DocketNumber： 03-73564
Judges： Yegan, Pregerson, Fletcher, Bybee
Filed Date： 4/24/2008
Status： Precedential
Modified Date： 11/5/2024
In 1990, a jury convicted Arturo Nica-nor-Romero of a violation of California Penal Code § 647.6(a). At the time of his conviction, § 647.6(a) provided, “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 the fine and imprisonment.” It has been changed in immaterial respects since Nicanor-Romero’s conviction. A violation of § 647.6(a) is a misdemeanor.
The government now seeks to remove Nicanor-Romero to Mexico, based on his § 647.6(a) conviction, for having committed a “crime involving moral turpitude” within the meaning of 8 U.S.C. § 1227(a) (2) (A) (i) (I). We hold that the government has failed to show that Nica-nor-Romero’s § 647.6(a) conviction makes him removable on this ground.
I. Background
Nicanor-Romero was born in Mexico in 1956. In April 1981, he entered the United States without inspection. Soon thereafter, he applied for adjustment of status to lawful permanent resident. His application was granted on January 11, 1990. He has lived here as a lawful permanent resident, working steadily and paying taxes, since then.
On July 3, 1990, Nicanor-Romero was charged in San Diego County, California, with two misdemeanor counts of annoying or molesting a child under the age of eighteen in violation of § 647.6(a). The criminal complaint sheds little light on the underlying facts of the § 647.6(a) violation. For both counts, it simply alleges that, “on or about June 29,1990, ... a misdemeanor was committed by said defendant who did annoy or molest” a girl “under the age of 18 years ....”
On August 7, 1990, a jury convicted Ni-canor-Romero of violating § 647.6(a). The verdict sheet reveals little about the precise nature of Nicanor-Romero’s offense. It states only, “We, the jury, ... find the defendant, Arturo Romero Nica-nor, GUILTY of a misdemeanor who did annoy or molest a child under the age of 18 years, in violation of Penal Code section 647.6.... ” Nicanor-Romero received a 163-day sentence. As one of the conditions of probation, he was ordered to register as a sex offender. See CaLPenal Code § 290(a)(2)(A).
On January 8, 2001, ten-and-a-half years after his misdemeanor conviction, the government began removal proceedings against him based on the conviction under § 647.6(a). The Notice to Appear charged Nicanor-Romero as subject to removal under § 237(a)(2)(A)(iii) of the Immigration and Nationality Act (“INA” or “the Act”), 8 U.S.C. § 1227(a)(2)(A)(iii), as an alien convicted of an aggravated felony “as de
The government filed an additional charge of removal in a second Notice to Appear on May 7, 2001. The second Notice contains an apparent error. It charged Nicanor-Romero as removable pursuant to
Section 237(a)(2)(A)(ii) of the Immigration and Nationality Act, as amended, by the Immigration Act of 1990, in that [he was] an alien who has been convicted of a crime involving moral turpitude committed within five years after the date of admission.
The government almost certainly meant to rely on INA § 237(a)(2)(A)(i)(I) rather than INA § 237(a)(2)(A)(ii). As codified at 8 U.S.C. § 1227(a) (2) (A) (ii), INA § 237(a)(2)(A)(ii) makes an alien removable if he or she “at any time after admission is convicted of two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct....” Yet the government never argued before the agency that Nicanor-Romero’s § 647.6(a) conviction satisfied the criterion of “two or more crimes involving moral turpitude not arising out of a single scheme of criminal misconduct.” Given that Nicanor-Rome-ro’s § 647.6(a) conviction was for conduct occurring on a single date, it is highly unlikely that it satisfies this criterion. On the other hand, INA § 237(a)(2)(A)(i)(I), 8 U.S.C. § 1227(a)(2)(A)(i)(I), makes an alien removable if he or she “is convicted of a crime involving moral turpitude committed within five years ... after the date of admission[.]” Nicanor-Romero has made no argument against removal based on the government’s charge of removability under § 1227(a) (2) (A) (ii) rather than § 1227(a)(2) (A) (i) (I). There is no difference in the definition of “moral turpitude” in these two sections.
Nicanor-Romero applied for cancellation of removal pursuant to 8 U.S.C. § 1229b(a), and for waiver of deportation pursuant to former INA § 212(c), 8 U.S.C. § 1182(c) (repealed 1996). After a brief hearing, an Immigration Judge (“IJ”) concluded that a § 647.6(a) violation categorically constitutes both an “aggravated felony” and a “crime involving moral turpitude.” He denied Nieanor-Rome-ro’s requested relief and issued a final order of removal. The Board of Immigration Appeals (“BIA”) affirmed, and this petition followed.
II. Jurisdiction
We have jurisdiction under the REAL ID Act. The jurisdiction-stripping provision of the INA provides that nothing in the statute “which limits or eliminates judicial review, shall be construed as precluding review of constitutional claims or questions of law....” 8 U.S.C. § 1252(a)(2)(D). Whether a crime is an aggravated felony or involves moral turpitude is a question of law that we have jurisdiction to review. Notash v. Gonzales, 427 F.3d 693, 696 (9th Cir.2005); Martinez-Perez v. Gonzales, 417 F.3d 1022, 1024-25 (9th Cir.2005).
