Oscar Chavez Solis v. Loretta E. Lynch , 803 F.3d 1004 ( 2015 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
OSCAR CHAVEZ-SOLIS, No. 11-73958
Petitioner,
Agency No.
v. A073-850-909
LORETTA E. LYNCH, Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
June 4, 2015—Pasadena, California
Filed October 6, 2015
Before: Raymond C. Fisher, Jay S. Bybee,
and Carlos T. Bea, Circuit Judges.
Opinion by Judge Bybee
2 CHAVEZ-SOLIS V. LYNCH
SUMMARY*
Immigration
The panel granted Oscar Chavez-Solis’s petition for
review of the Board of Immigration Appeals’ decision
holding that his conviction for possessing child pornography
under California Penal Code § 311.11(a) is an aggravated
felony under 8 U.S.C. § 1101(a)(43)(I).
The panel held that CPC § 311.11(a) is not an aggravated
felony because it is categorically broader than any offense
described in the federal child pornography statute. The panel
also held that the modified categorical approach could not be
applied because the definition of “sexual conduct” in CPC
§ 311.4(d) is indivisible.
COUNSEL
Douglas Jalaie (argued), Los Angeles, California, for
Petitioner.
Stuart F. Delery, Principal Deputy Assistant Attorney
General; Jennifer Lightbody, Senior Litigation Counsel;
Ashley Y. Martin (argued), Attorney, Office of Immigration
Litigation, United States Department of Justice, Washington,
D.C., for Respondent.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
CHAVEZ-SOLIS V. LYNCH 3
OPINION
BYBEE, Circuit Judge:
We are asked to decide whether a conviction for
possessing child pornography in violation of California Penal
Code § 311.11(a) is an aggravated felony under 8 U.S.C.
§ 1101(a)(43)(I). We conclude that § 311.11(a) sweeps in a
broader range of pornographic depictions than the federal
child pornography statute and thus is not an aggravated
felony. Accordingly, we grant the petition for review.
I
Oscar Chavez-Solis is a native and citizen of Mexico who
was admitted to the United States as a lawful permanent
resident in 1999. In 2011, he pleaded nolo contendere to
possessing or controlling child pornography in violation of
California Penal Code § 311.11(a). He was sentenced to 150
days’ imprisonment.
Two months later, the Department of Homeland Security
(DHS) took Chavez-Solis into custody and placed him in
removal proceedings. The Notice to Appear charged Chavez-
Solis with removability under 8 U.S.C. § 1227(a)(2)(A)(iii)
as an alien “convicted of an aggravated felony as defined in
[8 U.S.C. § 1101(a)(43)(I)].” Section 1101(a)(43)(I) defines
the term “aggravated felony” to include “an offense described
in [18 U.S.C. §§] 2251, 2251A, or 2252 . . . (relating to child
pornography).”
In proceedings before the Immigration Judge, DHS took
the position that Penal Code § 311.11(a) is an aggravated
felony under 8 U.S.C. § 1101(a)(43)(I) because it is described
4 CHAVEZ-SOLIS V. LYNCH
in both 18 U.S.C. § 2252(a)(2) (receipt of child pornography)
and § 2252(a)(4)(B) (possession of child pornography).
Chavez-Solis disagreed. Pointing to the California Court of
Appeal’s decision in Tecklenburg v. Appellate Division of the
Superior Court, 87 Cal. Rptr. 3d 460, 472–73 (Ct. App.
2009), he argued that, unlike federal courts applying the
federal statute, California courts have held that a defendant
who accesses child pornography on the Internet can be
convicted under § 311.11(a) for possessing images found in
his computer’s temporary cache even if he is unaware of the
cache.
