Theft and unlawful driving or taking of a vehicle in violation of Cal. Vehicle Code § 10851(a) is not categorically an aggravated felony under INA § 101(a)(43)(G) because it may be applied to accessories after the fact.
Following Plaintiff's guilty plea to violating INA § 276, the district court imposed an eight-level sentence enhancement under USSG § 2L1.2(b)(1)(C), based on Plaintiff's prior conviction for theft and unlawful driving or taking of a vehicle in violation of Cal. Vehicle Code § 10851(a). USSG § 2L1.2(b)(1)(C) allows an eight-level enhancement for persons who were "previously deported, or unlawfully remained in the United States, after . . . a conviction for an aggravated felony." On appeal, the court considered whether a conviction under § 10851(a) constitutes an aggravated felony theft offense within the meaning of USSG § 2L1.2(b)(1)(C) and INA § 101(a)(43)(G).
The Ninth Circuit's defines a generic theft offense as "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." Martinez-Perez v. Gonzales, 417 F.3d 1022, 1026 (9th Cir. 2005). In Gonzales v. Duenas-Alvarez, 549 U.S. ___, 127 S.Ct. 815, 820 (2007), the Supreme Court held that a "theft offense" under INA §101(a)(43)(G) "includes the crime of 'aiding and abetting' a theft offense" and that therefore, the possibility of conviction as an accomplice under §10851(a) does not render the statute broader than the generic definition. In the present case, the court considered whether the possibility of being convicted under §10851(a) as an accessory after the fact renders the statute categorically broader than the generic theft offense.
The court noted that federal law recognizes accessories after the fact as a category separate from principals and accessories before the fact, which are generally lumped together for purposes of criminal liability. Therefore, the court has held that a prior felony conviction for accessory after the fact to murder for hire does not fall within the generic definition of "crime of violence" for purposes of the career offender enhancement under USSG §4B1.1. United States v. Innie, 7 F.3d 840, 850 (9th Cir. 1993). The distinction is appropriate, given the fact that principals and accessories before the fact have all "played a part in the commission of the crime" while an accessory after the fact "had no part in causing the crime." 2 Wayne R. LaFave, Substantive Criminal law §13.6. To sustain a conviction for accessory after the fact under 18 USC §3, one need only have assisted the principal with knowledge that the offense has already been committed. Therefore, the court concluded, an accessory after the fact to theft cannot be said to have committed all of the elements of a generic theft offense which requires the "criminal intent to deprive the owner of rights and benefits of ownership." Martinez-Perez, 417 F.3d at 1026.
In addition to criminalizing the taking of a vehicle by a principal, Cal. Vehicle Code §10851(a) imposes criminal liability for the "[t]heft and unlawful driving or taking of a vehicle" on "any person who is a party or an accessory to or an accomplice in the driving or unauthorized taking or stealing…" of a vehicle. The court explained that California explicitly abrogated the common law distinction between principals and accessories before the fact in 1872. See Cal. Penal Code §971; People v. Collum, 122 Cal. 186, 187 (1898). Like the present §10851(a), California's original theft of a vehicle statute, which was enacted in 1923 similarly extended liability to "[a]ny person who assists in, or is a party or accessory to or an accomplice in, any such stealing." Because the distinction between accessories before the fact and principals was abolished before the enactment of the original vehicle code, the court found that the use of the term "accessory to" in §10851(a) can only refer to accessories after the fact. The court also compared Cal. Penal Code §31, which defines "principals" as "[a]ll persons concerned in the commission of a crime" including aiders and abettors, and Cal. Penal Code §1111, defining "accomplice" as "one who is liable to prosecution for the identical offense charged against the defendant," with Cal. Penal Code §32 which defines "accessory" as one "who, after a felony has been committed, harbors, conceals or aids a principal in such felony…." Therefore, the court noted, California explicitly uses the term "accessory" to refer only to accessories after the fact. The court concluded that the full range of conduct proscribed by §10851(a) does not fall within the scope of the generic definition because whereas the generic definition only encompasses principals, accomplices, and others who incur liability based on pre-offense conduct, §10851(a) also covers accessories after the fact.