III. Merits
Nicanor-Romero makes several arguments challenging his final order of removal. We need respond only to his argument that the government failed to establish that his § 647.6(a) conviction was categorically either an “aggravated felony” or a “crime involving moral turpitude.”
A. “Aggravated Felony”
In United States v. Pallares-Galan, 359 F.3d 1088, 1102-03 (9th Cir.2004), we held that a violation of § 647.6(a) is not categorically an aggravated felony, and in particular, not “sexual abuse of a minor,” as defined in 8 U.S.C. § 1227(a)(2)(A)(iii). We reasoned that sexual abuse “requires
B. “Crime Involving Moral Turpitude”
1. Standard of Review
Whether a crime involves “moral turpitude” requires us to address two issues of statutory interpretation.
First, what is the definition of “crime involving moral turpitude” under 8 U.S.C. § 1227(a)(2)(A)(i)(I)? We defer to the BIA’s interpretation of the INA, provided that the interpretation is reasonable and not inconsistent with the statute’s plain meaning. Cuevas-Gaspar v. Gonzales, 430 F.3d 1013, 1021 (9th Cir.2005). As we discuss below, however, the BIA has provided little concrete guidance. We agree with the Seventh Circuit that, “[s]ince the Board hasn’t done anything to particularize the meaning of ‘crime involving moral turpitude,’ giving ... deference to its determination of that meaning has no practical significance.” Mei v. Ashcroft, 393 F.3d 737, 739 (7th Cir.2004).
Second, does a petitioner’s misdemeanor conviction under § 647.6(a) come within the definition of “crime involving moral turpitude”? Because this inquiry requires an analysis of a California penal statute rather than the INA, we do not defer to the BIA’s interpretation on this question. Rather, “[w]e review de novo whether the statutory basis for an alien’s conviction defines a crime involving moral turpitude.” Gonzalez-Alvarado v. INS, 39 F.3d 245, 246 (9th Cir.1994).
2. Definition of “Crime Involving Moral Turpitude”
Although “the term ‘moral turpitude’ has deep roots in the law,” Jordan v. De George, 341 U.S. 223, 227, 71 S.Ct. 703, 95 L.Ed. 886 (1951), it has been criticized as an “undefined and undefinable standard,” id. at 235, 71 S.Ct. 703 (Jackson, J., dissenting). The phrase “moral turpitude” first appeared in federal immigration law in 1891, when Congress barred “persons who have been convicted of a felony or other infamous crime or misdemeanor involving moral turpitude” from entering the country. Act of Mar. 3, 1891, 26 Stat. 1084. In 1950, a Senate Report admitted that, despite repeated use, the phrase “ha[d] not been definitely and conclusively defined by the courts.” S. Rpt. No. 1515, at 351 (Apr. 20, 1950). The 1950 Report defined a crime involving moral turpitude as “ ‘[a]n act of baseness, vileness, or depravity, in the private and social duties which a man owes to his fellow man or to society....’” Id. (quoting United States ex rel. Mylius v. Uhl, 203 F. 152, 154 (S.D.N.Y.1913)). The Report, however, refused to commit to a single method for determining whether a crime involves moral turpitude, and instead endorsed a case-by-case approach. Id.
The BIA defines “crime involving moral turpitude” as “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). The BIA concedes that “moral turpitude” is a “nebulous concept,” id., and that it does not apply a single set of criteria to determine which offenses qualify. For example, the BIA
We have held that “[c]rimes of moral turpitude are of basically two types, those involving fraud and those involving grave acts of baseness or depravity.” Carty v. Ashcroft, 395 F.3d 1081, 1083 (9th Cir.2005). We look to “accepted moral standards” to determine what conduct falls within the latter category. See Rodriguez-Herrera v. INS, 52 F.3d 238, 240 (9th Cir.1995) (internal quotation marks omitted). Under this approach, we have held that some crimes, such as incest with a minor and spousal abuse, clearly involve moral turpitude. See Gonzalez-Alvarado, 39 F.3d at 246-47 (incest with a minor); Grageda v. INS, 12 F.3d 919, 922 (9th Cir.1993) (spousal abuse). In contrast, we have held that battery, burglary, and possession of a firearm are not categorically crimes involving moral turpitude. Galea-nar-Mendoza v. Gonzales, 465 F.3d 1054, 1055 (9th Cir.2006) (battery); Cuevas-Gaspar, 430 F.3d at 1020 (burglary); Komarenko v. INS, 35 F.3d 432, 435 (9th Cir.1994) (firearm offense).
We have not relied on a consistent or easily applied set of criteria to reach these results. The distinction between malum in se and malum prohibitum is one important indicator, see, e.g., Beltran-Tirado v. INS, 213 F.3d 1179, 1184 (9th Cir.2000), but not all malum in se crimes categorically involve moral turpitude. See Galeana-Mendoza, 465 F.3d at 1055 (concluding that battery does not categorically involve moral turpitude); Cuevas-Gaspar, 430 F.3d at 1019-20 (concluding that burglary does not categorically involve moral turpitude). We have declared that whether a crime involves moral turpitude “turns on whether evil intent ... is an essential element of the crime.” Goldeshtein v. INS, 8 F.3d 645, 647 (9th Cir.1993). But, “[w]hile mental state is an important factor,” we have also “reject[ed] the contention that all crimes requiring some degree of evil intent are necessarily crimes involving moral turpitude.” Rodriguez-Herrera, 52 F.3d at 241.
