United States v. Vidal

CALLAHAN, Circuit Judge, with whom KOZINSKI, TALLMAN, CLIFTON, BYBEE, and BEA, Circuit Judges,

join, dissenting:

I respectfully dissent.

Although I agree that we must apply the Taylor v. United, States, 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), categorical approach and that accessory after the fact liability does not fall within the generic definition of a theft offense, I dissent because the majority fails to understand how California treats accessory after the fact liability. As a result, the majority concludes that the word “accessory” in California Vehicle Code § 10851(a) means that the statute must necessarily include accessory after the fact liability despite a lack of evidence that California has ever interpreted the statute this broadly, and despite ample authority that California mandates prosecution of accessories after the fact under a separate statute, California Penal Code § 32, which is similar to 18 U.S.C. § 3. By doing so, the majority ignores the Supreme Court’s admonition, repeated twice last Term, that we consider the practical effects and operations of statutes in the ordinary case under the categorical approach and refrain from speculating about the possible reach of the statute.

I would affirm the district court and hold that a violation of Vehicle Code § 10851(a) is categorically a theft offense for the purposes of the 8-level enhancement under U.S.S.G. § 2L1.2(b)(l)(C), because Vehicle Code § 10851(a) does not include accessory after the fact liability under California law.

I.

The majority argues that although the Supreme Court concluded that aiding and abetting liability did not make California Vehicle Code § 10851(a) overbroad under the categorical approach in Gonzales v. Duenas-Alvarez, — U.S.-, 127 S.Ct. 815, 820, 166 L.Ed.2d 683 (2007), the statute is still too broad because it includes accessory after the fact liability. The majority relies entirely upon a single superfluous and ambiguous word from Vehicle Code § 10851(a), and ignores both the California case law narrowly defining the elements required for a conviction and California’s treatment of accessory after the fact liability under Penal Code § 32.

A. California Vehicle Code § 10851(a) is categorically a theft offense.

As acknowledged by the majority, we apply a “modern, generic definition” that defines a “theft offense” as:

*1091a taking of property or an exercise of control over property without consent with the criminal intent to deprive the owner of rights and benefits of ownership, even if such deprivation is less than total or permanent.

United States v. Espinoza-Cano, 456 F.3d 1126, 1131 (9th Cir.2006) (internal quotation marks omitted). We have expressly rejected the Model Penal Code definition that requires an intent to take the property from its rightful owner permanently or for an extended period of time.1 United States v. Corona-Sanchez, 291 F.3d 1201, 1205 (9th Cir.2002) (en banc). All circuits that have attempted to define a theft offense have adopted this broader definition and rejected the Model Penal Code approach. See Nugent v. Ashcroft, 367 F.3d 162, 174 (3d Cir.2004); Jaggernauth v. U.S. Att’y Gen., 432 F.3d 1346, 1353 (11th Cir.2005); United States v. Vasquez-Flores, 265 F.3d 1122, 1125 (10th Cir.2001); Hernandez-Mancilla v. INS, 246 F.3d 1002, 1009 (7th Cir.2001). The Supreme Court has done the same. Duenas-Alvarez, — U.S. -, 127 S.Ct. at 820, 166 L.Ed.2d 683.

Applying the modern, generic definition of theft offense, the elements of a violation of Vehicle Code § 10851(a) categorically qualify a conviction under the section as a theft offense. California Vehicle Code § 10851(a) states:

Any person who drives or takes a vehicle not his or her own, without the consent of the owner thereof, and with intent either to permanently or temporarily deprive the owner thereof of his or her title to or possession of the vehicle, whether with or without intent to steal the vehicle, or any person who is a party or an accessory to or an accomplice in the driving or unauthorized taking or stealing, is guilty of a public offense and, upon conviction thereof, shall be punished by imprisonment in a county jail for not more than one year or in the state prison or by a fine of not more than five thousand dollars ($5,000), or by both the fine and imprisonment.

