United States v. Vidal

504 F.3d 1072, 2007 U.S. App. LEXIS 23739, 2007 WL 2937015

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 10, 2007
• Docket: 04-50185
• Status: Published

Opinions

Opinion by Judge PAEZ; Dissent by Judge CALLAHAN; Dissent by Judge KOZINSKI.

PAEZ, Circuit Judge:

Following Juan Jose Vidal’s plea of guilty to a violation of 8 U.S.C. § 1326, the district court imposed an eight-level sentence enhancement, pursuant to United States Sentencing Guidelines (“Guidelines” or “U.S.S.G.”) § 2L1.2(b)(l)(C) (2002),¹ based on Vidal’s 1994 conviction under California Vehicle Code section 10851(a), which criminalizes “theft and unlawful driving or taking of a vehicle.”

In this appeal, we consider whether a prior conviction for a violation of section 10851(a) qualifies as an aggravated felony within the meaning of U.S.S.G. § 2L1.2(b)(l)(C) and 8 U.S.C. § 1101(a)(43)(G),² which includes within the group of aggravated felony offenses “a theft offense (including receipt of stolen property) or burglary offense for which the term of imprisonment [is] at least one year.” We conclude that a conviction under section 10851(a) does not “necessarily satisfiy]” all the elements of the generic theft offense, see United States v. Grisel, 488 F.3d 844, 847 (9th Cir.2007) (en banc), because it applies not only to principals and accomplices but also to accessories after the fact. We also conclude, applying the modified categorical approach, that the record before us does not establish that by pleading guilty to a violation of section 10851(a), Vidal admitted to all the elements of generic theft. We therefore vacate the district court’s sentence and remand for resentencing.

I.

In 1994, Juan Jose Vidal was charged in the Municipal Court of San Diego County with “unlawful driving or taking of a vehicle” in violation of California Vehicle Code section 10851(a).³ Count One of the Complaint alleged:

On or about June 21, 1994 [Vidal] did willfully and unlawfully drive and take a vehicle, the personal property of GARY CRAWFORD, without the consent of and with intent to deprive the owner of title to and possession of said vehicle, in violation of Vehicle Code Section 10851(a).

Count Two charged Vidal with “receiving stolen property,” in violation of Penal Code section 496(a), for allegedly “buy[ing], receiving], concealing], selling], and withholding] a vehicle the property of GARY CRAWFORD, which had been stolen.”

Vidal pled guilty, pursuant to People v. West, 3 Cal.3d 595, 91 Cal.Rptr. 385, 477 P.2d 409 (1970), to Count One in exchange for the district attorney’s promise to dismiss Count Two. As opposed to the conduct charged in Count One of the Complaint — “willfully and unlawfully driving] and taking] a vehicle” — the written plea and waiver of rights form shows that Vidal pled guilty only to “driving a stolen vehi-ele.” No recitation of the factual basis for Vidal’s plea appears on this form. Instead, only “People v. West ” is entered in the section that requests a description of facts supporting any charges in Count One. The district court record does not contain a transcript of the plea hearing or a copy of the judgment of conviction and sentence.

In 2003, Vidal was charged with and pled guilty to violating 8 U.S.C. § 1326. Pursuant to U.S.S.G. § 2L1.2(b)(l)(C) (2002), Vidal was subject to an eight-level sentence enhancement if he “previously was deported, or unlawfully remained in the United States, after ... a conviction for an aggravated felony.”⁴ Concluding that the 1994 conviction under California Vehicle Code section 10851(a) constituted an aggravated felony “theft offense,” the district court applied the eight-level enhancement. After applying a three-level downward adjustment for acceptance of responsibility, the district court imposed a sentence of thirty-three months and a three-year period of supervised release.

Vidal timely appealed his sentence, arguing that his 1994 conviction was not an aggravated felony and that Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), precluded application of the Taylor modified categorical approach. See Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). He also objected, under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), to the district court’s treatment of the Guidelines as mandatory. A divided three-judge panel affirmed the district court’s application of the eight level sentence enhancement but remanded for further proceedings in light of Booker and United States v. Ameline, 409 F.3d 1073 (9th Cir.2005) (en banc). See United States v. Vidal, 426 F.3d 1011 (9th Cir.2005). We granted rehearing en banc, see 453 F.3d 1114 (9th Cir.2006), but stayed submission pending the Supreme Court’s decision in Gonzales v. Duenas-Alvarez, 549 U.S.-, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007).

