                       FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


 HECTOR GIOVANNI RAMIREZ,                               No. 08-72896
                      Petitioner,
                                                        Agency No.
                        v.                             A043-733-743

 LORETTA E. LYNCH, Attorney
 General,                                                 OPINION
                       Respondent.


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

                  Argued and Submitted
          November 20, 2014—Pasadena, California

                       Filed January 20, 2016

   Before: Kim McLane Wardlaw and Richard A. Paez
 Circuit Judges and Matthew F. Kennelly,* District Judge.

                       Opinion by Judge Paez




  *
     The Honorable Matthew F. Kennelly, District Judge for the U.S.
District Court for the Northern District of Illinois, sitting by designation.
2                       RAMIREZ V. LYNCH

                           SUMMARY**


                            Immigration

    The panel granted Hector Giovanni Ramirez’s petition for
review of the Board of Immigration Appeals’ decision that
his conviction for felony child abuse under California Penal
Code § 273a(a) constitutes a crime of violence under 18
U.S.C. § 16 and is therefore an aggravated felony.

    The panel held that § 273a(a) does not qualify as a
categorical crime of violence because it is broader than the
generic federal definition in 18 U.S.C. § 16. The panel also
found that § 273a(a) is not a divisible statute, because the
alternative mens rea requirements are not elements but are
rather alternative means for accomplishing a single
indivisible crime. The panel thus found that Ramirez’s
conviction does not constitute an aggravated felony.


                             COUNSEL

Anna Benvenue (argued) and Robert B. Jobe, Law Office of
Robert B. Jobe, San Francisco, California, for Petitioner.

Anh-Thu P. Mai-Windle (argued), Senior Litigation Counsel
and Thomas B. Fatouros, Senior Litigation Counsel, United
States Department of Justice, Office of Immigration
Litigation, Washington, D.C.; Tony West, Assistant Attorney


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

General, United States Department of Justice, Civil Division,
Washington, D.C., for Respondent.


                        OPINION

PAEZ, Circuit Judge:

    Hector Giovanni Ramirez petitions for review of the
Board of Immigration Appeals’s (“BIA”) decision that his
conviction under California Penal Code section 273a(a) for
felony child abuse constitutes a crime of violence under
18 U.S.C. § 16(a) and (b) and therefore qualifies as an
aggravated felony under 8 U.S.C. § 1101(a)(43)(F). We
conclude that section 273a(a) is not a categorical crime of
violence and is not divisible. We thus agree with Ramirez
that his conviction does not constitute an aggravated felony,
and grant the petition and remand.

                             I.

                             A.

    Ramirez is a native and citizen of El Salvador. He
immigrated to the United States as a lawful permanent
resident in 1992, and all of his immediate family members are
U.S. citizens. Ramirez graduated from high school in the
United States and subsequently enlisted in the U.S. Navy,
serving for four years.

    In February 2000, Ramirez was convicted of felony child
abuse, in violation of section 273a(a), and was sentenced to
8 years and 4 months of imprisonment. Ramirez appealed his
conviction, which the California Court of Appeal affirmed.
4                    RAMIREZ V. LYNCH

    The Department of Homeland Security commenced
removal proceedings against Ramirez in February 2007,
alleging that he was subject to removal from the United States
under 8 U.S.C. § 1227(a)(2)(A)(iii) as an alien convicted of
a “crime of violence,” which is a deportable “aggravated
felony” under 8 U.S.C. § 1101(a)(43)(F) and 18 U.S.C. § 16.
The immigration judge found him removable as charged and
ordered him removed. Ramirez appealed to the BIA, arguing
that his conviction did not constitute a crime of violence and
therefore did not constitute an aggravated felony. The BIA
affirmed the IJ, concluding that a) section 273a(a) is a
divisible statute; and b) it contained a “direct infliction”
prong, which incorporated a mens rea element of general
intent, and was therefore a categorical match for the federal
definition of a crime of violence. The BIA, employing the
modified categorical approach, examined the records of
conviction contained in the administrative record and
concluded that Ramirez had been convicted of the direct
infliction prong. Ramirez filed a timely petition for review.

