               FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


ROBERTO LOPEZ-VALENCIA, AKA              No. 12-73210
Adelado Cortez,
                     Petitioner,         Agency No.
                                        A090-797-248
                v.

LORETTA E. LYNCH, Attorney                OPINION
General,
                      Respondent.


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

                Argued and Submitted
         April 6, 2015—Pasadena, California

                Filed August 17, 2015

 Before: Andrew J. Kleinfeld, M. Margaret McKeown,
       and Milan D. Smith, Jr., Circuit Judges.

             Opinion by Judge McKeown
2                  LOPEZ-VALENCIA V. LYNCH

                           SUMMARY*


                           Immigration

    The panel granted Roberto Lopez-Valencia‘s petition for
review of the Board of Immigration Appeals’ decision finding
that his California state petty theft conviction constituted
an aggravated felony theft offense as defined by 8 U.S.C.
§ 1101(a)(43)(G).

    The panel held that a California theft conviction,
including any offense for which the underlying substantive
offense charged was a violation of California Penal Code
§ 484, is not a categorical theft offense. Applying the
methodology established by Descamps v. United States, 133
S. Ct. 2276 (2013) and Rendon v. Holder, 764 F.3d 1077 (9th
Cir. 2014), the panel held that California’s theft statute is
both overbroad and indivisible, and that it does not match a
generic federal theft offense or a theft offense as defined in
8 U.S.C. § 1101(a)(43)(G). The panel emphasized that such
a conviction may thus not be subjected to the modified
categorical approach.

    The panel wrote that to the extent United States v. Rivera,
658 F.3d 1073 (9th Cir. 2011), Carrillo-Jaime v. Holder, 572
F.3d 747 (9th Cir. 2009), and United States v. Corona-
Sanchez, 291 F.3d 1201 (9th Cir. 2002) (en banc), suggested
that a California theft conviction could qualify as a generic
theft offense, they are clearly irreconcilable with Descamps.


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

                         COUNSEL

Jeremy Sanders (argued) and Kelly Schwartz (argued),
Supervised Law Students under the supervision of Kari E.
Hong, Boston College Law School, Ninth Circuit Appellate
Project, Newton, Massachusetts, for Petitioner.

Manning Evans (argued) and Joseph D. Hardy, United States
Department of Justice Office of Immigration Litigation,
Washington, D.C.; Joyce R. Branda, Acting Assistant
Attorney General, and Blair T. O’Connor, Assistant Director,
Civil Division, United States Department of Justice,
Washington, D.C., for Respondent.


                         OPINION

McKEOWN, Circuit Judge:

    On its face, the task of figuring out whether a prior
offense qualifies as a “violent felony” under the Armed
Career Criminal Act or an “aggravated felony” under
immigration law would seem to be a straightforward
undertaking. After all, these categories conjure up the notion
of certain kinds of crimes. In practice, however, the
classification has been much more nuanced, and courts have
spent inordinate amounts of time parsing whether a crime
falls into one of these categories. The consequences are
significant as the answer may lead either to an enhanced
sentence under federal criminal law or to removal or a bar of
relief under immigration law.

    Although it professed that prior caselaw “all but resolves”
the question, in Descamps v. United States the Supreme Court
4                  LOPEZ-VALENCIA V. LYNCH

substantially altered the framework for determining whether
a prior state court conviction triggers certain consequences in
subsequent federal proceedings. 133 S. Ct. 2276, 2283
(2013). Adhering to the methodology established by
Descamps and our follow-on opinion in Rendon v. Holder,
764 F.3d 1077 (9th Cir. 2014), we conclude that a conviction
under California’s theft statute1 is not an aggravated felony
because it is not a “theft offense” as defined by 8 U.S.C.
§ 1101(a)(43)(G). To employ now-familiar legalese: a
conviction for “theft” in California is categorically not a
“generic theft offense” because it is both “overbroad” and
“indivisible,” and thus not susceptible to the “modified
categorical approach.” We grant Lopez-Valencia’s petition
and remand to the Board of Immigration Appeals for further
proceedings.

