United States v. Vidal ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 04-50185
Plaintiff-Appellee, D.C. No.
v.  CR-03-01178-1-
JUAN JOSE VIDAL, JTM
Defendant-Appellant.
 OPINION
Appeal from the United States District Court
for the Southern District of California
Jeffrey T. Miller, District Judge, Presiding
Argued and Submitted February 9, 2005
Submission Vacated and Deferred February 22, 2005
Resubmitted October 24, 2005
Pasadena, California
Filed October 24, 2005
Before: James R. Browning, Frank J. Magill,* and
Pamela Ann Rymer, Circuit Judges.
Opinion by Judge Rymer;
Partial Concurrence and Partial Dissent by Judge Browning
*The Honorable Frank J. Magill, Senior Circuit Judge for the Eighth
Circuit, sitting by designation.
14511
14514 UNITED STATES v. VIDAL
COUNSEL
Siri Shetty, San Diego, California, for the defendant-
appellant.
Mark R. Rehe, Assistant United States Attorney, San Diego,
California, for the plaintiff-appellee.
OPINION
RYMER, Circuit Judge:
Juan Jose Vidal appeals from his sentence for being a
deported alien found in the United States, in violation of 8
U.S.C. § 1326. Vidal challenges the eight-level enhancement
to his sentence resulting from the district court’s conclusion
that his conviction for the unlawful taking of a vehicle, in vio-
lation of California Vehicle Code § 10851(a), constitutes an
aggravated felony under United States Sentencing Guideline
§ 2L1.2(b)(1)(C). He also argues that Blakely v. Washington,
124 S. Ct. 2531 (2004), precludes resort to the modified cate-
gorical approach to determine whether the defendant was pre-
viously convicted of conduct that would constitute an
aggravated felony under federal law. Finally, in a Fed. R.
App. P. 28(j) letter, Vidal asks for his sentence to be vacated
UNITED STATES v. VIDAL 14515
and remanded for reconsideration in light of United States v.
Booker, 125 S. Ct. 738 (2005).
We conclude that Vidal was convicted of an aggravated fel-
ony. Moreover, Blakely does not undermine Taylor v. United
States, 494 U.S. 575 (1990), or our own authority embracing
the modified categorical approach. Therefore, the district
court did not err in applying it. Nevertheless, we remand for
further proceedings in light of Booker, 125 S. Ct. 738, and
United States v. Ameline, 409 F.3d 1073, 1074 (9th Cir. 2005)
(en banc).
I
Vidal, a Mexican citizen, entered the United States from
Mexico on February 15, 2003. Border Patrol agents discov-
ered and arrested him the next day. The government filed an
indictment in the Southern District of California charging
Vidal with being a deported alien found in the United States,
in violation of 8 U.S.C. § 1326. Vidal pled guilty to the
charge. The district court then determined, under both the cat-
egorical and modified categorical approaches, that Vidal’s
1994 conviction for the unlawful driving or taking of a vehi-
cle, in violation of California Vehicle Code § 10851(a), con-
stituted a conviction for a “theft offense.” Because a theft
offense is an aggravated felony, the district court increased
Vidal’s offense level by eight levels, pursuant to United States
Sentencing Guideline § 2L1.2(b)(1)(C). Vidal was sentenced
to 33 months imprisonment.
Vidal timely appealed.
II
Whether Vidal’s prior conviction qualifies as an aggravated
felony for purposes of § 2L1.2 is reviewed de novo. United
States v. Arellano-Torres, 303 F.3d 1173, 1176 (9th Cir.
2002) (citation omitted).
14516 UNITED STATES v. VIDAL
III
A
[1] Vidal argues that California Vehicle Code § 10851(a)
does not categorically qualify as an aggravated felony under
U.S.S.G. § 2L1.2(b)(1)(C). In the 2002 version of the Guide-
lines, which the district court correctly used here,
§ 2L1.2(b)(1)(C) provides for an 8-level enhancement of the
offense level if the defendant was previously deported after a
conviction for an aggravated felony. A “theft offense (includ-
ing receipt of stolen property) . . . for which the term of
imprisonment [is] at least one year” is an aggravated felony
for purposes of U.S.S.G. § 2L1.2. U.S.S.G. § 2L1.2, cmt. n.
2; 8 U.S.C. § 1101(a)(43)(G).
[2] To determine whether Vidal’s prior conviction qualifies
as an aggravated felony, we first “look only to the fact of con-
viction and the statutory definition of the prior offense.”