    Although we lack jurisdiction to review the final orders
of removal of aliens convicted of certain crimes, 8 U.S.C.
§ 1252(a)(2)(C), we retain jurisdiction to determine our own
jurisdiction. Therefore, when the issue at hand is whether an
alien has committed an aggravated felony, “the jurisdictional
question and the merits collapse into one.” See Ye v. INS,
214 F.3d 1128, 1131 (9th Cir. 2000). Where, as here, the
BIA conducts an independent review of the IJ’s findings, we
review the BIA’s decision and not that of the IJ. Romero-
Ruiz v. Mukasey, 538 F.3d 1057, 1061 (9th Cir. 2008).

   “We do not defer [under Chevron U.S.A., Inc. v. Natural
Resources Defense Council, Inc., 467 U.S. 837 (1984)] to
BIA interpretations of state law or of provisions of the federal
                         RAMIREZ V. LYNCH                                 5

criminal code referenced within, but not part of, the
Immigration and Nationality Act,” (INA) including 18 U.S.C.
§ 16. Ortega-Mendez v. Gonzales, 450 F.3d 1010, 1014 (9th
Cir. 2006) (citing Parilla v. Gonzales, 414 F.3d 1038, 1041
(9th Cir. 2005)). Therefore, we review de novo the decision
of the BIA.

                                    B.

    To assess whether a state conviction qualifies as an
aggravated felony, we generally employ the “categorical
approach” to determine whether the state offense matches the
“generic” federal definition of the pertinent offense listed in
the INA: here, a crime of violence under 18 U.S.C. § 16(a) or
(b).1 Moncrieffe v. Holder, 133 S. Ct. 1678, 1684 (2013).
We do so by “compar[ing] the elements of the statute of
conviction with a federal definition of the crime to determine
whether conduct proscribed by the statute is broader than the
generic federal definition.” Rodriguez-Castellon v. Holder,
733 F.3d 847, 853 (9th Cir. 2013) (internal quotation marks
and citation omitted). In making this comparison, we must
rely exclusively on the elements of the two crimes, “[b]ecause
we examine what the state conviction necessarily involved,
not the facts underlying the case, [and so] must presume that
the conviction ‘rested upon [nothing] more than the least of
th[e] acts’ criminalized.” Moncrieffe, 133 S. Ct. at 1684

 1
    In Dimaya v. Lynch, 803 F.3d 1110 (9th Cir. 2015), petition for reh’g
en banc filed (Nov. 18, 2015), we recently held that 18 U.S.C. § 16(b) is
unconstitutionally vague under Johnson v. United States, 135 S. Ct. 2551
(2015). The opinion in Dimaya was filed after briefing and oral argument
in this case, and the parties did not argue that the definition of “crime of
violence” articulated in 18 U.S.C. § 16(b) was void for vagueness.
Because we grant the petition on other grounds, we do not address the
validity of 18 U.S.C. § 16(b) in this opinion.
6                    RAMIREZ V. LYNCH

(emphasis added). We “then determine whether even those
acts are encompassed by the generic federal offense.” Id.;
Descamps v. United States, 133 S. Ct. 2276, 2283 (2013)
(“The key . . . is elements, not facts.”).

    In identifying the elements of the statute of conviction, we
look not only to the text of the statute, but also to how state
courts have interpreted and applied the statute. Covarrubias
Teposte v. Holder, 632 F.3d 1049, 1054 (9th Cir. 2011). We
must determine whether there exists “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.” Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193
(2007). Additionally, if the federal generic offense is not
itself a crime, but rather a classification of crimes, like
“crime[s] of violence,” then we also compare the crime of
conviction with other crimes determined to fall within that
classification. Cerezo v. Mukasey, 512 F.3d 1163, 1166 (9th
Cir. 2008). If, after conducting this categorical analysis, we
conclude that the state statute of conviction criminalizes more
conduct than the federal generic offense, then the state
conviction does not fall within the federal definition, and will
not qualify as an aggravated felony crime of violence for
immigration purposes. See Descamps, 133 S. Ct. at 2283.

