FILED
NOT FOR PUBLICATION MAY 14 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-10043
Plaintiff - Appellee, D.C. No. 4:13-cr-00648-CKJ-
BGM-1
v.
VICTOR MANUEL ALBA-SUAREZ, MEMORANDUM*
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
Cindy K. Jorgenson, District Judge, Presiding
Submitted May 11, 2015**
San Francisco, California
Before: THOMAS, Chief Judge, and BENAVIDES*** and OWENS, Circuit
Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Fortunato P. Benavides, Senior Circuit Judge for the
U.S. Court of Appeals for the Fifth Circuit, sitting by designation.
Defendant Victor Manuel Alba-Suarez challenges the district court’s
application of a 16-level sentencing enhancement based on his prior conviction of
sexual battery by restraint in violation of California Penal Code § 243.4(a). We
have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 1294(1). We review de novo
the district court’s determination that a prior conviction qualifies as a “crime of
violence” pursuant to U.S.S.G. § 2L1.2(b)(1)(A). United States v. Grajeda, 581
F.3d 1186, 1188 (9th Cir. 2009). We affirm.
I
Courts apply the categorical approach set forth in Taylor v. United States to
determine whether a prior conviction qualifies as a forcible sex offense and
therefore a crime of violence under U.S.S.G. § 2L1.2(b)(1)(A). 495 U.S. 575, 600
(1990). Under this approach, “sentencing courts compare the elements of the
statute of conviction with a federal definition of the crime to determine whether
conduct proscribed by the statute is broader than the generic federal definition.”
United States v. Caceres-Olla, 738 F.3d 1051, 1054 (9th Cir. 2013) (internal
quotation marks omitted). “If the statute of conviction ‘sweeps more broadly than
the generic crime, a conviction under that law cannot count as [a qualifying]
predicate, even if the defendant actually committed the offense in its generic
2
form.’” Id. (alteration in original) (quoting Descamps v. United States, ––– U.S.
––––, 133 S.Ct. 2276, 2283 (2013)).
Under California Penal Code § 243.4(a), “Any person who touches an
intimate part of another person while that person is unlawfully restrained by the
accused or an accomplice, and if the touching is against the will of the person
touched and is for the purpose of sexual arousal, sexual gratification, or sexual
abuse, is guilty of sexual battery.” “Touches” is defined as “physical contact with
the skin of another person whether accomplished directly or through the clothing
of the person committing the offense.” Cal. Pen. Code § 243.4(f). “Intimate part”
is defined as the “sexual organ, anus, groin, or buttocks of any person, and the
breast of a female.” Id. § 243.4(g)(1).
United States Sentencing Guideline § 2L1.2(a) provides for an 8-level
sentence enhancement for unlawfully entering or remaining in the United States.
The Guideline provides for a 16-level enhancement if the defendant previously was
deported after being convicted of a “a crime of violence.” U.S.S.G.
§ 2L1.2(b)(1)(A)(ii). The Guideline defines “crime of violence” to include
“forcible sex offenses (including where consent to the conduct is not given or is
not legally valid, such as where consent to the conduct is involuntary, incompetent,
or coerced).” U.S.S.G. § 2L1.2, comment n.1(B)(iii).
3
California Penal Code § 243.4(a) qualifies as a forcible sex offense under the
categorical approach. “Sexual offense” is defined according to the ordinary
meaning of the term. See United States v. Quintero-Junco, 754 F.3d 746, 754 n.2
(9th Cir. 2014) (“[W]e have previously cited Black’s Law Dictionary for the
proposition that ‘a sexual offense involv[es] unlawful sexual conduct.’ Similarly,
42 U.S.C. § 16911(5)(A)(i) defines ‘sex offense’ as ‘a criminal offense that has an
element involving a sexual act or sexual contact with another.’”) (alteration in
original) (some internal quotation marks and citation omitted). An offense that
involves the “touch[ing of] an intimate part of another” against the person’s will
and “for the purpose of sexual arousal, sexual gratification, or sexual abuse”
qualifies as a “sex offense” under U.S.S.G. § 2L1.2.
An offense committed in violation of California Penal Code § 243.4(a) is
also “forcible.” A conviction under California Penal Code § 243.4(a) requires that
the defendant touch the victim’s intimate parts “against the will of” the victim.
Cal. Pen. Code § 243.4. Under California law, “against the will” is defined as
“without the victim’s consent.” People v. Smith, 120 Cal. Rptr. 3d 52, 58 (Ct. App.
2010) (“[T]he phrase ‘against the will of the person touched’ connotes lack of
consent.”). Under the Guidelines, the category of “forcible sex offenses” includes
offenses in which “consent to the conduct is not given or is not legally valid, such
4
as where consent to the conduct is involuntary, incompetent, or coerced.” U.S.S.G.
§ 2L1.2, comment n.1(B)(iii).
Therefore, the district court correctly imposed the sentencing enhancement.
II
Alba-Suarez argues that his statute of conviction is overbroad because the
term “sexual act,” as defined by federal law in 18 U.S.C. § 2246(2), is narrower
than California Penal Code § 243.4(a). He argues that the Court articulated a
generic definition of “forcible sex offense” in Caceres-Olla when it stated that a
forcible sex offense “requires a sexual act where ‘consent to the conduct’: (1) ‘is
not given’; or (2) ‘is not legally valid, such as where consent to the conduct is
involuntary, incompetent, or coerced.” 738 F.3d at 1054-55. He further argues
that “sexual act” is a term of art defined in the federal criminal code and therefore
we are required to compare the scope of the federal definition of “sexual act” with
the scope of the state sexual battery offense.