In an oral decision, the Immigration Judge determined
that Chavez-Solis’s § 311.11(a) conviction constituted an
aggravated felony under 8 U.S.C. § 1101(a)(43)(I). The
Immigration Judge compared the statutes and reasoned that
“[t]he essential elements of California Penal Code Section
311.11[(a)], as well as those under 2252(a)(4)(B) are
essentially the same.” Acknowledging that Tecklenburg
construed § 311.11(a) broadly, the Immigration Judge
responded, “That is exactly the point. . . . [B]oth [state and
federal] statues [sic] are so broad they are virtually identical
. . . .” The Immigration Judge concluded that Chavez-Solis
was ineligible for adjustment of status, cancellation of
removal, and voluntary departure, and ordered him removed
to Mexico.
Chavez-Solis appealed to the Board of Immigration
Appeals. Reviewing de novo, the Board concluded that
“[t]he offense defined by section 311.11(a) . . . is ‘described
in’ 18 U.S.C. § 2252 because the essential elements of the
California offense are the same as those described by
18 U.S.C. §§ 2252(a)(2) and (a)(4)(B).” As for the
Tecklenburg decision, the Board reasoned that the defendant
CHAVEZ-SOLIS V. LYNCH 5
in Tecklenburg did “knowingly possess or control images of
child pornography,” and thus could have been convicted
under 18 U.S.C. § 2252. The Board thus agreed with the
Immigration Judge that a violation of Penal Code § 311.11(a)
is an offense described in 18 U.S.C. § 2252 and accordingly
dismissed the appeal.
Chavez-Solis filed a timely petition for review with this
court. We have jurisdiction to review questions of law
decided by the Board of Immigration Appeals, 8 U.S.C.
§ 1252(a)(1), (a)(2)(D), and “[w]hether an offense is an
aggravated felony for removal purposes is a question of law”
that we review de novo, Chuen Piu Kwong v. Holder,
671 F.3d 872, 876 (9th Cir. 2011) (brackets omitted) (quoting
Morales-Alegria v. Gonzales, 449 F.3d 1051, 1053 (9th Cir.
2006)).
II
We determine whether a state law child pornography
conviction is an aggravated felony as defined in 8 U.S.C.
§ 1101(a)(43)(I) by applying the categorical approach
outlined in Taylor v. United States, 495 U.S. 575 (1990).
Under that approach, we “make a categorical comparison of
the elements of the statute of conviction and the generic
definition of an aggravated felony, as found in
§ 1101(a)(43).” Aguilar-Turcios v. Holder, 740 F.3d 1294,
1300 (9th Cir. 2014). Here, that means we must compare the
elements of California Penal Code § 311.11(a) with those of
18 U.S.C. §§ 2252(a)(2) and 2252(a)(4)(B).
6 CHAVEZ-SOLIS V. LYNCH
A
The statute of conviction here, California Penal Code
§ 311.11(a), punishes a person who “knowingly possesses or
controls any matter, representation of information, data, or
image, . . . the production of which involves the use of a
person under 18 years of age, knowing that the matter depicts
a person under 18 years of age personally engaging in or
simulating sexual conduct.” “Sexual conduct,” in turn, means
“actual or simulated”
sexual intercourse, oral copulation, anal
intercourse, anal oral copulation,
masturbation, bestiality, sexual sadism, sexual
masochism, penetration of the vagina or
rectum by any object in a lewd or lascivious
manner, exhibition of the genitals or pubic or
rectal area for the purpose of sexual
stimulation of the viewer, any lewd or
lascivious sexual act as defined in Section
288, or excretory functions performed in a
lewd or lascivious manner.
Id. § 311.4(d)(1).
The federal possession statute, 18 U.S.C.
§ 2252(a)(4)(B),1 punishes a person who “knowingly
possesses, or knowingly accesses with intent to view, [any]
matter which contain[s] any visual depiction . . . if—(i) the
producing of such visual depiction involves the use of a
1
We focus our attention on 18 U.S.C. § 2252(a)(4)(B), the provision of
the federal statute that, like Penal Code § 311.11(a), punishes simple
possession of child pornography.
