dissenting:
California punishes persons who “willfully and lewdly ... expose [their] private parts” in a public place or in a place where there are unwilling persons. CAL. PE*1139NAL CODE § 314(1). The California Supreme Court has read § 314 to reach only one who “intentionally direct[s] attention to his genitals for sexual purposes.” In re Smith, 7 Cal.3d 362, 102 Cal.Rptr. 335, 497 P.2d 807, 810 (1972). In Gonzales v. Duenas-Alvarez, the Supreme Court told us that to find that California’s indecent exposure statute is a crime outside the generic definition of a crime involving moral turpitude “requires more than the application of legal imagination to a state statute’s language.” Indeed, “[i]t requires a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of [the] crime.” 549 U.S. 183, 193, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007). But “legal imagination” and “theoretical possibilities” are the warp and woof of the majority’s decision.
Despite the clarity of California’s indecent exposure statute, punishing persons who “wilfully and lewdly ... expose [their] private parts,” the majority holds that Ocegueda’s conviction is not a crime involving moral turpitude. Maj. Op. at 1127-28. The majority does not expressly argue that such lewd conduct is not a crime involving moral turpitude. Instead, the majority points to three convictions that, in its opinion, did not involve lewd conduct. First, the majority claims that California has “upheld convictions for nude dancing at bars.” Maj. Op. at 1135. No it hasn’t, at least not in any way that counts under Duenas-Alvarez. The one nude dancing case the majority cites, People v. Conway, 103 Cal.App.3d Supp. 7, 162 Cal.Rptr. 877 (1979), was expressly disapproved by the California Supreme Court in 1982, Morris v. Municipal Court, 32 Cal.3d 553, 186 Cal.Rptr. 494, 652 P.2d 51, 58 n. 13 (1982), and the case has not been cited since. And, I am quite confident that there is nude dancing going on in California bars even as I write this, and no one is being arrested under § 314. So much for a “realistic probability.” Second, the majority discovered two other cases that it thinks demonstrate § 314’s overbreadth. One involved indecent exposure during a “road rage” incident, People v. Archer, 98 Cal.App.4th 402, 119 Cal.Rptr.2d 783 (2002), and the other (an unpublished decision) involved indecent exposure to twelve year-old girls at school, People v. Lionel M., 2007 WL 2924052 (Cal.Ct.App. Oct. 9, 2007). Without any record on which to base its judgment, the majority dismisses conduct the California courts found to be lewd as “relatively harmless” and merely “provocative insults and tasteless pranks.” Maj. Op. at 1138. The majority’s collateral attack on these convictions is wholly inappropriate in this context and, at best, revisionist history.
Whatever Ocegueda did to get himself convicted of indecent exposure, we can be fairly confident that it involved more than being a nude dancer at a bar or a “tasteless prank.” Because I believe that Ocegueda’s conviction for indecent exposure under § 314 is categorically a crime involving moral turpitude, I would uphold the decision of the Board of Immigration Appeals and deny the petition. I respectfully dissent.
I
Section 1229b(b)(l) of Title 8 gives the Attorney General discretionary authority to cancel the removal of an alien who is inadmissible to or deportable from the United States. To qualify for cancellation of removal under this section, an alien must establish, among other requirements, that he or she (1) “has been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of [the alien’s application for cancellation of removal],” and (2) “has been a person of good moral character during such period.” 8 U.S.C. *1140§ 1229b(b)(l)(A)-(B). Section 1101(f)(3) provides that an alien cannot establish good moral character if the alien has been convicted of a crime listed in 8 U.S.C. § 1182(a)(2)(A)-(B), which includes a “crime involving moral turpitude.” 8 U.S.C. § 1182(a)(2)(A)(i)(I).
In this case, the only evidence tendered by the government is the fact Oeegueda was convicted of violating § 314, California’s indecent exposure statute. Thus, absent additional documentation, Ocegueda’s conviction only qualifies under 8 U.S.C. § 1182 (a)(2) (A) (i)(I) if § 314 categorically describes conduct involving moral turpitude.
The Supreme Court has placed a critical limit on the scope of our inquiry under the categorical approach. In Gonzales v. Duenas-Alvarez, 549 U.S. 183, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007), the Court explained, “to find that a state statute creates a crime outside the generic definition of a listed crime in a federal statute requires more than the application of legal imagination to a state statute’s language.” Id. at 193, 127 S.Ct. 815. Rather, “[i]t requires a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime.” Id. The Court continued, “[t]o show that realistic probability, an offender ... must at least point to his own case or other cases in which the state courts in fact did apply the statute in the special (nongeneric) manner for which he argues.” Id.
