                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


CARLOS ALBERTO RENDON,                   No. 10-72239
                     Petitioner,
                                         Agency No.
                v.                      A092-080-719

ERIC H. HOLDER, JR., Attorney
General,                                  OPINION
                        Respondent.


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

                Argued and Submitted
          June 5, 2014—Pasadena, California

                Filed August 22, 2014

    Before: Stephen Reinhardt, Raymond C. Fisher,
        and Mary H. Murguia, Circuit Judges.

             Opinion by Judge Reinhardt
2                      RENDON V. HOLDER

                           SUMMARY*


                           Immigration

    The panel granted Carlos Alberto Rendon’s petition for
review of the Board of Immigration Appeals’ decision finding
him statutorily ineligible for cancellation of removal based on
his conviction for attempted second-degree burglary under
California state law.

    The panel held as an initial matter that California Penal
Code § 459 is not a categorical match to the federal generic
attempted theft offense because it punishes a broader range of
conduct. The panel held that the BIA impermissibly applied
the modified categorical approach to determine that Rendon’s
CPC § 459 conviction qualified as an attempted theft
aggravated felony. The panel held that under Descamps v.
United States, 133 S. Ct. 2276 (2013), CPC § 459 is
indivisible as a matter of law, and that in the language at
issue: “with intent to commit grand or petit larceny or any
felony,” the use of the disjunctive “or” between “grand or
petit larceny” and “any felony” did not render the statute
divisible. The panel wrote that it necessarily follows from
Richardson v. United States, 526 U.S. 813, 815 (1999), that
the Supreme Court regards elements as circumstances upon
which a jury must unanimously agree but regards means as
circumstances on which the jury may disagree yet still
convict. The panel held that determining whether a
disjunctively worded statute is divisible or not requires
looking to whether the state treats the parts of the statute on

  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                     RENDON V. HOLDER                          3

opposite sides of the “or” as alternative elements or
alternative means. The panel held that the substantive crimes
set forth in the language at issue are alternative means of
satisfying the intent element of CPC § 459, and the statute is
indivisible.


                         COUNSEL

Brigit G. Alvarez (argued), Law Office of Brigit G. Alvarez,
Los Angeles, California, for Petitioner.

Gary J. Newkirk (argued), Trial Attorney; Tony West,
Assistant Attorney General; Francis W. Fraser, Senior
Litigation Counsel; and Jacob A. Bashyrov, Trial Attorney,
United States Department of Justice, Civil Division,
Washington, D.C., for Respondent.


                          OPINION

REINHARDT, Circuit Judge:

    In this case, we consider whether a statute written in the
disjunctive is divisible in light of the Supreme Court’s
decision in Descamps v. United States, 133 S. Ct. 2276
(2013). The statutory text at issue is a different portion of the
same statute that the Supreme Court encountered in
Descamps — California Penal Code section 459 — which
states, inter alia, that “[e]very person who enters any . . .
vehicle . . . , when the doors are locked, . . . with intent to
commit grand or petit larceny or any felony is guilty of
burglary.” Here, the Board of Immigration Appeals (BIA)
determined that petitioner’s conviction under section 459
4                       RENDON V. HOLDER

qualified as an attempted theft offense, an aggravated felony
under 8 U.S.C. § 1101(a)(43)(U), by applying the modified
categorical approach. This approach is permissible only if
section 459 is divisible. We hold that the presence of an “or”
between “grand or petit larceny” and “any felony” does not,
in itself, render the statute divisible, and that, under
Descamps, section 459 is indivisible as a matter of law.
Therefore, the BIA’s use of the modified categorical
approach was impermissible, and we accordingly grant the
petition for review.

                          BACKGROUND

    Petitioner Carlos Alberto Rendon, a native and citizen of
Mexico, was admitted to the United States in 1989 as a
Lawful Permanent Resident (LPR). On July 29, 1999, the
Immigration and Naturalization Service (INS) lodged a
charge against petitioner based on his 1996 second-degree
burglary conviction in California state court under section
459/460(b) of the California Penal Code. The INS contended
that this offense qualified as an aggravated felony under
8 U.S.C. § 1101(a)(43)(G) because it was “a theft offense . . .
or burglary offense for which the term of imprisonment [was]
at least one year.” On this basis, the INS alleged that
petitioner was subject to removal under 8 U.S.C.
§ 1227(a)(2)(A)(iii) for having committed an aggravated
felony.1


