RICARDO A. LOPEZ -MARROQUIN, AKA Ricardo Lopez v. MERRICK B. GARLAND , Attorney General

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RICARDO A. LOPEZ -M ARROQUIN,
AKA Ricardo Lopez,
Petitioner,
v.
M ERRICK B. GARLAND , Attorney
General,
Respondent.
No. 18-72922
Agency No.
A044-286-222
OPINION
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted June 3, 2020
Pasadena, California
Filed August 18, 2021
Before: Consuelo M. Callahan and Jacqueline H. Nguyen,
Circuit Judges, and Yvette Kane,* District Judge.
Opinion by Judge Nguyen;
Dissent by Judge Callahan
* The Honorable Yvette Kane, United States District Judge for the
Middle District of Pennsylvania, sitting by designation.

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SUMMARY**
Immigration
Granting in part Ricardo Lopez-Marroquin’s petition for
review of a decision of the Board of Immigration Appeals,
and remanding, the panel held that vehicle theft under
California Vehicle Code § 10851(a) is indivisible in its
treatment of accessories after the fact, and therefore, is not
an aggravated felony theft offense under 8 U.S.C.
§ 1101(a)(43)(G). In so concluding, the panel overruled
Duenas-Alvarez v. Holder, 733 F.3d 812 (9th Cir. 2013), on
the ground that it was irreconcilable with Mathis v. United
States, 136 S. Ct. 2243 (2016).
An immigration judge and the BIA concluded that
Lopez-Marroquin was ineligible for cancellation of removal
and asylum on the ground that his § 10851(a) conviction was
an aggravated felony. The panel noted that this court has
held, and the parties did not dispute, that § 10851(a) is
overbroad because it extends liability to accessories after the
fact, while the generic offense does not. Thus, whether
Lopez-Marroquin had been convicted of an aggravated
felony turned on whether the statute is divisible as between
principals and accessories after the fact. The panel explained
that a statute is divisible if it sets out elements of the offense
in the alternative, effectively containing multiple offenses,
while a statute is indivisible if it only lists alternative means
of committing a single crime.
** This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.

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Applying the framework the Supreme Court provided in
Mathis, the panel held that § 10851(a) is indivisible in its
treatment of accessories after the fact. The panel observed
that the statutory text is silent on whether principals or
accessories after the fact must be charged as such, and that
§ 10851(a)’s punitive architecture fails to differentiate
principals and accessories, and fails to require either
alternative to be alleged in the pleading, admitted by the
defendant, or found by the jury. Observing that several
California cases include discussion relevant to divisibility,
the panel determined that none is dispositive. Because the
answer to the question of divisibility was not clear from state
law, the panel, as instructed by Mathis, took a “peek” at the
record of conviction for the limited purpose of determining
whether the listed items are elements, but concluded that the
documents were ambiguous at best. Thus, the panel
concluded that state law sources and a “peek” at the record
did not satisfy the “demand for certainty” required by the
Supreme Court in deciding if a defendant was necessarily
convicted of a generic offense.
The panel concluded that it was required to overrule
Duenas-Alvarez, which held—three years before Mathis—
that § 10851(a) was divisible as between principals and
accessories after the fact. Observing that Duenas-Alvarez
relied solely on the disjunctive phrasing of the statute, the
panel concluded this approach was clearly irreconcilable
with Mathis, which instructs courts not to assume that a
statute lists alternative elements simply because it contains a
disjunctive list.
Having found § 10851(a) overbroad and indivisible, the
panel concluded it can never serve as a predicate offense,
and therefore, Lopez-Marroquin had not been convicted of
an aggravated felony. The panel thus remanded to the

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agency for consideration of his requests for asylum and
cancellation. In a concurrently filed memorandum
disposition, the panel denied the petition as to his requests
for withholding of removal and relief under the Convention
Against Torture.
Dissenting, Judge Callahan wrote that this case was yet
another example of the legal gyrations required by the
modified categorical approach which leave few the wiser.
Judge Callahan wrote that the majority’s convoluted path
through controlling precedents obscured that, under
California law, auto theft and accessory after the fact are
distinct offenses with distinct elements. Judge Callahan also
wrote that she did not read Mathis as compelling a finding
of indivisibility, and to the extent that it could be read so,
such a determination should be made by an en banc panel.
Judge Callahan would follow Duenas-Alvarez and hold that
application of the modified categorical approach supports
the BIA’s determination that Lopez-Marroquin committed
the aggravated felony of auto theft as a principal under
§ 10851(a).
COUNSEL
Hannah Comstock (argued), Emily Chertoff (argued),
Munmeeth Kaur Soni, and Caitlin Anderson, Immigrant
Defenders Law Center, Los Angeles, California; for
Petitioner.
Joseph A. O’Connell (argued), Attorney; Bryan S. Beier,
Senior Litigation Counsel; Cindy S. Ferrier and John W.
Blakeley, Assistant Directors; Office of Immigration
Litigation, Civil Division, United States Department of
Justice, Washington, D.C.; for Respondent.