We have held that “the Supreme Court squarely placed the burden on the alien to demonstrate a realistic probability that the state would apply the offense in a way that falls outside the generic definition of the crime.” Ortiz-Magana v. Mukasey, 542 F.3d 653, 660 (9th Cir.2008). Ordinarily, we begin by asking whether the “state statute plainly and specifically criminalizes conduct outside the contours of the federal definition.” Cerezo v. Mukasey, 512 F.3d 1163, 1167 (9th Cir.2008). If we think the statute is too broad, we will “still consider whether California courts have interpreted the[statute] more narrowly so as to make it applicable only to conduct which involves moral turpitude.” Id. at 1167-68. Although it seems less likely, we may also entertain an argument the state courts have expanded what the statute “plainly and specifically criminalizes.”
The import of Duenas-Alvarez in this case is clear. We may not apply our “legal imagination,” but must find a “realistic probability” that California is enforcing its indecent exposure law outside a generic definition of “moral turpitude.” Proof of such a “realistic probability” requires “cases” in which California courts “in fact” applied the statute in a nongeneric fashion. The majority claims that “[t]his realistic probability can be established by showing that, in at least one other case, ‘the state courts in fact did apply the statute in the special (nongeneric) manner....’” Maj. Op. at 1129 (quoting Nicanor-Romero v. Mukasey, 523 F.3d 992, 1004-05 (9th Cir.2008)). I question whether just any single case will satisfy Duenas-Alvarez. The case the majority cites for the proposition, Nicanor-Romero, relied on a single, unpublished decision for evidence of the “realistic probability.” That portion of the opinion, however, was the opinion of a single judge and thus is not the judgment of the court. See Nicanor-Romero, 523 F.3d at 1005-07 (opinion of W. Fletcher, J.); id. at 1011 (Pregerson, J., specially concurring); id. at 1022-24 & n. 11 (Bybee, J., dissenting).
Moreover, for reasons I explained in my dissent in Nicanor-Romero, I think that to satisfy Duenas-Alvarez we need something more than scouring state records to see if we can find a conviction that we think falls outside some generic ideal. As *1141I wrote in Nicanor-Romero, “I do not believe that the Supreme Court in Duenas-Alvarez meant for us to take the least generous approach possible in analyzing state cases under the categorical approach____” 523 F.3d at 1023 (Bybee, J., dissenting). As judges, we are, or should be, well aware of our own mortality. Just as our occasional, uncorrected errors do not represent the body of the law of the United States, we should hesitate before taking a single, possibly aberrant state case and elevating it to state law. A considered case from the state’s highest court or appellate court would be strong evidence of the meaning of the statute. A single decision of a lower state court— particularly when the decision is dated or the opinion is not carefully considered— does not, in my view, satisfy the petitioner’s duty to show the “realistic probability.” As the Supreme Court told us, “To show that realistic possibility, an offender, of course, may show that the statute was so applied in his own case. But he must at least point to his own or other cases in which the state courts in fact did apply the statute in the special (nongeneric) manner for which he argues.” Duenas-Alvarez, 549 U.S. at 193, 127 S.Ct. 815 (emphasis added).
II
As Ocegueda declined to come forward with any evidence that California applied the indecent exposure statute to him in a “special (nongeneric) manner,” we are left to consider how California construes and applies § 314 in the main. With DuenasAlvarez in mind, I address first the generic standards for a crime of moral turpitude. I then address standards for obtaining a conviction under § 314 and discuss how California courts have applied those standards in fact. Lastly, I address the cases the majority uses to show that California applies § 314 to conduct outside the generic definition of a crime involving moral turpitude.
A
We have “consistently defined ‘moral turpitude’ as involving conduct that is inherently base, vile, or depraved, and contrary to the private and social duties man owes to his fellow men or to society in general.” Navarro-Lopez v. Gonzales, 503 F.3d 1063, 1068 (9th Cir.2007) (en banc). This definition is “employed by the BIA” and is “relatively consistent throughout the federal courts.” Id.