    1
     The INS also filed a notice to appear alleging that petitioner was
subject to removal under 8 U.S.C. § 1227(a)(2)(A)(ii) because he had been
convicted of two other crimes which qualified as crimes of moral
turpitude. The Immigration Judge (IJ) ultimately agreed, and petitioner
did not challenge this finding in his most recent appeal to the BIA.
Therefore, petitioner’s removability is not at issue in this case. However,
                         RENDON V. HOLDER                                 5

    On August 24, 1999, the Immigration Judge (IJ) agreed
with the INS that petitioner was removable and denied
petitioner’s request for adjustment of status and a waiver
under 8 U.S.C. § 1182(h) because, according to the IJ,
petitioner had been convicted of an aggravated felony, which
rendered him ineligible for such a waiver. On appeal, the
Board of Immigration Appeals (BIA) remanded to the IJ for
consideration of a subsequent BIA opinion interpreting the
meaning of “burglary offense” in 8 U.S.C. § 1101(a)(43)(G),
as well as conflicting federal court cases concerning the
intersection between state burglary convictions and crimes of
violence, which are aggravated felonies under 8 U.S.C.
§ 1101(a)(43)(F).

    On remand, petitioner sought cancellation of removal
under 8 U.S.C. § 1229b(a). This time, the IJ determined that
petitioner’s 1996 second-degree burglary conviction was an
aggravated felony because it qualified under 8 U.S.C.
§ 1101(a)(43)(U) as an attempted theft offense.2 Commission
of an aggravated felony renders an alien statutorily ineligible
for cancellation of removal. 8 U.S.C. § 1229b(a)(3). As a
result, the IJ concluded that petitioner was statutorily




committing two crimes of moral turpitude does not render petitioner
statutorily ineligible for cancellation of removal. See 8 U.S.C. § 1229b(a).
   2
       8 U.S.C. § 1101(a)(43)(U) includes within the definition of an
aggravated felony “an attempt or conspiracy to commit an offense” in
8 U.S.C. § 1101(a)(43). Thus, a conviction for attempting to commit a
theft offense or a burglary offense — offenses which may be aggravated
felonies under 8 U.S.C. § 1101(a)(43)(G) — may be an aggravated felony
itself.
6                       RENDON V. HOLDER

ineligible for cancellation of removal.3 The BIA dismissed
petitioner’s appeal of the IJ’s decision. In support of its
decision, the BIA looked to the contents of petitioner’s plea
to determine that he had been convicted of California Penal
Code section 459 for “entering a locked vehicle with the
intent to commit larceny, an aggravated felony” (emphasis
added). Petitioner filed a timely petition with this Court for
review of the BIA’s decision that his conviction under
California Penal Code section 459 was an aggravated felony
that rendered him ineligible for cancellation of removal.

    We have jurisdiction under 8 U.S.C. § 1252(a)(2)(D) to
review questions of law, including whether a conviction
qualifies as an aggravated felony. Mandujano-Real v.
Mukasey, 526 F.3d 585, 588 (9th Cir. 2008). We review this
legal question de novo. Id.

                           DISCUSSION

    Petitioner was convicted of second-degree burglary under
California Penal Code section 459, which states, inter alia,
that “[e]very person who enters any . . . vehicle . . . , when the
doors are locked, . . . with intent to commit grand or petit
larceny or any felony is guilty of burglary.” This conviction
qualifies as an aggravated felony if petitioner’s violation was
an attempted “theft offense . . . or burglary offense for which
the term of imprisonment [was] at least one year.” 8 U.S.C.
§ 1101(a)(43)(G); id. § 1101(a)(43)(U). Descamps held that
a conviction under section 459 does not qualify as a
conviction for generic burglary. 133 S. Ct. at 2293. The BIA


    3
   According to the IJ, this determination also prevented petitioner from
obtaining voluntary departure under 8 U.S.C. § 1229c or relief under
former section 212(c) of the Immigration and Nationality Act.
                        RENDON V. HOLDER                               7

determined, however, that petitioner was ineligible for
cancellation of removal because his conviction under section
459 was for an attempted theft offense. We disagree.
Accordingly, we grant the petition and remand for further
proceedings consistent with this opinion.4