                            BACKGROUND

    The facts essential to this appeal are not disputed. Lopez-
Valencia, a native and citizen of Mexico, became a lawful
permanent resident of the United States in 1989. In late 2004,
he pleaded nolo contendere to a violation of California Penal
Code Section 666 (petty theft as defined in California Penal
Code Sections 484 and 488 with a sentence enhancement due
to prior qualifying convictions), and was sentenced to a term
of three years of probation. Several months later, Lopez-
Valencia was arrested for possession of a controlled

    1
     California defines the substantive offense of theft in Penal Code
Section 484. Other Penal Code sections define the degrees of theft and
sentence enhancements for certain offenses. See, e.g., Cal. Penal Code
§§ 487 (grand theft), 488 (petty theft), 666 (petty theft with qualifying
prior convictions). Our use of the terms “theft conviction” or “theft
statute” refer to any offense for which the substantive, underlying offense
charged is a violation of Penal Code Section 484.
                  LOPEZ-VALENCIA V. LYNCH                           5

substance. He admitted to violating the terms of his
probation and was sentenced to two years in state prison. In
2010, Lopez-Valencia was convicted of violating California
Health and Safety Code Section 11550 (being under the
influence of a controlled substance).

    Following his second conviction, Lopez-Valencia was
placed in removal proceedings. The Immigration Judge (IJ)
ruled that both of Lopez-Valencia’s convictions rendered him
removable. The BIA affirmed on the ground that Lopez-
Valencia’s conviction “constitutes an aggravated felony”
because it is a “theft offense” as defined by 8 U.S.C.
§ 1101(a)(43)(G). In light of this ruling, the BIA declined to
address the IJ’s finding that Lopez-Valencia was also
removable due to his conviction under Section 11550.

                            ANALYSIS

     The central issue in this appeal is whether a conviction
under California’s theft statute may qualify as an “aggravated
felony” because it is a “theft offense” as defined by 8 U.S.C.
§ 1101(a)(43)(G).2 Just four years ago, we answered
“sometimes” to this question. See United States v. Rivera,
658 F.3d 1073, 1077–78 (9th Cir. 2011) (holding that a
conviction for theft in California may be an aggravated felony
if the record “establish[es] that [the defendant] pleaded guilty
to a generic theft offense”). In Descamps, however, the
Supreme Court rejected certain aspects of our circuit’s
method of determining whether a state conviction is an
aggravated felony. Following the instructions of both


  2
   We have jurisdiction to answer this question under 8 U.S.C. § 1252,
and our review is de novo. Rosales-Rosales v. Ashcroft, 347 F.3d 714,
717 (9th Cir. 2003).
6                  LOPEZ-VALENCIA V. LYNCH

Descamps and our subsequent decision in Rendon, we hold
that a California conviction for theft is never an aggravated
felony because it is categorically not a theft offense.3

     Descamps prescribes a “three-step process” to determine
whether a prior conviction is an aggravated felony.
Medina-Lara v. Holder, 771 F.3d 1106, 1111 (9th Cir. 2014).
At the first step, we compare the elements of the state offense
to the elements of the generic offense defined by federal law.
Id. at 1112. If this “categorical approach” reveals that the
elements of the state crime are the same as or narrower than
the elements of the federal offense, then the state crime is a
categorical match and every conviction under that statute
qualifies as an aggravated felony. See Taylor v. United
States, 495 U.S. 575, 599 (1990). When a statute is
“overbroad,” meaning that it criminalizes conduct that goes
beyond the elements of the federal offense, we turn to step
two: determining whether the statute is “divisible” or
“indivisible.” Medina-Lara, 771 F.3d at 1112. If the statute
is indivisible, “our inquiry ends, because a conviction under
an indivisible, overbroad statute can never serve as a
predicate offense.” Id. Only when a statute is overbroad and
divisible do we turn to step three—the “modified categorical
approach.” At this step, we may examine certain documents
from the defendant’s record of conviction to determine what
elements of the divisible statute he was convicted of
violating. Id. at 1113; see Descamps, 133 S. Ct. at 2293.