United States v. Corona-Sanchez, 291 F.3d 1201, 1203 (9th
Cir. 2002) (en banc) (quoting Taylor, 495 U.S. at 602). Under
the categorical approach, the court asks whether “the statute
criminalizes conduct that would not constitute an aggravated
felony under federal sentencing law.” Id.
[3] Vidal contends that § 10851 is overly broad in two
respects. First, he maintains that it encompasses the intent to
make a temporary or de minimis deprivation of a vehicle
whereas the generic federal definition of “theft offense”
adopted in Corona-Sanchez employs the Model Penal Code
approach that requires the intent “to withhold property of
another permanently or for so extended a period as to appro-
priate a major portion of its economic value.” 3 Wayne R.
LaFave, Substantive Criminal Law § 19.5, at 88 (2003). We
disagree that it is possible to read Corona-Sanchez in this
way. There, we adopted the Seventh Circuit’s generic defini-
tion of the phrase “theft offense (including receipt of stolen
property),” which is
UNITED STATES v. VIDAL 14517
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 owner-
ship, even if such deprivation is less than total or
permanent.
291 F.3d at 1205 (quoting Hernandez-Mancilla v. INS, 246
F.3d 1002, 1009 (7th Cir. 2001)). We noted that “Congress
used the words ‘theft offense’ rather than just ‘theft,’ thus
indicating that the phrase ought be read to incorporate differ-
ent but closely related constructions in modern state statutes.”
Id. And we explicitly declined to embrace the Model Penal
Code definition, whether or not it reflects the view of a major-
ity of modern theft statutes. Id.[4] There is no inconsistency between § 10851(a) and
Corona-Sanchez’s generic definition. Section 10851(a) crimi-
nalizes “tak[ing] a vehicle . . . without the consent of the
owner thereof, and with intent either to permanently or tem-
porarily deprive the owner thereof of his or her title to or pos-
session of the vehicle,”1 while Corona-Sanchez contemplates
deprivations even if “less than total or permanent.” Thus, the
intent to make a less than permanent, i.e., temporary, depriva-
tion of a vehicle falls within the intent requirement of a theft
offense.
1
In full, § 10851(a) provides:
Any person who 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 any person who is a party or an
accessory to or an accomplice in the driving or unauthorized tak-
ing or stealing, is guilty of a public offense and, upon conviction
thereof, shall be punished by imprisonment in a county jail for
not more than one year or in the state prison or by a fine of not
more than five thousand dollars ($5,000), or by both the fine and
imprisonment.
14518 UNITED STATES v. VIDAL
Vidal’s reliance on Nevarez-Martinez v. INS, 326 F.3d
1053 (9th Cir. 2003), is misplaced. He argues that the Arizona
statute at issue in Nevarez-Martinez was similar to § 10851(a)
and that we held there that it did not categorically constitute
an aggravated felony. However, the problem being addressed
was different. While two sections of the divisible Arizona
statute required intent to permanently deprive, the other three
sections included no intent requirement whatsoever. Id. at
1055 (“The Arizona statute requires knowledge, but the stat-
ute does not require intent for violation of (2), (4) or (5).”).
We held that violation of the statute did not constitute a theft
offense within the generic definition because the statute did
not require “criminal intent to deprive the owner,” but we did
not hold that a statute that criminalizes the intent to temporar-
ily deprive — as California’s does — is not a theft offense.
Vidal also maintains that § 10851(a) is over-inclusive in
that it allows convictions based on aiding and abetting liabil-
ity. The statute includes “any person who is a party or an
accessory to or an accomplice in the driving or unauthorized
taking” of a vehicle. Relying on Corona-Sanchez, Vidal
points out that we held that California’s general theft statute,
California Penal Code § 484(a), does not categorically qualify
as a theft offense because in California, “[a] defendant can be
convicted of the substantive offense of violation of § 484 for
aiding and abetting a theft, even if that theory is not specifi-
cally charged.” 291 F.3d at 1207-08. Additionally, he notes
that we recently held in Penuliar v. Ashcroft, 395 F.3d 1037(9th Cir. 2005), that § 10851(a) is not a theft offense that
qualifies as an aggravated felony under the Immigration and
Nationality Act, 8 U.S.C. § 1101(a)(43)(G).
