Penuliar v. Mukasey

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NOPRING PAULINO PENULIAR,  No. 03-71578
Petitioner, Agency No.
v. A44-948-659
MICHAEL B. MUKASEY, Attorney  ORDER
General, AMENDING
Respondent. OPINION AND
AMENDED
 OPINION
On Remand from the United States Supreme Court
Filed April 22, 2008
Amended June 10, 2008
Before: James R. Browning, Harry Pregerson, and
Marsha S. Berzon, Circuit Judges.
Opinion by Judge Pregerson
6567
6570 PENULIAR v. MUKASEY
COUNSEL
Joel S. Feldman, Paul J. Zidlicky, and Melanie Jo Triebel,
Sidley Austin LLP, Chicago, Illinois, for the petitioner.
Jennifer Paisner, Office of Immigration Litigation, U.S.
Department of Justice, Civil Division, Washington, D.C., for
the respondent.
ORDER
The Opinion filed April 22, 2008, slip op. 4219, is amended
as follows:
1. At slip op. 4226-27, replace the two paragraphs that begin
and end <. . . sought to distin-
guish for heightened punishment and other crimes.” Id.>
with 18 U.S.C. § 16 as requiring
more than mere negligent or reckless conduct. See
Fernandez-Ruiz Gonzales, 466 F.3d 1121, 1130 (9th Cir.
2006) (en banc) (“[N]either recklessness nor gross negli-
gence is a sufficient mens rea to establish that a convic-
tion is for a “crime of violence under § 16.”) (citing
Leocal v. Ashcroft, 543 U.S. 1 (2004)); see also Leocal,
543 U.S. at 11-13 (“Interpreting § 16 to encompass acci-
dental or negligent conduct would blur the distinction
PENULIAR v. MUKASEY 6571
between the ‘violent’ crimes Congress sought to distin-
guish for heightened punishment and other crimes.”).>.
2. At slip op. 4228, replace the sentences that begin and end <. . . is broader
than a “crime of violence” as defined by 18 U.S.C. § 16.>
with 18 U.S.C.
§ 16.>.
3. At slip op. 4228, keep footnote 3 following the sentence
that ends <. . . negligent disregard for the safety of per-
sons or property.>.
4. At slip op. 4229-30, replace the sentences that begin
and end <. . .
is plainly insufficient to establish that Penuliar pled guilty
to reckless conduct constituting a “crime of violence.”>
with 18 U.S.C. § 16. Thus, the
abstract of judgment, which simply recites that Penuliar
pled guilty to the charge, is plainly insufficient to estab-
lish that Penuliar pled guilty to conduct constituting a
“crime of violence.”>.
5. At slip op. 4230, keep footnote 5 following the sentence
that ends <. . . the generic statutory language from Cali-
fornia Vehicle Code § 2800.2(a).>.
Future petitions for panel rehearing and rehearing en banc
will be entertained. See General Order 5.3(a).
OPINION
PREGERSON, Circuit Judge:
Nopring Paulino Penuliar petitions for review of a decision
of the Board of Immigration Appeals (“BIA”). Penuliar, a
lawful permanent resident, pled guilty to two counts of unlaw-
ful driving or taking of a vehicle in violation of California
Vehicle Code § 10851(a), and one count of evading an officer
in violation of California Vehicle Code § 2800.2(a). Classify-
ing both convictions as “aggravated felonies” under the Immi-
gration and Nationality Act (“INA”), an Immigration Judge
(“IJ”), affirmed by the BIA, found Penuliar ineligible for can-
cellation of removal and voluntary departure, and ordered that
Penuliar be deported pursuant to 8 U.S.C. § 1227(a)(2)
(A)(iii).
We granted Penuliar’s petition for review, Penuliar v. Gon-
zales, 435 F.3d 961 (9th Cir. 2006), but the Supreme Court
vacated our decision, Gonzales v. Penuliar, 127 S. Ct. 1146(2006), and remanded to us for further proceedings in light of
Gonzales v. Duenas-Alvarez, 549 U.S. ___, 127 S.Ct. 815(2007).
PENULIAR v. MUKASEY 6573
Because we again conclude that Penuliar’s convictions do
not constitute “aggravated felonies” under the INA, we grant
his petition for review.