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Jessica Karp Bansal and Ahilan T. Arulanantham, ACLU of
Southern California, Los Angeles, California, for Amicus
Curiae ACLU of Southern California.
OPINION
NGUYEN, Circuit Judge:
Ricardo Lopez-Marroquin, a native and citizen of El
Salvador, challenges the Board of Immigration Appeals’
(“BIA”) finding that his conviction for theft of a vehicle
under California Vehicle Code § 10851(a) is an aggravated
felony, which renders him ineligible for certain forms of
relief. We have held, and the parties do not dispute, that
§ 10851(a) is overbroad because it criminalizes a broader
swath of conduct than the generic theft offense. See United
States v. Vidal, 504 F.3d 1072, 1077 (9th Cir. 2007) (en
banc) (“[W]hereas the generic theft offense encompasses
only principals, accomplices, and others who incur liability
on the basis of pre-offense conduct, section 10851(a) also
reaches accessories after the fact.”). We must therefore
decide whether § 10851(a) “sets out a single (or
‘indivisible’) set of elements to define a single crime,” or
rather, “list[s] elements in the alternative, and thereby
define[s] multiple crimes.” Mathis v. United States, 136 S.
Ct. 2243, 2248–49 (2016). Applying the framework
described in Mathis, we hold that § 10851(a) is indivisible in
its treatment of accessories after the fact. Because
§ 10851(a) does not categorically match the generic theft
offense, a conviction under § 10851(a) is not an aggravated
felony.
We previously held otherwise in Duenas-Alvarez v.
Holder, 733 F.3d 812 (9th Cir. 2013), but that case is clearly

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irreconcilable with the Supreme Court’s subsequent decision
in Mathis. Accordingly, we grant Lopez-Marroquin’s
petition in part and deny in part.1
BACKGROUND
Lopez-Marroquin came to the United States in the 1980s
after his mother received asylum, and he became a legal
permanent resident (“LPR”) in the early 1990s. In October
2000, he pleaded guilty to vehicle theft in violation of
California Vehicle Code § 10851(a). Twelve years later, the
Department of Homeland Security served him with a Notice
to Appear and charged him with removability in connection
with different convictions. In 2017, Lopez-Marroquin
applied for LPR cancellation of removal. He also amended
his previously submitted application for asylum,
withholding of removal, and relief under the Convention
Against Torture.
In February 2018, the immigration judge (“IJ”)
determined that his § 10851(a) conviction constituted an
aggravated felony. The IJ reasoned that although § 10851(a)
is overbroad, it is divisible, relying on our opinion in
Duenas-Alvarez, 733 F.3d 812. The IJ next determined
Lopez-Marroquin’s record of conviction shows he
necessarily committed the offense as a principal, not as an
accessory after the fact, so he committed an aggravated
felony. The IJ denied Lopez-Marroquin’s applications for
1 We grant the petition on the issue of whether Lopez-Marroquin’s
conviction under Cal. Veh. Code § 10851(a) qualifies as an aggravated
felony for purposes of eligibility for asylum and cancellation of removal.
Lopez-Marroquin also applied for withholding of removal and relief
under the Convention Against Torture, which we address in a
concurrently filed memorandum disposition that denies the petition in
part.

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cancellation of removal and asylum. Lopez-Marroquin
appealed to the BIA, which affirmed the IJ’s decision.
JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction over final orders of removal under
8 U.S.C. § 1252. We review de novo whether a particular
offense constitutes an aggravated felony under the
Immigration and Nationality Act. Sareang Ye v. I.N.S.,
214 F.3d 1128, 1131 (9th Cir. 2000). Divisibility, like
element identification, is reviewed de novo. Medina-Lara v.
Holder, 771 F.3d 1106, 1117 (9th Cir. 2014).
DISCUSSION
I.
A lawful permanent resident is statutorily ineligible for
cancellation of removal if he has been convicted of an
aggravated felony. 8 U.S.C. § 1229b(a)(3). Similarly, a
noncitizen is ineligible for asylum if he has been convicted
of a particularly serious crime, 8 U.S.C. § 1158(b)(2)(A)(ii),
and for purposes of asylum, an aggravated felony is
automatically a particularly serious crime, 8 U.S.C.
§ 1158(b)(2)(B)(i). “The term ‘aggravated felony’
[includes] . . . a theft offense (including receipt of stolen
property) or burglary offense for which the term of
imprisonment [is] at least one year.” 8 U.S.C.
§ 1101(a)(43)(G).
Here, the agency applied these statutory bars to deny
Lopez-Marroquin relief based on its finding that a conviction
under § 10851(a) is an aggravated felony.