Duenas-Alvarez establishes that the term “theft offense” in 8 U.S.C. § 1101(a)(43)(G) “includes the crime of ‘aiding and abetting ’ a theft offense” and that, accordingly, the possibility of being convicted under section 10851(a) as an accomplice does not render the statute broader than the generic definition. Id. at 820. In so holding, the Court rejected the petitioner’s argument that even if the generic theft offense includes accomplice liability, California’s application of the natural and probable consequences doctrine would support a conviction based on conduct that would not qualify as generic aiding and abetting. See id. at 821-22 (overruling Penuliar v. Ashcroft, 395 F.3d 1037 (9th Cir.2005), vacated - U.S.-, 127 S.Ct. 1146, 166 L.Ed.2d 992 (2007)). The Court declined to reach the petitioner’s alternative arguments that section 10851(a) is overbroad because it extends liability to accessories after the fact and because it encompasses joyriding. Id. at 822-23.

Duenas-Alvarez thus left open the question we consider here: whether the possibility of being convicted under section 10851(a) as an accessory after the fact renders the statute categorically broader than the generic theft offense. In light of our determination that it does, we need not address Vidal’s alternative arguments that section 10851(a) is overly inclusive because California’s natural and probable consequences doctrine would allow for conviction without mens rea to commit theft and because joyriding and de minimis deprivations fall within the statute’s sweep. We also conclude, applying the modified categorical approach, that because Vidal’s plea pursuant to People v. West did not establish the factual predicate for his conviction, the record does not “unequivocally establish that [he] pleaded guilty to all the elements of the generic [theft] offense.” Li v. Ashcroft, 389 F.3d 892, 896 n. 7 (9th Cir.2004) (internal quotation marks and alteration omitted). Accordingly, we vacate the sentence and remand for resentenc-ing.⁵

II.

Whether Vidal’s 1994 conviction constitutes an aggravated felony for purposes of U.S.S.G. § 2L1.2(b)(l)(C) is a question of law that we review de novo. United States v. Arellano-Torres, 303 F.3d 1173, 1176 (9th Cir.2002) (citing United States v. Rivera-Sanchez, 247 F.3d 905, 907 (9th Cir.2001) (en banc)).

III.

To determine whether the district court properly applied the eight-level enhancement in U.S.S.G. § 2L1.2(b)(l)(C) to Vidal’s conviction under California Vehicle Code section 10851(a), we employ the two-step test set forth in Taylor. We first consider whether the “full range of conduct covered by the criminal statute falls within the meaning of’ the generically defined theft offense. Chang v. INS, 307 F.3d 1185, 1189 (9th Cir.2002) (internal quotation marks and alteration omitted). If the answer to this first, categorical inquiry is no, we then turn to the Taylor modified categorical approach “to determine if there is sufficient evidence [in the record] to conclude that [Vidal] was convicted of the elements of the generically defined crime.” Id.

A. Categorical Approach

Like several of our sister circuits,⁶ we generically define a theft offense as “a taking of property or an exercise of control over property without consent with the criminal intent to deprive the owner of rights and benefits of ownership, even if such deprivation is less than total or permanent.” Martinez-Perez v. Gonzales, 417 F.3d 1022, 1026 (9th Cir.2005) (internal quotation marks omitted).⁷ Vidal’s 1994 conviction is not categorically a theft offense unless the full range of conduct proscribed by section 10851(a) falls within the scope of this generic definition. We conclude that it does not because whereas the generic theft offense encompasses only principals, accomplices,⁸ and others who incur liability on the basis of pre-offense conduct, section 10851(a) also reaches accessories after the fact.

1.

At common law, participants in a felony offense fell into four separate categories:

(1) first-degree principals, those who actually committed the crime in question;

(2) second-degree principals, aiders and abettors present at the scene of the crime; (3) accessories before the fact, aiders and abettors who helped the principal before the basic criminal event took place; and (4) accessories after the fact, persons who helped the principal after the basic criminal event took place.

