Malta-Espinoza v. Gonzales ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FERNANDO MALTA-ESPINOZA,  No. 04-71140
Petitioner,
Agency No.
v.
 A92-717-834
ALBERTO R. GONZALES, Attorney
ORDER AND
General,
OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
June 15, 2005—San Francisco, California
Filed March 2, 2007
Before: Mary M. Schroeder, Chief Circuit Judge,
William C. Canby, Jr., Circuit Judge, and
Kevin Thomas Duffy,* District Judge.
Opinion by Judge Canby;
Dissent by Judge Duffy
*The Honorable Kevin Thomas Duffy, Senior United States District
Judge for the Southern District of New York, sitting by designation.
2387
2390 MALTA-ESPINOZA v. GONZALES
COUNSEL
Lory D. Rosenberg, IDEA Immigration Defense & Expert
Assistance Consultation, Darnestown, Maryland, for the peti-
tioner.
William C. Erb, Jr., Office of Immigration Litigation, Civil
Division, Department of Justice, Washington, DC, for the
respondent.
Paul C. Workman, Holland & Knight, Los Angeles, Califor-
nia, for the amicus curiae.
ORDER
The petition for panel rehearing is GRANTED. The memo-
randum disposition filed on June 30, 2005, 137 Fed. Appx.
985, is withdrawn and is replaced by an opinion and dissent
filed contemporaneously with this order.
The petition for rehearing en banc is dismissed as moot.
OPINION
CANBY, Circuit Judge:
Fernando Malta-Espinoza, a native and citizen of Mexico
who is a permanent resident of the United States, petitions for
review of an order of the Board of Immigration Appeals
(“BIA”) holding that Malta-Espinoza’s state-law conviction
for stalking rendered him removable under 8 U.S.C.
MALTA-ESPINOZA v. GONZALES 2391
§ 1227(a)(2)(A)(iii), as an alien convicted of an aggravated
felony. Reviewing de novo, Reyes-Alcaraz v. Ashcroft, 363
F.3d 937, 939 (9th Cir. 2004), we grant the petition for
review, reverse the decision of the BIA, and remand for fur-
ther proceedings.
DISCUSSION
Malta-Espinoza is removable if stalking, as defined by Cal-
ifornia Penal Code § 646.9, qualifies as an aggravated felony
by reason of being a “crime of violence.” 8 U.S.C. §§ 1227(a)
(2)(A)(iii), 1101(a)(43)(F).1 In addition, if Malta-Espinoza’s
conviction qualifies as an aggravated felony, it renders him
statutorily ineligible for discretionary cancellation of removal.
8 U.S.C. § 1229b(a)(3).
[1] The Immigration Act, 8 U.S.C. § 1101(43)(F), defines
“aggravated felony” to include “crimes of violence” as
defined in 18 U.S.C. § 16, which provides:
The term “crime of violence” means —
(a) an offense that has as an element the use,
attempted use, or threatened use of physical force
against the person or property of another, or
(b) any other offense that is a felony and that, by its
nature, involves a substantial risk that physical force
against the person or property of another may be
used in the course of committing the offense.
At the time of Malta-Espinoza’s offense, the California statute
that he was convicted of violating provided in pertinent part:
1
The Immigration Judge also found that Malta-Espinoza was removable
under 8 U.S.C. § 1227(a)(2)(E) by reason of his conviction for stalking.
The BIA did not reach that question on appeal, and relied only on the
ground that Malta-Espinoza’s conviction was for a crime of violence,
qualifying as an aggravated felony under § 1227(a)(2)(A)(iii).
2392 MALTA-ESPINOZA v. GONZALES
(a) Any person who willfully, maliciously, and
repeatedly follows or harasses another person and
who makes a credible threat with the intent to place
that person in reasonable fear for his or her safety,
or the safety of his or her immediate family, is guilty
of the crime of stalking . . . .
Cal. Penal Code § 646.9.2 The issue, then, is whether this
crime falls within the definition of “crime of violence” set
forth in 18 U.S.C. § 16. In determining that question, we first
apply the categorical approach to determine whether the “full
range of conduct” covered by the California statute falls
within the meaning of “crime of violence.” See Chang v. INS,
307 F.3d 1185, 1189 (9th Cir. 2002). If it does not, we then
proceed to a modified categorical approach in which we can
conduct a “limited examination of documents in the record of
conviction” to determine whether Malta-Espinoza was con-
victed of the necessary elements constituting a crime of vio-
lence. See id. “We do not, however, look to the particular
facts underlying the conviction.” Sareang Ye v. INS, 214 F.3d
1128, 1133 (9th Cir. 2000).