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A. Divisibility Hinges on Whether Statutory
Alternatives Are Elements or Means.
To determine whether a California Vehicle Code
§ 10851(a) conviction is an aggravated felony, we apply the
three-step process set out in Descamps v. United States,
570 U.S. 254 (2013). See Mathis, 136 S. Ct. at 2248–49.
First, applying the categorical approach established by
Taylor v. United States, 495 U.S. 575 (1990), we compare
the elements of the offense with the elements of a generic
offense—“i.e., the offense as commonly understood.”
Sandoval v. Sessions, 866 F.3d 986, 988 (9th Cir. 2017).
This step considers statutory definitions only, not the actual
conduct underlying the conviction. Descamps, 570 U.S.
at 261 (“The key, we emphasized, is elements, not facts.”).
When the elements of the state offense are the same as, or
narrower than, those of the generic offense, the petitioner’s
conviction is a categorical match. Id. However, if the
elements of the state offense are broader than those of the
generic offense—meaning the state offense criminalizes
conduct that the generic offense does not—then there is no
categorical match. Mathis, 136 S. Ct. at 2248–49.
If the state statute is “overbroad,” the question of
divisibility arises. Lopez-Valencia v. Lynch, 798 F.3d 863,
867–68 (9th Cir. 2015). A statute is divisible if it sets out
elements of the offense in the alternative, effectively
containing multiple possible offenses. Romero-Millan v.
Barr, 958 F.3d 844, 847–48 (9th Cir. 2020). A statute is
indivisible if it only lists alternative means of committing a
single crime. Id. If the statute is indivisible, the inquiry
ends. See Mathis, 136 S. Ct. at 2257; Lopez-Valencia,
798 F.3d at 868 (quoting Medina-Lara v. Holder, 771 F.3d
at 1112 (“a conviction under an indivisible, overbroad
statute can never serve as a predicate offense”)).

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Determining whether a particular statute’s disjunctive
phrasing sets forth alternative elements or alternative means
is not always easy. See Dissent n.1. “Although we properly
articulated the elements-based test before Mathis was
decided, . . . our prior decisions . . . often put undue
emphasis on the disjunctive-list rationale criticized in
Mathis.” United States v. Martinez-Lopez, 864 F.3d 1034,
1039 (9th Cir. 2017) (en banc) (citation omitted) (collecting
cases). Mathis emphasized “the importance of the abstract
comparison of elements” and “reiterated that the Supreme
Court meant what it said” in Descamps. Id.
The Supreme Court in Mathis provided a clear
framework to assist courts in analyzing a statute’s
divisibility. Mathis, 136 S. Ct. at 2249, 2256. Mathis
instructs us to consult “authoritative sources of state law”
including state court decisions that “definitively answer[]”
the question of whether a statute contains alternative
elements or means. Id. at 2256 (“When a ruling of that kind
exists, a [court] need only follow what it says.”). If no such
decision exists, the text of the statute may also “resolve the
issue.” Id. For example, alternatives that carry different
punishments are necessarily elements. See id. (citing
Apprendi v. New Jersey, 530 U.S. 466, 490 (2000)). If “state
law fails to provide clear answers,” courts may take a “peek”
at the record of conviction for the “sole and limited purpose
of determining whether the listed items are elements of the
offense.” Id. at 2256–57 (alterations omitted) (quoting
Rendon v. Holder, 782 F.3d 466, 473–74 (9th Cir. 2015)
(Kozinski, J., dissenting from denial of reh’g en banc)). If
such records do not “plainly” demonstrate that the
alternatives are elements rather than means, the statute is
indivisible. Id.

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Only in the “narrow range of cases” where an overbroad
statute is divisible do we proceed to the third Descamps step,
the “modified categorical approach.” Id.; Villavicencio v.
Sessions, 904 F.3d 658, 664 (9th Cir. 2018). “In other
words, the modified approach serves—and serves solely—
as a tool to identify the elements of the crime of conviction
when a statute’s disjunctive phrasing renders one (or more)
of them opaque.” Mathis, 136 S. Ct. at 2253.
B. California Vehicle Code § 10851(a) Is Indivisible as
to Its Treatment of Accessories after the Fact.
Turning to this case, we must decide whether vehicle
theft under § 10851(a) categorically matches the generic
theft offense, which is an aggravated felony. See 8 U.S.C.
§ 1101(a)(43)(G). The parties agree that § 10851(a) is
overbroad because it extends liability to accessories after the
fact. United States v. Arriaga-Pinon, 852 F.3d 1195, 1199
(9th Cir. 2017) (“Section 10851(a) does not match the
elements of the generic theft offense because it applies not
only to the principals and accomplices, but also to
accessories after the fact.”) (citing Vidal, 504 F.3d at 1074–
75). Applying Mathis, we consider whether state
authoritative sources—the statutory text and case law—
“definitively answer[] the question” of whether the
defendant’s role is an alternative element or means. See
Mathis, 136 S. Ct. at 2256.
Turning first to the statutory text, it is silent on whether
principals or accessories after the fact must be charged as
such, so it gives us no clue on the question of divisibility.
See id. (noting a statute that “identif[ies] which things must
be charged (and so are elements) and which need not be (and
so are means)” is an “authoritative source[] of state law” on
this question). Section 10851(a) provides:

