The Ninth Circuit granted the petition for review and remanded, finding that a conviction under California’s theft statute is categorically not a theft offense, and thus not an aggravated felony, because the statute is both overbroad and indivisible, and such a conviction is not susceptible to the modified categorical approach pursuant to Descamps v. United States and Rendon v. Holder.
The court of appeals granted a petition for review of a decision of the Board of Immigration Appeals. The court held that a California conviction for theft is never an aggravated felony because it is categorically not a theft offense.
Lawful permanent resident Roberto Lopez-Valencia pleaded guilty to petty theft as defined in California Penal Code §§484 and 488 and was sentenced to probation. He later admitted violating his probation terms and was sentenced to state prison. After a subsequent conviction for being under the influence of a controlled substance, Lopez-Valencia was placed in removal proceedings.
The immigration judge (IJ) concluded that both of Lopez-Valencia’s convictions rendered him removable. The Board of Immigration Appeals (BIA) affirmed, concluding that Valencia’s theft conviction was an aggravated felony because it was a “theft offense” under 8 U.S.C. §1101(a)(43)(G). Lopez-Valencia petitioned for review.
The court of appeals granted the petition, holding that the BIA erred in affirming on the basis that Lopez-Valencia’s conviction was an aggravated felony because it was a “theft offense.”
The key issue was whether a conviction under California’s theft statute may qualify as an “aggravated felony” because it is a “theft offense” as defined by 8 U.S.C. §1101(a)(43)(G). Following the rule of (I)Descamps v. United States(I), 133 S. Ct. 2276 (2013), and its circuit progeny, the court held that a California conviction for theft is never an aggravated felony because it is categorically not a theft offense.
California’s theft statute is indivisible because the jury is not required to agree unanimously on how a defendant committed theft. The California Supreme Court and the state legislature have each, in their respective realms, made it clear that while all jurors must agree that the defendant engaged in some type of unlawful taking, they need not unanimously agree as to the way in which the unlawful taking was committed.
The court declared California’s theft statute overbroad and indivisible, with the result that the modified categorical approach did not apply.
The court rejected the government’s attempt to point to the charging documents in Lopez-Valencia’s case in support of a single theory of theft that the jury must have found. That factual approach had been abrogated in light of (I)Descamps(I). In addition, in a California theft prosecution there is no requirement that the charging documents spell out the defendant’s offense with any particularity.
Instead, the court declared that California’s overbroad and indivisible theft statute is not amenable to the modified categorical approach, and a conviction under it can never be a “theft offense” under §1101(a)(43)(G).