FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NOPRING PAULINO PENULIAR,  No. 03-71578

Petitioner, Agency No.

v. A44-948-659

ALBERTO R. GONZALES,* Attorney ORDER

General, AMENDING

Respondent. OPINION AND

DENYING  PETITION FOR

PANEL

REHEARING AND

PETITION FOR

REHEARING EN

BANC AND

AMENDED

OPINION 

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

December 10, 2004—Pasadena, California

Filed January 12, 2005

Amended January 23, 2006

Before: James R. Browning, Harry Pregerson, and

Marsha S. Berzon, Circuit Judges.

*Alberto R. Gonzales is substituted for his predecessor, John Ashcroft,

as Attorney General of the United States, pursuant to Fed. R. App. P.

43(c)(2). 

807
Opinion by Judge Pregerson

808 PENULIAR v. GONZALES
COUNSEL

Melanie Jo Triebel, O’Melveny & Myers LLP, Newport

Beach, California, for the petitioner.

Nicole Nardone (argued) and Jennifer Paisner (briefed),

Office of Immigration Litigation, U.S. Department of Justice,

Civil Division, Washington, D.C., for the respondent.

ORDER

The Opinion filed January 12, 2005, slip op. 453, and

appearing at 395 F.3d 1037, is amended as follows: 

1. At slip op. 453, add asterisk footnote in caption following

“ALBERTO R. GONZALES.” Asterisk footnote shall

read, “Alberto R. Gonzales is substituted for his predecessor, John Ashcroft, as Attorney General of the

United States, pursuant to Fed. R. App. P. 43(c)(2).” 

2. Change the citation at slip op. 465 following the sentence

that ends, “ . . . a theft offense under the INA.” to read,

810 PENULIAR v. GONZALES
“See Martinez-Perez v. Gonzales, 417 F.3d 1022, 1028

(9th Cir. 2005).” 

3. Change the citation at slip op. 465 following the sentence

that ends, “ . . . falls outside the generic definition of theft

offense.” to read, “Id.” 

4. Add footnote 6 at slip op. 466 and adjust other footnotes

accordingly following the sentence that ends, “ . . . qualify as a “theft offense” within the meaning of 8 U.S.C.

§ 1101(a)(43)(G).” The added footnote 6 reads: 

In its petition for rehearing, the government argues that

aiding and abetting liability is included in the generic definition of a “theft offense.” See 8 U.S.C. § 1101(a)

(43)(G). That assertion, however, is foreclosed by our

decision in Martinez-Perez, 417 F.3d at 1028 (holding

that a conviction for grand theft under California Penal

Code § 487(c) was not a “theft offense” within the meaning of the INA because a defendant could “be convicted

of a substantive violation . . . based on an aiding and abetting theory alone”), by which we are bound. See Rotec

Indus., Inc. v. Mitsubishi Corp., 348 F.3d 1116, 1122 n.3

(9th Cir. 2003) (“A three-judge panel generally has no

power to overrule a decision of this court.”). 

5. Change the citation at slip op. 466 that precedes “B.

Modified Categorical Approach” to read, “See MartinezPerez, 417 F.3d at 1027-28.” 

The panel has voted to deny the petition for panel rehearing

and petition for rehearing en banc. The full court was advised

of the petition for rehearing en banc. A judge requested a vote

on whether to rehear the matter en banc. The matter failed to

receive a majority of the votes of the nonrecused active judges

in favor of en banc reconsideration. Fed. R. App. P. 35. The

petition for rehearing en banc is DENIED. No further petitions shall be entertained.

PENULIAR v. GONZALES 811
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 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). Classifying both convictions as “aggravated felonies” under the Immigration and Nationality Act (“INA”), an Immigration Judge

(“IJ”), affirmed by the BIA, found Penuliar ineligible for cancellation of removal and voluntary departure, and ordered that

Penuliar be deported pursuant to 8 U.S.C. § 1227(a)(2)

(A)(iii). Because we conclude that Penuliar’s convictions do

not constitute “aggravated felonies” under the INA, we grant

his petition for review.

