United States v. Hernandez-Mejia
United States v. Hernandez-Mejia
Opinion of the Court
MEMORANDUM
Eduardo Hernandez-Mejia appeals his conviction for unlawful re-entry to the United States by a deported alien in violation of 8 U.S.C. § 1326 by collaterally attacking his initial deportation for being an aggravated felon. At issue is whether Hernandez-Mejia’s conviction under Cal. Pen. Code § 496(a) is categorically an aggravated felony. See Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990).
“[Sjpecific fraudulent intent is not an element of [a violation of § 496(a) ] which the prosecution must prove.” People v. Dishman, 128 Cal.App.3d 717, 721, 180 Cal.Rptr. 467 (Cal.App. 1982). Nevertheless, because general criminal intent is a prerequisite to conviction under § 496(a), see id. at 721-22, such a conviction meets the intent requirement of a “theft offense (including receipt of stolen property)” under the definition of that phrase adopted in United States v. Corona-Sanchez, 291 F.3d 1201, 1205 (9th Cir. 2002) (en banc), superseded on other grounds by U.S.S.G. § 2L1.2 cmt. n. 4 (2002). See Randhawa v. Ashcroft, 298 F.3d 1148, 1153-54 (9th Cir. 2002) (holding a conviction for possession of stolen mail in violation of 18 U.S.C. § 1708 is categorically an aggravated felony, because the requisite intent may be inferred from § 1708’s requirement that the defendant knew the mail was stolen).
Although Hernandez-Mejia suggests that some of our cases might indicate that the requisite intent under the Corona-Sanchez definition is not met by statutes only explicitly requiring knowledge, those cases turn on state law. See, e.g., Neva-rez-Martinez v. I.N.S., 326 F.3d 1053 (9th Cir. 2003) (holding an Arizona statute criminalizing the receipt of stolen property lacks the requisite intent element, because it requires only that the defendant knew he was without permission to possess the property). Under § 496(a), California courts have made clear that even though general criminal intent is not explicitly enumerated as an element, such intent is a necessary component of any conviction for violation of that provision. This is sufficient.
Finally,
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
. The government concedes that if the conviction does not qualify as an aggravated felony under the categorical approach, it cannot prove Hernandez-Mejia’s particular conviction was for an aggravated felony under the modified categorical approach.
. Hernandez-Mejia raised two additional arguments that we will not address. In his opening brief, Hernandez-Mejia argued § 496(a) was overbroad, because it allows conviction for aiding and abetting. He now acknowledges that this argument is foreclosed by Gonzales v. Duenas-Alvarez, 549 U.S. 183, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007). In his reply brief, Hernandez-Mejia raised the argument for the first time that § 496(a) is overbroad because it does not require that the defendant had actual knowledge that the property was stolen. Hernandez-Mejia waived this argument by not raising it in his opening brief. Blanford v. Sacramento County, 406 F.3d 1110, 1114 n. 8 (9th Cir. 2005) (holding the failure to raise an argument in the opening brief waives that argument).
Reference
- Full Case Name
- United States v. Eduardo HERNANDEZ-MEJIA
- Cited By
- 1 case
- Status
- Published