F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

H E C T O R G I O V

A N N I R A M I R

E Z , P etitioner
,

v

.

L O R E T T A E. L Y

N C H , Attorney General, Respondent

. N o. 08-72896

Ag ency No. A043-733-743

OPI NI ON

O n Petition for Review of an Order of the B oard of I

mmig ration Appeals

Arg ued and Submitted N ovember 20, 2014—Pasadena, California

F iled J anuary

20, 2016

B efore: Kim McL ane W ardlaw and Richard A. Paez Circuit J udg es and Matthew F

. Kennelly
, * District J udg e.

Opinion by J udg e Paez

* T h e Ho n o rab le Matth ew F. K e n n elly
, District J u d g e f or th e U .S. District Co u

rt f o r th e N o rth ern District o f Illin o is, sittin g b y d esig n atio n

.R A M I R E Z V

. L Y

N C H 2

SUMMARY * *

Im m igration

The p anel g ranted Hector Giovanni Ramirez ’s petition for review of the B oard of I mmig ratio n Appeals’ decision that his conviction for felony child abuse under Calif o r n ia Penal Code § 273a(a) constitutes a c rime of violence under 1 8 U.S.C. § 16 and is therefore an ag g ravated felony

.

The panel held that § 2 73a(a) does not q u al i f y as a categ orical crime of vio lence because it is broader than the
g eneric federal definition in 18 U. S .C. § 16. The panel also found that § 2 7 3 a ( a ) is not a divisible statute, because the alternative mens rea requirements are not element s but a re rath e r alternative means f or accomplishing a sing le indivisible crime. The panel thus found tha t Ramirez ’s conviction does not constitute an ag g ravated felony

.

COUNSEL

Anna B envenue (arg

ued) and Robert B

. J obe, L aw Office o f Robert B . J obe, San F r ancisco, California, for Petitioner.

Anh-Thu P. Mai-W indle (arg ued), Senior L itig ation Counsel and T h omas B

. F atouros, Senior L itig ation Counsel, United States Departme nt of J ustice, Office of I mmig r ation L itig ation, W ashing ton, D .C.; Tony W est, Assistant Attorney

** T h is su m m ary co n stitu

t es n o p ar t o f t h e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.R A M I R E Z V

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N C H 3

General, United States Department of J ustice, Civil D ivision, W a shing ton, D.C., for Respondent.

OP INION

PAEZ , Circuit J udg e:

He c tor G iovanni Ramirez petitions for review of the B oard of I mmig ratio n Appeals’s (“B I A”) decision that his conviction under California Penal Code section 273a(a) for felony c hild abuse consti t u t e s a crime of violence under 18 U.S.C. § 1 6(a) a n d ( b ) a nd therefore qualifies as an ag g r avated felony u n d er 8 U.S.C. § 1101(a)(43)(F ). W e

co n c lude that section 2 73a(a) is not a categ o r ical c rime o f violence and is not divisible. W e thus ag ree wit h R a m irez that h is conviction does n ot constitute an ag g ravated felony
, and g rant the petition and remand.

I.

A.

Ramirez is a native a

nd citiz en of El Salvad o r

. H e immig rate d to the U nited States as a lawful p ermanent resident in 1992, and all of his immediate family members a re U.S. citiz ens. Ramirez g raduated from hig h school in t h e United States and subsequently enlisted in the U.S. Na v y , serving for four y ears.

I n F ebruary 2000, Ramirez was convicted of felony child abuse, in violation of section 273a(a), and was s e n t e n ced to 8 y ears and 4 months of imprisonment. Ramirez appealed his conviction, which the California Court of Appeal affirmed.R A M I R E Z V

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N C H 4

Th e Department o f Homeland Security c ommenced removal p roceeding s ag ainst Ramirez in F ebruary 2007, alleg ing that he was subject to r e moval from the United States

un d e r 8 U.S.C. § 1 227(a)(2)(A)(iii) as an alien convicted o f

a “crime of violence,” which is a deportable “ ag g rava t e d felony ” under 8 U .S.C. § 1101(a)(43)(F ) and 18 U.S.C. § 16. The immig ration judg e found him removable as charg e d a nd ordered him removed. Ramirez appealed to the B I A, arg uing that his conviction d id not constitute a crime of violence a nd therefore d i d not constitute an ag g r avated felony

. The B I A affirmed the I J
, concluding that a) section 273a(a) is a divisible statute; and b) it contained a “direct infliction”
prong , w hich incorporated a mens r ea element of g eneral intent, and was therefore a c a t e go r ical match for the federal definition o f a crime of violence. The B I A
, e m p loy ing the modified categ orical appro ach, e x amined the records o f conviction contained in the a dministrative record a nd concluded that Ramirez had b een convi c t e d of the direct infliction prong . Ramirez filed a timely petition for review.

