Wednesday, February 06, 2008

Burglary Under Cal. Penal Code § 459 Is Never Generic Burglary or Burglary of Dwelling; Court Clarifies Application of Modified Categorical Approach

United States v. Gonzalez-Terrazas, No. 07-50375 (5th Cir. Feb. 1, 2008) (Garza, Stewart, Owen)

This opinion is important for its clarification of a couple of points concerning the Taylor/Shepard categorical approach. First, it explains that resort to Shepard-approved documents under the "modified" categorical approach is permissible only when the statute underlying the prior conviction contains either multiple subsections, or a series of disjunctive elements. Thus, a court cannot determine that a recidivist enhancement applies based on a factual allegation contained in the charging papers, if that allegation wasn't necessary to identify which elements or which statutory subsection underlay the conviction. That point hasn't always been clear in the Fifth Circuit's discussions of this issue.

Second, Gonzalez-Terrazas offers a further illustration of what the record of a prior conviction---particularly California abstracts of judgment---does and doesn't establish. The lesson: a document pertaining to a probation revocation may be sufficient to establish the fact of the conviction for which a defendant was placed on probation, and may even be enough to idenfity the particular statute of conviction. But it likely will not suffice to establish the circumstances of that conviction, or to prove that the defendant pleaded guilty to a particular charging instrument.

Gonzalez-Terrazas confronts these questions in the context of a prior California burglary conviction under Cal. Penal Code § 459, for which Gonzalez got a 16-level COV enhancement under guideline §2L1.2. In United States v. Ortega-Gonzaga, the Fifth Circuit held that § 459 isn't generic "burglary" or "burglary of a dwelling" because the statute doesn't require that the entry be unlawful or unprivileged. In this case, the state indictment alleged that Gonzalez "willfully and unlawfully" entered a house, even though that's not an element of the offense. What result?

Gonzalez-Terrazas holds that the conviction still isn't generic burglary of a dwelling (and therefore not a guideline §2L1.2 COV), for two reasons. First, as a footnote in Ortega-Gonzaga noted, the Taylor/Shepard modified categorical approach permits a court look to the charging papers and so forth only to identify which statutory subsection or which disjunctive elements the conviction satisfied. In the case of § 459, there is no separate subsection or disjunctive element pertaining to "unlawful" entry, so a court cannot use the modified categorical approach to pare down the indivisible "entry" element of the offense. The court also rejected the Government's argument that Ortega-Gonzaga's discussion of this point was dictum, observing that "it was one of two alternative holdings, and each is binding." So in light of Ortega-Gonzaga, the district court erred in applying the enhancement.

(What this means, of course, is that a conviction under Cal. Penal Code § 459 is never generic burglary or burglary of a dwelling. And if you're wondering, "What about United States v. Murillo-Lopez?", then see the discussion in footnote 2. In short, the defendant in that case didn't object to consideration of the charging papers in that case, and the question had to do with the nature of the structure burgled---a matter involving disjunctive elements---rather than the "entry" element. Plus, the Government abandoned any reliance on Murillo-Lopez by failing to cite or mention it here.)

Second, the court held that even if "it were appropriate in this case to look beyond the elements of the state offense," the Government failed to meet its burden of showing that the enhancement applied. The only document the Government offered to establish the conviction was a California abstract of judgment, which wasn't even the abstract for the burglary conviction. "Instead, it [was] an abstract of judgment for a probation revocation, which incidentally list[ed] the prior burglary conviction." And we know from prior Fifth Circuit cases that "California abstracts of judgment are of questionable reliability." Thus, "[a]lthough the abstract may be sufficient to establish the mere fact that there was a prior burglary conviction, the abstract offers no clue as to the circumstances of the plea, such as to which document the defendant actually pleaded or to which facts related to the underlying offense the defendant admitted."

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