[00:00:00] Speaker 02:
By Carrie Hong.

[00:00:02] Speaker 02:
Yes.

[00:00:04] Speaker 02:
How are you?

[00:00:04] Speaker 04:
I am well.

[00:00:05] Speaker 04:
How are you, Your Honor?

[00:00:06] Speaker 02:
We see you from time to time.

[00:00:10] Speaker 04:
It's always wonderful to be here.

[00:00:16] Speaker 04:
So good morning.

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May it please the court?

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My name is Kori Hong, and I represent Petitioner Oscar Corrella Beltran.

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I will reserve three minutes for rebuttal, and I will watch my time.

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I will discuss the Arizona assault statute, then the first conviction involving the assault on a police officer, and lastly, the second conviction involving the assault resulting in a fracture.

[00:00:43] Speaker 04:
Now first, starting with the scheme, Arizona law and Ninth Circuit law clarify that the three numbered subsections of 1203A are not variants of a single unified offense.

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They are three different assault offenses.

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In addition, under 131204, there are 11 different factors which, when met, bump up assault into an aggravated assault under state law.

[00:01:11] Speaker 02:
Can I just ask you this, Ms.

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Hong?

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You know Taylor analysis very well.

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You've dealt with it for many years.

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We, unfortunately, have had to deal with it as well.

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It seems to me that most of your argument goes to the facts in the case.

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And as you well know, in the Taylor analysis, we're kind of stuck with basically what we're left with by the Supreme Court.

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And is the statute divisible?

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Are you disputing that the statute is divisible?

[00:01:42] Speaker 04:
No, the parties agree that the statute is divisible.

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That's established.

[00:01:45] Speaker 02:
So all we're looking at is the documentation that we can look at to determine whether or not this meets the modified categorical analysis.

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What is your view at this point of whether it does or does not?

[00:02:00] Speaker 04:
Well, it doesn't.

[00:02:01] Speaker 04:
And you are correct that the Ninth Circuit directs us to the plea colloquy when the conviction documents are silent, which the parties also agree that the conviction records, the plea, the indictment, and the final judgment.

[00:02:15] Speaker 04:
So then we properly go to the plea colloquy.

[00:02:18] Speaker 04:
OK.

[00:02:18] Speaker 04:
And at the plea colloquy, what the Ninth Circuit, what Sahagun Gallegos, and what four other cases say is that we have to look to see if there is statute, whether the factual recitation is not the conduct, as you mentioned, your honor, but whether the factual recitation mirrors the statutory language.

[00:02:37] Speaker 00:
So, counsel, let me get to sort of, I agree with you, that's the heart of the issue here.

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So let me tell you why I have a problem with your argument.

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This is an unusual plea colloquy, but those who practice criminal law see it from time to time where the defendant basically when he heard what the the proffer was said no, I didn't do it and The lawyer said well, let's step back a minute and then they came back the lawyers original thing was he committed His lawyer made the statement

[00:03:12] Speaker 00:
He committed aggravated assault by intentionally touching officer Gomez with the intent to injure first a punch in the face.

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After they came back, the court said, now Mr. Corella, is it true that you punched officer Gomez in the face as explained by Mr. Swartz?

[00:03:29] Speaker 00:
Yes, sir.

[00:03:30] Speaker 00:
Why isn't that enough under the modified categorical approach that

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Judge Smith was talking about to establish that this shepherd document meets the criteria laid down by us in the Supreme Court, given the detailed proffer, the question by the judge to your client and his answer.

[00:03:50] Speaker 04:
So Marcia Acosta and Sahagun Gallegos say that you have to mirror the relevant statutory language.

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And turning to the excerpt that you mentioned, Your Honor, the problem what happened here is exactly what happened in Casinos Mancino, where the attorney said, committed aggravated assault by intentionally touching officer gammas.

[00:04:11] Speaker 04:
Well, that phrase is very similar to the 1203A3.

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But in the case you're citing,

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Was there a further statement where the judge then says, is it true that you punched Officer Gámez in the face as explained by Mr. Swartz?

