Ceron v. Holder

Decision Date02 April 2013
Docket NumberNo. 08-70836,Agency No. A073-969-493,08-70836
PartiesRUBEN ADOLFO CERON, aka Ruben Ceron-Casco, Petitioner, v. ERIC H. HOLDER, JR., Attorney General, Respondent.
CourtU.S. Court of Appeals — Ninth Circuit

FOR PUBLICATION

OPINION

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

November 8, 2012—Pasadena, California

Before: Myron H. Bright,* Susan P. Graber,

and Sandra S. Ikuta, Circuit Judges.

Opinion by Judge Graber;

Dissent by Judge Ikuta

SUMMARY**
Immigration

The panel denied Ruben Adolfo Ceron's petition for review of the Board of Immigration Appeals' decision finding that his conviction for assault with a deadly weapon, in violation of California Penal Code § 245(a)(1), constituted a crime involving moral turpitude ("CIMT") for which a sentence of at least one year's imprisonment could have been imposed.

The panel held that this court's holding in Gonzales v. Barber, 207 F.2d 398 (9th Cir. 1953), aff'd on other grounds, 347 U.S. 637 (1954), that an earlier but substantially similar version of CPC § 245 is a categorical CIMT, remains good law. The panel also held that Ceron's conviction is a felony, because although the offense is a wobbler, the minute order designated it as a felony and CPC § 17(b) did not apply to automatically convert it into a misdemeanor since the state court suspended imposition of sentence and ordered probation instead.

Dissenting, Judge Ikuta would hold that the majority lacks authority not to follow the en banc opinion in Navarro-Lopez v. Gonzales, 503 F.3d 1063 (9th Cir. 2007), overruled on other grounds by United States v. Aguila-Montes de Oca, 655 F.3d 915 (9th Cir. 2011), and multiple rulings by this court, which established that assault with a deadly weapon is not a CIMT. Judge Ikuta wrote that the majority erred in holdingthat statements in a prior opinion are not binding if the majority decides that the statements relate to an issue that was not presented for review. Judge Ikuta also wrote that the majority further erred in holding that this court can ignore or overrule a statement in an en banc opinion if it relies on precedent that is not directly on point.

COUNSEL

Mario Acosta, Jr., Martinez Goldsby & Associates, PLC, Los Angeles, California, for Petitioner.

Joseph A. O'Connell, Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C., for Respondent.

OPINION

GRABER, Circuit Judge:

Petitioner Ruben Adolfo Ceron pleaded nolo contendere in California state court to assault with a deadly weapon, in violation of California Penal Code section 245(a)(1). The state court sentenced Petitioner to 364 days to be served in county jail, but it suspended that sentence and imposed probation instead. The Board of Immigration Appeals ("BIA") held that Petitioner was removable pursuant to 8 U.S.C. § 1227(a)(2)(A)(i) for having committed a crime involving moral turpitude for which a sentence of at least one year's imprisonment could have been imposed. Reviewing questions of law de novo, Blanco v. Mukasey, 518 F.3d 714, 718 (9th Cir. 2008), we deny the petition for review.

First, California Penal Code section 245(a)(1) is categorically a "crime involving moral turpitude." 8 U.S.C. § 1227(a)(2)(A)(i)(I). We held long ago that assault with a deadly weapon under California Penal Code section 245 is a crime involving moral turpitude. Gonzales v. Barber, 207 F.2d 398, 400 (9th Cir. 1953) (construing an earlier, but substantially similar version of section 245), aff'd on other grounds, 347 U.S. 637 (1954). That decision accorded with a long-standing BIA interpretation. In re G- R-, 2 I. & N. Dec. 733 (B.I.A. 1946); see also In re Sanudo, 23 I. & N. Dec. 968, 971 (B.I.A. 2006) (reaffirming that "assault and battery with a deadly weapon has long been deemed a crime involving moral turpitude by both this Board and the Federal courts" (citing Barber, 207 F.2d at 400)).

In Carr v. INS, 86 F.3d 949, 951 (9th Cir. 1996), we wrote that California Penal Code section 245(a)(2), assault with a firearm, "is not a crime of moral turpitude." We leave for another day the government's argument that Carr's statement is dictum. See Barapind v. Enomoto, 400 F.3d 744, 750-51 (9th Cir. 2005) (en banc) (per curiam) (defining dictum). Even assuming that Carr's statement is a holding, it has no effect here: Carr concerned California Penal Code section 245(a)(2), assault with a firearm, whereas here we deal with California Penal Code section 245(a)(1), assault with a deadly weapon. Nothing in Carr suggests that it intended to overrule Barber. Nor could Carr have overruled Barber in the absence of an intervening change in law. See Miller v. Gammie, 335 F.3d 889, 899-900 (9th Cir. 2003) (enbanc) (describing the limits of a three-judge panel's authority).1

