THIS COURT SHOULD DISMISS THE INDICTMENT BECAUSE LEWD AND

LASCIVIOUS ACTS WITH A MINOR UNDER PC288(a) IS NOT AN AGGRAVATED

FELONY BECAUSE IT IS NOT SEXUAL ABUSE OF A MINOR NOR IS IT A

CRIME OF VIOLENCE

In the event this Court disagrees the Indictment is defective defense has prepared arguments as to why lewd and lascivious acts with a child under 14 is not an aggravated felony based on two definitions defense expects the government might use.

A. Lewd and Lascivious Acts with a child under the age of 14 under PC 288 (a) is not "sexual abuse of a minor."

The Supreme Court adopted a "formal categorical approach" to determine whether prior burglaries could serve as predicates for the Armed Career Criminal sentencing enhancement. United States v. Taylor, 495 U.S. 57 5 (1990) . This approach "generally requires the trial court to look only to the fact of conviction and the statutory definition of the prior offense." Id. at 602 (emphasis added). Only where a jury was actually required to find all of the elements supporting the predicate offense does Taylor permit the fact finder to go beyond the mere fact of conviction and the statutory definition to reach the underlying facts of the offense. Id.

Similarly, to determine whether a prior conviction is an aggravated felony, the Ninth Circuit looks at the statutory definition of the offense, not the underlying factual circumstances of the crime. United States v. Lomas, 30 F.3d

1191, 1193 (9th Cir. 1994), cert. denied, 513 U.S. 1176 (1995) (citations omitted). Title 18 U.S.C. § 1101(43)(A) provides that [t]he term 'aggravated felony' means . . . sexual abuse of a minor." Thus, this Court must look at the statutory definitions of lewd and lascivious acts with a child under the age of 14 under PC 288(a) and sexual abuse of a minor under federal law. Federal sexual offenses dealing with minors are found at: 18 U.S.C. §§ 2241, 2243, and 2244.

1. Aggravated Sexual Abuse, 18 U.S.C. §!2241.

Title 18 U.S.C. §2241 involves offenses of force and with children under 12. 1 8 U. S.C. § 2241 (a), (c)Penal Code 288(a) Lewd and Lascivous Acts with a minor under 14 covers conduct not covered under § 2241. Penal Code 288(a) lacks the element of force and the requirement that the victim be under 12. To be convicted under 288(a), the victim might be 13 or 14 years old, unlike under § 2241. Also, force is not required under 288(a). Consequently, under the Taylor and Lomas analysis, lewd and lascivious acts with a minor under 14, P.C. 288(a), is not an aggravated felony because 288(a) does not categorically fit under §"2 2 4 1.

2. Sexual Abuse of a Minor or Ward, 18 U.S.C. § 2243.Title 18 U.S.C. § 2243 criminalizes a "sexual act" with someone between the ages of 12 and 16, where the perpetrator is at least four years younger. 18 U. S.C. § 2243(a) (1) , (2) Title 18 U.S.C. § 2246(2) defines sexual act":

(2) the term "sexual act" means

(A) contact between the penis and the vulva or the penis and the anus, and for purposesof this subparagraph contact involving the penis occurs upon penetration, however, slight;

(B) contact between the mouth and the penis, the mouth and the vulva, or the mouth and the anus;

(C) the penetration, however slight, of the anal or genital opening of another by a hand or finger or by any object, with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person; or

(D) the intentional touching, not through the clothing, of the genitalia of another person who has not attained the age of 16 years with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the exual desire of any person . . . .

Penal Code Section 288(a) applies to conduct that would plainly not qualify as a "sexual act" under §§ 2243 and 2246. For example, § 288(a) applies to any touching of the child with the requisite intent. See People v. Gilbert, 5 Cal. App. 4th 1372, 1380 (1992). Unlike the federal definition of sexual act, there is no need to show that the defendant touched the child's private parts. Compare § 2246(2) with People v. Gilbert, 3 Cal. App. 4th at 1380. Thus, again, under the Taylor and Lomas analysis, lewd and lascivious acts with a child under 14 is not an aggravated felony.

3. Abusive Sexual Contact, 18 U.S.C. § 2244.

Even assuming that the conduct criminalized in 18 U.S.C. § 2244, abusive sexual contact -- as opposed to sexual acts -can qualify as sexual abuse, the term "sexual conduct" is still more narrow than § 288(a). "Sexual conduct" is:

(3) the term " sexual contact" means the intentional touching, either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of any person with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person. 18 U.S.C. § 2246(3). Thus, § 2244 only applies to touchings of the "genitalia, anus, groin, breast, inner thigh, or buttocks." Id. As demonstrated above, § 288(a) applies to any touching; it is not limited to the categories specified in § 2246(3). People v. Gilbert, 5 Cal. App. 4th at 1380. The federal law is very narrow and specific. The state law encompasses any category of touching, whereas the federal law covers six specific types of touching. Consequently, P.C. 288(a) is also not an aggravated felony using the categorical approach with § 2244.

4. Unlike State Law, Federal Law Provides a Mistake of Age Defense.

Finally, federal law statutorily provides a mistake of age defense that is not available under California law. Again using the categorical approach, we need only look to the statute. Section 2243, which also applies to § 2244, provides that "in a prosecution under subsection (a) of this section, it is a defense, which the defendant must establish by a preponderance of the evidence, that the defendant reasonably believed that the other person had attained the age of 16 years." 18 U.S.C. § 2243(c)(1). In California, however, there is no mistake of age defense as to § 288 (a) See People v. Donald R., 14 Cal. App. 4th 1627, 1629 (1993) (citations omitted).