Duenas-Alvarez, 127 S.Ct. at 820 (citing Standefer v. United States, 447 U.S. 10, 15, 100 S.Ct. 1999, 64 L.Ed.2d 689 (1980)). Modern criminal law, however, has eliminated the distinction among the first three groups. Id. (citing Standefer, 447 U.S. at 16-19, 100 S.Ct. 1999, and Nye & Nissen v. United States, 336 U.S. 613, 618, 69 S.Ct. 766, 93 L.Ed. 919 (1949)); see also id. (explaining that every state and federal jurisdiction has abolished the common-law distinction between principals and aiders and abettors and that “criminal law now uniformly treats those who fall into [these three groups] alike”); 2 Wayne R. LaPave, Substantive Criminal Law § 13.1 (2d ed. 2003) (“The distinctions between the [first] three categories ... have now been largely abrogated.”). The Supreme Court accordingly concluded in Duenas-Alvarez that “one who aids or abets a theft falls, like a principal, within the scope of [the] generic definition” of a theft offense. 127 S.Ct. at 820.

In contrast, federal law, like many state criminal codes, has retained accessories after the fact as a separate category. Compare 18 U.S.C. § 2(a) (allowing accessories before the fact to be punished as principals), with 18 U.S.C. § 3 (limiting accessories after the fact to one half of the principal’s maximum punishment); see also Bollenbach v. United States, 326 U.S. 607, 611, 66 S.Ct. 402, 90 L.Ed. 350 (1946) (“Congress has not made accessories after the fact principals. Their offense is distinct and is differently punished.” (citation omitted)); LaFave, supra, § 13.1 (“[The] category [of accessory after the fact] has ... remained distinct from the others, and today the accessory after the fact is not deemed a participant in the felony but rather one who has obstructed justice, subjecting him to different and lesser penalties.”).

We have therefore held that a prior felony conviction for being an accessory after the fact to murder for hire does not fall within the generic definition of “crime of violence” so as to trigger the career offender enhancement in U.S.S.G. § 4B1.1 (1989). See United States v. Innie, 7 F.3d 840, 850 (9th Cir.1993) (explaining that the generic crime of violence includes the element of attempted or threatened use of physical force against the person or property of another but that accessory-after-the-faet liability under 18 U.S.C. § 3 does not); id. at 852 (“[T]he offense of being an accessory after the fact is clearly different from aiding and abetting.... [because] an accessory after the fact does not aid in the commission of the underlying offense.”); see also United States v. Gomez-Mendez, 486 F.3d 599, 604-05 (9th Cir.2007) (holding that a conviction for statutory rape could encompass “aiding and abetting or for participating as an accessory before the fact” but describing accessory-after-the-fact liability as “as a separate and distinct criminal offense”).

Application Note 4 to U.S.S.G. § 2L1.2 (2002)⁹ does not alter this analysis. The note instructs that “[p]rior convictions of offenses counted under subsection (b)(1) [listing specific offense characteristics] include the offenses of aiding and abetting, conspiring, and attempting, to commit such offenses.” As discussed above, modern criminal law treats aiders and abetters as principals. 2 LaFave, supra, § 13.1. The rationale behind the inchoate offenses of conspiracy and attempt is similarly to criminalize conduct that contributes to the commission of the underlying offense. See 2 id. § 11.2 (describing attempt); § 12.1 (describing conspiracy). Aecessory-after-the-fact liability, in contrast, is aimed at post-offense conduct that aids the offender in evading law enforcement. As LaFave explains in his treatise Substantive Criminal Law:

This development whereby the accessory after the fact is dealt with in a distinct way is a most appropriate one and does not conflict at all with the modern tendency to abolish the distinctions between principals in the first degree, principals in the second degree, and accessories before the fact. The latter three types of offenders have all played a part in the commission of the crime and are quite appropriately held accountable for its commission. The accessory after the fact, on the other hand, had no part in causing the crime; his offense is instead that of interfering with the processes of justice and is best dealt with in those terms.

