United States v. Francisco Jimenez-Arzate ( 2015 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-50373
Plaintiff-Appellee,
D.C. No.
v. 3:12-cr-01421-LAB-1
FRANCISCO JIMENEZ-ARZATE,
Defendant-Appellant. ORDER AND
AMENDED
OPINION
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Argued and Submitted
November 19, 2014—Pasadena, California
Filed January 12, 2015
Amended March 30, 2015
Before: Andrew J. Kleinfeld and Kim McLane Wardlaw,
Circuit Judges, and Matthew F. Kennelly, District Judge.*
Order;
Per Curiam Opinion
*
The Honorable Matthew F. Kennelly, District Judge for the U.S.
District Court for the Northern District of Illinois, sitting by designation.
2 UNITED STATES V. JIMENEZ-ARZATE
SUMMARY**
Criminal Law
The panel amended an opinion, filed January 12, 2015,
affirming a sentence for illegal reentry after deportation;
denied a petition for panel rehearing; and denied on behalf of
the court a petition for rehearing en banc, in a case in which
the district court found that the defendant’s prior conviction
for violation of California Penal Code § 245(a)(1) is
categorically a crime of violence for federal sentencing
purposes.
The panel rejected the defendant’s contention that United
States v. Grajeda, 581 F.3d 1186 (9th Cir. 2009), which held
that a conviction under § 245(a)(1) is categorically a crime of
violence, is no longer good law in light of People v.
Aznavoleh, 148 Cal. Rptr. 3d 901 (Ct. App. 2012), and People
v. Wyatt, 229 P.3d 156 (Cal. 2010).
The panel held that Ceron v. Holder, 747 F.3d 773 (9th
Cir. 2014) (en banc), does not abrogate Grajeda. The panel
observed that Ceron, which addresses whether a § 245(a)(1)
conviction is categorically a crime of moral turpitude, does
not address the question of whether a § 245(a)(1) conviction
is categorically a crime of violence; and that Ceron, which
relied exclusively on the identical language from People v.
Williams, 29 P.3d 197 (Cal. 2001), that is quoted in Grajeda,
does not clearly indicate a different interpretation of the mens
rea requirement for § 245(a)(1) than that set forth in Grajeda.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. JIMENEZ-ARZATE 3
The panel held that there was justification for the district
court’s exercise of discretion in imposing supervised release.
COUNSEL
Vincent J. Brunkow (argued), Kara Lee Hartzler, Federal
Defenders of San Diego, Inc., San Diego, California, for
Defendant-Appellant.
Laura E. Duffy, United States Attorney, Bruce R. Castetter,
Assistant United States Attorney, Chief, Appellate Section,
Criminal Division, Andrew R. Haden (briefed), Assistant
United States Attorney, and Mark R. Rehe (argued), Andrew
R. Haden, United States Attorney’s Office, San Diego,
California, for Plaintiff-Appellee.
ORDER
The opinion filed on January 12, 2015, and appearing at
776 F.3d 662, is amended as follows:
On Opinion page 664, replace the paragraph beginning
“Ceron v. Holder, 747 F.3d 773 (9th Cir.2014) (en banc),
addresses the question” with the following:
Ceron v. Holder, 747 F.3d 773 (9th Cir.
2014) (en banc), does not abrogate Grajeda’s
holding that a conviction under § 245(a)(1) is
categorically a crime of violence. Grajeda,
581 F.3d at 1197. Ceron addresses the
question of whether a conviction under
California Penal Code § 245(a)(1) is
4 UNITED STATES V. JIMENEZ-ARZATE
categorically a crime of moral turpitude. It
does not address the question of whether a
conviction under § 245(a)(1) is categorically
a crime of violence. Furthermore, in Ceron,
we discussed the mens rea requirement for
§ 245(a)(1), relying exclusively on the
California Supreme Court’s opinion in
Williams, 29 P.3d at 202–03. Ceron, 747 F.3d
at 779, 784. However, the identical language
from Williams is also quoted in Grajeda. See
Grajeda, 581 F.3d at 1194. Accordingly,
Ceron does not clearly indicate a different
interpretation of the mens rea requirement for
§ 245(a)(1) than that set forth in Grajeda.
With the opinion thus amended, the panel has voted
unanimously to deny the petition for rehearing. Judge
Wardlaw has voted to deny the petition for rehearing en banc,
and Judges Kleinfeld and Kennelly recommended denial.
The full court has been advised of the petition for
rehearing and no active judge of the court has requested a
vote on whether to rehear the matter en banc. Fed. R. App. P.
35.
The petition for rehearing and petition for rehearing en
banc is DENIED. No further petitions for rehearing or
petitions for rehearing en banc will be entertained.
