United States v. Moses Corona-Sanchez, A/K/A Enrique Sanchez-Corona

KOZINSKI, Circuit Judge,

dissenting.

I join Judge Rymer’s dissent without reservation but write to elaborate on a single point. In section III.C of its opinion, the majority holds that the maximum term of imprisonment for the crime of which Corona-Sanchez was convicted is six months. The longer sentence he received, the majority argues, is based on a sentencing enhancement, which is not an element of the crime of petty theft. The majority relies on People v. Bouzas, 53 Cal.3d 467 , 279 Cal.Rptr. 847 , 807 P.2d 1076, 1080 (1991), which holds that “the prior conviction under ... section 666[is] a sentencing factor for the court, and not ... an ‘element’ of an offense to be determined by a jury.” If Bouzas were good law, the majority’s argument would be plausible, but it is not. The procedure approved by the California Supreme Court in Bouzas doesn’t survive Apprendi; the recidivist enhancement is an element of the crime that must be determined by a jury.

Three of the justices in the Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000), majority apparently were of the view that the Court’s prior opinions in Almendarez-Torres v. United States, 523 U.S. 224 , 118 S.Ct. 1219 , 140 L.Ed.2d 350 (1998), and McMillan v. Pennsylvania, 477 U.S. 79 , 106 S.Ct. 2411 , 91 L.Ed.2d 67 (1986), survived its ruling; the remaining two majority justices suggested strongly that they did not survive. See Apprendi 530 U.S. at 517-18 , 120 S.Ct. 2348 (concurrence of Justice Thomas, joined by Justice Scalia). It is, at the very least, doubtful that the distinction our majority purports to draw between the base offense and a sentencing enhancement continues to be valid. But whatever the fate of Almendarez-Torres and McMillan , there is no doubt that what we have here is not the normal case of a basic crime (petty theft) coupled with a sentencing enhancement (recidivism). Rather, California has created a wholly new crime, petty theft with a prior, all the elements of which must be determined by a jury.

Almendarez-Torres and McMillan dealt with situations where recidivism had a single effect: It enlarged the term of imprisonment the court could impose. Section 666 is quite different because it does much more than lengthen the potential sentence; it changes the nature of the crime. Petty theft, as defined by section 488 of the California Penal Code, is a misdemeanor. Cal.Penal Code § 490. However, if a defendant has previously been convicted of a qualifying offense, the crime becomes a felony. Cal.Penal Code § 666; see CaLPe-nal Code § 17 (defining “felony”). Felonies and misdemeanors connote different *1219 levels of culpability and carry very different stigma. As the Court noted in Ap-prendi, cases such as Mullaney v. Wilbur, 421 U.S. 684 , 95 S.Ct. 1881 , 44 L.Ed.2d 508 (1975), and In re Winship, 397 U.S. 358 , 90 S.Ct. 1068 , 25 L.Ed.2d 368 (1970), are “concerned as much with the category of substantive offense as ‘with the degree of criminal culpability’ assessed.” 530 U.S. at 494-95 , 120 S.Ct. 2348 (quoting Mullaney, 421 U.S. at 698 , 95 S.Ct. 1881 ). The Court continued:

The degree of criminal culpability the legislature chooses to associate with particular, factually distinct conduct has significant implications both for a defendant’s very liberty, and for the heightened stigma associated with an offense the legislature has selected as worthy of greater punishment.

Id. at 495, 120 S.Ct. 2348 (emphasis added).

Raising an offense from a misdemeanor to a felony has effects far beyond the extra time defendant might serve. While employers may be willing to overlook a misdemeanor in potential employees, they are much less likely to hire convicted felons, especially for positions of trust and responsibility. Suffering a felony conviction, rather than a misdemeanor, can also have serious effects on personal relationships and reputation in the community. Moreover, under state law, felons suffer a variety of limitations and disabilities that misdemeanants do not. Misdemeanor sentences are served in local jails, while felony time is spent in state prison. Cal.Penal Code § 12. For the rest of their lives, felons (but not misdemeanants) are denied the right to vote, see, e.g., Cal. Elec.Code § 2212, and the right to bear arms. See, e.g., Cal.Penal Code § 12021.

Raising the level of crime from a misdemeanor to a felony adds such grave consequences for the individual charged with a crime that it seems wholly inconceivable that the element which causes this escalation can be deemed merely a sentencing factor that can be determined by the judge alone. That element — here the fact of pri- or conviction — is part of the definition of the very offense, and must be determined by a jury. Bouzas , decided nine years before Apprendi , is no longer good law.

The crime of which Corona-Sanchez was convicted therefore is not, as the majority would have it, petty theft. Rather, it is the distinct crime of theft by one who has previously been convicted of a predicate offense. This is a different, and more serious, crime, one that may be punished by imprisonment in the state prison rather than in a county jail. Moreover, it is clearly a “theft offense” and does not, by virtue of this additional element, fall outside the generic definition of “theft.” Nor, as persuasively explained by Judge Rymer, does the California theft statute sweep more broadly than the generic definition, whether one adopts the Model Penal Code definition, the Seventh Circuit’s definition or any other rational definition. I would affirm.