Longinos Togonon v. Merrick Garland

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LONGINOS CADENA TOGONON, No. 19-71693

Petitioner,

Agency No.

v. A062-970-937

MERRICK B. GARLAND, Attorney

General, OPINION

Respondent.

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted November 16, 2021

San Francisco, California

Filed January 10, 2022

Before: Richard A. Paez, Paul J. Watford, and

Michelle T. Friedland, Circuit Judges.

Opinion by Judge Watford

2 TOGONON V. GARLAND

SUMMARY *

Immigration

Granting Longinos Togonon’s petition for review of a

decision of the Board of Immigration Appeals, the panel held

that arson in violation of California Penal Code § 451 is not

a categorical match to its federal counterpart, 18 U.S.C.

§ 844(i), and therefore, Togonon’s § 451(b) conviction was

not an aggravated felony that rendered him removable.

The BIA concluded that Togonon’s conviction was an

aggravated felony under 8 U.S.C. § 1101(a)(43)(E)(i), which

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

described in” 18 U.S.C. § 844(i). As relevant here, § 844(i)

prohibits “maliciously” damaging or destroying, by means

of fire or an explosive, certain real or personal property.

The case turned on § 844(i)’s requirement that the

defendant act “maliciously.” Because the statute does not

define that term, the panel presumed that Congress intended

to adopt the term’s established common law meaning.

Joining the circuits to have addressed the issue, the panel

held that a defendant acts “maliciously” if he either

intentionally damages or destroys property covered by

§ 844(i) or acts with “willful disregard” of the likelihood that

damage or injury would result from his or her acts. The

panel also explained that acting with “willful disregard”

requires that a defendant be subjectively aware of the risk

that his actions will damage or destroy property and take the

actions nonetheless.

*

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

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

TOGONON V. GARLAND 3

Under California law, a “person is guilty of arson when

he or she willfully and maliciously sets fire to or burns or

causes to be burned or who aids, counsels, or procures the

burning of, any structure, forest land, or property.” Cal.

Penal Code § 451. Subsection (b), the provision under

which Togonon was convicted, prohibits arson that “causes

an inhabited structure or inhabited property to burn.”

Although both the federal and state statutes require the

defendant to act “maliciously,” the panel explained that

California courts have interpreted that term in § 451 to

criminalize a broader range of conduct than § 844(i) does.

To be convicted under the federal statute, a defendant need

not have intended to damage or destroy property covered by

the statute, but he must at least have engaged in an

intentional act that resulted in damage to or destruction of

such property, and in doing so, must have been subjectively

aware of the risk that his actions would result in that harm.

By contrast, a defendant may be convicted under the

California statute for engaging in an intentional act that

results in the burning of an inhabited structure or property

even if he was not subjectively aware of the risk that his

actions would result in that harm. Thus, the panel concluded

that the California statute is not a categorical match to its

federal counterpart.

The panel also concluded that its interpretation was not

foreclosed by the court’s decision in United States v. Doe,

136 F.3d 631 (9th Cir. 1998). The panel explained that Doe

involved a defendant engaged in the actus reus of the offense

intentionally and did not speak to the issue here – namely,

the mental state that must be shown when a defendant does

not intentionally engage in conduct prohibited by the statute,

but rather intentionally engages in an action that causes the

effect prohibited by the statute.

4 TOGONON V. GARLAND

COUNSEL

Matthew N. Ball (argued), Gibson Dunn & Crutcher LLP,

Denver, Colorado; Paul J. Collins, Gibson Dunn & Crutcher

LLP, Palo Alto, California; Andrew T. Brown and Matt

Aiden Getz, Gibson Dunn & Crutcher LLP, Los Angeles,

California; for Petitioner.

Imran Zaidi (argued) and Joseph D. Hardy, Trial Attorneys;

Anthony C. Payne, Assistant Director; Civil Division,

United States Department of Justice, Washington, D.C.; for

Respondent.