Althoug h we lack jurisdiction to review the final orders of removal of aliens convicted of c e rt ai n crimes, 8 U .S.C. § 1252(a)(2)(C), we retain jurisdiction to determine our o wn jurisdiction. Therefore, when the issue a t hand is whether an alien has c ommitted an ag g ravated felony
, “the jurisdictional question a

nd the meri t s c o llapse into one.” See Y e v. INS
, 214 F .3d 1128, 1131 (9th Cir. 2000). W here, a s h e r e , the B I A conducts a

n independent review of the I J ’s finding s, we review the B I A’s decision and n o t t h a t of the I J

. RomeroRuiz v. Mukasey , 538 F .3d 1057, 1061 (9th Cir. 2008).

“W e do not defer [ under Chevron U.S.A., Inc. v. Natural Resources Defense Council

, In c. , 467 U.S. 837 (1984)] to B I A interpretations of state law or of provisions of the federalR A M I R E Z V

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N C H 5

criminal code referenced within, b ut not part of, t h e I mmig r a tion and Nationality Act,” (I N A) including 18 U .S.C. § 16. Ortega-Mendez v

. Gonzales
, 450 F .3d 1010, 1 014 (9th Cir. 2006) (citing P arilla v

. G o n zales
, 4 14 F .3d 1038, 1041 (9th Cir. 2005)). Therefore, we review de novo the decision of the B I A.

B.

To assess whethe r a state conviction qualifies as an ag g r avated felony
, w e g enerally employ the “categ orical approach” to determine whether the state offense matches the “g eneric” federal definition of the pertinent offense listed in the I NA: here, a crime of violence under 18 U.S.C. § 16(a) o r (b). 1 M o n c rieffe v. Holder
, 133 S. Ct. 1678, 1684 (2013). W e do so by “compar[ ing ] th e e lements of the statute o f conviction w ith a federal definition of the crime to determine whether conduct proscribed by the statute is broader than the
g eneric f ederal definition.” Rodriguez-Castell on v. H older
, 733 F .3d 847, 853 (9th Cir. 2013) (inte r n a l quotation marks and citation omitted). I n making thi s c omparison, we must rely ex c lusively on the elements of the two crimes, “[ b] ecause

we ex amine what the state convictio n n ecessarily involved,
not the f acts underly ing the case, [ a n d so] must presume that the conviction ‘r e s t ed upon [ nothing ] more than the least o f th[ e] acts’ criminaliz ed.” M onc r i e f f e , 133 S. Ct. a t 1684

1 In D ima ya v. Lyn ch
, 8 0 3 F.3 d 1 1 1 0 (9 t h Cir. 2 0 1 5 ), petitio n fo r reh ’g

en b an c filed (No v

. 1 8
, 2 0 1 5 ), w e recen tly h eld th at 1 8 U.S.C. § 16 (b ) is

u n co n stitu

tio n ally v ag u e u n d er Jo h n so n v. Un ited S ta tes , 1 3 5 S. C t. 2 5 5 1 (2 0 1 5). T h e o p in io n in Dima ya w as f iled af t er b rief in g an d oral arg u m en t in th is case, an d th e p arties d id n o t arg u e th at th e d ef i n itio n o f “ crim e of

v io len ce ” articu lated in 1 8 U.S.C. § 1 6 (b ) w as v oid f o r v ag u en ess. B ecau se w e g ran t th e p etitio n o n o th er g ro u n d s , w e d o n o t ad d ress th e

v alid ity o f 1 8 U.S.C. § 1 6 (b ) in th i s o p in io n

.R A M I R E Z V

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N C H 6

(emphasis added). W e “ then d etermine whe ther even those
acts a re encompassed by the g eneri c federal offense.” Id .; Descamps v

. Unite d States
, 133 S. Ct. 2276, 2283 (2013) (“The key . . . is elements, not facts.”).

I n identify ing the elements of the statute of conviction, we look not only to t h e tex t of the statute, but also to how state courts have interpreted and applied the statute. Covarrubias Teposte v. Holder
, 632 F

. 3d 1049, 1054 (9th Cir. 2011). W e must d etermine whether there ex ists “a realistic probabi l i ty , not a theoretical possibility
, that the State wou l d a p p ly its
statute to conduct that f

a l l s outside the g eneric definition o f

a crime.” Gonzales v

. Duenas-Alvarez
, 549 U .S. 183, 193 (2007). A dditionally
, if the federal g eneric offense is not i t s e lf a c rime, b ut rather a classification of crimes, l i k e “crime[ s] of v iolence,” then we als o compare the crime o f conviction w ith other c rimes determined to fall wi t h i n that classification. Cerezo v. Mukasey
, 512 F .3d 1163, 1 166 (9th Cir. 2008). I f, after conducting this categ orical analy sis, we conclude that the state statute of c onviction criminaliz es more conduct than the federal g eneric offense, the n the state conviction d oes not f

all within the federal definition, and will
not qualify a s an ag g ravated felony crime o f v iolence for immig ration purposes. See Descamps , 133 S. Ct. at 2283.