A crime’s actus reus requirement is an important consideration. However, “it is the combination of the base or depraved act and the willfulness of the action that makes the crime one of moral turpitude.” Grageda, 12 F.3d at 922 (emphasis added). A crime with trivial consequences does not necessarily involve moral turpitude just because it requires the defendant to act with criminal intent. Conversely, an offense with serious consequences may involve moral turpitude even if the defendant acts only recklessly when committing it. Compare Matter of Wojtkow, 18 I. & N. Dec. 111 (BIA 1981) (concluding that second-degree manslaughter, which requires a showing of recklessness, involves
3. Application to Misdemeanor Conviction under § 647.6(a)
Based on the above guidance, such as it is, we now turn to Nicanor-Romero’s crime. To determine if his misdemeanor conviction under § 647.6(a) is a conviction for a “crime involving moral turpitude,” we apply the categorical and modified-eate-gorical approaches. See Cuevas-Gaspar, 430 F.3d at 1017.
a. Categorical Approach i. Section 647.6(a)
The categorical approach, first articulated in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), requires that we “make a categorical comparison of the elements of the statute of conviction to the generic definition” of moral turpitude, and then “decide whether the conduct proscribed [in the statute] is broader than, and so does not categorically fall within, this generic definition.” Huerta-Guevara v. Ashcroft, 321 F.3d 883, 887 (9th Cir.2003). Under the categorical approach, we look only to the fact of the conviction and the statutory definition of the alien’s offense. Cuevas-Gaspar, 430 F.3d at 1017. “The issue is not whether the actual conduct constitutes a crime involving moral turpitude, but rather, ‘whether the full range of conduct encompassed by the statute constitutes a crime of moral turpitude.’ ” Id. (emphasis added).
We note at the outset that we agree entirely with Judge Bybee’s sentiments about the moral horror of sexual predation on children. Judge Bybee writes, and we agree:
Perhaps no conduct so unequivocally violates American ethics as that which encompasses both of these categories, namely sexual predation upon the most vulnerable members of our society. Children in particular — because of their naiveté, their dependence on adults, and their inability to understand, flee, or resist such advances — are vulnerable to adults who seek to take advantage of them sexually. Thus, we find such conduct especially repulsive and worthy of the severest moral opprobrium.
Dissent at 1013. The question in this case, however, is whether the behavior prohibited by § 647.6(a) may categorically be grouped with the crimes of “sexual predation” that elicit the moral revulsion described above. Cf. Quintero-Salazar v. Keisler, 506 F.3d 688, 694 (9th Cir.2007) (concluding that a California statute prohibiting consensual intercourse between an adult 21 or older and a minor under 16 encompassed conduct that is not “ ‘so far contrary to the moral law’ as to ‘give rise to moral outrage’ ”) (quoting Navarro-Lopez v. Gonzales, 503 F.3d 1063, 1071 (9th Cir.2007)); Pallares-Galan, 359 F.3d at 1102-03 (holding that a violation of § 647.6(a) is not “sexual abuse of a minor,” as defined in 8 U.S.C. § 1227(a)(2)(A)(iii)). That is, the question is not whether some of the conduct prohibited by § 647.6(a) is morally turpitudinous. The question, rather, is whether all of the conduct prohibited by § 647.6(a) is morally turpitudinous.
Section 647.6(a)’s actus reus requirement — “conduct a normal person would unhesitatingly be irritated by” — can be satisfied fairly easily. Without its mens rea requirement, § 647.6(a) would prohibit many acts that hardly shock the public conscience as gravely base or depraved. Even brief touching of a child’s shoulder qualifies as annoying conduct under the actus reus requirement of § 647.6(a). See In re Hudson, 143 Cal.App.4th 1, 5, 49 Cal.Rptr.3d 74 (2006) (placing hand on child’s shoulder while he played video game); see also People v. McFarland, 78 Cal.App.4th 489, 492, 92 Cal.Rptr.2d 884 (2000) (stroking child’s arm and face in laundromat). In fact, no actual touching is required. See Cal. Jur. Instr. (Crim.) § 16.440. For example, photographing children in public places with no focus on sexual parts of the body satisfies the actus reus element of § 647.6(a), so long as the manner of photographing is objectively “annoying.” People v. Dunford, No. D039720, 2003 WL 1275417, at *4 (CaLCt. App. Mar. 19, 2003) (rejecting argument that “the defendant’s conduct” must “be sexual” in nature). “[H]and and facial gestures” or “[wjords alone” also satisfy the actus reus of § 647.6(a). Pallares-Galan, 359 F.3d at 1101 (internal quotation marks and emphasis omitted). Words need not be lewd or obscene so long as they, or the manner in which they are spoken, are objectively irritating to someone under the age of eighteen. People v. Thompson, 206 Cal.App.3d 459, 465, 253 Cal.Rptr. 564 (1988). Moreover, “[i]t is not necessary that the act[s or conduct] actually disturb or irritate the child.... ” Cal. Jur. Instr. (Crim.) § 16.440. That is, the actus reus component of § 647.6(a) does “not necessarily require harm or injury, whether psychological or physical.” United States v. Baza-Martinez, 464 F.3d 1010, 1015 (9th Cir.2006). In short, § 647.6(a) is an annoying photograph away from a thought crime.
