Abstracts of judgment cannot be relied upon in the modified categorical approach because they are insufficiently reliable non-judicial summaries of other documents. Under both Duenas-Alvarez and Shepard documents must be judicial in nature to be Shepard-type documents considered under the modified categorical approach. Judicial does not mean prepared by a judge- as Snellenberger noted they can be prepared by a clerk of court. Snellenberger, 548 F.3d at 702. But it does not follow that anything prepared by a clerk of court is thereby judicial in nature. Abstracts of judgment are one such document, that though prepared by a clerk are not judicial in nature and therefore cannot be considered in the modified categorical approach. Furthermore, abstracts of judgment are so often flawed that they fail to meet the high Shepard standard for document reliability.



Abstracts of judgment are insufficiently judicial in nature to be Shepard-type documents. In Duenas-Alvarez, the Supreme Court reiterated its position from Shepard that in addition to "the terms of a plea agreement, [and] the transcript of a colloquy between the judge and the defendant, [] some comparable judicial record of information about the factual basis for the plea" may be considered in the modified categorical approach. Duenas-Alvarez, 549 U.S. at 187 (citing to Shepard at 26) (emphasis added). As to abstracts, this Court had already noted that, "preparation of the abstract of criminal judgment in California is a clerical, not a judicial function." United States v. Navidad-Marcos, 367 F.3d 903, 909 (9th Cir. 2004).



While the court in Navidad-Marcos characterized this distinction in terms of a clerical/judicial dichotomy, its analysis is undisturbed by Snellenbergers favorable characterization of documents prepared by clerks of court. See Snellenberger, 548 F.3d at 702. Indeed, in People v. Rodriguez, the California case regarding abstracts of judgment to which this Court in Navidad-Marcos was citing for that proposition, no action by a clerk of court was even at issue. People v. Rodriguez, 152 Cal.App.3d 289, 299 (Cal.2nd 1984). There the clerical/judicial distinction was being drawn with regard to a judges own actions. Id. (discussing why a judge could not use a provision permitting changes to abstracts of judgment in light of clerical errors for the purpose of substantively altering it). An abstract of judgment is then "clerical" and not "judicial" in the sense that it does not require nor immediately record the action of a judge acting in that capacity. See A.R. at 130-31 (Mr. Garcias abstract of judgment, as an example of Judicial Council form CR-290, nowhere requires the signature of a judge). For this reason, a court "may not rely on an abstract of judgment to determine the nature of a prior conviction for purposes of analysis under Taylor v. United States." United States v. Sandoval-Sandoval, 487 F.3d 1278 (9th Cir. 2007).



As secondary sources, abstracts of judgment are insufficiently reliable for removal purposes. Abstracts of judgment have been consistently found unreliable for the purpose of identifying the nature of a conviction. California courts have frequently noted abstracts of judgment contain erroneous information and as such are not reliable. See, e.g., People v. Morelos, 168 Cal. App. 4th 758, 763 (Cal. Ct. App. 2008) (abstract incorrectly labeled the conviction as a felony instead of a misdemeanor); People v. Bradley, 47 Cal. Rptr. 3d 741, 762 (Cal. Ct. App. 2006) (abstract incorrectly labeled the offense, identifying "misappropriation" and "unauthorized loan" as "embezzlement"); People v. Martinez, 31 Cal. 4th 673, 704 (Cal. 2003) (abstract incorrectly labeled sentence as life without the possibility of parole instead of with the possibility of parole); People v. Prieto, 30 Cal. 4th 226, 277 (Cal. 2003) (same); People v. Grayson, 83 Cal. App. 4th 479, 481 (Cal. Ct. App. 2000) (abstract erroneously denominated false imprisonment conviction as a conviction for dissuading a witness); People v. Avila, 75 Cal. App. 4th 416 (1999) (abstract incorrectly noted the sentence imposed); People v. Thongvilay, 62 Cal. App. 4th 71, 77 (Cal. Ct. App. 1998) (abstract incorrectly labeled a second degree murder conviction as first degree murder); People v. Murillo, 47 Cal. App. 4th 1104, (Cal. Ct. App. 1996) (abstract incorrectly stated that the conviction was by plea instead of jury verdict); People v. Esquivel, 28 Cal. App. 4th 1386 (1994) (abstract incorrectly listed the applicable sentence term); People v. High, 119 Cal. App. 4th 1192 (2004) (abstract incorrectly identified statute of conviction); People v. Jackson, 128 Cal. App. 4th 1326, 1327 (2005) ("The parties have pointed out several clerical errors in the abstract of judgment, which we order corrected."); People v. Leung, 5 Cal. App. 4th 482 (1992) (abstract incorrectly stated the degree of conviction, showing first degree robbery instead of second-degree); People v. Olmsted, 84 Cal. App. 4th 270, 272 (2000) (abstract incorrectly identified consecutive sentences as concurrent); People v. Williams, 40 Cal. App. 4th 446 (1995) (abstract incorrectly calculated custody credits); People v. Rowland, 206 Cal. App. 3d 119 (1989) (abstract incorrectly ordered restitution); Rios v. Garcia, 390 F.3d 1082, 1083 (C.D. Cal. 2004) (abstract erroneously stated the offense as burglary instead of robbery). In the words of one California court, "The frequency with which records on appeal have come to us with [erroneous] abstracts of judgments indicates that trial courts would be well advised to remind their personnel that printed abstract of judgment forms must be used with caution." People v. Waters, 30 Cal.App.3d 354, 362 (Cal.3rd 1973). More recently, the Fifth Circuit went so far as to hold that "considering the low level of reliability associated with abstracts of judgment in California, we are satisfied they should not be added to the list of documents Shepard authorizes ." United States v. Gutierrez-Ramirez, 405 F.3d 352, 359 (5th Cir. 2005).



Abstracts of judgment may establish the mere fact of a conviction, or the length of a sentence. See 8 U.S.C. 1229a(c)(3)(B), United States v. Valle-Montalbo, 474 F.3d 1197, 1199 (2007); see also Sandoval-Sandoval, 487 F.3d at 1278. However, they lack sufficient judicial imprimatur and are too prone to error to satisfy Shepards rigorous standard. For a person to be deportable the government must satisfy a high burden. Since Woodby v. INS, the Government must prove removability by "clear, unequivocal, and convincing evidence." Woodby v. INS, 385 U.S. 276, 286 (1966). Abstracts are simply too unreliable to be "unequivocal." Thanks to Holly Cooper.