We must consider “whether the elements of the offense are of the type that would justify its inclusion” within a theft offense, James v. United States, — U.S.-, 127 S.Ct. 1586, 1594, 167 L.Ed.2d 532 (2007). All the elements of a theft offense are satisfied by the plain language of Vehicle Code § 10851(a): the intent to deprive the owner of the title or possession of the vehicle, the lack of consent, and the actual taking or driving of the vehicle. See People v. Moon, 37 Cal.4th 1, 32 Cal.Rptr.3d 894, 117 P.3d 591, 606 (Cal.2005) (stating elements of a violation of § 10851(a) and quoting CALJIC No. 14.36); CALCRIM 1820 (2006) (stating two elements: “1. The defendant took or drove someone else’s vehicle without the owner’s consent; and 2. When the defendant did so, (he/she) intended to deprive the owner of possession or ownership of the vehicle for any period of time.”). Because Vehicle Code § 10851(a), stripped of the excess verbiage and reduced to its basic elements, requires all the basic elements of a theft offense in order to sustain a conviction, it is categorically a theft offense.

B. Accessory liability does not make § 10851(a) overbroad.

As applied, the word “accessory” in Vehicle Code § 10851(a) means an accom*1092plice. We must heed the Supreme Court’s guidelines in Duenas-Alvarez stating that:

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. It 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.

Duenas-Alvarez, — U.S. at -, 127 S.Ct. at 822. Under California law, as under federal law, accessory after the fact liability is a separate and distinct crime that must be alleged, proven, and punished independently of the underlying felony committed by the principal. As a result, California does not apply Vehicle Code § 10851(a) to accessories after the fact.

Although Vehicle Code § 10851(a) includes the word “accessory,” the word has a common law meaning.2 We cannot theorize that Vehicle Code § 10851(a) creates accessory after the fact liability, particularly when California has defined the statutory elements without any reference to accessory after the fact liability.3 See Stanton v. Benzler, 146 F.3d 726, 728 (9th Cir.1998) (noting “a state is generally free within broad limits to define the elements of a particular offense”). Furthermore, California has chosen to treat accessory after the fact liability as a separate and distinct offense that must be alleged, proven, and punished — exactly as accessory after the fact liability is handled under federal law. Therefore the inclusion of the word “accessory” in the statutory language does not mean that California could potentially punish accessories after the fact under Vehicle Code § 10851(a).

1. California Penal Code § 32 sets forth a crime separate and distinct from the felony itself.

“[I]n California one who is an accessory to a felony thereby commits a crime which is separate and distinct from the felony itself.” People v. Mitten, 37 Cal.App.3d 879, 112 Cal.Rptr. 713, 715 (Ct.App.1974). California has codified this principle in Penal Code § 32, which defines an accessory after the fact as:

Every person who, after a felony has been committed, harbors, conceals or *1093aids a principal in such felony, with the intent that said principal may avoid or escape from arrest, trial, conviction or punishment, having knowledge that said principal has committed such felony or has been charged with such felony or convicted thereof, is an accessory to such felony.

The elements of a violation of Penal Code § 32 are: that a felony was committed, that the defendant “harbored, concealed or aided a principal in that felony with the specific intent that the principal avoid or escape arrest, trial, conviction or punishment”; and that “defendant did so with knowledge that the principal committed the felony.” People v. Magee, 107 Cal.App.4th 188, 131 Cal.Rptr.2d 834, 836 (Ct.App.2003) (quoting CALJIC No. 6.40); CALCRIM 440 (2006).

For example, for theft offenses, a defendant cannot be convicted as an accessory after the fact for being in possession of goods that he knows are stolen, but must be convicted of being in receipt of stolen property. See People v. Stakem, 40 Cal.599, 601 (1871) (stating that someone who receives property with guilty knowledge that it was stolen is guilty of receiving stolen property and not as an accessory after the fact). Violations of California Penal Code § 32 must be pled and proven, including the identification of the underlying felony and the person that the defendant allegedly concealed or protected. See People v. Garnett, 129 Cal. 364, 61 P. 1114, 1115 (Cal.1900) (reversing and remanding for a new trial because although the information alleged that the principal who defendant concealed committed the crime of grand larceny, it failed to allege that the principal was charged with a felony). “[T]he word ‘charged,’ as used in the section, means a formal complaint, information, or indictment filed against the criminal .... ” Id. The information must allege the felony that was committed, as well as the defendant’s knowledge that a felony was committed and the defendant’s intent to harbor or conceal the principal to help him avoid arrest, trial, conviction, or punishment. See People v. Hardin, 207 Cal.App.2d 336, 341-42, 24 Cal.Rptr. 563 (Ct. App.1962) (discussing elements and the need to allege the felony committed by the principal). In fact, California courts have invalidated a conviction because the information failed to allege each of the elements of a violation of Penal Code § 32. See People v. Kloss, 130 Cal.App. 194, 19 P.2d 822, 823 (Cal.Ct.App.1933) (invalidating information that failed to properly state theory of liability under Penal Code § 32).