CHAVEZ-SOLIS V. LYNCH 7
minor engaging in sexually explicit conduct; and (ii) such
visual depiction is of such conduct.”2 Another section defines
“sexually explicit conduct” as actual or simulated
(i) sexual intercourse, including genital-
genital, oral-genital, anal-genital, or oral-anal,
whether between persons of the same or
opposite sex;
(ii) bestiality;
(iii) masturbation;
(iv) sadistic or masochistic abuse; or
(v) lascivious exhibition of the genitals or
pubic area of any person.
18 U.S.C. § 2256(2)(A).
The statutes overlap in many respects:
Both statutes require knowing possession, including
knowledge that the pornography depicts a minor engaged in
sexual conduct. The California statute is somewhat more
clear on its face, as it uses the word “knowingly” to qualify
“possesses or controls” and then again uses the word
2
We omit the provision’s jurisdictional element (which requires that the
visual depiction be transported in interstate or foreign commerce or
produced using materials transported in interstate or foreign commerce)
because a mere jurisdictional element does not render a federal statute
narrower than a state statute for purposes of the categorical inquiry. See
United States v. Castillo-Rivera, 244 F.3d 1020, 1024 (9th Cir. 2001).
8 CHAVEZ-SOLIS V. LYNCH
“knowing” with reference to the fact that an actual minor is
depicted engaging in sexual conduct. The federal statute, by
contrast, uses the word “knowingly” only at the beginning,
suggesting that it might modify only the verbs it
precedes—“possesses” and “accesses.” Nevertheless, we
have held that § 2252(a)(4)(B)’s scienter requirement applies
to all elements of the offense: “[T]he government must show
that the defendant knew that . . . the materials portrayed
sexually-explicit conduct and . . . that he knew that the
materials depicted minors engaged in such conduct.” United
States v. Merino-Balderrama, 146 F.3d 758, 761 (9th Cir.
1998) (citing United States v. X-Citement Video, Inc.,
513 U.S. 64, 78 (1994)).
Both statutes require possession or control. Chavez-Solis
tries to make something of the fact that the federal statute
says only “possesses,” not “possesses or controls” as
§ 311.11(a) does. But there is no legally significant
distinction between these terms. We have explained that a
defendant “possesses” child pornography under the federal
statute if he “exercise[s] dominion and control over it.”
United States v. Romm, 455 F.3d 990, 999 (9th Cir. 2006)
(citation, internal quotation marks, and brackets omitted).
Both statutes require that the matter depict an actual
minor and define “minor” as a person under the age of 18.
Compare Cal. Penal Code § 311.11(a) (“the production of
[the matter] involves the use of a person under 18 years of
age . . . [and] the matter depicts a person under 18 years of
age personally engaging in or simulating sexual conduct”)
with 18 U.S.C. § 2252(a)(4)(B) (“the producing of such visual
depiction involves the use of a minor engaging in sexually
explicit conduct[] and . . . such visual depiction is of such
CHAVEZ-SOLIS V. LYNCH 9
conduct”) and id. § 2256(1) (“‘minor’ means any person
under the age of eighteen years”).
Finally, both statutes define sexual conduct to include
much (but not all) of the same conduct. Both statutes
encompass “actual” and “simulated” sexual intercourse, oral
sex, anal sex, masturbation, bestiality, sexual sadism, sexual
masochism, and lascivious exhibition of the genitals or pubic
area. Compare Cal. Penal Code § 311.4(d)(1) (defining
“sexual conduct”) with 18 U.S.C. § 2256(2)(A) (defining
“sexually explicit conduct”).
We have previously determined that “the essential
elements of [Penal Code] section 311.11 and those of
18 U.S.C. § 2252(a)(4)(B) are the same” and that there is no
“meaningful distinction” between the two statutes’ definitions
of sexual conduct. Armijo v. Mukasey, 266 F. App’x 511,
512–13 (9th Cir. 2008). We must now reevaluate our prior
nonprecedential conclusion in Armijo in light of new
arguments, to which we now turn.
B
Chavez-Solis argues that § 311.11(a) prohibits depictions
of a broader range of “sexual conduct” than 18 U.S.C.