FACTUAL AND PROCEDURAL 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 violation of California Vehicle Code § 10851(a), and was sentenced 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 concurrently. 

While serving his sentence in state prison, the Immigration

and Naturalization Service (“INS”)1 served Penuliar with a

1The 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. 

812 PENULIAR v. GONZALES
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 including a purely political offense) for which the term of imprisonment [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 (including receipt of stolen property) or burglary offense for which

the term of imprisonment [is] at least one year,” an “aggravated 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 corresponding abstract of judgment showing that Penuliar pled

guilty to that count. The government also introduced a criminal information charging Penuliar with, inter alia, one 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),

and a corresponding abstract of judgment showing that Penuliar pled guilty to both counts. Finally, the government introduced 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

2The 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. 

PENULIAR v. GONZALES 813
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 ineligible 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 decision 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

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 felony” under the INA, we employ the two step test set forth in

Taylor v. United States, 495 U.S. 575 (1990). See Chang v.

INS, 307 F.3d 1185, 1189 (9th Cir. 2002). First, “we look to

the statute under which the person was convicted and compare 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 statute] falls within the meaning of that term.’ ” Id. (quoting

United States v. Baron-Medina, 187 F.3d 1144, 1146 (9th Cir.

1999)). 

814 PENULIAR v. GONZALES
However, when the statute of conviction reaches both conduct that would constitute an aggravated felony and conduct

that would not, we follow a “modified categorical approach.”

See id.; United States v. Corona-Sanchez, 291 F.3d 1201,

1211 (9th Cir. 2002) (en banc). 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.” Chang, 307 F.3d at 1189. “[W]e

do not, however, look to the particular facts underlying the

conviction.” Lara-Chacon v. Ashcroft, 345 F.3d 1148, 1154

(9th Cir. 2003) (quoting Ye, 214 F.3d at 1132). 

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 conduct. See United States v. TrinidadAquino, 259 F.3d 1140, 1145 (9th Cir. 2001) (“[W]e hold that

the presence of the volitional ‘use . . . against’ requirement in

both prongs of 18 U.S.C. § 16 means that a defendant cannot

PENULIAR v. GONZALES 815
commit a ‘crime of violence’ if he negligently—rather than

intentionally or recklessly—hits someone or something

. . . .”). Thus, in Trinidad-Aquino we held that because California’s driving under the influence statute, California Vehicle

Code § 23153, can be violated through mere negligence, a

violation of the statute was not a “crime of violence” under

18 U.S.C. § 16. Id. at 1146. 

The Supreme Court recently affirmed this reading of 18

U.S.C. § 16, holding that a conviction under Florida’s drunk

driving statute was not a “crime a violence.” Leocal v. Ashcroft, ___ U.S. ___, 125 S. Ct. 377, 383-84 (2004). The Court

reasoned that “[t]he key phrase in § 16(a)—the ‘use . . . of

physical force against the person or property of another’—

most naturally suggests a higher degree of intent than negligent or merely accidental conduct.” Id. at 382. Similarly, the

Court held that we “must give the language in § 16(b) an

identical construction, requiring a higher mens rea than the

merely accidental or negligent conduct involved in a DUI

offense.” Id. at 383. The Court concluded that “[i]nterpreting

§ 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.”

Id. 

[3] California Vehicle Code § 2800.2(a) makes it a crime

“[i]f a person flees or attempts to elude a pursuing peace officer in violation of Section 2800.1 and the pursued vehicle is

driven in a willful or wanton disregard for the safety of persons 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

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). 

816 PENULIAR v. GONZALES
[4] As defined by subsection (b), “willful or wanton disregard” exists if a driver commits three Vehicle Code violations. 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 reckless 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). Many California Vehicle Code violations, however, do not require reckless or intentional disregard for the safety of persons or property within the meaning

of 18 U.S.C. § 16.3 In other words, “willful or wanton disregard,” as defined by California Vehicle Code § 2800.2(b), is

broader than the traditional mens rea of recklessness. Cf.