Although California abrogated the common law distinction between an accessory before the fact, an accomplice at the scene, and a principal in 1872 by enacting Penal Code § 971,4 accessories after the fact continue to be prosecuted for “a crime separate and distinct from the principal offense” under Penal Code § 32. Mitten, 112 Cal.Rptr. at 715. The distinction between accessories before the fact and accessories after the fact is essential because an accessory after the fact can only be punished as an unspecified felony rather than as a principal. See People v. Gassaway, 28 Cal. 404, 405-06 (1865) (noting *1094distinction between an accessory before the fact and an accessory after the fact because the accessory before the fact is punished as a principal, and an accessory after the fact is punished as a general felony). Under California law, a defendant cannot be convicted of both the substantive felony and as an accessory to the felony unless the two charges are based on different facts. See People v. Riley, 20 Cal. App.4th 1808, 25 Cal.Rptr.2d 676, 679-80 (Ct.App.1993) (affirming conviction for murder under accomplice liability and as an accessory after the fact where the defendant both accompanied the shooter during the crime and also disposed of the gun the day after the murder); People v. Prado, 67 Cal.App.3d 267, 136 Cal.Rptr. 521, 525 (Ct.App.1977) (reversing conviction for robbery and accessory to robbery based on single course of action). Accessory after the fact liability is impossible as a matter of law without further acts after the completion of the felony that satisfy each and every element of California Penal Code § 32. See In re Malcolm M., 147 Cal.App.4th 157, 54 Cal.Rptr.3d 74, 84 (Ct.App.2007) (overturning conviction for being accessory to illegal weapons possession when offense was not complete when the defendant was arrested); Prado, 136 Cal.Rptr. at 524 (“[W]hen an accused is convicted of [a] violation of Penal Code section 32, which necessarily requires that a Principal have committed a specific completed felony and that he knowingly aided that principal with intent that the principal escape arrest, he cannot be convicted as a principal in that completed felony.”). Under California law, a conviction as a principal for the substantive offense precludes a conviction for being an accessory after the fact, absent evidence that defendant took further action to harbor a principal after the crime.

2. Under California law, being an accessory after the fact to a violation of Vehicle Code § 10851(a) must be prosecuted as a violation of Penal Code § 32.

The conclusion that California requires that the government allege accessory after the fact liability as a separate offense under Penal Code § 32 is bolstered by the California Court of Appeal’s decision in Dunn v. Superior Court, 159 Cal.App.3d 1110, 206 Cal.Rptr. 242, 244 (Ct.App.1984). In Dunn, the defendant was initially charged with kidnapping, assault with intent to commit rape, and a violation of Vehicle Code § 10851. Id. Although the defendant was held to answer on all charges, the information only included the kidnapping and assault charges. Id. The government dismissed the original information on the day of trial, and filed a new complaint charging kidnapping, robbery, possession of stolen property, and a violation of Penal Code § 32, described by the court of appeal as “accessory to kidnaping, robbery and auto theft.” Id. After a preliminary hearing, “the magistrate refused to hold petitioner to answer on any charge except the charge of being an accessory after the fact as that charge related to auto theft.” Id. In short, the judge at the preliminary hearing found insufficient probable cause to hold the defendant to answer on any charge except being an accessory after the fact to auto theft. See CaLPenal Code §§ 858-883 (stating procedures for preliminary hearings and probable cause determinations).