I n a “narrow rang e of cases,” when the statute at issue is divisible, we may e mploy a “modified categ orical a pproach.” Id. at 2283–85 (citation omitted). A divisible statute lists alternative sets of elements, in essence “several different crimes.” Id. a t 2284. “I f at least one, but not all of those crimes matches the g eneric v e rsion, a c ourt needs a way to find out which the defendant was convicted of.” Id. at 2285. I n these instances, we ma y l o o k b e y ond the elements o f the

s t a tute to the documents of conviction, i.e., to “the st a t eR A M I R E Z V

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N C H 7

charg ing d ocument , a sig ned plea ag reement, jury instructions, g uilty pleas, transcripts of a plea proceeding a nd the judg ment,” to determine w hether the pet i t ioner was

co n v i cted of a set of elements that falls within the g eneric definition. Fernandez-Ruiz v. Gonzales
, 466 F .3d 1121, 1132 (9th Cir. 2006) ( citing Hernande z

- M artinez v. Ashcroft
, 343 F

. 3d 1075, 1076 ( 9th Cir. 2 003)). The modified categ orical approach is thus “a tool” that allows us to a pply the categ o rical a

pproach. Descamps
, 133 S. Ct. at 2285. Moreover, “[ i] t retains the categ orical approach’s c entral feature: a f

o cus on the elements, rather than the f a c ts, of a crime,” as well as its “basic method.” Id.

W ith thes e p r inciples in mind, we first ex amine the
g eneric federal defini tion of a crime of violence under 18 U.S.C. § 16, and then tu r n to section 273a(a) of the California Penal Code.

II.

The initial briefing in this case took place b e fore the Supreme Cou r t i ssued its opinions in Moncrieffe a nd Descamp s , and before we issued our o p inion in Rendon v

. Holder
, 764 F .3d 1077 (9th Cir. 2014). W hile Ramirez initially ag reed that the modified categ orical approach was appropriate, he now contends that se c t i o n 273a(a) is indivisible and categ orically is not a crime of violence. The parties filed supplemental br i efs, which we have duly considered, addressing the impact of t h e s e decisions on Ramirez ’ s case.

T h e g overnment does n ot dispute that section 273a(a) i s

n o t a categ orical match to the federal g eneric d efinition of a crime of v i o lence. I nstead, the g overnment arg u es, as it hasR A M I R E Z V

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N C H 8

throug hout, that s ection 2 7 3a(a) is a divisible statute, a nd that we shou l d t h erefore apply the modified categ orical approach. The g overnm e n t further contends that the court may d e termine from d ocuments in the administrative record that Ramirez w as c onvicted of the direct infliction p r ong o f section 273a(a), which p rovides c riminal penalties f o r any per s o n who, “ under circumstances or conditions likely to produce g reat b odily harm o r death

. . . inflicts [ upon a child] unjustifiable phy sical pain or m e n t al suffering .” The
g overnment arg ues that this prong falls within the g eneric definition of a “ c rime of violence” under both 1 8 U .S.C. § 16(a) and (b).

The federal g eneric c rime a t issue, § 16, defines a “ crime of violence” as either:

(a) an offense that h a s as an element the use, attempted u se, or threatened use of phy sical f o r c e ag ainst the person or property o f another, or

(b) any other offense that is a felony and that, by it s n a t ure, involves a substantial risk that phy sical f orce ag ainst t h e p erson or property of another may be used in t h e course o f committing the offense.

I n Leocal v

. A s hcroft
, the Supreme Court determined that “‘use’ of force” sig n ifies intentional conduct—“active employ ment”—and encompasses a mens rea element g reater than neg lig ence. 543 U.S. 1, 9–10 (2004). The petitioner in Leocal had been convicted of drunk d riving
, and the C o u r t held that this c onduct could not fall within either § 16(a) o r (b), because § 16(b), like § 1 6(a), does not encompassR A M I R E Z V

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N C H 9

neg lig ent conduct. I

d

. a t 9–11. Rather, “[ t] he reckless disreg ard in § 16 relates not t o t h e g e n eral conduct or to the possibility that harm will result from a person’s conduct, but
to the risk that the use of phy sical force ag ainst another mig ht b e r e q uired in committing a crime.” Id. at 10 ( f ootn o t e omitted). A person who d r i ves while intox icated incurs a substantial risk that people in the v icinity wi l l ex perience force. Id

. However, even in the event that the drunk driver’s victims ex perienced force, the driver could not b e said to have “ used” that force. Id. at 10–11. Nor does t h e d runk driver intend to accomplish some cr i m i nal purpose a nd foresee the risk of force that purpose entailed. Id. Thus, the
p r o b a b i lity that victims of the crime will ex perience force does not alone render criminal conduct a “crime of v iolence.” Id

.