Trinidad-Aquino, 259 F.3d at 1146 (“Thus, recklessness

requires conscious disregard of a risk of harm that the defendant is aware of — a volitional requirement absent in negligence.”). Because it would be possible to engage in “willful

or wanton disregard for the safety of persons or property” by

negligently committing three Vehicle Code violations, Section 2800.2 is broader than a “crime of violence” as defined

by 18 U.S.C. § 16. 

3For 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 conviction involving the safe operation of a motor vehicle upon the highway.”

Id. § 12810(f). 

PENULIAR v. GONZALES 817
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 California 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 misconduct” 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 previous 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 showing that Penuliar pled guilty to that charge, and (3)

a probation officer’s report.4 The government did not introduce either Penuliar’s plea agreement or a transcript of Penuliar’s plea proceeding into the record. Instead, the government

4On appeal, however, the government abandons any reliance on the probation officer’s report to establish that Penuliar was convicted of a “crime

of violence” under the modified approach. 

818 PENULIAR v. GONZALES
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 reckless or negligent conduct. The information charging Penuliar

with evading an officer contains 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

because it criminalizes negligent conduct. 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 reckless 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 violence where information and judgment

of conviction failed to establish whether defendant was convicted of “volitional, reckless, or negligent conduct”). 

5Count 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 DISREGARD, 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 following conditions existed: the peace officer’s motor vehicle exhibited 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 reasonably necessary, the peace officer’s motor vehicle was distinctively 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. 

PENULIAR v. GONZALES 819
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 Corona-Sanchez, 291 F.3d at 1212 (“[W]e

have held that a presentence report reciting the facts of the

crime is insufficient evidence to establish that the defendant

pled guilty to the elements of the generic definition of a crime

when the statute of conviction is broader than the generic definition.”). 

[7] Accordingly, we conclude that the BIA erred in affirming the IJ’s decision that Penuliar’s conviction under California 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 imprisonment [is] at least one year.” This circuit defines a “theft

offense” under § 1101(a)(43)(G) to mean “a taking of property 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.” Huerta-Guevara v. Ashcroft, 321 F.3d

883, 886 (9th Cir. 2003) (quoting Corona-Sanchez, 291 F.3d

at 1205). 

In Corona-Sanchez, we held that a conviction under California’s general theft statute, California Penal Code § 484(a),

was not a categorical “theft offense” under 8 U.S.C.

§ 1101(a)(43)(G). 291 F.3d at 1208. In reaching this conclusion, we relied in part on the broad nature of aiding and abetting liability under California law, noting that such liability

“extend[s] even to promotion and instigation.” Id.; see also

People v. Beeman, 35 Cal. 3d 547, 560 (1984) (“[T]he weight

820 PENULIAR v. GONZALES
of authority and sound law require proof that an aider and

abettor act with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing,

or of encouraging or facilitating commission of, the offense.”

(emphasis added)). We reasoned that because a defendant can

be convicted of the substantive offense for aiding and abetting

a theft, “it would not be apparent from reference to the statute

of conviction alone to discern whether or not the criminal act

was embraced within the federal sentencing definition.”

Corona-Sanchez, 291 F.3d at 1208. 

We recently applied this same reasoning, holding that a

grand theft conviction under California Penal Code § 487(c)

did not categorically constitute a theft offense under the INA.

See Martinez-Perez v. Gonzales, 417 F.3d 1022, 1028 (9th

Cir. 2005). Relying on our decision in Corona-Sanchez, we

concluded that “[b]ecause a defendant can be convicted of a

substantive violation of § 487(c) based on an aiding and abetting theory alone, some of the conduct proscribed by § 487(c)

falls outside the generic definition of theft offense.” Id. 

