves room for disagreement as to exactly how that

crime was committed or what the defendant’s precise role

was, the jury need not unanimously agree on the basis or . . .

the ‘theory’ whereby the defendant is guilty.” Id. (emphasis

added). Thus, the California Supreme Court’s distinction

between “theories” and “elements” mirrors the United States

Supreme Court’s distinction between “alternative means” and

“elements.”

There is an exception to the juror unanimity requirement,

for a “continuous course of conduct.” In the context of

section 273a(a), a prosecutor can allege a pattern of abuse,

and, in such a case, the jury need not agree unanimously as to

which specific acts the defendant committed within that

pattern. People v. Ewing, 140 Cal. Rptr. 299, 301 (Cal. Ct.

App. 1977). “Although the child abuse statute may be

16 RAMIREZ V. LYNCH

violated by a single act, more commonly it covers repetitive

or continuous conduct.” Id. (citation omitted).

A California Court of Appeal case, People v. Vargas,

251 Cal. Rptr. 904 (Cal. Ct. App. 1988), illustrates how

“theories,” as opposed to elements, and the continuous course

of conduct exception work in a section 273a(a) prosecution.

In Vargas, the prosecution alleged a continuous course of

conduct, and argued that either the defendant had violated

section 273a(a) by herself inflicting injuries upon her child,

or by permitting her co-habitant to injure him and by failing

to seek adequate treatment for his injuries. Id. at 909. On

appeal, the defendant argued that, while the jury need not be

unanimous as to her specific acts within the course of conduct

alleged, the jury was required to unanimously agree upon one

of the prosecution’s two theories. Id. The court disagreed:

Where a single course of conduct is proved at

trial it is permissible for members of the jury

to determine that the underlying facts

establish a violation of the statute under

different legal theories such as direct

infliction of abuse or permitting the child’s

health or safety to be endangered. The jury

need not agree unanimously on the legal

theory that defines a given set of facts as

criminal conduct.

Id. (emphases added). The court reasoned that “[t]he

Legislature has seen fit to proscribe equally, without

distinction as to the available punishment, any violation of

section 273a, subdivision [(a)].” Id. The prosecutor need not

elect to prove either direct infliction or passive conduct, or

negligence or general intent, nor must the court give a

RAMIREZ V. LYNCH 17

unanimity instruction. Instead, so long as the jury agrees

unanimously that the defendant engaged in a course of

conduct containing acts that violate section 273a(a), the

prosecution can meet its burden of proof. Thus, even where

direct infliction is alleged (as it was in Vargas), a jury could

convict a defendant of a violation of the whole statute,

including the direct infliction prong, notwithstanding that the

jury agrees that the defendant committed only negligent or

passive conduct. Direct infliction is merely a “legal

theor[y],” id., and not a “discrete crime.” Russo, 25 P.3d at

645.

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

statute must generally select the relevant element from its list

of alternatives,” Descamps, 133 S. Ct. at 2290 (emphasis

added), a prosecutor charging section 273a(a) need not

choose among its “legal theories.” Recently, we explained

that statutes which the prosecutor may allege in their entirety

without seeking a unanimous jury verdict on one particular

prong must be considered indivisible. Employing the

modified categorical approach and imposing a collateral

consequence on the basis of such a conviction risks “potential

unfairness” to a defendant who gained nothing by arguing at

trial that he or she violated one prong of the statute, but not

the other. Lopez-Valencia, 798 F.3d at 871 (“The categorical

approach exists in large part to ensure that the imposition of

a consequence in federal proceedings does not hinge on a fact

that was irrelevant to a defendant’s earlier conviction.

Without the requirement that the jury unanimously agree on

a fact, a defendant has no reason to introduce evidence that

would disprove it.”) (citation omitted). After the court’s

decision in Vargas, a defendant like Vargas, charged with

both direct and indirect infliction of section 273a(a), would

have no reason to argue that she did not hit her child, but

18 RAMIREZ V. LYNCH

instead failed to get the child adequate medical care. Thus,

applying the modified categorical approach to section 273a(a)

convictions risks the “unfairness” we foresaw in Lopez-

Valencia.