After the government filed an information that revived all the counts in the second complaint, the defendant moved to dismiss the kidnapping, robbery, and receiving stolen property counts under California Penal Code § 1387, which bars prosecution for crimes that have been “terminated” twice against a defendant. *1095Dunn, 206 Cal.Rptr. at 244. The court of appeal held that charges of auto theft or robbing someone of a vehicle had been terminated twice, and therefore those charges had to be dismissed. Id. at 247-48. The accessory to auto theft allegation, however, had not been previously terminated and therefore the prosecutors could proceed on those charges. Id. at 247.

The majority now speculates that the “auto theft” referred to in Dunn was actually grand theft of an automobile, a violation of Penal Code § 487(d). Majority Op. at 1085 n. 24. The majority speculates that because the language concerning being subjected to two preliminary hearing concerning the theft of the automobile includes a reference to the Penal Code, that the opinion must refer to Penal Code § 487. Id. The majority’s theory is not only pure speculation in light of the opinion’s specific reference to Vehicle Code § 10851(a), but ignores the opinion’s specific discussion of its holding that the termination of the auto theft charge under Vehicle Code § 10851(a) and the subsequent termination of a robbery charge under Penal Code § 211 constituted the two terminations that precluded further prosecution for the taking of an automobile. Dunn, 206 CaLRptr. at 247-48 (stating “[hjere, the essence of the auto theft and robbery is the same since the robbery was specifically alleged to be the taking of the same automobile” and issuing a peremptory writ of mandate to dismiss the robbery count). The court of appeal in Dunn specifically stated that, “[a] defendant cannot be expected to move for dismissal of a count not included in the information,” and specified the charges, including the robbery count, that were actually in the information. Id. at 244, 248. The entire point of the Supreme Court’s admonition against reaching for “theoretical possibilities” is to prevent the type of strained interpretation the majority attempts to apply to Dunn to read in a connection to Penal Code § 487 or other theories of liability when none exists, or ever existed. Duenas-Alvarez, — U.S. at-, 127 S.Ct. at 822.

As demonstrated by the facts in Dunn, California courts require prosecutions under an accessory after the fact theory of liability to be brought under Penal Code § 32, even if the underlying offense is a violation of Vehicle Code § 10851(a). Charges under Penal Code § 32 are treated as independent allegations and violations. Therefore, there is no need to discuss theoretical possibilities, or even realistic probabilities, about the extent of liability under California Vehicle Code § 10851 because the existence of Penal Code § 32 and the case law showing that California uses it to prosecute accessories after the fact when the underlying felony is a vehicle theft is sufficient to show that Vehicle Code § 10851(a) is not categorically overbroad. See Cal.Penal Code § 32; Cal.Penal Code § 972; Duenas-Alvarez, -U.S. at-, 127 S.Ct. at 822; Garnett, 61 P. at 1115.

We recently recognized that because Penal Code § 32 is a separate and distinct offense, convictions for the substantive offense do not include accessory after the fact liability for the purposes of the categorical test under Taylor. United States v. Gomez-Mendez, 486 F.3d 599, 605 (9th Cir.2007) (rejecting argument that a conviction for statutory rape under Penal Code § 261.5 is overbroad because it includes accessory after the fact liability). As a result, we concluded that a prior conviction for a substantive offense “could not be based on liability for acting as an accessory after the fact.” Id. (emphasis in original).

This position is consistent with our treatment of accessory after the fact liability under 18 U.S.C. § 3 when applying the *1096categorical approach in Olivera-Garcia v. INS, 328 F.3d 1083, 1086 (9th Cir.2003). In that case, we noted that a conviction under 21 U.S.C. § 841(a)(1) was “under the controlled substances statute, not under the accessory after the fact statute.” Because the judgment stated that the petitioner was convicted of violating the substantive drug statute, and not 18 U.S.C. § 3, language in the judgment stating that he was convicted of being an accessory after the fact to the manufacture of methamphetamine did not alter the statute of conviction. Id. Therefore, for the purposes of the categorical approach, the existence of a separate and distinct crime of being an accessory after the fact precludes inclusion of accessory after the fact liability as part of the statutory definition of the substantive offense.