Id. § 13.6 (emphases added).

Our analysis in United States v. Cox, 74 F.3d 189 (9th Cir.1996), and United States v. Shumate, 329 F.3d 1026 (9th Cir.2003), of an identically phrased application note further shows why accessories after the fact do not fall within the group of offenders to whom Congress intended the § 2L1.2(b)(l)(C) enhancement to apply.¹⁰ We concluded in Cox that Application Note 1 to § 4B1.2¹¹ was not exhaustive and that “the omission of solicitation from the list [of offenses included within “crime of violence”] does not carry legal significance.” Id. at 190 (citing § 1B1.1 cmt. n. 2, which explains that “[t]he term ‘includes’ is not exhaustive”). We therefore held that Cox’s conviction for solicitation of murder for hire was a “crime of violence” under § 4B1.2 and so triggered an enhancement under § 4B1.1. Id. Relying on Cox, we similarly concluded in Shumate that a conviction for solicitation of a controlled substances offense triggered a § 4B1.1 sentence enhancement. See 329 F.3d at 1030 (citing Cox, 74 F.3d at 190); see also id. at 1029 n. 5 (reconciling Cox with Rivera-Sanchez, 247 F.3d 905).¹²

As described above, this distinction comports with general principles of criminal law. Application Note 4 to U.S.S.G. § 2L1.2 is titled “Aiding and Abetting, Conspiracies, and Attempts.” Along with solicitation, these are all offenses that require as one element the mens rea to achieve the commission of a particular crime. See 4 Wharton’s Criminal Law § 695 (defining mental state for attempt); 4 id. § 680 (defining mental state for conspiracy); § 38 (describing an accomplice as one who “with the intent to promote or facilitate the commission of the crime, ... solicits, requests, or commands the other person to commit it, or aids the other person in planning or committing it” and noting that “[t]he absence of mens rea precludes one from being an accomplice” (emphases added)). An accessory after the fact, in contrast, need only, with “knowledge] that a felony has been committed, render[ ] aid to the felon in order to protect him, hinder his apprehension, or facilitate his escape.... [I]t is obviously impossible for his mens rea to be the same as that of the felon whom he aids.” 1 id. § 33. Because one need only have assisted the offender with knowledge that the offense has already been committed in order to incur accessory-after-the-fact liability, see 18 U.S.C. § 3, one who is convicted as an accessory after the fact to theft cannot be said to have committed all elements of generic theft, which includes the element of “criminal intent to deprive the owner of rights and benefits of ownership,” Martinez-Perez, 417 F.3d at 1026.

For these reasons, we conclude that an accessory after the fact to theft cannot be culpable of generic theft. Thus, if section 10851(a) extends liability to accessories after the fact, then an offense under this statute is not categorically an aggravated felony as defined in 8 U.S.C. § 1101(a)(43)(G).

2.

Section 10851(a) imposes criminal liability for the “[t]heft and unlawful driving or taking of a vehicle” on:

[a]ny person who drives or takes a vehicle not his or her own, without the consent of the owner thereof, and with intent either to permanently or temporarily deprive the owner thereof of his or her title to or possession of the vehicle, whether with or without intent to steal the vehicle, or any person who is a party or an accessory to or an accomplice in the driving or unauthorized taking or stealing....

Id. (emphasis added). Without reaching the parties’ dispute over this statute’s taking and intent requirements, we focus the crux of our inquiry solely on the phrase “party or an accessory to or an accomplice in.” ¹³

California explicitly abrogated the common-law distinction between principals and accessories before the fact in 1872, with the enactment of Penal Code section 971, which is still in effect. As the California Supreme Court definitively announced in People v. Collum, “in this State an acces-sary [sic] before the fact is not recognized. The law declares such an [sic] one a principal.” 122 Cal. 186, 187, 54 P. 589 (1898).

