Sanchez-Avalos v. Holder

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FERNANDO SANCHEZ-AVALOS, 

Petitioner, No. 07-74437

v.

 Agency No.

A026-340-635

ERIC H. HOLDER Jr., Attorney

General, OPINION

Respondent.



On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

March 21, 2012—San Francisco, California

Filed September 4, 2012

Before: M. Margaret McKeown, Richard R. Clifton, and

Jay S. Bybee, Circuit Judges.

Opinion by Judge Clifton;

Dissent by Judge Bybee

10507

SANCHEZ-AVALOS v. HOLDER 10509

COUNSEL

Michael K. Mehr (argued), Rachael Keast, Law Office of

Michael K. Mehr, 100 Doyle St., Suite A, Santa Cruz, Cali-

fornia, for the petitioner.

Tony West, Michelle E. Latour, Jennifer J. Keeney (argued),

U.S. Department of Justice, Civil Division, Office of Immi-

10510 SANCHEZ-AVALOS v. HOLDER

gration Litigation, P.O. Box 878, Ben Franklin Station, Wash-

ington, D.C. for the respondent.

OPINION

CLIFTON, Circuit Judge:

Fernando Sanchez-Avalos (“Sanchez”) petitions for review

of the BIA’s decision that he is not eligible for waiver of inad-

missability because he was convicted of an aggravated felony.

See Immigration and Nationality Act (“INA”) § 212(h), codi-

fied at 8 U.S.C. § 1182(h). Sanchez argues that his conviction

for sexual battery under California Penal Code § 243.4(a) did

not qualify as sexual abuse of a minor. We apply the categori-

cal and modified categorical approaches first described by the

Supreme Court in Taylor v. United States, 495 U.S. 575

(1990), and recently clarified by this court in United States v.

Aguila-Montes de Oca, 655 F.3d 915 (2011) (en banc). We

conclude that the crime of sexual battery under California law

is categorically broader than the federal generic crime of

“sexual abuse of a minor” because the California crime may

be committed against a victim of any age, while the federal

generic offense requires proof that the victim was a minor.

We also conclude that none of the evidence we are permitted

to consider under the modified categorical approach estab-

lishes that Sanchez’s victim was a minor. We therefore grant

the petition and remand the matter to the BIA.

I. Background

Sanchez is a Mexican citizen. He entered the U.S. in 1977

and has been a lawful permanent resident since 1986. In 1997,

California charged Sanchez with six counts of child molesta-

tion and child rape and one count of sexual battery of arousal

under California Penal Code § 243.4(a). The latter is a crime

that may be committed against a minor or an adult.

SANCHEZ-AVALOS v. HOLDER 10511

In addition to alleging the required elements of sexual bat-

tery, the information filed against Sanchez identified the vic-

tim as “Jane Doe, date of birth 02/16/1984.” If the date of

birth was correct, Sanchez’s victim was thirteen at the time of

the crime. Sanchez entered into a plea agreement with the

state under which Sanchez pled no contest to the sexual bat-

tery count and the other counts were dismissed.

In 2004, Sanchez traveled to Mexico. Upon his return to the

United States, the Department of Homeland Security paroled

petitioner into this country for deferred inspection. It later

revoked that parole and began removal proceedings. The

Department alleged that Sanchez was convicted of acts which

constituted the essential elements of a crime involving moral

turpitude and was therefore inadmissible under 8 U.S.C.

§ 1182(a)(2)(A)(i)(I). The Immigration Judge sustained the

charge of inadmissibility.

Sanchez applied for a discretionary waiver of inadmissa-

bility under INA § 212(h). After an evidentiary hearing, the

Immigration Judge denied Sanchez’s waiver request. He

stated two alternate grounds for his decision. First, he con-

cluded Sanchez was not eligible for § 212(h) relief because

Sanchez’s sexual battery conviction qualified as “sexual

abuse of a minor,” an aggravated felony. See 8 U.S.C.

§§ 1101(a)(43)(A), 1182(h). Second, he determined that even

if Sanchez were eligible, Sanchez failed to show “exceptional

or extremely unusual hardship” to a qualifying relative under

the heightened standard applicable to aliens who have com-

mitted a violent crime. See 8 C.F.R. § 1212.7.