    In a “narrow range of cases,” when the statute at issue is
divisible, we may employ a “modified categorical approach.”
Id. at 2283–85 (citation omitted). A divisible statute lists
alternative sets of elements, in essence “several different
crimes.” Id. at 2284. “If at least one, but not all of those
crimes matches the generic version, a court needs a way to
find out which the defendant was convicted of.” Id. at 2285.
In these instances, we may look beyond the elements of the
statute to the documents of conviction, i.e., to “the state
                     RAMIREZ V. LYNCH                         7

charging document, a signed plea agreement, jury
instructions, guilty pleas, transcripts of a plea proceeding and
the judgment,” to determine whether the petitioner was
convicted of a set of elements that falls within the generic
definition. Fernandez-Ruiz v. Gonzales, 466 F.3d 1121, 1132
(9th Cir. 2006) (citing Hernandez-Martinez v. Ashcroft,
343 F.3d 1075, 1076 (9th Cir. 2003)). The modified
categorical approach is thus “a tool” that allows us to apply
the categorical approach. Descamps, 133 S. Ct. at 2285.
Moreover, “[i]t retains the categorical approach’s central
feature: a focus on the elements, rather than the facts, of a
crime,” as well as its “basic method.” Id.

   With these principles in mind, we first examine the
generic federal definition of a crime of violence under
18 U.S.C. § 16, and then turn to section 273a(a) of the
California Penal Code.

                              II.

     The initial briefing in this case took place before the
Supreme Court issued its opinions in Moncrieffe and
Descamps, and before we issued our opinion in Rendon v.
Holder, 764 F.3d 1077 (9th Cir. 2014). While Ramirez
initially agreed that the modified categorical approach was
appropriate, he now contends that section 273a(a) is
indivisible and categorically is not a crime of violence. The
parties filed supplemental briefs, which we have duly
considered, addressing the impact of these decisions on
Ramirez’s case.

    The government does not dispute that section 273a(a) is
not a categorical match to the federal generic definition of a
crime of violence. Instead, the government argues, as it has
8                    RAMIREZ V. LYNCH

throughout, that section 273a(a) is a divisible statute, and
that we should therefore apply the modified categorical
approach. The government further contends that the court
may determine from documents in the administrative record
that Ramirez was convicted of the direct infliction prong of
section 273a(a), which provides criminal penalties for any
person who, “under circumstances or conditions likely to
produce great bodily harm or death . . . inflicts [upon a child]
unjustifiable physical pain or mental suffering.” The
government argues that this prong falls within the generic
definition of a “crime of violence” under both 18 U.S.C.
§ 16(a) and (b).

    The federal generic crime at issue, § 16, defines a “crime
of violence” as either:

       (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.

In Leocal v. Ashcroft, the Supreme Court determined that
“‘use’ of force” signifies intentional conduct—“active
employment”—and encompasses a mens rea element greater
than negligence. 543 U.S. 1, 9–10 (2004). The petitioner in
Leocal had been convicted of drunk driving, and the Court
held that this conduct could not fall within either § 16(a) or
(b), because § 16(b), like § 16(a), does not encompass
                     RAMIREZ V. LYNCH                         9

negligent conduct. Id. at 9–11. Rather, “[t]he reckless
disregard in § 16 relates not to the general conduct or to the
possibility that harm will result from a person’s conduct, but
to the risk that the use of physical force against another might
be required in committing a crime.” Id. at 10 (footnote
omitted). A person who drives while intoxicated incurs a
substantial risk that people in the vicinity will experience
force. Id. However, even in the event that the drunk driver’s
victims experienced force, the driver could not be said to
have “used” that force. Id. at 10–11. Nor does the drunk
driver intend to accomplish some criminal purpose and
foresee the risk of force that purpose entailed. Id. Thus, the
probability that victims of the crime will experience force
does not alone render criminal conduct a “crime of violence.”
Id.

    Following Leocal, in Fernandez-Ruiz, we held that
“offenses committed through reckless, or grossly negligent,
use of force” likewise cannot constitute “crimes of violence,”
under either § 16(a) or (b). 466 F.3d at 1132. Recklessness,
though more culpable than negligence, does not encompass
the level of intent required to meet the definition of “‘use’ of
force” laid out by the Court in Leocal. Moreover, although
it is not entitled to deference, the BIA agreed with our
interpretation that 18 U.S.C. § 16 does not encompass crimes
with mens rea elements of recklessness or negligence in its
recent decision, Matter of Chairez-Castrejon, 26 I. & N. Dec.
349, 352–53 (BIA 2014), vacated in part on other grounds,
26 I. & N. Dec. 478 (BIA 2015). Thus, in order for a
person’s conviction to qualify as a crime of violence, he or
she must have “use[d] force” with a mens rea that
incorporates a degree of intent greater than does negligence
or recklessness.
10                   RAMIREZ V. LYNCH

                              III.

                              A.

