Longinos Togonon v. Merrick Garland ( 2022 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LONGINOS CADENA TOGONON, No. 19-71693
Petitioner,
Agency No.
v. A062-970-937
MERRICK B. GARLAND, Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted November 16, 2021
San Francisco, California
Filed January 10, 2022
Before: Richard A. Paez, Paul J. Watford, and
Michelle T. Friedland, Circuit Judges.
Opinion by Judge Watford
2 TOGONON V. GARLAND
SUMMARY *
Immigration
Granting Longinos Togonon’s petition for review of a
decision of the Board of Immigration Appeals, the panel held
that arson in violation of California Penal Code § 451 is not
a categorical match to its federal counterpart, 18 U.S.C.
§ 844(i), and therefore, Togonon’s § 451(b) conviction was
not an aggravated felony that rendered him removable.
The BIA concluded that Togonon’s conviction was an
aggravated felony under 8 U.S.C. § 1101(a)(43)(E)(i), which
defines the term “aggravated felony” to include “an offense
described in” 18 U.S.C. § 844(i). As relevant here, § 844(i)
prohibits “maliciously” damaging or destroying, by means
of fire or an explosive, certain real or personal property.
The case turned on § 844(i)’s requirement that the
defendant act “maliciously.” Because the statute does not
define that term, the panel presumed that Congress intended
to adopt the term’s established common law meaning.
Joining the circuits to have addressed the issue, the panel
held that a defendant acts “maliciously” if he either
intentionally damages or destroys property covered by
§ 844(i) or acts with “willful disregard” of the likelihood that
damage or injury would result from his or her acts. The
panel also explained that acting with “willful disregard”
requires that a defendant be subjectively aware of the risk
that his actions will damage or destroy property and take the
actions nonetheless.
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
TOGONON V. GARLAND 3
Under California law, a “person is guilty of arson when
he or she willfully and maliciously sets fire to or burns or
causes to be burned or who aids, counsels, or procures the
burning of, any structure, forest land, or property.” Cal.
Penal Code § 451. Subsection (b), the provision under
which Togonon was convicted, prohibits arson that “causes
an inhabited structure or inhabited property to burn.”
Although both the federal and state statutes require the
defendant to act “maliciously,” the panel explained that
California courts have interpreted that term in § 451 to
criminalize a broader range of conduct than § 844(i) does.
To be convicted under the federal statute, a defendant need
not have intended to damage or destroy property covered by
the statute, but he must at least have engaged in an
intentional act that resulted in damage to or destruction of
such property, and in doing so, must have been subjectively
aware of the risk that his actions would result in that harm.
By contrast, a defendant may be convicted under the
California statute for engaging in an intentional act that
results in the burning of an inhabited structure or property
even if he was not subjectively aware of the risk that his
actions would result in that harm. Thus, the panel concluded
that the California statute is not a categorical match to its
federal counterpart.
The panel also concluded that its interpretation was not
foreclosed by the court’s decision in United States v. Doe,
136 F.3d 631 (9th Cir. 1998). The panel explained that Doe
involved a defendant engaged in the actus reus of the offense
intentionally and did not speak to the issue here – namely,
the mental state that must be shown when a defendant does
not intentionally engage in conduct prohibited by the statute,
but rather intentionally engages in an action that causes the
effect prohibited by the statute.
4 TOGONON V. GARLAND
COUNSEL
Matthew N. Ball (argued), Gibson Dunn & Crutcher LLP,
Denver, Colorado; Paul J. Collins, Gibson Dunn & Crutcher
LLP, Palo Alto, California; Andrew T. Brown and Matt
Aiden Getz, Gibson Dunn & Crutcher LLP, Los Angeles,
California; for Petitioner.
Imran Zaidi (argued) and Joseph D. Hardy, Trial Attorneys;
Anthony C. Payne, Assistant Director; Civil Division,
United States Department of Justice, Washington, D.C.; for
Respondent.