Sanchez appealed the Immigration Judge’s denial of a

§ 212(h) waiver. The Board affirmed the conclusion that

under the modified categorical approach, Sanchez was con-

victed of an aggravated felony and was therefore ineligible for

§ 212 waiver. It did not review the alternative decision to

deny discretionary relief on the ground that Petitioner did not

show hardship. Sanchez filed a petition for review.

10512 SANCHEZ-AVALOS v. HOLDER

II. Discussion

We review de novo whether a petitioner’s prior conviction

qualified as conviction for an aggravated felony under the

INA. Fernandez-Ruiz v. Gonzales, 466 F.3d 1121, 1126 n. 7

(9th Cir. 2009) (en banc). We conclude that Sanchez’s con-

viction did not. We must therefore grant Sanchez’s petition.

[1] INA § 212(h) provides the Attorney General discretion

to waive the inadmissibility of certain aliens if the alien estab-

lishes that inadmissibility would cause hardship to a family

member who is a United States citizen or lawful resident. 8

U.S.C. § 1182(h)(1)(B). Certain categories of aliens (includ-

ing Sanchez) are not eligible for this waiver if “the alien has

been convicted of an aggravated felony.” 8 U.S.C. § 1182(h).

“[S]exual abuse of a minor” is an aggravated felony. 8 U.S.C.

§ 1101(a)(43)(A).

We employ a two-part analysis to determine whether a

prior conviction qualifies as an “aggravated felony.” Aguila-

Montes, 655 F.3d at 918. The first step is the application of

the categorical approach. Id. at 920. We compare the statute

of conviction to the list of aggravated felonies in 8 U.S.C.

§ 1101(a)(43). Id. If the statute of conviction required proof

of all the elements of one of the federal generic offenses on

that list, then the conviction was for an aggravated felony. Id.

If not, we apply the modified categorical approach. Id. The

modified categorical approach allows us to look beyond the

statute of conviction to determine whether the facts proven at

trial or admitted by the defendant as part of his guilty plea

establish that the defendant was convicted of all the elements

of the relevant federal generic offense. Id. at 921; see also

Taylor, 495 U.S. at 602; Shepard v. United States, 544 U.S.

13, 26 (2005).

There are two limitations on our application of the modi-

fied categorical approach. First, we may only rely on facts

contained in a limited universe of judicial documents, such as

SANCHEZ-AVALOS v. HOLDER 10513

“ ‘the indictment or information and jury instructions’ . . . or,

if a guilty plea is at issue . . . the plea agreement, plea collo-

quy or ‘some comparable judicial record’ of the factual basis

for the plea.” Nijhawan v. Holder, 557 U.S. 29, 35 (2009)

(quoting Taylor, 495 U.S. at 602 and Shepard, 544 U.S. at

26); see also Aguila-Montes, 655 F.3d at 921.1

Second, and of greater relevance to this case, we may only

take into account facts on which the defendant’s conviction

“necessarily rested.” Aguila-Montes, 655 F.3d at 937. The

Supreme Court articulated this limitation in Taylor, in which

it held that courts may only look beyond the relevant statutory

text in “the narrow range of cases in which the indictment or

information and the jury instructions actually required the

jury to find all of the elements of generic burglary.” 495 U.S.

at 602 (emphasis added). The Court referred to the limitation

again in Shepard, in which it said that the relevant inquiry

was “whether a plea of guilty to burglary defined by a non-

generic statute necessarily admitted elements of the generic

offense.” Shepard, 544 U.S. at 26 (emphasis added). In

Aguila-Montes, we used a hypothetical example to further

explain what it means for a factual allegation to be “neces-

sary” to conviction:

It is not enough that an indictment merely allege a

certain fact or that the defendant admit to a fact; the

fact must be necessary to convicting that defendant.

....

Let us return to our example in which the generic

1

In Nijhawan, the Supreme Court recognized that Congress described

some aggravated felonies in language that demands “circumstance-

specific” analysis, not categorical or modified categorical analysis. 557

U.S. at 36. However, the Court noted that Congress described “sexual

abuse of a minor” with categorical language, so Nijhawan does not permit

circumstance-specific analysis in this case. Id.

10514 SANCHEZ-AVALOS v. HOLDER

aggravated assault offense requires (1) harmful con-

tact and (2) use of a gun, whereas the statute of con-

viction requires only harmful contact. Under our

reading of the modified categorical approach, if the

Shepard documents establish that the defendant sat-

isfied the harmful contact with a gun, then the fact-

finder was “actually required” to find the defendant

used a gun, and the conviction “necessarily rested”

on this fact. In such a situation, the defendant has

every incentive to demonstrate that he did not use a

gun. . . . [I]f the jury convicts the defendant, then we

may be confident that the jury determined that he

used a gun, because such a determination was neces-

sary given the government’s theory of guilt.