BACKGROUND
Nopring Paulino Penuliar, a citizen of the Philippines, was
admitted to the United States on June 12, 1995, as a lawful
permanent resident. On June 30, 2000, Penuliar pled guilty to
one count of unlawful driving or taking of a vehicle in viola-
tion of California Vehicle Code § 10851(a), and was sen-
tenced to two years imprisonment. On December 13, 2000,
Penuliar pled guilty to another count of unlawful driving or
taking of a vehicle in violation of California Vehicle Code
§ 10851(a), and one count of evading an officer in violation
of California Vehicle Code § 2800.2(a). He was sentenced to
three years’ imprisonment for each charge, to be served con-
currently.
While serving his sentence in state prison, the Immigration
and Naturalization Service (“INS”)1 served Penuliar with a
notice to appear.2 In the notice to appear, the INS alleged that
Penuliar was removable for being convicted of “a crime of
violence (as defined in section 16 of Title 18, but not includ-
ing a purely political offense) for which the term of imprison-
1
The INS ceased to exist on March 1, 2003, when its functions were
transferred to the Department of Homeland Security. See Homeland
Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135. However, we
refer to the agency as the INS here because the proceedings in this case
were instigated before the transfer.
2
The initial notice to appear charged that Penuliar was removable under
8 U.S.C. § 1227(a)(2)(A)(iii), because he had been convicted of “an
offense relating to obstruction of justice,” an “aggravated felony” under
8 U.S.C. § 1101(a)(43)(S). The IJ ruled that Penuliar’s convictions did not
constitute offenses “relating to obstruction of justice,” and the government
did not appeal that decision to the BIA. Accordingly, that decision is not
before us. The remaining charges, which are before us, were included in
an amended notice to appear.
6574 PENULIAR v. MUKASEY
ment [is] at least one year,” an “aggravated felony” under 8
U.S.C. § 1101(a)(43)(F). The INS also alleged that Penuliar
was removable for being convicted of “a theft offense (includ-
ing receipt of stolen property) or burglary offense for which
the term of imprisonment [is] at least one year,” an “aggra-
vated felony” under 8 U.S.C. § 1101(a)(43)(G).
At Penuliar’s removal hearing, the government introduced
into evidence a felony complaint charging Penuliar with, inter
alia, one count of unlawful driving or taking of a vehicle in
violation of California Vehicle Code § 10851(a), and a corre-
sponding abstract of judgment showing that Penuliar pled
guilty to that count. The government also introduced a crimi-
nal information charging Penuliar with, inter alia, one count
of unlawful driving or taking of a vehicle in violation of Cali-
fornia Vehicle Code § 10851(a), and one count of evading an
officer in violation of California Vehicle Code § 2800.2(a),
and a corresponding abstract of judgment showing that Penul-
iar pled guilty to both counts. Finally, the government intro-
duced a probation report detailing the conduct underlying the
charges in the criminal information.
Based on this evidence, the IJ concluded that Penuliar’s
two convictions for unlawful driving or taking of a vehicle
were “theft offense[s]” under 8 U.S.C. § 1101(a)(43)(G), and
that Penuliar’s conviction for evading an officer was a “crime
of violence” under 8 U.S.C. § 1101(a)(43)(F). Accordingly,
the IJ ruled that Penuliar was removable as an “aggravated
felon” under 8 U.S.C. § 1227(a)(2)(A)(iii), and therefore inel-
igible for cancellation of removal and voluntary departure.
See 8 U.S.C. §§ 1229b(a)(3), 1229c(a)(1).
On March 31, 2003, the BIA summarily affirmed the deci-
sion of the IJ. See 8 C.F.R. § 1003.1(e)(4). Penuliar timely
filed this petition for review.
JURISDICTION AND STANDARD OF REVIEW
This court lacks jurisdiction to review a final order of
removal against an alien who has committed an aggravated
PENULIAR v. MUKASEY 6575
felony. See 8 U.S.C. § 1252(a)(2)(C). Nonetheless, “[b]ecause
the issue in this appeal is whether [the petitioner] committed
an aggravated felony, and because we have jurisdiction to
determine our own jurisdiction, the jurisdictional question and
the merits collapse into one.” Ye v. INS, 214 F.3d 1128, 1131
(9th Cir. 2000) (citation omitted).