    Turning to the state statute at issue, California Penal Code
section 273a(a) provides:

        (a) Any person who, under circumstances or
        conditions likely to produce great bodily harm
        or death, [1] willfully causes or permits any
        child to suffer, or [2] inflicts thereon
        unjustifiable physical pain or mental
        suffering, or [3] having the care or custody of
        any child, willfully causes or permits the
        person or health of that child to be injured, or
        [4] willfully causes or permits that child to be
        placed in a situation where his or her person
        or health is endangered, shall be punished by
        imprisonment in a county jail not exceeding
        one year, or in the state prison for two, four,
        or six years.

(brackets and numbers added). It is undisputed here that
section 273a(a) criminalizes conduct that would not
necessarily entail any affirmative “use” of force, and
encompasses passive, negligent conduct. For example, the
statute criminalizes conduct that “permits any child to suffer,”
“permits the person or health of that child to be injured,” and
“permits that child to be placed in a situation where his or her
person or health is endangered.” California case law
confirms that section 273a(a) is an “omnibus statute,”
meaning that a violation “can occur in a wide variety of
situations: the definition broadly includes both active and
passive conduct, i.e., child abuse by direct assault and child
                     RAMIREZ V. LYNCH                        11

endangering by extreme neglect.” People v. Sargent,
970 P.2d 409, 414–15 (Cal. 1999) (quoting People v. Smith,
678 P.2d 886, 890–91 (Cal. 1984)).

    Although section 273a(a) requires a mens rea of
“willful[ness]” for the three prongs of the statute that
criminalize indirect infliction of harm or passive conduct, the
California Supreme Court has interpreted “willful[ness]” in
this context to require proof only of criminal negligence.
People v. Valdez, 42 P.3d 511, 519–20 (Cal. 2002) (holding
that criminal negligence is the appropriate standard for the
indirect infliction prongs of section 273a(a), and explaining
that “[w]e do not think the Legislature’s use of the word
‘willful’ is inconsistent with a criminal negligence standard”);
see also People v. Peabody, 119 Cal. Rptr. 780 (Cal. Ct. App.
1975), cited with approval by Walker v. Superior Court,
763 P.2d 852, 866–67, 880 (Cal. 1988). Because willfulness
under section 273a(a) does not require greater proof of
culpability than criminal negligence, willfulness in this
context does not meet the definition of “‘use’ of force”
elucidated by the Court in Leocal. 543 U.S. at 9–10; see also
Fernandez-Ruiz, 466 F.3d at 1132. A review of California
case law confirms that courts have applied section 273a(a) to
criminally negligent conduct. See, e.g., People v. Kinkead,
96 Cal. Rptr. 2d 121 (Cal. Ct. App. 2000) (affirming the
conviction of a defendant who fell asleep next to his
three-year-old daughter, after ingesting methamphetamine,
marijuana, and alcohol and being up for days, and
asphyxiated her); People v. Toney, 90 Cal. Rptr. 2d 578 (Cal.
Ct. App. 1999) (affirming the conviction of a defendant who
left several containers of highly flammable and caustic
chemicals on the floor of a residence inhabited by his wife’s
six-year-old son). Thus, we agree with the government that
section 273a(a) is not a categorical match to the federal
12                   RAMIREZ V. LYNCH

generic definition of a crime of violence because it
criminalizes conduct that falls outside this definition.

    While section 273a(a) is not categorically a crime of
violence, the indirect and direct infliction prongs of the
statute are phrased in the disjunctive. Therefore, we next
consider whether section 273a(a) is divisible. Descamps,
133 S. Ct. at 2284–85; see also Medina-Lara v. Holder,
771 F.3d 1106, 1112 (9th Cir. 2014). We hold that it is not.

                              B.

    In Descamps, the Supreme Court clarified that 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.” 133 S. Ct. at 2290 (emphasis
added) (citation and footnote omitted). Applying Descamps,
we recently explained that “[t]he 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.” Rendon, 764 F.3d at 1084–85. Therefore, the key
question we must ask when determining a statute’s
divisibility is whether a jury would have to be unanimous in
finding those separate elements. Chavez-Solis v. Lynch,
803 F.3d 1004, 1013–14 (9th Cir. 2015); Lopez-Valencia v.
Lynch, 798 F.3d 863, 868 (9th Cir. 2015); Rendon, 764 F.3d
at 1084–85. “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
                      RAMIREZ V. LYNCH                         13

jury did have to agree—would be undermined.” Rendon, 764
F.3d at 1085–86.