In general, we have “divided crimes involving moral turpitude into two basic types: ‘those involving fraud and those involving grave acts of baseness or depravity.’ ” Galeana-Mendoza v. Gonzales, 465 F.3d 1054, 1058 (9th Cir.2006) (quoting Carty v. Ashcroft, 395 F.3d 1081, 1083 (9th Cir.2005)); see also In re Ajami, 22 I. & N. Dec. 949, 950 (BIA 1999); Matter of Short, 20 I. & N. Dec. 136, 139 (BIA 1989). In non-fraud cases, we have looked to “accepted moral standards” for guidance in determining the types of behavior that involve moral turpitude. See Rodriguez-Herrera v. INS, 52 F.3d 238, 240 (9th Cir.1995).
The federal courts have long held that sexual offenses violate “accepted moral standards” and come within the category of “grave acts of baseness or depravity.” These offenses include indecent assault, Maghsoudi v. INS, 181 F.3d 8, 10-11 (1st Cir.1999); lewd and lascivious conduct, Schoeps v. Carmichael, 177 F.2d 391, 394 (9th Cir.1949); statutory rape, Castle v. INS, 541 F.2d 1064, 1066 (4th Cir.1976); Marciano v. INS, 450 F.2d 1022, 1024 (8th Cir.1971); incest, Morales v. Gonzales, 478 F.3d 972, 978 (9th Cir.2007); and contributing to the sexual delinquency of a minor, Sheikh v. Gonzales, 427 F.3d 1077, 1082 (8th Cir.2005); Palmer v. INS, 4 F.3d 482, *1142485 (7th Cir.1993). Unlike other types of crimes falling into the category of grave and base acts, sexual offenses have generally been classified as crimes involving moral turpitude irrespective of any injury to the victim, physical or otherwise. Sexual misconduct also need not involve physical assault to violate contemporary moral standards; even fully consensual conduct can involve moral turpitude. See, e.g., Franklin v. INS, 72 F.3d 571, 588 (8th Cir.1995) (noting that statutory rape is a crime of moral turpitude); Castle, 541 F.2d at 1066 (same); Marciano, 450 F.2d at 1024 (same). In fact, the sexual misconduct in question need not even involve a threat of physical contact. For example, we have held that merely communicating with a minor “for immoral purposes of a sexual nature” involves moral turpitude because “[sjexual communication with a minor is inherently wrong and contrary to the accepted rules of morality and the duties owed between persons.” Morales, 478 F.3d at 978.
B
California’s indecent exposure statute reads, in relevant part: “Every person who willfully and lewdly ... [ejxposes his person, or the private parts thereof, in any public place, or in any place where there are present other persons to be offended or annoyed thereby ... is guilty of a misdemeanor.” Cal. Pen. Code § 314, subd. 1. The California Supreme Court has held that indecent exposure encompasses only conduct that “is sexually motivated” and thus requires “proof beyond a reasonable doubt that the actor not only meant to expose himself, but intended by his conduct to direct public attention to his genitals for purposes of sexual arousal, gratification, or affront.” In re Smith, 7 Cal.3d 362, 102 Cal.Rptr. 335, 497 P.2d 807, 810 (1972); see also People v. Archer, 98 Cal.App.4th 402, 119 Cal.Rptr.2d 783, 786 (2002) (interpreting term “sexual” in Smith as modifying all three words that follow).
The California Supreme Court has applied § 314’s requirement of “lewd” intent narrowly. In Smith, the defendant went to a public beach, removed all of his clothes, and fell asleep on a towel. 102 Cal.Rptr. 335, 497 P.2d at 808. The police arrived several hours later and arrested the defendant; at this time, several other people were also present on the beach. Id. The Smith court concluded that the defendant’s conduct did not violate § 314, reasoning that “[ajbsent additional conduct intentionally directing attention to his genitals for sexual purposes, a person, as here, who simply sunbathes in the nude on an isolated beach does not ‘lewdly’ expose his private parts within the meaning of section 314.” Id. at 810.