OPINION
WATFORD, Circuit Judge:
Petitioner Longinos Togonon, a native and citizen of the
Philippines, was admitted to the United States as a lawful
permanent resident in 2013. In 2015, he was convicted of
arson in violation of California Penal Code § 451(b) and
sentenced to three years of imprisonment. In 2018, the
Department of Homeland Security initiated removal
proceedings against Togonon, alleging (as relevant for our
purposes) that his arson offense qualifies as an “aggravated
felony.” See 8 U.S.C. § 1227(a)(2)(A)(iii) (“Any alien who
is convicted of an aggravated felony at any time after
admission is deportable.”). The Immigration and
Nationality Act defines the term “aggravated felony” to
include “an offense described in” 18 U.S.C. § 844(i).
8 U.S.C. § 1101(a)(43)(E)(i). The Board of Immigration
Appeals (BIA) held that a conviction under California Penal
Code § 451(b) is an offense described in 18 U.S.C. § 844(i)
and that Togonon is therefore subject to removal from the
TOGONON V. GARLAND 5
United States. Reviewing that decision de novo, see
Sandoval v. Sessions, 866 F.3d 986, 988 (9th Cir. 2017), we
conclude that the BIA erred in so holding. We accordingly
grant Togonon’s petition for review.
To determine whether a state offense is “described in”
18 U.S.C. § 844(i), we employ the categorical approach.
Under that approach, we compare the elements of the state
offense with the elements of the offense proscribed by
§ 844(i). If the state offense “criminalizes a broader range
of conduct” than its federal counterpart, United States v.
Edling, 895 F.3d 1153, 1155 (9th Cir. 2018), the state
offense is not a categorical match and does not qualify as an
aggravated felony.
The elements of the offense proscribed by § 844(i) are
readily discernible from the text of the provision. Under
§ 844(i), anyone who “maliciously damages or destroys, or
attempts to damage or destroy, by means of fire or an
explosive, any building, vehicle, or other real or personal
property used in interstate or foreign commerce or in any
activity affecting interstate or foreign commerce” shall be
punished according to law. Thus, to obtain a conviction,
“the government must prove that the defendant:
(1) maliciously; (2) damaged or destroyed a building,
vehicle, or other real or personal property; (3) by means of
fire or explosive; and (4) the building, vehicle, or personal
or real property was used in interstate or foreign commerce
or in any activity affecting interstate or foreign commerce.”
United States v. Gullett, 75 F.3d 941, 947 (4th Cir. 1996). In
conducting our analysis, we ignore the jurisdictional element
(requiring a nexus to interstate or foreign commerce) and
focus solely on the three substantive elements of the crime.
Luna Torres v. Lynch, 578 U.S. 452, 473 (2016).
6 TOGONON V. GARLAND
This case turns on the first element, which requires that
the defendant act “maliciously.” Because the statute does
not define “maliciously,” we presume that Congress
intended to adopt the term’s established common law
meaning. See United States v. Jones, 681 F.2d 610, 611 (9th
Cir. 1982). At common law, a defendant committed arson
(the closest common law analogue of § 844(i)) by
maliciously burning the dwelling house of another. 3 Wayne
R. LaFave, Substantive Criminal Law § 21.3, at 314 (3d ed.
2018). A defendant acted maliciously by intentionally
burning the dwelling house of another or by doing so
wantonly, meaning “intentionally doing an act (e.g., starting
a fire or burning his own premises) under circumstances in
which the act created a very high risk of burning the dwelling
house of another, where the actor knew of that risk but
nonetheless engaged in the risk-taking act.” Id. § 21.3(e),
at 329–30; see also Rollin M. Perkins & Ronald N. Boyce,
Criminal Law 859–60 (3d ed. 1982); John Poulos, The
Metamorphosis of the Law of Arson, 51 Mo. L. Rev. 295,
322 (1986).
Every circuit to address the issue has borrowed the
common law meaning of “maliciously” when defining the
mens rea element of § 844(i). We join these courts in
holding that a defendant acts “maliciously” if he either
intentionally damages or destroys property covered by
§ 844(i) or acts “with willful disregard of the likelihood that
damage or injury would result from his or her acts.” Gullett,
75 F.3d at 948; accord United States v. Grady, 746 F.3d 846,
848–49 (7th Cir. 2014); United States v. Wiktor, 146 F.3d
815, 818 (10th Cir. 1998) (per curiam); United States v.