    In Almanza-Arenas v. Lynch, we recently outlined a three-
step process for conducting this divisibility analysis under
Descamps. No. 09-71415, slip op. at 10–24 (9th Cir. Dec. 28,
2015). First, we examine the text of the statute of conviction
to determine whether it contains multiple crimes with distinct
elements, or instead describes alternative means for
accomplishing a single crime. We next examine the
conviction documents to determine whether we may confirm
our statutory analysis. Finally, we verify that our reading is
consistent with the way in which state courts have construed
the statute of conviction.

    We turn first to the statutory text. The first part of section
273a(a) requires that the conduct at issue be done “under
circumstances or conditions likely to produce great bodily
harm or death.” The second part of the statute contains four
prongs, worded in the disjunctive, which enumerate the ways
in which a person can criminally abuse or endanger a child.
Although this part of the statute is worded in the disjunctive,
“[t]he mere use of the disjunctive term ‘or’ does not
automatically make a statute divisible.” Almanza-Arenas,
No. 09-71415, slip op. at 16 n.11. Here, the text of section
273a(a) suggests that the four prongs constitute separate
means of committing a single offense. However, because the
text of the statute is not clear on its face, we turn to the
available conviction documents since such documents may
disclose whether the statute is divisible. See id. at 14.

    Where, as here, the defendant was tried and convicted by
a jury, we look first to the charging document and jury
instructions. See Taylor v. United States, 495 U.S. 575, 602
14                       RAMIREZ V. LYNCH

(1990); see also Shepard v. United States, 544 U.S. 13, 16
(2005). The charging document—an Information—draws no
distinction between the direct and indirect infliction prongs of
section 273a(a). The Information alleges three separate
violations of section 273a(a), two of which occurred on the
same day, with each count alleging an enhancement under
California Penal Code section 12022.7(a). Each count simply
repeats the text of the statute, listing all four prongs and
alleging violations of each. The abstract of judgment
similarly does not draw a distinction between the indirect and
direct infliction prongs. It succinctly records that Ramirez
was convicted of three violations of section 273a(a), each
with a section 12022.7(a) enhancement.2 The administrative


  2
    Ramirez received a statutory sentence enhancement under California
Penal Code section 12022.7(a), which is reflected in the abstract of
judgment, and which the government argues establishes that Ramirez was
convicted of a crime of violence once the modified categorical approach
is applied. As we conclude that section 273a(a) is indivisible, we decline
to examine the sentence enhancement, which is not a “crime” of which
Ramirez was “convicted” for the purposes of 8 U.S.C.
§ 1227(a)(2)(A)(iii). However, even were we to consider it, section
12022.7(a) does not meet the definition of a crime of violence either, as
it has clearly been applied to defendants who committed crimes recklessly
or negligently. See People v. Guzman, 91 Cal. Rptr. 2d 885, 886–87 (Cal.
Ct. App. 2000) (applying section 12022.7(a) in a case where the defendant
had been convicted of driving under the influence); see also People v.
Arndt, 90 Cal. Rptr. 2d 415, 419 (Cal. Ct. App. 2000) (imposing an
enhanced sentence under section 12022.7(a) on a man convicted of felony
driving under the influence of a drug and transporting cocaine); People v.
Sainz, 88 Cal. Rptr. 2d 203, 207 (Cal. Ct. App. 1999) (affirming an
enhancement under section 12022.7 on a man convicted of driving under
the influence and stating: “In most instances, when a defendant driving
under the influence of alcohol or drugs causes great bodily injury, he or
she will ‘personally inflict[]’ it” within the meaning of section 12022.7).
Section 12022.7(a) thus clearly falls outside the definition of “crime of
violence.”
                     RAMIREZ V. LYNCH                        15

record in this case does not contain the trial court’s jury
instructions. However, there was a model jury instruction in
place at the time of Ramirez’s conviction, California Jury
Instructions–Criminal (CALJIC) No. 9.37. As explained in
detail below, this pattern jury instruction did not require
unanimity as to which prong of the statute the defendant
violated.