[00:04:27] Speaker 00:
Yes, sir.

[00:04:28] Speaker 04:
No, Your Honor, Sahagun Galegos says under 1100, it says even if there is factual assent, basically if the waters are muddy, the waters stay muddy, that even if Sahagun Galegos had assented to the factual basis provided by his attorney, which is your question, Your Honor, the documents submitted by the government do not demonstrate that he admitted the elements of 1203A2, most notably the intent

[00:04:57] Speaker 01:
But going back to the language you referenced earlier, you know, the prosecutor did latch on to a statutory phrase and, you know, framing the elements by saying he committed aggravated assault by intentionally touching Officer Gomez with the intent to injure.

[00:05:18] Speaker 01:
Now that exactly mirrors

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A3 except that intentionally a higher standard is substituted for knowingly.

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Why isn't that enough to say that it's predicated on A3 and A3 combined with the aggravator in 1204?

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then would meet the modified categorical approach.

[00:05:42] Speaker 04:
This exactly happened in Casinos Mencino, where there the defense said the defendant, this is a factual recitation, he recklessly placed the victim in reasonable apprehension of imminent injury.

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There the state court said, wait a minute, reckless is under A1, but A2, the reasonable apprehension, is under A2.

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Which one is it to the attorney?

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There he mashed up A1 and A2.

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And there, the attorney said, oh, I meant intentionally the apprehension and imminent injury, which matches A2.

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The greater includes the lesser.

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No.

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Because he said A3, but raised the signer.

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So that necessarily includes the lesser of A3.

[00:06:27] Speaker 04:
And that is not how Arizona law, it's not a crime.

[00:06:32] Speaker 01:
Under Casinos Mancino, when the same thing happened, the judge's- So it would not be, if you had an indictment in Arizona that pleaded A3 and said intentionally touching the officer with intent to injure, that would be a bad indictment?

[00:06:45] Speaker 04:
It would be defective.

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And the Casino Mancino is a case where, when there, the attorney mashed up A1 and A2, the judge said, I can't accept this plea because there's no statute.

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There's no crime that you just described.

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And the attorney said, you're right, and then recited the statutory language under A2.

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And then the judge said, you're correct.

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That is what the trial court, the judge.

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When you raise it and you plead to that,

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you're pleading to elements that necessarily cover all the elements of A3 because it's higher than A3.

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But it's not the crime and what's significant about it... The question is can we look at the plea colloquy and determine when we know

[00:07:24] Speaker 01:
that it's charged under one of these provisions, does he plead to the elements that establish that it's that subsection?

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And that's the only subsection that we know he pleaded the elements to.

[00:07:37] Speaker 04:
Well, and Your Honor, I'd say this, in theory, possibly, but this colloquy doesn't, because intentionally touching actually mirrors

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the knowingly touching person under A3.

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But then if it continues, he says that he caused temporary but substantial injury, which tracks the aggravating factor under A3.

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But unfortunately, that phrase modifies disfigurement and impairment.

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And then A3 uses causing physical injury, but not the temporary and substantial phrase.

[00:08:08] Speaker 00:
I'm sorry, but isn't the part you're reading, didn't your client's lawyer break it up into two parts?

[00:08:14] Speaker 00:
The first was the punch.

[00:08:15] Speaker 00:
and then in the ensuing fight, so isn't the language you're just quoting referring to the bone breaking part?

[00:08:22] Speaker 04:
No, this is part of the problem that it is all mixed up.

[00:08:25] Speaker 00:
Both convictions and... I'm sorry, I don't see the colloquy as mixed up.

[00:08:30] Speaker 00:
He committed aggravated assault by intentionally touching Officer Gomez with the intent to injure.

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First was a punch in the face which caused some minor bruising.

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And then in the ensuing fight, he struck Officer Gámez in a way causing temporary but substantial injury by breaking a bone.

[00:08:47] Speaker 04:
So intent to injure is A3, but it's only knowing, touching, not intentional.

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And then when you look under the aggradient factor under A3, the aggradient factor is either causing temporary but substantial disfigurement or a fracture of the body part.

