Offense
Flight from peace officer with wanton disregard for safety; can be proved by 3 traffic violations.
Aggravated Felony (AF)
Seek 364 days or less in case it is charged as an AF as obstruction of justice. See Advice.
Not an AF as COV because it involves recklessness.
Crime Involving Moral Turpitude (CIMT)
Ninth Circuit held not a CIMT due to three traffic violations alternative. If possible, plead specifically to three traffic violations per 2800.2(b), although legally this is not required. See Advice.
Other Removal Grounds
No other removal ground.
Advice and Comments
See endnote for discussion of COV and CIMT.1Veh C § 2800.2(a) punishes a person who “flees or attempts to elude a pursuing peace officer in violation of Section 2800.1 and the pursued vehicle is driven in a willful or wanton disregard for the safety of persons or property …” Section 2800.2(b) provides “For purposes of this section, a willful or wanton disregard for the safety of persons or property includes, but is not limited to, driving while fleeing or attempting to elude a pursuing peace officer during which time either three or more violations that are assigned a traffic violation point count under Section 12810 occur, or damage to property occurs.”
Overbroad and Indivisible; CIMT. The Ninth Circuit held that VC 2800.2 is overbroad and indivisible compared to the definition of a CIMT, so that no conviction of the offense is a CIMT. Ramirez-Contreras v. Sessions, 858 F.3d 1298, 1305–06 (9th Cir. 2017).
First the court found that VC 2800.2 is broader than the definition of a CIMT (“overbroad”), because VC 2800.2(b) includes fleeing a police officer while committing three traffic violations – something that distinguishes it from similar statutes that have been held to be a CIMT. “Viewing the least of the acts criminalized, we see in subsection (b) that an individual can be convicted of violating § 2800.2 on the basis of eluding police while committing three traffic violations that cannot be characterized as “vile or depraved.” We must therefore conclude that the conduct criminalized does not necessarily create the risk of harm that characterizes crimes of moral turpitude, even though subsection (a) standing alone would appear to contain elements of a dangerous crime.” Ramirez-Contreras, 858 F.3d at 1305–06. Note that it is possible that the BIA later could come out with a published decision that found that even 2800.2(b) is a CIMT, and the Ninth Circuit could decide to defer to it. While that appears unlikely, there is no permanent guarantee.)
Next it found that 2800.2 is “indivisible” in terms of its definition of recklessness. It found that violating three traffic offenses and the more traditional definition of wanton disregard are different means of committing a single offense, rather than elements of different offenses.
In this case we do not apply the modified categorical approach because the elements of § 2800.2 are clearly indivisible. One must (1) be pursued by a police officer; (2) willfully flee from the pursuit; and (3) do so in a manner evidencing willful or wanton disregard for the safety of others. Subsection (b) provides the means of meeting one element, but does not establish an additional, divisible element. We test our analysis of the statutory elements by looking to California jury instructions. See Almanza–Arenas, 815 F.3d at 479 (verifying interpretation of elements by whether it is consistent with California jury instruction as to offense). California jury instructions for this offense require the state to prove (1) pursuit by a police officer; (2) the defendant was driving the vehicle with the intent to flee, elude, or evade the officer; and (3) the defendant drove willfully or wantonly in disregard for the safety of persons or property. Judicial Council of Cal. Criminal Jury Instruction 2181. Our analysis is fully consistent with the instruction. Because § 2800.2 has a “single, indivisible set of elements with different means of committing one crime, … it is indivisible and we end our inquiry.” See Almanza–Arenas, 815 F.3d at 476 (internal quotations omitted).
Ramirez-Contreras, 858 F.3d at 1306–07
Note also that the phrase in 2800.2(b), “includes but is not limited to” is indicative of it being a means, or list of illustrative examples. See Mathis v. United States, 579 U.S. 500, 518 (2016).
The fact that the statute is indivisible means that every conviction of 2800.2 must be evaluated by the minimum (least adjudicable) conduct of the three traffic offenses, regardless of the underlying facts or information in the record of conviction. Therefore, no 2800.2 conviction is of a CIMT.
COV. At this writing, the Supreme Court is considering whether recklessness should be included in a definition of COV that is identical to the immigration definition at 18 USC 16(a), in the pending Borden v. United States case. Even if the Court does add recklessness, however, that is likely to be defined as a conscious disregard of a known risk or similar definition that “three traffic offenses” does not match.
There were twists and turns to prior findings of whether 2800.2 is a COV, but the result is that it is not a COV under current law. After some litigation, the Ninth Circuit held that VC 2800.2 is not a COV because that requires intentional conduct and excludes reckless conduct. Penuliar v. Mukasey, 528 F.3d 603 (9th Cir 2008). The Supreme Court later held that this flight generally is a COV under a vaguely defined statutory section identical to 18 USC § 16(b), but a subsequent Supreme Court opinion struck down that section as void for vagueness, and then finally struck down 18 USC § 16(b). See Sykes v. United States, 564 U.S. 1 (2011), overruled by Johnson v. United States, 576 U.S. 591 (2015) and see Sessions v Dimaya, 138 S Ct 1204 (2018).
So, if the statute is indivisible, why we still want a specific plea to 2800.2(b)/three traffic violations? The majority of immigrants are unrepresented in removal proceedings, and immigration judges may not be aware of Ramirez-Contreras or, in some cases, of the full workings of the categorical approach. They may well look to the person’s record of conviction to see what happened. So while a specific plea is not legally necessary, it may help quite a bit in practice. To provide more direct help, photograph or photocopy the above legal summary and give a copy to the defendant, a responsible friend or family member, and their immigration advocate, if any.
AF. Obstruction of justice is an AF, if a year or more is imposed. Counsel should assume conservatively that VC 2800.2 meets the definition of obstruction. See discussion of the Supreme Court decision on obstruction, Pugin v. Garland, No. 22-23 (June 22, 2023), at Advice to PC 32, above, and at ILRC, Obstruction of Justice: Pugin and California Offenses (July 2023).
For information on how to structure a sentence to avoid a year for immigration purposes, see § N.4 Sentence.
CIMT: Wanton disregard for safety can be demonstrated by three traffic violations, per 2800.2(b). That conduct is not a CIMT under current law. The Ninth Cir held that 2800.2 is not divisible between three traffic offenses and other wanton disregard. This means that all 2800.2 convictions must be evaluated based on the ‘three traffic violation’ standard under the categorical approach.
2800.2 is also not a COV because it can be committed by recklessness. See Borden v. U.S See further discussion of COV at PC 207.
The reason to try to have a specific plea to the three traffic offenses / 2800.2(b) is that, while it is not legally necessary, in practice many judges and officers will not know that the statute is not divisible, and they will rely on the person’s record of conviction, and the person may be unrepresented.
If there is an immigration atty, or just a functional defendant or family member, try to provide them with the text of the endnote, above.