                                   I

    In order to determine whether a state conviction qualifies
as an attempted theft offense under the federal aggravated
felony statute, 8 U.S.C. § 1101(a)(43)(U), we use the
approach set forth in Taylor v. United States, 495 U.S. 575
(1990). See Gonzales v. Duenas-Alvarez, 549 U.S. 183,
185–87 (2007). That approach — deemed the “categorical
approach” — requires that courts “‘look only to the statutory
definitions’ — i.e., the elements — of a defendant’s prior
offenses, and not ‘to the particular facts underlying those
convictions’” when making a comparison between a prior
conviction and a federal, generic crime. Descamps, 133 S.
Ct. at 2283 (quoting Taylor, 495 U.S. at 600). If the state
statute under which the defendant was previously convicted
has the same elements as, or is narrower than, the federal,
generic crime, then the prior conviction can serve as an
aggravated felony predicate. Id. However, if the state
“statute sweeps more broadly than the generic crime, a
conviction under that law cannot count as an [aggravated
felony] predicate, even if the defendant actually committed
the offense in its generic form.” Id.




 4
   Because we grant the petition, we need not reach petitioner’s argument
that he could not be deemed ineligible for cancellation of removal based
on a ground that was not charged in his notice to appear.
8                      RENDON V. HOLDER

    For the limited purpose of “help[ing to] implement the
categorical approach,” id. at 2285, the Court has recognized
a “narrow range of cases” in which courts may apply the
“modified categorical approach,” id. at 2283 (quoting Taylor,
495 U.S. at 602) (internal quotation marks omitted). The
modified categorical approach allows courts to look beyond
the statutory text to a limited set of documents to determine
the elements of the state offense of which the defendant was
convicted when some alternative elements of the state crime
would match the federal, generic crime, and other alternative
elements would not. See id. at 2285. Recently, the Supreme
Court in Descamps explained that courts may use the
modified categorical approach only when a statute is divisible
— i.e., “lists multiple, alternative elements, and so effectively
creates ‘several different . . . crimes.’” Id. (quoting Nijhawan
v. Holder, 129 S. Ct. 2294, 2303 (2009)) (emphasis added).
The Court contrasted divisible statutes with those that are
indivisible — i.e., contain a “single, indivisible set of
elements” constituting a single crime — for which the
modified categorical approach is inappropriate. Id. at 2282.
This decision abrogated our earlier decision in United States
v. Aguila-Montes de Oca, 655 F.3d 915, 927–28 (9th Cir.
2011) (en banc), in which we had asserted that courts could
use the modified categorical approach when a statute is
indivisible, yet missing an element of the federal, generic
crime. Thus, after Descamps we may apply the modified
categorical approach only when the state statute at issue is
divisible.5 If the state statute at issue is overbroad and


    5
   Although Descamps discussed the issue of divisibility in the context
of a sentence enhancement under the Armed Career Criminal Act
(ACCA), we have applied Descamps in the context of collateral
immigration consequences. See, e.g., Coronado v. Holder, No. 11-72121,
2014 WL 3537027 (9th Cir. July 18, 2014) (applying Descamps to
                         RENDON V. HOLDER                                 9

indivisible, we may not apply the modified categorical
approach, and we must hold that petitioner has met his burden
for establishing that he was not convicted of an aggravated
felony.6

                                    II

                                    A.

   In this case, the BIA applied the modified categorical
approach to determine that petitioner’s conviction under


determine whether a state drug conviction rendered an alien inadmissible
for violating a law relating to a controlled substance as defined by federal
law); Aguilar-Turcios v. Holder, 740 F.3d 1294 (9th Cir. 2014) (applying
Descamps to determine whether an alien was removable for having
committed an aggravated felony). Thus, we have no doubt that Descamps
applies to this case.
 6
   Our decision in Young v. Holder, 697 F.3d 976, 989 (9th Cir. 2012) (en
banc), does not require a different result. Young held that, when a court
applies the modified categorical approach, a petitioner cannot demonstrate
eligibility for cancellation of removal on an inconclusive record because,
in such a case, it is both “possible that Petitioner’s prior conviction
constitutes an aggravated felony” and “possible that it does not.” Id. at
990. That is because the modified categorical approach allows a court
reviewing a prior conviction under a divisible statute to determine which
of “several different . . . crimes” was at issue. Descamps, 133 S. Ct. at
2285 (quoting Nijhawan, 129 S. Ct. at 2303) (internal quotation marks
omitted). In contrast, a defendant convicted of an indivisible statute has
necessarily committed the one crime at issue, and that crime is either a
match to the federal, generic crime, or it is not. The record is never
inconclusive. Thus, if the petitioner establishes that the statute under
which he was convicted is indivisible and punishes a broader range of
conduct than the federal, generic crime, it is never possible for that
conviction to qualify as an aggravated felony, and the petitioner has met
his burden. We need not, and do not, decide whether Young is
incompatible with Moncrieffe v. Holder, 133 S. Ct. 1678 (2013).
10                       RENDON V. HOLDER

