                                                                            FILED
                            NOT FOR PUBLICATION
                                                                            DEC 28 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


ARMANDO VENTURA HEREDIA,                         No.   15-72580
AKA Armando Quintero,
                                                 Agency No. A041-105-074
              Petitioner,

 v.                                              MEMORANDUM*

JEFFERSON B. SESSIONS III, Attorney
General,

              Respondent.


                     On Petition for Review of an Order of the
                         Board of Immigration Appeals

                       Argued and Submitted April 20, 2017
                            San Francisco, California

Before: SCHROEDER and RAWLINSON, Circuit Judges, and STAFFORD,**
District Judge.

      Armando Ventura Heredia (Ventura), a native and citizen of Mexico and




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable William H. Stafford, Jr., United States District Judge
for the Northern District of Florida, sitting by designation.
lawful permanent resident, petitions for review of the decision of the Board of

Immigration Appeals (BIA) dismissing his appeal of an Immigration Judge’s (IJ)

decision finding him removable because he was convicted of two or more crimes

involving moral turpitude (CIMT).

      1. Ventura contends that California Penal Code (CPC) § 484(a) is overbroad

when compared to a generic larceny offense because § 484(a) criminalizes

temporary takings, and overbroad when compared to a generic fraud offense

because embezzlement may occur without misrepresentation and without benefit.

We have consistently held that a conviction under CPC § 484(a) is for a CIMT. See

e.g., Castillo-Cruz v. Holder, 581 F.3d 1154, 1160 (9th Cir. 2009); Flores Juarez

v. Mukasey, 530 F.3d 1020, 1022 (9th Cir. 2008); United States v. Esparza–Ponce,

193 F.3d 1133, 1136 (9th Cir. 1999). Additionally, we have held that

embezzlement, a crime which involves the intent to defraud, is a crime of moral

turpitude. See Delgado-Chavez v. I.N.S., 765 F.2d 868, 869 (9th Cir. 1985).

Moreover, the California statute explicitly proscribes conduct that is fraudulent,




                                          2
applying to circumstances in which a defendant “fraudulently appropriate[s]

property which has been entrusted to him.” Cal. Penal Code § 484(a).1

      2. Ventura contends that California infractions are not “convictions”

pursuant to 8 U.S.C. § 1101(a)(48)(A) because the factors articulated in Matter of

Eslamizar, 23 I. & N. Dec. 684 (BIA 2004), render infraction proceedings non-

criminal proceedings. We disagree. Infractions under California law give rise to

punishment in the form of fines. See Cal. Penal Code § 19.8(b) (“Except in cases

where a different punishment is prescribed, every offense declared to be an

infraction is punishable by a fine not exceeding two hundred fifty dollars ($250)”).

      Additionally, a defendant charged with an infraction may elect to have the

matter proceed as a misdemeanor, thereby triggering the right to a jury trial and to

counsel. See California Penal Code § 17(d)(1); see also People v. Smith, 205 Cal.

App. 4th Supp. 1, 4-5 (2012).

      Also, unlike the Oregon classification scheme at issue in Matter of

Eslamizar, which “define[d] crimes and violations in mutually exclusive terms,” 23



      1
        To the extent Ventura relies on People v. Talbot, 28 P.2d 1057 (Cal. 1934)
as evidence that the California Supreme Court has held that intent in an
embezzlement conviction may exist without false representations, his reliance is
misplaced. Citing the text of § 484, the California Supreme Court clarified that
“[f]rom these sections it clearly appears that fraudulent intent is an essential
element of the offense of embezzlement.” 28 P.2d at 1061.
                                          3
I. & N. Dec. at 687 (citation and internal quotation marks omitted), the California

classification scheme explicitly delineates infractions as crimes. See California

Penal Code § 16 (entitled “Crimes; kinds” and providing that “[c]rimes and public

offenses include . . . [i]nfractions.”); California Penal Code § 691(g)

(“‘Misdemeanor or infraction case’ means a criminal action in which a

misdemeanor or infraction is charged . . . ); California Penal Code § 804(b)

(“[P]rosecution for an offense is commenced” when a “complaint is filed charging

a misdemeanor or infraction”); People v. Waxler, 224 Cal. App. 4th 712, 715 n.1

(2014) (“An infraction, however, is still a ‘crime’ under Penal Code section 16.”).

      Finally, the burden of proof in California infraction proceedings is beyond a

reasonable doubt, see California Penal Code § 19.7.2

      3. Ventura asserts that California’s statute proscribing willful infliction of




      2
         The Board correctly determined that Ventura’s 1995 theft offense
adjudicated as an infraction was a “conviction” consistent with 8 U.S.C. §
1101(a)(48)(A). However, the BIA wrongly concluded that Ventura’s 2000 theft
infraction was a conviction. Following the judgment against Ventura in 2000 for an
infraction in violation of § 484(a), he was assessed a $30 fine which was then
suspended. Because he suffered no penalty, the infraction was not properly found
to be a conviction. See Retuta v. Holder, 591 F.3d 1181, 1188 (9th Cir. 2010). As
the 1995 theft offense and the corporal injury offense are both CIMTs, the error
was harmless, as only 2 convictions were required to render Ventura removable
under 8 U.S.C. § 1227(a)(2)(A)(ii).
                                           4
corporal injury, CPC § 273.5, does not equate to a CIMT as an assault offense

because § 273.5 is a general intent crime and the level of harm includes minor

injury. However, “[o]ur precedents make clear that although [CPC] § 273.5(a) is

not categorically a CIMT, it is a divisible statute for which a conviction under one

portion of the statute (corporal injury against a spouse) will qualify as a CIMT . . .”

Cervantes v. Holder, 772 F.3d 583, 588 (9th Cir. 2014). Because § 273.5(a) is

divisible, we apply the modified categorical approach to determine the identity of

the victim, to ascertain if Ventura was convicted of spousal abuse. See id. The state

charging document–the misdemeanor complaint–clarifies that the victim was

Ventura’s spouse. Therefore, Ventura’s conviction under CPC § 273.5 qualifies as

a CIMT. See id.

      4. Ventura contends that the term CIMT is unconstitutionally vague, but the

Supreme Court has long held that the term “crime involving moral turpitude” is not

unconstitutionally vague. See Jordan v. De George, 341 U.S. 223, 232 (1951). The

Supreme Court’s decision in Johnson v. United States, 135 S.Ct. 2551 (2015), did

not reopen the inquiry into the constitutionality of the term, as Johnson’s holding is

limited to the residual clause of the Armed Career Criminal Act. See id. at 2563.

      PETITION DENIED.




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