[00:09:03] Speaker 04:
And so his latter mention of the boxer's fracture, that meets the fracture part of the aggradient factor, but this temporary and substantial disfigurement does not track.

[00:09:15] Speaker 02:
I'm interested in your response to Judge Collins' question, though.

[00:09:20] Speaker 02:
He, as you know, made the point that by, if you will, meeting a higher science or standard, that the lawyer and the colloquy satisfied the lesser standard of the different section.

[00:09:35] Speaker 02:
What's your response to that?

[00:09:37] Speaker 04:
It's not a crime, though.

[00:09:39] Speaker 04:
It has to match the statutory language of one, two, or three.

[00:09:42] Speaker 04:
But it does, doesn't it?

[00:09:43] Speaker 04:
It's not the crime that the Arizona legislature designated to be a crime.

[00:09:47] Speaker 04:
It's a different crime, but not that's cognizable and you could not prosecute.

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The prosecutor cannot prosecute the crime that this attorney came up with.

[00:09:58] Speaker 02:
So from your perspective, your client, despite the colloquy,

[00:10:05] Speaker 02:
did not plead guilty to all of the elements of a crime under Arizona law in this case.

[00:10:13] Speaker 02:
Is that correct?

[00:10:14] Speaker 04:
Yes, and I would also refer to the Arizona criminal procedure under

[00:10:22] Speaker 04:
13202 where the prosecution has to prove each element beyond the reasonable doubt and part of that too is that under that Arizona statute that each element has to be modified by by the specific mens rea and so if you prove

[00:10:41] Speaker 01:
that he acted intentionally, you necessarily have also shown that he acted knowingly, because knowingly is subsumed as a lesser mental state of intent.

[00:10:53] Speaker 04:
But it's not a crime that exists in Arizona.

[00:10:56] Speaker 04:
And this is where Marcia Acosta says, we can only uphold a conviction under Taylor.

[00:11:02] Speaker 01:
Marcia Acosta is when, you know, the fact that you plead to conduct that might fit a crime

[00:11:10] Speaker 01:
is not enough when we don't know which elements it was being plugged into.

[00:11:14] Speaker 01:
Here, we know the elements it's being plugged into.

[00:11:17] Speaker 01:
One of them is described as too high a burden for the government.

[00:11:21] Speaker 01:
I'm just not sure why that cuts in your client's favor.

[00:11:24] Speaker 04:
Well, because that intentionally touching refers to A3 and under the first conviction, the documents

[00:11:30] Speaker 04:
to tie it to A1.

[00:11:33] Speaker 04:
So that doesn't make any sense.

[00:11:35] Speaker 04:
So the conviction documents for the first conviction track A1.

[00:11:41] Speaker 04:
And then the question is, is the mens rea?

[00:11:43] Speaker 04:
And that's where Marcia Acosta as Sahun Galejos.

[00:11:46] Speaker 01:
The A3 argument can only work for count nine and not count four.

[00:11:50] Speaker 04:
Correct.

[00:11:50] Speaker 04:
And this is also where it's significant that if you look at the indictment of the dismissed counts, the dismissed counts do track the language accurately to the different mens reas, but not count four and not count nine.

[00:12:05] Speaker 04:
And so under count four, you have to have that mens rea.

[00:12:08] Speaker 04:
And that is Marshal Casa and then Sahagún Galegos, where it says, he did not admit the elements of the intent element.

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So this is on point with Sahagún Galegos.

[00:12:20] Speaker 04:
Now turning to the second conviction involving causing the fracture, this is under a young beholder, where under Arizona law, you cannot be convicted

[00:12:32] Speaker 04:
for A1, A2, A3.

[00:12:34] Speaker 04:
These are divisible separate offenses.

[00:12:36] Speaker 04:
And Young V Holder says, when someone admits guilty to multiple divisible subsections under one criminal count, they will not be held to have been found guilty under all three.

[00:12:49] Speaker 01:
Tell me why you think that

[00:12:54] Speaker 01:
The reference to the A3 language won't save Count 9?