3. California’s treatment of accessory after the fact liability is equivalent to liability under 18 U.S.C. § 3.

The federal accessory after the fact statute, 18 U.S.C. § 3, states in relevant part, “[wjhoever, knowing that an offense against the United States has been committed, receives, relieves, comforts or assists the offender in order to hinder or prevent his apprehension, trial or punishment, is an accessory after the fact.”5 In order to sustain a conviction under 18 U.S.C. § 3, the government must prove that a felony was committed, that the defendant had actual knowledge of the principal’s participation in the felony, and that the defendant assisted the principal in order to hinder or prevent the apprehension, trial, or punishment of the principal. See Hiram v. United States, 354 F.2d 4, 6 (9th Cir.1965) (discussing the “three essential elements” of 18 U.S.C. § 3). It is well established in this circuit that 18 U.S.C. § 3 is “a separate and distinct crime” just like a violation of Penal Code § 32.6 United States v. Jackson, 448 F.2d 963, 971 (9th Cir.1971).

As a result, an accessory after the fact cannot be convicted as a principal on the same set of facts as a matter of law. See United States v. Taylor, 322 F.3d 1209, 1212 (9th Cir.2003) (concluding that, “[a]l-though the evidence is sufficient to show that Taylor violated the plain language of the accessory after the fact statute, the statute does not apply to Taylor given that he was found guilty as a principal to the crime”). For example, although a participant in the escape phase of a crime may technically satisfy the plain language of 18 U.S.C. § 3, because the escape phase of the crime “is still part of the commission of the crime,” a defendant cannot be punished as an accessory after the fact.7 Id. California law treats the *1097escape or get-away phase exactly the same under Penal Code § 32 as the federal courts interpret 18 U.S.C. § 3.8 See People v. Mitchell, 183 Cal.App.3d 325, 228 Cal.Rptr. 286, 291-92 (Ct.App.1986) (refusing to impose accessory after the fact liability on defendant aiding and abetting escape from a robbery). The treatment of accessory after the fact liability under California Penal Code § 32 should be the same as the treatment of accessory after the fact liability under 18 U.S.C. § 3. In both the federal system and under California law, accessory after the fact liability must be separately alleged, proven, and punished. Therefore, there is no legitimate basis for holding that California law treats accessory after the fact liability differently from federal law.

C. Joyriding falls within the generic definition of a theft offense.

Vidal advances an alternative argument that Vehicle Code § 10851(a) is not categorically a theft offense because it includes joyriding. At the time Vidal entered his plea, California had a separate joyriding statute, Penal Code § 499b, which read in pertinent part:

Any person who shall, without the permission of the owner thereof, take any automobile, bicycle, motorcycle, or other vehicle or motorboat or vessel, for the purpose of temporarily using or operating the same, shall be deemed guilty of a misdemeanor.... 9

The distinction between Vehicle Code § 10851(a) and the joy-riding statute was that the joyriding statute required the intent to use or operate the vehicle without the permission of the owner, while “one *1098could conceivably ‘take’ a vehicle in violation of section 10851 without the purpose of using or operating it in violation of section 499b.” People v. Barrick, 33 Cal.3d 115, 187 Cal.Rptr. 716, 654 P.2d 1243, 1255-56 (Cal.1982). Section 499b prohibited not only “the taking of the automobile without permission,” but also required “that the taking be ‘for the purpose of temporarily using or operating the same.’ ” People v. Howard, 57 Cal.App.4th 323, 66 Cal.Rptr.2d 849, 852 (Ct.App.1997).

For the purposes of analyzing whether or not Vehicle Code § 10851(a) is categorically a theft offense, however, the distinction should not have any effect on our analysis.10 By adopting the generic definition of a theft offense, even temporary deprivations of the rights and benefits of ownership are categorically theft offenses. Espinoza-Cano, 456 F.3d at 1131. To be convicted of joyriding in violation of section 499b, one must still deprive the owner of the rights and benefits of ownership without his or her consent. See People v. Frye, 28 Cal.App.4th 1080, 34 Cal.Rptr.2d 180, 184-85 (Ct.App.1994) (discussing elements of the crime and CALJIC 16.305). By definition, joyriding deprives the owner of the use of his car. See People v. Allen, 21 Cal.4th 846, 89 Cal.Rptr.2d 279, 984 P.2d 486, 490 (Cal.1999) (noting that temporarily depriving owner of possession of a car is “joyriding”).