F ollowing Leocal
, i n F ernandez-Ruiz
, we held that “offenses committed throug h r eckless, o r g ros s l y neg lig ent,

use of force” likewise cannot constitute “ crimes o f v iolence,” under e ither § 16(a) or (b). 466 F

. 3d at 1132. Recklessness, thoug h more culpable than neg lig ence, does no t encompass the level of intent required to meet the definition of “‘use’ o f force” laid o ut by the Court i n L e ocal

. Moreover, althoug h i t is n ot entitled to deference, the B I A ag reed with o u r interpretation that 1 8 U.S.C. § 16 d oes not encompass crimes with mens rea element s of recklessness or neg lig ence in its
recent decision, Matter of Chairez-Castrejon
, 26 I

. & N. Dec. 349, 352–53 ( B I A 2 014), vacated in part on othe r grounds
, 26 I

. & N. Dec. 478 (B I A 2 015). Thus, i n order for a person’s conviction to qualify as a crime of violenc e , h e o r she must hav e “ u s e[ d] force” with a mens rea that incorporates a deg ree of intent g reater th a n does neg lig e nce or recklessness.R A M I R E Z V

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N C H 10

III.

A.

Turning to the state statute at issue, California Penal Code section 273a(a) provides:

(a) An y person who, u n der circumstances o r conditions likely to produce g reat bodily harm

or death, [ 1] willfully causes o r permits any child to suffer, or [ 2 ] inf licts thereon

u n j u s t i f i a b l e p h y s i ca l p a i n o r m e n t al suffering
, or [ 3] having the care or custody o f
any c hild, willfully causes o r p ermits the
person or health of that child to be injured, o r [ 4] willfully causes or permits that child to be placed in a situation where h i s or her person

or health is endang ered, shall b e punished b y imprisonment in a county jail not ex ceeding

one y ear, or in the state prison for t w o , four, or six y ears.

(brackets and numbers added). I t is undis p u t ed here that section 273a(a) criminaliz es conduct that would not necessarily entail any affirmative “use” of force, a nd
encompasses passive, neg lig ent conduct. F or ex ample, the
statute criminaliz es conduct that “ permits any child to suffer,” “permits the person or h ealth of that child to b e injured,” a nd “permits that child to be placed in a situation where his or her
person or health is endang ered.” California ca s e l aw confirms that section 2 73a(a) is a n “omnibus statute,” meaning that a violati on “can occur in a wide variety o f

s ituations: the definition b roadly includes both active a nd passive conduct, i.e., child a buse b y direct assault a n d c h ildR A M I R E Z V

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N C H 11

endang ering by ex trem e n eg lect.” P eople v. S argent , 970 P.2d 409, 414–15 (Cal. 19 99) (quoting People v. Smith
, 678 P.2d 886, 890–91 (Cal. 1984)).

Althoug h section 273a(a) require s a mens rea o f “willful[ n e ss] ” for the three prong s of the statute that criminaliz e indirect infliction of harm o r passive c onduct, the California Supreme Court has interpreted “willful[ ness] ” in this contex t to require proof only of criminal n eglig ence. People v. Valdez
, 42 P.3d 5 11, 519–20 (Cal. 2002) (holding that criminal neg lig ence is t h e a p p ropriate standard f

or the indirect infliction p rong s o f section 273a(a), and ex plaining that “[ w] e do not think the L eg i s l a t ure’s use of the word ‘willful’ is inconsisten t w i t h a c r i m inal neg lig ence standard”);

see also People v. Peabody
, 119 Cal. Rptr. 780 (Cal. Ct. App. 1975), cited with approval b y W alker v. Superior Court
, 763 P.2d 852, 866–67, 880 (Cal. 1988). B ecause willfulness under section 273a(a) does not requir e g reater proof o f culpability than criminal neg lig ence, w i l l fulness in this
contex t does not meet the definition of “ ‘use’ of force” elucidated by the Court in Leocal

. 543 U.S. at 9–10; see also Fernandez-Ruiz
, 466 F .3d at 1 132. A review of California

case law confirms that courts have applied section 273a(a) to criminally neg lig ent c o n d u ct. See, e.g. , People v

. Kinkead
, 9 6 C a l. Rptr. 2d 121 (Cal. Ct. App. 2000) ( affirming the conviction o f a defendant who f ell asleep nex t to his three-y ear-old daug hter, after ing esting methamphetamine, marijuana, and alcohol a nd being up for day s, a nd asphy x iated her); People v. Toney
, 90 Cal. Rptr. 2d 578 (Cal. Ct. App. 1999) (affirming the c o n viction of a defendant w ho left several containers of hig h ly f lammable and caustic chemicals on the floor of a residence inhabited by his wife’s

s i x

- y e a r-old son). Thus, we ag ree with the g overnment that section 273a(a) is not a categ orical match to the fed e ra lR A M I R E Z V

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N C H 12

g eneric definition of a c rime of violence because it criminaliz es conduct that falls outside this definition.