The BIA took note of our decision in United States v.
Jones, 231 F.3d 508 (9th Cir. 2000), which held that, for pur-
poses of the federal Sentencing Guidelines, a conviction for
violation of the California stalking statute was not a crime of
violence by reason of its element of threat, because under Cal-
ifornia law the requisite threat to safety did not mean only
physical safety. Id. at 519-20 (citing People v. Borelli, 77 Cal.
App. 4th 703, 719-20 (2000)). The BIA accordingly declined
to apply 18 U.S.C. § 16(a) to the California stalking statute
and focused instead on the question of “substantial risk”
under § 16(b).
2
The California statute also provided that, if the stalking was done in
violation of a restraining order, the penalty was imprisonment for two,
three, or four years. Cal. Penal Code § 646.9(b). Malta-Espinoza was
charged under this enhancing section.
MALTA-ESPINOZA v. GONZALES 2393
[2] The BIA next stated that the California statute prohib-
ited following or harassing another person, and that Malta-
Espinoza’s conviction was for harassing, not following. It is
not clear what evidence led the BIA to that conclusion. The
administrative record contains only the felony complaint and
the entry of conviction on a plea of guilty. The felony com-
plaint on the stalking charge alleged that Malta-Espinoza “did
maliciously and repeatedly follow and harass Alma Esposito,
and made a credible threat with the intent that she be placed
in reasonable fear for her safety and the safety of her family.”
Nothing in these minimal documents indicates whether Malta-
Espinoza was guilty of following or harassing or both.
Although the complaint alleged following and harassing con-
junctively, the statute proscribes following or harassing. Cal.
Penal Code § 646.9(a). It is common to charge conjunctively
when an underlying statute proscribes more than one act dis-
junctively; such a charge permits conviction upon proof that
the defendant committed either of the conjunctively charged
acts. See, e.g., United States v. Bonanno, 852 F.2d 434, 441
(9th Cir. 1988) (“Where a statute specifies two or more ways
in which an offense may be committed, all may be alleged in
the conjunctive in one count and proof of any one of those
acts conjunctively charged may establish guilt.”). All that we
can gather from the charge and the bare record of a plea of
guilty, therefore, is that Malta-Espinoza was guilty of either
following or harassing or both.3 This fact need not affect our
3
The dissent argues that Malta-Espinoza’s plea admitted both harassing
and following by pleading guilty to the charge that alleged both alternative
elements conjunctively. But a plea of guilty admits only the elements of
the charge necessary for a conviction. See United States v. Cazares, 121
F.3d 1241, 1247 (9th Cir. 1997). All that was necessary for conviction was
that Malta-Espinoza either harassed or followed (with the necessary intent,
threat and effect on the victim). His plea of guilty should not establish
more than would have been established by a jury verdict of guilty on the
charge. See id.We also note that the BIA affirmed on the theory that Malta-Espinoza’s
conviction was for harassing, not following. We cannot uphold the deci-
sion of the BIA, an administrative agency, on a theory other than the one
upon which it relied. See SEC v. Chenery Corp., 318 U.S. 80, 87 (1943).
2394 MALTA-ESPINOZA v. GONZALES
analysis, however, because under a categorical approach we
must determine whether the “full range of conduct” covered
by the statute falls within the definition of “crime of vio-
lence.” See Chang, 307 F.3d at 1189.4 On this record, Malta-
Espinoza may have been guilty of harassing only, as the BIA
assumed. If his conviction for harassing does not qualify as a
crime of violence, the BIA’s decision cannot stand. We there-
fore turn to that question.
The BIA concluded that the conviction for harassing met
the definition of 18 U.S.C. § 16(b) as involving “a substantial
risk that physical force against the person or property of
another may be used in the course of committing the offense.”