§ 2252(a)(4)(B) prohibits. We conclude that § 311.11(a) is
indeed broader in this regard. Chavez-Solis also argues that
Penal Code § 311.11(a) has been applied more broadly than
the federal statute in cases involving child pornography found
in a computer’s cache. In light of our conclusion that
§ 311.11(a) is categorically broader than 18 U.S.C.
§ 2252(a)(4)(B), we decline to address this issue.
10 CHAVEZ-SOLIS V. LYNCH
1
Section 311.11(a)’s broader scope is readily apparent
from its text. The federal definition of “sexually explicit
conduct” includes only five types of conduct: (i) sexual
intercourse, (ii) bestiality, (iii) masturbation, (iv) sadistic or
masochistic abuse, and (v) lascivious exhibition of the
genitals or pubic area. 18 U.S.C. § 2256(2)(A). California’s
definition of “sexual conduct” includes the same five types of
conduct: “sexual intercourse, . . . masturbation, bestiality,
sexual sadism, sexual masochism, . . . [and] exhibition of the
genitals or pubic or rectal area for the purpose of sexual
stimulation of the viewer.” Cal. Penal Code § 311.4(d)(1).
But the California statute does not stop there.
California’s definition of “sexual conduct,” unlike the
federal statute, goes on to include “any lewd or lascivious
sexual act as defined in Section 288.” Id.3 Section 288
prohibits “any lewd or lascivious act . . . upon or with the
body, or any part or member thereof, of a child who is under
the age of 14 years, with the intent of arousing, appealing to,
or gratifying the lust, passions, or sexual desires of that
person or the child.” Id. § 288(a).
3
California’s definition of “sexual conduct” also lists “penetration of the
vagina or rectum by any object in a lewd or lascivious manner” and
“excretory functions performed in a lewd or lascivious manner.” Cal.
Penal Code § 311.4(d)(1). Although these provisions have no explicit
analogue in the federal statute, both provisions may always involve
“lascivious exhibition of the genitals or pubic area” as that term is used in
the federal statute. We therefore focus on the definition’s “lewd or
lascivious sexual act” provision, which, as the text of § 288 makes clear,
does not always involve exhibition of the genitals or pubic area.
CHAVEZ-SOLIS V. LYNCH 11
Section 288 is quite broad. As the California Supreme
Court has explained, “[n]othing in [§ 288] restricts the
manner in which [the prohibited] contact can occur or
requires that specific or intimate body parts be touched.”
People v. Martinez, 903 P.2d 1037, 1041 (Cal. 1995). “[A]ny
touching of an underage child is ‘lewd or lascivious’ within
the meaning of section 288 where it is committed for the
purpose of sexual arousal.” Id. at 1042. And, as the language
of § 288 expressly states, “a touching of ‘any part’ of the
victim’s body is . . . prohibited.” Id. at 1041 (quoting Cal.
Penal Code § 288(a)).
Taken at face value, California’s definition of “sexual
conduct” must be quite broad too, as it explicitly
encompasses the full range of conduct proscribed by § 288.
See Cal. Penal Code § 311.4(d)(1) (definition of “sexual
conduct” includes “any lewd or lascivious sexual act as
defined in Section 288” (emphasis added)); see also People
v. Wallace, 14 Cal. Rptr. 2d 67, 75 (Ct. App. 1992) (“Since
sections 288 and 311.4 cover the same subject matter, we
should construe them together so as to harmonize them, and
if possible, maintain the integrity of both statutes.”),
overruled on other grounds by Martinez, 903 P.2d at 1048.
No provision of the federal statute’s definition of
“sexually explicit conduct” can be read to encompass “any
touching” on “any part” of a child’s body with the intent of
arousing sexual desires. California’s child pornography
statute thus sweeps in depictions of a broader range of
“sexual conduct” than the federal child pornography statute
encompasses. On this basis, Penal Code § 311.11(a) is
categorically overinclusive.