Judge Bybee, dissenting in this case, complains that we have “suggested] that a crime cannot involve moral turpitude unless the actus reus results in some sort of injury to the victim.” Dissent at 4350. We have suggested nothing of the sort. We simply observe that the actus reus component of § 647.6(a) is satisfied by relatively minor conduct.
Having examined the actus reus requirement of § 647.6(a), we turn to the question of whether the relatively non-culpable acts proscribed by § 647.6(a) become morally turpitudinous when considered together with the statute’s mens rea requirement. We note, as an initial matter, that we are aware of no cases outside of the fraud context in which this court has held that a non-serious crime falls within the moral turpitude category solely by virtue of its mens rea element. See Rodriguez-Herrera, 52 F.3d at 240 (“[W]e have not held
The mens rea requirement, like the ac-tus reus requirement, does not pose a particularly high hurdle to conviction under § 647.6(a). By judicial construction, § 647.6(a) has been interpreted to apply only to conduct that is “motivated by an unnatural or abnormal sexual interest or intent.” In re Gladys R., 1 Cal.3d 855, 867, 83 Cal.Rptr. 671, 464 P.2d 127 (1970) (confirming interpretation of People v. Pallares, 112 Cal.App.2d Supp. 895, 901, 246 P.2d 173 (1952)). As construed by the California courts, this “unnatural or abnormal sexual interest” requirement is not very demanding. To be convicted under § 647.6(a), the defendant need not possess a specific intent to commit any crime, sexual or otherwise, against the child. See People v. Maurer, 32 Cal.App.4th 1121, 1126-27, 38 Cal.Rptr.2d 335 (1995) (noting that § 647.6(a) is a “strange beast” because despite the motivation requirement, “no specific intent is prescribed as an element of this particular offense” (internal quotation marks omitted)). Rather, the unnatural or abnormal nature of a defendant’s sexual interest under § 647.6(a) may be shown by the mere fact that the subject of the interest was underage. That is, a sexual interest that would be natural and normal if motivated by conduct directed at an 18-year old becomes unnatural or abnormal under § 647.6(a) if directed at someone who is underage. For example, in People v. Villareal, No. B16161735, 2003 WL 21153430 (Cal.Ct. App. May 20, 2003), described in greater detail below, the Court of Appeal affirmed the conviction of a defendant who made suggestive comments and offered a ride to an underage girl. Likewise, in Dunford, the Court of Appeal affirmed the conviction of a defendant who took non-sexually-explicit photographs of non-sexual parts of the bodies of two fully clothed underage girls “in an annoying manner and with a sexual motivation.” 2003 WL 1275417, at *4; see also People v. Thompson, 206 Cal.App.3d 459, 466 n. 3, 253 Cal.Rptr. 564 (1988) (affirming a conviction on several grounds, noting, “His sexual interest was also made clear by his own admission that he had been ‘admiring’ the [underage] girl’s legs”).
Judge Bybee maintains that § 647.6(a) requires proof of a “predatory” sexual interest. Dissent at 1020-21. He supports this contention by citing various formal statements of the “unnatural or abnormal sexual interest” requirement. Id. at 1020. As the cited statements make clear, however, it is Judge Bybee who has supplied the word “predatory.” That word does not appear in § 647.6(a); nor does it appear in California courts’ recitations of the elements of § 647.6(a).
As part of its case-in-chief, the prosecution in a § 647.6(a) case may prove mens rea merely by showing that the subject of an otherwise natural sexual interest was under eighteen. See Cal. Jur. Instr. § 16.440. The defendant may raise his lack of knowledge of the victim’s age as a defense. But a defendant with a good faith but “unreasonable” mistaken belief that the victim is eighteen or older still satisfies the mens rea requirement of § 647.6(a). People v. Magpuso, 23 Cal.App.4th 112, 115, 28 Cal.Rptr.2d 206 (1994); People v. Atchison, 22 Cal.3d 181, 183-84, 148 Cal.Rptr. 881, 583 P.2d 735 (1978) (Clark, J.,
Based on the combination of § 647.6(a)’s actus reus and mens rea requirements, we conclude that the statute, considered in the abstract, encompasses behavior that is not morally turpitudinous. Judge Bybee complains that we have reached this conclusion by employing a “novel test” that “divid[es] the offense into decontextualized actus reus and mens rea components.” Dissent at 1015. But we have done just the opposite. It is clear that a statute’s actus reus and mens rea requirements must be considered together. As we state above, “A crime with trivial consequences does not necessarily involve moral turpitude just because it requires the defendant to act with criminal intent. Conversely, an offense with serious consequences may involve moral turpitude even if the defendant acts only recklessly when committing it.” Supra, at 998. We fail to see how assessing the culpability of a crime by considering its actus reus and mens rea together constitutes a “novel test.”
