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United States Court of Appeals,Ninth Circuit.

UNITED STATES of America, Plaintiff–Appellee, v. Francisco JIMENEZ–ARZATE, Defendant–Appellant.

No. 12–50373.

Decided: January 12, 2015

Before ANDREWJ. KLEINFELD and KIM McLANE WARDLAW, Circuit Judges, and MATTHEW F. KENNELLY, District Judge.* Vincent J. Brunkow (argued), Kara Lee Hartzler, Federal Defenders of San Diego, Inc., San Diego, CA, for Defendant–Appellant. Mark R. Rehe (argued), Andrew R. Haden, United States Attorney's Office, San Diego, CA, for Plaintiff–Appellee.


Francisco Jimenez–Arzate pleaded guilty to having illegally re-entered the United States after having previously been deported. The district court sentenced him to 34 months in prison and three years of supervised release. He timely appeals his sentence.

Jimenez–Arzate argues that the district court erred in finding that his prior conviction for violation of California Penal Code § 245(a)(1) is categorically a crime of violence for federal sentencing purposes. He contends that United States v. Grajeda, 581 F.3d 1186 (9th Cir.2009), is no longer good law in light of People v. Aznavoleh, 148 Cal.Rptr.3d 901 (Ct.App.2012), and People v. Wyatt, 229 P.3d 156 (Cal.2010). Jimenez–Arzate also argues that Ceron v. Holder, 747 F.3d 773 (9th Cir.2014) (en banc), abrogates Grajeda.

We disagree. Aznavoleh involved a defendant who intentionally ran a red light while racing another car down the street even though he saw a car entering the intersection on the green. People v. Aznavoleh, 148 Cal.Rptr.3d 901, 905, 908 (Ct.App.2012). The defendant made no effort to stop despite a passenger warning him that he needed to stop. Id. at 904. The California Court of Appeal upheld the trial court's finding that the defendant met the willfulness element of assault under California Penal Code § 245(a)(1), which the California Court of Appeal defined as intentionality. Id. at 906.

Wyatt involved a father who, while play wrestling with his infant son, struck the boy with such force that he killed him. People v. Wyatt, 229 P.3d 156, 157 (Cal.2010). The Wyatt court upheld the father's conviction for involuntary manslaughter and assault on a child causing death because “substantial evidence established that defendant knew he was striking his young son with his fist, forearm, knee, and elbow, and that he used an amount of force a reasonable person would realize was likely to result in great bodily injury.” Id. As did the California Court of Appeal in Aznavoleh, the California Supreme Court in Wyatt explained that “a defendant guilty of assault must be aware of the facts that would lead a reasonable person to realize that a battery would directly, naturally and probably result from his conduct. He may not be convicted based on facts he did not know but should have known.” Id. at 159 (quoting People v. Williams, 29 P.3d 197, 203 (Cal.2001)).

Contrary to Jimenez–Arzate's argument, Aznavoleh did not hold that an automobile accident stemming from merely reckless driving may result in a conviction under § 245(a)(1). The defendant in Aznavoleh engaged in street racing, heedlessly disregarding a perceived likelihood of death or grave injury to others. Likewise, in Wyatt, a reasonable person would have recognized the dangers of striking a child with the deadly force used, even if the defendant was not subjectively aware of the risks of his “play wrestling” with the child in that manner.

Ceron v. Holder, 747 F.3d 773 (9th Cir.2014) (en banc), addresses the question of whether a conviction under California Penal Code § 245(a)(1) is categorically a crime of moral turpitude. It does not address the question of whether a conviction under § 245(a)(1) is categorically a crime of violence. As such, it does not abrogate Grajeda's holding that a conviction under § 245(a)(1) is categorically a crime of violence.

Jimenez–Arzate also argues that the district court abused its discretion in imposing a term of supervised release because he would be deported as an illegal alien upon his release. Here, the district court made an individualized finding that supervised release was warranted because of Jimenez–Arzate's consistent history of sneaking back into the United States after deportation. The district court specifically noted that Jimenez–Arzate had previously been deported three times and that “[t]he three wags of fingers in his face saying ‘stay out, stay out or you're going to be subject to prosecution’ didn't do any good.” The district judge also noted that he “can't trust [Jimenez–Arzate's] assurance he's not going to come back” because “[h]e probably gave that assurance on three prior occasions, and yet he's back again committing crimes.” The district judge concluded that supervised release was necessary to protect the public and deter Jimenez–Arzate from returning to the United States. There was justification for the district court's exercise of discretion in imposing supervised release.