12 CHAVEZ-SOLIS V. LYNCH
2
The government argues that Chavez-Solis has failed to
show a “realistic probability,” Gonzales v. Duenas-Alvarez,
549 U.S. 183, 193 (2007), that a defendant would ever be
convicted under § 311.11(a) for possessing a depiction of a
lewd or lascivious sexual act as defined in § 288. We
disagree.
In Duenas-Alvarez, the Supreme Court clarified how
courts should apply the categorical inquiry:
[T]o find that a state statute creates a crime
outside the generic definition of a listed crime
in a federal statute requires more than the
application of legal imagination to a state
statute’s language. It requires a realistic
probability, not a theoretical possibility, that
the State would apply its statute to conduct
that falls outside the generic definition of a
crime.
Id. at 193. One way a petitioner can show the requisite
“realistic probability” of prosecution for conduct that falls
outside the generic definition is to “point to his own case or
other cases in which the state courts in fact did apply the
statute in the special (nongeneric) manner for which he
argues.” Id.
But that is not the only way. We have explained that if “a
state statute explicitly defines a crime more broadly than the
generic definition, no ‘legal imagination’ is required to hold
that a realistic probability exists that the state will apply its
statute to conduct that falls outside the generic definition of
CHAVEZ-SOLIS V. LYNCH 13
the crime.” United States v. Grisel, 488 F.3d 844, 850 (9th
Cir. 2007) (en banc) (citation omitted); see also United States
v. Vidal, 504 F.3d 1072, 1082 (9th Cir. 2007) (en banc).
Accordingly, when a “state statute’s greater breadth is evident
from its text,” a petitioner need not point to an actual case
applying the statute of conviction in a nongeneric manner.
Grisel, 488 F.3d at 850. The petitioner may simply “rely on
the statutory language to establish the statute as overly
inclusive.” Vidal, 504 F.3d at 1082.
The statute of conviction here explicitly prohibits
possessing depictions of a minor “engaging in or simulating
sexual conduct, as defined in subdivision (d) of Section
311.4.” Cal. Penal Code § 311.11(a). And § 311.4(d)
explicitly includes conduct—“any lewd or lascivious sexual
act as defined in Section 288”—that is neither included in nor
fairly encompassed by the federal definition of “sexually
explicit conduct.” Under Grisel and Vidal, there is thus a
“realistic probability” that California will apply § 311.11(a)
to depictions that are not covered by the federal child
pornography statute. Chavez-Solis has no need to point to
any actual prosecution.
In any event, People v. Wallace, shows a reasonable
probability of prosecution under § 311.4(d)’s “lewd or
lascivious sexual act” prong. See 14 Cal. Rptr. 2d at 71.
Wallace involved a prosecution for, among other crimes, the
offense of using a minor to produce a film depicting sexual
conduct in violation of Penal Code § 311.4(c). Like
§ 311.11(a), § 311.4(c) incorporates the definition of “sexual
conduct” found in § 311.4(d). The defendant, Wallace,
videotaped two teenage girls taking off their clothes in a
seductive manner. One of the girls, at Wallace’s urging,
revealed her breasts to the camera, and both girls pulled their
14 CHAVEZ-SOLIS V. LYNCH
bikini bottoms away from the skin to show their tanlines. Id.
at 69–70. Based on the videotapes, a jury convicted Wallace
of violating § 311.4(c). Id. at 68–69.
Wallace argued on appeal that there was insufficient
evidence that the videos depicted “sexual conduct” within the
meaning of § 311.4(d). The California Court of Appeal
disagreed. Although the court determined that “the girls did
not actually exhibit their genital, pubic or rectal areas,” id. at
76, “there was credible evidence from which the jury could
draw rational inferences that [the] defendant did commit two
or three lewd acts on the body of the victims,” id. at 71. For
example, the court noted, the defendant encouraged the girls
to expose their bodies while he filmed them and, as a result
of that encouragement, “Tina exposed her breasts and Jenny
pulled down a portion of her underpants.” Id. This
constituted a “lewd or lascivious touching” because, as the
court explained, “the necessary touching may be done by the
child victim . . . on the child’s own person at the instigation
of the defendant.” Id.