California Penal Code section 459 was an attempted theft
offense, which is an aggravated felony under 8 U.S.C.
§ 1101(a)(43)(U) and 8 U.S.C. § 1101(a)(43)(G). We review
only whether petitioner’s conviction qualifies as an attempted
theft offense because “[o]ur review is limited to the BIA’s
decision and the grounds” upon which it found petitioner
ineligible for cancellation of removal. Vargas-Hernandez v.
Gonzales, 497 F.3d 919, 921–22 (9th Cir. 2007).7

      As an initial matter, California Penal Code section 459 is
not a categorical match to the federal, generic crime of an
attempted theft offense because section 459 punishes a
broader range of conduct than a generic attempted theft
offense. Section 459 states, inter alia, that “[e]very person
who enters any . . . vehicle . . . , when the doors are locked,
. . . with intent to commit grand or petit larceny or any felony
is guilty of burglary” (emphasis added). A generic attempted
theft offense includes two elements: “[1] an intent to commit
a theft offense . . . [and] [2] an overt act constituting a
substantial step towards the commission of the offense.”8
Ngaeth, 545 F.3d at 801. Our precedent squarely holds that
section 459 punishes a broader range of conduct than the


 7
  Indeed, the government’s argument is confined to whether petitioner’s
conviction qualifies as an attempted theft offense, rather than any other
aggravated felony.
 8
   Because we ultimately hold that section 459 (or at least the portion that
provides, “with intent to commit grand or petit larceny or any felony”) is
indivisible and that, as a result, a sentencing court cannot conclude that the
conduct underlying a particular conviction involved the intent to commit
theft, it follows that we also cannot conclude that a defendant took a
“substantial step” toward theft in any given case. Contra Ngaeth v.
Mukasey, 545 F.3d 796, 802 (9th Cir. 2008) (per curiam); Hernandez-
Cruz v. Holder, 651 F.3d 1094, 1104–05 (9th Cir. 2011).
                         RENDON V. HOLDER                                11

generic crime of an attempted theft offense because “[s]ection
459 may be violated by an attempt to commit a crime other
than theft — for example, by breaking into a vehicle with the
intent to commit arson.” Id.9

    Before Descamps, we would have applied the modified
categorical approach to determine whether the documents we
are permitted to examine in implementing that approach
reveal that petitioner intended to commit theft. See, e.g., id.
at 801–02. However, in light of Descamps, we cannot
employ that approach unless the statute is divisible. Here, we
conclude that it is not.

                                     B.

    Descamps addressed the proper method for distinguishing
divisible statutes from indivisible statutes. The critical
distinction is that while indivisible statutes may contain
multiple, alternative means of committing the crime, only
divisible statutes contain multiple, alternative elements of
functionally separate crimes. See Descamps, 133 S. Ct. at
2285 n.2; United States v. Cabrera-Gutierrez, No. 12-30233,
2014 WL 998173, at *8 n.16 (9th Cir. Mar. 17, 2014)
(“[U]nder Descamps, what must be divisible are the elements
of the crime, not the mode or means of proving an element.”).
This distinction explains why the modified categorical
approach is appropriate only for divisible statutes — because


 9
   It bears noting that this conclusion from Ngaeth is clearly correct. See
People v. Montoya, 874 P.2d 903, 911 n.8 (Cal. 1994) (explaining that the
text of section 459 and the cases interpreting it establish that a defendant
may be convicted under the statute for entering with the intent to commit
any felony, rather than only theft offenses, and listing cases that prove the
point).
12                   RENDON V. HOLDER

the modified categorical approach as applied to a divisible
statute may reveal which alternative element the state charged
and the jury or judge found when only some alternative
elements match the federal, generic crime. In other words, as
Descamps explained, when a state statute punishes a broader
range of conduct than a federal, generic crime, “only divisible
statutes enable a sentencing court to conclude that a jury (or
judge at a plea hearing) has convicted the defendant of every
element of the generic crime.” 133 S. Ct. at 2290. That is
because “[a] prosecutor charging a violation of a divisible
statute must generally select the relevant element from its list
of alternatives. And the jury, as instructions in the case will
make clear, must then find that element, unanimously and
beyond a reasonable doubt.” Id. (citation and footnote
omitted).