655 F.3d at 937-38 (emphasis added; citation omitted).2

[2] There is a categorical mismatch between sexual battery

under California Penal Code § 243.4(a) and the federal

generic offense of sexual abuse of a minor. A state crime

may qualify as the federal generic offense of “sexual

abuse of a minor” if: (1) the conduct prohibited by

the criminal statute is sexual, (2) the statute protects

a minor, and (3) the statute requires abuse. A crimi-

nal statute includes the element of “abuse” if it

expressly prohibits conduct that causes “physical or

psychological harm in light of the age of the victim

in question.”

Pelayo-Garcia v. Holder, 589 F.3d 1010, 1014 (9th Cir. 2009)

2

The rule we described in Aguila-Montes is consistent with our decision

in other cases that “a plea of guilty admits only the elements of the charge

necessary for a conviction.” Malta-Espinoza v. Gonzales, 478 F.3d 1080,

1083 n. 3 (9th Cir. 2007). Accord United States v. Forrester, 616 F.3d

929, 945 (9th Cir. 2010); United States v. Cazares, 121 F.3d 1241, 1247

(9th Cir. 1997).

SANCHEZ-AVALOS v. HOLDER 10515

(internal citations omitted; emphasis added); see also United

States v. Baron-Medina, 187 F.3d 1144, 1147 (9th Cir. 1999);

United States v. Medina-Villa, 567 F.3d 507, 515 (9th Cir.

2009).3 California Penal Code § 243.4(a) criminalizes

“touch[ing] an intimate part of another person while that per-

son is unlawfully restrained by the accused or an accomplice,

. . . if the touching is against the will of the person touched

and is for the purpose of sexual arousal, sexual gratification,

or sexual abuse.” (emphasis added). The federal generic

offense protects only minors, whereas the California statute

protects all persons regardless of age. This means that the fact

of Sanchez’s conviction, without more, did not establish that

he was convicted of sexual abuse of a minor for the purposes

of the INA. See Aguila Montes, 655 F.3d at 920.

[3] We must therefore apply the modified categorical

approach, looking beyond the fact of conviction to whether

the judicial records show that Sanchez was convicted of sexu-

ally battering a minor. We conclude that they do not.

[4] The information charged that Sanchez

On or about MARCH 20, 1997 . . . did willfully and

unlawfully touch an intimate part of another person,

to wit, JANE DOE, date of birth 2/16/1984 and that

the touching was against the will of the person

touched and was done for the specific purpose of

sexual arousal, sexual gratification or sexual abuse.

The transcript of Sanchez’s plea colloquy shows that Peti-

tioner pled no contest4 to that count. Together, these two doc-

3

In Estrada-Espinoza v. Mukasey, 546 F.3d 1147, 1159 (9th Cir. 2008)

(en banc), overruled on other grounds by Aguila-Montes, 655 F.3d at 928,

we gave a slightly different definition for generic “sexual abuse of a

minor.” We compare state statutory rape crimes to the Estrada-Espinoza

definition and state non-statutory rape crimes to the Pelayo-Garcia defini-

tion. Pelayo-Garcia, 589 F.3d 1010, 1013-14.

4

“The legal effect of such a plea, to a crime punishable as a felony, shall

be the same as that of a plea of guilty for all purposes.” Cal. Pen. Code

§ 1016.

10516 SANCHEZ-AVALOS v. HOLDER

uments suggest that Sanchez admitted that his victim was

thirteen.

[5] The date of birth allegation, however, is not within the

reach of modified categorical analysis because it was not a

fact on which Sanchez’s conviction “necessarily rested.” See

Aguila-Montes, 655 F.3d at 937. In the Aguila-Montes hypo-

thetical, “gun use” was not a required element of the crime,

but it was nevertheless “necessary,” in the sense that the state

could not prove the required harmful contact element without

also showing that the defendant used a gun. 955 F.3d at 936-

38. In Petitioner’s case, by contrast, the government could

prove sexual battery without proving the age of Sanchez’s

victim. The state had to prove the existence of an identified

victim, but it could do that without proving the victim’s age.