Although the evidence was sufficient to convict under
§ 311.4(d)’s “lewd or lascivious sexual act” prong, the court
ultimately reversed the § 311.4(c) conviction because it
concluded that the verdict was tainted by the trial court’s “any
touching” jury instruction. See id. at 76. In the court’s view,
the “touching of the victims had to be lewd and lascivious,
regardless of [the defendant’s] specific intent.” Id. at 75.
This interpretation of § 288 was later overruled by the
California Supreme Court in People v. Martinez, which
“adhere[d] to the long-standing rule that section 288 is
violated by ‘any touching’ of an underage child accomplished
with the intent of arousing the sexual desires of either the
perpetrator or the child.” 903 P.2d at 1048. But Martinez did
CHAVEZ-SOLIS V. LYNCH 15
nothing to cast doubt on Wallace’s determination that
sufficient evidence established that the videotapes in question
depicted a lewd or lascivious sexual act but not a lascivious
exhibition of the genitals or pubic area. If anything, Martinez
clarified that Wallace’s § 311.4(c) conviction was not tainted
by erroneous instructions and thus, in retrospect, should have
been upheld. Wallace thus clearly shows a defendant can be
prosecuted and convicted under California’s child
pornography laws based on the “lewd or lascivious sexual
act” prong of § 311.4(d)’s definition of “sexual conduct.”
The government contends that Wallace should be
distinguished because it involved a § 311.4(c) prosecution,
not a § 311.11(a) prosecution, and that “state courts have
distinguished § 311.4(c), and other offenses that target the
actual use of minors to produce images, from the simple
possession offense at § 311.11(a).” But the two decisions the
government identifies—People v. Haraszewski, 137 Cal.
Rptr. 3d 641 (Ct. App. 2012), and People v. Shields, 131 Cal.
Rptr. 3d 82 (Ct. App. 2011)—distinguished § 311.11(a) only
with respect to the question of how many crimes a defendant
can be charged with having committed.4 These decisions say
nothing about the meaning of “sexual conduct” in the statute,
nor has the government identified any state court decision
applying the term “sexual conduct” more narrowly in a
possession case than in a use-of-a-minor case. On the
4
Compare People v. Manfredi, 86 Cal. Rptr. 3d 810, 811 (Ct. App.
2008) (possession of multiple child pornography images chargeable as
only one § 311.11(a) offense), with Haraszewski, 137 Cal. Rptr. 3d at 656
(Penal Code § 311.2(d), which proscribes the duplication of child
pornography, authorizes a separate conviction for each duplication), and
Shields, 131 Cal. Rptr. 3d at 89 (Penal Code § 311.4(c), which proscribes
the use of a minor to produce child pornography, authorizes a separate
conviction for each “piece of media created”).
16 CHAVEZ-SOLIS V. LYNCH
contrary, at least one California court has explained that,
when interpreting § 311.4(d)’s definition of “sexual conduct,”
the “same principles . . . apply” with respect to a § 311.11(a)
charge as to a § 311.4(c) charge. People v. Kongs, 37 Cal.
Rptr. 2d 327, 336 (Ct. App. 1995).5
The government does not dispute that Wallace and this
case both turn on the same definition of “sexual conduct”
found in § 311.4(d). And under our precedents, that is
enough to satisfy Duenas-Alvarez. Our decision in Medina-
Lara v. Holder, 771 F.3d 1106 (9th Cir. 2014), is instructive.
Medina argued that his statute of conviction for possessing a
firearm under Penal Code § 12022(c) was categorically
overinclusive because the federal generic offense had an
exception for antique firearms whereas the state statute had
no such explicit exception. Although Medina could not point
to any antique firearm prosecutions under § 12022(c), he was
able to point to antique firearm prosecutions under other
California statutes that incorporated the same definition of
“firearm” as § 12022(c). Id. at 1116. The government argued
that this was insufficient to show a “realistic probability”
under Duenas-Alvarez. Id.