California courts have consistently applied § 314 only to conduct falling within the scope of the rule laid down in Smith. See, e.g., People v. Johnson, 145 Cal.App.4th 895, 51 Cal.Rptr.3d 893, 895 (2006) (upholding conviction under § 314 of a prisoner who was observed by a female prison guard masturbating in his cell, “with the brightest cell lights turned on, while making eye contact with her”); People v. Davey, 133 Cal.App.4th 384, 34 Cal.Rptr.3d 811, 812-13 (2005) (upholding defendant’s conviction under § 314 for exposing himself to multiple children simultaneously); In re Michael H., 128 Cal.App.4th 1074, 27 Cal.Rptr.3d 627, 629 (2005) (upholding conviction under § 314 of a juvenile who entered a neighbor’s house, removed his clothes, and went into her bedroom where she was sleeping), overruled on other grounds by In re Lemanuel C., 41 Cal.4th 33, 58 Cal.Rptr.3d 597, 158 P.3d 148 (2007); People v. Noriega, 124 Cal.App.4th 1334, 22 Cal.Rptr.3d 382, 383-84 (2004) (upholding defendant’s conviction under § 314 for exposing his geni*1143tais to several individuals, including children, on public transport); People v. Britt, 104 Cal.App.4th 500, 128 Cal.Rptr.2d 290, 291-92, 295 (2002) (upholding conviction under § 314 of man seen by minor children while he was masturbating outside their open window while looking inside); Archer, 119 Cal.Rptr.2d at 785-86 (upholding conviction under § 314 of defendant who exposed his genitals and made an obscene comment to another driver in a road rage incident).
By contrast, California courts have reversed convictions under § 314 in cases either where there is no evidence that the defendant exposed his genitals or where there is no evidence that the offending conduct was accompanied by lewd intent. For example, in People v. Massicot, 97 Cal.App.4th 920, 118 Cal.Rptr.2d 705 (2002), the defendant had concealed his genitals but exposed other parts of his body, including his buttocks and thighs, by appearing in lace underpants and a lace bra. The Court of Appeal reversed the conviction, holding that the statutory phrase “[ejxposes his person” applied only where the defendant displayed his or her entire unclothed body, including the genitals. Id. at 709-710. Similarly, in In re Dallas W., 85 Cal.App.4th 937, 102 Cal.Rptr.2d 493 (2000), the Court of Appeal held that a juvenile who had twice “moon[edj” oncoming traffic could not be convicted under § 314 because there was no evidence that he had bared his buttocks in public with lewd intent. Id. at 494. The Dallas court also disapproved of the standard jury instructions used in that case because they permitted conviction on a finding that the defendant had acted with the intent to cause affront to others, even if that affront was non-sexual in nature. Id. at 494-95.
The majority agrees that “[ujnder § 314, it is the sexual intent with which the exposure occurs that transforms it into an act that is criminal, rather than an act that is merely improper or inappropriate.” Maj. Op. at 1133-34. But for the majority, California’s careful application of § 314 to only lewd conduct is not enough, and it obliquely argues that “sexual intent” or lewdness no longer qualifies as moral turpitude. Instead, the majority attempts to whittle down a crime of moral turpitude to conduct that necessarily involves “either actual infliction of harm or a protected class of victim; most often a combination of the two.” Maj. Op. at 1132. Unless lewd conduct no longer qualifies as moral turpitude, California’s indecent exposure statute categorically satisfies 8 U.S.C. § 1182’s requirement of a “crime involving moral turpitude.” Whatever the “fluid boundaries of our nebulous ‘moral turpitude,’ ” indecent exposure bears no resemblance to “consensual sexual conduct among adults” and, as defined by California, is “conduct ... offensive to at least a majority.” Maj. Op. at 1132-33.
C
Notwithstanding the narrow scope the California courts have given § 314, the majority cites to three cases that it contends demonstrate that California “construed ‘sexual motivation’ quite broadly” and punishes conduct that, in fact, does not involve moral turpitude.1 Maj. Op. at 1134. The first case is a conviction for “nude dancing at bars.” Maj. Op. at 1135. The remaining two are cases that, by the *1144majority’s lights, represent a “tasteless prank” or “de minimus provocation.”2 Maj. Op at 1136-38.
1
The principal case the majority uses to create a “realistic probability” that California will use § 314 to punish conduct that is not morally turpitudinous is a thirty year-old nude dancing case, People v. Conway, 103 Cal.App.3d Supp. 7, 162 Cal.Rptr. 877, 879 (1979). Conway was expressly disapproved by the California Supreme Court in 1982 in Morris v. Mun. Court, 32 Cal.3d 553, 186 Cal.Rptr. 494, 652 P.2d 51, 58 n.13 (1982), and has not been cited since. There is no evidence whatsoever that Conway is good law or that California has any intention of using § 314 to try to punish mere nude dancing.
