In a decision released earlier this week, the Ninth Circuit Court of Appeals held that a conviction for the California offense of assault with a deadly weapon or by means likely to produce great bodily injury, Cal. Penal Code § 245(a)(1), constitutes a crime of violence. United States v. Grajeda, No. 07-50387, slip op. (Sept. 21, 2009) (Fisher, Paez, and Robart). Judge Paez wrote for the panel.
Grajeda, a Mexican citizen, pled guilty to unlawful reentry in violation of 8 U.S.C. § 1326. The district court applied a sentencing enhancement because it found that Grajeda’s previous conviction under Cal. Penal Code § 245(a)(1) constituted a crime of violence. Whether an offense constitutes a COV is a question of law, therefore, the Ninth Circuit reviewed de novo. Grajeda, No. 07-50387, slip op. at 13653.
Though this case addressed sentencing enhancements under U.S.S.G. § 2L1.2(b)(1)(A)(ii) rather than any immigration law directly, the crime of violence language examined by the Court is “materially the same” as the COV language used by 18 U.S.C. § 16(a), which defines COV for purposes of INA § 101(a)(43)(F). Grajeda, No. 07-50387, slip op. at 13668.
Under U.S.S.G. § 2L1.2(b)(1)(A)(ii), a crime is a COV if it is either one of the enumerated offenses listed in the first prong of that section or, under the second prong, if it “has as an element the use, attempted use, or threatened use of physical force against the person of another.” See also 18 U.S.C. § 16(a) (defining a COV as an offense that “has as an element the use, attempted use, or threatened use of physical force against the person or property of another”).
The Ninth Circuit first set forth the two essential requirements of the COV definition. First, the Court explained the level of intent required for an offense to constitute a COV. Relying on cases that dealt with the COV definition found at 18 U.S.C. § 16(a), the Court announced that “a predicate offense must require intentional use, attempted use, or threatened use of force to constitute a crime of violence under § 2L1.2; neither recklessness nor negligence is enough.” Grajeda, No. 07-50387, slip op. at 13657.
Second, the Court turned to the nature of the force required to constitute a COV. Again relying in part on cases discussing § 16(a), the Court announced that “such force ‘must actually be violent in nature.’” Grajeda, No. 07-50387, slip op. at 13657 (quoting United States v. Lopez-Montanez, 421 F.3d 926, 929 (9th Cir. 2005)).
Having set forth the requirements of a COV, the Ninth Circuit turned to the California statute under which Grajeda was convicted. According to the Ninth Circuit,
California Penal Code section 245(a)(1) imposes criminal liability on “[a]ny person who commits an assault upon the person of another with a deadly weapon or instrument other than a firearm or by any means of force likely to produce great bodily injury.” The statute thus requires two basic elements, the second defined in the disjunctive: the defendant must have (1) committed an assault (2) using a deadly weapon or instrument or any other “means of force likely to produce great bodily injury.” See People v. Russell, 28 Cal. Rptr. 3d 862, 865-66 (Ct. App. 2005). The element of “assault” is defined in California Penal Code section 240 as “an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.” Cal. Penal Code § 240 (West 1995); see also People v. Colantuono, 865 P.2d 704, 708 (Cal. 1994).
Grajeda, No. 07-50387, slip op. at 13657-58. Based on this definition of assault and § 245(a)(1)’s required use of a deadly weapon or sufficient force to produce serious injury, the Ninth Circuit was convinced that, on its face, § 245(a)(1) constitutes a COV. Grajeda, No. 07-50387, slip op. at 13658.
Despite its comfort with deciding this issue on the statutory text alone, the Ninth Circuit nonetheless addressed Grajeda’s argument that California courts have construed § 245(a)(1) broader than the statutory text suggests. Grajeda, No. 07-50387, slip op. at 13659.
First, the Ninth Circuit agreed with Grajeda’s argument that assault occurs in California even when “the least touching” occurs, but distinguished § 245(a)(1) from that type of assault because “even the least touching with a deadly weapon or instrument is violent in nature,” as required by § 245(a)(1). Grajeda, No. 07-50387, slip op. at 13659. Importantly, the Ninth Circuit noted that California defines a deadly weapon or instrument as “any object ‘used in such a manner as to be capable of producing and likely to produce, death or great bodily injury.’” Grajeda, No. 07-50387, slip op. at 13660 (quoting People v. Aguilar, 945 P.2d 1204, 1207 (Cal. 1997)). The Ninth Circuit noted that this holding aligns it with the Fifth and Tenth Circuits. Grajeda, No. 07-50387, slip op. at 13660; see United States v. Treto-Martinez, 421 F.3d 1156, 1160 (10th Cir. 2005) (holding that a person who touches another with a deadly weapon in a rude, insulting, or angry manner has threatened use of physical force for purposes of the sentencing enhancement); United States v. Dominguez, 479 F.3d 345, 348-49 (5th Cir. 2007) (holding that the touching of an individual with a deadly weapon creates a sufficient threat of force to qualify as a COV).
The Ninth Circuit then considered and disagreed with Grajeda’s argument that California courts do not require proof of sufficiently intentional conduct to constitute a COV. Grajeda, No. 07-50387, slip op. at 13660-61. The Court acknowledged that the level of intent required for a conviction under California’s assault statute is “decidedly mixed” and devoted several pages to its attempt to parse the intent required by California courts. Grajeda, No. 07-50387, slip op. at 13661. Ultimately, the Ninth Circuit emphasized the “California Supreme Court’s statements that section 245(a)(1) requires proof of an intentional ‘violent act’ with a deadly weapon or instrument or with force likely to cause serious bodily injury that ‘by its nature will directly and immediately cause’ the application of physical force to another.” Grajeda, No. 07-50387, slip op. at 13665 (quoting People v. Colantuono, 865 P.2d 704, 708 (Cal. 1994)). This explanation of the required mens rea for an assault conviction, the Ninth Circuit determined, “satisfies the concerns animating Leocal and Fernandez-Ruiz that the proscribed conduct be ‘violent’ and ‘active,’ and the use of force not merely accidental, as in an automobile accident stemming from drunk or reckless driving.” Grajeda, No. 07-50387, slip op. at 13665 (citing Leocal v. Ashcroft, 543 U.S. 1, 9 (2004) and Fernandez-Ruiz v. Gonzales, 466 F.3d 1121, 1130 (9th Cir. 2006)).
The Ninth Circuit also relied on its decision in United States v. Heron-Salinas, 566 F.3d 898 (9th Cir. 2009), in which it held that “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 application of physical force against another” sufficient to meet the mens rea requirement for a COV under 18 U.S.C. § 16. Grajeda, No. 07-50387, slip op. at 13666-67.
As such, the Ninth Circuit held that assault with a deadly we
apon or by means of force likely to produce great bodily injury under Cal. Penal Code § 245(a)(1) is categorically a crime of violence. Grajeda, No. 07-50387, slip op. at 13668.
The bit of hope that lies in this case is the Ninth Circuit’s acknowledgment that California courts are entirely unclear about the mens rea required for an assault conviction. The Ninth Circuit’s decision basically relies on a hodge podge analysis of its own decisions and decisions by California appellate courts. Given that federal courts defer to state courts for interpretations of the elements of state offenses, a conclusive holding by the California Supreme Court that assault requires something less than intent could subvert the basis of this decision. In other words, keep an eye out for California assault decisions that discuss the mens rea required.