Corona, 108 F.3d 565, 571 (5th Cir. 1997); see also
McFadden v. United States, 814 F.2d 144, 146 (3d Cir.
1987) (interpreting the same mens rea requirement in
18 U.S.C. § 844(f)). To act with “willful disregard,” the
TOGONON V. GARLAND 7
defendant must be subjectively aware of the risk that his
actions will damage or destroy property and take the actions
nonetheless. See Corona, 108 F.3d at 571; Gullett, 75 F.3d
at 948.
We can turn now to the elements of arson under
California Penal Code § 451(b). California defines arson
generally as follows: “A person is guilty of arson when he
or she willfully and maliciously sets fire to or burns or causes
to be burned or who aids, counsels, or procures the burning
of, any structure, forest land, or property.” Cal. Penal Code
§ 451. Succeeding subsections specify different
punishments for the offense, depending on factors such as
the type of property burned. Subsection (b), the provision
under which Togonon was convicted, prohibits arson that
“causes an inhabited structure or inhabited property to burn.”
In comparing the elements of arson under California
Penal Code § 451(b) with the elements of 18 U.S.C. § 844(i),
we can begin and end our analysis with the mens rea
element. Although both statutes require the defendant to act
“maliciously,” California courts have interpreted that term
in California Penal Code § 451 to criminalize a broader
range of conduct than § 844(i) does.
The case most relevant for our analysis is the California
Supreme Court’s decision in In re V.V., 252 P.3d 979 (Cal.
2011). There, two teenagers ignited a firecracker and threw
it onto a brush-covered hillside, starting a fire that burned
five acres of forest land. Id. at 980–81. The evidence
established that the defendants intentionally ignited the
firecracker and threw it onto the hillside, but they had not
intended to burn forest land. Id. at 985. The California
Supreme Court upheld their juvenile adjudications under
California Penal Code § 451. The court concluded that
malice under § 451 requires only “a general intent to
8 TOGONON V. GARLAND
willfully commit the act of setting on fire under such
circumstances that the direct, natural, and highly probable
consequences would be the burning of the relevant structure
or property.” Id. at 984. The defendants in V.V. did not need
to “know or be subjectively aware that the fire [on the forest
property] would be the probable consequence of their acts.”
Id. at 985 (emphasis added). Instead, they could be
convicted so long as they were aware of facts that “would
lead a reasonable person to realize that the direct, natural,
and highly probable consequence of igniting and throwing a
firecracker into dry brush would be the burning of the
hillside.” Id.
The government disagrees with this reading of V.V.,
arguing that the defendants in that case were subjectively
aware of the risk that their actions would cause the burning
of forest land. We acknowledge the presence of language in
the opinion to support that view. See id. (“Although V.V.
and J.H. did not intend to set the hillside on fire, they knew
that their intentional acts created a fire hazard.”); id. at 985
n.4 (discussing how a third minor alerted the defendants to
the risk of injuring someone with the firecracker). But the
California Supreme Court nevertheless made clear, in the
passage quoted earlier, that subjective awareness of the risk
that forest land would be burned was not required for
conviction. Id. at 985. And California appellate courts have
interpreted V.V. in precisely that manner, upholding
convictions under California Penal Code § 451 without
requiring proof that the defendant was subjectively aware of
the risk of burning forest land or other property. See, e.g.,
Mason v. Superior Court, 195 Cal. Rptr. 3d 527, 538 (Ct.
App. 2015).
Given the way California courts have interpreted the
mens rea requirement of California Penal Code § 451, we
TOGONON V. GARLAND 9
conclude that Togonon’s conviction under § 451(b) does not
categorically match the offense proscribed by 18 U.S.C.
§ 844(i). As discussed above, to be convicted under
§ 844(i), a defendant need not have intended to damage or
destroy property covered by the statute. But he must at least
have engaged in an intentional act that resulted in damage to
or destruction of such property, and in doing so, he must
have been subjectively aware of the risk that his actions
would result in that harm. By contrast, a defendant may be
convicted under California Penal Code § 451(b) for
engaging in an intentional act that results in the burning of
an inhabited structure or property even if he was not
subjectively aware of the risk that his actions would result in
that harm. The California Supreme Court made that point
clear in V.V. when it held that the defendants “were not
required to know or be subjectively aware that the fire”—
that is, the burning of forest land—“would be the probable
consequence of their acts.” 252 P.3d at 985. Thus,
California Penal Code § 451(b) criminalizes a broader range
of conduct than is prohibited under 18 U.S.C. § 844(i) and
therefore is not a categorical match to its federal counterpart.
