# United States v. Vidal > Court of Appeals for the Ninth Circuit · October 10, 2007 · 504 F.3d 1072 URL: https://www.frixlaw.com/law-library/cases/9627713 ## Case - **Full name:** UNITED STATES of America, Plaintiff-Appellee, v. Juan Jose VIDAL, Defendant-Appellant - **Court:** Court of Appeals for the Ninth Circuit - **Decided:** October 10, 2007 - **Citations:** 504 F.3d 1072; 2007 U.S. App. LEXIS 23739; 2007 WL 2937015 - **Precedential status:** Published - **Opinion:** Dissent by Kozinski - **Judges:** Schroeder, Reinhardt, Kozinski, Hawkins, Thomas, Wardlaw, Fletcher, Fisher, Gould, Paez, Tallman, Clifton, Bybee, Callahan, Bea - **Cited by:** 160 later opinions in the Frix Law Library ## Citator (automated) - **Red flag:** Abrogated on other grounds by Tulio Cardozo-Arias v. Eric H. Holder Jr., 495 F. App'x 790 (2012). - Negative treatments: 3 - Distinguished by: 0 - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9627713 ## How later opinions describe it (automated extraction) - holding that a complaint and “written plea and waiver of rights” form failed to establish the factual predicate for appellant’s plea of guilty pursuant to People v. West, 3 Cal.3d 595, 91 Cal.Rptr. 385, 477 P.2d 409 (1970), because the documents failed to establish that appell… - holding that where the statute of conviction is overly inclusive and the charging document merely parrots the statutory language but does not narrow the charge to generic limits, defendant’s own admissions or accepted findings of fact are required in order to confirm the factu… - holding that there is “a ‘realistic probability’ that California ‘would apply [section 10851(a)] to conduct that falls outside the generic definition of a theft offense,” that is, to the conduct of an accessory after the fact (quoting Duenas-Alvarez, 549 U.S. at 193, 127 S.Ct.… - holding that for written plea and waiver of rights form to establish that defendant pleaded guilty to the facts listed in a charging document, the form must specify that defendant pleaded guilty “as charged” in the charging document - stating that by entering a West plea, “a defendant ‘demonstrates that he . . . is prepared to admit each of [the offense]’s elements’ but not factual guilt” (quoting People v. West, supra, at 420 ) ## Opinion text KOZINSKI, Circuit Judge, with whom Judges CLIFTON, BYBEE and CALLAHAN join, dissenting: The Supreme Court just this Term instructed us that “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.” Gonzales v. Duenas-Alvarez, — U.S.-, 127 S.Ct. 815, 822 , 166 L.Ed.2d 683 (2007). Rather, “[i]t requires 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. To show that realistic possibility, 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. (emphasis added). Vidal argues that the statute under which he was convicted, Cal. Veh. Code § 10851 , is broader than the generic definition of “theft offense” because it purports to punish individuals who are merely accessories after the fact. But he cannot point to his own case, nor to any other case in the 84-year history of the statute, where the state has applied section 10851 in such an idiosyncratic manner. On its face, this case seems squarely controlled by Duenas-Alvarez . The complicating factor — and the fulcrum of the majority’s analysis — is our intervening en banc opinion in United States v. Grisel, 488 F.3d 844 (9th Cir. 2007) (en banc), which the majority reads as creating an exception to the Duenas-Alvarez mode of analysis for those situations where “a state statute explicitly defines a crime more broadly than the generic definition,” id. at 850 . In such situations, we explained, “no ‘legal imagination’ is required to hold that a realistic probability exists that the state will apply its statute to conduct that falls outside the generic definition of the crime.” Id. (citation omitted). But it’s not clear that Grisel relieves a defendant from his obligation to point to actual cases where the state has applied the statute beyond the generic definition. In the paragraph immediately following the one the majority relies on, Grisel did comply with Duenas-Alvarez by citing cases where the state had applied the statute literally and broadly. Id. at 850-51 . Assuming that Grisel does create a “plain language” exception to Duenas-Al-varez, that exception must be read narrowly, lest it swallow up the rule. In other words, Grisel’s exception should apply only to statutes that are capable of no other rational interpretation. The statute in Grisel was a model of such clarity: Not only did it specify that it covered booths, vehicles, boats and aircraft, but it also expressly recognized that, in so doing, it was augmenting the ordinary meaning of “building.” Id. at 850 (citing Or.Rev.Stat. § 164.205(1)). Grisel thus plausibly concluded that “[t]he [state] legislature expressly recognized the ordinary, generic meaning of burglary and consciously defined second-degree burglary more broadly by extending the statute to non-buildings.” 488 F.3d at 850 (emphasis added). Read narrowly, faithful to its own mode of analysis, Grisel can be reconciled with Duenas-Alvarez . Where it’s clear from the statutory text that the legislature con- *1100 seiously defined the crime more broadly than the generic definition, we can say with confidence that “a realistic probability exists that the state will apply its statute to conduct that falls outside the generic definition of the crime.” Id. at 850 . The majority here does not read Chisel narrowly, and dramatically departs from Chisel’s mode of analysis. There is nothing in section 10851 to suggest that the legislature “consciously defined” car theft to include accessories after the fact. Notably, the statute does not say “accessory after the fact,” but only “accessory.” “Accessory” could refer to accessory after the fact, but it could equally well mean accomplice. To reach its conclusion that section 10851 “explicitly” covers accessories after the fact, the majority exercises plenty of “legal imagination;” it imputes to the state legislature conscious awareness of legal developments over the prior half century, maj. op. at 1081, and leans hard on the presumption that the legislature would not have written a statute using redundant language, id. Both the imputation and the presumption are weak, as we know very well that legislatures are not omniscient and that they do, on occasion, use redundant language. That avoiding redundancy was not high on the