California’s original vehicle theft statute was enacted in 1923, see Veh.Code § 146 (repealed in 1935 and reeodifed at § 503),¹⁴ and, like the present section 10851(a), made the driving of a vehicle without the owner’s consent “with intent to either permanently or temporarily deprive the owner ... of his title to or possession of such vehicle whether with or without intent to steal the same” a felony. Also like the current section 10851(a), the 1923 statute extended felony liability to “[a]ny person who assists in, or is a party or accessory to or an accomplice in, any such stealing.” 1923 Cal. Stat. page 564.¹⁵ Given that California abolished any distinction between principals and accessories before the fact half a century prior to the enactment of the original vehicle theft statute, see Pen.Code § 971, section 10851(a)’s use of the term “accessory to” can refer only to accessories after the fact.

That section 10851(a)’s use of “accessory to” refers only to accessories after the fact&emdash;and not to accessories before the fact or accomplices&emdash;is further evidenced by comparing the statutory definitions of the terms in the Penal Code. Section 31 defines “principals” as “[a]ll persons concerned in the commission of a crime, ... whether they directly commit the act constituting the offense, or aid and abet in its commission, or, not being present, have advised and encouraged its commission”. Section 1111 defines an “accomplice” as “one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given.” By contrast, section 32, defines an “accessory” as one “who, after a felony has been committed, harbors, conceals or aids a principal in such felony, with the intent that said principal may avoid or escape from arrest, trial, conviction or punishment, having knowledge that said principal has committed such felony or has been charged with such felony or convicted thereof.” The California Penal Code therefore explicitly uses the term accessory to refer only to an accessory after the fact. See also People v. Horton, 11 Cal.4th 1068, 47 Cal.Rptr.2d 516, 906 P.2d 478, 506 (1995) (“A mere accessory ... is not an accomplice.”).

We presume that a legislature does not employ redundant language in crafting a statute and are therefore obliged to read the terms “accessory” and “accomplice” in Vehicle Code section 10851(a) as referring to distinct, rather than overlapping, classes of offenders. See Am. Vantage Cos. v. Table Mountain Rancheria, 292 F.3d 1091, 1098 (9th Cir.2002) (“It is a well-established principle of statutory construction that legislative enactments should not be construed to render their provisions mere surplusage.” (internal quotation marks omitted)). We therefore disagree with the dissenters’ approach of simply treating “accessory to” in section 10851(a) as a “single superfluous and ambiguous word.” Callahan Dissent at 1090; see also Kozin-ski Dissent at 1099-1100. We may not ignore the express language of the statute, particularly in light of the fact that the California legislature has revisited this offense at least ten times since its 1923 enactment of the original section 146 (repealed 1939). Despite two recodifications and numerous amendments, the state legislature has never eliminated or modified the “accessory to” language. For the same reason, we reject the Government’s argument that section 10851(a) is “inartfully drafted” and that, consequently, nothing can be inferred from the inclusion of the term “accessory.” This assertion flies in the face of our presumption that a legislative body acts rationally when it enacts statutes, see Crandal v. Ball, Ball & Brosamer, Inc., 99 F.3d 907, 910 (9th Cir.1996) (“A statute should be read in a manner which attribute^] a rational purpose to the legislature.”), as well as the canon against converting statutory language into sur-plusage, see Am. Vantage Cos., 292 F.3d at 1098.¹⁶

Because section 10851(a) expressly extends to one who is an “accessory to ... the driving or unauthorized taking or stealing,” and because Penal Code section 971 eliminates accessories before the fact as a recognized felon category,¹⁷ the plain text of the statute under which Vidal was convicted establishes a “realistic probability” that California “would apply its statute to conduct that falls outside the generic definition of’ a theft offense. Duenas-Alvarez, 127 S.Ct. at 822. As we recently explained in Grisel, when “the text of the statute expressly includes in its definition that which[is] expressly excluded from the generic, federal definition,” the statute is overly inclusive. 488 F.3d at 850. This is because

[when a] state statute explicitly defines a crime more broadly than the generic definition, no “legal imagination,” Duenas-Alvarez, 127 S.Ct. at 822, is required to hold that a realistic probability exists that the state will apply its statute to conduct that falls outside the generic definition of the crime. The state statute’s greater breadth is evident from its text.

Id.