     While the jury faced with a divisible statute must
unanimously agree on the particular offense of which the
petitioner has been convicted (and thus, the alternative
element), the opposite is true of indivisible statutes; the jury
need not so agree. For example, if the statute at issue is
indivisible, the jury would not need to agree on the particular
substantive crime that the defendant intended as long as all
jurors find that the defendant intended to commit at least one
of “grand or petit larceny or any felony.” To illustrate this
point, the Descamps Court used an example from Aguila-
Montes where a state statute criminalized assault with a
“weapon,” while a federal enhancement statute applied only
if the defendant was convicted of assault with a gun. The
Court explained that “[a]s long as the statute itself requires
only an indeterminate ‘weapon,’ that is all the indictment
must (or is likely to) allege and all the jury instructions must
(or are likely to) mention. And most important, that is all the
jury must find to convict the defendant. The jurors need not
                     RENDON V. HOLDER                         13

all agree on whether the defendant used a gun or a knife or a
tire iron . . . , because the actual statute requires the jury to
find only a ‘weapon.’ And even if in many cases, the jury
could have readily reached consensus on the weapon used, a
later sentencing court cannot supply that missing judgment.”
Id. In other words, Descamps held that indivisible statutes
are indivisible precisely because the jury need not agree on
anything past the fact that the statute was violated. As long
as the defendant’s conduct violates the statute, the jury can
disagree as to how, and a later sentencing court cannot
conclude that the jury in fact agreed on the particular means
of commission.

    Of course, this logic need not be limited to statutes with
indeterminate words (e.g., “weapon”) that are only implicitly
divisible (“gun, knife, tire iron, etc.”). Any statutory phrase
that — explicitly or implicitly — refers to multiple,
alternative means of commission must still be regarded as
indivisible if the jurors need not agree on which method of
committing the offense the defendant used. Otherwise, the
Court’s express purpose for separating indivisible statutes
from divisible statutes — preventing sentencing courts from
finding facts on which a jury did not have to agree, rather
than elements on which a jury did have to agree — would be
undermined. To be clear, it is black-letter law that a statute
is divisible only if it contains multiple alternative elements,
as opposed to multiple alternative means. Id. at 2285. Thus,
when a court encounters a statute that is written in the
disjunctive (that is, with an “or”), that fact alone cannot end
the divisibility inquiry. Only when state law requires that in
order to convict the defendant the jury must unanimously
agree that he committed a particular substantive offense
contained within the disjunctively worded statute are we able
14                   RENDON V. HOLDER

to conclude that the statute contains alternative elements and
not alternative means.

     That the distinction between elements and means is
reflected in the requisite jury findings is well-established in
Supreme Court precedent. For example, in Richardson v.
United States, 526 U.S. 813, 815 (1999), the Court
encountered a federal statute forbidding any person from
engaging in a “continuing criminal enterprise,” which the
statute defined as involving a “continuing series of
violations.” The question at issue was whether the jury was
required to unanimously agree on which particular violations
constituted the “series of violations.” Id. at 816. The Court
explained that while a “a jury in a federal criminal case
cannot convict unless it unanimously finds that the
Government has proved each element,” a “federal jury need
not always decide unanimously . . . which of several possible
means the defendant used to commit an element of the
crime.” Id. at 817 (emphasis added). On the assumption that
three violations constitutes a “series,” the Court held that “[i]f
the statute creates a single element, a ‘series,’ in respect to
which individual violations are but the means, then the jury
need only agree that the defendant committed at least three of
all the underlying crimes the Government has tried to prove”
but “need not agree about which three,” while “if the statute
makes each ‘violation’ a separate element, then the jury must
agree unanimously about which three crimes the defendant
committed.” Id. at 818. It necessarily follows from
Richardson that the Supreme Court regards elements as those
circumstances on which the jury must unanimously agree,
while it regards means as those circumstances on which the
jury may disagree yet still convict. Indeed, the Descamps
Court cited Richardson for the proposition that “the only facts
the court can be sure the jury . . . found [unanimously and
                         RENDON V. HOLDER                                15

beyond a reasonable doubt] are those constituting elements of
the offense.” 133 S. Ct. at 2288 (citing Richardson, 526 U.S.
at 817) (emphasis added).10