The BIA reasoned that this risk existed because the California
statute requires that the harassment be accompanied by a
“credible threat with intent to place that person in reasonable
fear for his or her safety,” § 646.9(a), through a course of con-
duct that “seriously alarms, annoys, torments, or terrorizes the
person” and “would cause a reasonable person to suffer sub-
stantial emotional distress.” § 646.9(e).5 Such a combination,
the BIA held, creates a “substantial risk that physical force
may be used, at least recklessly, over the duration of the com-
mission of the crime.”
We conclude that this formulation is an incorrect applica-
tion of the categorical or modified categorical approach to the
determination of a crime of violence. It also runs afoul of our
recent en banc decision in Fernandez-Ruiz v. Gonzales, 466
F.3d 1121 (9th Cir. 2006) (en banc), of which the BIA did not
have the benefit at the time it decided.
4
Because the “full range of conduct” proscribed by the statute must
meet the test of violent crime, it is not sufficient that stalking often results
in violence, as the statistics cited by the dissent indicate. If some stalking
crimes include no substantial risk of violence, the test described by Chang
is not met.
5
The requirement of emotional distress was removed by the 2002
amendments to § 646.9, but was in effect at the time of Malta-Espinoza’s
offense.
MALTA-ESPINOZA v. GONZALES 2395
[3] Harassing can involve conduct of which it is impossible
to say that there is a substantial risk of applying physical force
to the person or property of another, as § 16(b) requires. It is
true that the California stalking statute requires a credible
threat, but “[i]t is not necessary to prove that the defendant
had the intent to actually carry out the threat,” and even “pres-
ent incarceration of a person making the threat shall not be a
bar to prosecution.” § 646.9(g). Stalking under California law
may be conducted entirely by sending letters and pictures.
People v. Falck, 52 Cal. App. 4th 287, 297-98 (1997). Indeed,
a stalking conviction has been upheld even though the victim
was out of the country at the time that the harassing conduct
occurred. People v. Norman, 75 Cal. App. 4th 1234, 1240-41
(1999). The bare complaint and plea of guilty in Malta-
Espinoza’s case therefore establishes categorically no more
than the possibility that Malta-Espinoza engaged in such long-
distance harassing, which created no substantial risk of appli-
cation of physical force against his victim or her property. See
Shepard v. United States, 544 U.S. 13, 24 (2005) (under mod-
ified categorical approach, a sentencing court can consider
only facts that are necessarily admitted in the plea); United
States v. Wenner, 351 F.3d 969, 974 (9th Cir. 2003) (under
modified categorical approach, an information alone cannot
determine the elements of a conviction). On this record, there-
fore, the government has not sustained its burden of establish-
ing that Malta-Espinoza was convicted of a crime of violence.
See United States v. Navidad-Marcos, 367 F.3d 903, 908 (9th
Cir. 2004) (under modified categorical approach, the govern-
ment must establish clearly and unequivocally that the convic-
tion was based on all of the elements of a qualifying offense).
The fact that harassing may include conduct carried on only
at a long distance from the victim differentiates stalking from
the example of burglary, upon which the BIA relied. “Any
time a burglar enters a dwelling with felonious or larcenous
intent there is a risk that in the course of committing the crime
he will encounter one of its lawful occupants, and use physi-
cal force against that occupant either to accomplish his illegal
2396 MALTA-ESPINOZA v. GONZALES
purpose or to escape apprehension.” United States v. Becker,
919 F.2d 568, 571 (9th Cir. 1990). Harassment by mail or
telephone simply does not carry the same substantial risk. It
is true that the California statute at the time of Malta-
Espinoza’s offense required that the accompanying threat
cause “substantial emotional distress” to the victim, but emo-
tional distress is not the equivalent of the use of physical force
against the victim, which is the substantial risk required by
§ 16(b). Moreover, mere harm to the victim is not sufficient
under § 16(b); the statute requires use of force against the vic-
tim in the course of committing the crime. See Leocal v. Ash-
croft, 543 U.S 1, 10 (2004) (stating that risk referred to in
§ 16(b) is not merely “the possibility that harm will result
from a person’s conduct, but to the risk that the use of physi-
cal force against another might be required in committing a
crime.”).