Whether or not joyriding is de minimus also should not affect our decision of whether or not the temporary deprivation of the owner’s rights of ownership is categorically a theft offense. Such speculation regarding the facts of the case is not allowed under the categorical approach. See Duenas-Alvarez, — U.S. at -, 127 S.Ct. at 822. I would conclude that because joyriding satisfies the generic definition of a theft offense, Vehicle Code § 10851(a) is not overbroad.

II.

We must heed the Supreme Court’s instructions in Duenas-Alvarez and apply accessory liability in a manner consistent with how California actually interprets and implements accessory liability under Vehicle Code § 10851(a) and Penal Code § 32. Vidal’s judgment of conviction was for violating Vehicle Code § 10851(a). In order to sustain a conviction for violating Vehicle Code § 10851(a), the government was required to prove that “1. The defendant took or drove someone else’s vehicle without the owner’s consent; and 2. When the defendant did so, (he/she) intended to deprive the owner of possession or ownership of the vehicle for any period of time.” CALCRIM 1820. Accessory after the fact liability is not part of the statutory definition of liability under Vehicle Code § 10851(a) because California has created a separate and distinct crime for being an accessory after the fact by enacting Penal Code § 32.

Vidal was convicted of a substantive offense under Vehicle Code § 10851(a). Therefore, as a matter of law, he could not be prosecuted as an accessory after the fact to the substantive offense, absent additional conduct of helping a principal after the crime. See Riley, 25 Cal.Rptr.2d at 679-80. As a result, I would conduct a simple inquiry into “whether the conduct encompassed by the elements of the of*1099fense, in the ordinary case,” James, — U.S. at-, 127 S.Ct. at 1597, is a theft offense and would conclude that Vehicle Code § 10851(a) satisfies the generic definition of a theft offense adopted by this court. Because Vidal’s prior conviction for violating Vehicle Code § 10851(a) is categorically a theft offense, I would affirm the 8-level enhancement applied under U.S.S.G. § 2L1.2(b)(l)(C).

. The Model Penal Code defines "deprive” as:

(a) to withhold property of another permanently or for so extended a period as to appropriate a major portion of its economic value, or with intent to restore only upon payment of reward or other compensation; or
(b) to dispose of the property so as to make it unlikely that the owner will recover it.

Model Penal Code § 223.0(1).

. Prior to the enactment of Penal Code § 971, which abolished the distinction between principals, accomplices and accessories before the fact, the California Penal Code stated that "[a]n accessory is he or she who stands by and aids, abets or assists; or who, not being present aiding, abetting or assisting, hath advised and encouraged the perpetration of the crime.” People v. Schwartz, 32 Cal. 160, 164 (1867) (quoting Act concerning Crimes § 11). Even after the legislature abolished the common law distinctions between aiding and abetting, accessories before the fact, and principals, the word “accessory” continued to be used to describe accessories before the fact. See People v. Nolan, 144 Cal. 75, 78-80, 77 P. 774 (1904) (discussing pleading requirements for accessories before the fact after amendment to Penal Code § 971); People v. Outeveras, 48 Cal. 19, 22-26 (1874) (discussing statutory definition of an accessory).

. The majority cites a 1946 case, People v. Slayden, 73 Cal.App.2d 345, 166 P.2d 304, 305 (Cal.Ct.App.1946), as evidence that California simply gives different jury instructions if the prosecution advances an accessory after the fact theory under Vehicle Code § 10851. The majority fails to recognize, however, that the Los Angeles County Superior Court issued the first set of standardized jury instructions in 1946, and that therefore the trial court in Slayden necessarily had to use a jury instruction that mirrored the language of the statute. See Robert G. Nieland, Pattern Jwy Instructions: A Critical Look at a Modem Movement to Improve the Jury System, 7, 74 (American Judicature Society 1979) (discussing history of CALJIC instructions).

