Amicus Curiae Brief of the Ninth Circuit Federal Public and Community Defenders, The California Public Defenders Association and individual California Public Defender offices, and the National Association of Criminal Defense Lawyers in Support of Petitioner-Appellant During Pendency of Rehearing En Banc.
Argument: Rendon faithfully applied Descamps's "Elements-Based" approach and correctly held that state law determines a statute's elements. The government and Judge Graber's approach is inconsistent with Descamps, resurrects Aguila-Montes, and creates tension with a century of state law. State law – not Shepard documents – determines a statute's elements. In California, the Shepard-approved documents will not necessarily reflect a crime's elements. Courts must look to state law—rather than the Shepard documents—to identify an offense's elements. At a minimum, this Court should apply the rule of lenity. Applying these principles reveals that California vehicle theft contains a single, indivisible set of elements. The Almanza approach permits defense attorneys to accurately advise their clients of immigration consequences.