There are many types of touching one could do to violate P.C. 288(a) without committing sexual abuse of a minor under federal law. Consequently, a § 288(a) conviction is not an aggravated felony under Taylor and Lomas.

B. Lewd and Lascivious Acts With A Child Under 14 Is Not an Aggravated Felony Because It Is Not a Crime of Violence.

Lewd and lascivious acts with a child under 14 is not an aggravated felony because it is not a crime of violence under title 18 U.S.C. § 16. P.C. § 288(a) does not involve physical force against a person, and it does not by its nature involve a substantial risk that physical force may be used in the course of committing the offense. Further, 288(a) is not a crime of violence under the U.S. Sentencing Guidelines. P.C. § 288(a) does not have as an element the use, attempted use, or threatened use of physical force. Finally, Mr. * received a sentence of 365 days, while the statute, 8 U.S.C. § 1101 (F), requires the term of imprisonment to be at least one year.

1. Under 18 U.S.C. § 16, lewd and lascivious acts with a child under 14 is not a crime of violence.

Title 18 § 16 defines "crime of violence" as:

(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or

(b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.Section 16 clearly requires force as an element under (a). A person, however, may be convicted of 288(a) even if no force was involved. A lewd and lascivious act committed with force falls under 288(b). Mr. * was convicted of 288(a) which requires no force, not 288(b) which has force as an element.

Even under § 16(b), Mr. *'s 288 (a) conviction is not a crime of violence. Again, just by looking at the 288 statute, any lewd act involving the threat of force falls under 288(b), not 288(a). As mentioned above, a person may be convicted of 288(a) for merely touching. Touching alone does not constitute force or threat of force. Consequently, Mr. *'s 288(a) conviction is not a crime of violence under 18 U.S.C. § 16.

2. Lewd and Lascivious Acts with a child under 14 is not a crime of violence under the U.S. Sentencing Guidelines,§ 4Bl.2.

Under the sentencing guidelines, an offense is a crime of violence if the offense "has as an element the use, attempted use, or threatened use of physical force against the person of another." See U.S.S.G. § 4Bl.2. Again, as mentioned above, any lewd and lascivious act involving force falls under P.C. 288(b). Mr. * was convicted under P.C. 288(a), which requires no physical force or attempted use or threat of force. For the same reasons stated above, P.C. § 288(a) does not meet the U.S.S.G. crime of violence definition.

3. Mr. * was not sentenced to a year imprisonment; thus, his conviction under Cal. P.C. 288(a) cannot be used as an aggravated felony.

Mr. * was sentenced to 365 days imprisonment for his violation of California Penal Code § 288(a). Under 8 U.S.C. § 1101(a)(43)(G) the term of imprisonment for a crime of violence conviction must be at least one year. Black's Law Dictionary defines a year as:

The period in which the revolution of the earth round the sun, and the accompanying changes in the order of nature, are completed. Generally, when a statute speaks of a year, twelve calendar, and not lunar, months are intended. The year is either astronomical, ecclesiastical, or regnal, beginning on the lst of January, or 25th of March, or the day of the sovereign's accession.

The civil year differs from the astronomical, the latter being composed of three hundred and sixty-five days, five hours, forty-eight minutes, forty-six seconds and a fraction, while the former consists sometimes of three hundred and sixty-five days, and at others, in leap-years, of three hundred and sixty-six days.When the period of a 'year' is named, a calendar year is generally intended, but the subject-matter or context of statute or contract in which the term is found or to which it relates may alter its meaning.

Black's Law Dictionary 1615, (6th ed. 1990) . Four arguments support using the astronomical year for interpreting what Congress intended by saying "at least one year."

First, one out of every four calendar years is 366 days. Thus, using a calendar year as the benchmark for a year would make an illogical distinction between those persons who were sentenced to a term of 365 days -- if one was lucky enough to receive that sentence in a leap year, he would not be an aggravated felon. Those who received the sentence in a non-leap year would be aggravated felons. There is no rational basis for creating such a distinction.

Second, the California Court could have imprisoned Mr. * for a year and removed all doubt about whether he was imprisoned for a year. Since the Court used days rather than years as a measure, one may infer that the court did not intend to imprison him for a year.

Third, case law supports the view that 365 days is not a year. In United States v. Tawab, 984 F.2d 1533 (9th Cir. 1993) the defendant argued that the indictment was barred because five periods of three hundred and sixty-five days had passed since indictment. Id. at 1534. The court rejected the argument reasoning that three hundred and sixty-five days is not always a year. Id. A similar conclusion was reached in Gammons v. Domestic Loans of Winston-Salem, Inc., 423 F. Supp. 819 (D.N.C. 1976), where the court found that the appropriate year period was 366 days.

Fourth, the rule of lenity requires that any doubt be resolved in Mr. *'s favor. United States v. Fuentes-Barahona, 111 F.3d 651, 652 (9th Cir. 1997). As the arguments above create doubt, this Court should rule Mr. * was not imprisoned for a year for the purposes of the aggravated felony definition.

Both Title 8 § 16 and the U.S.S.G. § 4B1.2 require force as an element for an offense to be considered an aggravated felony. Mr. * was convicted of P.C. 288(a) which does not require force. A lewd and lascivious act with a child under 14 committed with force falls under P.C. 288(b). Because Mr. *'s conviction is not for a crime involving force and his term of imprisonment was 365 days, not a year which could be 366 days, his lewd and lascivious acts P.C. 288(a) conviction is not an aggravated felony.

Consequently, this Court should dismiss Mr. *'s Indictment for 8 U.S.C. § 1326(b) (2) .

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