In Conway, the appellate division of the Los Angeles Superior Court upheld a municipal court conviction of a waitress and dancer in a beer bar who performed naked on a raised platform “displaying] her private parts.” Conway, 162 Cal.Rptr. at 878. The court reasoned that her specific intent to create sexual arousal in observers met the lewd and wilful requirements of § 314. Id. at 878-79. The majority argues that the dancing in Conway was not so “base, vile, or depraved” that it “shocks the conscience” and, therefore, a conviction under § 314 cannot be categorically a crime of moral turpitude. Maj. Op. at 1135-36.
Conway cannot establish a realistic probability that California would use § 314 to convict nude dancers in a nude entertainment venue of indecent exposure. There is no need to discuss whether mere nude dancing is so “base, vile, or depraved” that it “shocks the conscience.” For purposes of this case, I am willing to assume that nude dancing in bars, without more, is not morally turpitudinous, although I am not sure that anything in the Supreme Court’s jurisprudence compels that assumption. See City of Erie v. Pap’s A.M., 529 U.S. 277, 120 S.Ct. 1382, 146 L.Ed.2d 265 (2000) (upholding, a municipal ordinance banning public nudity against a First Amendment challenge); Barnes v. Glen Theatre, Inc., 501 U.S. 560, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991); City of Newport v. Iacobucci, 479 U.S. 92, 107 S.Ct. 383, 93 L.Ed.2d 334 (1986) (per curiam); New York State Liquor Auth. v. Bellanca, 452 U.S. 714, 101 S.Ct. 2599, 69 L.Ed.2d 357 (1981) (per curiam). Not only is Conway the only case since 1979 to use § 314 to uphold a conviction of a nude dancer, but Conway was decided when the law relating to nude dancing teetered back and forth from protected to unprotected expression under the First Amendment. Conway is even weaker precedent in showing a realistic probability that California will use § 314 to punish nude dancing because the law relating to nude dancing has changed dramatically since Conway was decided: Conway relied on a decision that has been overruled, and its reasoning is doubtful.
In 1968, the California Supreme Court overturned a conviction under § 314 for topless dancing at a nightclub. In re Giannini, 69 Cal.2d 563, 72 Cal.Rptr. 655, 446 P.2d 535, 536-38 (1968). The court found that dance was a form of expression protected by the First Amendment, and thus the conviction for indecent exposure was unconstitutional. Id. Four years later, the California Court of Appeal upheld an injunction prohibiting owners of a bar from using the premises for lewdness in People ex rel. Hicks v. Sarong Gals, 27 Cal.App.3d 46, 103 Cal.Rptr. 414 (1972). The court noted that there had been arrests at the bar under § 314, but found that the *1145activities went well beyond nude dancing protected by the First Amendment under In re Giannini Id. at 417-418. Rather, these activities were “purely and simply obscene acts performed for the purpose of inciting the sexual desires and imaginations of a group of randy, beer-drinking patrons.” Id. at 418. The Sarong Gals bar featured live entertainment involving naked females masturbating on stage, male customers masturbating while watching a naked dancer simulate sexual intercourse, naked females allowing customers to look into her innards and vigorously rubbing items in private areas. Id. at 417. Such activity is obscene by any standards, but in 1972, the court was clearly justified in finding such activity to be obscene and thus not protected as a form of expression. See Miller v. California, 413 U.S. 15, 24, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). It is clear that § 314 was used in this situation to arrest people for committing obscene acts and not as a way to convict nonobscene nude dancing.
A year after Hicks, the California Supreme Court overruled In re Giannini in Crownover v. Musick, 9 Cal.3d 405, 107 Cal.Rptr. 681, 509 P.2d 497 (1973). In Crownover, the court upheld city ordinances that prohibited the service of food or drink by “topless” women or “bottomless” persons of either sex and prohibited live acts by any such persons. Id. at 430-31, 107 Cal.Rptr. 681, 509 P.2d 497. The court found both activities to be conduct, not speech, and concluded that regulation of these activities was justified by “considerations of public morals and general welfare.” Id. at 427, 107 Cal.Rptr. 681, 509 P.2d 497.