We review de novo whether a particular offense is an
aggravated felony. Id.DISCUSSION
To determine whether a conviction is an “aggravated felo-
ny” under the INA, we employ the two step test set forth in
Taylor v. United States, 495 U.S. 575 (1990). See Chang v.
I.N.S., 307 F.3d 1185, 1189 (9th Cir. 2002). First, “we look
to the statute under which the person was convicted and com-
pare its elements to the relevant definition of an aggravated
felony in 8 U.S.C. § 1101(a)(43).” Id. “Under this ‘categorical
approach,’ an offense qualifies as an aggravated felony ‘if and
only if the full range of conduct covered by the [criminal stat-
ute] falls within the meaning of that term.’ ” Id. (quoting
United States v. Baron-Medina, 187 F.3d 1144, 1146 (9th Cir.
1999)).
However, when the statute of conviction reaches both con-
duct that would constitute an aggravated felony and conduct
that would not, we follow a “modified categorical approach.”
Chang, 307 F.3d at 1189. Under this approach, we conduct “a
limited examination of documents in the record of conviction
to determine if there is sufficient evidence to conclude that a
defendant was convicted of the elements of the generically
defined crime.” Id. “[W]e do not, however, look to the partic-
ular facts underlying the conviction.” Lara-Chacon v. Ash-
croft, 345 F.3d 1148, 1154 (9th Cir. 2003) (quoting Ye, 214
F.3d at 1132).
6576 PENULIAR v. MUKASEY
I. Evading an Officer
A. Categorical Approach
[1] Under 8 U.S.C. § 1101(a)(43)(F), the term “aggravated
felony” means “a crime of violence (as defined in section 16
of Title 18, but not including a purely political offense) for
which the term of imprisonment [is] at least one year.” Title
18 U.S.C. § 16, in turn, defines the term “crime of violence”
to mean:
(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.
[2] We have construed 18 U.S.C. § 16 as requiring more
than mere negligent or reckless conduct. See Fernandez-Ruiz
Gonzales, 466 F.3d 1121, 1130 (9th Cir. 2006) (en banc)
(“[N]either recklessness nor gross negligence is a sufficient
mens rea to establish that a conviction is for a “crime of vio-
lence under § 16.”) (citing Leocal v. Ashcroft, 543 U.S. 1(2004)); see also Leocal, 543 U.S. at 11-13 (“Interpreting
§ 16 to encompass accidental or negligent conduct would blur
the distinction between the ‘violent’ crimes Congress sought
to distinguish for heightened punishment and other crimes.”).
[3] California Vehicle Code § 2800.2(a) makes it a crime
“[i]f a person flees or attempts to elude a pursuing peace offi-
cer in violation of Section 2800.1 and the pursued vehicle is
driven in a willful or wanton disregard for the safety of per-
sons or property.” The statute further provides that “willful or
wanton disregard for the safety of persons or property
includes, but is not limited to, driving while fleeing or
PENULIAR v. MUKASEY 6577
attempting to elude a pursuing peace officer during which
time either three or more violations that are assigned a traffic
violation point count under Section 12810 occur, or damage
to property occurs.” Cal. Veh. Code § 2800.2(b).
[4] As defined by subsection (b), “willful or wanton disre-
gard” exists if a driver commits three Vehicle Code viola-
tions. As one court explained,
[a]lthough Vehicle Code section 2800.2 uses the
phrase ‘willful or wanton disregard for the safety of
persons or property’ to describe an element of reck-
less evading, the statute defines this element so that
it may be satisfied by proof of property damage or
by proof that the defendant committed three Vehicle
Code violations.
People v. Pinkston, 112 Cal. App. 4th 387, 392 (Ct. App.
2003) (emphasis added). This explanation by its terms defines
the mens rea for evading an officer as “reckless.” Moreover,
it allows proof of that mens rea by showing merely that the
defendant has “committed three Vehicle Code violations.”
Many California Vehicle Code violations require, at most,
negligent disregard for the safety of persons or property. In
other words, “willful or wanton disregard,” as defined by Cal-
ifornia Vehicle Code § 2800.2(b), is broader than the tradi-
tional mens rea required under Fernandez-Ruiz and Leocal.