[5] Corona-Sanchez does not control on the import of Cali-
fornia’s aiding and abetting liability because it was decided
under Guidelines that have since been amended. In Corona-
Sanchez, the district court applied the 1997 version of § 2L1.2
whose commentary made no mention of aiding and abetting
liability. 291 F.3d at 1202 n.2. However, § 2L1.2 was
UNITED STATES v. VIDAL 14519
amended in November 2001 (well before Vidal reentered the
United States and was convicted and sentenced) to include
aiding and abetting aggravated felonies as aggravated felo-
nies. The applicable Application Note states: “Prior convic-
tions of offenses counted under subsection (b)(1) include the
offenses of aiding and abetting, conspiring, and attempting, to
commit such offenses.” U.S.S.G. § 2L1.2, cmt. n. 4 (2002).
This commentary governs Vidal’s sentence. See United States
v. Rodriguez-Rodriguez, 393 F.3d 849, 858 (9th Cir. 2005)
(noting that the application notes specifically include convic-
tions for aiding and abetting). Penuliar is distinguishable for
the same reason, because it construed § 1101(a)(43)(G) alone,
without the commentary to U.S.S.G. § 2L1.2 that includes
aiding and abetting for purposes of enhancing the offense
level for prior convictions.
Even so, Vidal argues that California aiding and abetting
liability is broader than federal aiding and abetting liability.
Again relying on Corona-Sanchez, he posits that “[u]nder
California law, aiding and abetting liability is quite broad,
extending even to promotion and instigation.” 291 F.3d at1208 (citing People v. Beeman, 35 Cal.3d 547, 674 P.2d 1318,
1325-26 (1984)). In comparison, he submits, the federal ver-
sion requires proof
(1) that the accused had the specific intent to facili-
tate the commission of a crime by another, (2) that
the accused had the requisite intent of the underlying
substantive offense, (3) that the accused assisted or
participated in the commission of the underlying
substantive offense, and (4) that someone committed
the underlying substantive offense.
United States v. Sayetsitty, 107 F.3d 1405, 1412 (9th Cir.
1997) (quoting United States v. Gaskins, 849 F.2d 454, 459
(9th Cir. 1988)).
Assuming (without deciding) that “aiding and abetting” in
the Guidelines means the same thing as 18 U.S.C. § 2(a), the
14520 UNITED STATES v. VIDAL
federal aiding and abetting statute, and federal law interpret-
ing it, California aiding and abetting liability requires proof of
all elements contained in the federal definition. Under Cali-
fornia law,
an aider and abettor is a person who, “acting with (1)
knowledge of the unlawful purpose of the perpetra-
tor; and (2) the intent or purpose of committing,
encouraging, or facilitating the commission of the
offense, (3) by act or advice aids, promotes, encour-
ages or instigates, the commission of the crime.”
People v. Prettyman, 14 Cal.4th 248, 926 P.2d 1013, 1018-19
(1996) (quoting Beeman, 674 P.2d at 1326). When the
charged offense is a specific intent crime, as is the unlawful
taking of a vehicle,2 “the accomplice must share the specific
intent of the perpetrator.” Id. at 1018 (internal quotation
marks omitted).3 Further, the government must prove the exis-
tence of a perpetrator of the underlying offense. People v. Sin-
gleton, 196 Cal.App.3d 488, 493 (1987).
Vidal also submits that California aiding and abetting lia-
bility extends beyond the federal concept by including promo-
tion or instigation of the underlying crime. But the federal
definition extends to those who counsel, command, induce, or
procure someone to commit a crime and we cannot see how
counseling, commanding, inducing, and procuring would not
encompass promoting or instigating. See 18 U.S.C. § 2(a);
Ninth Circuit Manual of Model Criminal Jury Instructions 5.1
(2003) (aiding and abetting instruction). Further, both promo-
2
See People v. Howard, 57 Cal.App.4th 323, 327 (1997).
3
This requirement is accounted for in California’s three-part formula-
tion, because an accomplice shares the intent of the perpetrator when he
“ ‘knows the full extent of the perpetrator’s criminal purpose and gives aid
or encouragement with the intent or purpose of facilitating the perpetra-
tor’s commission of the crime.’ ” Prettyman, 14 Cal.4th 248, 926 P.2d at
1018 (quoting Beeman, 674 P.2d at 1326).
UNITED STATES v. VIDAL 14521
tion and instigation are within the broad meaning of encour-
agement, also within the ambit of federal aiding and abetting
liability. See United States v. Barnett, 667 F.2d 835, 841 (9th
Cir. 1982) (“An abettor is one who, with mens rea, . . . com-
mands, counsels or otherwise encourages the perpetrator to
commit the crime.”) (internal quotation marks omitted).