     Both binding and persuasive precedent provide further
support for our conclusion that the distinction between
elements and means parallels the need for juror agreement.
In United States v. Cabrera-Gutierrez, we considered
whether an Oregon sexual abuse statute was divisible because
it covered sexual intercourse both where the victim, although
capable of consenting, does not consent, and where the victim
is incapable of consenting. 2014 WL 998173, at *5. We
explained that, under Descamps, “what must be divisible are
the elements of the crime, not the mode or means of proving
an element,” and the statute at issue was therefore indivisible
because the state in a case concerning this Oregon statute
“need[s to] prove only that a defendant has engaged in
intercourse with another and that the other ‘does not consent
thereto.’” Id. at *8 & n.16. In other words, the state does not
need to prove (and the judge or jury does not need to find)
one particular theory of non-consent, and as a result, “a
sentencing court cannot tell whether the jury or judge

  10
     The interplay between the majority and dissent in Descamps further
confirms our understanding of how to perform a proper divisibility
inquiry. The Descamps dissent characterized the majority opinion as
holding that a statute is divisible “only if the offense in question includes
as separate elements all of the elements of the generic offense,” and that
an “element” is “something on which a jury must agree by the vote
required to convict under the law of the applicable jurisdiction.” 133 S.
Ct. at 2296 (Alito, J., dissenting). While the majority contested the
dissent’s argument that the Court’s prior cases are inconsistent with this
method of distinguishing divisible statutes from indivisible statutes, the
majority did not contest the dissent’s characterization of how the majority
distinguishes divisible statutes from indivisible statutes. See 133 S. Ct. at
2285 n.2 (majority opinion).
16                       RENDON V. HOLDER

convicted a defendant of intercourse with a victim who did
not actually consent or a victim who lacked capacity to
consent.” Id. at *8.11 The Fourth Circuit has reasoned
similarly. See United States v. Royal, 731 F.3d 333, 341 (4th
Cir. 2013), cert. denied, 134 S. Ct. 1777 (2014) (holding that
“offensive physical contact” and “physical harm” are “merely
alternative means of satisfying a single element” of the

   11
      While we have found, in a few cases decided after Descamps, that
statutes written in the disjunctive are divisible without inquiring into the
need for juror unanimity, those cases are either distinguishable from the
present case or consistent with our approach. In two cases, it was
impossible for the state to allege and the jury to find that the defendant
violated the alternative parts of the statute simultaneously, whereas it is
certainly possible for the state to allege and the jury to find that a
defendant charged with violating section 459 had the intent to commit
both a theft offense and a non-theft felony following entry. See United
States v. Quintero-Junco, 754 F.3d 746, 752 (9th Cir. 2014) (a statute
punishing a person who “engag[es] in sexual contact with any person who
is fifteen or more years of age without consent of that person or with any
person who is under fifteen years of age if the sexual contact involves only
the female breast” (quoting Ariz. Rev. Stat. § 13-1404) (internal quotation
marks omitted)); Duenas-Alvarez v. Holder, 733 F.3d 812, 814–15 (9th
Cir. 2013) (a statute “impos[ing] criminal liability in the alternative on
principals as well as on accessories after the fact”). In Murillo-Prado v.
Holder, 735 F.3d 1152, 1157 (9th Cir. 2013) (per curiam), the Arizona
statute contained a list of alternative definitions of racketeering, each as
its own subsection of the statute. We relied on pre-Descamps Ninth
Circuit precedent (without mentioning Descamps) holding the modified
categorical approach applicable to the statute; there was no indication that,
under Arizona law, a jury could disagree regarding which portion of the
racketeering definition was at issue, yet still convict. Perhaps most telling
is Coronado v. Holder, 2014 WL 3537027, at *5 n.4, in which the
petitioner argued that a disjunctive statute contained alternative means,
rather than alternative elements, and we properly looked beyond the
statutory text to state case law and jury instructions to evaluate and
ultimately reject that contention. See also Ragasa v. Holder, 752 F.3d
1173, 1176 (9th Cir. 2014) (relying on Coronado to reach the same
conclusion regarding a similarly structured statute).
                    RENDON V. HOLDER                        17

Maryland assault statute, rather than alternative elements,
because “Maryland juries are not instructed that they must
agree ‘unanimously and beyond a reasonable doubt’ on
whether the defendant caused ‘offensive physical contact’ or
‘physical harm’ to the victim; rather, it is enough that each
juror agree only that one of the two occurred, without settling
on which”).

