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Ninth Circuit: California Carjacking Not a Crime of Violence Post-Johnson

by Christopher Zoukis

The United States Court of Appeals for the Ninth Circuit ruled on January 29, 2018, that California’s carjacking law, Penal Code § 215(a), no longer constitutes a crime of violence under 8 U.S.C. § 1101(a)(43)(F) in light of the U.S. Supreme Court’s decision in Johnson v. United States, 559 U.S. 133 (2010).

In 1995, Roberto Solorio-Ruiz, a Mexican national, was convicted of carjacking and evading a police officer in violation of California law. He was sentenced to 21 years and four months in state prison. Thereafter, the United States sought to remove Solorio-Ruiz from the country, claiming that carjacking is a “crime of violence” and a “theft offense.” The government argued this aggravated felony subjected Solorio-Ruiz to removal under 8 U.S.C. § 1227(a)(2)(A)(iii).

An immigration judge agreed that carjacking amounted to an aggravated felony and that Solorio-Ruiz was thus deportable. The Board of Immigration Appeals (“BIA”) affirmed that carjacking was a crime of violence, but made no ruling as to whether it was a theft offense. Solorio-Ruiz appealed to the Ninth Circuit, and the Court reversed the BIA ruling.

Solorio-Ruiz argued that carjacking in violation of California law was no longer a crime of violence in light of the Supreme Court’s decision in Johnson. In that decision, the Supreme Court held that the physical force that a crime of violence involves must be “violent force—that is, force capable of causing physical pain or injury to another person.” Because carjacking under California law does not necessarily require the violent physical force described in Johnson, Solorio-Ruiz argued that it could not be a “crime of violence” post-Johnson.

The Ninth Circuit agreed. The Court applied the categorical approach to the statute, considering “whether every violation of the statute necessarily involves violent force.” A 2017 California Court of Appeal case clarifying the carjacking statute illustrated that it did not.

In People v. Hudson, 11 Cal. App. 5th 831(Ct. App. 2017), the court explained that California carjacking “requires only force in excess of that required to seize the vehicle”—however slight that may be. In Hudson, the only force involved was what was needed to drive the vehicle away at 5 to 10 miles per hour while a person banged on the trunk and then tried to grab the carjacker out of the car.

As such, the Ninth Circuit ruled that “[b]ecause California carjacking does not require the violent force that Johnson demands” a conviction under § 215(a) “does not qualify as a crime of violence.” In so holding, the Court overruled Nieves-Medrano v. Holder, 590 F.3d 1057 (9th Cir. 2010), which held to the contrary.

The Court noted that its decision regarding carjacking under California law does not overturn United States v. Gutierrez, 876 F.3d 1254 (9th Cir. 2017), which held that the federal offense of carjacking is a crime of violence under 18 U.S.C. § 924(c). That is because federal carjacking requires a taking “by force and violence” or “by intimidation,” which the Court said “obviously qualifies as a crime of violence under the Johnson standard.”

The Ninth Circuit concluded that California carjacking is not a crime of violence under 8 U.S.C. § 1101(a)(43)(F). However, the question of whether California carjacking is a theft offense under § 1101(a)(43)(G) remains an open question. Accordingly, the Court remanded the case for the BIA to consider that issue. See: Solorio-Ruiz v. Sessions, 881 F.3d 733 (9th Cir. 2018). 

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