[6] Vidal further suggests in his reply brief that aiding and
abetting liability for federal sentencing purposes does not
cover accessories to criminal conduct who act after the com-
mission of the prohibited act. However, the point is neither
developed, nor would it make any difference in this case
because, as we shall explain, Vidal pled guilty to taking the
car.
Accordingly, the district court did not err in concluding that
Vidal’s offense of conviction was within the generic defini-
tion of “theft offense.” Regardless, applying the modified cat-
egorical approach, it is clear that he pled guilty to a theft
offense.
B
[7] If an offense does not categorically qualify as an aggra-
vated felony under federal sentencing law, a court may “go
beyond the mere fact of conviction” and examine “documen-
tation or judicially noticeable facts that clearly establish that
the conviction is a predicate conviction for enhancement pur-
poses.” United States v. Rivera-Sanchez, 247 F.3d 905, 908
(9th Cir. 2001) (en banc) (citations and internal quotation
marks omitted). The charging papers together with either the
signed plea agreement or an abstract of judgment — all three
of which are in the record in this case — can support a finding
that a prior conviction was an aggravated felony. See United
States v. Velasco-Medina, 305 F.3d 839, 851-53 (9th Cir.
2002).
[8] As a preliminary matter, Vidal argues that applying the
modified categorical approach to determine whether he was
14522 UNITED STATES v. VIDAL
convicted of an aggravated felony violates Blakely v. Wash-
ington, 124 S. Ct. 2531 (2004), because the approach requires
the court to find more than the mere fact of a prior conviction.
However, this argument is foreclosed by United States v.
Smith, 390 F.3d 661, 666-67 (9th Cir. 2004), where we held
that Blakely does not preclude the modified categorical
approach. For the reasons set out in Smith, Booker is not
implicated, either.
[9] Beyond this, Vidal’s arguments boil down to the same
points that he believes categorically disqualify his prior con-
viction — that the complaint and conviction could have been
based on temporary, de minimis deprivations, or upon aiding
and abetting liability. The complaint charged:
On or about June 21, 1994 [Vidal] did willfully and
unlawfully drive and take a vehicle, the personal
property of GARY CRAWFORD, without the con-
sent of and with intent to deprive the owner of title
to and possession of said vehicle, in violation of
VEHICLE CODE SECTION 10851(a).
Thus, Vidal admitted that he took a vehicle belonging to
someone else, without the owner’s consent, intending to
deprive the owner of title and possession. These are the ele-
ments that meet the generic definition of “theft offense” under
Corona-Sanchez, as informed by Application Note 4 to
§ 2L1.2. He was sentenced to 365 days in jail, as required by
8 U.S.C. § 1101(a)(43)(G).
Conclusion
[10] The district court correctly determined that Vidal was
convicted of an aggravated felony for purposes of § 2L1.2.
However, because Vidal now challenges his sentence on the
ground that the district court sentenced him under the manda-
tory Guidelines, we remand for further proceedings in light of
Booker, 125 S. Ct. at 756-57, and Ameline, 409 F.3d at 1074.
UNITED STATES v. VIDAL 14523
AFFIRMED IN PART; REMANDED IN PART.
BROWNING, Circuit Judge, concurring in part and dissent-
ing in part:
I respectfully dissent from the majority’s holdings that Cal-
ifornia Vehicle Code § 10851(a) categorically qualifies as an
aggravated felony “theft offense” for sentencing, and that
Vidal’s conviction in fact qualifies under the modified cate-
gorical approach as a predicate conviction for sentence
enhancement in this case. Accordingly, I would reverse the
district court’s imposition of the enhancement, vacate Vidal’s
sentence, and remand for resentencing.1
A prior conviction categorically qualifies as a predicate
offense for sentence enhancement if the full range of conduct
covered by the statute of conviction falls within the generic
federal-sentencing definition. Chang v. INS, 307 F.3d 1185,
1189 (9th Cir. 2002); accord United States v. Taylor, 495
U.S. 575, 599-602 (1990); United States v. Corona-Sanchez,
291 F.3d 1201, 1208 (9th Cir. 2002) (en banc). However, if
such a statute is broader than the generic offense, i.e., if it
criminalizes both conduct that falls within the generic defini-
tion and conduct that does not, the statute of conviction can-
not qualify categorically for enhancement purposes.2 Taylor,
1I concur in the majority’s holding that Blakely v. Washington, 124
S. Ct. 2531 (2004), does not preclude the modified categorical approach
of United States v. Taylor, 495 U.S. 575 (1990), see United States v.