     Our conclusion here also mirrors the BIA’s understanding
of Descamps. After argument in this case, the BIA revisited
its method of determining whether a statute is divisible. See
Matter of Chairez, 26 I & N Dec. 349, 352–54 (BIA 2014)
(reconsidering Matter of Lanferman, 25 I & N Dec. 721 (BIA
2012), and ultimately “withdraw[ing] from that decision to
the extent that it is inconsistent with Descamps,” id. at 354).
The BIA explained that, after Descamps, a statute is divisible
only if, inter alia, “it lists multiple discrete offenses as
enumerated alternatives or defines a single offense by
reference to disjunctive sets of ‘elements,’ more than one
combination of which could support a conviction.” Id. at 353
(citing Descamps, 133 S. Ct. at 2281, 2283). Directly in line
with our approach in this case, the BIA further explained that
“an offense’s ‘elements’ are those facts about the crime
which ‘[t]he Sixth Amendment contemplates that a jury —
not a sentencing court — will find . . . unanimously and
beyond a reasonable doubt.’” Id. (quoting Descamps, 133 S.
Ct. at 2288). The BIA applied its new, post-Descamps
approach to the Utah statute at issue, a criminal statute
punishing certain discharges of a firearm which included a
mens rea element requiring that the defendant acted with
“intent, knowledge, or recklessness.” Id. at 352. Despite the
fact that the mental states in the statute were written in the
disjunctive, the BIA did precisely what we hold is necessary
when courts encounter a statute written in the disjunctive: it
18                        RENDON V. HOLDER

asked whether “Utah law requires jury unanimity regarding
the mental state with which the accused discharged the
firearm.” Id. at 354. The BIA correctly explained that “[i]f
Utah does not require such jury unanimity, then it follows
that intent, knowledge, and recklessness are merely
alternative ‘means’ by which a defendant can discharge a
firearm, not alternative ‘elements’ of the discharge offense.”
Id.

    In this case, we apply the Descamps method of
distinguishing divisible statutes from indivisible statutes to
California Penal Code section 459. Section 459 punishes
individuals who enter, inter alia, a locked vehicle12 with the
intent to commit a crime. As we explain below, the state does
not require that the prosecution prove and the jury
unanimously find that the defendant intended to commit any
particular offense following entry. Rather, it is sufficient that
the defendant had the requisite intent to commit larceny or
any felony, whether or not the jurors disagree regarding the
particular offense the defendant intended to commit. Thus,
we hold that the particular substantive crime the defendant
intended to commit is not an element of section 459; rather,
the various substantive crimes that the defendant may intend
to commit are simply alternative means of satisfying one
element — that of criminal intent to commit a listed offense
following entry. Accordingly, section 459 is indivisible.


  12
     In addition to people who enter locked vehicles, section 459 also
applies to “[e]very person who enters any house, room, apartment,
tenement, shop, warehouse, store, mill, barn, stable, outhouse or other
building, tent, vessel, . . . floating home, . . . railroad car, locked or sealed
cargo container, whether or not mounted on a vehicle, trailer coach, . . .
any house car, . . . inhabited camper, . . . aircraft . . . , or mine or any
underground portion thereof.”
                         RENDON V. HOLDER                                 19

                                     C.

    In sum, we determine whether a disjunctively worded
state statute is divisible or not by looking to whether the state
treats the parts of the statute on opposite sides of the “or” as
alternative elements or alternative means.13 In this case,
California state law is clear: the jury need not be unanimous14
regarding the particular offense the defendant intended to
commit in order to convict under section 459. All the
prosecution must prove is that the defendant intended to
commit an offense listed in the statute — namely, “grand or
petit larceny or any felony.” The jury need not agree on
which of the substantive offenses the defendant intended to
commit — only that he intended to commit an offense listed
in the statute. Therefore, the substantive crimes are
alternative means of satisfying the intent element of the
statute, and the statute is indivisible. As a result, we are
unable to conclude that petitioner was convicted of having the
intent to commit a theft offense rather than a non-theft felony.



   13
      While the Supreme Court reserved the question whether a court
seeking to determine a crime’s elements “should take account not only of
the relevant [state] statute’s text, but of judicial rulings interpreting it,”
Descamps, 133 S. Ct. at 2291, this court has looked to the state courts to
determine the elements of state law, see Banuelos-Ayon v. Holder,
611 F.3d 1080, 1084 (9th Cir. 2010). It is both consistent with Descamps
and most faithful to its reasoning to review state law regarding the
unanimity of jury verdicts for the purpose of determining whether a
disjunctively worded statute contains alternative elements or alternative
means. We need not, and do not, decide whether it is appropriate to
review state law to determine anything further when performing a
divisibility analysis in light of Descamps.
 14
    “In a [California] criminal case, a jury verdict must be unanimous.”
People v. Russo, 25 P.3d 641, 645 (Cal. 2001).
20                   RENDON V. HOLDER