OPINION

WATFORD, Circuit Judge:

Petitioner Longinos Togonon, a native and citizen of the

Philippines, was admitted to the United States as a lawful

permanent resident in 2013. In 2015, he was convicted of

arson in violation of California Penal Code § 451(b) and

sentenced to three years of imprisonment. In 2018, the

Department of Homeland Security initiated removal

proceedings against Togonon, alleging (as relevant for our

purposes) that his arson offense qualifies as an “aggravated

felony.” See 8 U.S.C. § 1227(a)(2)(A)(iii) (“Any alien who

is convicted of an aggravated felony at any time after

admission is deportable.”). The Immigration and

Nationality Act defines the term “aggravated felony” to

include “an offense described in” 18 U.S.C. § 844(i).

8 U.S.C. § 1101(a)(43)(E)(i). The Board of Immigration

Appeals (BIA) held that a conviction under California Penal

Code § 451(b) is an offense described in 18 U.S.C. § 844(i)

and that Togonon is therefore subject to removal from the

TOGONON V. GARLAND 5

United States. Reviewing that decision de novo, see

Sandoval v. Sessions, 866 F.3d 986, 988 (9th Cir. 2017), we

conclude that the BIA erred in so holding. We accordingly

grant Togonon’s petition for review.

To determine whether a state offense is “described in”

18 U.S.C. § 844(i), we employ the categorical approach.

Under that approach, we compare the elements of the state

offense with the elements of the offense proscribed by

§ 844(i). If the state offense “criminalizes a broader range

of conduct” than its federal counterpart, United States v.

Edling, 895 F.3d 1153, 1155 (9th Cir. 2018), the state

offense is not a categorical match and does not qualify as an

aggravated felony.

The elements of the offense proscribed by § 844(i) are

readily discernible from the text of the provision. Under

§ 844(i), anyone who “maliciously damages or destroys, or

attempts to damage or destroy, by means of fire or an

explosive, any building, vehicle, or other real or personal

property used in interstate or foreign commerce or in any

activity affecting interstate or foreign commerce” shall be

punished according to law. Thus, to obtain a conviction,

“the government must prove that the defendant:

(1) maliciously; (2) damaged or destroyed a building,

vehicle, or other real or personal property; (3) by means of

fire or explosive; and (4) the building, vehicle, or personal

or real property was used in interstate or foreign commerce

or in any activity affecting interstate or foreign commerce.”

United States v. Gullett, 75 F.3d 941, 947 (4th Cir. 1996). In

conducting our analysis, we ignore the jurisdictional element

(requiring a nexus to interstate or foreign commerce) and

focus solely on the three substantive elements of the crime.

Luna Torres v. Lynch, 578 U.S. 452, 473 (2016).

6 TOGONON V. GARLAND

This case turns on the first element, which requires that

the defendant act “maliciously.” Because the statute does

not define “maliciously,” we presume that Congress

intended to adopt the term’s established common law

meaning. See United States v. Jones, 681 F.2d 610, 611 (9th

Cir. 1982). At common law, a defendant committed arson

(the closest common law analogue of § 844(i)) by

maliciously burning the dwelling house of another. 3 Wayne

R. LaFave, Substantive Criminal Law § 21.3, at 314 (3d ed.

2018). A defendant acted maliciously by intentionally

burning the dwelling house of another or by doing so

wantonly, meaning “intentionally doing an act (e.g., starting

a fire or burning his own premises) under circumstances in

which the act created a very high risk of burning the dwelling

house of another, where the actor knew of that risk but

nonetheless engaged in the risk-taking act.” Id. § 21.3(e),

at 329–30; see also Rollin M. Perkins & Ronald N. Boyce,

Criminal Law 859–60 (3d ed. 1982); John Poulos, The

Metamorphosis of the Law of Arson, 51 Mo. L. Rev. 295,

322 (1986).

Every circuit to address the issue has borrowed the

common law meaning of “maliciously” when defining the

mens rea element of § 844(i). We join these courts in

holding that a defendant acts “maliciously” if he either

intentionally damages or destroys property covered by

§ 844(i) or acts “with willful disregard of the likelihood that

damage or injury would result from his or her acts.” Gullett,

75 F.3d at 948; accord United States v. Grady, 746 F.3d 846,

848–49 (7th Cir. 2014); United States v. Wiktor, 146 F.3d

815, 818 (10th Cir. 1998) (per curiam); United States v.