Vidal’s argument therefore differs from that advanced by the petitioner in Due-nas-Alvarez, who urged the Court to conclude that section 10851(a) was overly in-elusive because California’s application of the natural and probable consequences doctrine created the possibility that one could be convicted under this statute for conduct that would not categorically qualify as generic aiding or abetting. See 127 S.Ct. at 820-21. In the absence of any case “in which the state courts in fact did apply the statute in the special (nongeneric) manner,” id. at 822, this argument failed for lack of evidence that such an application of the state statute was a “realistic probability[and] not a theoretical possibility,” id. In contrast, when “[t]he state statute’s greater breadth is evident from its text,” Grisel, 488 F.3d at 850, a defendant may rely on the statutory language to establish the statute as overly inclusive.¹⁸ Vidal has therefore satisfied his burden by pointing to the text of section 10851(a), which — particularly in light of California’s statutory abolition of accessory before the fact as a distinct felon category, see Pen. Code § 971 — expressly extends to accessories after the fact.

Vidal’s case also differs from James v. United States, — U.S. -, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007), where the Supreme Court rejected an argument that a Florida statute was categorically broader than the generic offense in light of the fact that “the Florida Supreme Court has considerably narrowed its application in the context of attempted burglary.” Id. at ; see also id. (noting that “Florida’s lower courts appear to have consistently applied this heightened standard”). Here, the Government has presented no similar, affirmative proof that any California court has expressly limited section 10851(a) so as to preclude its application to accessories after the fact.

The Government unavailingly relies on People v. Clark, 251 Cal.App.2d 868, 60 Cal.Rptr. 58 (Ct.App.1967), and People v. Donnell, 52 Cal.App.3d 762, 125 Cal.Rptr. 310 (Ct.App.1975), to support its position that notwithstanding the plain text of the statute, California courts read “accessory” in section 10851(a) to mean accomplice. In Clark, the Court of Appeal held that a passenger in a stolen car could not be convicted under 10851(a) because “[a]t a minimum, [the] defendant must have known that the vehicle had been unlawfully acquired and must have had that knowledge at a time when he could be said to have, in some way, aided or assisted in the driving.” 60 Cal.Rptr. at 62. In that case, the prosecution never claimed that the defendant was an accessory after the fact, so it is doubtful that the court’s statement was meant to relate to that theory at all. Moreover, the statement explicitly allows liability in situations where assistance by another occurs after the actual theft, which is more consistent with an accessory-after-the-fact theory than an accomplice theory.

The Government’s suggested reading of Clark would require an assumption that the California Court of Appeal contravened its own “canon of interpretation requiring us to accord significance, if possible, to every word, phrase and sentence in pursuance of the legislative purpose.” United Farm Workers of Am. v. Agric. Labor Relations Bd., 41 Cal.App.4th 303, 48 Cal.Rptr.2d 696, 704 (Ct.App.1995)(in-ternal quotation marks omitted). The court further noted in United Farm Workers that “[a] construction making some words surplusage is to be avoided.” Id.; see also Med. Bd. of Cal. v. Super. Ct., 88 Cal.App.4th 1001, 106 Cal.Rptr.2d 381, 390 (Ct.App.2001) (“The statutory language is the best indicator of legislative intent. .. .[T]he most powerful safeguard for the courts’ adherence to their constitutional role of construing, rather than writing, statutes is to rely on the statute’s plain language.” (alteration, ellipsis, and internal quotation marks omitted)).¹⁹ We are unwilling to assume that in Clark the Court of Appeal decided, without explanation, to reject this canon of construction by ignoring the plain text of section 10851(a).

The Government’s reliance on Donnell is also misplaced. In that case, the Court of Appeal rejected an argument by the People that because the evidence showed that the defendant was not an “actual participant in the physical taking of [victim Dow-en’s] car[,] ... he could be found guilty of both taking and receiving the vehicle when he was later found driving it.” 125 Cal. Rptr. at 314 (summarizing the People’s argument). Even without any indication that the defendant participated in the taking of Dowen’s car, he was liable, under the unique circumstances of his case, for theft under section 10851(a) and therefore improperly convicted of receiving the same as stolen property, id. at 314, a holding that does nothing to read aecessory-after-the-fact liability out of section 10581(a).