W h ile section 273a(a) is n o t categ orically a crime o f violence, the indirect and direct infliction prong s o f t he
statute a re phrased in t h e disjunctive. Therefore, we nex t consider whether section 2 7 3a(a) is d ivisible. Descamps
, 133 S. Ct. at 2284–85; s e e a l s o Medina-Lara v

. H

older
, 771 F .3d 1106, 1112 (9th Cir. 2014). W e hold that it is not.

B.

I n Descamps
, t h e Supreme Court clarified that a “prosecutor c h a rg ing a violation o f a divisible statute must g enerally select the relevant element from its list o f alternatives. An d the jury, as instructions in the case will make clear, must then find that e l e ment, unanimously and beyond a reasonable doubt. ” 133 S. C t

. a t 2290 (emphasis added) ( citation a

nd footnote omitted). Apply ing Descamps
, we recently ex plained that “ [ t] he critical distinction i s that while indivisible statutes may contai n multiple, a lternative

means of c ommi tting the crime, only divisible statutes contain multiple, alternative e l e ments of functionally separate crimes.” Rendon
, 764 F

. 3d at 1084

– 8 5

. T herefore, the key question w e must a sk when determining a statute’s divisibility

is whether a jury

would have to be unanimous in finding t h o s e separate elements. Chavez-Solis v. Lynch
, 803 F .3d 1004, 1013–14 (9th Cir. 2015); Lopez-Valencia v

. Lynch
, 798 F

. 3d 863, 868 ( 9th Cir. 2 015); Rendon
, 764 F .3d
at 1084–85. “Otherwise, the Court’s ex press purpose for separating indivisi b l e statutes from d ivisible statutes— preventing sentencing cour t s f rom finding facts o n which a j u r y d i d not have to ag ree, rather than elements on which aR A M I R E Z V

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jury did have to ag ree—would be undermined.” Rendon
, 764 F .3d at 1085–86.

I n Almanza-Arenas v. Lynch
, we recently outlined a threes t e p process for conducting this divisibility analy sis un d e r Descamps

. No. 0 9-71415, slip op. at 10–24 (9th Cir. Dec. 28, 2015). F irst, we ex amine the tex t o f the statute of conviction
to d etermine whether it contains multiple crimes with d istinct eleme n t s , or instead describes alternative means for

ac c o m p l i shing a sing le crime. W e nex t ex amine the conviction d ocuments to determine whether we may confirm

our statutory analy sis. Finally
, we v erify that our reading is consistent with the way in which state courts have construed the statute of conviction.

W e turn f irst to the statutory tex t. The first part of section 273a(a) requires that the c onduct at i s s ue be done “ under circumstances or conditions likely to pr oduce g reat bodily harm or death.” The second part of the statute contains four
prong s, worded in the disjunctive, which enumerate the way s in which a p erson can criminally abu s e o r e n dang er a child. Althoug h this part of the statute is worded in the disjunctive, “[ t] he mere use of the disjunctive te r m ‘o r ’ does not automatically make a statute divisible.” A l m a n za-Arenas
, No. 09-71415
, s l i p o p

. at 16 n.11. Here, the tex t of section 273a(a) sug g ests that the four prong s constit u t e s eparate

means of committing a sing le offense. However, because the
tex t of the statute is n ot c lear on its f ace, we turn to the available conviction documents since s u ch documents may disclose whether the statute is divisible. See id. at 14.

W h ere, as here, the defendant was tried and convicted b y

a j u r y , w e look first to the charg ing document and jury instructions. See Taylor v. United States , 495 U.S. 575, 602R A M I R E Z V

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N C H 14

(1990); see also Shepard v. United States
, 544 U.S. 13, 1 6 (2005). T he charg ing document—an I n formation—draws no distinction between the direct and indirect infliction p rong s o f section 273a(a). T h e I nformation alleg es three separate violations of section 273 a ( a), two of which occurred on the

same day
, w ith each count a lleg ing an enhancement under California Penal Code section 12022.7(a). Each c ount simply repeats the tex t of the statute, listing al l four p r ong s a nd alleg ing violations of each. T h e a b stract of judg ment similarly d oes not draw a distinction b etween the indirect a nd direct infliction prong s. I t succinctly records t h a t Ramirez

was convicted of three violations of section 2 7 3 a ( a )
, e ach with a section 1 2022.7(a) e nhancement. 2 The administrative