Because the state statute requires only reckless conduct, and
because it would be possible to engage in “willful or wanton
disregard for the safety of persons or property”3 by negli-
3
For instance, a traffic violation point can be assessed where a driver
owns and operates a car that is “(1) [n]ot registered or for which any fee
has not been paid under [the vehicle] code,” “(2) [n]ot equipped as
required in [the vehicle] code,” or “(3) [n]ot in compliance with the size,
weight, or load provisions of [the vehicle] code.” Cal. Veh. Code
§§ 12810(f), 40001(b)(1)-(3). In addition, a traffic point may be assessed
for, “[e]xcept as provided in subdivision (i) [exempting certain conduct
where the driver is not the owner of the vehicle], any other traffic convic-
tion involving the safe operation of a motor vehicle upon the highway.”
Id. § 12810(f).
6578 PENULIAR v. MUKASEY
gently committing three Vehicle Code violations, Section
2800.2 is broader than a “crime of violence” as defined by 18
U.S.C. § 16.
The government relies on United States v. Campos-Fuerte,
357 F.3d 956 (9th Cir. 2004), in which we held that the
offense of evading an officer under the 1992 version of Cali-
fornia Vehicle Code § 2800.2 was a “crime of violence”
under 18 U.S.C. § 16. In reaching this conclusion, we relied
on California case law construing “willful or wanton miscon-
duct” as “intentional wrongful conduct.” Id. at 961. But the
meaning of “willful or wanton disregard” in section 2800.2
has since been amended to include the commission of three
California Vehicle Code violations. See Pinkston, 112 Cal.
App. 4th at 391 (“Vehicle Code section 2800.2, subdivision
(b) . . . was added to section 2800.2 in 1996.”). Because
Campos-Fuerte relied on the prior meaning of “willful or
wanton” in reaching its result, it is not binding in the present
case.
[5] Accordingly, we conclude that a conviction for evading
an officer in violation of California Vehicle Code § 2800.2
does not categorically qualify as a “crime of violence” within
the meaning of 18 U.S.C. § 16.
B. Modified Categorical Approach
In concluding that Penuliar’s conviction for evading an
officer was a “crime of violence” under 18 U.S.C. § 16, and
hence an “aggravated felony” under 8 U.S.C. § 1101(a)
(43)(F), the IJ relied on three pieces of evidence. The IJ relied
on (1) the November 21, 2000, criminal information charging
Penuliar with evading an officer in violation of California
Vehicle Code § 2800.2(a), (2) an abstract of judgment show-
ing that Penuliar pled guilty to that charge, and (3) a probation
officer’s report.4 The government did not introduce either
4
On appeal, however, the government abandons any reliance on the pro-
bation officer’s report to establish that Penuliar was convicted of a “crime
of violence” under the modified approach.
PENULIAR v. MUKASEY 6579
Penuliar’s plea agreement or a transcript of Penuliar’s plea
proceeding into the record. Instead, the government argues
that the information and abstract of judgment were sufficient
for the IJ to determine that Penuliar’s conviction for evading
an officer was a “crime of violence” under 18 U.S.C. § 16.
We disagree.
[6] The judicially noticeable documents in the record are
insufficient to establish whether Penuliar pled guilty to con-
duct that was more than merely reckless or negligent. The
information charging Penuliar with evading an officer con-
tains nothing more than the generic statutory language from
California Vehicle Code § 2800.2(a).5 But as discussed above,
the statute is broader than the generic “crime of violence”
under 18 U.S.C. § 16. Thus, the abstract of judgment, which
simply recites that Penuliar pled guilty to the charge, is
plainly insufficient to establish that Penuliar pled guilty to
conduct constituting a “crime of violence.” See United States
v. Contreras-Salas, 387 F.3d 1095, 1098 (9th Cir. 2004)
(holding that defendant was not convicted of a crime of vio-
lence where information and judgment of conviction failed to
5
Count three in the November 21, 2000, Information states:
On or about October 18, 2000, in the County of Los Angeles,
the crime of EVADING AN OFFICER, WILLFUL DISRE-
GARD, in violation of VEHICLE CODE SECTION 2800.2(a), a
Felony, was committed by NOPRING PAULINO PENULIAR,
who did wilfully and unlawfully, while operating a motor vehicle
and with the intent to evade, flee and otherwise attempt to elude
a pursuing peace officer’s motor vehicle while all of the follow-
ing conditions existed: the peace officer’s motor vehicle exhib-
ited at least one lighted red lamp visible from the front and the
defendant(s) saw and reasonably should have seen the lamp, the
peace officer’s motor vehicle was sounding its siren as was rea-
sonably necessary, the peace officer’s motor vehicle was distinc-
tively marked, the peace officer’s motor vehicle was operated by
a peace officer.