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Any person who drives or takes a vehicle not
his or her own, without the consent of the
owner thereof, and with intent either to
permanently or temporarily deprive the
owner thereof of his or her title to or
possession of the vehicle, whether with or
without intent to steal the vehicle, or any
person who is a party or an accessory to or an
accomplice in the driving or unauthorized
taking or stealing[.]
Cal. Veh. Code § 10851(a) (emphasis added).
But “[i]f statutory alternatives carry different
punishments, then under Apprendi they must be elements.”
Mathis, 136 S. Ct. at 2256. Here, under subdivision (b) of
§ 10851, the penalties are enhanced for theft of certain
vehicles (an ambulance, a marked law enforcement vehicle,
or a vehicle modified for the use of disabled persons), and
subdivision (d) requires the aggravating facts in subdivision
(b) to be “alleged in the accusatory pleading, and either
admitted by the defendant in open court, or found to be true
by the jury . . . .” Cal. Veh. Code §§ 10851(b), (d). Section
10851’s punitive architecture fails to differentiate principals
and accessories, and fails to require either alternative to be
alleged in the accusatory pleading, admitted by the
defendant, or found by the jury. This suggests the
alternatives between principals and accessories are means,
or “illustrative examples,” because they need not be
specifically charged. See Mathis, 136 S. Ct. at 2256.
In sum, although not dispositive, we conclude that the
statutory text and structure tend to support Lopez-
Marroquin’s view that role in the offense (whether as a
principal or an accessory after the fact) is a means of

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committing a single offense of vehicle theft under
§ 10851(a).
The parties debate whether state case law aids in the
divisibility analysis. It does not. As Chief Judge Thomas
observed, there “is no example of a California case that
defines a separate set of elements under section 10851 for
those convicted as a principal . . . and those convicted as an
accessory after the fact.” Arriaga-Pinon, 852 F.3d at 1202
(Thomas, C.J., concurring) (collecting cases). And while
several California cases include discussion relevant to
divisibility, none is dispositive.
For example, People v. Clark considered the proof
necessary to sustain a § 10851(a) conviction where the
evidence showed the defendant was merely a passenger in
the vehicle and reasoned that the conviction “must rest on
the theory that [the defendant] was ‘a party or accessory to
or an accomplice in the driving.’” 60 Cal. Rptr. 58, 62 (Cal.
Ct. App. 1967) (quoting Cal. Veh. Code § 10851(a)). Clark
then held that under these circumstances, the defendant
“must have known that the vehicle had been unlawfully
acquired and must have had that knowledge at a time when
he could be said to have, in some way, aided or assisted in
the driving.” Id. This discussion in Clark strongly suggests
that juror unanimity as to the theory of liability is not
required for a conviction under § 10851(a).
On the other hand, in an earlier case, People v. Slayden,
the trial court gave the jury two separate instructions for a
§ 10851(a) charge, one pertaining to any person “who shall
take or drive” a vehicle, and a second pertaining to “any
person who assists in, or is a party or an accessory to, or an
accomplice in” the former. 166 P.2d 304, 304–05 (Cal. Ct.
App. 1946). That decision suggests that the court viewed

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LOPEZ -M ARROQUIN V . G ARLAND 13
accessory after the fact as a separate crime on which the jury
must unanimously agree.2
Although we find that the statute itself suggests that the
alternative listing of roles in the offense set out examples of
means rather than elements, the answer is not clear, as
evidenced by the conflicting state court opinions. We
therefore take a “peek” at the record of conviction for the
limited purpose of ascertaining whether the alternatives are
means or elements. Mathis, 136 S. Ct. at 2256 (“And if state
law fails to provide clear answers, federal judges have
another place to look: the record of a prior conviction
itself.”).
The documents here are ambiguous at best. As in Vidal,
the information “merely recites the language of the statute,”
which is “insufficient to establish the offense as generic.”
504 F.3d at 1088. Moreover, the California Criminal Jury
Instructions (“CALCRIM”) could be consistent with
principal or accessory after the fact liability. CALCRIM
1820 (2020) (“To prove that the defendant is guilty of this
crime, the People must prove . . . 1. The defendant drove
someone else’s vehicle without the owner’s consent; AND
2. When the defendant drove the vehicle, (he/she) intended
2 Recent unpublished cases likewise do not provide a clear answer.
Compare People v. Queen, 2002 WL 1360673, at *4–5 (Cal. Ct. App.
June 24, 2002) (holding the trial court “properly instructed” the jury that
a finding the defendant was merely a passenger “would not foreclose a
conviction, provided the jury found all of the elements of the crime were
met”), and People v. Venegas, 2012 WL 734094, at *11 (Cal. Ct. App.
Mar. 6, 2012) (finding the jury was properly given instructions in a
multidefendant case, which did not require role differentiation), with
People v. Umanzor, 2009 WL 604921, at *2–3 (Cal. Ct. App. Mar. 10,
2009) (upholding an amendment to an information that added a “charge
of accessory after the fact (Pen. Code § 32)”).