[9] A conviction under California’s vehicle theft statute is

broader than the generic definition of a “theft offense” under

8 U.S.C. § 1101(a)(43)(G) for the same reason. 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

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

PENULIAR v. GONZALES 821
accessory or accomplice liability. See, e.g., People v. Clark,

251 Cal. App. 2d 868, 874 (Ct. App. 1967) (“At a minimum,

defendant must have known that the vehicle had been unlawfully acquired and must have had that knowledge at a time

when he could be said to have, in some way, aided or assisted

in the driving.”). Because the statute criminalizes activity that

is neither “a taking of property or an exercise of control over

property,” we conclude that a conviction under California

Vehicle Code § 10851(a) does not categorically qualify as a

“theft offense” within the meaning of 8 U.S.C.

§ 1101(a)(43)(G).6See Martinez-Perez, 417 F.3d at 1027-28.

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). The IJ relied on a felony complaint, dated June 1,

2000, charging Penuliar with unlawful driving or taking of a

vehicle in violation of California Penal Code § 10851(a), and

an abstract of judgment showing that Penuliar pled guilty to

that charge on June 30, 2000. The IJ also relied on a criminal

information, dated November 21, 2000, charging Penuliar

with another count of unlawful driving or taking of a vehicle

in violation of California Penal Code § 10851(a), and an

abstract of judgment showing that Penuliar pled guilty to that

charge on December 13, 2000.7 As was the case with Penul6

In its petition for rehearing, the government argues that aiding and

abetting liability is included in the generic definition of a “theft offense.”

See 8 U.S.C. § 1101(a)(43)(G). That assertion, however, is foreclosed by

our decision in Martinez-Perez, 417 F.3d at 1028 (holding that a conviction for grand theft under California Penal Code § 487(c) was not a “theft

offense” within the meaning of the INA because a defendant could “be

convicted of a substantive violation . . . based on an aiding and abetting

theory alone”), by which we are bound. See Rotec Indus., Inc. v. Mitsubishi Corp., 348 F.3d 1116, 1122 n.3 (9th Cir. 2003) (“A three-judge panel

generally has no power to overrule a decision of this court.”). 

7The IJ also relied on a probation officer’s report that details the facts

underlying Penuliar’s December 13, 2000, conviction for unlawful driving

822 PENULIAR v. GONZALES
iar’s conviction for evading an officer, the government did not

submit Penuliar’s actual plea agreement or a transcript of the

plea proceeding. 

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 sufficient to establish that Penuliar was convicted of a “theft

offense” under 8 U.S.C. § 1101(a)(43)(G). Indeed, both

charging documents recited the statutory language 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 possession of said vehicle.”

8

However, as we recognized in Corona-Sanchez, under California law an accusatory pleading against an aider or abettor

may be drafted in an identical form as an accusatory pleading

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 CoronaSanchez, 291 F.3d at 1212. 

8Count 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 VEHICLE, 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 personal 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. 

PENULIAR v. GONZALES 823
against a principal. 291 F.3d at 1207-08; see Cal. Penal Code

§§ 971, 31; see also People v. Greenberg, 111 Cal. App. 3d

181, 188 (Ct. App. 1980) (“In California one may be convicted of aiding and abetting without the accusatory pleading

reciting the aiding and abetting theory so long as defendant is

charged in that pleading as a principal to the substantive

offense and thus receives notice of the charge against him.”).

Thus, even if Penuliar pled guilty to the charges of unlawful

driving or taking of a vehicle in the information and felony

complaint, this alone is insufficient to unequivocally demonstrate that he actually pled guilty to activity of a principal,

e.g., taking and exercising control over a stolen car. 

[10] Again, we must conclude that the IJ erred in finding

that Penuliar had been convicted of a “theft offense” under 8

U.S.C. § 1101(a)(43)(G). The charging documents, coupled

with the abstracts of judgment, simply do not prove that

Penuliar actually took and exercised control over a stolen car.

On the basis of the record, it is equally plausible that Penuliar

pled guilty to the charges based on his activity as an accomplice. 

CONCLUSION

[11] In sum, we hold that evading an officer in violation of

California 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 unlawful driving or taking of a vehicle in violation

of California Vehicle Code § 10851(a) is not categorically a

“theft offense” under 8 U.S.C. § 1101(a)(43)(G). Finally, we

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. 

824 PENULIAR v. GONZALES