    The first California case to address the issue of jury
unanimity regarding the defendant’s intent in section 459
cases was People v. Failla, 414 P.2d 39 (Cal. 1966). There,
the Supreme Court of California rejected the argument that it
was “necessary for all the jurors to agree on what particular
felony or felonies” the defendant intended at the time of
entry, reasoning instead that section 459 “sets forth only one
act which constitutes the offense, but that act may be
presented to the jury on several different ‘theories.’” Id. at
44. As a result, the court declared that “in prosecutions for
burglary . . . the jurors need not be instructed that to return a
verdict of guilty they must all agree on the specific ‘theory’
of the entry — i.e., what particular felony or felonies the
defendant intended at the time — provided they are told they
must be unanimous in finding that a felonious entry took
place.” Id. at 45.

    Relying on Failla, subsequent cases have made it clear
that the jury need not agree on whether a defendant charged
with violating section 459 had the intent to commit a theft
offense or a non-theft felony. For example, in People v.
Smith, 78 Cal. App. 3d 698 (Ct. App. 1978), the court cited
Failla for the proposition that the defendant “could have been
found guilty if six of the jurors agreed that defendant had the
intent to steal while the remaining six found that he had an
intent to commit an assault by means likely to produce great
bodily injury. . . . [A]s long as each of the twelve jurors finds
that defendant had the specific intent to commit either of the
two crimes mentioned, it is immaterial as to the division of
the jurors between the two intended crimes.” Id. at 708.
People v. Griffin, 90 Cal. App. 4th 741 (Ct. App. 2001),
reached the same conclusion and specifically rejected the
argument that because Failla did not involve any allegation
of an intent to commit theft, it was distinguishable from those
                         RENDON V. HOLDER                                21

cases that do include such an allegation. See id. at 752
(“[T]he fact that Failla did not involve theft as an alternative
theory of guilt does not provide a meaningful basis to
distinguish it from the facts of the . . . case.”).15 By now, the
rule concerning juror agreement regarding the defendant’s
intent in section 459 cases is so well-established that the
Supreme Court of California has used it as an example to
demonstrate the difference between “discrete crimes, which
require a unanimity instruction, and theories of the case,
which do not.” Russo, 25 P.3d at 646.

    California law overwhelmingly dictates the conclusion
that the jury in a case concerning an alleged violation of
section 459 need not be unanimous regarding whether the
defendant intended to commit a theft offense or any other
felony. Thus, the fact that section 459 contains two types of
offenses preceding an “or” and a general category of offenses
following the “or” is in itself of no significance. Because the
jury could convict a defendant of section 459 without
agreeing on whether the defendant had the intent to commit,
on the one hand, “grand or petit larceny,” or, on the other

 15
    In Griffin, the court explained that “[i]t has long been the general rule
in California . . . that when a single crime can be committed in various
ways, jurors are not required to unanimously agree upon the mode of
commission.” 90 Cal. App. 4th at 750 (citing People v. Sutherland,
17 Cal. App. 4th 602, 612 (Ct. App. 1993)). This rule is known as the
“Sullivan rule,” named for People v. Sullivan, 65 N.E. 989 (N.Y. 1903).
It holds that “where a statute prescribes disparate alternative means by
which a single offense may be committed, no unanimity is required as to
which of the means the defendant employed so long as all the members of
the jury are agreed that the defendant committed the offense as it is
defined by the statute.” Sutherland, 17 Cal. App. 4th at 613. It follows
that we must take great care when considering California state violations
as a prior offense because a disjunctively worded California statute may
simply be listing alternative means rather than alternative elements.
22                  RENDON V. HOLDER

hand, any non-theft felony, we (and the BIA) cannot
determine that the jury in such a case concluded, beyond a
reasonable doubt, that the defendant attempted to commit a
theft offense rather than a non-theft felony. As a result, the
language at issue — “with intent to commit grand or petit
larceny or any felony” — is indivisible, and the use of the
modified categorical approach is not permissible. See
Descamps, 133 S. Ct. at 2282.

                      CONCLUSION

    We hold that petitioner’s conviction under California
Penal Code section 459 cannot qualify as an attempted theft
offense under 8 U.S.C. § 1101(a)(43)(U) and therefore does
not render petitioner ineligible for cancellation of removal on
that basis. We therefore GRANT the petition for review,
REVERSE the decision of the BIA, and REMAND to the
BIA for further proceedings consistent with this opinion.

     PETITION GRANTED AND REMANDED.