To extend the Aguila-Montes hypothetical, the victim’s age

was no more necessary to conviction for sexual battery than

the make or color of a gun is to conviction for “harmful con-

tact.”

The government argues that the state could have intended

to use the fact that the victim was too young to consent to sex-

ual activity to prove the element that the touching was against

the will of the person touched. See People v. Smith, 120 Cal.

Rptr. 3d 52, 58 (Cal. Ct. App. 2011) (“the phrase ‘against the

will of the person touched’ connotes lack of consent” (quoting

California Penal Code § 243.4(e)(1)); People v. Young, 235

Cal. Rptr. 361, 366 (Cal. Ct. App. 1987) (in rape cases, the

government can prove the element of lack of consent by

showing that the victim was too immature to consent). As the

government conceded at oral argument, however, the state

could also have proven the “unwanted” element in other

ways, such as by showing that Sanchez used physical force.

The information and plea colloquy do not disclose which of

these alternate theories of “unwantedness” was admitted by

Sanchez, so we cannot assume that the date of birth allegation

was necessary to his conviction.

SANCHEZ-AVALOS v. HOLDER 10517

The dissenting opinion contends, at 10522-23, that the age

of the victim was a “necessary” fact for another reason,

because it was needed to give the defendant notice of the

identity of the victim, citing to People v. Christian, 35 P.

1043, 1045 (Cal. 1894), overruled on other grounds by People

v. Look, 76 P. 1028 (Cal. 1904). In that dusty case, the Cali-

fornia Supreme Court reversed a defendant’s conviction for

assault with a deadly weapon because he was tried on a com-

plaint that alleged he assaulted one George Magin but was

convicted at trial for assaulting someone named George Mas-

sino. Id. at 1043. The reversal was based on the unremarkable

proposition that the defendant must be notified “of the partic-

ular offense for which he stands committed.” Id. But Sanchez

pled guilty. In doing so he acknowledged the existence of a

victim, and the accuracy of her description in the charging

document was not at issue. See People v. Griggs, 265 Cal

Rptr. 53, 57-58 (Cal. App. 1989) (Christian does not gener-

ally require “the naming of the particular victim,” but applies

only “in a due process context” where the defendant lacks

notice of the crime charged). That her name was not actually

“Jane Doe” did not vitiate the effectiveness of his plea or do

anything to make her date of birth “necessary” to the convic-

tion. Sanchez was guilty of the crime of sexual battery

whether the victim was thirteen or thirty.

It may seem unfortunate that the law requires us to blind

ourselves to persuasive evidence that Sanchez’s victim was

thirteen. This type of evidentiary limitation is, however, a

characteristic feature of the categorical approach and its modi-

fied categorical variant, which we are required to apply. The

Supreme Court has identified at least three reasons why that

approach is to be followed. First, we must “respect[ ] Con-

gress’s adoption of a categorical criterion” for aggravated fel-

onies. Shepard, 544 U.S at 20. In Shepard, the Supreme Court

concluded that the categorical language Congress employed

in the Armed Career Criminal Act, 18 U.S.C. § 924(e), was

inconsistent with “subsequent evidentiary enquiries into the

factual basis for the earlier conviction.” Id. In Nijhawan, the

10518 SANCHEZ-AVALOS v. HOLDER

Court held that the “sexual abuse of a minor” category in 8

U.S.C. § 1101(a)(43)(A) also “must refer to [a] generic

crime[ ].” Nijhawan, 557 U.S. at 36. See also Kawashima v.

Holder, ___ U.S. ___, 132 S. Ct. 1166, 1172 (2012) (the

“fraud or deceit” category in 8 U.S.C. § 1101(a)(43)(M)(i)

also requires categorical analysis).

Second, the evidentiary limitations are necessary to

“avoid[ ] . . . collateral trials” on the previous conviction.

Shepard, 544 U.S. at 23; see also Taylor, 348 F.3d at 601.

The “ ‘evil Taylor sought to prevent’ ” was the specter of

“turn[ing] . . . sentencing hearings into mini-trials.” Reina-

Rodriguez v. United States, 655 F.3d 1182, 1192 (9th Cir.

2011) (quoting United States v. Franklin, 235 F.3d 1165,

1170 (9th Cir. 2000)). This practical concern is no less serious

in the immigration context.