In later cases, we have cited Carr's statement in passing. Complicating matters, although Carr plainly concerned assault with a firearm, some of our later cases have mischaracterized Carr's holding as concerning assault with a deadly weapon. See Castrijon-Garcia v. Holder, 704 F.3d 1205, 1212 (9th Cir. 2013) ("'Indeed, we have determined, for example, that . . . assault with a deadly weapon, [Carr, 86 F.3d at 951,] do[es] not involve moral turpitude.'" (citation omitted) (quoting Navarro-Lopez v. Gonzales, 503 F.3d 1063, 1074-75 (9th Cir. 2007) (en banc) (Reinhardt, J., concurring for the majority))); Robles-Urrea v. Holder, 678 F.3d 702, 708 (9th Cir. 2012) (same); Nicanor-Romero v. Mukasey, 523 F.3d 992, 1018 n.6 (9th Cir. 2008) ("[A]ssault with a deadly weapon does not constitute [a crime involving moral turpitude]." (citing Carr, 86 F.3d at 950-51)); Marmolejo-Campos v. Gonzales, 503 F.3d 922, 927 (9th Cir. 2007) (Nelson, D.W., J., dissenting) ("[A]ssault with a deadly weapon [and other crimes] have all been found not to involve moral turpitude." (citing Carr with the parenthetical "assault with a deadly weapon")). Those erroneous passing descriptions of Carr's statement are dicta; they cannot and do not overrule Barber. Barapind, 400 F.3d at 750-51; see Ruff v. Sullivan, 907 F.2d 915, 918 (9th Cir. 1990) ("This panel is not bound by dicta from prior cases. . . ." (internal quotation marks omitted)). The issue whether assault with a deadly weapon under California Penal Code section 245(a)(1) is a crime involving moral turpitude plainly was not an "issue presented for review." Barapind, 400 F.3d at 750. Neither Carr nor our later cases purported to consider—let alone overrule—our decision in Barber. Barber remains good law.2

Nor are we persuaded by Petitioner's arguments concerning mens rea and the extent of the injury. Under California law, "[a]ssault is . . . a general intent crime . . . [and] mere recklessness or criminal negligence is . . . notenough" to sustain a conviction. People v. Williams, 29 P.3d 197, 203 (Cal. 2001) (citations omitted). Moreover, Petitioner glosses over the fact that section 245(a)(1) does not concern simple assault; it prohibits assault with a deadly weapon. As the BIA has recognized, that fact is an "aggravating factor." In re Solon, 24 I. & N. Dec. 239, 245 (B.I.A. 2007). "Although as a general rule, a simple assault and battery offense does not involve moral turpitude, an aggravating factor can alter our determination." In re Sejas, 24 I. & N. Dec. 236, 237 (B.I.A. 2007); see Solon, 24 I. & N. Dec. at 245 ("[T]he presence of an aggravating factor can be important in determining whether a particular assault amounts to a crime involving moral turpitude."). "The 'aggravating dimensions' recognized as sufficiently increasing the culpability of an assault to turn an assault into a [crime involving moral turpitude] have been the use of a deadly weapon . . . ." Uppal v. Holder, 605 F.3d 712, 717 (9th Cir. 2010) (citing In re Medina, 15 I. & N. Dec. 611 (B.I.A. 1976)); In re Sanudo, 23 I. & N. Dec. at 971 (reaffirming that "assault and battery with a deadly weapon has long been deemed a crime involving moral turpitude by both this Board and the Federal courts" (citing Barber, 207 F.2d at 400)).

In sum, we conclude that our holding in Barber—that assault with a deadly weapon under California Penal Code section 245(a)(1) is a crime involving moral turpitude—remains good law.

Second, Petitioner's conviction under California Penal Code section 245(a)(1) is a conviction for a "crime for which a sentence of one year or longer may be imposed." 8 U.S.C. § 1227(a)(2)(A)(i)(II). A person convicted of violating section 245(a)(1) "shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail fornot exceeding one year, or by a fine not exceeding ten thousand dollars ($10,000), or by both the fine and imprisonment."

At first glance, it seems clear that Petitioner committed a crime for which a sentence of one year or longer could have been imposed. Indeed, under the statutory text, he could have received up to four years in state prison. But we have rejected that analysis, for reasons that require some explanation.

In California, "[a] felony is a crime that is punishable with death, by imprisonment in the state prison, or . . . by imprisonment in a county jail under the provisions of subdivision (h) of Section 1170." Cal. Penal Code § 17(a). "Every other crime . . . is a misdemeanor . . . ." Id. Some crimes, however, are punishable by both felony-type punishments and non-felony-type punishments—for example, by imprisonment in state prison (felony-type punishment) and by imprisonment in county jail (non-felony-type punishment). Those crimes are known as "wobblers." See generally Ewing v. California, 538 U.S. 11, 16-17 (2003) (describing "wobblers").

For wobblers, California Penal Code section 17(b) describes a number of circumstances in which the wobbler "is a misdemeanor for all purposes." Relevant here, that section states:

When a crime is punishable, in the discretion of the court, either by imprisonment in the state prison
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