In fact, it is Judge Bybee’s failure to consider the actus reus and mens rea requirements together that prevents him from recognizing the distinction between a violation of § 647.6(a) and the crimes we have previously held to be morally turpitu-dinous. For example, Judge Bybee complains that “[u]nder the majority’s mens rea analysis, it is doubtful that any statute criminalizing behavior directed at children would qualify as a crime of moral turpitude so long as it did not provide for a good faith mistake-of-age defense.” Dissent at 1018. As Judge Bybee notes, and we agree, crimes such as statutory rape and carnal knowledge of a minor, which allow no good faith mistake-of-age defense, may categorically involve moral turpitude. Dissent at 1013. The only way Judge Bybee could fail to see the difference between these crimes and a conviction under § 647.6(a) is by focusing solely on their mens rea requirements, and ignoring their actus reus requirements. As should be clear to Judge Bybee, statutory rape and carnal knowledge of a minor are more culpable than the conduct prohibited by § 647.6(a) because the former involve sexual intercourse with a child, a deeply offensive actus reus, while the latter involves only “conduct a normal person would unhesitatingly be irritated by.” Lopez, 19 Cal.4th at 289, 79 Cal.Rptr.2d 195, 965 P.2d 713 (internal quotation marks omitted).
Judge Bybee makes the same mistake when he argues that child abuse, which “is a crime involving moral turpitude only because of the age of the victim,” “could not survive the majority’s rigorous mens rea requirement” without allowing a good faith mistake-of-age defense. Dissent at 1018 n. 6. For the same reason that we have no difficulty distinguishing between sexual intercourse with a child and conduct prohibited by § 647.6(a), we have no difficulty distinguishing between child abuse and as
Judge Bybee’s failure to recognize that moral turpitude depends on the combination of actus reus and mens rea is also responsible for his mistaken assertion that the present case is controlled by Morales v. Gonzales, 478 F.3d 972 (9th Cir.2007). See Dissent at 1016-17. In Morales, we held that a Washington statute prohibiting “communicat[ion] with a minor for immoral purposes” was categorically a crime of moral turpitude. Morales, 478 F.3d at 978 (citing Wash. Rev.Code § 9.68A.090). But just as statutory rape involves a more culpable actus reus than § 647.6(a), § 9.68A.090 requires a more culpable mens rea. This is so for two reasons.
First, § 9.68A.090 requires that the communication with a minor be for “immoral purposes.” See Morales, 478 F.3d at 978 (“[I]mmorality is one of the elements of the crime under Washington law.”). The Washington courts have indicated that to be “immoral,” a communication must be designed to “promot[e] a minor’s exposure and involvement in ‘sexual misconduct.’ ” State v. Hosier, 157 Wash.2d 1, 11-12, 133 P.3d 936 (2006). For example, in Hosier, 157 Wash.2d at 14, 133 P.3d 936, the Washington Supreme Court noted that the defendant had placed pink underpants on a fence with the “overall intent ... to convince a young girl to take off her underpants to engage in sexual misconduct.” Further, the Court noted that the defendant did not dispute that he wrote notes to the 13-year-old girl with the “purpose of promoting a minor’s exposure and involvement in sexual misconduct.” Id. at 11-12, 133 P.3d 936 (internal quotation marks omitted). By contrast, there is no requirement under § 647.6(a) that the defendant have such a purpose. For example, the defendant in Dunford was convicted under § 647.6(a) based on his taking pictures of fully clothed children in a public place, focusing on non-sexual parts of their bodies, with no showing that he intended to expose the children to, or involve them in, sexual misconduct. 2003 WL 1275417, at *4. Judge Bybee simply fails to recognize the distinction between promoting a child’s involvement in sexual misconduct, as in § 9.68A.090, and annoying a child by objectively non-sexual conduct while holding an unarticulated private sexual interest, as in § 647.6(a). See Dissent at 4356 n. 8.
Second, § 9.68A.090 requires that the defendant act with specific criminal intent. See Hosier, 157 Wash.2d at 15, 133 P.3d 936; State v. Montoya, 115 Wash.App. 1050, No. 28017-5-II, 115 Wash.App. 1050, 2003 WL 464075, at *2 (Feb. 25, 2003) (explaining what evidence of “[sjpecific criminal intent” is sufficient to support a § 9.68A.090 conviction). By contrast, § 647.6(a) does not require specific intent. Maurer, 32 Cal.App.4th at 1126-27, 38 Cal.Rptr.2d 335.
We find these distinctions significant. To be convicted under § 9.68A.090, a defendant must intend to engage a minor in sexual misconduct and must do so with full knowledge that the victim is underage. To be convicted under § 647.6(a), a defendant need do neither. Judge Bybee emphasizes that § 9.68A.090, like § 647.6(a), does not require actual harm to the child and suggests that we are therefore unable to distinguish this case from Morales. Dissent at 4356 n. 8; see also Dissent at 1016-17 n. 4 (“[T]he majority provides no explanation why, after Morales, we should place any weight on the absence of a physical-contact element in determining whether violation of § 647.6(a) involves moral turpitude.”). Judge Bybee has again considered actus
Under the California case law just described, an 18-year-old man’s sexual interest in a girl one day short of her eighteenth birthday, whom the man negligently believes to be over eighteen, manifested only by annoying behavior such as photographing nonsexual parts of her fully clothed body, could support a conviction under § 647.6(a). We would not hold such behavior morally turpitudi-nous. Until a short time ago, the possibility of a conviction on such facts would have been enough, under the categorical approach, for us to hold that a defendant convicted of violating § 647.6(a) did not commit a crime of moral turpitude.