Finally, limitations on the reach of modified categorical

analysis are necessary to protect defendants from procedural

unfairness. Shepard, 544 U.S. at 20 (noting the “unfairness”

of allowing factual inquiries into the nature of previous con-

victions). As we recognized in Aguila-Montes,

[w]here a particular fact is not an element of the stat-

ute of conviction . . . the defendant has no reason to

believe it will be relevant to his conviction, and thus

no reason to cast doubt on the government’s evi-

dence as to that fact. Even if the defendant has over-

whelming evidence contradicting the government’s

assertion as to the non-elemental fact, presenting it

to the jury would be a waste of time and probably

excluded as irrelevant.

655 F.3d at 938 (internal quotation marks, alterations, and

citations removed).

The dissenting opinion argues, as did the government, that

the evidentiary limitations recognized in Taylor, Shepard, and

SANCHEZ-AVALOS v. HOLDER 10519

Aguila-Montes should not apply here because of potential sen-

tencing consequences. Sanchez should have been motivated to

contest the victim’s age, the dissent asserts, at 10523-24,

because of the possible impact on the sentence to be imposed

on him. But that argument again disregards the context of a

guilty plea. Specifically, it presumes that in imposing the sen-

tence the sentencing court would only know what was con-

tained in the charging document and the defendant’s plea —

something we can safely assume would not have been the

case. If the reported date of birth of the victim were stated

incorrectly in the information, that fact could have been com-

municated to the sentencing court in a number of ways,

including by a presentencing report or a separate statement by

the parties. Sanchez would still be guilty of the crime of sex-

ual battery, so a guilty plea to that count would still have been

in order. Moreover, even if Sanchez would have been moti-

vated to contest the victim’s stated date of birth, the threat of

such collateral consequences is not enough to place the age

allegation on the same footing as allegations that were “neces-

sary” to conviction. If it turned out that there was a typo in

the information and the victim was actually 18, Sanchez

would have been no less guilty of sexual battery. Indeed, that

possibility, though unlikely, would be consistent with the

record before us.

Moreover, Sanchez pled guilty to the sexual battery charge

in exchange for the dismissal of all of the child- and minor-

specific charges against him. He may have expected that this

deal would spare him from the consequences of conviction for

a child sex crime. To conclude that we may nevertheless

penalize him based on the date of birth allegation would risk

undoing the bargain he struck with the state prosecutor. Cf.

Taylor, 495 U.S. at 601-02 (“if a guilty plea to a lesser . . .

offense was the result of a plea bargain, it would seem unfair

to impose a sentence enhancement as if the defendant had

pleaded guilty to [the more serious offense]”). And even if we

were to agree that the fairness concerns discussed in Aguila-

Montes did not apply in this case, we would still not be free

10520 SANCHEZ-AVALOS v. HOLDER

to disregard the Supreme Court’s conclusion that the text of

the INA demands categorical analysis. Nijhawan, 557 U.S. at

36; Shepard, 544 U.S at 20.

[6] The dissent attempts, at 10523-24, to infer from the

terms of probation actually imposed upon Sanchez a conclu-

sion that the victim here must have been a minor. That

approach is simply inconsistent with the categorical approach.

The “modified” categorical approach lets us look at additional

documents, but only to identify facts “necessary” to a convic-

tion. It does not permit us to speculate as to what we think the

facts underlying a conviction probably were.

III. Conclusion

We must therefore grant Sanchez’s petition and remand to

the BIA for further proceedings, including its review, if

appropriate, of the IJ’s decision not to exercise discretion in

favor of Sanchez.

PETITION FOR REVIEW GRANTED; REMANDED

FOR FURTHER PROCEEDINGS.

BYBEE, Circuit Judge, dissenting in part:

In 1997, Fernando Sanchez-Avalos pled no contest to

“willfully and unlawfully touch[ing] an intimate part of

another person, to wit, JANE DOE, date of birth 02/16/1984,”

to gratify his sexual desires. He received a three-year sus-

pended sentence, subject to terms of probation, including not

being in the presence of children under sixteen years of age.

Reading this record, the Immigration Judge (“IJ”) reasonably

concluded that Sanchez had committed a crime against a

thirteen-year-old that qualified as “sexual abuse of a minor,”

8 U.S.C. § 1101(a)(43)(A), which rendered him inadmissible

SANCHEZ-AVALOS v. HOLDER 10521

under § 1182(a)(2)(A)(i)(I) and ineligible for a waiver under

§ 1182(h). The BIA affirmed.