Corona, 108 F.3d 565, 571 (5th Cir. 1997); see also

McFadden v. United States, 814 F.2d 144, 146 (3d Cir.

1987) (interpreting the same mens rea requirement in

18 U.S.C. § 844(f)). To act with “willful disregard,” the

TOGONON V. GARLAND 7

defendant must be subjectively aware of the risk that his

actions will damage or destroy property and take the actions

nonetheless. See Corona, 108 F.3d at 571; Gullett, 75 F.3d

at 948.

We can turn now to the elements of arson under

California Penal Code § 451(b). California defines arson

generally as follows: “A person is guilty of arson when he

or she willfully and maliciously sets fire to or burns or causes

to be burned or who aids, counsels, or procures the burning

of, any structure, forest land, or property.” Cal. Penal Code

§ 451. Succeeding subsections specify different

punishments for the offense, depending on factors such as

the type of property burned. Subsection (b), the provision

under which Togonon was convicted, prohibits arson that

“causes an inhabited structure or inhabited property to burn.”

In comparing the elements of arson under California

Penal Code § 451(b) with the elements of 18 U.S.C. § 844(i),

we can begin and end our analysis with the mens rea

element. Although both statutes require the defendant to act

“maliciously,” California courts have interpreted that term

in California Penal Code § 451 to criminalize a broader

range of conduct than § 844(i) does.

The case most relevant for our analysis is the California

Supreme Court’s decision in In re V.V., 252 P.3d 979 (Cal.

2011). There, two teenagers ignited a firecracker and threw

it onto a brush-covered hillside, starting a fire that burned

five acres of forest land. Id. at 980–81. The evidence

established that the defendants intentionally ignited the

firecracker and threw it onto the hillside, but they had not

intended to burn forest land. Id. at 985. The California

Supreme Court upheld their juvenile adjudications under

California Penal Code § 451. The court concluded that

malice under § 451 requires only “a general intent to

8 TOGONON V. GARLAND

willfully commit the act of setting on fire under such

circumstances that the direct, natural, and highly probable

consequences would be the burning of the relevant structure

or property.” Id. at 984. The defendants in V.V. did not need

to “know or be subjectively aware that the fire [on the forest

property] would be the probable consequence of their acts.”

Id. at 985 (emphasis added). Instead, they could be

convicted so long as they were aware of facts that “would

lead a reasonable person to realize that the direct, natural,

and highly probable consequence of igniting and throwing a

firecracker into dry brush would be the burning of the

hillside.” Id.

The government disagrees with this reading of V.V.,

arguing that the defendants in that case were subjectively

aware of the risk that their actions would cause the burning

of forest land. We acknowledge the presence of language in

the opinion to support that view. See id. (“Although V.V.

and J.H. did not intend to set the hillside on fire, they knew

that their intentional acts created a fire hazard.”); id. at 985

n.4 (discussing how a third minor alerted the defendants to

the risk of injuring someone with the firecracker). But the

California Supreme Court nevertheless made clear, in the

passage quoted earlier, that subjective awareness of the risk

that forest land would be burned was not required for

conviction. Id. at 985. And California appellate courts have

interpreted V.V. in precisely that manner, upholding

convictions under California Penal Code § 451 without

requiring proof that the defendant was subjectively aware of

the risk of burning forest land or other property. See, e.g.,

Mason v. Superior Court, 195 Cal. Rptr. 3d 527, 538 (Ct.

App. 2015).

Given the way California courts have interpreted the

mens rea requirement of California Penal Code § 451, we

TOGONON V. GARLAND 9

conclude that Togonon’s conviction under § 451(b) does not

categorically match the offense proscribed by 18 U.S.C.

§ 844(i). As discussed above, to be convicted under

§ 844(i), a defendant need not have intended to damage or

destroy property covered by the statute. But he must at least

have engaged in an intentional act that resulted in damage to

or destruction of such property, and in doing so, he must

have been subjectively aware of the risk that his actions

would result in that harm. By contrast, a defendant may be

convicted under California Penal Code § 451(b) for

engaging in an intentional act that results in the burning of

an inhabited structure or property even if he was not

subjectively aware of the risk that his actions would result in

that harm. The California Supreme Court made that point

clear in V.V. when it held that the defendants “were not

required to know or be subjectively aware that the fire”—

that is, the burning of forest land—“would be the probable

consequence of their acts.” 252 P.3d at 985. Thus,

California Penal Code § 451(b) criminalizes a broader range

of conduct than is prohibited under 18 U.S.C. § 844(i) and

therefore is not a categorical match to its federal counterpart.