Smith, 390 F.3d 661, 666-67 (9th Cir. 2004); and that on remand, follow-
ing United States v. Ameline, 409 F.3d 1073, 1074 (9th Cir. 2005) (en
banc), the district court should determine whether the sentence imposed
would have been materially different had it known the sentencing guide-
lines were advisory.
2
Although Taylor and Corona-Sanchez counsel that the term “theft
offense” should be “read to incorporate different but closely related con-
structions in modern state statutes,” Corona-Sanchez, 291 F.3d at 1205
14524 UNITED STATES v. VIDAL
495 U.S. at 599-602; United States v. Penuliar, 395 F.3d
1037, 1041 (9th Cir. 2005); Corona-Sanchez, 291 F.3d at
1211.
Vidal asserts that § 10851(a) is broader than the generic
definition of “theft offense” adopted by this court in Corona-
Sanchez because, inter alia, it criminalizes aiders and abettors
as well as accessories. I agree with the majority’s analysis that
Application Note 4 to § 2L1.2 of the Sentencing Guidelines
is dispositive in this context as to the former.3 However, the
majority fails to address adequately the latter, ante at 14521,
and in doing so reaches an erroneous conclusion.
In relevant part § 10851(a) states the following are guilty
of the public offense it describes: “[a]ny person who drives or
takes a vehicle not his or her own . . . or any person who is
a party or an accessory to or an accomplice in” the same. Cal.
Veh. Code § 10851(a). It is long settled that California law no
longer recognizes any distinction between principals in the
first degree, second degree (aiders and abettors present at the
scene), or accessories before the fact (aiders and abettors not
present).4 Additionally, California does not include as princi-
pals, “accessories,” i.e. formerly, “accessories after the fact.”5
(quoting Taylor, 495 U.S. at 590-91), such reasoning cannot cure the over-
breadth of a state statute which criminalizes categories of conduct which
the generic sentencing definition does not. Such a conclusion is plainly
inconsistent with Taylor’s primary holding. See Taylor, 495 U.S. at 599,
602.
3
Application Note 4 in this context appears to add to § 2L1.2(b)(1)(C),
effectively, the following italicized text: “after . . . a conviction for an
aggravated felony or aiding and abetting an aggravated felony, increase
8 levels.” See U.S. Sentencing Guidelines Manual § 2L1.2, cmt. n.4
(2002).
4
See Cal. Pen. Code § 31 (Deering 2005); LaFave, SUBSTANTIVE CRIMI-
NAL LAW § 13.1(e), at 333-36 (2003). California abolished such distinc-
tions in 1872.
5
See, e.g., People v. Mitten, 37 Cal. App. 3d 879, 883 (1974) (contrast-
ing California’s approach to that of several other states).
UNITED STATES v. VIDAL 14525
As a result, the language of § 10851(a) extending liability to
“an accessory to” the unlawful driving or taking of another’s
vehicle can only be understood properly to reach parties who
sufficiently and knowingly aid a principal after the commis-
sion of the offense.6
Although Application Note 4 to § 2L1.2 extends sentencing
liability to aiders and abettors, it does not extend it to accesso-
ries.7 Comparing the statute of conviction to the generic predi-
cate offense definition, it is beyond dispute that, by
criminalizing accessories, § 10851(a) covers a broader range
of conduct than does the Sentencing Guidelines generic “theft
offense.”8 As a result, a conviction under § 10851(a) cannot
categorically qualify as a “theft offense” for sentence
enhancement within the meaning of 8 U.S.C. § 1101(a)
(43)(G). See Penuliar, 395 F.3d at 1044-45.
Because § 10851(a) fails categorically, we continue with
Taylor’s familiar “modified categorical” analysis in which we
examine relevant, judicially noticeable documents in the
record to determine if they “unequivocally establish[ ]” that
the defendant in fact was convicted of, or pled guilty to, the
generically defined crime. Corona-Sanchez, 291 F.3d at 1211;
6
Cal. Veh. Code § 10851(a) became effective in 1997, one hundred and
twenty-five years after Cal. Pen. Code § 31 changed the State’s approach
to the naming of criminal parties. See also, LaFave, supra, § 13.6(a) “Ac-
cessory After the Fact”.
