hartzler on behalf of mr arriaga opinion to find a person guilty of california vehicle theft a jury doesn't have to decide whether the person was acting as a principal or as an accessory after the fact because of this the statute is indivisible and cannot be a generic theft offense but even if the court disagrees with that mr r e i this record of conviction is virtually identical to the record in view dall with this court found that the record documents were insufficient under the modified we still have joined us alvarez how do you think that that doesn't i guess your argument is a mathis makes it so clear that a three judge panel can overwhelm the three to another three judge panel on this issue leap for us of course i understand that you know the court feels some hesitation and over rule in another three judge panel and that's completely understandable but miller began he was made for cases like this because there's no dispute here that in doing this alvarez this court applied an entirely different analysis it looked at the time as we all did as whether the statute said x y or z and the statutes that x y or z and  divisible now after mathis we know that we don't use that analysis we use completely different analysis that focuses on whether a jury would have to decide unanimously whether the person was a principal or an accessory and to do that we look at case law we look at the text of the statute in a different way and when is did we look at jury instructions and in certain cases we look at a peek at the record documents so it's hard to imagine to analyse that are more clearly supreme court define principles and accessories after the fact it's two different crimes and all of the case law on this says no every single case from the california supreme court in from the california appellate courts says the tenant fifty one has a single set of elements and is a single offense and there's never been a different set of elements that has been defined for purposes of an accessory after the fact so case law clearly falls on or stop aside and given that frankly i don't think the court needs to go any farther but if the court did go farther then you look at the jury instructions which also contains a single set of jury instructions corresponding to those single set of elements then you also perhaps look at the text of the statute and in mat instruction that we look at whether the text of the statute just provides illustrative examples so under all of those reasons your honor we believe that the statute is indivisible the court doesn't does have the authority to say a principal an accessory after the fact are two fundamentally different crimes and my opponent although she talks about all the various cases i would direct this court to this court's on bar decision in united states v separate pages from ten to seventy seven to ten a d judge pius details why accessory after the fact is an entirely different difference and he says on one hand attempt conspirac solicitation aiding and abetting these are all in code offenses that before an offense has even been completed they go towards contributing to it on the other hand excess re after the fact this is been true to english common law through the united states common law by definition it begins where the principal offense ends and what it is all about you do not share the same intent as the principal it page ten seventy of only ten seventy nine a law section introduction to crime specifically one thirteen what we can goes on to say is that in california one cannot be a principal an aider and abettor anything on the outside the equation based on the same charge conduct that an accessory after the fact would be found liable i'm a little confused on that as i understood it the prosecution charged  defendant pleaded and i think no contest to it correct so why doesn't that mean we don't know from the categorical analysis which way he did it so we don't know whether it was generic after not all that goes to tell me five one can be committed in two ways by either driving or taking a vehicle but again that is the acts of a principal and the exact minute i suppose you could be in excess or after the fact your friend steals a car you have nothing to do with it comes to your house says hey can i park this car in your garage for a while i notice or nothing in your garage and you say sure and then he says the cops may be looking for it so i want to keep the garage door closed because i stole it at that point you are an accessory after the fact if you say yes and closed the garage door for him but here's the  case in order to be an accessory you have to act you have to have knowledge of the felonies committed you have to act with the intent to shield the perpetrator from prosecution or punishment yeah that's what my hype why i constructed the hypothetical exactly but my point is california when somebody is charged as an accessory after the fact that specific intent needs to be charged they need to be given notice of this this would be a due process violation to say you know what what i asked you is a little different i asked based on the way the why couldn't the defendant be understanding the charge to include that behavior and be pleading no contest because he knows it and now it's all totally speculative there's no reason to think it injures do it harms self but that's not really the question in these cases i would say for two reasons you're on a first of all that charge to which he's pleading nolo at th nothing about having an intent to shield the perpetrator from punishment or prosecution secondly i would point out invade all itself again and judge paez made a point where he somebody if the prosecution were to proceed on it exacerbate after the fact theory they would do so with a modified jury instruction let me ask you this counsel and i want to focus specifically on this particular statute it's a bunch of teenagers take their neighbor car to go for a joyride and there's that's a three teenagers are you saying that in california the driver would be charged and the way that mr almost charge in this case but the three other teenagers riding in the car would have to be specifically charged as an accessory after the fact and the jury would have to be specifically instructed to make that finding under this particular statute which covers that of cars take it t shop as well as joyriding your honor i don't know exactly what the charges be it would depend on the facts in four people go to steal a car together in the three are aiding and abetting in encouraging the one who actually does the driving and there a detail he just makes a reference on what is probably a reasonable assumption that the defendant's lawyers explain to him what section one away five one a is and then you look at one away five one and it includes being an accessory at it and you know it includes accessory after the fact from the case law so why couldn't he be pleading to be in excess of being an accessory after the fact rather than a three before the fact based on what the judge told him he was charged with and his plea to it because again when he's told what he's charged with then one looks to the charge and this isn't a ten paragraph charge isn't a ten cents charge this is maybe one sentence charge at the very end of it it says absolutely nothing about acting with the intent to shield the perpetrator from prosecution or punishment and it's some point people are presumed to know the law if you have the charging document which manson's mentions of ski's need absolutely nothing about an accessory after the fact theory i don't see how one can say it's a reasonable inference for somebody to just imagine that out of the blue are usually made as broadly as possible so that no matter how the defendant violated the statute the prosecutor will ultimately be able to convict them and that they get