Finally, we note that the BIA found that the substantial risk
that inhered in a violation of California’s stalking statute was
a substantial risk that physical force against the person or
property of another will be used “at least recklessly.” The
Supreme Court in Leocal (which was decided after the BIA’s
decision) left open the question whether force used recklessly
qualified for a crime of violence under § 16(b). Id. at 13. In
a recent en banc decision, however, our court has ruled that
reckless use of force is not sufficient to support a finding of
commission of a crime of violence within the meaning of
§ 16(b). Fernandez-Ruiz v. Gonzales, 466 F.3d 1121, 1129-31
(9th Cir. 2006) (en banc); see also United States v. Nobriga,
No. 04-10169, 2006 WL 3821413, *2-3 (9th Cir. Dec. 29,
2006)(holding that plea of guilty to physical abuse of family
member did not establish conviction for crime of violence
when physical abuse may be committed by recklessness). For
this reason, as well, the decision of the BIA cannot stand.
CONCLUSION
[4] On the basis of the charging document and Malta-
Espinoza’s bare plea of guilty, which are the only relevant
MALTA-ESPINOZA v. GONZALES 2397
documents in the administrative record, we conclude that
Malta-Espinoza’s conviction for stalking under Cal. Penal
Code § 646.9(a) does not qualify as a crime of violence within
the meaning of 18 U.S.C. § 16(b). The BIA accordingly erred
in ruling that Malta-Espinoza was removable on that ground.
The Immigration Judge held that Malta-Espinoza was also
removable under 8 U.S.C. § 1227(a)(2)(E), which specifically
makes a conviction for stalking a ground of removal. The BIA
did not reach that issue, and neither do we. Our conclusion
that Malta-Espinoza’s conviction for stalking does not qualify
as an aggravated felony, however, necessarily invalidates the
ruling of the Immigration Judge that Malta-Espinoza is statu-
torily ineligible for cancellation of removal. Further proceed-
ings are therefore necessary in that regard as well.
The petition for review is granted. We reverse the decision
of the BIA and remand for further proceedings consistent with
this opinion.
PETITION FOR REVIEW GRANTED; REVERSED;
CASE REMANDED.
DUFFY, District Judge, dissenting:
The majority has reconsidered its earlier decision and holds
that the record before us does not establish that Malta-
Espinoza pleaded guilty to conduct constituting a crime of
violence, as defined by 18 U.S.C. § 16, when he pleaded
guilty to stalking his female victim, Ms. Alma Espisito. In so
holding, the majority has essentially decided that courts can-
not rely on the words of a defendant’s guilty plea to mean
exactly what they say. I respectfully dissent.
The Amended Felony Complaint against Malta-Espinoza
charged, among of other things, that while under a prior
restraining order prohibiting such conduct, Malta-Espinoza:
2398 MALTA-ESPINOZA v. GONZALES
Maliciously and repeatedly follow[ed] and harass-
[ed] ALMA ESPISITO, and made a credible threat
with the intent that she be placed in reasonable fear
for her safety and the safety of her immediate family.
(Record on Appeal at 126)(emphasis added). This was the
only count in the Amended Felony Complaint to which
Malta-Espinoza pleaded guilty. The other counts were dis-
missed pursuant to his plea deal with the Government. An
Abstract of the Judgment reflects the terms of his guilty plea.
The majority holds that these documents, considered together,
are not enough to establish that Malta-Espinoza both followed
and harassed Ms. Espisito. Instead, they have found that when
a defendant pleads guilty to a count he does not actually admit
to the facts contained therein. They have in effect substituted
their own findings of fact for those set forth in the record.
Defendants do not plead guilty to more than they must. It
goes against well-established precedent to hold that a plea of
guilty is not an admission to all of the facts contained in the
charge. See United States v. Harris, 108 F.3d 1107, 1109 (9th
Cir. 1997) (citing United States v. Mathews, 833 F.2d 161,
164 (9th Cir. 1987)(“a guilty plea conclusively proves the fac-
tual allegations contained in the indictment”)); see also
United States v. Velasco-Medina, 305 F.3d 839, 851-53 (9th
Cir. 2002)(holding an Abstract of the Judgment and the charg-
ing papers, considered together, were sufficient to prove the
facts alleged). The majority holds that this is not the case
when the charge is phrased conjunctively. The authority the
majority cites, however, is clearly distinguishable. The major-
ity relies on United States v. Bonanno, 852 F.2d 434, 441 (9th
Cir. 1988), which holds that where a statute specifies two or
more ways in which an offense may be committed, all may be
alleged in the conjunctive in one count and a jury’s finding of
proof of any one of those acts is sufficient to find guilt. This
is different than a guilty plea, which is an “admission that [the
defendant] committed the crime charged against him.” United
States v. Broce, 488 U.S. 563, 570 (1989)(citations omitted).