It is further alleged that the defendant(s) drove with a willful
and wanton disregard for the safety of persons and property.
6580 PENULIAR v. MUKASEY
establish whether defendant was convicted of “volitional,
reckless, or negligent conduct”).
Finally, insofar as the IJ relied on the probation report to
establish that Penuliar pled guilty to a “crime of violence,” he
was in error. See, e.g., United States v. Vidal, 504 F.3d 1072,
1087 n.25 (9th Cir. 2007) (en banc) (citing United States v.
Franklin, 235 F.3d 1165, 1171 (9th Cir. 2000) (explaining
that a presentence report, even when considered in conjunc-
tion with charging papers, is insufficient to establish what
facts a defendant admitted in his plea).
[7] Accordingly, we conclude that the BIA erred in affirm-
ing the IJ’s decision that Penuliar’s conviction under Califor-
nia Vehicle Code § 2800.2(a) was a “crime of violence” under
8 U.S.C. § 1101(a)(43)(F).
II. Unlawful Driving or Taking of a Vehicle
A. Categorical Approach
[8] Under 8 U.S.C. § 1101(a)(43)(G), the term “aggravated
felony” means “a theft offense (including receipt of stolen
property) or burglary offense for which the term of imprison-
ment [is] at least one year.” This circuit defines a “theft
offense” under § 1101(a)(43)(G) to mean “a taking of prop-
erty or an exercise of control over property without consent
with the criminal intent to deprive the owner of rights and
benefits of ownership, even if such deprivation is less than
total or permanent.” See, e.g., Vidal, 504 F.3d at 1077 (quot-
ing Martinez-Perez v. Gonzales, 417 F.3d 1022, 1026 (9th
Cir. 2005)).
[9] Under California Vehicle Code § 10851(a), a person is
guilty of unlawful driving or taking of a vehicle if he or she
drives or takes a vehicle not his or her own, without
the consent of the owner thereof, and with intent
PENULIAR v. MUKASEY 6581
either to permanently or temporarily deprive the
owner thereof of his or her title to or possession of
the vehicle, whether with or without intent to steal
the vehicle, or . . . is a party or an accessory to or
an accomplice in the driving or unauthorized taking
or stealing . . . .
Cal. Veh. Code § 10851(a) (emphasis added). As the statute
makes plain, California Vehicle Code § 10851(a) includes
accessory and accomplice liability. We originally found in
Penuliar v. Gonzales, 435 F.3d 961 (9th Cir. 2006), that the
broad nature of aiding and abetting liability under California
law precluded a finding that § 10851(a) was a generic “theft
offense,” but the Supreme Court disagreed, holding that a
generic “theft offense” includes the crime of aiding and abet-
ting. See Duenas-Alvarez, 127 S.Ct. at. 820. In so holding,
however, the Court expressly declined to address whether
§ 10851(a) is overbroad because it extends liability to acces-
sories after the fact. Id. at 822-23. Accordingly, we granted en
banc review in United States v. Vidal to resolve the question
that the Supreme Court declined to address in Duenas-
Alvarez.
[10] On October 10, 2007, we gave our answer: A convic-
tion under § 10851(a) does not categorically qualify as a theft
offense because it extends liability to accessories after the fact
for post-offense conduct. Vidal, 504 F.3d at 1077. We
explained that, unlike a principal, an accomplice, or an acces-
sory before the fact, an accessory after the fact “had no part
in causing the crime,” id. at 1078, and thus lacked the “crimi-
nal intent to deprive the owner of the rights and benefits of
ownership,” id. at 1080 (quotation marks and citation omit-
ted). Accordingly, we concluded that an accessory after the
fact cannot be held culpable of generic theft within the mean-
ing of 8 U.S.C. § 1101(a)(43)(G).
