Sitting en banc, the Ninth Circuit has overruled the "missing element" rule established in Navarro-Lopez v. Gonzales, 503 F.3d 1063, 1073 (9th Cir. 2007) (en banc). Navarro-Lopez had held that record of conviction documents can never establish that a person was convicted of a generic offense where the statute of conviction lacks an element of the generic offense.
The missing element rule had held that a jury would never be required to find, or the defendant would never be required to admit, a fact that was not an element of the offense, even if the charging document contained superfluous language that alleged commission of the generic offense.
Based on Navarro-Lopez, the panel decision in Aguila had held that a California burglary conviction can never be a generic burglary for federal recidivism (or removability) purposes because California does not require an unlawful (i.e., trespassory) entry. The en banc decision in Aguila overruled this holding.
The en banc decision in Aguila adopted a looser standard. It held that a court may use the modified categorical analysis to determine whether a conviction under a statute missing an element of the generic offense "necessarily rested" on facts that would satisfy the generic federal definition of a crime. The hypothetical it employed to illustrate its holding involved the generic offense of harmful contact with a gun. It posited three state statutes: the first penalizes harmful contact by means of one of various specified weapons, including a gun; the second statute penalizes harmful contact by means of a "weapon" without providing a list of qualifying weapons; and the third statute penalizes only harmful contact, without requiring any use of a weapon. Aguila held that a recidivist penalty could be applied (or removability established) for harmful contact with a gun under any of these three types of statutes if the record of conviction documents show that the conviction necessarily rested on it. In other words, if the prosecutor asserts use of a gun to commit the harmful contact in the charging document and the defendant pleads guilty or is convicted of the alleged offense, then Aguila holds the generic offense of harmful contact with a gun is established.
Judge Berzon's dissent points out this approach is unfair because a jury never is required to find a fact that is not an element of the crime. Thus, where a statute penalizes harmful contact, but does not require use of a gun, a jury never needs to agree on the means of inflicting the harmful contact. Likewise, in a guilty plea a defendant is not required to admit a non-element fact. This may seem silly in the case of the gun hypothetical, since obviously a gunshot wound is much different than a black eye (and thus a jury would be unlikely to disagree about whether a gun or fist was used).
The importance of maintaining the missing element rule is much more obvious in the burglary case actually decided by Aguila. California does not require that a burglary involve an unlawful (trespassory) entry, so it may be committed where a person has been invited into the home explicitly or implicitly. For example, a person who attends a garage sale and enters the living room where items are available for sale with the intent to steal commits a burglary under California law. The generic definition of burglary, however, requires an unlawful entry, such as where a person attending a garage sale sneaks into an off-limits living room to steal. The charging document and the evidence at trial might indicate the prosecution's theory that the person sneaked into the living room without permission, but the jury would not need to agree in order to convict. Some jury members may think the defendant entered with permission and some not, and there would be no way of knowing. Yet, under the en banc decision in Aguila, the fact that it was the prosecution's theory for the conviction would establish the conviction qualifies for a criminal enhancement or removal.
Judge Berzon forcefully argues that the approach sanctioned by the majority is inconsistent with the Supreme Court's decisions Taylor, Shepard, and its recent decisions in Nijhawan v. Holder, 129 S. Ct. 2294 (2009) and Johnson v. United States, 130 S. Ct. 1265 (2010). Taylor and Shepard clearly indicate that the elements of the statute, and not the facts of the individual case, are what matter. Nijhawan and Johnson implicitly suggest that the modified categorical approach should be applied only to divisible statutes, i.e., statutes that specifically list the means of committing an overbroad offense (for example, where the statute penalizes harmful contact specifically with a firearm, knife, or club). The majority acknowledges that what it describes as "dicta" in Nijhawan and Johnson support this view, but then takes a different view.
The majority, however, still finds that the California burglary conviction in Aguila does not satisfy the generic definition of burglary--even though the charging document in Aguila alleged an unlawful entry--due to the California's atypical definition of "unlawful." It held that California defined unlawful only as with the intent to commit theft or any felony, not unlawful in the sense required by the generic definition that it be trespassory or without permission. Thus, the allegation of an unlawful entry in the charging document did not conform the conviction to the generic definition.
Read the opinion at http://www.ca9.uscourts.gov/datastore/opinions/2011/08/11/05-50170.pdf