2 Ram irez receiv ed a statu to ry sen ten ce en h an cem en t u n d er C alif o rn ia P en al C o d e sectio n 1 2 0 2 2 .7 (a), w h ich is ref

lected in th e ab stract of j u d g m en t, an d w

h ich th e g o v ern m en t arg u es estab lish es th at Ram irez w as

co n v icted o f a crim e o f

v io len ce o n ce th e m o d if

ied categ o rical ap p ro ach is ap p lied

. A s w e co n clu de th at s ectio n 2 73 a(a) is in d iv isib le, w e d eclin e to ex am in e th e s en ten ce en h an cem en t, w h ich is n o t a “ crim e” of w h ich R a m i r e z wa s “c o n v i c t e d ” f o r t h e p u r p o s e s o f 8 U

. S

. C

. § 1 2 2 7 (a)(2 )(A )(iii). Ho w ev er, ev en w ere w e t o c o n sid er it, sectio n 1 2 0 2 2 .7 (a) d o es n o t m ee t t h e d ef i n itio n o f a crim e o f v io len ce eith er, as it h as clearly b een ap p lied to d ef en dan ts w h o co m m itted crim es reck lessly

o r n eg lig en tly

. S

ee Peo p l e v. G u zma n , 91 Cal. Rp tr. 2 d 8 8 5
, 8 8 6

– 8 7 (Cal. Ct. A p p

. 20 0 0 ) (ap p ly in g sectio n 1 2 02 2 .7 (a) in a case w h ere th e d ef

en d an t h ad b een co n v icted o f d riv i n g u n d er th e in f lu en ce); see a l

s o Peo p le v. A r n d t , 9 0 Cal. Rp tr. 2 d 4 15
, 41 9 (Cal. Ct. A p p

. 2 0 0 0 ) (im

p o sin g a n

en h an ced sen ten ce u n d er sectio n 1 2 0 22 .7 (a) o n a m an co n v icted of f elo n y d riv in g u n der th e in f

lu en ce o f a dru g an d tran sp o rtin g co cain e); Peo p le v. S a in z , 8 8 Cal. Rp tr. 2 d 2 0 3
, 2 0 7 (Cal. Ct. A p p

. 1 9 9 9 ) (af

f irm in g an

en h an cem en t u

n d er sectio n 1 2 0 2 2 .7 on a m an co n v icted o f d riv in g u n der th e in f lu en ce an d statin g : “ In m o st in stan ces, w h en a d ef en d an t d riv in g

u n d er th e in f

lu en ce o f alco h o l o r d ru g s cau ses g rea t b o d i l y i n j u ry , h e or sh e w i ll ‘ p erso n ally

in f lict[]’ it” w ith in

th e m ean in g o f

sectio n 1 2 0 22 .7 ). Sectio n 1 2 0 2 2.7 (a) th u s c l e a rly f alls o u tsid e t

h e d ef in itio n o f “ crim e of

v io len ce.”R A M I R E Z V

. L Y

N C H 15

record in this case does not contain t h e t r i a l court’s jury instructions. However, there was a model jury instruction in
p l a ce at the time of Ramirez ’s conviction, California J u r y I nstructions–Criminal ( CAL J I C) No. 9.37. As ex plained in detail below, this patter n jury instruction did not require unanimity as to which p rong of the statute the defendant violated.

F inally
, we ex amine California state law, including model jury instruc t i o n s , to confirm that the statute is not d ivisible. Under the California constitution, “ [i] n a criminal case, a jury verdict must be unanimous.

. . . [ and] the jur y m u s t a g r ee unanimously the defendant is g ui l ty of a specific crime.” People v. Russo
, 25 P.3d 6 41, 6 45 ( Cal. 2001 )

. Therefore, “when the e vidence sug g ests more t h an one discrete crime, either the prosecution must elect a m o n g the crimes or the
court must require the jury to ag ree on the same criminal act.” Id. B ut, “ where the evidence shows only a sing le discrete crime but leaves room for disag reement as to ex actly how that crime w as c ommitted or what the defendant’ s precise role
was, the jury

need not unanimously

ag ree on the basis or

. . . the ‘theory ’ whereby

the defendant is g uilty .” Id. (emphasis added). Thus, the California Supreme Cour t’s distinction between “theories” and “elements” mirrors the U nited States Supreme Court’s distinct i o n b e t w een “alternative means” a nd “elements.”