MALTA-ESPINOZA v. GONZALES 2399
By entering a plea of guilty, the accused is stating that he did
the discrete acts described in the indictment and is admitting
guilt of a substantive crime. See id. Because of the clear dif-
ference and its import, I cannot agree with the majority.1
It is then necessary to determine if stalking by maliciously
and repeatedly following and harassing a person, and making
a credible threat with the intent that the person be placed in
reasonable fear for her safety and the safety of her immediate
family while a prior restraining order prohibiting such con-
duct is a crime of violence under 18 U.S.C. § 16(b).2
Subsection 16(b) defines a crime of violence as:
(b) any other offense that is a felony and that, by its
nature, involves a substantial risk that physical force
against the person or property of another may be
used in the course of committing the offense.
18 U.S.C. § 16(b)(emphasis added). The majority’s analysis
considers both the categorical and modified categorical
approach. While the parties have agreed that stalking is not a
1
The Board of Immigrations Appeals (the “BIA”) examined the record
of conviction and found that Malta-Espinoza was harassing Ms. Espisito,
rather than following her. (Record on Appeal at 8.) The BIA did not iden-
tify the basis for its finding of fact. It may have reached this conclusion
based on police reports presented to the immigration judge. Those police
reports are not a part of this Court’s consideration. This is of no conse-
quence. The BIA’s finding does not change this analysis. Surely, if Malta-
Espinoza’s harassing conduct alone was sufficient to convince the BIA of
the risk violence, the BIA’s acknowledgment of his admission to follow-
ing Ms. Espisito could only have supported its ultimate conclusion.
2
Subsection 16(a) of Title 18 of the United States Code is not relevant
to this case. It states:
The term “crime of violence” means—
(a) an offense that has an element the use, attempted use, or
threatened use of physical force against the person or property of
another . . . .
2400 MALTA-ESPINOZA v. GONZALES
crime of violence under the categorical approach, consider-
ation of that approach is instructive when applying the modi-
fied categorical approach—particularly in light of the logic set
forth in United States v. Becker, 919 F.2d 568, 573 (9th Cir.
1990) (holding residential burglaries are categorically crimes
of violence because “[t]he confluence of common sense and
precedent lead to the conclusion that the unauthorized day-
time entry of the dwelling of another with the intent to com-
mit a larceny or any felony carries with it a substantial risk
that force will be used against the person or property of anoth-
er”).
In Becker, and the cases that follow it, this Circuit rightly
considered the “substantial risk” requirement set forth in
§ 16(b). The Becker court did not require an absolute certainty
of physical force, as the majority seems to require here. Even
though physical force is not a necessary element of residential
burglary, “[a]ny time a burglar enters a dwelling . . . there is
a risk that in the course of committing the crime he will
encounter one of its lawful occupants, and use physical force
against that occupant . . . .” Becker, 919 F.2d at 571; see also
United States v. M.C.E., 232 F.3d 1252, 1255-56 (9th Cir.
2000) (holding that under the categorical approach residential
burglary is a crime of violence because of the risk of a violent
confrontation).
The majority notes that stalking can occur at a distance and
implies that in those instances there is a small risk of physical
force being used against the victim. The same is true of bur-
glary. A burglar may enter an empty dwelling while its inhab-
itants are traveling far from home. In fact, it is generally the
intention of most burglars to enter undetected and remove
valuables without ever facing the occupants of the dwelling.
Stalking is a far more personal crime. The stalker often seeks
a sense of power or control over his victim, usually through
fear. See National Institute of Justice and Centers for Disease
Control and Prevention, Stalking in America: Findings From
the National Violence Against Women Survey, Research in
MALTA-ESPINOZA v. GONZALES 2401
Brief (April 1998) at 8; see also U.S. Dep’t of Justice, Stalk-
ing and Domestic Violence, Report to Congress (May 2001)
at 22 (stating, generally, the motive for stalking is not neces-
sarily sexual; stalkers are motivated by anger or hostility
towards the victim and a desire to control the victim). And,
because stalking, by definition, requires repeated victimiza-
tion, it is intuitive that there is an increased opportunity for
violence.