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to deprive the owner of possession or ownership of the
vehicle for any period of time.”). True, under Mathis the
“exclusion” of any reference to the term accessory or to the
actions of an accessory after the fact “could indicate” the
alternatives are elements, Mathis, 136 S. Ct. at 2257, but
California prosecutors “regularly employ generic charging
language . . . when prosecuting 10851(a) offenses,” Vidal,
504 F.3d at 1088 n.27. Accordingly, the record here does
not “speak plainly.” Mathis, 136 S. Ct. at 2257.
We hold that § 10851(a) is indivisible. State law sources
and a “peek” at the record do not satisfy “Taylor’s demand
for certainty” when deciding if a defendant was necessarily
convicted of a generic offense. Id. (citing Shephard v.
United States, 544 U.S. 13, 21 (2005)). Our inquiry ends
here, because § 10851(a) is both overbroad and indivisible,
so it “can never serve as a predicate offense.” Medina-Lara
v. Holder, 771 F.3d at 1112.
II.
Three years before Mathis, we considered in Duenas-
Alvarez whether § 10851(a) is divisible. 733 F.3d 812. We
held that § 10851(a) “is divisible in that it imposes criminal
liability in the alternative on principals as well as on
accessories after the fact.” Id. at 814.
We consider whether Mathis requires us to overrule
Duenas-Alvarez. A three-judge panel may not overrule
circuit precedent unless a Supreme Court case has “undercut
the theory or reasoning underlying the . . . precedent in such
a way that the cases are clearly irreconcilable.” Miller v.
Gammie, 335 F.3d 889, 900 (9th Cir. 2003). The clearly
irreconcilable requirement is “a high standard.” Rodriguez
v. AT & T Mobility Servs. LLC, 728 F.3d 975, 979 (9th Cir.
2013). “It is not enough for there to be ‘some tension’

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LOPEZ -M ARROQUIN V . G ARLAND 15
between the intervening higher authority and prior circuit
precedent, or for the intervening higher authority to ‘cast
doubt’ on the prior circuit precedent.” Lair v. Bullock,
697 F.3d 1200, 1207 (9th Cir. 2012) (internal citation
omitted) (quoting United States v. Orm Hieng, 679 F.3d
1131, 1140–41 (9th Cir. 2012) and United States v. Delgado-
Ramos, 635 F.3d 1237, 1239 (9th Cir. 2011) (per curiam)).
In holding that § 10851(a) is a divisible statute, Duenas-
Alvarez relied solely on the disjunctive phrasing of the
statute. See 733 F.3d at 814 (“California Vehicle Code
section 10851(a) is divisible in that it imposes criminal
liability in the alternative on principals as well as on
accessories after the fact.”). This approach is clearly
irreconcilable with Mathis, which “instruct[s] courts not to
assume that a statute lists alternative elements and defines
multiple crimes simply because it contains a disjunctive
list.” Martinez-Lopez, 864 F.3d at 1039. As the Supreme
Court explained in Mathis, in analyzing the divisibility
question, we must look to the text and structure of the statute
as well as to state case law. Mathis, 136 S. Ct. at 2256–57.
“And if state law fails to provide clear answers, [we] have
another place to look: the record of a prior conviction itself.”
Id. at 2256. Without the benefit of the guidance provided in
Mathis, Duenas-Alvarez failed to look beyond the
disjunctive phrasing in the statute. Duenas-Alvarez is
therefore clearly irreconcilable with Mathis, both in its logic
and its result. We overrule Duenas-Alvarez and hold that
§ 10851(a) is indivisible in its treatment of accessories after
the fact. Because there is no categorical match in the
elements of Lopez-Marroquin’s § 10851(a) conviction with
the elements of a generic theft offense, he has not been
convicted of an aggravated felony.

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CONCLUSION
We remand to the agency for consideration of Lopez-
Marroquin’s requests for asylum and cancellation of
removal. Because § 10851(a) is not an aggravated felony,
the agency’s determination that it is per se a particularly
serious crime (“PSC”) no longer stands. 8 U.S.C.
§ 1158(b)(2)(A)(ii), (b)(2)(B)(i). That does not end the
inquiry, however, because convictions that are not
aggravated felonies may nevertheless constitute PSCs that
bar asylum. See Delgado v. Holder, 648 F.3d 1095, 1105–
06 (9th Cir. 2009) (en banc). We do not decide whether
Lopez-Marroquin’s conviction constitutes a PSC because
the agency did not conduct that analysis in the asylum
context.3
PETITION GRANTED IN PART.
CALLAHAN, Circuit Judge, dissenting:
This case is yet another example of the legal gyrations
required by the modified categorical approach which leave
few the wiser.1 I dissent because the majority’s convoluted
3 Although the agency determined that Lopez-Marroquin’s
conviction was a PSC in the withholding context, it did so with the
assumption that the conviction was an aggravated felony. That
determination—which is discretionary and case-by-case, Anaya-Ortiz v.
Holder, 594 F.3d 673, 678 (9th Cir. 2010), and hinges in part on the
“nature” or elements of the offense, id.—may differ on remand.
1 See Menendez v. Whitaker, 908 F.3d 467, 475 (9th Cir. 2018)
(Judge Callahan concurring, joined by Judge Owens); Almanza-Arenas
v. Lynch, 815 F.3d 469, 483 (9th Cir. 2016) (en banc) (Judge Owens
concurring, joined by Judges Tallman, Bybee, and Callahan).