[11] Following Vidal, a conviction under § 10851(a) does
not qualify as a “theft offense” under the categorical
6582 PENULIAR v. MUKASEY
approach. Therefore, we must now proceed “to the modified
categorical approach to determine if the record unequivocally
establishes that [Penuliar] was convicted of the generically
defined crime, even if the statute defining his crime is overly
inclusive.” Id. at 1086 (quotation marks and citation omitted).
B. Modified Categorical Approach
In concluding that Penuliar committed a “theft offense”
within the meaning of 8 U.S.C. § 1101(a)(43)(G), the IJ relied
on two separate convictions under California Vehicle Code
§ 10851(a). For the first conviction, the IJ relied on a felony
complaint, dated June 1, 2000, charging Penuliar with unlaw-
ful driving or taking of a vehicle in violation of California
Vehicle Code § 10851(a), and an abstract of judgment show-
ing that Penuliar pled guilty to that charge on June 30, 2000.
For the second conviction, the IJ relied on a criminal informa-
tion, dated November 21, 2000, charging Penuliar with
another count of unlawful driving or taking of a vehicle in
violation of California Vehicle Code § 10851(a), and an
abstract of judgment showing that Penuliar pled guilty to that
charge on December 13, 2000.6 As was the case with Penul-
iar’s conviction for evading an officer under California Vehi-
cle Code § 2800.2, the government did not submit Penuliar’s
actual plea agreement or a transcript of the plea proceeding.
[12] The government argues that because both counts of
unlawful driving and taking of a vehicle describe Penuliar as
a principal, and because Penuliar pled guilty to both counts,
the charging documents and the abstract of judgment are suf-
ficient to establish that Penuliar was convicted of a “theft
6
The IJ also relied on a probation officer’s report that details the facts
underlying Penuliar’s December 13, 2000, conviction for unlawful driving
or taking of a vehicle. However, as previously discussed, the IJ’s reliance
was misplaced insofar as he used the probation officer’s report to establish
that Penuliar pled guilty to conduct described therein. See Vidal, 504 F.3d
at 1087, n.25.
PENULIAR v. MUKASEY 6583
offense” under 8 U.S.C. § 1101(a)(43)(G). Again, we dis-
agree. The charging documents for both convictions only cite
the generic statutory language from § 10851(a) for unlawful
driving or taking of a vehicle under California law, charging
Penuliar with “unlawfully driv[ing] and tak[ing] a certain
vehicle . . . then and there the personal property of [another]
without the consent of and with intent, either permanently or
temporarily, to deprive the said owner of title to and posses-
sion of said vehicle.”7 As we explained in Vidal:
[A]n indictment that merely recites the language of
the statute . . . is insufficient to establish the offense
as generic for purposes of a modified categorical
analysis. We have repeatedly held that charging doc-
uments are insufficient alone to prove the facts to
which [the defendant] admitted. When, as here, the
statute of conviction is overly inclusive, without a
charging document that narrows the charge to
generic limits, the only certainty of a generic finding
lies . . . in the defendant’s own admissions or
accepted findings of fact confirming the factual basis
for a valid plea.
Id. at 1088-89 (internal quotation marks and citations omitted)
7
Count One in the June 1, 2000, felony complaint states:
On or about May 31, 2000, in the County of Los Angeles, the
crime of UNLAWFUL DRIVING OR TAKING OF A VEHI-
CLE, in violation of VEHICLE CODE SECTION 10851(a), a
Felony, was committed by NOPRING PAULINO PENULIAR,
who did unlawfully drive and take a certain vehicle, to wit, 1994
FORD ESCORT, LICENSE #3GUM326, then and there the per-
sonal property of MARHVIN ATIENZA without the consent of
and with intent, either permanently or temporarily, to deprive the
said owner of title to and possession of said vehicle.
Count Three of the November 21, 2000, criminal information is identical
in its language, except that it lists a different car, license number, and
owner.