The majority overturns the BIA’s judgment because the

majority can’t be sure “whether the judicial records show that

Sanchez was convicted of sexually battering a minor.” Maj.

Op. at 10515. I disagree with the majority that we may not

consider the age of the victim when that fact was recited in

the indictment, was the only information that actually identi-

fied the underage Jane Doe victim, and was admitted by San-

chez when he pled no contest. There is no reason to engage

in such formalism. Unfortunately, this case is another in a

series of cases that threatens to gut the modified categorical

approach by requiring us to ignore facts “plain on the record

before us.” Aguilar-Turcios v. Holder, ___ F.3d ___, 2012

WL 3326618, at *12 (9th Cir. Aug. 15, 2012) (Bybee, J., dis-

senting). I respectfully dissent and would deny the petition.1

I

In United States v. Aguila-Montes de Oca, we noted that in

certain circumstances, “applying the modified categorical

approach to the missing element situation is ‘unfair to defen-

dants because it denies them notice and a reasonable opportu-

nity to rebut the charges against them.’ ” 655 F.3d 915, 938

(9th Cir. 2011) (en banc) (quoting Li v. Ashcroft, 389 F.3d

892, 900 (9th Cir. 2004) (Kozinski, J., concurring)). We

addressed this concern by clarifying that the application of the

modified categorical approach is “circumscribed” by “an

important limitation.” Id. at 937, 938. That is, “a court must

exercise caution in determining what facts a conviction ‘nec-

essarily rested’ on.” Id. at 937. We held that “[i]t is not

enough that an indictment merely allege a certain fact or that

the defendant admit to a fact; the fact must be necessary to

1

I agree with the majority that a conviction for sexual battery under Cal-

ifornia Penal Code § 243.4(a) is not categorically an aggravated felony

under 8 U.S.C. § 1101(a)(43).

10522 SANCHEZ-AVALOS v. HOLDER

convicting that defendant.” Id. What “ensures that the defen-

dant will have understood and had an opportunity to contest

all facts which are necessary to his conviction” is “the fact

that we may only rely on a narrow and defined range of

documents—the indictment, jury instructions, judicial find-

ings, plea agreements, plea colloquies, and the like.” Id. at

938.

I do not believe that this “important limitation” governs the

current case, because I am persuaded that the fact of the vic-

tim’s age—which was listed in the indictment—was “neces-

sary” to the conviction. Indeed, the victim’s age was the only

identifying information in the indictment. The indictment

does not refer to the victim by name, but instead refers to

“JANE DOE” and gives her date of birth. In California, a

defendant’s guilty plea admits “all allegations and factors

comprising the charge contained in the pleading.” People v.

Palacios, 56 Cal. App. 4th 252, 257 (1997) (internal quotation

marks omitted).

Put simply, the inclusion of the date of birth in the indict-

ment was not superfluous. In California, an indictment is suf-

ficient if it includes a statement of the offense “in any words

sufficient to give the accused notice of the offense of which

he is accused.” Cal. Penal Code § 952. Because a victim is

self-evidently a necessary element of the crime of sexual bat-

tery, Cal. Penal Code § 243.4(a), identifying the victim in

some fashion appears to be important in order to put the

accused on notice of the offense charged. Here, where the

prosecutor identified the victim only as “Jane Doe”—

presumably to protect the identity of a child-victim—the date

of birth further identified the victim for Sanchez. Whether or

not Sanchez even knew the victim’s birth date, it served to

identify her as a thirteen-year-old girl, giving Sanchez and his

attorney notice as to who the state believed the victim to be.

If Sanchez had any reason to doubt what the state relayed, he

had a full and fair opportunity to contest it.

SANCHEZ-AVALOS v. HOLDER 10523

Furthermore, the identity of the victim was a “necessary”

fact to support Sanchez’s conviction. In People v. Christian,

the California Supreme Court vacated a conviction for assault

with a deadly weapon because the indictment had misidenti-

fied the victim. 35 P. 1043, 1043, 1045 (Cal. 1894), overruled

in part on other grounds by People v. Look, 76 P. 1028 (Cal.

1904). The court explained that “[t]he name of the party

assaulted is a material element of the offense, and common

justice to the defendant demands that he be notified of the

particular offense for which he stands committed.” Id. at

1043. This principle has frequently been distinguished where

a defendant has constructive notice of the victim’s identity.

See, e.g., People v. Griggs, 265 Cal. Rptr. 53, 58 (Ct. App.