There is an ex ception to the juror unanimity requirement, for a “contin u o u s c o u rse of conduct.” I n the contex t o f section 273a(a), a prosecutor can alleg e a pattern o f a buse, and, in such a case, the jury need not ag ree unanimously as to

w h i ch specific a cts the defendant committed w ithin t h at pattern. People v. Ewing
, 140 Cal. R p t r

. 299, 301 ( Cal. Ct. App. 1977). “Althoug h the chi ld abuse statute may beR A M I R E Z V

. L Y

N C H 16

violated by a sin g le act, more commonly it covers repetitive or continuous conduct.” Id. ( citation omitted).

A C a l i f ornia Court o f Appeal case, People v. Vargas
, 2 51 Cal. Rptr. 904 (Cal. Ct. App. 1988), illustrates h o w “theories,” as opposed to elements, and the continuous course of conduct ex c eption w ork in a section 273a(a) prosecution. I n Vargas
, the prosecution alleg ed a continuous course o f conduct, and arg ued that either the defendant h ad v i o l a ted section 273a(a) by h er self inflicting injuries upon her child,

or by permitting her co-habitant to injure him and b y failing
to seek adequate treatment for h is injurie s

. I d

. at 9 09. On appeal, the defendant arg ued that, while the jury need not be unanimous as to h er specific acts within the course of conduct alleg ed, the jury was required to u nanimously ag ree upon o ne of the prosecution’s two theories. Id. The court disag reed:

W h ere a sing le c o urse of conduct is proved at trial it is per m issible for members of the jury
to determine tha t t he underlying facts establish a violation of the statute u n der different legal theories such as direct infliction of a

buse or permitting the chil d ’s health or safety to be endang ered. T h e jury need not ag r ee unanimously o n the legal theory that defines a g iven set of facts a s criminal conduct.

Id. (emphases added). The court reaso n e d that “[ t] he L eg islature has s een fit to p roscribe equally, without distinction as to the available punishment, any v i o l a tion o f section 273a, subdivision [ (a)] .” Id. The prosecutor need not

e l e c t to prove either direct infliction or passive conduct, o r neg lig e n c e or g eneral intent, nor must the court g ive aR A M I R E Z V

. L Y

N C H 17

unanimity instruction. I nstead, so long as the jury ag rees unanimo u sly that the defendant eng ag ed in a course o f conduct c ontaining act s that violate section 273a(a), the prosecution can meet its burden of proof. Thus, even where direct infliction is alleg ed (as it was in Vargas ) , a jury could convict a defendant of a violation of the whole statute, including the direct infliction prong , notwithstanding that the jury ag rees that the defendant committed only neg l i ge nt o r passive conduct. Direct inflic t i o n i s merely a “ leg al theor[ y ]
, ” id.
, and n o t a “ d iscrete crime.” Russo
, 2 5 P.3d at 645.

W h ile “[ a] prosecutor charg ing a v i o l a tion of a divisible
statute must g e nerally select the r elevant element from its list of alternatives,” Descamps
, 1 3 3 S. Ct. at 2290 (emphasis added), a prosecutor chargi n g section 273a(a) need not choose among its “leg a l theories.” Recen t l y , we ex p lained that statutes which the p rosecutor may alleg e in their entirety without seeking a unanimous jury verdic t o n one particular
prong must b e consider ed indivisible. Employ ing the modified categ orical approach a nd imposing a collate ral
consequence on the basis of such a conviction risks “potential unfairness” to a defendant who g ained nothing b y arg uing at trial that he or sh e v i o l a t e d one prong of the statute, but not the other. Lopez-Valencia
, 798 F .3d at 871 (“The categ orical approach ex ists in larg e part to ensure that the imposition of

a consequence in federal p roceeding s does not h ing e on a fact that was i rr el evant to a d efendant’s earlier conviction. W ithout the requirement that the jury unanimously ag r ee on

a fact, a defendant has no reason to introduce evide n c e that would d i s p r ove it.”) ( citation o mitted). After the court’s decision in Vargas
, a defendant like Varg as, charg e d with both direct and i n direct infliction of section 273a(a), would h a v e n o reason to arg ue that she did not hit her child, b u tR A M I R E Z V

. L Y

N C H 18

i nstead failed to g et the child adequate medical care. Th u s , apply ing the modified categ orical approach to section 273a(a) convictions risks t h e “unfairness” we foresaw in LopezValencia

.