list of legislative priorities is manifest from the last sentence of the section as enacted in 1923: Any person who assists in, or is a party or accessory to or an accomplice in, any such stealing or unauthorized taking or driving, shall also be deemed guilty of a felony. Ch. 226, § 146, 1923 Cal. Stat. 564 , 564 (emphasis added) (codified as amended at Cal. Veh. Code § 10851 (a)). A “party” is a principal or an accomplice, more likely the latter. Either way, the term does no useful work, as it duplicates the phrase “[a]ny person who shall drive a vehicle not his own without the consent of the owner thereof,” which is a few lines above, or the word “accomplice,” which is just six words below. Id. But it gets worse: The sentence opens with the phrase “[a]ny person who assists in.” Id. What conceivable purpose could that language serve that wasn’t already satisfied by “accomplice,” “accessory” or “party”? Nor did this legislature seem to worry much about overlap with other statutes, or it would have omitted the entire sentence quoted above. After all, California already had laws imposing liability on accomplices and accessories. Cal. Penal Code §§ 31 , 32; see People v. Garnett, 129 Cal. 364 , 61 P. 1114, 1115 (Cal.1900). If the 1923 legislators were aware of these provisions, as the majority assumes they must have been, and sought to avoid redundancy, as the majority supposes they did, why would they have added a sentence dealing with nothing but accomplices and accessories? It strikes me as more than a little strained to rely on the rule against legislative redundancies in construing statutory language that is a smorgasbord of redundancy, repetition, superfluity, duplication and redundancy. At most, the majority has shown that including accessories after the fact within the sweep of section 10851 is a plausible reading of the statute. But Judge Callahan’s dissent offers a reading that is at least as plausible. In these circumstances, we cannot say that the state legislature made the kind of conscious choice to broaden the statute that was at the heart of Grisel , and we therefore cannot hold that the statute’s “plain” language creates a “realistic probability” the state will apply it to accessories after the fact. Because Vidal cannot point to a single case where the statute has been applied to an accessory after the fact, he hasn’t met his burden of showing a “realistic probability” that California would so apply it. Dueñas- *1101 Alvarez, 127 S.Ct. at 822 . By giving Gri-sel a very broad reading, divorced from its animating rationale, the majority sets us back exactly where we were before the Supreme Court corrected our error in Duenas-Alvarez . It took us only about 9 months. I also agree with Judge Callahan that section 10851 is a “theft offense” for purposes of U.S.S.G. § 2L 1.2(b)(1)(C), even though it unquestionably covers joyriding — that is, the temporary unauthorized use of someone else’s vehicle without an intent to permanently deprive the owner of possession or ownership. See, e.g., In re Derec M., 2007 WL 1300540 (Cal.Ct.App. May 3, 2007) (mem.) (juvenile violated section 10851 when he drove parents’ car to mall and then returned it). We are bound by the generic definition of “theft offense” that we adopted in United States v. Corona-Sanchez, 291 F.3d 1201, 1205 (9th Cir.2002) (en banc), and that has also been adopted by other circuits and the Supreme Court in Duenas-Alvarez : [T]he taking of property or an exercise of control over property without consent with the criminal intent to deprive the owner of rights and benefits of ownership, even if such deprivation is less than total or permanent. Duenas-Alvarez, 127 S.Ct. at 820 (emphasis added) (quoting Penuliar v. Gonzales, 435 F.3d 961, 969 (9th Cir.2006)). Under this definition, a defendant need not intend to permanently deprive the rightful owner of the property altogether in order to be guilty of a generic theft offense. It is enough if he intends to temporarily deprive the owner of “rights and benefits of ownership.” Someone who drives off with another person’s vehicle certainly intends to deprive the owner of some of the rights and benefits of ownership — at the very least, his right to uninterrupted use and possession of the vehicle. Driving the vehicle without authorization also exposes the owner to serious risks, which — even if they do not come to pass — further interfere with his incidents of ownership. Joyriding risks damage to the vehicle, which would cause a very serious, possibly permanent, deprivation of the owner’s rights and benefits. The owner also risks liability for injuries or damage the stranger causes while joyriding. Moreover, while the vehicle is out being joy-ridden, the owner cannot use it himself, which may cause him distress and annoyance, may require him to obtain substitute transportation (a taxi or rental vehicle) and may prevent him from reaching his destination on time. Joyriding thus seems to fall squarely within a straightforward application of the generic definition of a theft offense. Defendant and amicus, Duenas-Alvarez, nevertheless argue that joyriding is different because the joyrider not only deprives the owner of his rights temporarily, but also intends the deprivation to be temporary from the start. Amicus describes this as “glorified borrowing.” However, the fact that the defendant intends to deprive the owner of his rights only temporarily does not necessarily mean that the deprivation will be so limited. What is intended to be only a temporary deprivation may very well result in serious and permanent losses to the owner, both monetary and psychological. Not knowing that the vehicle will be returned, the owner will have to make other arrangements, call the police to report the loss and, ultimately, might regain the vehicle damaged, dirty and low on gas — conditions that will require time and money to remedy. Doubtless for these reasons, a substantial majority of the states label joyriding as “theft,” as demonstrated by the helpful compilation of state statutes provided by the government in its brief. Appellee United States’ Supplemen *1102 tal Brief on the Application of Gonzales v. Duenas-Alvarez at 32 n. 17. For these reasons, and those stated by Judge Callahan in her persuasive dissent, I would affirm the district court’s imposition of defendant’s sentencing enhancement. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9627713. Public record. Not legal advice.