6584 PENULIAR v. MUKASEY
(second bracket and second ellipsis in original). We further
noted:
California case law indicates that California prosecu-
tors regularly employ generic charging language
similar to that alleged in the 1994 Complaint when
prosecuting section 10851(a) offenses. In light of
this apparent standard prosecutorial practice, we can-
not conclude from the 1994 charging document,
which likewise simply recited the statutory elements
of the offense and inserted the victim’s name and car
description, that Vidal admitted to the facts as gener-
ically alleged.
Id. at 1088 n.27 (internal citations omitted). As in Vidal, the
charging documents for both § 10851(a) convictions in this
case simply recited the statutory elements of the offense and
inserted the victim’s name and car description. Accordingly,
the June 2000 complaint and the November 2000 information
are insufficient to prove that Penuliar pled guilty to
§ 10851(a) as a principal, rather than an accessory after the
fact.
[13] Similarly, the abstracts of judgment for both convic-
tions, which simply recite that Penuliar pled guilty to
§ 10851(a), cannot establish what facts Penuliar admitted in
his guilty plea. See Vidal, 504 F.3d at 1087 (“In order to iden-
tify a [§ 10851] conviction as the generic offense through the
modified categorical approach, when the record of conviction
comprises only the indictment and the judgment, the judg-
ment must contain “the critical phrase ‘as charged in the
Information.’ ”). Without a plea transcript or other evidence
demonstrating the theory under which Penuliar pled guilty,
we cannot find that Penuliar pled guilty to § 10851(a) as a
principal.
Another panel of our court recently applied the modified
categorical approach to a § 10851(a) conviction in Arteaga v.
PENULIAR v. MUKASEY 6585
Mukasey, 511 F.3d 940 (9th Cir. 2007). Arteaga was decided
two months after Vidal. After reviewing the evidence of con-
viction before the IJ, the Arteaga panel concluded that Vidal
was “inapposite” because “applying the Taylor modified cate-
gorical approach to the facts here reveals that Arteaga was
convicted of a theft offense.” 511 F.3d at 947. In support, the
Arteaga panel cited Taylor, 495 U.S. at 602, for the proposi-
tion that “a predicate conviction qualifies as a generic crime
if either its statutory definition substantially corresponds to
the generic definition, or the charging paper and jury instruc-
tions required the jury to find all elements of the generic
crime in order to convict.” 511 F.3d at 947-48.
Arteaga did not describe the record before it concerning the
conviction or explain what in the record of conviction indi-
cated that the offense of conviction was a generic theft
offense. Arteaga is therefore not precedent with regard to
application of the Taylor modified categorical approach to
any particular kind of documents or any specific language
appearing in those documents. Legal rulings in a prior opinion
are applicable to future cases only to the degree one can
ascertain from the opinion itself the reach of the ruling.
Where the underlying facts do not appear, later courts are
bound by any rule of law explicitly announced, but not by the
application of that law to unstated factual circumstances. Cf.
Hart v. Massanari, 266 F.3d 1155, 1172 (2001) (stating that
to determine whether an opinion represents “controlling
authority [courts] must parse precedent in light of the facts
presented and the rule announced”); In re Osborne, 76 F.3d
306, 309 (9th Cir. 1996) (“Insofar as precedent is concerned,
stare decisis is important only for the decision, for the detailed
legal consequence following a detailed set of facts.”).
[14] There was no evidence before the IJ “unequivocally”
establishing that Penuliar was convicted of a “theft offense”
under 8 U.S.C. § 1101(a)(43)(G). Martinez-Perez, 417 F.3d at
1028. Therefore, we must conclude that the IJ erred in finding
6586 PENULIAR v. MUKASEY
that Penuliar was removable as an “aggravated felon” under
8 U.S.C. § 1227(a)(2)(A)(iii).
CONCLUSION
In sum, we hold that evading an officer in violation of Cali-
fornia Vehicle Code § 2800.2(a), is not categorically a “crime
of violence” under 8 U.S.C. § 1101(a)(43)(F). We also hold
that the evidence was insufficient to establish that Penuliar
pled guilty to a “theft offense” within the meaning of 8 U.S.C.
§ 1101(a)(43)(G). We thus conclude that the BIA erred in
affirming the IJ’s decision that Penuliar pled guilty to a
“crime of violence” or a “theft offense” under the INA.
PETITION GRANTED.