The court turned to the modified categorical approach and examined the record of conviction to determine whether Plaintiff's guilty plea to a violation of §10851(a) could necessarily support a conviction for generic theft. The court held that Petitioner's plea pursuant to People v. West, 3 Cal. 3d 595 (Cal. 1970), where the "court is not limited to accepting a guilty plea only to the offense charged but can accept a guilty plea to any reasonably related lesser offense," did not establish the factual predicate for his conviction. People v. Tuggle, 232 Cal. App. 3d 147, 283 (Ct. App. 1991). Moreover, the record of conviction did not "unequivocally establish that [he] pleaded guilty to all the elements of the generic [theft] offense." Li v. Ashcroft, 389 F.3d 892, 896 n.7 (9th Cir. 2004). The court held that the district court erred in applying the eight-level sentencing enhancement on the basis of Plaintiff's 1994 conviction under Cal. Vehicle Code §18051(a), vacated the sentence and remanded the case for resentencing. Judge Callahan dissented, disagreeing that the word "accessory" in §10851(a) necessarily includes accessory after the fact liability.
In addition to criminalizing the taking of a vehicle by a principal, Cal. Vehicle Code §10851(a) imposes criminal liability for the "[t]heft and unlawful driving or taking of a vehicle" on "any person who is a party or an accessory to or an accomplice in the driving or unauthorized taking or stealing…" of a vehicle. The court explained that California explicitly abrogated the common law distinction between principals and accessories before the fact in 1872. See Cal. Penal Code §971; People v. Collum, 122 Cal. 186, 187 (1898). Like the present §10851(a), California's original theft of a vehicle statute, which was enacted in 1923 similarly extended liability to "[a]ny person who assists in, or is a party or accessory to or an accomplice in, any such stealing." Because the distinction between accessories before the fact and principals was abolished before the enactment of the original vehicle code, the court found that the use of the term "accessory to" in §10851(a) can only refer to accessories after the fact. The court also compared Cal. Penal Code §31, which defines "principals" as "[a]ll persons concerned in the commission of a crime" including aiders and abettors, and Cal. Penal Code §1111, defining "accomplice" as "one who is liable to prosecution for the identical offense charged against the defendant," with Cal. Penal Code §32 which defines "accessory" as one "who, after a felony has been committed, harbors, conceals or aids a principal in such felony…." Therefore, the court noted, California explicitly uses the term "accessory" to refer only to accessories after the fact. The court concluded that the full range of conduct proscribed by §10851(a) does not fall within the scope of the generic definition because whereas the generic definition only encompasses principals, accomplices, and others who incur liability based on pre-offense conduct, §10851(a) also covers accessories after the fact.
The court turned to the modified categorical approach and examined the record of conviction to determine whether Plaintiff's guilty plea to a violation of §10851(a) could necessarily support a conviction for generic theft. The court held that Petitioner's plea pursuant to People v. West, 3 Cal. 3d 595 (Cal. 1970), where the "court is not limited to accepting a guilty plea only to the offense charged but can accept a guilty plea to any reasonably related lesser offense," did not establish the factual predicate for his conviction. People v. Tuggle, 232 Cal. App. 3d 147, 283 (Ct. App. 1991). Moreover, the record of conviction did not "unequivocally establish that [he] pleaded guilty to all the elements of the generic [theft] offense." Li v. Ashcroft, 389 F.3d 892, 896 n.7 (9th Cir. 2004). The court held that the district court erred in applying the eight-level sentencing enhancement on the basis of Plaintiff's 1994 conviction under Cal. Vehicle Code §18051(a), vacated the sentence and remanded the case for resentencing. Judge Callahan dissented, disagreeing that the word "accessory" in §10851(a) necessarily includes accessory after the fact liability.
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