Another California case, although it post-dates Ramirez’s

conviction, provides an additional clear example of California

courts treating the different prongs as interchangeable “legal

theories.” It also further underscores the futility of arguing

one prong in place of another, confirming that the conundrum

we noted in Lopez-Valencia applies here. In In re L.K.,

132 Cal. Rptr. 3d 342 (Cal. Ct. App. 2011), a minor, L.K.,

was convicted by the juvenile court of running over her

younger brother, M.S., with a truck. Id. at 344. L.K.

appealed on the ground that the juvenile court had imposed a

negligence standard in determining that she had violated

section 273a(a)’s direct infliction prong. Id. at 346. L.K.

argued that there was insufficient evidence to show that

running over her brother was anything but an accident, and

therefore she lacked the “general intent” (i.e., willfulness)

required for a conviction under that prong. Id. at 345–46.

While the Court of Appeal agreed, it nevertheless upheld the

juvenile court’s judgment, because it determined that L.K.

had “violated the first prong of [section 273a(a)] by willfully

permitting M.S. to suffer unjustifiable physical pain and

mental suffering when she failed to alert others at the house

of the potential seriousness of M.S.’s injuries.” Id. at 347.

Acknowledging that this finding had not been the basis of the

juvenile court’s verdict, the Court of Appeal nevertheless

concluded that the conviction should stand, because

[e]ven though the juvenile court erred in its

reasoning, a ruling or decision, itself correct

in law, will not be disturbed on appeal merely

RAMIREZ V. LYNCH 19

because given for a wrong reason. If right

upon any theory of the law applicable to the

case, it must be sustained regardless of the

considerations which may have moved the

trial court to its conclusion.

Id. at 349 (emphasis added) (quotation marks omitted). That

is, while the evidence might not support a conviction under

the direct infliction prong, so long as it supported a

conviction under any prong, the state carried its burden of

proof. Therefore, even in the unusual circumstance where the

record specifies a finding on solely the direct infliction prong

(as opposed to the more typical case, in which the prosecution

makes a general allegation that the defendant violated the

statute with a continuous course of conduct) it cannot be

determined with certainty that the defendant directly inflicted

any kind of force or committed a general intent crime.

California jury instructions for section 273a(a) implement

the California courts’ distinction between elements and “legal

theories.” Citing to Vargas, the use notes that accompany the

jury instructions for section 273a(a), CALJIC No. 9.37 from

1996 (the latest edition prior to Ramirez’s conviction)

explicitly state that the juror unanimity instruction, CALJIC

No. 17.01, “is not required when the same act or omission

may have been either intentional or criminal negligence.”3

3

CALJIC No. 9.37 was not updated between 1996 and 2002. In 2002,

CALJIC No. 9.37 was revised to reflect the holding of Valdez, which held

that criminal negligence was the appropriate standard for the indirect

infliction prongs. Valdez, 42 P.3d at 519–20. The revised instruction

requires the judge to read the criminal negligence instruction whenever

negligent conduct is alleged. However, the use note that states that

unanimity is not required with respect to general intent versus negligence

was not changed or omitted.

20 RAMIREZ V. LYNCH

That is, a jury need not be unanimous as to criminal

negligence or general intent, even where it must be

unanimous as to the underlying conduct. Thus, these

alternative mens rea requirements are not “elements” for

purposes of Lopez-Valencia, Rendon or Descamps. Rather,

they are alternative means for accomplishing a single

indivisible crime.

IV.

Our examination of the text of section 273a(a), the

Shepard documents, and California case law reveals that the

state need not prove that a defendant committed a violation of

section 273a(a) under a particular prong; the four prongs are

instead alternative “legal theories” which the prosecution may

argue, and none of which the jury need decide upon

unanimously. Because section 273a(a) is not a divisible

statute, our analysis stops here. Under the categorical

approach, section 273a(a) is broader than 18 U.S.C. § 16, and

therefore not a “crime of violence,” nor does it qualify on that

basis as an aggravated felony.

Because the Board erred when it determined that Ramirez

had been convicted of an aggravated felony, we grant the

petition and remand.

Petition GRANTED and REMANDED.