[00:12:58] Speaker 04:
Well, it won't save Count 9 because Count 9, A3, is intentionally touching or knowingly touching the officer.

[00:13:11] Speaker 01:
Other than the knowing versus intentionally, do you have a further argument why it wouldn't salvage Count 9?

[00:13:17] Speaker 01:
Because the A3 is there for Count 9.

[00:13:19] Speaker 01:
It's there with the other two, but it

[00:13:22] Speaker 01:
That language kind of points towards A3 as the one that's load-bearing.

[00:13:26] Speaker 04:
Well, but under A3, you have to have the intent to injure, insult, or provoke.

[00:13:31] Speaker 04:
And the aggravating factors were either the victim was a police officer or that caused fracture.

[00:13:37] Speaker 01:
But those are the factors for 1204.

[00:13:38] Speaker 01:
We have to figure out what

[00:13:40] Speaker 01:
clause they were lying under under 1203 but and then under 1203 the we know that there is a fracture which fits more the physical injury under a one what he says is he committed aggravated assault by intentionally touching off sagamas with the intention to injure first

[00:13:59] Speaker 01:
and then in the ensuing fight.

[00:14:01] Speaker 01:
So he links both of them to that first clause.

[00:14:05] Speaker 01:
So it's still A3 for both.

[00:14:07] Speaker 01:
And maybe you're right, it doesn't work for four, but it seems to work for nine.

[00:14:11] Speaker 04:
And Your Honor, the fact that we're parsing out shows that the trial court was asleep at the wheel.

[00:14:17] Speaker 04:
Under Casino's Massino, when there was also a mashup of all these different readings.

[00:14:21] Speaker 01:
This isn't a collateral.

[00:14:23] Speaker 01:
attack on the state conviction.

[00:14:24] Speaker 01:
We just have to figure out for the modified categorical approach whether this document is enough to tell us which clause this rested on.

[00:14:34] Speaker 01:
And it looks like a three for count nine.

[00:14:37] Speaker 01:
I understand your argument it doesn't work for count four.

[00:14:39] Speaker 04:
And the fact that it looks like it, that's enough not for Taylor.

[00:14:43] Speaker 04:
You have to actually have it narrowed down to actually match the statutory language.

[00:14:47] Speaker 04:
That's why Marsha Acosta did not allow the similar facts of pointing a gun at someone be enough, or hitting someone on the skull and doing it intentionally.

[00:14:58] Speaker 04:
That was the plea colloquy of Marsha Acosta.

[00:15:00] Speaker 04:
And they said, that doesn't track any crime.

[00:15:03] Speaker 04:
And here, this plea colloquy does not track the statutory language, which for Taylor, you have to do.

[00:15:09] Speaker 04:
And it's not a collateral attack.

[00:15:10] Speaker 04:
People v. Kelly says that when you have a defective indictment, you have 20 days to raise your objection, 20 days before trial.

[00:15:18] Speaker 04:
And after that, you're still a valid conviction.

[00:15:21] Speaker 04:
So this is defective indictment, but it's still a valid conviction.

[00:15:25] Speaker 04:
And Casinos Mancino, that's where everything was mashed up.

[00:15:29] Speaker 04:
The trial judge said, wait a minute, which one are you talking about?

[00:15:34] Speaker 04:
And only then was there clarity, and that was a proper plea.

[00:15:38] Speaker 04:
And that, under Casino Mancino, was an aggravated felony.

[00:15:42] Speaker 04:
We don't have that certainty, which Taylor requires, which is why it can be enough to uphold the conviction.

[00:15:49] Speaker 04:
It cannot be enough.

[00:15:50] Speaker 04:
to actually deport this man who's been here for so long.

[00:15:53] Speaker 02:
You're over here, Tom.

[00:15:54] Speaker 02:
We'll give you a little bit of rebuttal time, but let's hear from the government, okay?

[00:15:57] Speaker 04:
Thank you, Your Honor.

[00:16:05] Speaker 03:
May it please the court.

