United States v. Heron-Salinas ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 08-50276
Plaintiff-Appellee,
v.  D.C. No.
3:07-cr-02872-JM-1
JUAN HERON-SALINAS,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of California
Jeffrey T. Miller, District Judge, Presiding
Submitted May 6, 2009*
Pasadena, California
Filed May 20, 2009
Before: John T. Noonan, Diarmuid F. O’Scannlain, and
Susan P. Graber, Circuit Judges.
Per Curiam Opinion
*The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
6019
UNITED STATES v. HERON-SALINAS 6021
COUNSEL
Jennifer L. Coon, Federal Defenders of San Diego, Inc., San
Diego, California, for the defendant-appellant.
Nicole Acton Jones, Assistant U.S. Attorney, Appellate Sec-
tion, Criminal Division, San Diego, California, for the
plaintiff-appellee.
OPINION
PER CURIAM:
Juan Heron-Salinas appeals the district court’s denial of his
motion to dismiss his indictment for attempted entry into the
United States after deportation, in violation of 8 U.S.C.
§ 1326. Heron-Salinas claims that his underlying deportation
was invalid under 8 U.S.C. § 1326(d) because his conviction
for assault with a firearm under California Penal Code section
245(a)(2) is not a “crime of violence,” as that term is defined
in 18 U.S.C. § 16.
[1] We have previously held that aiding and abetting
assault with a deadly weapon in violation of California Penal
Code section 245(a)(1) is categorically a crime of violence
under 18 U.S.C. § 16, and that an alien convicted of that
crime is an aggravated felon under 8 U.S.C. § 1101(a)(43)(F).
Ortiz-Magana v. Mukasey, 542 F.3d 653, 654 (9th Cir. 2008);
see also Ocampo-Duran v. Ashcroft, 254 F.3d 1133, 1134-35
(9th Cir. 2001).
6022 UNITED STATES v. HERON-SALINAS
[2] California Penal Code section 245(a)(1) and 245(a)(2)
proscribe the same conduct, the only difference being the type
of weapon involved. Today we hold that a conviction for
assault with a firearm under California Penal Code section
245(a)(2) is categorically a “crime of violence” and an “ag-
gravated felony” for immigration purposes.
Heron-Salinas argues that California Penal Code section
245 does not contain the requisite mens rea or use of force to
qualify as a crime of violence under section 16. Heron-Salinas
is incorrect. Section 16 defines a “crime of violence” as:
(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.
18 U.S.C. § 16. Under a plain reading of the statute, the ele-
ments of assault with a firearm — an unlawful attempt, cou-
pled with a present ability, to commit a violent injury on the
person of another with a firearm — satisfy the requirements
of section 16(a) and (b). See Cal. Penal Code §§ 240,
245(a)(2).
[3] In California, assault “requires an intentional act and
actual knowledge of those facts sufficient to establish that the
act by its nature will probably and directly result in the appli-
cation of physical force against another.” People v. Williams,
29 P.3d 197, 204 (Cal. 2001). This definition closely tracks
the language in § 16(b). Attempting to commit a violent
injury on another person with a firearm “naturally involve[s]
a person acting in disregard of the risk that physical force
might be used against another in committing an offense.” Leo-
UNITED STATES v. HERON-SALINAS 6023
cal v. Ashcroft, 543 U.S. 1, 10-11 (2004). The mens rea
requirement is met.
Heron-Salinas next argues that section 245 is not a crime
of violence because, in California, “assault includes an uncon-
sented touching of the victim,” rather than actual force, as
required by section 16. People v. Rosen, 56 Cal. Rptr. 3d 444,
454 (Ct. App. 2007). Today we do not address the broader
question of whether all forms of assault under the California
Penal Code are crimes of violence. The use of a firearm in the
commission of the crime is enough to demonstrate that actual
force was attempted or threatened under section 16(a). Simi-
larly, one who assaults another by means of a firearm neces-
sarily disregards the substantial risk that in the course of
committing the offense he might intentionally use actual
physical force against the victim under section 16(b).
[4] Assault with a firearm naturally falls within the cate-
gory, “crime of violence,” under the “ordinary meaning” of
that term. See Leocal, 543 U.S. at 11. Heron-Salinas was con-
victed of a “crime of violence” under 18 U.S.C. § 16.
Accordingly, the conviction is AFFIRMED.