Research on stalking has found that violence against a per-
son occurs in 30-50% of stalking cases. See Barry Rosenfeld,
Violence Risk Factors in Stalking and Obsessional Harass-
ment, 31 CRIMINAL JUSTICE AND BEHAVIOR 9, 31 (2004) (per-
forming a meta-analysis of eight leading studies of stalking).
It is likely these figures actually underestimate the rate of vio-
lence associated with stalking because cases in which stalking
has turned violent are often identified solely by the more seri-
ous crime such as homicide, rape or assault. See id. at 11. The
National Center for Victims of Crime reports that “46% of
stalking victims experience one or more violent incidents by
the stalker.” National Center for Victims of Crime Stalking
Resource Center, Stalking Fact Sheet, http://www.ncvc.org/
src/AGP.Net/Components/DocumentViewer/Download.
aspxnz?DocumentID=40616 (last visited Jan. 26, 2006). In
addition to physically harming the victim, research has indi-
cated that approximately 29% of stalkers vandalize the vic-
tim’s property, and 9% of stalkers kill or threaten to kill the
victim’s family pets. See U.S. Dep’t of Justice, Stalking and
Domestic Violence, Report to Congress (May 2001) at 22.
In California, the existence of a credible threat—whether
direct or implied through conduct—is an element of the crime
of stalking. See Cal. Penal Code § 646.9(a). Studies have con-
firmed that there is a positive association between the exis-
tence of such threats and a stalker’s eventual use of violence.
See Rosenfeld supra at 14-17. An analysis of six leading
studies on stalking has shown the making of threats to be the
second best indicator of a stalker’s potential to use violence
2402 MALTA-ESPINOZA v. GONZALES
in the future. See id. at 29-30. Because California does not
recognize individuals who are obsessive followers and harass-
ers to be stalkers unless they make credible threats, persons
who meet the statutory definition presumably already present
a greater risk of violence. As in this case, restraining orders
are often not an effective deterrent; 69% of women said the
stalker violated a restraining order. See National Center for
Victims of Crime Stalking Resource Center, Stalking Fact
Sheet, supra at 1.
The majority relies on the recent en banc decision,
Fernandez-Ruiz v. Gonzales, 466 F.3d 1121 (9th Cir.
2006)(en banc). This reliance is misplaced. Fernandez-Ruiz
holds that the reckless use of force is not sufficient to support
a finding of the commission of a crime of violence under 18
U.S.C. § 16(a). The opinion expressly declined to consider
§ 16(b), which is the only section of the statute at issue in this
case. See id. at 1125 n.6 (“Additionally, we need not consider
18 U.S.C. § 16(b) because Fernandez-Ruiz’s assault convic-
tions were both misdemeanors.”).
Malta-Espinoza pleaded guilty to repeatedly following and
harassing Ms. Espisito despite the existence of a restraining
order. He pleaded guilty to making a credible threat with the
intent to put her in fear for her safety and the safety of her
immediate family. The majority somehow reaches the conclu-
sion that they are unable to determine whether this created a
substantial risk of physical force against Ms. Espisito or her
property. They rest their conclusion on the “possibility that
Malta-Espinoza engaged in . . . long-distance harassing.” I
cannot agree. The judicially noticeable documents show that,
by repeatedly “following and harassing” Ms. Espisito, Malta-
Espinoza was, to some degree, in physical proximity to her.
Moreover, it is not without sad irony that I note the lack of
physical proximity of a stalker to his victim is not a reliable
indicator of the risk of violence. California’s stalking laws are
rooted in the case of a man who became obsessed with a
young actress living hundreds of miles away. He sent her
MALTA-ESPINOZA v. GONZALES 2403
items through the mail until one day he traveled to her home,
shot and killed her on her front step. See Gina Piccalo, The
Safety Zone; Stalker’s Prey Tells of Terror; Cases like News
Anchor Kelly Mack’s Show Police, Judges and Law Makers
are Taking the Crime of Stalking More Seriously, L.A. Times,
Dec. 4, 2000, at B6 (describing the stalking and murder of 21-
year-old actress Rebecca Schaeffer, the co-star of the sitcom
“My Sister Sam”).
I respectfully dissent.