Safe Havens

(B)  Divisible Statute Analysis.  Where a state statute reaches both conduct that would constitute a burglary and conduct that would not, the court may look beyond the statutory language to “documentation or judicially noticeable facts that clearly establish that the conviction is a predicate conviction for enhancement purpose”— i.e., that the jury actually found all the elements of burglary under Taylor/Ye.[335]  “[I]f the statute and the judicially noticeable facts would allow the defendant to be convicted of an offense other than that defined as a qualifying offense by the guidelines, then the conviction does not qualify as a predicate offense.”[336]

            The California burglary offense defined at California Penal Code § 459 is a divisible statute for purposes of the aggravated felony statute.  It contains some offenses that constitute burglary (e.g., burglary of a building), and some that do not (e.g., burglary of a car).  See § 7.37(D), infra.  It also has no element of unlawful or unprivileged entry, and can be committed by making a completely lawful entry into a department store, for example, which does not have the “unlawful or unprivileged entry” element required under Taylor.   See § 7.37(C), infra.  With respect to the crime of moral turpitude ground of deportation, it can be committed either with intent to commit theft (a CMT), or intent to commit “any felony.”  (May or may not be a CMT).  See § § 7.120-7.121, 9.33, infra.

[335] United States v. Casarez-Bravo, 181 F.3d 1074, 1077 (9th Cir. 1999) (internal quotations omitted); see also Taylor, 495 U.S. at 602, 110 S.Ct. 2143 (permitting a court to consider whether “the charging paper or jury instructions actually required the jury to find all the elements of generic burglary in order to convict the defendant”); Ye v. INS, 214 F.3d at 1132 (9th Cir. 2000) (same).

[336] Rivera-Sanchez, 247 F.3d at 908.