holding that certain acts of “sexual predation” of a minor criminalized by a California statute did not involve moral turpitude under the Act because the acts in question involved “sexual interest that would be natural and normal if motivated by conduct directed at an 18-year old,” and because the statute did not require that the defendant knew, or reasonably should have known, that the acts were directed at a child
How later courts described this case
- holding that certain acts of “sexual predation” of a minor criminalized by a California statute did not involve moral turpitude under the Act because the acts in question involved “sexual interest that would be natural and normal if motivated by conduct directed at an 18-year old,” and because the statute did not require that the defendant knew, or reasonably should have known, that the acts were directed at a child
- recognizing that “a crime may qualify as one of moral turpitude even if the offense is malum prohibitum or does not require the prosecution to A.2d 932, aff’d, 511 A.2d 1047 (1986) (en banc
- holding that petitioner’s conviction for annoying or molesting a child under 18 years of age did not constitute a “crime involving moral turpitude” or an aggravated felony under the categorical approach
- holding that the misdemeanor of annoying or molesting a child under the age of 18 years is not categorically a crime involving moral turpitude
Written by the judges who cited it.
Later courts went against this
Overruled on other grounds by Marmolejo-Campos v. Holder, 558 F.3d 903 (2009)
523 F.3d 992, 1005 (9th Cir. 2008), overruled on other grounds by Marmolejo‐Campos v. Holder, 558 F.3d 903
The opinion
PREGERSON, Circuit Judge,
specially concurring:
Our decision in this case is constrained by a meager record. All the record tells us is that Nicanor-Romero was convicted of violating § 647.6(a), a broadly written statute that provides, “Every person who annoys or molests any child under the age of 18 shall be punished by a fine ... by imprisonment in a county jail not exceeding one year, or by both fine and imprisonment.” Cal. Pen.Code § 647.6(a) (West 2005). We also know that Nicanor-Rome-ro was sentenced to 163-days in prison and was ordered to register as a sex offender. But the record does not tell us what Nicanor-Romero actually did to violate § 647.6(a). In fact, we have no knowledge of the factual circumstances that led to Nicanor-Romero’s misdemeanor conviction under § 647.6(a).
Like Judge Fletcher, I conclude that there is a “realistic probability, not a theoretical possibility,” that a misdemeanor conviction under § 647.6(a) can be based on behavior that, While criminal, does not rise to the level of a “crime involving moral turpitude” within the meaning of 8 U.S.C. § 1227 (a)(2)(A)(i)(I). Section 647.6(a) encompasses behavior that is not morally turpitudinous and, consequently, I cannot conclude, given the meager record before us, that Nicanor-Romero’s violation of § 647.6(a) is a crime involving moral turpitude. I therefore join Judge Fletcher in refusing to hold that every violation of § 647.6(a) constitutes a crime of moral turpitude regardless of its factual circumstances.
I disagree, however, with Judge Fletcher’s reliance on People v. Villareal, 2003 WL 21153430 (Cal.Ct.App. May 20, 2003). In that case, Villareal, who was driving a pick-up truck, “stopped to talk to a 13-year old girl who was walking alone on an isolated street.” Id. at * 2 . “[Motivated by [his] sexual interest” in the young girl, Villareal referred to “a local ‘make out’ spot and to seeing stars.” Id. The girl believed these comments “were sexual in nature” and noted that Villareal was “smirking” at her. Id. She felt “scared and violated.” Id. at * 1 . She began to walk and then to run away. Id. Villareal followed her in his pick-up truck, even after she refused his offer to give her a ride. Id. He then turned the corner and drove away. Id. I am firmly convinced that Villareal’s actions constituted a crime of moral turpitude. His behavior was indeed the sort of “conduct that shocks the public conscience as being inherently base, vile, or depraved, contrary to the rules of morality and the duties owed between man and man, either one’s fellow man or society in general.” Matter of Short, 20 I. & N. Dec. 136, 139 (BIA 1989). Without relying on Villareal , I reject the dissent’s suggestion that a violation of § 647.6(a) is per se a crime of moral turpitude. Accordingly, I join Judge Fletcher in granting the petition and vacating the order of removal.