The only remaining issue is whether our interpretation of

the mens rea requirement of § 844(i)—under which the

defendant must at least be subjectively aware of the risk of

damaging or destroying property—is foreclosed by our

decision in United States v. Doe, 136 F.3d 631 (9th Cir.

1998). In Doe, the defendant was convicted under a different

statute, 18 U.S.C. § 81, which punishes anyone who, “within

the special maritime and territorial jurisdiction of the United

States, willfully and maliciously sets fire to or burns any

building, structure or vessel,” or certain types of personal

property. The defendant was a seventh-grade student who

intentionally set fire to a paper towel in a paper-towel

dispenser attached to a privacy partition in the girls’

10 TOGONON V. GARLAND

bathroom. 136 F.3d at 633–34, 636. She let the flame burn

for a moment and then blew it out, or so she thought. After

the defendant left the bathroom and returned to class, the

school building caught fire, causing extensive damage. Id.

at 633–34.

Although it was undisputed that the defendant did not

intend to burn down the school building, our court upheld

her conviction. We concluded that the defendant had

“willfully and maliciously” set fire to the school building, as

required under § 81, because she had intentionally “set fire

to a paper towel in a dispenser attached to a partition in the

building.” Id. at 636. We regarded that act as setting fire to

the building itself (the actus reus of the offense) and held

that because the defendant engaged in that act intentionally,

nothing more was required to establish that she committed

the actus reus “willfully and maliciously.” The district

court’s finding that the defendant “knew the likely result of

her conduct would damage the school” was therefore

unnecessary to sustain the conviction. Id.

We do not think Doe has any bearing on our

interpretation of 18 U.S.C. § 844(i). As we have explained,

a defendant acts “maliciously,” as that term was understood

at common law, if she commits the actus reus of the offense

either intentionally or wantonly. The court in Doe decided

that the defendant engaged in the actus reus of the offense

(setting fire to the school building) intentionally, so there

was no need to explore whether she had acted wantonly. In

other words, whether the defendant was subjectively aware

of the risk that her actions would result in damage to the

school building was irrelevant because her intentional act of

setting fire to a portion of the school building was itself

sufficient to support a conviction under 18 U.S.C. § 81. In

contrast, the present case requires us to flesh out the mental

TOGONON V. GARLAND 11

state that must be shown when a defendant does not

intentionally engage in the conduct prohibited by the statute,

but rather intentionally engages in an action that then causes

the effect prohibited by the statute. Doe does not speak to

that issue at all.

Our decision in Doe, however, underscores just how

broadly the California Supreme Court construed the arson

statute in V.V. California Penal Code § 451 and 18 U.S.C.

§ 81 both punish anyone who “willfully and maliciously sets

fire to or burns” specified property. In Doe, the defendant

intentionally set fire to or burned property specified in

§ 81—namely, the school building. But in V.V., the

defendants did not intentionally set fire to property specified

in § 451—there, forest land. They intentionally “set fire”

only to a firecracker, and their act of throwing the

firecracker, however dangerous, was not committed with an

intent to set fire to forest land. Since the defendants in V.V.

did not intentionally set fire to or burn forest land, they could

have been convicted under the common law definition of

“maliciously” only if they had set fire to or burned forest

land wantonly. And establishing wanton conduct under

common law malice, as discussed, would have required

proof that the defendants were subjectively aware of the risk

that their actions would result in the burning of forest land—

precisely the mental state that the California Supreme Court

held the defendants were not required to possess for § 451.

252 P.3d at 985. In so holding, the California Supreme Court

construed § 451 to criminalize conduct that would not be

covered under either 18 U.S.C. § 81 or § 844(i).

Because we hold that Togonon is not removable on the

only ground still asserted by the government, we need not

12 TOGONON V. GARLAND

consider his claim for relief from removal under the

Convention Against Torture.

PETITION FOR REVIEW GRANTED.