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path through controlling precedents obscures that, under
California law, auto theft and accessory after the fact are
distinct offenses with distinct elements. Accordingly,
applying the modified categorical approach, the record
shows that Lopez-Marroquin committed the aggravated
felony of auto theft as a principal under California Vehicle
Code § 10851(a).
In United States v. Vidal, 504 F.3d 1072, 1077 (9th Cir.
2007) (en banc), we held that California Vehicle Code
§ 10851(a) is broader than generic theft because it covers an
“accessory after the fact.”2 That is, unlike the federal
generic definition of an “aggravated felony,” § 10851(a)
extends liability to accessories after the fact. United States
v. Arriaga-Pinon, 852 F.3d 1195, 1199 (9th Cir. 2017)
(“Section 10851(a) does not match the elements of the
generic theft offense because it applies not only to the
principals and accomplices, but also to accessories after the
fact.”).
In Duenas-Alvarez v. Holder, 733 F.3d 812, 814 (9th Cir.
2013), we held that § 10851 was divisible “in that it imposes
criminal liability in the alternative on principals as well as
on accessories after the fact.” Accordingly, we applied the
“modified categorical approach to determine whether
Petitioner was convicted as a principal, instead of as an
accessory after the fact.” Id. at 814–15. We examined “a
charging paper in combination with other documents in the
record, including the abstract of judgment,” and determined
2 I continue to think that the better reading of § 10851(a) is that it is
categorically a theft offense, see Vidal, 504 F.3d at 1091–99 (Callahan,
J. dissenting), but recognize that the contrary en banc opinion is the law
of the circuit until and unless we again take up the issue en banc, the
Supreme Court directs otherwise, or California modifies its statute.

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18 LOPEZ -M ARROQUIN V . G ARLAND
that the petitioner was “clearly and unambiguously charged
. . . as a principal who personally drove or took the vehicle
of another without consent to deprive the owner of it.” Id. at
815. We noted that Count 1 of the information charged
petitioner with the crime of taking a vehicle without the
owner’s consent and “omitted any mention of, or text from
the portion of the statute that refers to accessories after the
fact.” Id.
As the facts in this case are almost identical to those in
Duenas-Alvarez, that decision should be controlling. The
majority, however, construes Mathis v. United States, 136 S.
Ct. 2243 (2016), as intervening controlling authority that
compels the conclusion that, contrary to our decision in
Duenas-Alvarez, § 10851(a) is “indivisible.” Maj. at 14. I
disagree. I do not read Mathis as compelling a finding of
indivisibility, and to the extent that it could be so read, such
a determination should be made by an en banc panel.3
3 In United States v. Delgado-Ramos, 635 F.3d 1237, 1239 (9th Cir.
2011), we reiterated:
For a three-judge panel to hold that an intervening
Supreme Court decision has “effectively overruled”
circuit precedent, the intervening decision must do
more than simply “cast doubt” on our precedent.
Rather, it must “undercut the theory or reasoning
underlying the prior circuit precedent in such a way
that the cases are clearly irreconcilable.” Miller v.
Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc).
See also Aleman v. Gonzalez v. Barr, 955 F.3d 762,768–69 (9th Cir.
2020); Murray v. Mayo Clinic, 943 F.3d 1101, 1105 (9th Cir. 2019); In
re Gilman, 887 F.3d 956 (9th Cir. 2018).

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LOPEZ -M ARROQUIN V . G ARLAND 19
The relevant issue in Mathis was whether the defendant’s
conviction under an Iowa burglary statute constituted a
“violent felony” for purposes of determining his sentence
under the Armed Career Criminal Act (ACCA). The state
statute covered more than a generic burglary because it
included unlawful entry into “any building, structure, [or]
land, water, or air vehicle.” Mathis, 136 S. Ct. at 2250. The
Court explained that under the categorical approach the
focus was solely “on whether the elements of the crime of
conviction sufficiently match the elements of the generic
burglary while ignoring the particular facts of the case. Id.
at 2248.
Elements “are the ‘constituent parts’ of a crime’s legal
definition—the things the ‘prosecution must prove to sustain
a conviction,’” “what the jury must find beyond a reasonable
doubt to convict,” and “what the defendant necessarily
admits when he pleads guilty.” Id. (internal citations
omitted).
Sometimes the comparison of elements is
straightforward when a statute sets forth a single set of
elements to define a single crime. But some statutes are
more complicated.
A single statute may list elements in the
alternative, and thereby define multiple
crimes. Suppose, for example, that the
California law noted above had prohibited
Even if the majority’s approach were the better approach, our prior
opinions skirting the issue indicate that Duenas-Alvarez, 733 F.3d 812,
is not “clearly irreconcilable” with Mathis. See, e.g., Almanza-Arenas v.
Lynch, 815 F.3d 469 (9th Cir. 2016); Arriaga-Pinon, 852 F.3d 1195.
Accordingly, if we are to adopt the majority’s approach, we should do
so in an en banc opinion.

