Be careful what you wish for.
I recently kidded the Ninth Circuit -- good-naturedly, of course -- for taking a holiday in mid-May and not issuing any published opinions for five straight days. At which point the Ninth Circuit promptly responded by issuing a single opinion on May 16, 2006. This case. With which I fairly strongly disagree.
There are several problems with the opinion, but I'll simply discuss one. Precedential (and a little sentencing)backdrop first. If you are a deported alien thereafter found in the United States, you'll receive a much higher sentence if you were previously convicted of various felonies; generally, crimes of violence. It thus makes a big difference whether your prior conviction -- often in state court -- was for a felony and/or a crime of violence. But how do you know whether the defendant has been previously so convicted? Do you look at merely the offense for which he was convicted, or the actual facts?
Well, that's a complicated issue, but the Supreme Court decided a case last year called Shepard v. United States. That's a case in which the defendant had previously pled guilty to burglary, but it was unclear whether that counted as a crime of violence, since burglary can (for example) be either of an occupied residence -- in which case it would count -- or, say, an unoccupied commercial store (in which case it wouldn't). So the mere crime for which he was convicted doesn't tell you. Well, the state in Shepard tried to introduce a police report about the underlying crime in order to prove that, yes, it was actually a conviction for a crime of violence. But the Supreme Court didn't let them do it. Unless defendant pleads to those particular facts, they said, you can't use that evidence to try to retry the case. Unless he pleads to it, essentially, it doesn't count.
Fair enough. Now a brief statutory backdrop. Here in California, we have these things called "wobblers" -- crimes that, at the discretion of the court, can be treated either as felonies or as misdemeanors. Remember, this totally matters if you're a deported alien, since if you were previously convicted of a felony, you get much more time in federal prision, whereas if you were previously convicted of a misdemeanor, you don't. So it's a big deal how your offense was treated. Under California law, if the court elects to treat the offense as a felony (at least in cases, as here, of assault with a deadly weapon), it must sentence the defendant to 2-4 years in state prison. By contrast, under that same law, if the court elects to treat the offense as a misdemeanor, it must (1) sentence the defendant to a county jail, rather than state prison, and (2) the commitment can be only for 6-12 months. Got it? Felonies require more time (years), and are served in prison; misdemeanors require less time, and are served in jail.
So that brings us to the present case. Diaz-Argueta is a deported alien found in the United States. He's been --as you probably have guessed by now -- previously convicted on a wobbler assault charge in California state court. The district court will sentence him to a lot of time in federal prison if the wobbler was a felony, but will sentence him to a lot less if the wobbler was treated as a misdemeanor. So which one was it?
Well, it was totally up to the discretion of the California state court. What'd they do? Well, we know only one thing about what they did. But it's a pretty darn important thing. We know the sentence that he received for the offense. He was sentenced to 109 days. In county jail. Which he served. Remember: Felonies require a sentence of 2-4 years. And are served in state prison. Whereas misdemeanors require sentences that are, as here, only months long, and are served in county jails.
So which one was it? Has the government proved that he was previously convicted of a felony?
Answer: No way. He was obviously convicted of a misdemeanor. That's why he didn't serve 2-4 years, as required by the statute if he had been convicted of a felony. And that's why he served his time in a county jail, which occurs only if it's a misdemeanor, not a felony. Given these facts, there's simply no doubt that the defendant was previously convicted of misdemeanor, rather than a felony.
But the Ninth Circuit holds otherwise.
Judge Noonan says: Well, under a different provision of California law, Section 17(b) of the Penal Code, there are several (in fact, five) specified ways that an offense can be a misdemeanor. The first of them -- and the one that most closely applies here -- is "[a]fter a judgment imposing a punishment other than imprisonment in a state prison." That's applicable here, right, since the defendant was sentenced to jail, rather than prison? No, says Judge Noonan, since the defendant admitted at oral argument that even though he was sentenced, there was (for whatever reason) technically no "judgment" issued. So, Judge Noonan holds, Section 17(b) doesn't apply, and therefore you're guilty of a felony.