narrowed down if at all during the take a third vehicle but i don't see why i couldn't be convicted under that felony complaint even if he himself did not drive and take the vehicle was merely an accessory after the fact to it and my answer to that is because the very last phrase of that charge and that's it e r forty two says with intent either permanently or temporarily to deprive the set owner of title two and possession of said vehicle that doesn't prevent being an accessory after the fact respectfully the guy his friend stashes the stolen car in it's garage and tells him that this is a stolen car and why wouldn't that be something that he could be convicted of under this charge because he needs to be charged with the said no that was i was about to make another point which is that even in the seventy year history of this statute there is not a single case that either party can point to where somebody has actually been prosecut am trying to answer your hypothetical when you say or when you're asking me why somebody couldn't be held guilty as an accessory based on the language of this case or your hypothetical i'm saying because it least in this case the charging document phrase says with intent either permanently or temporarily to deprive the owner of title or possession it page ten seventy nine of the dolls judge pies for the majority says it's impossible for the mens rea of the accessory after the fact to be the most important which includes the element of criminal intent to deprive the owner of rights and benefits of ownership so if that is adult tells us that that intent which is the intent of the principle is not the same as an so i don't know how that makes a difference here's the important thing your honor you know the for i mean the charge is virtually i doubt it is identical really and in this case and a doll in contrast minus alvarez the complaint alleged of taking that's that's it is but a few points your honor in the dole one of the critical aspects of that decision was the amber courts that here we don't have a transcript and they said the unique thing about california state law that state statute is and he wants to plead nolo so the judge just uses the statutory language in in a very terse formulation so we know as lawyer has told him what the statute criminalizes and it could even be had the garage and he could get a superseding i don't know what you call it in california whether it's a superseding complaint or what they call well i don't know if we know that but i would submit it's not it's not dispositive because driving or taking on both the acts of a principal and without any allegation in this record judge thomas nowhere not in the charge you know what about your honor is my opponent raised a lot of arguments and i'm happy to discuss whatever the court would like to discuss of those but i just want to start off by pointing to a very important aspect of mathis and mathis said something that no other court has said in terms of the divisibility not now says which is that if the look at the case law the documents the jury instructions the text doesn't satisfy taylor's demand for certainty then the inquiries over we have to presume that it's indivisible for all the reason set forth and tailored there'd be a pretty problem there's problems if not all of those things i didn't hear mr ray he respectfully say anything that shows me that the taylors demand for certainty has been satisfied he didn't satisfy he didn't cite a single california case and you know i understand that the dulcet certain things but the fact is that this is about the doll but it's also about looking to california case complaint would have had to say for this fellow at the that he had the intent to shield the thief from criminal liability rather than the intent or separate from the intent to deprive the owner of his car i would say that that wasn't good enough for the dom and jordi because essentially the doll majority said look this is the generic way that people are charged in the california law and if that needed to be charged in order for the the you know the person to be convicted as an accessory then that all would have come out differently but it didn't so while certainly the could the guy with the garage for my hypothetical be convicted yes yes and the reason is because california prosecutors charge everyone the same now one of the things that you just charge you with  that's how they do it and i'm sorry you and i were talking at the same time what i want to know is they just charge the defendant with a violation of the statute in the words of the statute exactly and that's what the job the da majority said what about when it comes time for trial would the accessory after the fact defendant get a different instruction so that there's unanimity with regard to whether he's being convicted of a principal versus an accessory at  person would get an additional instruction but what would happen is that the regular jury instruction stayed in the elements that we have set forth that would be read and then at most there would be an additional instruction read but a jury would never be told you have to rely on this instruction or that instruction it could rely on either in fact certain jurors could rely on one instruction certain jurors could rely on another instruction the bottom line is that there's no i'm sorry i'm sorry the jury would be told you can convict this fellow whether you think he drove the car away himself or whether you think all he did was stored in the in his garage with the door closed the jury would be told you have you can't say that the person was convicted of both being a principal and an accessory you can't find that but that's a different instruction then same jury you have to find unanimously that this person acted as a principal or you have to find unanimously that the person acted as an accessory so you have six people can find that he's a principal six people can find these accessory instill result in the conviction is what you're saying exactly and that's exactly what happened in which was the case cited in the dahlan and that was discussed in our briefing so that's not a situation where for instance a jury would have to do with a special verdict form and say we all find that he's a principal or we'll find that he's accessory some kids think is an accessory some good things a principle so long as no one thought that he was both that's fine under california law and that's exactly the analysis that we have to do for divisibility here and that's why we believe that the statute is indivisible so i get to  when is alvarez but first of all we disagree with that but even if that were true this court is actually found by the dall over duenas alvarez because the dollar's on bach and the fact is that if this court takes a modified doll and doesn't apply that exact modified categorical analysis to a case where the documents are pretty much identical then then what good is the on bank opinion essentially this court would then be saying no we can't follow the modified categoric analysis and that all and that's certainly not correct i don't think you're right about us being able to ignore duenas alvarez if we think it conflicts with  referred to a take it referred to refer to waterford to a taking it referred to a taking and then it also referred to specifically auto theft where is here in our case the complaint said unlawful driving and taking and the conviction the judgment just said ten and fifty one and that's pretty much exactly what the doll said so at a minimum your honor the documents here are much more closely aligned with those of a doll than in thank your on the case just argue to be submitted for a decision thank you for your arguments we started down this road on taylor many years ago and now the supreme court set us on a different paso i think it will be at these for a