    Finally, we examine California state law, including model
jury instructions, to confirm that the statute is not divisible.
Under the California constitution, “[i]n a criminal case, a jury
verdict must be unanimous. . . . [and] the jury must agree
unanimously the defendant is guilty of a specific crime.”
People v. Russo, 25 P.3d 641, 645 (Cal. 2001). Therefore,
“when the evidence suggests more than one discrete crime,
either the prosecution must elect among the crimes or the
court must require the jury to agree on the same criminal act.”
Id. But, “where the evidence shows only a single discrete
crime but leaves room for disagreement as to exactly how that
crime was committed or what the defendant’s precise role
was, the jury need not unanimously agree on the basis or . . .
the ‘theory’ whereby the defendant is guilty.” Id. (emphasis
added). Thus, the California Supreme Court’s distinction
between “theories” and “elements” mirrors the United States
Supreme Court’s distinction between “alternative means” and
“elements.”

    There is an exception to the juror unanimity requirement,
for a “continuous course of conduct.” In the context of
section 273a(a), a prosecutor can allege a pattern of abuse,
and, in such a case, the jury need not agree unanimously as to
which specific acts the defendant committed within that
pattern. People v. Ewing, 140 Cal. Rptr. 299, 301 (Cal. Ct.
App. 1977). “Although the child abuse statute may be
16                  RAMIREZ V. LYNCH

violated by a single act, more commonly it covers repetitive
or continuous conduct.” Id. (citation omitted).

    A California Court of Appeal case, People v. Vargas,
251 Cal. Rptr. 904 (Cal. Ct. App. 1988), illustrates how
“theories,” as opposed to elements, and the continuous course
of conduct exception work in a section 273a(a) prosecution.
In Vargas, the prosecution alleged a continuous course of
conduct, and argued that either the defendant had violated
section 273a(a) by herself inflicting injuries upon her child,
or by permitting her co-habitant to injure him and by failing
to seek adequate treatment for his injuries. Id. at 909. On
appeal, the defendant argued that, while the jury need not be
unanimous as to her specific acts within the course of conduct
alleged, the jury was required to unanimously agree upon one
of the prosecution’s two theories. Id. The court disagreed:

       Where a single course of conduct is proved at
       trial it is permissible for members of the jury
       to determine that the underlying facts
       establish a violation of the statute under
       different legal theories such as direct
       infliction of abuse or permitting the child’s
       health or safety to be endangered. The jury
       need not agree unanimously on the legal
       theory that defines a given set of facts as
       criminal conduct.

Id. (emphases added). The court reasoned that “[t]he
Legislature has seen fit to proscribe equally, without
distinction as to the available punishment, any violation of
section 273a, subdivision [(a)].” Id. The prosecutor need not
elect to prove either direct infliction or passive conduct, or
negligence or general intent, nor must the court give a
                     RAMIREZ V. LYNCH                        17

unanimity instruction. Instead, so long as the jury agrees
unanimously that the defendant engaged in a course of
conduct containing acts that violate section 273a(a), the
prosecution can meet its burden of proof. Thus, even where
direct infliction is alleged (as it was in Vargas), a jury could
convict a defendant of a violation of the whole statute,
including the direct infliction prong, notwithstanding that the
jury agrees that the defendant committed only negligent or
passive conduct. Direct infliction is merely a “legal
theor[y],” id., and not a “discrete crime.” Russo, 25 P.3d at
645.

     While “[a] prosecutor charging a violation of a divisible
statute must generally select the relevant element from its list
of alternatives,” Descamps, 133 S. Ct. at 2290 (emphasis
added), a prosecutor charging section 273a(a) need not
choose among its “legal theories.” Recently, we explained
that statutes which the prosecutor may allege in their entirety
without seeking a unanimous jury verdict on one particular
prong must be considered indivisible. Employing the
modified categorical approach and imposing a collateral
consequence on the basis of such a conviction risks “potential
unfairness” to a defendant who gained nothing by arguing at
trial that he or she violated one prong of the statute, but not
the other. Lopez-Valencia, 798 F.3d at 871 (“The categorical
approach exists in large part to ensure that the imposition of
a consequence in federal proceedings does not hinge on a fact
that was irrelevant to a defendant’s earlier conviction.
Without the requirement that the jury unanimously agree on
a fact, a defendant has no reason to introduce evidence that
would disprove it.”) (citation omitted). After the court’s
decision in Vargas, a defendant like Vargas, charged with
both direct and indirect infliction of section 273a(a), would
have no reason to argue that she did not hit her child, but
18                   RAMIREZ V. LYNCH

instead failed to get the child adequate medical care. Thus,
applying the modified categorical approach to section 273a(a)
convictions risks the “unfairness” we foresaw in Lopez-
Valencia.