    The parties agree that our resolution of the first step is
dictated by precedent that was not called into question by


    3
    Because Lopez-Valencia’s conviction is not a “theft offense,” we do
not address his claim that he was not sentenced to a term of imprisonment
of more than one year.
                 LOPEZ-VALENCIA V. LYNCH                        7

Descamps. We have consistently held that “a petty theft
conviction, under Cal. Penal Code §§ 484(a) and 666, is not
a categorical match to the federal definition of a theft
offense.” Rivera, 658 F.3d at 1077; see also Carrillo-Jaime
v. Holder, 572 F.3d 747, 751 (9th Cir. 2009); United States v.
Corona-Sanchez, 291 F.3d 1201, 1208 (9th Cir. 2002) (en
banc). This is so because the elements of a generic federal
theft offense are: “[1] a taking of property or an exercise of
control over property [2] without consent [3] with the
criminal intent to deprive the owner of rights and benefits of
ownership, even if such deprivation is less than total or
permanent.” Rivera, 658 F.3d at 1077 (alterations in original)
(quoting Carrillo-Jaime, 572 F.3d at 750). California’s theft
statute, however, “expressly criminalizes certain conduct—
such as theft of labor, false credit reporting, and theft by false
pretenses—that do not satisfy the generic definition.” Id. As
we recently confirmed in Garcia v. Lynch, California’s theft
statute is “overbroad”: some people who have been convicted
under it committed a generic theft offense, while some have
not. 786 F.3d 789, 794 (9th Cir. 2015) (per curiam). So far,
so good.

    The sledding gets tougher at step two: whether the statute
is divisible. Before Descamps, this step was absent from our
jurisprudence. For any overbroad statute, divisible or not, we
“look[ed] beyond the statute of conviction to determine
whether the facts proven at trial or admitted by the defendant
as part of his guilty plea establish[ed] that the defendant was
convicted of all the elements of the relevant federal generic
offense.” Sanchez-Avalos v. Holder, 693 F.3d 1011, 1014–15
(9th Cir. 2012). Thus in Rivera, we applied the modified
categorical approach to a theft conviction without pausing to
analyze whether the statute was divisible. 658 F.3d at 1077.
8                LOPEZ-VALENCIA V. LYNCH

    The Supreme Court rejected this approach in Descamps.
Abrogating our opinion in United States v. Aguila-Montes de
Oca, 655 F.3d 915 (9th Cir. 2011) (en banc), and addressing
a circuit split stemming from cases that employed the Aguila-
Montes methodology, the Court instructed that a court may
only apply the modified categorical approach to “divisible
statute[s].” Descamps, 133 S. Ct. at 2285. It explained that
a divisible statute “lists multiple, alternative elements, and so
effectively creates ‘several different . . . crimes.’” Id. (quoting
Nijhawan v. Holder, 557 U.S. 29, 41 (2009)). If a statute
does not list alternative elements, but merely encompasses
different means of committing an offense, the statute is
“indivisible” and the modified categorical approach “has no
role to play.” Id.

    Following Descamps, in Rendon we clarified how to
distinguish truly divisible from indivisible statutes. 764 F.3d
at 1084–90. There, we held that divisibility hinges on
whether the jury must unanimously agree on the fact critical
to the federal statute. Id. at 1085 (“[A] jury faced with a
divisible statute must unanimously agree on the particular
offense of which the petitioner has been convicted . . . .”). By
contrast, a statute is indivisible if “the jury may disagree” on
the fact at issue “yet still convict.” Id. at 1086.

    As the nuances and intricacies of the modified categorical
approach are usually explained through a hypothetical crime
involving guns and axes, we employ one here. Imagine a
statute that criminalizes assault with “a gun or an axe.” A
federal law imposes penalties only for defendants previously
convicted of “gun offenses.” If state law makes clear that a
defendant can be found guilty only if all twelve jurors agree
that the defendant used a gun or if all twelve jurors agree the
defendant used an axe, the statute has alternative elements
                    LOPEZ-VALENCIA V. LYNCH                                9

and is divisible. The court may then apply the modified
categorical approach to determine whether the defendant was
accused and convicted of using a gun or an axe. If, however,
the defendant can be convicted with six jurors believing the
defendant used a gun and six jurors believing the defendant
used an axe,4 the statute lists alternative means and is
indivisible.