The Los Angeles Superior Court’s decision in Conway was issued in 1979 when Crownover was still good law. In Conway, the court explicitly found that Crownover precluded the defendant’s claim that her dancing was protected by the First Amendment. Conway, 162 Cal.Rptr. at 879-80 (stating that “defendant places her reliance on In re Giannini[,\ and that case was overruled in Crownover v. Musick. ... [W]e are bound by Crownover ....” (internal citations omitted)). Just three years after Conway, however, Crownover was overruled by Morris v. Municipal Court, 32 Cal.3d 553, 186 Cal.Rptr. 494, 652 P.2d 51 (1982). Morris established the current law for regulation of nude dancing in California. The court concluded:
A ban on nude dancing cannot be sustained on the theory that it regulates only conduct and does not impinge upon protected speech. Nonobscene nude dancing cannot be barred without, in some cases, infringing upon constitutionally protected expression. [ ]An enactment prohibiting nonobscene nude dancing which extends beyond establishments serving alcohol is presumptively overbroad.
Id. at 564-65, 186 Cal.Rptr. 494, 652 P.2d 51. In a footnote, Morris specifically disapproved Comoay “to the extent it is inconsistent with the present opinion.” Id. at 565 n. 13. I cannot find any case after Morris where a court upholds a conviction for indecent exposure of a nude entertainer in a bar, and Conway has not been cited since by any court. There is, thus, no support whatsoever, except the majority’s ipse dixit, that “Conway remains good law in relevant part.” Maj. Op. at 1135-36 n.8. If anything in Conway survives, it is plainly not the majority’s claim that “California courts [will], under § 314, uph[o]ld convictions for nude dancing at bars.” Maj. Op. at 1135.3
*1146Even if, as purely theoretical matter, there remains a sliver of unprotected, nude entertainment which is not so “base, vile, and depraved” that it “shocks the conscience” but nevertheless could be prosecuted under § 314 as indecent exposure, there is no indication that there is a “realistic probability” of conviction in the future. The statute requires that the exposure occur in a “public place, or in any place where there are present other persons to be offended or annoyed thereby.” Cal. Pen. Code § 314, subd. 1. It is unlikely that a conviction would stand for an individual who exposed herself or himself in an establishment devoted to nude dancing. Realistically, any person who attended a venue expecting nude entertainment would not be offended or annoyed by seeing the object of his or her presence.
More importantly, there is ample evidence that California and its municipalities tolerate nude dancing and do not regard it as violation of § 314. California regulates businesses that serve alcohol, including bars featuring nude dancers, but it does not do so through § 314. So far as I can determine from the published cases, in the past twenty years, no nude dancing or nude entertainment cases in California courts have even mentioned § 314. The majority of these cases deal with regulating alcohol licenses of commercial establishments that offer such entertainment, and a number of them show sensitivity to First Amendment questions surrounding nude dancing. See SP Star Enter. v. City of Los Angeles, 173 Cal.App.4th 459, 93 Cal.Rptr.3d 152 (2009) (holding that an adult nude entertainment club’s argument that alcohol restrictions regulated speech lacked merit); Krontz v. City of San Diego, 136 Cal.App.4th 1126, 39 Cal.Rptr.3d 535 (2006) (upholding city’s suspension of a nude entertainment establishment’s license when the establishment violated the rule that dancers must be six feet away from patrons); Dep’t of Alcoholic Beverage Control v. Alcoholic Beverage Control Appeals Bd., 99 Cal.App.4th 880, 121 Cal.Rptr.2d 729 (2002) (upholding suspension of a license because the nude entertainment club violated alcoholic beverage control regulations); Wooten v. Superior Court, 93 Cal.App.4th 422, 113 Cal.Rptr.2d 195 (2001) (setting aside an information charging two individuals for pimping and pandering where defendants hired women to perform sexual acts on each other and not customers); Tily B., Inc. v. City of Newport Beach, 69 Cal.App.4th 1, 81 Cal.Rptr.2d 6 (1998) (holding that the city’s ordinance prohibiting nude dancing and requiring pasties and g-strings during performances did not violate the First Amendment); Smith v. County of Los Angeles, 24 Cal.App.4th 990, 29 Cal.Rptr.2d 680 (1994) (holding that a city ordinance prohibiting nude dancing was too vague to survive constitutional scrutiny); Thomas v. County of Los Angeles, 232 Cal.App.3d 916, 283 Cal.Rptr. 815 (1991) (same); City of Rancho Cucamonga v. Warner Consulting Servs., 213 Cal.App.3d 1338, 262 Cal.Rptr. 349 (1989) (upholding regulations on nude dancing in places that serve alcohol); Stroh v. Midway Restaurant Sys., 180 Cal.App.3d 1040, 226 Cal.Rptr. 153 (1986) (same). We too have dealt with some of the problems in the regulation of nude dancing establishments in California. See United States v. Inzunza, 580 F.3d 894 (9th Cir.2009) (appeal by members of San Diego City Council convicted of accepting bribes to repeal the “no touch” ordinance *1147for nude dancing). The reality is that no one in California seems to be concerned with nude dancing per se. Certainly, there is no evidence that in past 30 years anyone has been prosecuted under § 314 for nude dancing in bars.