The only remaining issue is whether our interpretation of
the mens rea requirement of § 844(i)—under which the
defendant must at least be subjectively aware of the risk of
damaging or destroying property—is foreclosed by our
decision in United States v. Doe, 136 F.3d 631 (9th Cir.
1998). In Doe, the defendant was convicted under a different
statute, 18 U.S.C. § 81, which punishes anyone who, “within
the special maritime and territorial jurisdiction of the United
States, willfully and maliciously sets fire to or burns any
building, structure or vessel,” or certain types of personal
property. The defendant was a seventh-grade student who
intentionally set fire to a paper towel in a paper-towel
dispenser attached to a privacy partition in the girls’
10 TOGONON V. GARLAND
bathroom. 136 F.3d at 633–34, 636. She let the flame burn
for a moment and then blew it out, or so she thought. After
the defendant left the bathroom and returned to class, the
school building caught fire, causing extensive damage. Id.at 633–34.
Although it was undisputed that the defendant did not
intend to burn down the school building, our court upheld
her conviction. We concluded that the defendant had
“willfully and maliciously” set fire to the school building, as
required under § 81, because she had intentionally “set fire
to a paper towel in a dispenser attached to a partition in the
building.” Id. at 636. We regarded that act as setting fire to
the building itself (the actus reus of the offense) and held
that because the defendant engaged in that act intentionally,
nothing more was required to establish that she committed
the actus reus “willfully and maliciously.” The district
court’s finding that the defendant “knew the likely result of
her conduct would damage the school” was therefore
unnecessary to sustain the conviction. Id.
We do not think Doe has any bearing on our
interpretation of 18 U.S.C. § 844(i). As we have explained,
a defendant acts “maliciously,” as that term was understood
at common law, if she commits the actus reus of the offense
either intentionally or wantonly. The court in Doe decided
that the defendant engaged in the actus reus of the offense
(setting fire to the school building) intentionally, so there
was no need to explore whether she had acted wantonly. In
other words, whether the defendant was subjectively aware
of the risk that her actions would result in damage to the
school building was irrelevant because her intentional act of
setting fire to a portion of the school building was itself
sufficient to support a conviction under 18 U.S.C. § 81. In
contrast, the present case requires us to flesh out the mental
TOGONON V. GARLAND 11
state that must be shown when a defendant does not
intentionally engage in the conduct prohibited by the statute,
but rather intentionally engages in an action that then causes
the effect prohibited by the statute. Doe does not speak to
that issue at all.
Our decision in Doe, however, underscores just how
broadly the California Supreme Court construed the arson
statute in V.V. California Penal Code § 451 and 18 U.S.C.
§ 81 both punish anyone who “willfully and maliciously sets
fire to or burns” specified property. In Doe, the defendant
intentionally set fire to or burned property specified in
§ 81—namely, the school building. But in V.V., the
defendants did not intentionally set fire to property specified
in § 451—there, forest land. They intentionally “set fire”
only to a firecracker, and their act of throwing the
firecracker, however dangerous, was not committed with an
intent to set fire to forest land. Since the defendants in V.V.
did not intentionally set fire to or burn forest land, they could
have been convicted under the common law definition of
“maliciously” only if they had set fire to or burned forest
land wantonly. And establishing wanton conduct under
common law malice, as discussed, would have required
proof that the defendants were subjectively aware of the risk
that their actions would result in the burning of forest land—
precisely the mental state that the California Supreme Court
held the defendants were not required to possess for § 451.
252 P.3d at 985. In so holding, the California Supreme Court
construed § 451 to criminalize conduct that would not be
covered under either 18 U.S.C. § 81 or § 844(i).
Because we hold that Togonon is not removable on the
only ground still asserted by the government, we need not
12 TOGONON V. GARLAND
consider his claim for relief from removal under the
Convention Against Torture.
PETITION FOR REVIEW GRANTED.