     Applying Rendon to California’s theft statute is not
complicated. The statute is indivisible because the jury need
not unanimously agree on how the defendant committed
theft.5 In California, “[i]t has long been the general rule . . .
that when a single crime can be committed in various ways,
jurors are not required to unanimously agree upon the mode
of commission.” People v. Griffin, 90 Cal. App. 4th 741, 750
(2001). The California Supreme Court has spoken directly on
juror unanimity under the theft statute, reasoning that while
all jurors must agree that the defendant committed some form
of unlawful taking, it is “immaterial whether or not [the jury]
agreed as to the technical pigeonhole into which the theft
fell.” People v. Nor Woods, 233 P.2d 897, 898 (Cal. 1951).

 4
   This oft-repeated hypothetical may seem silly due to the improbability
that someone would ever commit an assault while holding an axe in one
hand and a gun in the other. But of course, our world is a surprising place,
and improbability is not the same as impossibility. See N. Mariana
Islands v. Kaipat, No. 94-0086, 1995 WL 1943007, at *1 (N. Mar. I. Oct.
23, 1995), aff’d, 91 F.3d 151 (9th Cir. 1996) (describing a robbery that
resulted in charges being levied for both “assault with a rifle” and “assault
with an axe”).
 5
   In Garcia, we “assume[d] . . . without deciding,” that California’s theft
statute is divisible because “the question of divisibility was not raised in
the briefs and oral argument” and the decision was based on “other
grounds.” 786 F.3d at 795 n.8. With the benefit of fulsome briefing and
argument, we do not make that assumption here.
10               LOPEZ-VALENCIA V. LYNCH

Thus, a defendant may be convicted of “theft” if six jurors
believe that he committed larceny (which is a form of theft
that meets the federal generic definition) and six jurors
believe that he committed theft of labor (which is not). See
id. (holding that California has no requirement that jurors be
instructed “that they must agree upon the method by which
the theft was committed”); Judicial Council of California
Criminal Jury Instruction 1861 (“You may not find the
defendant guilty of theft unless all of you agree that the
People have proved that the defendant committed theft under
at least one theory. But all of you do not have to agree on the
same theory.”).

    Although the California Supreme Court’s unequivocal
statements on jury unanimity in theft prosecutions are
sufficient to support our conclusion that the statute is
indivisible, the state legislature has gone a step further.
Whereas “[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, California
exempts theft prosecutions from such a requirement. Section
952 of the Penal Code states that “[i]n charging theft it shall
be sufficient to allege that the defendant unlawfully took the
labor or property of another.” This approach is not the
hallmark of a statute that encompasses different crimes with
separate elements. See People v. Ashley, 267 P.2d 271, 279
(Cal. 1954) (noting that California’s laws governing theft
prosecutions “remove the technicalities that existed in the
pleading and proof of [different theft] crimes at common
law”).

   Because the statute is overbroad and indivisible, our
inquiry ends at step two—the modified categorical approach
“has no role to play.” Descamps, 133 S. Ct. at 2285. We
                 LOPEZ-VALENCIA V. LYNCH                      11

should not go further to examine any of the documents
contained in Lopez-Valencia’s record of conviction.

    The government seeks to escape this conclusion by
seeking to add a fourth step to our process for invoking the
modified categorical approach. It points out that some
California courts have described the theft statute as
encompassing several different “substantive . . . offenses,”
and that distinct jury instructions exist for each form of theft.
See People v. Nazary, 120 Cal. Rptr. 3d 143, 153 (Ct. App.
2010); Judicial Council of California Criminal Jury
Instructions 1800 (larceny), 1804 (false pretenses), 1805
(theft by trick), and 1806 (embezzlement). Thus, after a trial
in which the only charge against the defendant is theft by
embezzlement and the evidence presented at trial only
supports a theory of theft by embezzlement, the jury will be
instructed on the elements of embezzlement. Although
California does not require juror unanimity on the mode of
theft committed, the government urges that a brief glance at
the charging documents will allow us to determine whether
juror disagreement was likely in any given case. In its view,
when the charging documents point to a single theory of theft
we can assume that the state “would have proven the
elements of the particular type of theft alleged and the jury
would have been instructed accordingly.”

    This detour harkens back to the factual approach adopted
in the now-abrogated Aguila-Montes decision and “turns an
elements-based inquiry into an evidence-based one.”
Descamps, 133 S. Ct. at 2287. The Court clarified in
Descamps that the question of whether a statute is divisible is
a legal question about what “different crimes” are contained
within a single statute, not a factual question about the
prosecution’s theory of any given case. Id. at 2285. When a
12               LOPEZ-VALENCIA V. LYNCH

statute contains alternative means rather than alternative
elements, the charging documents will never shed any light
on the only question the modified categorical approach seeks
to answer: what elements the defendant was convicted of
violating.