    Another California case, although it post-dates Ramirez’s
conviction, provides an additional clear example of California
courts treating the different prongs as interchangeable “legal
theories.” It also further underscores the futility of arguing
one prong in place of another, confirming that the conundrum
we noted in Lopez-Valencia applies here. In In re L.K.,
132 Cal. Rptr. 3d 342 (Cal. Ct. App. 2011), a minor, L.K.,
was convicted by the juvenile court of running over her
younger brother, M.S., with a truck. Id. at 344. L.K.
appealed on the ground that the juvenile court had imposed a
negligence standard in determining that she had violated
section 273a(a)’s direct infliction prong. Id. at 346. L.K.
argued that there was insufficient evidence to show that
running over her brother was anything but an accident, and
therefore she lacked the “general intent” (i.e., willfulness)
required for a conviction under that prong. Id. at 345–46.
While the Court of Appeal agreed, it nevertheless upheld the
juvenile court’s judgment, because it determined that L.K.
had “violated the first prong of [section 273a(a)] by willfully
permitting M.S. to suffer unjustifiable physical pain and
mental suffering when she failed to alert others at the house
of the potential seriousness of M.S.’s injuries.” Id. at 347.
Acknowledging that this finding had not been the basis of the
juvenile court’s verdict, the Court of Appeal nevertheless
concluded that the conviction should stand, because

       [e]ven though the juvenile court erred in its
       reasoning, a ruling or decision, itself correct
       in law, will not be disturbed on appeal merely
                        RAMIREZ V. LYNCH                              19

         because given for a wrong reason. If right
         upon any theory of the law applicable to the
         case, it must be sustained regardless of the
         considerations which may have moved the
         trial court to its conclusion.

Id. at 349 (emphasis added) (quotation marks omitted). That
is, while the evidence might not support a conviction under
the direct infliction prong, so long as it supported a
conviction under any prong, the state carried its burden of
proof. Therefore, even in the unusual circumstance where the
record specifies a finding on solely the direct infliction prong
(as opposed to the more typical case, in which the prosecution
makes a general allegation that the defendant violated the
statute with a continuous course of conduct) it cannot be
determined with certainty that the defendant directly inflicted
any kind of force or committed a general intent crime.

    California jury instructions for section 273a(a) implement
the California courts’ distinction between elements and “legal
theories.” Citing to Vargas, the use notes that accompany the
jury instructions for section 273a(a), CALJIC No. 9.37 from
1996 (the latest edition prior to Ramirez’s conviction)
explicitly state that the juror unanimity instruction, CALJIC
No. 17.01, “is not required when the same act or omission
may have been either intentional or criminal negligence.”3

 3
    CALJIC No. 9.37 was not updated between 1996 and 2002. In 2002,
CALJIC No. 9.37 was revised to reflect the holding of Valdez, which held
that criminal negligence was the appropriate standard for the indirect
infliction prongs. Valdez, 42 P.3d at 519–20. The revised instruction
requires the judge to read the criminal negligence instruction whenever
negligent conduct is alleged. However, the use note that states that
unanimity is not required with respect to general intent versus negligence
was not changed or omitted.
20                   RAMIREZ V. LYNCH

That is, a jury need not be unanimous as to criminal
negligence or general intent, even where it must be
unanimous as to the underlying conduct. Thus, these
alternative mens rea requirements are not “elements” for
purposes of Lopez-Valencia, Rendon or Descamps. Rather,
they are alternative means for accomplishing a single
indivisible crime.

                              IV.

    Our examination of the text of section 273a(a), the
Shepard documents, and California case law reveals that the
state need not prove that a defendant committed a violation of
section 273a(a) under a particular prong; the four prongs are
instead alternative “legal theories” which the prosecution may
argue, and none of which the jury need decide upon
unanimously. Because section 273a(a) is not a divisible
statute, our analysis stops here. Under the categorical
approach, section 273a(a) is broader than 18 U.S.C. § 16, and
therefore not a “crime of violence,” nor does it qualify on that
basis as an aggravated felony.

    Because the Board erred when it determined that Ramirez
had been convicted of an aggravated felony, we grant the
petition and remand.

     Petition GRANTED and REMANDED.