However, after this case was briefed and submitted for decision, the Supreme Court decided Gonzales v. Duenas-Alvarez, 549 U.S. 183, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007). The petitioner in Duenas-Alvarez was a legal permanent resident who claimed that he was not removable because his conviction was not a “theft offense” under the INA. Id. at 818. The Court rejected this claim after applying the categorical approach first articulated in Taylor. Id. The Court went through the familiar steps of identifying the generic definition of theft and comparing it to the California law under which Duenas-Al-varez had been convicted. Id. at 820-21. But then the Court wrote:
[I]n our view, 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 to a state statute’s language. It 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, of course, may show that the statute was so applied in his own case. But he 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. at 822 (emphasis added).
The full implications of the Court’s “realistic probability” test are, at this point, unclear. In the more than a decade and a half since the Court decided Taylor, this court and others have developed a substantial body of case law deciding whether various state criminal statutes fall within the scope of the “crime involving moral turpitude” offense. This case law has brought some measure of predictability to the law despite the vagaries of the phrase “moral turpitude.” The same is true of many other state criminal statutes with respect to the various crimes that may constitute “aggravated felonies” under both immigration and sentencing law. In much of this case law, we have relied on the “application of legal imagination to a state statute’s language” to determine the range of conduct that might be successfully prosecuted under it. By disapproving of such an approach, Duenas-Alvarez leaves uncertain the continued validity of this extensive case law.
The Court in Duenas-Alvarez also leaves unaddressed important issues about how courts are to decide whether the “realistic probability” showing has been made. We mention only two such issues here.
First, it is unclear who bears the burden of demonstrating a “realistic probability” that conduct reached by a statute falls within the scope of a “crime involving moral turpitude.” The Court’s opinion in Due-nas-Alvarez could be read to suggest that it was incumbent on the petitioner to make
Second, the opinion fails to specify what type of evidence may be used to satisfy the “realistic probability” requirement. A sufficient showing under Duenas-Alvarez might be based on factual evidence of actual convictions, on unpublished and nonpre-cedential opinions, on statutory language and the logic of published opinions, or on some combination thereof. This evidentia-ry issue is likely to arise in many forms, and we note that in immigration proceedings some of the ordinary evidentiary rules do not apply. Hernandez-Guadarrama v. Ashcroft, 394 F.3d 674, 681 (9th Cir.2005).
Whatever the practicalities of demonstrating a conviction through factual evidence, however, it cannot be that the presence of a “realistic probability” under Duenas-Alvarez depends on whether a conviction is described in an unpublished rather than a published opinion. But see Dissent at 1020, 1022-24 (complaining that we rely on an unpublished opinion in applying Duenas-Alvarez). In determining the actual .application of a statute, a conviction is a conviction, regardless of the manner in which it is reported. We trust that if a client sought advice regarding the scope of a state statute, Judge Bybee would not advise the client to engage in conduct that had already been held illegal simply because the conviction was reported in an unpublished opinion.
Similarly, we do not believe that the categorical approach after Duenas-Alva-rez is satisfied only when a state repeatedly applies a statute to non-turpitudinous conduct. But see Dissent at 1023 (“[I]t is unwise to rely on a single unpublished decision.”). Duenas-Alvarez’s “realistic probability” requirement eliminated the application of “legal imagination” in defining the outer reaches of a state law. But it did not alter the fundamental logic of the categorical approach, which looks to “whether the full range of conduct encompassed by the statute constitutes a crime of moral turpitude.” Cuevas-Gaspar, 430 F.3d at 1017 (emphasis added). To suggest that a state law does not apply to conduct involving moral turpitude unless it is regularly applied to non-turpitudinous conduct would not only bring an end to the “categorical” approach, but would also require an entirely unmanageable standard. See Duenas-Alvarez, 127 S.Ct. at 822 (noting that a defendant may show a “realistic probability” that a state would apply its statute to conduct outside the generic definition of a crime simply by pointing to “his own case”).
ii. Application of Duenas-Alvarez
Although the “reasonable probability” requirement of Duenas-Alvarez may be satisfied in a variety of ways, it is clear that an alien has not been convicted of a crime involving moral turpitude if he can “point to his own case or other cases in which the state courts in fact did apply the statute” to non-turpitudinous conduct. Duenas-Alvarez, 127 S.Ct. at 822. One unpublished opinion by the California Court of Appeal provides a detailed description of factual circumstances that supported an actual conviction under § 647.6(a). Based on this conviction, I believe there is “a realistic probability, not a theoretical possibility, that the State would apply [§ 647.6(a)] to conduct that falls outside the generic definition [of a ‘crime involving moral turpitude’].” Duenas-Alvarez, 127 S.Ct. at 822.
The case is People v. Villareal, 2003 WL 21153430. A 13-year-old girl was walking along “a quiet, somewhat isolated street”
As luck would have it, the girl was the daughter of a Lompoc police officer. Id. After being informed by her daughter of what had happened, the police officer searched for, and apprehended, the defendant. Id. When he was apprehended, the defendant stated that he thought the victim was “a ‘cute girl’ and that she was 16 or 17 years old.... Now that he knew [her] age, [he] agreed that his comment about seeing stars was ‘kind of inappropriate, being that it was kind of strange.’ He denied having any sexual intent in speaking to [the girl].” Id. The defendant further stated that he had been diagnosed with schizophrenia but had quit taking his medication before the incident on the advice of “his mental health workers.” Id.
