NICARNOR-ROMERO v. MUKASEY
The Ninth Circuit Court of Appeals today released an opinion in NICARNOR-ROMERO v. MUKASEY, No. 03-73564, an administrative appeal. The panel consisted of Harry Pregerson, William A. Fletcher, and Jay S. Bybee, Circuit Judges.
W. FLETCHER, Circuit Judge:
In 1990, a jury convicted Arturo Nicanor-Romero of a violation of California Penal Code § 647.6(a). At the time of his conviction, § 647.6(a) provided, “Every person who annoys or molests any child under the age of 18 shall be punished by a fine . . . , by imprisonment in a county jail not exceeding one year, or by both the fine and imprisonment.” It has been changed in immaterial respects since Nicanor-Romero’s conviction. A violation of § 647.6(a) is a misdemeanor. . . .
PREGERSON, Circuit Judge, specially concurring:
Our decision in this case is constrained by a meager record. All the record tells us is that Nicanor-Romero was convicted of violating § 647.6(a), a broadly written statute that provides, “Every person who annoys or molests any child under the age of 18 shall be punished by a fine . . . by imprisonment in a county jail not exceeding one year, or by both fine and imprisonment.” Cal. Pen. Code § 647.6(a) (West 2005). We also know that Nicanor-Romero was sentenced to 163-days in prison and was ordered to register as a sex offender. But the record does not tell us what Nicanor-Romero actually did to violate § 647.6(a). In fact, we have no knowledge of the factual circumstances that led to Nicanor-Romero’s misdemeanor conviction under § 647.6(a). Like Judge Fletcher, I conclude that there is a “realistic probability, not a theoretical possibility,” that a misdemeanor conviction under § 647.6(a) can be based on behavior that, while criminal, does not rise to the level of a “crime involving moral turpitude” within the meaning of 8 U.S.C. § 1227(a)(2)(A)(i)(I). Section 647.6(a) encompasses behavior that is not morally turpitudinous and, consequently, I cannot conclude, given the meager record before us, that NicanorRomero’s violation of § 647.6(a) is a crime involving moral turpitude. I therefore join Judge Fletcher in refusing to hold that every violation of § 647.6(a) constitutes a crime of moral turpitude regardless of its factual circumstances. I disagree, however, with Judge Fletcher’s reliance on Peo- ple v. Villareal, 2003 WL 21153430 (Cal. Ct. App. May 20, 2003). In that case, Villareal, who was driving a pick-up truck, “stopped to talk to a 13-year old girl who was walking alone on an isolated street.” Id. at * 2. “[M]otivated by [his] sexual interest” in the young girl, Villareal referred to “a local `make out’ spot and to seeing stars.” Id. The girl believed these comments “were sexual in nature” and noted that Villareal was “smirking” at her. Id. She felt “scared and violated.” . . .
BYBEE, Circuit Judge, dissenting:
California Penal Code § 647.6(a) punishes objectively offensive behavior toward children that is motivated by an unnatural or abnormal sexual interest. The majority holds that violation of § 647.6(a) is not, categorically, a crime involving moral turpitude. The majority accomplishes this by focusing exclusively–and separately–on the actus reus and mens rea of the offense. However, we have never subjected sexual offenses to the type of rigorous actus reus and mens rea analysis employed by the majority to determine whether they involve moral turpitude. Rather, with sex crimes we have relied on contemporary moral standards and the distinction between malum in se and malum prohibitum offenses. The majority abandons both approaches. I agree with the majority that “[w]e have not relied on a consistent or easily applied set of criteria” to judge what constitutes a crime involving moral turpitude, and I would applaud any effort to reconcile the cases and bring clarity to . . .