1989) (“There was no confusion here of what act defendant

was tried and convicted.”). Nonetheless, it remains true that

the state must give the defendant some notice—actual or

constructive—of the identity of the victim he or she has alleg-

edly harmed, at least for crimes that require a specific victim.

See id. (“Due process is not offended in this type of unusual

situation [firing a gun into a crowd of people] where a partic-

ular victim is not identified.”). A violation of California Penal

Code § 243.4(a) is clearly such a crime. Thus, the date of

birth of the victim was not “irrelevant” to the crime charged.

II

I also disagree with the majority that the policy behind

Aguila’s “important limitation” does not apply in this case. In

Aguila, we acknowledged a concern inherent in applying the

modified categorical approach to take into account facts the

defendant may have had no incentive to contest, either

because disputing the fact would have been a waste of time

and resources, or because evidence to the contrary could have

been excluded as irrelevant. 655 F.3d at 938. Sanchez had

every incentive to contest the victim’s age. Although Jane

Doe’s age may not have been a separate element of the

offense under the specific statute he pled guilty to violating,

it was plainly relevant to the sentence Sanchez would receive.

10524 SANCHEZ-AVALOS v. HOLDER

The record indicates that he served three years of felony pro-

bation. The terms of that probation included that Sanchez

“[n]ot be in the presence of children 16 yrs of age or younger

unless another responsible adult is present,” and “[n]ot pos-

sess . . . matter which depicts youth for the purposes of arous-

ing prurient interests.” It strains credulity to believe Sanchez

had no incentive to contest such terms, especially when he

had a daughter under the age of sixteen at the time.

It is not clear whether these are standard or mandatory

terms of probation in California for defendants convicted of

sex crimes, regardless of the age of the victim. However,

these conditions are not included on the form itself, but were

specially typed onto the standard probation order for this case.

This indicates, in my view, that the conditions were in fact not

standard. Moreover, if Sanchez had not been convicted of a

sex crime involving an underage victim, these conditions of

probation may very well have been invalid under California

law. A condition of probation is unlawful if it “has no rela-

tionship to the crime of which the offender was convicted.”

People v. Lent, 541 P.2d 545, 548 (Cal. 1975). Thus, the fact

of the victim’s age was certainly relevant to Sanchez’s terms

of probation, which he had to live under for three years.

The problem that we confront in this case may be confined

to plea agreements in advance of trial, a problem we did not

squarely address in Aguila. See also Aguilar-Turcios v.

Holder, ___ F.3d ___, 2012 WL 3326618, at *18 (9th Cir.

Aug. 15, 2012) (Bybee, J., dissenting) (suggesting that ignor-

ing admissions at the plea colloquy is “the equivalent of will-

ful blindness to the facts”). In Aguila, we employed a

hypothetical throughout the opinion—one involving a state

statute of conviction that requires use of a weapon of some

kind, and a generic crime that requires the use of a gun. 655

F.3d at 926. As we addressed the question of what facts one

could glean from the Shepard documents, we focused on what

facts were necessary to the conviction in the context of the

prosecution’s “theory of the case.” Id. at 936-37. Relying on

SANCHEZ-AVALOS v. HOLDER 10525

the “theory of the case,” of course, presupposes the presenta-

tion of the case to the jury. In the plea context, we will not

get the benefit of the theory of the case, except through the

indictment, plea colloquy, and judgment. Here, the prosecu-

tion’s theory of the case was that Sanchez abused a thirteen-

year-old girl, a theory fully explained in the indictment. For

the reasons I have explained, I think Sanchez had ample rea-

sons for contesting this fact had it been untrue. The age of the

victim was not only relevant to identify Jane Doe, it was also

relevant to what the prosecution would prove at trial—that

Sanchez committed the crime of sexual battery of arousal by

touching an intimate part of another person, Jane Doe, date of

birth 02/16/1984, against her will.

The majority’s formalism strikes me as a prophylactic,

wholly unnecessary to protect Sanchez’s rights under our

immigration laws. I have elsewhere questioned whether our

application of the modified categorical approach has been too

strict in the immigration context. Aguilar-Turcios v. Holder,

___ F.3d ___, 2012 WL 3326618, at *20-21 (9th Cir. Aug.

15, 2012) (Bybee, J., dissenting). But even if we must treat

immigration cases with all the rigor of criminal cases, we are

simply ignoring facts staring us in the face.

I would deny the petition.