PC 192(a)

Offense

Voluntary manslaughter

Aggravated Felony (AF)

AF as a COV if a year or more is imposed.

To avoid an AF, obtain 364 days or less, or plead to 192(b) or other alternative.

Crime Involving Moral Turpitude (CIMT)

Yes CIMT, ¹as is attempt.

To avoid CIMT see PC 192(b).

Other Removal Grounds

DV deportation ground.

As a COV (see Advice), PC 192(a) is a deportable “crime of DV” if the victim has a protected DV relationship, regardless of sentence. To avoid this outcome, plead to a non-COV such as 192(b).

To ensure not wrongly charged as a deportable “crime of child abuse,” keep minor V’s age out of ROC. See 243(a).

Advice and Comments

PC 192 (a)

COV: Defenders must assume that PC 192(a) is an AF as a COV if a sentence of a year or more is imposed. In US v. Draper (2023), the Ninth Circuit held that federal voluntary manslaughter is a COV because the minimum conduct requires a mens rea of extreme recklessness or depraved heart. (It distinguished that mens rea from other degrees of recklessness such as a conscious disregard of a known risk, from the COV definition.)

After finding that federal voluntary manslaughter is a COV, the panel in Draper stated in dicta that because PC 192(a) has the same mens rea, it too is a COV. It stated that older Ninth Circuit precedent holding that 192(a) is not a COV is inconsistent with the subsequent en banc Ninth Circuit decision in Begay (2022), which interpreted the Supreme Court decision in Borden (2021). In Borden the Supreme Court affirmed that recklessness generally is not a COV, but left open whether a mens rea of extreme recklessness or depraved heart is a COV. Begay held that it is a COV. See citations and further discussion in endnote.²

In 2021 the Supreme Court affirmed what most courts of appeals had long held, which was that an offense with a mens rea of recklessness is not a COV. Borden v. United States, 593 U.S. 420 (2021). The Court stated that reckless conduct occurs when a person “‘consciously disregards a substantial and unjustifiable risk’ attached to his conduct, in ‘gross deviation’ from accepted standards.” Borden at 427. In a footnote, the court stated that it did not decide whether a different mens rea, depraved heart or extreme recklessness, is a COV. Borden at n.4. (For further discussion of Borden see NILA, NIPNLG, IDP, Practice Advisory: Overview of Borden v. United States for Immigration Counsel (June 2021), https://nipnlg.org/work/resources).

In United States. v. Begay, 33 F.4th 1081 (9th Cir. 2022) (en banc), the Ninth Circuit addressed the issue Borden had left open. It held that federal second degree murder, which has a mens rea of depraved heart and extreme recklessness and disregard for human life, is a COV. The en banc panel held that while its ruling conflicted with prior precedent stating that a COV requires intentional conduct, “the reasoning of Borden sufficiently undermines our prior authority” and the “distinction between degrees of recklessness is critical to our conclusion.” Begay at p. 1094. Degrees of recklessness refers to depraved heart/extreme recklessness, which is a COV, versus conscious disregard or a substantial and unjustifiable risk, which is not.

In United States v. Draper, 84 F.4th 797 (9th Cir. 2023), the panel relied on Begay to hold that federal voluntary manslaughter is categorically a COV, because the minimum conduct includes a mens rea of depraved heart or extreme recklessness. In dicta, the court stated that because California voluntary manslaughter, PC § 192(a) requires the same mens rea, it also is a COV. Draper at p. 805, n.3.

For this reason, criminal defenders must assume that PC § 192(a) will be held a COV. Removal defense advocates representing someone with this conviction must investigate any defense arguments, as well as the possibility of vacating the conviction with PCR. See next endnote. Removal defense advocates can investigate possible defenses against applying this ruling to 192(a), especially if the 192(a) conviction occurred at least before the date of Draper’s publication, Oct. 17, 2023. At the same time they must investigate the possibility of PCR to vacate the conviction. See discussion at endnote.³

This endnote will briefly discuss (1) possible argument that PC § 192(a) should not be held a COV, at least for older convictions, despite the statement in Draper, and (2) possible bases for PCR.

In United States v. Draper, 84 F.4th 797, 805, N.3 (9th Cir. 2023), footnote 3 regarding PC 192(a) reads as follows:

Ortiz involved section 192(a) of the California Penal Code, which is worded identically and interpreted similarly to the federal statute [federal voluntary manslaughter, 18 USC § 1112; see also 18 USC 924(c)]. See United States v. Rivera-Muniz, 854 F.3d 1047, 1053 (9th Cir. 2017) (“California Penal Code section 192(a) does not stray from the generic definition of voluntary manslaughter ….”). In Quijada-Aguilar v. Lynch, we held that section 192(a) is not a crime of violence under 18 U.S.C. § 16, see 799 F.3d 1303, 1306–07 (9th Cir. 2015), a holding that presumably would apply to § 924(c) as well. But our reasoning, that “the underlying offense must require proof of an intentional use of force,” id. at 1306 (quoting United States v. Gomez-Leon, 545 F.3d 777, 787 (9th Cir. 2008)), is no longer tenable. See Begay, 33 F.4th at 1094 (“Borden sufficiently undermines [Gomez-Leon and other Ninth Circuit] authority suggesting that anything less than intentional conduct does not qualify as a crime of violence.”).