[00:16:06] Speaker 03:
Dawn Conrad on behalf of the Attorney General.

[00:16:09] Speaker 03:
In this case, the board properly found that Petitioner's two Arizona aggravated assault convictions were both aggravated felony crimes of violence, which rendered Petitioner removable as charged.

[00:16:20] Speaker 01:
So which one does the count for rest on?

[00:16:22] Speaker 01:
Obviously, it has to rest on A1.

[00:16:24] Speaker 01:
Correct.

[00:16:25] Speaker 01:
But he didn't articulate, as my colloquy with counsel showed, he did not articulate the elements

[00:16:32] Speaker 01:
of A1 when called upon to provide the factual basis.

[00:16:36] Speaker 01:
He gave an augmented version of A3 for both of them.

[00:16:43] Speaker 03:
Yes, it is.

[00:16:44] Speaker 03:
The language was closer to A3, but we think it still is enough that he admitted to intentional conduct that injured the police officer, first by the punch in the face resulting in bruising, and second by breaking his hand.

[00:17:00] Speaker 01:
The problem is Marcia seems to say that even if the facts are so clear that it's obvious that it would fit this particular one, that that's not enough.

[00:17:11] Speaker 01:
You have to have something that shows that it links to these elements that are in the record, because otherwise you're just breaking down the whole categorical approach.

[00:17:20] Speaker 01:
You're actually looking just at the facts and saying, yeah, what is it on the facts?

[00:17:24] Speaker 01:
And you have to do it through this artifice of finding what the elements were.

[00:17:29] Speaker 01:
And there's no articulation of the A1 elements in this plea colloquy.

[00:17:34] Speaker 01:
We can all look at the facts and say it's A1, but Marcia seems to say we have to find some thing that says these are the elements that were pleaded to.

[00:17:45] Speaker 03:
Well, I think Marsha is a little, we would argue Marsha Acosta is a little, is distinguishable because first there's no assent by petitioner.

[00:17:53] Speaker 03:
In that case, he never assented to what his attorney.

[00:17:56] Speaker 00:
All there was was the recitation by counsel.

[00:17:57] Speaker 03:
Correct.

[00:17:58] Speaker 03:
Correct.

[00:17:59] Speaker 03:
And although this court and Marsha Acosta didn't really take into account that, later decisions of this court, such as

[00:18:09] Speaker 03:
Shahugin and Cornejo and the board in Casinos Mancia, they specifically distinguished Marcia Acosta on that basis, that he never assented to what his attorney said, which is a key in applying the modified categorical approach.

[00:18:28] Speaker 03:
Even under Shepard, you can only use a plea quality if

[00:18:32] Speaker 03:
the explicit finding, factual finding by the trial judge to which the defendant assented.

[00:18:38] Speaker 03:
So we argue this case is distinguishable from Marcia.

[00:18:43] Speaker 03:
This case is also distinguishable from Sehugan Gallegos.

[00:18:46] Speaker 01:
But in Marcia, what was said in the colloquy was he explains what happened and he says, and he did that intentionally.

[00:18:56] Speaker 01:
And then we went on to say that the statements applying the factual basis

[00:19:02] Speaker 01:
that the change of plea hearing was the only support for the district court's determination that Marcia Acosta's prior conviction qualified as a crime of violence in light of descamps.

[00:19:13] Speaker 01:
Admonition is sentencing courts to focus only on the elements, not the facts, of a defendant's prior conviction.

[00:19:18] Speaker 01:
The reliance on this statement standing alone was erroneous.

[00:19:21] Speaker 01:
It looks very similar.

[00:19:22] Speaker 01:
The only word that matches A1 is intentionally.

[00:19:26] Speaker 01:
It seems exactly like Marcia.

[00:19:28] Speaker 03:
Well, I would disagree slightly in that I think the statement also reflects that he caused injury, caused physical injury, when he punched the officer and he broke the officer's hand.

[00:19:41] Speaker 03:
Because those were the facts.

[00:19:43] Speaker 03:
Right.