On this evidence, the California Court of Appeal concluded:
Appellant stopped to talk to a 13-year old girl who was walking alone on an isolated street. His references to a local “make out” spot and to seeing stars when he looked at [the girl] would be irritating to a normal person and demonstrate that the conversation was motivated by appellant’s sexual interest in[the girl]. (People v. Maurer, ..., 32 Cal.App.4th at p. 1127, 38 Cal.Rptr.2d 335 [mental state required to violate § 647.6 is conduct motivated by unnatural or abnormal sexual interest].) The child believed that appellant’s comments were sexual in nature and testified that he was “smirking” at her. Even if the initial comments were ambiguous, appellant followed [the girl] down the street as she ran away from him and asked her if she needed a ride. This conduct unquestionably would irritate a normal person.... Finally, appellant confirmed the sexual nature of his conduct when he told Sgt. Strange that he thought [the girl] was a “cute ghi[.]”
Id. at *2 (bracketed phrase “[the girl]” added to replace the girl’s name; other brackets in original; internal citations omitted). On this basis, the court affirmed the defendant’s conviction under § 647.6(a).
The Court of Appeal’s decision in Villa-real is, of course, a proper holding that Villareal violated § 647.6(a). But the issue is not whether Villareal’s conduct violated § 647.6(a), which it clearly did. The issue is whether that conduct was morally turpi-tudinous. I do not believe that Villareal’s conduct constituted a “grave act[ ] of baseness or depravity.” Carty, 395 F.3d at 1083. Nor, in my view, did it constitute “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. at 139.
Judge Bybee further objects that we have offered a “sterile retelling” of the facts in Villareal. He would hold that, because “the trier of fact determined that Villareal engaged in offensive behavior that was motivated by unnatural or abnormal sexual interest in the victim,” Villareal’s conduct involved moral turpitude. Dissent at 1023. Judge Bybee has once again assumed that, because the formal elements of § 647.6(a) sound morally tur-pitudinous, a conviction may only be had under the statute for morally turpitudinous conduct. As we have explained above, and as Villareal confirms, the actual application of § 647.6(a) by California courts shows that mere annoying behavior, motivated by a sexual interest that would not be abnormal if directed at an adult, may be deemed a violation of § 647.6(a) if directed at a person who is underage.
Yet, based on his erroneous interpretation of § 647.6(a) as requiring a “predatory” sexual interest, Judge Bybee argues that, because the trier of fact found a violation of § 647.6(a) in Villareal, it must have found that the conduct in Villareal manifested a predatory sexual interest. Id. At best, his argument is circular. At worst, it manifests a lack of fidelity to the record, with Judge Bybee treating his own speculations as if they were established facts. See id. (referring to Villareal as “a story of a prelude to a rape”). To avoid any possibility of confusion as to what Villareal did (and did not) do, I attach the full report of the Court of Appeal’s decision. Infra, App. A.
iii. Conclusion
After examining the elements of § 647.6(a), as set forth in the statute and as construed by California courts, we 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).
b. Modified Categorical Approach
Because § 647.6(a) prohibits conduct that may not necessarily involve moral turpitude, we turn to the modified categorical approach to determine if Nicanor-Romero’s actual offense involved moral turpitude. We “look beyond the language of the statute to a narrow, specified set of documents that are part of the record of conviction, including the indictment, the judgment of conviction, jury instructions, a signed guilty plea, or the transcript from the plea proceedings.” Tokatly v. Ashcroft, 371 F.3d 613, 620 (9th Cir.2004) (internal quotation mark omitted). We do not look beyond such documents, however, to determine what particular underlying facts might have supported Nicanor-Romero’s conviction. Id. Under the modified categorical approach, the government must show by clear and convincing evidence that the actual crime committed by Nicanor-Romero was a “crime involving moral turpitude.” See Notash, 427 F.3d at 697.
The relevant documents tell us little about what Nicanor-Romero actually did. Both the criminal complaint and the jury verdict sheet simply recite the elements of the crime described in § 647.6(a). Nicanor-Romero was also
Conclusion
We conclude that the government has failed to show that Nicanor-Romero committed either an aggravated felony or a crime involving moral turpitude. We therefore grant the petition and vacate the order of removal.
Petition GRANTED; order of removal VACATED.
Appendix A
Westlaw.
Not Reported in Cal.Rptr.2d Page 1
Not Reported in Cal.Rptr.2d, 2003 WL 21153430 (Cal.App. 2 Dist.)
(Cite as: Not Reported in Cal.Rptr.2d, 2003 WL 21153430)
People v. Villareal
Cal.App. 2 Dist.,2003.
Only the Westlaw citation is currently available.
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
Court of Appeal, Second District, Division 6, California.
The PEOPLE, Plaintiff and Respondent,
v.
Mario VILLAREAL, Defendant and Appellant.
2d Crim. No. B161735.
(Santa Barbara County Super. Ct. Nos. 1030734,1031182).
May 20, 2003.
Background: Defendant appealed decision of the Superior Court, Santa Barbara County, Nos. 1030734 and 1031182, Rick Brown, J., revoking his felony probation in two cases.
