Another Great Categorical Approach/Divisibility Case.

April 5, 2016
By Hanging Out with Carl Gunn


  • The Ninth Circuit has recently held – in Ramirez v. Lynch, 810 F.3d 1127 (9th Cir. 2016) – that the California child abuse statute doesn’t qualify as a crime of violence under the categorical approach and can’t be subjected to the modified categorical approach because it’s nondivisible.
  • Ramirez also reminds us of several categorical approach principles, including that we must presume the conviction rested on the least serious acts, that the modified categorical approach is just a “tool” that retains the focus on elements rather than facts, and that the “force” required for a crime of violence is intentional force.
  • Ramirez also illustrates a three-step approach to analyzing divisibility, first using the language of the statute, then looking to the conviction documents, and finally looking to case law and model jury instructions defining the offense.



We got another great categorical approach/divisibility case out of the Ninth Circuit a couple of months ago that I thought I’d post on.  It’s Ramirez v. Lynch, 810 F.3d 1127 (9th Cir. 2016).  Initially, the bottom line holding is good to keep in mind.  It’s that the California felony child abuse statute – California Penal Code § 273a(a) – which we do see from time to time, (1) isn’t categorically a “crime of violence” under 18 U.S.C. § 16 (or, by extension, a “crime of violence” under the career offender guideline or a “violent felony” under the Armed Career Criminal Act, which use the same portion of the 18 U.S.C. § 16 definition at issue in Ramirez) and (2) isn’t a divisible statute for which the modified categorical approach can be used.  Just this bottom line holding is good to keep in mind, since treating “child abuse” as not a “crime of violence” may not be one’s initial intuitive reaction.

The opinion also provides another nice illustration of some of the general principles of and approaches to the categorical approach and divisibility.  First, it nicely restates some general principles about the categorical and modified categorical approaches.  It reminds that “we examine what the state conviction necessarily involved, not the facts underlying the case” and that we “must presume that the conviction ‘rested upon [nothing] more than the least of th[e] acts’ criminalized.”   Id. at 1131 (quoting Moncrieffe v. Holder, 133 S. Ct. 1678, 1684 (2013)) (emphasis added in Ramirez).  It then reminds that the modified categorical approach may be used only in a “narrow range of cases,” when the statute is “divisible.”  Ramirez, 810 F.3d at 1131 (quoting Descamps v. United States, 133 S. Ct. 2276, 2283-85 (2013)).  It also reminds that the modified categorical approach is just a “tool” which “‘retains the categorical approach’s central feature: a focus on the elements, rather than the facts, of a crime,’ as well as its ‘basic method.’”  Ramirez, 810 F.3d at 1132 (quoting Descamps, 133 S. Ct. at 2285).  Finally, it reminds that the “use of force” prong of the “crime of violence” and “violent felony” definitions requires intentional use of force, not reckless or negligent use of force.  Ramirez, 810 F.3d at 1132 (citing and discussing Leocal v. Ashcroft, 543 U.S. 1 (2004) and Fernandez-Ruiz v. Gonzales, 466 F.3d 1121, 1132 (9th Cir. 2006)).

The opinion then nicely illustrates how to analyze whether a statute is divisible.  It first describes the “three-step process,” outlined in an en banc opinion first filed last December.

In Almanza-Arenas v. Lynch, we recently outlined a three-step process for conducting this divisibility analysis under Descamps. [809 F.3d 515, 521-23 (9th Cir. 2015) (en banc), amended, ___ F.3d ___, 2016 WL 766753 (Feb. 29, 2016).] First, we examine the text of the statute of conviction to determine whether it contains multiple crimes with distinct elements, or instead describes alternative means for accomplishing a single crime.  We next examine the conviction documents to determine whether we may confirm our statutory analysis.  Finally, we verify that our reading is consistent with the way in which state courts have construed the statute of conviction.

Ramirez, 810 F.3d at 1134.

The opinion then illustrates these steps.  It first looks to the statutory text and notes the statute enumerates the ways in which a person can criminally abuse or endanger a child by using the disjunctive.  It reminds that “[t]he mere use of the disjunctive term ‘or’ does not automatically make a statute divisible,” id. at 1135 (quoting Almanza-Arenas, 809 F.3d at 523 n.11), and concludes that in this case the text suggests not separate offenses but separate means of committing a single offense, id.

The opinion acknowledges this is not clear on the face of the statute, however, so it turns to the conviction documents.  It notes the charging information  “simply repeats the text of the statute, listing all four prongs and alleging violations of each.”  Ramirez, 810 F.3d at 1135.  (Note that this is typical of California charging documents, at least in Southern California.)  The opinion then notes the abstract of judgment also draws no distinction between the prongs and there are no jury instructions in the record that suggest anything.

The court then takes the third step in the three-step process – “examin[ing] California state law, including model jury instructions.”  Id. at 1135.  First, it points to general California jury unanimity case law which “leaves room for disagreement as to exactly how the crime was committed.”  Id. at 1136 (quoting People v. Russo, 25 P.3d 641, 645 (Cal. 2001)) (emphasis added in Ramirez).  The court goes on to cite two specific child abuse cases in which the courts expressly held the two main forms of conduct covered by the statute – directly inflicting injury on the child and negligently allowing the child to be injured – are simply “different legal theories” a jury doesn’t need to agree on.  See Ramirez, 810 F.3d at 1136-37 (quoting People v. Vargas, 251 Cal. Rptr. 904, 909 (Cal. App. 1988) and also citing In re L.K., 132 Cal. Rptr. 3d 342 (Cal. App. 2011)).  In discussing these cases, the court notes that “[a]fter the court’s decision in Vargas, a defendant like Vargas, charged with both direct and indirect infliction of section 273a(a), would have no reason to argue that she did not hit her child, but instead failed to get the child adequate medical care,” which is one of the “risks [of] unfairness” the divisibility requirement is meant to prevent.  Ramirez, 810 F.3d at 1137.  Finally, the court supplements this California case law with a citation of the California model jury instruction, which “explicitly state[s]” there does not need to be juror unanimity on whether there was intentional infliction of injury or negligent allowance of injury.”  Id. at 1138.

There is one caveat to keep in mind, namely, that this is all subject to the Supreme Court’s decision in the pending case of Mathis v. United States, No. 15-6092, cert. granted, 2016 WL 207258 (Jan. 19, 2016), which I mentioned in another categorical approach post a couple of months ago.  (See the caveat at the end of “More on Those Great New Categorical Approach Cases” in the February 2016 link at the right.)  The Supreme Court granted cert in that case to resolve a split in the circuits over the question of whether a statute listing alternatives in the disjunctive has to require unanimity in order to be divisible.  The analysis in Ramirez – and other Ninth Circuit divisibility cases decided after Rendon v. Holder, 764 F.3d 1077 (9th Cir. 2014) – depends on this requirement and will need to be revisited if Mathis is decided against us.  Hopefully that won’t happen.  We should know by July, since Mathis is being argued later this month.