[00:19:43] Speaker 03:
But it says, let me look at what the plea colloquy says.

[00:19:47] Speaker 03:
So it's intentionally with the intent to injure

[00:19:54] Speaker 03:
punching him in the face, causing minor bruising, and that causes an injury.

[00:20:00] Speaker 03:
But they weren't looking at this as determining the facts.

[00:20:04] Speaker 03:
They were just looking for the mens rea element, and here they found the element was intentional.

[00:20:09] Speaker 02:
Can I get back to, from my perspective, the real basics on this?

[00:20:14] Speaker 02:
There was a conviction under

[00:20:16] Speaker 02:
that's count 4.

[00:20:19] Speaker 02:
That's count 4.

[00:20:20] Speaker 02:
You walked through for the court where in the plea colloquy, the elements, not the fact, but the elements as required under the Taylor analysis were satisfied.

[00:20:34] Speaker 03:
So with the statement that he acted intentionally and it resulted in injury.

[00:20:40] Speaker 02:
And you think that's enough to satisfy the Taylor requirements?

[00:20:43] Speaker 03:
Yes.

[00:20:43] Speaker 02:
What about the count nine?

[00:20:46] Speaker 02:
That was under 1204A3.

[00:20:50] Speaker 02:
And what's your argument there?

[00:20:52] Speaker 02:
Where were the elements at?

[00:20:53] Speaker 03:
So count nine was actually under 1203A1, two, and three.

[00:20:58] Speaker 03:
And the board looked at categorically.

[00:21:01] Speaker 03:
So basically for the same reason count four.

[00:21:06] Speaker 03:
satisfied A1.

[00:21:07] Speaker 03:
They also found that count 3 satisfied A1.

[00:21:11] Speaker 03:
I'm sorry, count 9 satisfied A1.

[00:21:14] Speaker 03:
For A2, this court has already held that that's a categorical crime of violence.

[00:21:19] Speaker 03:
And for A3, they found that it, with the aggravating factor, which was the breaking the bone, that showed a sufficient level of violence to make A3.

[00:21:32] Speaker 02:
The government's argument is that Count 9, we don't get into a modified categorical analysis.

[00:21:37] Speaker 02:
This is satisfied categorically.

[00:21:39] Speaker 02:
That's all we need to look at from your perspective.

[00:21:41] Speaker 02:
Is that correct?

[00:21:42] Speaker 01:
Yes.

[00:21:43] Speaker 01:
So what's your response to Council's argument that the heightened science for in the description of the A3 elements prevents this from being a categorical match to A3 for Count 9?

[00:22:00] Speaker 03:
So we would disagree with counsel and agree with you, Judge, that knowingly is a lesser c-enter than intentional.

[00:22:10] Speaker 03:
So it's included in the intentional c-enter.

[00:22:13] Speaker 03:
Whereas in the case she is relying on, Cancino's the board case, the attorney in that case originally pled to recklessly.

[00:22:30] Speaker 03:
So because of recklessly did not meet, it was too low.

[00:22:33] Speaker 03:
It did not meet knowingly or intentionally.

[00:22:36] Speaker 03:
And I believe that was an A2 case that required intentional.

[00:22:39] Speaker 03:
So that's why the IJ again said, please repeat what the mens re.

[00:22:45] Speaker 03:
And that's when the judge clarified it was intentional.

[00:22:49] Speaker 03:
I mean, sorry, the attorney, the defense attorney.

[00:22:51] Speaker 01:
And you agree with counsel that count four cannot rest on A3?

[00:22:57] Speaker 03:
Yes, I agree because I believe the conviction documents identify the specific conviction under a one one and then and the aggravator is just the officer Correct in that one it is right It is the fact that he was a police officer and in the count nine and the aggravator is the fact that it resulted in the broken bone So the government essentially is adopting Judge Collins's approach with respect to the scientific aspect is that correct?

[00:23:26] Speaker 03:
with regard to when you consider A3.

[00:23:33] Speaker 00:
But you're also saying basically the colloquy which says intentionally touched with the intent to injure with a punch in the face that caused minor bruising also works.