Holding: The Court of Appeal, Yegan, J., held that evidence was sufficient to show that defendant violated statute prohibiting annoying or molesting child under age of 18. Affirmed.
West Headnotes
Sentencing and Punishment 350H
350H Sentencing and Punishment
350HIX Probation and Related Dispositions
350HIX(I) Revocation
350HIX(I)3 Proceedings
350Hk2015 Evidence
350Hk2021 k. Sufficiency. Most
Cited Cases
Evidence was sufficient to show defendant violated his felony probation in other cases by violating statute prohibiting annoying or molesting child under age of 18; defendant stopped to talk to 13-year-old girl who was walking alone on isolated street
Superior Court County of Santa Barbara, Rick Brown, Judge.
Gilbert W. Lentz, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Kenneth N. Soko-ler, Robert M. Snider, Deputy Attorneys General, for Plaintiff and Respondent.
*1 Mario Villareal appeals from the judgment revoking his felony probation in two cases based on a finding that he violated Penal Code section 647.6, subdivision (a) by annoying or molesting a child under the age of 18.
Facts
In July 2002, 13-year old Whitney L. was walking along a quiet, somewhat isolated street in Lompoc to catch a bus to soccer practice. Appellant stopped his pickup truck across the street from Whitney and asked for her name. She told him. He asked Whitney where she was going and
she answered. Appellant asked if she had gone “to see the flag.”
Whitney telephoned her mother, Tammy Clancy, who is a Lompoc police officer. The two drove in Officer Clancy’s patrol car, searching for appellant. When they came upon him driving in his truck, appellant put his hand out of the window, as if to waive at them. Officer Clancy was about to stop the truck when appellant pulled over, parking on the street in front of his residence. Officer Clancy asked appellant what business he had with her daughter. Appellant answered, “You can’t regulate what I say to a young lady.” He started to become angry and said, “You people seem to think you can control what I say and who I say it to.” Officer Clancy’s supervisor, Sergeant Strange, arrived and eventually arrested appellant. In a later interview, appellant admitted that he made the comment about seeing stars. Appellant said he thought Whitney was a “cute girl” and that she was 16 or 17 years old.
Appellant testified at the probation violation hearing that he was driving to see the flower flag when he saw Whitney walking
Discussion
*2 Before revoking appellant’s probation, the trial court was required to find, by a preponderance of the evidence, that he violated section 647.6, subdivision (a). (People v. Rodriguez (1990) 51 Cal.3d 437, 272 Cal.Rptr. 613, 795 P.2d 783.) Appellant contends the evidence is insufficient to support that finding.
Section 647.6, subdivision (a) provides that it is a misdemeanor to annoy or molest a child under the age of 18. This statute does not require proof that appellant touched Whitney, but it does require “(1) conduct a ‘ “normal person would unhesitatingly be irritated by” ’ (People v. Carskaddon (1957) 49 Cal.2d 423, 426 [318 P.2d 4], quoting People v. McNair (1955) 130 Cal.App.2d 696, 698 [279 P.2d 800]), and (2) conduct ‘ “motivated by an unnatural or abnormal sexual interest” ’ in the victim (People v. Maurer (1995) 32 Cal.App.4th 1121, 1127 [38 Cal.Rptr.2d 335], italics omitted, quoting In re Gladys R. (1970) 1 Cal.3d 855, 867-868 [83 Cal.Rptr. 671, 464 P.2d 127]).” (People v. Lopez (1998) 19 Cal.4th 282, 289, 79 Cal.Rptr.2d 195, 965 P.2d 713.)
Here there is sufficient evidence from which the trial court could find that appellant violated section 647.6. Appellant stopped to talk to a 13-year old girl who was walking alone on an isolated street. His references to a local “make out” spot and to seeing stars when he looked at Whitney would be irritating to a normal person and demonstrate that the conversation was motivated by appellant’s sexual interest in Whitney. (People v. Maurer, supra, 32 Cal.App.4th at p. 1127, 38 Cal.Rptr.2d 335 [mental state required to violate § 647.6 is conduct motivated by unnatural or abnormal sexual interest].) The child believed that appellant’s comments were sexual in nature and testified that he was “smirking” at her. Even if the initial comments were ambiguous, appellant followed Whitney down the street as she ran away from him and asked her if she needed a ride. This conduct unquestionably would irritate a normal person. (People v. Kongs (1994) 30 Cal.App.4th 1741, 1749, 37 Cal.Rptr.2d 327; People v. Thompson (1988) 206 Cal.App.3d 459, 467, 253 Cal.Rptr. 564.) Finally, appellant confirmed the sexual nature of his conduct when he told Sgt. Strange that he thought Whitney was a “cute girl[.]”
The judgment (order revoking probation) is affirmed.
We concur: GILBERT, P.J., and PER-REN, J,
Cal-App. 2 Dist.,2003.
People v. Villareal
Not Reported in Cal.Rptr.2d, 2003 WL 21153430
END OF DOCUMENT
. All statutory references are to the Penal Code unless otherwise stated.
. This is a reference to a display of flowers planted to resemble a flag. Residents of Lompoc commonly view the flower flag from a remote area known as “make-out point,” not far from the street on which appellant encountered Whitney.