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20 LOPEZ -M ARROQUIN V . G ARLAND
“the lawful entry or the unlawful entry” of a
premises with intent to steal, so as to create
two different offenses, one more serious than
the other. If the defendant were convicted of
the offense with unlawful entry as an
element, then his crime of conviction would
match generic burglary and count as an
ACCA predicate; but, conversely, the
conviction would not qualify if it were for the
offense with lawful entry as an element. A
sentencing court thus requires a way of
figuring out which of the alternative elements
listed—lawful entry or unlawful entry—was
integral to the defendant's conviction (that is,
which was necessarily found or admitted).
See [Descamps v. United States, 133 S. Ct.
2276, 2283 (2013)]. To address that need,
this Court approved the “modified
categorical approach” for use with statutes
having multiple alternative elements. See,
e.g., Shepard v. United States, 544 U.S. 13,
26 (2005).
Id. at 2249 (parallel citations omitted).
The Court further explained:
[S]uppose a statute requires use of a “deadly
weapon” as an element of a crime and further
provides that the use of a “knife, gun, bat, or
similar weapon” would all qualify. See
Descamps, 133 S. Ct. at 2289; Richardson,
526 U.S., at 817. Because that kind of list
merely specifies diverse means of satisfying
a single element of a single crime—or

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LOPEZ -M ARROQUIN V . G ARLAND 21
otherwise said, spells out various factual
ways of committing some component of the
offense—a jury need not find (or a defendant
admit) any particular item: A jury could
convict even if some jurors “conclude[d] that
the defendant used a knife” while others
“conclude[d] he used a gun,” so long as all
agreed that the defendant used a “deadly
weapon.” Ibid.; see Descamps, 133 S. Ct. at
2288 (describing means, for this reason, as
“legally extraneous circumstances”).
Id. at 2249 (parallel citations omitted).
A critical aspect of the examples cited by the Supreme
Court is that the underlying core “element” remains the
same. Whether the defendant lawfully or unlawfully enters
a premises the state must prove an intent to steal. Whether a
defendant uses a gun or a bat, the state must prove that he
intended to harm or intimidate using a deadly weapon.
But under California law, principals and accessories after
the fact are mutually exclusive roles that inherently require
different elements of proof. See, e.g., People v. Prado,
136 Cal. Rptr. 521, 524 (Cal. Ct. App. 1977) (“[Principals
and accessories involve] mutually exclusive states of mind
and give rise to mutually exclusive offenses.”); In re
Eduardo M., 44 Cal. Rptr. 3d 875, 880 (Cal. Ct. App. 2006)
(“California long has recognized that a principal to a felony
cannot become an accessory to that felony by attempting to
make his own escape.”); People v. Boatwright, 248 Cal.
Rptr. 3d 800, 805 (Cal. Ct. App. 2019) (“[C]onviction as an
accessory requires that someone other than the accused, that
is, a principal, must have committed a specific, completed
felony . . . .” (internal quotations, emphasis, and citation

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22 LOPEZ -M ARROQUIN V . G ARLAND
omitted)). Thus, § 10851(a) should be read as setting forth
alternative offenses requiring different elements, rather than
alternative means of committing the same offense.
Interpreting accessory liability under § 10851(a) as an
alternative offense requiring different elements, rather than
an alternative means, also makes sense as a matter of logic.
The elements of a § 10851(a) violation under a principal
liability theory are (1) “the defendant took or drove someone
else’s vehicle without the owner’s consent,” and (2) “when
the defendant did so, (he/she) intended to deprive the owner
of possession or ownership . . . .” CALCRIM No. 1820
(emphasis added); see also Almanza-Arenas v. Lynch,
815 F.3d 469, 476 (9th Cir. 2016). An accessory after the
fact cannot satisfy these elements, at least with respect to the
principal’s same charged conduct. An accessory is defined
as one “who, after a felony has been committed, harbors,
conceals, or aids a principal in such felony, with the intent
that said principal may avoid or escape from arrest, trial,
conviction or punishment, having knowledge that said
principal has committed such felony or has been charged
with such felony or convicted thereof . . . .” Boatwright,
136 Cal. Rptr. at 805 (emphasis added) (quoting Cal. Pen.
Code § 32). In other words, an accessory engages in entirely
different behavior with a different mental state at a different
point in time than a principal. See Prado, 136 Cal. Rptr.
at 523 (noting, for this reason, an accessory after the fact
“commits an offense separate and distinct from the crime of
the principal”).
We recognized as much in Vidal, 504 F.3d 1072, when
we held that “accessory,” as used in § 10851(a), must mean
“accessory after the fact” and explained that “one who is
convicted as an accessory after the fact to theft cannot be
said to have committed all elements of generic theft, which