Argue that at least older convictions of PC § 192(a) are not COVs. Removal defense advocates can investigate a possible defense against a charge that PC 192(a) is a COV. The dicta in U.S. v. Draper, 84 F.4th 797, N.4 (9th Cir. 2023), stating that § 192(a) is a COV, should not be applied retroactively to convictions from before Draper’s date of publication (October 17, 2023), because Draper sets out a new rule that reverses applicable prior precedent, that imposes new adverse consequences on immigrants and others who may have relied on the established rule when conducting the criminal case.

If the 192(a) conviction also occurred before the May 5, 2022 publication of United States. v. Begay, 33 F.4th 1081 (9th Cir. 2022) (en banc), or the June 5, 2021 publication of United States v. Borden, 593 U.S. 420 (2021), that may open additional arguments.

The Ninth Circuit held that a COV requires intentional conduct, which PC 192(a) does not. In Leocal v Ashcroft, 543 U.S. 1 (2004), the Supreme Court held that negligence is not sufficient mens rea for a COV under 18 USC § 16, because that definition requires force “against” another. Based on Leocal, the Ninth Circuit has long held that a COV requires intentional conduct and not recklessness. See, e.g., Fernandez-Ruiz v. Gonzales, 466 F.3d 1121, 1132 (9th Cir. 2006) (en banc), United States v. Gomez-Leon, 545 F.3d 777, 787 (9th Cir. 2008) (citing Leocal and Fernandez-Ruiz and stating “in order to be a predicate offense under … 18 U.S.C. § 16 … the underlying offense must require proof of an intentional use of force or a substantial risk that force will be intentionally used during its commission” (emphasis in original)). Then in Quijada-Aguilar v. Lynch, 799 F.3d 1303 (9th Cir. 2015), the court reaffirmed Fernandez-Ruiz and Gomez-Leon and specifically held that Pen C § 192(a) is not a COV, because it does not require intentional force. Quijada-Aguilar at 1306, citing Gomez-Leon at 787.

In Draper, the three judge panel held that federal voluntary manslaughter is a COV. In a footnote, it acknowledged that Quijado-Aguilar had held that PC §192(a), which it found to be “worded identically and interpreted similarly to the federal statute,” was not a COV. “But our reasoning, that ‘the underlying offense must require proof of an intentional use of force,’ id. at 1306 (quoting United States v. Gomez-Leon, 545 F.3d 777, 787 (9th Cir. 2008)), is no longer tenable. See Begay, 33 F.4th at 1094 (‘Bordensufficiently undermines [Gomez-Leon and other Ninth Circuit] authority suggesting that anything less than intentional conduct does not qualify as a crime of violence.).” Draper, 84 F.4th at 805, N.3 (9th Cir. 2023). For an example of a court declining to retroactively apply a change in its rulings, see Nunez-Reyes v. Holder, 646 F.3d 684 (9th Cir. 2011) (en banc).

Counsel also can investigate other non-frivolous arguments that may be identified by comparing California and federal voluntary manslaughter, and can argue that Quijada-Aguilar was not reversed and still applies. During all of these arguments, counsel should pursue PCR.

Obtain PCR to vacate prior PC 192(a) convictions with a sentence of a year or more. If the 192(a) conviction has a sentence of a year or more it will be charged as a COV aggravated felony. It also is a CIMT, and is a deportable crime of DV if the victim and defendant share a protected domestic relationship. It can be challenging to obtain PCR based on a change in the law, so consider the below options and get expert help. See resources such as ILRC Practice Advisories, How to Analyze a Crim-Imm Case and Overview of California Post-Conviction Relief at www.ilrc.org/chart and see the ILRC manual, California Post-Conviction Relieffor Immigrants at www.ilrc.org/publications. One can investigate post-conviction relief that does not require an error in immigration advice by the defense, such as 1016.5, 236.14, 236.15, and others. See Practice Advisory: Overview of California PCR cited above. Try to obtain PCR based on the actual or potential consequences of PC 192(a) as a crime involving moral turpitude (CIMT). It has long been clear that voluntary manslaughter is a CIMT, so counsel’s failure to adequately advise (or for § 1473.7, D’s failure to understand) about the CIMT issues can be a basis for PCR. This is arguable, for example, in a case where the client wants to adjust status as a defense to removal but is inadmissible under the CIMT ground. If the only basis for PCR is not knowing about the change in law on PC 192(a), such that counsel did behave competently and defendant understood sufficiently given the law at the time, consider citing this Chart as misadvice for convictions that occurred at least on or after the June 5, 2021 publication of United States v. Borden, 593 U.S. 420 (2021). For more information or assistance, write chart@ilrc.org.

Attempt to commit voluntary manslaughter, CA PC 664/192(a), is a COV.⁴