     Although the government’s “modified modified”
categorical approach was not explicitly rejected by Rendon,
it is inconsistent with the analysis in that case. Rendon
involved California’s burglary statute, which criminalizes
entering a vehicle with the intent to commit “larceny or any
felony.” Cal. Penal Code § 459. In burglary trials, California
courts have a sua sponte duty to instruct the jury on the
elements of larceny or the other felony the state alleges that
the defendant intended to commit. People v. Hughes, 39 P.3d
432, 472 (Cal. 2002). Thus, in prosecutions for burglary, as
in prosecutions for theft, there may be instances where the
prosecution alleges only that the defendant intended to
commit larceny and the jury is instructed only on the
elements of larceny. Rendon held, however, that Section 459
is indivisible because there is no requirement that the jury
unanimously agree whether the defendant intended to commit
larceny or another felony. See 764 F.3d at 1088–89. Rather,
due to the phrasing of the statute, the practical possibility of
a conviction being obtained despite juror disagreement
renders the statute indivisible.

    The government’s approach also risks “potential
unfairness” to the defendant down the road, long after the
conviction at issue. Taylor, 495 U.S. at 601. 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. See
Descamps, 133 S. Ct. at 2287. Without the requirement that
                 LOPEZ-VALENCIA V. LYNCH                     13

the jury unanimously agree on a fact, a defendant has no
reason to introduce evidence that would disprove it. See id.
at 2289 (“A defendant, after all, often has little incentive to
contest facts that are not elements of the charged
offense—and may have good reason not to.”).

     In a theft prosecution in California, there is no
requirement that the charging documents spell out the
defendant’s offense with any particularity. See Cal. Penal
Code § 952. The indictment may well reference theft by
larceny, and the evidence adduced at trial may be consistent
with that theory. But if, in fact, the defendant obtained the
property through false pretenses, he would have no reason to
tell the jury his version of events: The jury would simply be
instructed on both larceny and false pretenses and told that it
is of no consequence whether they believe the state’s story or
the defendant’s story so long as they unanimously agree that
he committed some form of unlawful taking. See Judicial
Council of California Criminal Jury Instruction 1861.

    This procedure does not track the Supreme Court’s
description of a prosecution under a divisible statute, in which
the prosecutor must “select the relevant element from [the
statute’s] list of alternatives” and the jury must find those
specific “element[s] unanimously and beyond a reasonable
doubt.” Descamps, 133 S. Ct. at 2290. The requirement of
juror unanimity on a set of elements that matches the federal
offense—not speculation that jurors in a specific case
unanimously agreed on a set of facts that matches the federal
definition—is the only safeguard against this unfairness. We
thus decline the government’s suggestion to insert a
“modified modified” fourth step to alter our “three-step
approach” to evaluating whether state crimes trigger federal
consequences.
14                 LOPEZ-VALENCIA V. LYNCH

                           CONCLUSION

    California’s theft statute is both overbroad and
indivisible. Full stop. The statute should not be subjected to
the modified categorical approach, and a conviction under it
can never be a “theft offense” as defined in 8 U.S.C.
§ 1101(a)(43)(G).6 Because the BIA did not address the IJ’s
alternate holding that Lopez-Valencia is removable due to his
conviction under Section 11550 of California’s Health and
Safety Code, we remand for further proceedings.

     PETITION GRANTED and REMANDED.




     6
       As noted above, Descamps substantially altered our circuit’s
framework for applying the modified categorical approach. To the extent
that United States v. Rivera, 658 F.3d 1073, 1077 (9th Cir. 2011),
Carrillo-Jaime v. Holder, 572 F.3d 747, 751 (9th Cir. 2009), and United
States v. Corona-Sanchez, 291 F.3d 1201, 1208 (9th Cir. 2002) (en banc),
suggested that a conviction for theft in California could qualify as a
generic theft offense, we conclude that those cases are “clearly
irreconcilable” with Descamps. See Miller v. Gammie, 335 F.3d 889, 900
(9th Cir. 2003) (en banc).