5
The government notes that California courts have adopted the same
factors that federal courts use to determine whether an image depicts a
lascivious exhibition of the genitals or pubic area. But this similarity of
analysis makes sense because the California and federal statutes contain
nearly identical exhibition provisions. See Kongs, 37 Cal. Rptr. 2d at 334
(adopting the federal Dost test as the test for “determining whether there
has been a prohibited exhibition of a minor’s genitals, pubic, or rectal
area” because the California and federal statutes’ exhibition provisions
“mean[] the same thing”). The government has not identified any
California case narrowing § 311.4(d)’s “lewd or lascivious sexual act”
provision to acts that lewdly exhibit a minor’s genitals or pubic area.
Indeed, Wallace is directly to the contrary.
CHAVEZ-SOLIS V. LYNCH 17
We agreed with Medina:
[O]ur inquiry must focus on California’s
interpretation of former § 12001(b) [the
provision defining “firearm”] rather than
convictions based on § 12022(c). . . . It does
not matter if the conduct is criminalized by
former § 12021(c)(1), . . . by
§ 12022(c), . . .or by former § 12025(a) . . . .
Because the common link . . . is the
§ 12001(b) definition of firearm, our analysis
should center on that statute.
Id. Because Medina had pointed to another case applying the
state statute in a nongeneric manner—even though it was a
different statute that merely shared the same definition of
“firearm”—we determined that “Medina’s challenge easily
passes the Duenas-Alvarez bar.” Id.
The same is true here. Wallace shows that § 311.4(d) has
been applied in a manner broader than the generic federal
offense. It does not matter if the conduct is criminalized by
§ 311.11(a), by § 311.4(c), or by any other provision.
Because the common link is § 311.4(d)’s definition of “sexual
conduct,” we focus our analysis on § 311.4(d).
Both on its face and as applied, § 311.4(d) encompasses
a broader range of sexual conduct than does the definition of
“sexually explicit conduct” in the federal statute.
Accordingly, because § 311.4(d) is incorporated into
§ 311.11(a), there is a realistic probability, not just a
theoretical possibility, that § 311.11(a) will be applied to
conduct not described in the federal child pornography
statute. Section 311.11(a) is therefore categorically broader
18 CHAVEZ-SOLIS V. LYNCH
than any “offense described in [18 U.S.C. §§] 2251, 2251A,
or 2252.” 8 U.S.C. § 1101(a)(43)(I).
III
When a petitioner’s state statute of conviction is not a
categorical aggravated felony, we can sometimes apply a
“modified categorical approach.” This test allows us to look
beyond the statutory text to a limited set of documents to
determine whether the petitioner was necessarily convicted of
all the elements of the federal generic offense. See Sanchez-
Avalos v. Holder, 693 F.3d 1011, 1014–15 (9th Cir. 2012),
abrogated in part by Descamps v. United States, 133 S. Ct.
2276 (2013). This approach is available, however, only when
the state statute of conviction is “divisible,” meaning it “lists
multiple, alternative elements, and so effectively creates
several different . . . crimes.” Rendon v. Holder, 764 F.3d
1077, 1083 (9th Cir. 2014) (alterations in original) (quoting
Descamps, 133 S. Ct. at 2285 (internal quotation marks
omitted)). The government contends that § 311.4(d)’s
definition of “sexual conduct” is divisible, such that we
should remand to the BIA for it to apply the modified
categorical approach in the first instance.6 We disagree and
hold that § 311.11(a)’s reference to “sexual conduct” does not
create different crimes, each one depending on the particular
6
Invoking the Supreme Court’s decision in INS v. Ventura, 537 U.S. 12
(2002) (per curiam), the government also argues that we should remand
the case for the Board of Immigration Appeals to determine in the first
instance whether the modified categorical approach should be applied.
But deciding whether a state statute is divisible requires neither factual
development nor agency expertise. Ventura is thus inapposite, and we
decline to remand this issue to the Board of Immigration Appeals. See
Fernandez-Ruiz v. Gonzales, 466 F.3d 1121, 1132–35 (9th Cir. 2006) (en
banc).
