Penuliar v. Ashcroft ( 2006 )

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
808 PENULIAR v. GONZALES
Opinion by Judge Pregerson
810 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 pre-
decessor, 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,
PENULIAR v. GONZALES 811
“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, “ . . . qual-
ify 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 def-
inition 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 mean-
ing of the INA because a defendant could “be convicted
of a substantive violation . . . based on an aiding and abet-
ting 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 Martinez-
Perez, 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 peti-
tions shall be entertained.
812 PENULIAR v. GONZALES
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 unlaw-
ful 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). Classify-
ing both convictions as “aggravated felonies” under the Immi-
gration and Nationality Act (“INA”), an Immigration Judge
(“IJ”), affirmed by the BIA, found Penuliar ineligible for can-
cellation 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 viola-
tion of California Vehicle Code § 10851(a), and was sen-
tenced 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 con-
currently.
While serving his sentence in state prison, the Immigration
and Naturalization Service (“INS”)1 served Penuliar with a
1
The 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.
PENULIAR v. GONZALES 813
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 includ-
ing a purely political offense) for which the term of imprison-
ment [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 (includ-
ing receipt of stolen property) or burglary offense for which
the term of imprisonment [is] at least one year,” an “aggra-
vated 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 corre-
sponding abstract of judgment showing that Penuliar pled
guilty to that count. The government also introduced a crimi-
nal information charging Penuliar with, inter alia, one count
of unlawful driving or taking of a vehicle in violation of Cali-
fornia 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 Penul-
iar pled guilty to both counts. Finally, the government intro-
duced 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
2
The 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.
814 PENULIAR v. GONZALES
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 inel-
igible 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 deci-
sion 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 felo-
ny” 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 com-
pare 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 stat-
ute] falls within the meaning of that term.’ ” Id. (quoting
United States v. Baron-Medina, 187 F.3d 1144, 1146 (9th Cir.
1999)).
PENULIAR v. GONZALES 815
However, when the statute of conviction reaches both con-
duct 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 con-
duct “a limited examination of documents in the record of
conviction to determine if there is sufficient evidence to con-
clude 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. Trinidad-
Aquino, 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
816 PENULIAR v. GONZALES
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 Cali-
fornia’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. Ash-
croft, ___ 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 negli-
gent 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 offi-
cer in violation of Section 2800.1 and the pursued vehicle is
driven in a willful or wanton disregard for the safety of per-
sons 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).
PENULIAR v. GONZALES 817
[4] As defined by subsection (b), “willful or wanton disre-
gard” exists if a driver commits three Vehicle Code viola-
tions. 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 reck-
less 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 vio-
lations, however, do not require reckless or intentional disre-
gard for the safety of persons or property within the meaning
of 18 U.S.C. § 16.3 In other words, “willful or wanton disre-
gard,” 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 defen-
dant is aware of — a volitional requirement absent in negli-
gence.”). 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, Sec-
tion 2800.2 is broader than a “crime of violence” as defined
by 18 U.S.C. § 16.
3
For 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 convic-
tion involving the safe operation of a motor vehicle upon the highway.”
Id. § 12810(f).
818 PENULIAR v. GONZALES
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 Cali-
fornia 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 miscon-
duct” 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 informa-
tion charging Penuliar with evading an officer in violation of
California Vehicle Code § 2800.2(a), (2) an abstract of judg-
ment showing that Penuliar pled guilty to that charge, and (3)
a probation officer’s report.4 The government did not intro-
duce either Penuliar’s plea agreement or a transcript of Penul-
iar’s plea proceeding into the record. Instead, the government
4
On appeal, however, the government abandons any reliance on the pro-
bation officer’s report to establish that Penuliar was convicted of a “crime
of violence” under the modified approach.
PENULIAR v. GONZALES 819
argues that the information and abstract of judgment were suf-
ficient 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 reck-
less 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 vio-
lence.” See United States v. Contreras-Salas, 387 F.3d 1095,
1098 (9th Cir. 2004) (holding that defendant was not con-
victed of a crime of violence where information and judgment
of conviction failed to establish whether defendant was con-
victed of “volitional, reckless, or negligent conduct”).
5
Count 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 DISRE-
GARD, 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 follow-
ing conditions existed: the peace officer’s motor vehicle exhib-
ited 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 rea-
sonably necessary, the peace officer’s motor vehicle was distinc-
tively 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.
820 PENULIAR v. GONZALES
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 def-
inition.”).
[7] Accordingly, we conclude that the BIA erred in affirm-
ing the IJ’s decision that Penuliar’s conviction under Califor-
nia 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 imprison-
ment [is] at least one year.” This circuit defines a “theft
offense” under § 1101(a)(43)(G) to mean “a taking of prop-
erty 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 Cali-
fornia’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 conclu-
sion, we relied in part on the broad nature of aiding and abet-
ting 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
PENULIAR v. GONZALES 821
of authority and sound law require proof that an aider and
abettor act with knowledge of the criminal purpose of the per-
petrator 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 abet-
ting 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 Cali-
fornia 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
822 PENULIAR v. GONZALES
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 unlaw-
fully 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).6 See 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 Penul-
6
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 convic-
tion 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. Mitsu-
bishi 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.”).
7
The IJ also relied on a probation officer’s report that details the facts
underlying Penuliar’s December 13, 2000, conviction for unlawful driving
PENULIAR v. GONZALES 823
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 unlaw-
ful driving and taking of a vehicle describe Penuliar as a prin-
cipal, and because Penuliar pled guilty to both counts, the
charging documents and the abstract of judgment are suffi-
cient 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 unlaw-
ful driving or taking of a vehicle under California law, charg-
ing 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 posses-
sion of said vehicle.”8
However, as we recognized in Corona-Sanchez, under Cal-
ifornia 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 Corona-
Sanchez, 291 F.3d at 1212.
8
Count 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 VEHI-
CLE, 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 per-
sonal 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.
824 PENULIAR v. GONZALES
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 con-
victed 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 demon-
strate 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 accom-
plice.
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.