Three quick points. First, that's a hypertechnical -- and seemingly meaningless -- distinction. Even if there was no formal "judgment", there was something that sentenced him to county jail, and whatever that was surely counts as a judgment, at least in my mind. If whatever was issued was enough to deprive him of his liberty -- whether minute order, oral command, or pronouncement upon high -- it counts as a judgment, since it was used to put him in the pokey. So Section 17(b) should apply. Second, and independently, even if I'm wrong about (1), who cares? It's still a misdemeanor, and we know that because (a) he was sentenced to jail rather than prison, (b) he was sentenced to months, rather than years, and (c) as a matter of law, neither (a) nor (b) could be true if it was a felony. So we know it's a misdemeanor, because it had to be. Finally, even if neither (1) nor (2) is true, Judge Noonan's reliance upon Section 17(b) is meritless because it's not exclusive. Yes, Section 17(b) says that an offense "is a misdemeanor for all purposes under the following circumstances," and then lists five of them. But nowhere does Section 17(b) does this statute say that it is only a misdemeanor if one of those five particular circumstances applies. In other words, Section 17(b) is sufficient, but is not necessary, in order to classify an offense a misdemeanor. And let me give you an example. An offense is a misdemeanor if it has to be a misdemeanor; for example, when -- as here -- the offense was a wobbler and had to be treated as a misdemeanor in order to result in the sentence that was imposed.
There are more problems with the opinion, but I've already gone on long enough. Suffice it to say that I am in strong disagreement with this resolution. And I say so notwithstanding my sincere respect for the members of the panel (Fletcher, Noonan, and Tashima) who rendered it. It's a bad, and wrong, opinion. He simply was not previously convicted of a felony. And to hold otherwise simply punishes someone for something that he has not done. He's innocent of being convicted of a prior felony, and yet they're punishing him for it anyway. Which is fundamentally not right.
POSTSCRIPT - I received a couple of incredibly bright e-mails from readers about this one. All of which both helped me to clarify -- and refine -- my thoughts on the matter as well as were deeply informative. In the end, I'm convinced that I was wrong when I concluded that the offense was necessarily treated as a misdemeanor; instead, that it's possible -- although you have to go far beyond the Ninth Circuit's opinion to figure this out -- that the sentence was a felony but that the prison sentence was suspended and the defendant sentenced to jail as a condition of probation. That said, it's also possible (as I said) that the offense was a misdemeanor, and I am more convinced than ever that without looking at the minute order, you cannot tell one way or the other whether this case was a felony or a misdemeanor, notwithstanding Section 17(b). Which in turn means, as was my initial reaction, that the prosecution didn't prove (by a preponderance of the evidence or otherwise) that the defendant was convicted of a felony, since the only evidence adduced at trial is equally consistent with treatment as either a felony or misdemeanor, so he shouldn't have been sentenced that way.
One more post-thought, on another track. My revisiting the issue has also convinced me that what happens here is that the panel -- who's able to see the minute order -- knows that he's been convicted of a felony, and for that reason wants to reach the "right" result, but feels like it can't do so given the Supreme Court's opinion in Shepard. Now, as I said, I don't actually think that Shepard is dispositive, but the panel seems convinced otherwise. So what they do is -- consciously or not -- come up with an analysis of Section 17(b) that's off the mark, but that allows them to reach the "just" result. Obviously, I don't think that's the way one should decide cases. And the panel would likely agree. But I think that these things happen sometimes, and that this case may be the perfect example. No one with whom I've talked thinks that the panel's analysis here is particularly good or helpful, even if they agree with the outcome. I think the panel saw what seemed like an easy way out (Section 17(b)) and ran with it, with their eyes partially blinded by the central piece of evidence -- the minute order -- that they felt they weren't entitled to rely upon, and yet couldn't in fact entirely ignore. Judges, and even smart judges, are human. I think you see evident proof of that here.