CHAVEZ-SOLIS V. LYNCH 19
sexual conduct depicted in an alleged image of child
pornography. Rather, this definition simply lists numerous
ways in which an image may be considered to depict “sexual
conduct” and thus qualify for the single crime of possession
of child pornography.
Although § 311.4(d)’s definition of “sexual conduct” is
worded in the disjunctive, the jury is not required to find that
the pornographic materials portray any particular type of
sexual conduct—only that the materials portray sexual
conduct. See, e.g., Wallace, 14 Cal. Rptr. 2d at 75–76
(quoting trial court’s jury instructions, which stated that “[f]or
the purpose of this trial, the sexual conduct means any of the
[types of conduct listed in § 311.4(d)]” (some emphases
omitted)); People v. Ciccarelli, No. H032864, 2009 WL
3635891, at *7 (Cal. Ct. App. Nov. 4, 2009) (holding that no
unanimity instruction under § 311.11(a) was necessary
because “the jury may divide or be uncertain as to the exact
way defendant was guilty of the single crime of possessing
child pornography”). California jury instructions reveal what
common sense suggests—California juries are not required to
unanimously agree on what sexual conduct appears in a
particular image in order to convict a defendant of possession
of child pornography. See Jury Instruction #33, People v.
Dillard, No. 02SF0413, 2003 WL 24293940 (Cal. Super. Ct.
June 25, 2003) (instructing the jury by giving the entire
definition of “sexual conduct” from § 311.4(d) in a
possession case under § 311.11(a)); Special Jury Instruction
311.11(a) #4, People v. Melvyn, No. 01HF0262, 2002 WL
33008958 (Cal. Super. Ct. May 7, 2002) (same).
The government’s arguments to the contrary are
unpersuasive. We agree that pattern jury instructions are a
useful tool in assessing the divisibility of state statutes. See
20 CHAVEZ-SOLIS V. LYNCH
Rendon, 764 F.3d at 1087 n.11. But the government reads too
much into the fact that California’s model jury instructions
have parentheses or brackets around the laundry list of acts
that qualify as sexual conduct. See CALJIC No. 10.83
(model jury instruction for Penal Code § 311.11(a));
CALCRIM No. 1141 (using § 311.4(d) definition of “sexual
conduct” in distribution of obscene materials instruction);
CALCRIM Guide, at xxvi (2015) (“When the user must
choose one of two or more options in order to complete the
instruction, the choice of necessary alternatives is presented
in parentheses . . . . The instructions use brackets to provide
optional choices that may be necessary or appropriate,
depending on the individual circumstances of the case . . . .
Finally, both parentheses and brackets may appear in the
same sentence to indicate options that arise depending on
which necessary alternatives are selected . . . .”). All the
model jury instructions reveal is that at least one type of
sexual conduct must be filled in so that the jury instruction
will be complete. Similarly, all we really learn from the
government’s citation to People v. Hachler, No. A113880,
2007 WL 4171622, at *7 (Cal. Ct. App. Nov. 27, 2007), is the
unremarkable proposition that a jury must unanimously
conclude that any given image depicts a minor engaged in
real or simulated sexual conduct. But this does not tell us that
California juries must unanimously agree on which sexual
conduct each image contains.
Section 311.4(d) is indivisible, and the modified
categorical approach is thus foreclosed. See Rendon,
764 F.3d at 1086 (holding that a statute is divisible “[o]nly
when state law requires that in order to convict the defendant
the jury must unanimously agree that he committed a
particular substantive offense contained within the
disjunctively worded statute”).
CHAVEZ-SOLIS V. LYNCH 21
IV
We hold that Chavez-Solis’s conviction under California
Penal Code § 311.11(a) does not qualify as an aggravated
felony under 8 U.S.C. § 1101(a)(43)(I) and that he is
therefore not removable on that basis. We GRANT the
petition for review and REMAND for further proceedings
consistent with this opinion.