9th Circuit panel: Indecent exposure is not categorically a crime of moral turpitude in California
Nunez v. Holder, No. 06-70219 (9th Cir. Feb. 10, 2010)
Indecent exposure is not categorically a crime of moral turpitude in California.
A 9th Circuit panel held that indecent exposure under § 314 of the California Penal Code is not categorically a crime of moral turpitude and therefore not sufficient ground for deportation. Circuit Judge Reinhardt, joined by Judge Smith, delivered the opinion of the Court (Judge Bybee dissented):
Because indecent exposure as defined by Cal. Penal Code § 314, and as construed by California courts, is not categorically a crime involving moral turpitude, the BIA erred in determining on the record before it that Ocegueda was statutorily ineligible for cancellation of removal.
In order to determine whether a crime involves moral turpitude, a 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. In making this determination, we must find 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. (internal citations omitted)
The generic definition of moral turpitude applied–in the midst of its “inherent ambiguity” due to the absence of “coherent criteria”–by Justice Reinhardt is as follows: “crimes of moral turpitude are crimes that involve either fraud or ‘base, vile, and depraved’ conduct that ‘shock[s] the public conscience.’” Reviewing 9th Circuit case law, the court found that “nonfraudulent crimes of moral turpitude almost always involve an intent to harm someone, the actual infliction of harm upon someone, or an action that affects a protected class of victim.” In an indecent exposure context, “these crimes universally involve either actual infliction of harm or a protected class of victim; most often a combination of the two.” The court, therefore, took issue with the tendency in the Board of Immigration’s case law to find conduct morally turpitudinous “not by virtue of its impact upon victims, but by virtue of its incompatibility with contemporary sexual attitudes”:
Since these older cases were decided, the fluid boundaries of our nebulous “moral turpitude” standard have moved away from the rigid imposition of austere moral values on society as a whole and substantially in the direction of affording tolerance and individual liberty to those whose moral attitudes differ from the contemporary majority’s.
Within the confines of a “tolerance and individual liberty” (as opposed to “moral values”) analysis a violation of § 314 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.” Examples include nude dancing at bars and “sexually insulting or offending,” –none of which are (“objectively”) “so ‘base, vile, and depraved’ that it shocks the conscience.” Acts punishable under § 314, therefore, are not always crimes of moral turpitude.
Judge Bybee dissented:
Because I believe that Ocegueda’s conviction for indecent exposure under § 314 is categorically a crime involving moral turpitude, I would uphold the decision of the Board of Immigration Appeals and deny the petition. I respectfully dissent . . .
In Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2007) the Supreme Court told us that to find that California’s indecent exposure statute is a crime outside the generic definition of a crime involving moral turpitude “requires more than the application of legal imagination to a state statute’s language.” Indeed, “[i]t requires a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of [the] crime.”
According to Bybee, the majority did not satisfy the “realistic probability” requirement:
[T]o satisfy Duenas-Alvarez we need something more than scouring state records to see if we can find a conviction that we think falls outside some generic ideal. As I wrote in Nicanor-Romero, “I do not believe that the Supreme Court in Duenas-Alvarez meant for us to take the least generous approach possible in analyzing state cases under the categorical approach” …
As judges, we are, or should be, well aware of our own mortality. Just as our occasional, uncorrected errors do not represent the body of the law of the United States, we should hesitate before taking a single, possibly aberrant state case and elevating it to state law. A considered case from the state’s highest court or appellate court would be strong evidence of the meaning of the statute. A single decision of a lower state court—particularly when the decision is dated or the opinion is not carefully considered—does not, in my view, satisfy the petitioner’s duty to show the “realistic probability.”
. . . California continues to draw a line against those who expose their genitals in public when they do so “lewdly,” meaning “for purposes of sexual arousal, gratification, or affront.” In re Smith, 497 P.2d at 810. That members of our court might have taken a different view of the evidence in a state case does not change that fact. It certainly does not satisfy Ocegueda’s burden of showing “a realistic probability, not a theoretical possibility, that [California] would apply its [indecent exposure] statute to conduct that falls outside the generic definition of a crime [involving moral turpitude].” Duenas-Alvarez, 549 U.S. at 193.
COMMENTS