. California Penal Code § 971 states:

The distinction between an accessory before the fact and a principal, and between principals in the first and second degree is abrogated; and all persons concerned in the commission of a crime, who by the operation of other provisions of this code are principals therein, shall hereafter be prosecuted, tried and punished as principals and no other facts need be alleged in any accusatory pleading against any such person than are required in an accusatory pleading against a principal.

. The remainder of 18 U.S.C. § 3 states:

Except as otherwise expressly provided by any Act of Congress, an accessory after the fact shall be imprisoned not more than one-half the maximum term of imprisonment or (notwithstanding section 3571) fined not more than one-half the maximum fine prescribed for the punishment of the principal, or both; or if the principal is punishable by life imprisonment or death, the accessory shall be imprisoned not more than 15 years.

. In addition, "the offense of being an accessory after the fact is clearly different from aiding and abetting,” because an accessory after the fact does not aid in the commission of the underlying offense or agree to commit the crime. United States v. Innie, 7 F.3d 840, 852 (9th Cir.1993); see also United States v. Garcia, 400 F.3d 816, 820 (9th Cir.2005) (concluding that aiding and abetting is a theory of liability, not a separate offense); Londono-Gomez v. INS, 699 F.2d 475, 476-77 (9th Cir.1983) (concluding that because aiding and abetting is not a separate offense, an indictment relying on aiding and abetting liability must include an indictment for a substantive offense).

.Because I conclude that a violation of Vehicle Code § 10851(a) is categorically a theft offense, I do not reach the modified categori*1097cal approach. I do note for the record, however, that nothing in the complaint suggests that Vidal was an accessory after the fact to a principal as required under any theory of accessory after the fact liability. See Prado, 136 Cal.Rptr. at 524 (noting necessity of a principal in order to be an accessory after the fact). "California has long recognized that a principal to a felony cannot become an accessory to that felony by attempting to make his own escape.” In re Eduardo M., 140 Cal. App.4th 1351, 44 Cal.Rptr.3d 875, 880 (Ct. App.2006) (collecting cases). The majority's conclusion that a complaint that does not name any principal that Vidal allegedly concealed, harbored, or aided violates "the common law rule that principals cannot be accessories to their own felonies.” Id.

. People v. Magusin, 120 Cal.App. 115, 7 P.2d 764, 765 (Cal.Ct.App.1932), is distinguishable because it sustained a conviction for aiding and abetting the theft, the theory approved by the Supreme Court in Duenas-Alvarez. I have a difficult time figuring out how a case revolving around whether the car connected to the defendant was actually the victim’s car can be interpreted as approving of a conviction under an accessory after the fact theory without any discussion of the defendant's state of mind, knowledge, or acts to harbor the perpetrator. See id. Given that the defendant in Magusin: drove a car accompanying the car his brother stole a short time after the car was taken, a short distance from where the car was stolen, participated in an act showing that he intended to deprive the owner of possession by exchanging the tires, and placed the original tires in the getaway car; an interpretation that defendant was aiding and abetting the continuing theft of the car is more consistent with California case law than an interpretation that the defendant was acting as an accessory after the fact of a completed auto theft. See People v. Kehoe, 33 Cal.2d 711, 204 P.2d 321, 324 (Cal.1949) (requiring evidence of a substantial break between the taking and use of an automobile to sustain separate convictions for taking and driving the car); People v. Mitchell, 228 Cal.Rptr. at 291-92.

. California amended Penal Code § 499b in 1996 to restrict its application to bicycles, motorboats or vessels. Ch. 660, § 1, 1996 Cal. Stat. The reason for the amendment was "to clarify and streamline existing law by deleting provisions in Section 499b of the Penal Code that are generally duplicative of provisions in subdivision (a) of Section 10851 of the Vehicle Code.” Id. § 3.

. Although the California courts have concluded that a violation of 499b is not necessarily a lesser included offense of a violation of Vehicle Code § 10851(a), they have concluded that when a defendant is charged with "driving and taking” a car, it becomes a lesser included offense. See People v. Moon, 37 Cal.4th 1, 32 Cal.Rptr.3d 894, 117 P.3d 591, 607 (Cal.2005) (discussing application of the accusatory pleading test to Vehicle Code § 10851(a) and Penal Code § 499b).