UNITED STATES V. JIMENEZ-ARZATE 5
OPINION
PER CURIAM:
Francisco Jimenez-Arzate pleaded guilty to having
illegally re-entered the United States after having previously
been deported. The district court sentenced him to 34 months
in prison and three years of supervised release. He timely
appeals his sentence.
Jimenez-Arzate argues that the district court erred in
finding that his prior conviction for violation of California
Penal Code § 245(a)(1) is categorically a crime of violence
for federal sentencing purposes. He contends that United
States v. Grajeda, 581 F.3d 1186 (9th Cir. 2009), is no longer
good law in light of People v. Aznavoleh, 148 Cal. Rptr. 3d
901 (Ct. App. 2012), and People v. Wyatt, 229 P.3d 156 (Cal.
2010). Jimenez-Arzate also argues that Ceron v. Holder,
747 F.3d 773 (9th Cir. 2014) (en banc), abrogates Grajeda.
We disagree. Aznavoleh involved a defendant who
intentionally ran a red light while racing another car down the
street even though he saw a car entering the intersection on
the green. People v. Aznavoleh, 148 Cal. Rptr. 3d 901, 905,
908 (Ct. App. 2012). The defendant made no effort to stop
despite a passenger warning him that he needed to stop. Id.
at 904. The California Court of Appeal upheld the trial
court’s finding that the defendant met the willfulness element
of assault under California Penal Code § 245(a)(1), which the
California Court of Appeal defined as intentionality. Id. at
906.
Wyatt involved a father who, while play wrestling with
his infant son, struck the boy with such force that he killed
6 UNITED STATES V. JIMENEZ-ARZATE
him. People v. Wyatt, 229 P.3d 156, 157 (Cal. 2010). The
Wyatt court upheld the father’s conviction for involuntary
manslaughter and assault on a child causing death because
“substantial evidence established that defendant knew he was
striking his young son with his fist, forearm, knee, and elbow,
and that he used an amount of force a reasonable person
would realize was likely to result in great bodily injury.” Id.
As did the California Court of Appeal in Aznavoleh, the
California Supreme Court in Wyatt explained that “a
defendant guilty of assault must be aware of the facts that
would lead a reasonable person to realize that a battery would
directly, naturally and probably result from his conduct. He
may not be convicted based on facts he did not know but
should have known.” Id. at 159 (quoting People v. Williams,
29 P.3d 197, 203 (Cal. 2001)).
Contrary to Jimenez-Arzate’s argument, Aznavoleh did
not hold that an automobile accident stemming from merely
reckless driving may result in a conviction under § 245(a)(1).
The defendant in Aznavoleh engaged in street racing,
heedlessly disregarding a perceived likelihood of death or
grave injury to others. Likewise, in Wyatt, a reasonable
person would have recognized the dangers of striking a child
with the deadly force used, even if the defendant was not
subjectively aware of the risks of his “play wrestling” with
the child in that manner.
Ceron v. Holder, 747 F.3d 773 (9th Cir. 2014) (en banc),
does not abrogate Grajeda’s holding that a conviction under
§ 245(a)(1) is categorically a crime of violence. Grajeda,
581 F.3d at 1197. Ceron addresses the question of whether
a conviction under California Penal Code § 245(a)(1) is
categorically a crime of moral turpitude. It does not address
the question of whether a conviction under § 245(a)(1) is
UNITED STATES V. JIMENEZ-ARZATE 7
categorically a crime of violence. Furthermore, in Ceron, we
discussed the mens rea requirement for § 245(a)(1), relying
exclusively on the California Supreme Court’s opinion in
Williams, 29 P.3d at 202–03. Ceron, 747 F.3d at 779, 784.
However, the identical language from Williams is also quoted
in Grajeda. See Grajeda, 581 F.3d at 1194. Accordingly,
Ceron does not clearly indicate a different interpretation of
the mens rea requirement for § 245(a)(1) than that set forth in
Grajeda.
Jimenez-Arzate also argues that the district court abused
its discretion in imposing a term of supervised release
because he would be deported as an illegal alien upon his
release. Here, the district court made an individualized
finding that supervised release was warranted because of
Jimenez-Arzate’s consistent history of sneaking back into the
United States after deportation. The district court specifically
noted that Jimenez-Arzate had previously been deported three
times and that “[t]he three wags of fingers in his face saying
‘stay out, stay out or you’re going to be subject to
prosecution’ didn’t do any good.” The district judge also
noted that he “can’t trust [Jimenez-Arzate’s] assurance he’s
not going to come back” because “[h]e probably gave that
assurance on three prior occasions, and yet he’s back again
committing crimes.” The district judge concluded that
supervised release was necessary to protect the public and
deter Jimenez-Arzate from returning to the United States.
There was justification for the district court’s exercise of
discretion in imposing supervised release.
AFFIRMED.