7
The note in full states: “4. Aiding and Abetting, Conspiracies, and
Attempts.——Prior convictions of offenses counted under subsection
(b)(1) include . . . the offenses of aiding and abetting, conspiring, and
attempting, to commit such offenses.” U.S.S.G. § 2L1.2, cmt. n.4 (2002).
8
In Corona-Sanchez, this court adopted the Seventh Circuit’s definition
of “theft offense.” Corona-Sanchez, 291 F.3d at 1205 (“a taking of prop-
erty or an exercise of control over property without consent with the crimi-
nal intent to deprive the owner of rights and benefits of ownership, even
if such deprivation is less than total or permanent”). Given Application
Note 4 to § 2L1.2, in this context, a “theft offense” includes the commis-
sion or attempt to commit, the aiding and abetting of, or the conspiracy to
commit such an offense. It plainly does not cover accessorial liability.
14526 UNITED STATES v. VIDAL
accord United States v. Franklin, 235 F.3d 1165, 1170 (9th
Cir. 2000) (listing documents which, for modified categorical
analysis, can and cannot “clearly establish” defendant’s con-
duct).
I disagree with the majority’s conclusion, ante at 14521-22,
that any permissible combination of Vidal’s charging papers,
signed plea agreement, and judgment of conviction is capable
of “unequivocally,” or even clearly, establishing the nature of
the conduct to which Vidal pled guilty.9 Effectively, each
merely recites the generic language of § 10851(a).10 We have
found previously that this is not enough to survive modified
categorical analysis. United States v. Lopez-Montanez, 421
F.3d 926, 932 (9th Cir. 2005) (finding a charging document
which “simply restates the language of the statute” unable to
establish the elements of conviction for purposes of modified
categorical analysis); accord Huerta-Guevara v. Ashcroft, 321
F.3d 883, 888 (9th Cir. 2003) (“The difficulty is that the con-
viction’s label only goes so far; the conviction itself must
meet the generic definition of theft no matter what the state
calls it.”). Merely reciting the language of the statute tells the
court no more than would a recitation of the code section-
number alone. This is particularly so in this case given the
9
This Court is not permitted to notice for modified categorical analysis
facts recited in Vidal’s presentence report. Franklin, 235 F.3d at 1171(explaining “Taylor and this circuit in our precedents have foreclosed any
approach that considers the underlying facts of prior convictions to deter-
mine whether a defendant was convicted by a jury or pleaded guilty to a
predicate offense”).
10
Vidal’s judgment of conviction refers only to “Count 1”; his plea
agreement reveals that he pled guilty to “Count 1 10851(a)VC DRIVING
A STOLEN VEHICLLE [sic]”; and his charging papers simply recite
§ 10851(a)’s generic statutory language with the date and Vidal’s and
another’s names inserted. See Excerpt of Record, at 39, 44, 46. Addition-
ally, the variation in the wording of the charge in Vidal’s charging papers
and plea is not insignificant. See infra note 10. Despite the majority’s
assertion, ante at 14521, the record raises, rather than resolves unequivo-
cally, questions as to the nature of Vidal’s actions.
UNITED STATES v. VIDAL 14527
breadth of activity criminalized by and chargeable under
§ 10851(a).11
Therefore, because § 10851(a) does not qualify categori-
cally as an aggravated felony “theft offense” for Sentencing
Guidelines enhancement, and because the record does not
unequivocally establish that Vidal in fact pled guilty to a
“theft offense,” I would reverse the 8-level sentence enhance-
ment, vacate Vidal’s sentence, and remand for resentencing.
11
California law is clear that § 10851(a) covers a range of conduct in
concert with its larceny and joy-riding statutes, and contains distinct, alter-
nate theories of “taking” and merely “driving.” See, e.g., People v. Ivans,
2 Cal. App. 4th 1654, 1663 (1992); People v. Austell, 223 Cal. App. 3d
1249, 1251-52 (1990); People v. Donnell, 52 Cal. App. 3d 762, 769
(1975). The imprecision of Vidal’s charging and plea documents is not
insignificant; e.g., under California law, if a charging document “charges
a defendant with both driving and taking a vehicle without the owner’s
consent, it necessarily charges a violation of both” § 499b (California’s
“joy-riding” statute) and § 10851. Ivans, 2 Cal. App. 4th at 1663. Cal.
Penal Code §§ 31, 971 permit an argument that Vidal’s charging papers
establish he was charged as a principal and not as an accessory. However,
because the text of § 10851(a) itself extends liability to accessories, mere
reference to general provisions of California’s Penal Code cannot
unequivocally support such a conclusion.