In a widely circulated published decision, the Ninth Circuit Court of Appeals held that indecent exposure in California, Cal. Penal Code § 314, is not categorically a crime involving moral turpitude. Ocegueda-Nuñez v. Holder, No. 06-70219, slip op. (Feb. 10, 2010) (Reinhardt, Bybee, and Smith). Judge Reinhardt wrote for the majority of the panel, joined by Judge Smith. Judge Bybee dissented.

Ocegueda Nuñez entered without inspection. Ocegueda-Nuñez, No. 06-70219, slip op. at 2377. He was later convicted of petty theft and, several years after that, indecent exposure. Ocegueda-Nuñez, No. 06-70219, slip op. at 2377. When finally placed into removal proceedings he applied for Cancellation of Removal for non-LPRs. Ocegueda-Nuñez, No. 06-70219, slip op. at 2377. The IJ determined that both offenses involved moral turpitude; therefore, Ocegueda Nuñez was statutorily ineligible for Cancellation. Ocegueda-Nuñez, No. 06-70219, slip op. at 2378.

Ocegueda Nuñez also raised a due process argument in his appeal to the BIA and the Ninth Circuit based on the IJ’s denial of an emergency motion to continue, but the Ninth Circuit did not reach this issue. Ocegueda-Nuñez, No. 06-70219, slip op. at 2379.

The Ninth Circuit’s sole concern was whether the indecent exposure conviction constituted a CIMT. Under the categorical approach to statutory interpretation, the court “must compare the elements of the crime to the generic definition of moral turpitude and ‘decide whether the conduct proscribed in the statute is broader than, and so does not categorically fall within, this generic definition.’” Ocegueda-Nuñez, No. 06-70219, slip op. at 2379 (quoting Nicanor-Romero v. Mukasey, 523 F.3d 992, 999 (9th Cir. 2008)).

The Supreme Court requires “a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition” of moral turpitude. Ocegueda-Nuñez, No. 06-70219, slip op. at 2379 (quoting Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007)). The Ninth Circuit panel’s majority then explained that this “realistic possibility” requirement “can be established by showing that, in at least one other case, ‘the state courts in fact did apply the statute in the special (nongeneric) manner….’” Ocegueda-Nuñez, No. 06-70219, slip op.at 2380 (quoting Nicanor-Romero, 523 F.3d at 1004-05).

By this standard,the existence of even one case in which a person has been convicted under California’s indecent exposure statute, § 314, of conduct that does not involve moral turpitude is sufficient to find that the offense is not categorically a CIMT. The Ninth Circuit did not consider the modified categorical approach because no records of conviction were submitted to the IJ. Ocegueda-Nuñez
, No. 06-70219, slip op. at 2381.

Before beginning to consider the indecent exposure conviction, however, the majority devoted a good deal of effort to a sharp critique of the CIMT category as a whole. The majority first described the determination of what is moral turpitude as “a nebulous question.” Ocegueda-Nuñez, No. 06-70219, slip op. at 2375. Morality, the majority added, “is not a concept that courts can define by judicial decrees, and even less can it be defined by fiats issued by the Board of Immigration Appeals….” Ocegueda-Nuñez, No. 06-70219, slip op. at 2376.

The majority recognized the difficulty of pinpointing a definition of moral turpitude as used in the INA. The phrase “moral turpitude,” according to the majority, contains “inherent ambiguity” and the only thing consistent about it is “the consistent failure of either the BIA or our own court to establish any coherent criteria for determining which crimes fall within that classification and which crimes do not.” Ocegueda-Nuñez, No. 06-70219, slip op. at 2381. Because there are no “consistent or logical rules to follow as we determine whether a crime (other than one involving fraud) involves moral turpitude, our most useful guidance often comes from comparing the crime with others that we have previously deemed morally turpitudinous.” Ocegueda-Nuñez, No. 06-70219, slip op.at 2382.

The majority then turned to a comparison of California’s indecent exposure offense—including the types of actions that may lead to conviction for indecent exposure in California—to offenses that involve moral turpitude. As a threshold matter, the Ninth Circuit explained that California courts have limited the range of conduct punishable under the indecent exposure statute, § 314, to “sexually motivated”exposure. Ocegueda-Nuñez, No.06-70219, slip op. at 2387.

The question then becomes whether the three types of sexually motivated exposure punishable under § 314 all are morally turpitudinous. Ocegueda-Nuñez,No. 06-70219, slip op. at 2387. The Ninth Circuit examined each of these three types of exposure in turn.

The first two types of sexually motivated exposure punishable under § 314 are “exposure with the intent to sexually gratify oneself” or “for the purpose of sexual gratification of the viewer.” Ocegueda-Nuñez, No. 06-70219, slip op. at 2388, 2389. Discussing a 1979 case in which a person was convicted for indecent exposure for nude dancing, the Ninth Circuit concluded that indecent exposure “as interpreted by the California courts…can be committed without any intention of harming anyone, it need not result in actual harm, and it does not necessarily involve a protected class of victim”—the types of crimes that have normally been held to involve moral turpitude. Ocegueda-Nuñez, No. 06-70219, slip op. at 2390 (discussing People v. Conway,162 Cal. Rptr. 877, 879 (Cal. App. Dep’t Super. Ct. 1979)). Though Conway was partially disapproved of by the California Supreme Court in a later case, the Ninth Circuit concluded that it “remains good law in relevant part….” Ocegueda-Nuñez, No. 06-70219, slip op. at 2390 n.8.

The Ninth Circuit panel’s majority then turned to the third type of sexually motivated exposure punishable under § 314—“exposure with the intent to sexually offend the viewer.” Ocegueda-Nuñez, No.06-70219, slip op. at 2392. The majority discussed two California state court cases. In the first case, People v. Archer, 119 Cal. Rptr. 2d 783 (Cal. Ct. App. 2002), “the California Court of Appeal upheld the conviction under § 314 of a defendant who, in a fit of ‘road rage,’ exposed his penis and yelled ‘suck my dick’ at an adjacent driver.” Ocegueda-Nuñez, No. 06-70219, slip op. at 2393. In the second case, People v. Lionel M., No. H031030, 2007 WL 2924052 (Cal. Ct. App. Oct. 9, 2007) (unpublished), “the court upheld the conviction of a 12-year-old boy who pulled down his pants during class and showed his penis to two female classmates.” Ocegueda-Nuñez, No. 06-70219, slip op. at 2393.

Though both acts were punishable under § 314, the majority concluded, “neither act could rationally be characterized as inherently base, vile and depraved.” Ocegueda-Nuñez, No. 06-70219, slip op.at 2394. “[O]ur society,” the majority added, “is past the point where transitory nudity or a brief reference to sex necessarily transforms another wise de minimis provocation into a morally turpitudinous offense.” Ocegueda-Nuñez, No. 06-70219, slip op.at 2395.

These cases, the majority concluded, show that there is a realistic probability that California would apply its indecent exposure statute to conduct that falls outside the generic definition of moral turpitude. Ocegueda-Nuñez, No. 06-70219, slip op. at 2395.