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LOPEZ -M ARROQUIN V . G ARLAND 23
includes the element of criminal intent to deprive the owner
of rights and benefits of ownership.” Id. at 1080 (emphasis
added, quotations and citation omitted). Such language
cannot be squared with the position that accessory liability
under § 10851 is simply an alternative means of violating the
statute and can be satisfied by sufficient proof and juror
unanimity on the aforementioned elements of principal
liability under § 10851(a). Indeed, in Rendon v. Holder,
764 F.3d 1077 (9th Cir. 2014), we cited Duenas-Alvarez,
733 F.3d 812, as an example of a case where “it was
impossible for the state to allege and the jury to find that the
defendant violated the alternative parts of the statute
simultaneously.” Id. at 1087 n.11.
In Vidal, we also observed that if the state proceeded on
“an accessory after-the-fact-theory, the jury would be given
a modified instruction defining accessories after the fact.”
504 F.3d at 1084 (citing People v. Slayden, 166 P.2d 304
(Cal. Ct. App. 1946)); see also id. at 1084 n.20. That makes
sense. Moreover, the requirement of such a separate jury
instruction can also indicate a statute’s divisibility. See
Mathis, 136 S. Ct. at 2257; Rivera v. Lynch, 816 F.3d 1064,
1079 (9th Cir. 2016).
An appreciation of the distinct offenses of auto theft and
accessory after the fact also explains the majority’s
inconclusive review of California law.4 First, it is not
surprising that the statute is silent on whether principals or
accessories after the fact must be charged as such because
any prosecutor will appreciate the distinct elements for the
4 The majority seems to confuse the tools the Supreme Court
referred to in Mathis, “the statutory text and case law,” Maj. at 10, with
the underlying inquiry—identifying the “elements” of the statutory
offense.

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24 LOPEZ -M ARROQUIN V . G ARLAND
distinct offenses. Second, the majority cites Chief Judge
Thomas’s observation in his concurrence in United States v.
Arriaga-Pino, 852 F.3d 1195, 1202 (9th Cir. 2017), that
“[t]here is no example of a California case that defines a
separate set of elements under section 10851 for those
convicted as a principal under the statute and those convicted
as an accessory after the fact.” But this is because, as Judge
Kozinski noted in his dissent in Vidal, in § 10851’s 84-year
history there is no case of the state using § 10851 to punish
an individual who was merely an accessory after the fact.
Vidal, 504 F.3d at 1099.
Third, the majority’s reference to People v. Clark,
60 Cal. Rptr. 58 (Cal. Ct. App. 1967), overstates the import
of that case. The state appellate court was not required to
differentiate between an accomplice (which is within the
generic definition5) and an accessory after the fact (which is
not) because it found insufficient evidence that Clark knew
that the vehicle had been unlawfully acquired or “in some
way, aided or assisted in the driving.” Id. at 62. Nothing in
Clark is inconsistent with the earlier case, Slayden, 166 P.2d
304, which the majority recognizes “viewed accessory after
the fact as a separate crime on which the jury must
unanimously agree.” Maj. at 12–13.
Finally, contrary to what the majority saw when it
“peeked” at the record of conviction, the underlying
documents confirm that Lopez-Marroquin was convicted as
a principal. Count 1 of the information charged Lopez-
Marroquin as follows:
5 See Vidal, 504 F.3d at 1077–78 (explaining that the category of
accessory after the fact is distinct from first-degree principals, second-
degree principals, and accessories before the fact).

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LOPEZ -M ARROQUIN V . G ARLAND 25
On or about August 17, 2000, in the County
of Los Angeles, the crime of UNLAWFUL
DRIVING OR TAKING OF A VEHICLE, in
violation OF VEHICLE CODE SECTION
10851(a), a Felony, was committed by
RICARDO ALEJANDRO LOPEZ, who did
unlawfully drive and take a certain vehicle, to
wit, 1989 TOYOTA CAMRY, LICENSE
#2MFF703, then and there the personal
property of [another individual] without the
consent of and with intent, either
permanently or temporarily, to deprive the
said owner of title to and possession of said
vehicle.
Lopez-Marroquin initially pled not guilty to Count 1 and to
two other counts. However, he then withdrew his not-guilty
plea and pled guilty to Count 1. He was sentenced to one
year and four months in prison for “unlawful driving or
taking of a vehicle.” As in Duenas-Alvarez, “the
information omitted any mention of, or text from, the portion
of the statute that refers to accessories after the fact.”
733 F.3d at 815. Thus, a “peek” at the record of conviction
confirms that Lopez-Marroquin was convicted as a principal
for auto theft under § 10851(a), which is an aggravated
felony.
I dissent because I agree with, and am bound by, our
precedent holding that § 10851(a) is divisible. I would hold
that the application of the modified categorical approach
supports the Board of Immigration Appeals’ determination
that Lopez-Marroquin’s conviction for auto theft under
§ 10851(a) is an aggravated felony.

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