Another California case, althoug h it post-dates Ramirez ’s conviction, provides a

n additional clear ex ampl e o f C a l i f o rnia
courts treating the different p rong s as interchang eable “ leg al theories.” I t also further underscores the futility of arg uing

one prong in place of another, confirming that the conundrum

we noted in Lop e

z -Valencia applies here. I n In re L.K.
, 132 Cal. Rptr. 3d 342 (Cal. Ct. App. 2011), a m i n o r , L .K.,

was convicted by the juvenile court of running over her
y oung er b rother, M

. S

. , with a truck. Id. at 344. L .K. appealed on the g round that the juvenile court h ad imposed a neg lig ence standard in determi n ing that she had v iolated section 2 7 3a(a)’s direct infliction prong

. Id. at 346. L .K.
arg ued that there was insufficient e v idence to show that running over her brother was any thing b u t an accident, a

nd therefore she lacked the “g e neral intent” (i.e., willfulness) required f

or a conviction under that p r o n g. Id. at 345–46. W h ile the Court of Appeal ag reed, it nevertheless upheld the juvenile court’s judg ment, because i t determined that L .K. had “violated the first prong of [section 273a(a)] by willfully permitting M.S. to suffer u njustifiable phy s i c a l pain a nd
menta l s u f

f ering when she failed to alert others at the h ouse of the potential seriousness of M.S.’s injuries.” Id

. a t 347. Acknowledg ing that this finding had not been the b asis of the juvenile court’s verdict, the C o u rt of Appeal nevertheless concluded that the conviction should stand, because

[ e] ven though t h e juvenile court erred in its reasoning
, a ruling or deci s ion, itself correct in law, will not b e disturbed on appeal merelyR A M I R E Z V

. L Y

N C H 19

because g ive n f

or a wrong reason. I f rig ht
upon any theory o

f the law a

pplicable to the
case, it must be sustained reg a r d l es s of the considerations which may have m oved the trial court to its conclusion.

Id. at 3 49 (emphasis a dded) (quotation marks omitted). That is, while the ev i d e nce mig ht not support a conviction under the direct infliction p rong , so l o n g a s it supported a conviction u n d e r any p rong , the state carried its burden o f proof. Therefore, e v en in the unusual circumstance where the record specifies a finding o n solely the direct infliction prong (as opposed to the more ty pical case, in which the prosecution makes a g eneral alleg ation that the d efendan t v iolated the
statute with a continuous course o f conduct) it cannot be determined with certainty that the defendant directly inflicted
any kind of force or committed a g eneral intent crime.

California jury instructions for sectio n 273a(a) implement the California c ourts’ distinction between elements and “ leg al theories.” Citing to Vargas
, the use notes that accompany the jury instructions for section 273a(a), CAL J I C No. 9.37 from 1996 (t h e l atest edition prior to Ramirez ’s conviction)

ex p licitly state th at the juror unanimity instruction, CAL J I C No. 17.01, “is not required w hen the same ac t o r o m ission
may have bee n either intentional or criminal neg lig ence.” 3

3 CA L J IC No

. 9 .3 7 w as n ot u p d ated b etw een 1 9 9 6 an d 2 0 02

. In 2 0 0 2
, CA L J IC No

. 9 .3 7 w as rev ised to ref lect th e h o ld i n g o f Va ld

ez , w h ich h eld th at crim in al n eg lig en ce w as th e ap p ro p riate s tan d ard fo r th e in d i rect in f lictio n p ro n g s. Va l

dez
, 4 2 P .3 d at 5 1 9

– 2 0. T h e rev ised in stru ctio n req u ires th e j u d g e to read th e crim i n al n e g lig en ce in stru ctio n w h en ev er

n eg lig en t co n d u ct is alleg ed

. Ho w ev er, th e u se n o t e th at stat e s t h a t

u n an im ity is n o t req u ired w i th resp ect to g en eral in ten t v ersu s n eg lig en ce

w as n ot ch an g ed o r o m itted

.R A M I R E Z V

. L Y

N C H 20

That is, a jury n eed not be unanimous as to criminal
neg lige n ce or g eneral intent, e ven where it must be unanimous as to the underly ing conduct. Th u s , t hese alternative mens rea requirements are not “ element s ” for
purposes of Lopez-Valencia
, Rendon or Descamps

. Rather, they are alternative means for a ccomplishin g a s ing le indivisible crime.

IV.

Our ex amination of th e tex t of section 273a(a), the Shepard documents, and California case law reveals that the
state need n ot prove that a defendant committed a violation o f section 273a(a) under a particular prong ; the four prong s are instead a lternative “ leg al theories” w h i c h t h e prosecution may arg ue, and none of which the jury need dec i d e upon unanimously

. B ecause section 273 a ( a) i s not a d ivisible statute, our analy sis stops here. U n d e r the categ orical approach, section 273a(a) is broader than 18 U .S.C. § 16, a nd therefore not a “crime of violence,” nor does it qualify on that basis as an ag g ravated felony

.

B e cause the B oard erred when it d etermined that Ramirez h a d b een c onvicted of an ag g ravated felony
, w e g rant t h e petition and remand.

P etition G RANTED and REMANDED.