This argument is not persuasive. The phrase “sexual act” never appears in
the Guidelines. The Guidelines do not suggest that a forcible sex offense pursuant
to § 2L1.2 must qualify as a “sexual act” under federal law. Our precedent
suggests that “sexual offense” should be defined according to the ordinary meaning
5
of the term. See Quintero-Junco, 754 F.3d at 754 n.2; United States v.
Acosta-Chavez, 727 F.3d 903, 908 (9th Cir. 2013).
Alba-Suarez also argues that California Penal Code § 243.4(a) is broader
than the generic federal definition because the “against the [victim’s] will” element
may be established solely on the basis of the victim’s status as a minor.
This argument is also unavailing. California case law suggests that an
individual may not be convicted of a violation of § 243.4(a) based solely on the
victim’s status as a minor. A state appeals court has held that for a similar state
sexual assault statute—section 261,which criminalizes sexual intercourse against a
person’s will—the question of whether a minor has the capacity to consent is a
matter of fact, not law; the trier of fact must determine whether the minor actually
consented. People v. Young, 235 Cal. Rptr. 361 (Ct. App. 1987). In Young, the
defendant was convicted of forcible rape of a 6-year-old child in violation of § 261.
He challenged the sufficiency of the evidence for his conviction. 235 Cal. Rptr. at
363. The Court explained:
Where, as here, the alleged victim is a child below the age of legal
consent, whether the child has the capacity to ‘consent’ to an act of
sexual intercourse within the meaning of section 261.6 will usually be
a question of fact. When it is charged that an act is against the will of
a person, ‘consent is at issue.’ (People v. White (1986) 179
Cal.App.3d 193, 202 [224 Cal.Rptr. 467].) It will be for the trier of
fact to determine, based upon the age and maturity of the child and the
6
circumstances as shown by the evidence in a particular case, whether
the child is capable of ‘positive cooperation in act or attitude pursuant
to an exercise of free will’ or able to ‘act freely and voluntarily’ with
‘knowledge of the nature of the act or transaction involved.’
Id. at 366.
Criminal jury instructions for California Penal Code § 243.4 provide a
definition of “consent” that is nearly identical to the statutory definition provided
in § 261.6. The jury instructions provide: “A touching is done against a person’s
will if that person does not consent to it. To consent, a person must act freely and
voluntarily and know the nature of the touching.” Judicial Council of California
Criminal Jury Instructions (CALCRIM) 935; ER II at 6. State courts appear to
have endorsed the definition of consent articulated in the instructions. See, e.g.,
People v. Babaali, 90 Cal. Rptr. 3d 278, 287 (Ct. App. 2009) (“In the context of a
sexual assault, ‘against the will’ of the victim is synonymous with ‘without the
victim’s consent.’ Consequently, CALCRIM No. 938, the pattern instruction for
sexual battery (§ 243.4, subd. (e)(1)), defines ‘against a person’s will’ as the
‘person does not consent to the act.’ A defendant therefore commits a sexual
battery if he engages in an intimate non-consensual touching.”) (some internal
quotation marks and citation omitted).
7
Caceres-Olla, on which Alba-Suarez relies, is distinguishable. We
emphasized in Caceres-Olla that “a plain reading” of the Florida statutory rape
statute “makes clear that lack of consent is not an ‘element’ of the crime,” because
“[a]s with statutory rape [i]n most jurisdictions, [the Florida statute] is a strict
liability crime” and criminalizes sexual activity with a minor “regardless of
whether the victim, in fact, consents.” 738 F.3d at 1055 (second alteration in
original) (some internal quotation marks omitted). We reasoned that a “state
statute that for policy reasons treats a minor’s consent as irrelevant does not
necessarily render that minor’s conduct similar to conduct that is ‘involuntary,
incompetent, or coerced[,]’ all of which depend on the specific circumstances of
the crime and the victim.” Id. (alteration in original).
Rather, “statutory rape offenses outlaw conduct based on the minor’s age
alone; however voluntary and competent the minor, her consent will not be a
defense to the crime.” Id. Caceres-Olla held that a statute is overbroad if age
alone, without regard for consent, is sufficient to support a conviction; it did not
hold that a statute is overbroad if a victim’s immaturity is one factor considered
when determining whether a victim actually consented.
Here, consent is an element of § 243.4(a), and a showing of consent or an
honest and reasonable belief of consent is a defense to the crime. People v.
8
Andrews, 184 Cal. Rptr. 3d 183, 194 (Ct. App. 2015) (“[T]he defense of a mistaken
but honest and reasonable belief of the victim’s consent is available to defendants
charged with sexual battery where there is substantial evidence to support the
defense and it is not inconsistent with the defendant’s theory of the case.”). Unlike
the strict liability statutory rape offense at issue in Caceres-Olla, § 243.4(a)
provides that a competent minor who “act[s] freely and voluntarily and know[s]
the nature of the touching” is capable of consenting. See, e.g., People v. Abdoun,
No. A106828, 2005 WL 913663, at *5 n.10 (Ct. App. Apr. 20, 2005) (unpublished)
(noting that during a trial that resulted in the defendant’s conviction of
misdemeanor sexual battery against a 15-year-old victim, “[t]he jury was instructed
that the victim’s consent was an available defense to the sexual battery charged”).
The relevant consideration is not the victim’s age, but the victim’s actual
consent; the court must consider “the specific circumstances of the crime and the
victim.” Caceres-Olla, 738 F.3d at 1055. A violation of § 243.4(a) is a “forcible
sex offense,” and therefore a crime of violence pursuant to U.S.S.G. § 2L1.2. The
district court did not err by imposing a 16-level sentencing enhancement.
AFFIRMED.
9