[00:23:44] Speaker 03:
Right, and it meets A1.

[00:23:46] Speaker 00:
Yes.

[00:23:46] Speaker 03:
Yes, that would be our position.

[00:23:54] Speaker 03:
Also, I just would like to point out that obviously this was an aggravated felony charge based on two aggravated felonies So this court just has to find one of them was an aggravated felony in order to sustain his removability and I gather from your perspective since the categorical status of the a one two and three is set from your perspective we don't even need to get into the account for is that correct and

[00:24:22] Speaker 03:
Well, Your Honor, I believe for the first part of that, to show that it was A1, you're going to have to show that it was intentional or knowing conduct to meet that one, to meet that part of Count 9.

[00:24:37] Speaker 03:
But we would argue that this record does show that.

[00:24:43] Speaker 03:
Are there any further questions?

[00:24:45] Speaker 02:
Other questions?

[00:24:46] Speaker 02:
I think not.

[00:24:46] Speaker 03:
We respectfully ask the court to deny the petition for you.

[00:24:49] Speaker 02:
Very well.

[00:24:49] Speaker 03:
Thank you.

[00:24:50] Speaker 02:
Okay, Ms.

[00:24:51] Speaker 02:
Hahn, we'll give you a couple of minutes of rebuttal.

[00:24:54] Speaker 04:
Thank you.

[00:24:55] Speaker 04:
I have two quick points.

[00:24:56] Speaker 04:
One, I asked the court before making the decision to read the excerpt of Casino's Mancino, because there the defendant or the attorney said, the defendant recklessly placed the victim in reasonable apprehension of imminent injury.

[00:25:10] Speaker 04:
And there the trial court said, wait, which one was it?

[00:25:14] Speaker 04:
I don't understand.

[00:25:16] Speaker 04:
And then the court said, I'm looking at the mens reo 1203.

[00:25:19] Speaker 04:
You said recklessly.

[00:25:20] Speaker 04:
And then the counsel said, intentionally place the other and reasonable apprehension.

[00:25:27] Speaker 04:
That mirrors the statutory language of A2.

[00:25:30] Speaker 04:
Which case are you referring to on that?

[00:25:31] Speaker 02:
I'm sorry, what's that?

[00:25:32] Speaker 02:
Which case are you referring to?

[00:25:33] Speaker 04:
Casino Smencino.

[00:25:34] Speaker 02:
OK.

[00:25:35] Speaker 04:
And this is at the excerpts at 710 to 711, where it draws it out nicely to show what's supposed to happen and what is the factual recitation that's accepted by the trial court is the statutory language of A2.

[00:25:50] Speaker 04:
Now, under the footnote of 10 and Marsha Acosta, and under footnote 6, Esahagun Gallegos, this court says in theory there could be facts that narrow it to a statute, but it has to be so clear that everything else is excluded.

[00:26:08] Speaker 04:
And the fact that here you can have part of A3, you can have part of A2,

[00:26:13] Speaker 04:
you can have part of 120408, you can have part of 1204 or 1204A3 shows that this is too mashed up and too messy.

[00:26:24] Speaker 02:
Do you agree that the account 9 is analyzed on a categorical basis as opposed to a modified categorical basis?

[00:26:33] Speaker 04:
Under Young View Holder, it is.

[00:26:36] Speaker 02:
Young View Holder resolves.

[00:26:37] Speaker 02:
The government says we need to look at, I guess, the

[00:26:43] Speaker 02:
and otherwise it's satisfied.

[00:26:44] Speaker 02:
What's your response to that?

[00:26:46] Speaker 04:
Young Beholder says you can't do that because those are three different crimes that were in one particular count, not three.

[00:26:58] Speaker 02:
Other questions by my colleague?

[00:27:00] Speaker 04:
Thank you very much.

[00:27:01] Speaker 02:
Thank you very much.

[00:27:01] Speaker 02:
Thanks both counsel for your arguments, very helpful.

[00:27:05] Speaker 02:
The case of Cornea Beltran versus Garland is submitted.