The majority’s proposed use of Conway strips the Supreme Court’s limitation in Duenas-Alvarez of any real meaning. When the Supreme Court said a “realistic probability” it meant something more than dredging up a case from the Superior Court that was expressly disapproved 28 years ago by the California Supreme Court and has not been cited since.
2
The majority cites the last two cases as examples of California punishing a “tasteless prank” or “de minimus provocation.” Maj. Op. at 1136-38. The first case, People v. Archer, 98 Cal.App.4th 402, 119 Cal.Rptr.2d 783 (2002), involved a male driver who exposed his genitals to a female driver and then yelled a sexually explicit comment to her in a road rage incident. The majority dismisses the incident as “crass” and involving only “transitory nudity.” Maj. Op. at 1137-38. That characterization is quite unfair to the California courts. Archer appealed his conviction for indecent exposure on the grounds that there was no evidence that he acted with “lewd” intent. Beginning from the premise that “ ‘lewd’ is an essential element of the offense,” the Court of Appeal found there was sufficient evidence to uphold his conviction. 119 Cal.Rptr.2d at 785 (quoting In re Smith, 102 Cal.Rptr. 335, 497 P.2d at 810). The court worked carefully through the California Supreme Court’s seminal decision on § 314, In re Smith, and the then-recent decision of the Court of Appeal dismissing a conviction under § 314 for mooning, In re Dallas W., 85 Cal.App.4th 937, 102 Cal.Rptr .2d 493 (2000). In In re Smith, the California Supreme Court held that “lewd” intent meant that the accused “direct[ed] public attention to this genitals for purposes of sexual arousal, gratification, or affront.” 102 Cal.Rptr. 335, 497 P.2d at 810. The Dallas court had held that the adjective “sexual” modified all three of the terms that followed “arousal, gratification, and affront.” In re Dallas, 102 Cal.Rptr.2d at 494. The Dallas court had found that “Dallas acted only to annoy and affront people and not with ‘sexual intent in the sense that he intended to arouse himself or a third person by his act’.... Dallas did not violate section 314 [by mooning traffic].” Id. at 495 (emphasis in original). Archer claimed that he too merely intended to offend or annoy his victim by exposing his penis to a female driver. The Court of Appeal rejected this argument because “it is enough if the defendant exposed himself for purposes of ‘sexual affront.’ ” Archer, 119 Cal.Rptr .2d at 786-87. Accordingly, “a defendant who intentionally exposes ‘his person, or the private parts thereof to another for the purpose of sexually insulting or offending the other person commits indecent exposure in violation of section 314.” Id. at 787. The court concluded that “[Archer’s] act of exposing his penis ... accompanied by the comment ‘suck [my] dick’ ” was sufficient evidence to support his conviction under § 314. Id.
The majority also points to an unpublished opinion of the Court of Appeal, People v. Lionel M., 2007 WL 2924052 (Cal.Ct.App. Oct. 9, 2007).4 In Lionel, a twelve *1148year-old boy called “hey, look” to two twelve-year old girls in his class. Lionel had pulled his pants down and exposed his penis. Lionel appealed his conviction under § 314 on the grounds that he did not have “lewd” intent. The Court of Appeal reviewed In re Smith, In re Dallas, and Archer. The court stated that merely exposing his genitals would not have been sufficient to convict Lionel under § 314. It found that “this case includes additional facts suggesting a lewd intent”:
[Lionel] approached the two girls, gained their attention, and then exposed his penis. The exposure of his genitalia was not, as in Smith, a consequence of passive nudity, but a deliberate action directed at two young girls.... [Lionel] did not, for example step to the front of the room to briefly flash the entire class or streak through the school halls; instead he targeted Devyn and Marlena and ensured they observed his private parts from a close distance---- [Lionel’s] choice to highlight only his penis provides adequate evidence of the sexual nature of the offense...
Although the circumstances surrounding [Lionel’s] action are subject to other reasonable interpretations, we find sufficient support for the trial court’s implied finding that appellant acted with the purpose of a sexual affront.
