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9th Circuit: CA Solicitation To Commit Rape By Force And Solicitation To Commit Assault By Means Of Force Likely To Produce Great Bodily Injury Are Crimes Of Violence Aggravated Felonies

by César Cuauhtémoc García

In a decision released last week, the Ninth Circuit Court of Appeals held that the California offenses of solicitation to commit rape by force, Cal. Penal Code § 653f(c), and solicitation to commit assault by means of force likely to produce great bodily injury, Cal. Penal Code § 653f(a), are crimes of violence aggravated felonies. Prakash v. Holder, No. 07-72831, slip op. (Aug. 26, 2009) (Silverman, Clifton, and Smith). Judge Clifton wrote for the Court.

This case concerned an LPR who DHS alleged was removable pursuant to INA § 101(a)(43)(F), the provision that states that an aggravated felony is “a crime of violence (as defined in section 16 of Title 18, but not including a purely political offense) for which the term of imprisonment at least one year.” In turn, 18 U.S.C. § 16 defines a crime of violence as: “(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”

As in all COV analyses, the key to the Ninth Circuit's decision was an inquiry of whether the California statutes categorically fall into either of the two subsections of 18 U.S.C. § 16. In performing a categorical analysis, the Ninth Circuit first examined the text of the statutes under which Prakash was actually convicted. According to the Ninth Circuit, the relevant California statutes provide:

“(a) Every person who, with the intent that the crime be committed, solicits another . . . to commit or join in the commission of . . . assault . . . by means of force likely to produce great bodily injury . . . shall be punished by imprisonment . . . . (c) Every person who, with the intent that the crime be committed, solicits another to commit rape by force or violence . . . shall be punished by imprisonment . . . .” Cal. Penal Code § 653f.
The Court also noted that solicitation in California
“is complete once the verbal request is made with the requisite criminal intent. . . . . Thus, solicitation does not require the defendant to undertake any direct, unequivocal act towards committing the target crime; it is completed by the solicitation itself, whether or not the object of the solicitation is ever achieved, any steps are even taken towards accomplishing it, or the person solicited immediately rejects it.” Prakash, No. No. 07-72831, slip op. at 11793 (quoting People v. Wilson, 114 P.3d 758, 771 (Cal. 2005)).
The Ninth Circuit concluded that neither solicitation to commit rape by force, Cal. Penal Code § 653f(c), nor solicitation to commit assault by means of force likely to produce great bodily injury, Cal. Penal Code § 653f(a), have as an element use, attempted use, or threatened use of physical force as required by 18 U.S.C. § 16(a). Accordingly, the Court held that these offenses do not constitute a crime of violence under § 16(a). Prakash, No. No. 07-72831, slip op. at 11793.

The Court then turned to the definition of COV provided in 18 U.S.C. § 16(b). Prakash apparently conceded that his offenses entailed “a substantial risk that physical force against the person or property of another may be used.” Prakash, No. No. 07-72831, slip op. 11793. Rather, he contended only that the offenses did not entail that force to be used “in the course of committing the offense” of solicitation. Prakash, No. No. 07-72831, slip op. at 11793. In effect, he argued that the offense of solicitation does not require the use of any force whatsoever, thus physical force was not used in the commission of the solicitation offense.

The Ninth Circuit disagreed. Relying on the Third Circuit's decision in Ng v. Attorney General, 436 F.3d 392 (3d Cir. 2006), held that 18 U.S.C. § 16(b) “turns on the risk of physical force as a consequence of the criminal conduct at issue, not on the timing of the force.” Prakash, No. No. 07-72831, slip op. at 11794. According to the Ninth Circuit, “It is the risk of violence flowing from a given crime that this statute is concerned with, not necessarily when in a chronological sequence the violence occurs.” Prakash, No. No. 07-72831, slip op. at 11794-95. As such, the Court concluded that these California statutes are COVs because rape and assault inherently present a substantial risk of violence. Prakash, No. No. 07-72831, slip op. at 11794.

This will be a tough case to get around.


About The Author

César Cuauhtémoc García is an attorney at the Law Offices of Raúl García & Associates. He is a graduate of Brown University and Boston College Law School and a member of the State Bar of Texas. Prior to joining the Law Offices of Raúl García & Associates, César served as a law clerk. César's articles have appeared in academic journals published by the law schools at Boston College, Loyola University New Orleans, Notre Dame, Seattle University, and St. Thomas University. He has also been published in Alternet, Adbusters Magazine, Monthly Review, and Z Magazine.


The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.


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