Id. at *2-*3.
Based on its own reading of these cases, the majority finds that these incidents were not “highly threatening, intrusive, [or] psychologically damaging” to the victims but were “mere acts of provocation, bad taste, and failed humor.” Maj. Op. at 1138. The majority’s conclusion is way beyond any evidence in the cases or the record before us. In fact, the California courts have rejected the claim that § 314 reaches “mere acts of provocation, bad taste, and failed humor.” As the California Court of Appeal said in In re Dallas W. (the “mooning” case), “Dallas may have been guilty of some other offense, and he certainly exhibited bad judgment and poor taste^ — but the trial court’s findings make it clear that Dallas did not violate section Slip.” 102 Cal.Rptr.2d at 495 (citation omitted; emphasis added).
The majority’s characterization of Archer and In re Lionel M. is one of two things. Either it is a collateral attack on the judgments because the majority simply doesn’t believe the evidence or, even worse, it is a determination that lewd conduct is categorically no longer a crime of moral turpitude. If it is a collateral attack, it is sorely misplaced. We have no competence in this proceeding to question the findings of the California courts, and the fact that judges on our court might have taken a different view on direct review of those cases is of no moment. The California courts found that Archer and Lionel deliberately engaged in lewd conduct in a public place and that is a “crime involving moral turpitude.”
If, however, the majority means to remove lewd conduct from the category of crimes involving moral turpitude, its discussion is a wholesale assault on sex crimes as crimes involving moral turpitude. As our cases demonstrate, it is too late for the majority to take that position, but one reads the majority opinion wondering how any sex crimes will satisfy its standards.
Ill
Our morality is not the measure of “accepted moral standards.” Rodriguez-*1149Herrera, 52 F.3d at 240. California is in a far better position to determine those moral standards. Whatever inclination California might once have had to regulate nude dancing, it is clear that one may now dance nude in bars with aplomb. But California continues to draw a line against those who expose their genitals in public when they do so “lewdly,” meaning “for purposes of sexual arousal, gratification, or affront.” In re Smith, 102 Cal.Rptr. 335, 497 P.2d at 810. That members of our court might have taken a different view of the evidence in a state case does not change that fact. It certainly does not satisfy Ocegueda’s burden of showing “a realistic probability, not a theoretical possibility, that [California] would apply its [indecent exposure] statute to conduct that falls outside the generic definition of a crime [involving moral turpitude].” Duenas-Alvarez, 549 U.S. at 193, 127 S.Ct. 815.
I would deny the petition. I respectfully dissent.
. Although we have clearly held that “the Supreme Court squarely placed the burden on the alien to demonstrate a realistic probability that the state would apply the offense in a way that Mis outside the generic definition of the crime,” Ortiz-Magana v. Mukasey, 542 F.3d 653, 660 (9th Cir.2008), the majority took the burden of proof upon itself. Ocegueda did not cite to any of the three California cases relied upon by the majority.
. The majority discusses People v. Rylaarsdam, 181 Cal.Rptr. 723 (Cal.Super.1982), at some length, but concludes that it "need not rely on this case.” Maj. Op. at 1134 n.7.
. The majority argues that the Supreme Court's decisions in Pap’s and Bames have "significantly strengthened Conway's conclusion that § 314 application to nude dancing does not violate the First Amendment.” Maj. Op. at 1136 n.8. The majority's statement is *1146true but irrelevant. Whether California may, consistent with the First Amendment, regulate nude dancing is utterly beside the point. The only thing we need to know is whether California uses § 314 to regulate nude dancing in bars. Aside from Conway, there is no evidence whatsoever for the majority’s conclusion that “California courts have, under § 314, upheld convictions for nude dancing at bars.” Maj. Op. at 1135.
. According to Cal. R. Ct. 8.1115, "an opinion of a California Court of Appeal or superior court appellate division that is not certified for publication or ordered published must not be cited or relied on by a court or a party in any other action.” The only exceptions are for when the opinion is relevant to a res judicata, collateral estoppel, or criminal or disciplinary action stating reasons for a decision affecting the same defendant. I question *1148whether the majority should rely on this unpublished opinion.
We have long had a rule against citation of our own unpublished dispositions, 9th Cir. R. 36-3, for reasons that have been well explained. See Alex Kozinski & Stephen Reinhardt, Please Don't Cite This!, Cal. Lawyer 43 (June 2000).