Judge Callahan’s dissent, in arguing that section 10851(a) extends to only principals and accomplices, points to California Jury Instruction (“CALJIC”) 14.36, which lists as elements of an offense under this statute:

1 A person took or drove a vehicle belonging to another person; 2 The other person had not consented to the taking or driving of [his][her] vehicle; and 3 When the person took or drove the vehicle, [he][she] had the specific intent to deprive the owner either permanently or temporarily of [his] [her] title to or possession of the vehicle.²⁰

See Callahan Dissent at 1091. But the fact that this model jury instruction articulates the elements for principal liability does not limit the statute’s reach to principals. If the prosecution advanced a theory of aiding and abetting or accomplice liability, the jury would be given CALJIC 3.01²¹ or 3.10,²² respectively, in addition to 14.36. If the prosecution advanced an accessory-after-the-fact theory, the jury would be given a modified instruction defining accessories after the fact. The California Court of Appeal expressed approval of such an instruction in People v. Slayden, 73 Cal. App.2d 345, 166 P.2d 304 (Ct.App.1946), where it held that by instructing jurors that “any person who assists in, or is a party or an accessory to, or an accomplice in, any such stealing or unauthorized taking or driving [of a vehicle], shall also be deemed guilty of a felony,” the trial court “eorrect[ly] state[d] the principles of law embodied therein. (Section 503 of the Vehicle Code.).” Id. at 305 (internal quotation marks omitted) (emphasis added).²³

Judge Callahan’s dissent further argues that Vehicle Code section 10851(a)’s use of the term “accessory” must be redundant with “accomplice to” because Penal Code section 32 establishes accessory-after-the-fact liability as a distinct offense, the elements of which must be charged and proven beyond a reasonable doubt. See Callahan Dissent at 1092-93; see also Kozinski Dissent at 1100-01. We do not dispute the general proposition that California requires the prosecution separately to allege and prove the elements of accessory-after-the-fact liability in order to sustain a Penal Code section 32 conviction. “[I]n the absence of statute, an accessory after the fact must be indicted and convicted as such.” People v. Prado, 67 Cal.App.3d 267, 136 Cal.Rptr. 521, 523 (Ct.App.1977). There is no “absence of statute” here, however, because Vehicle Code section 10851(a) by its very terms includes aeces-sory-after-the-fact liability within the felony offense. The fact that California courts have overturned convictions under Penal Code section 32 in cases involving predicate felonies under various sections of the Penal Code has no bearing on our analysis of whether one may be convicted under Vehicle Code section 10851(a) for accessory-after-the-fact conduct.²⁴

Judge Callahan’s dissent finally suggests that we should treat California’s aceessory-after-the-fact law equivalently with federal law. We agree that both jurisdictions ordinarily treat an aceessory-after-the-fact offense as separate and distinct from the predicate felony. But this does not erase the effect of section 10851(a)’s express language: “any person who is a party or an accessory to or an accomplice in the driving or unauthorized taking or stealing [of a vehicle], is guilty of a public offense.” (Emphasis added). Regardless of any general equivalence between Penal Code section 32 and 18 U.S.C. § 3, we are presented here with a statute that plainly includes accessories after the fact within the scope of the felony offense. The requirements of Penal Code section 32, as established in cases involving other predicate felonies, whether state or federal, are therefore inapplicable.

In sum, because section 10851(a) extends to accessories after the fact and because the generic theft offense only reaches principals and other similar offenders, we cannot conclude that the “full range of conduct” covered by this California statute would sustain a generic theft conviction. See Chang v. INS, 307 F.3d 1185, 1189 (9th Cir.2002) (internal quotation marks omitted). We must therefore proceed to the modified categorical approach “to determine if the record unequivocally establishes that [Vidal] was convicted of the generically defined crime, even if the statute defining [his] crime is overly inclusive.” Martinez-Perez, 417 F.3d at 1028.

B. Modified Categorical Approach

A prior conviction based on an overly inclusive criminal statute that resulted from a guilty plea rather than a jury verdict will support a sentence enhancement only if the record confirms that the plea “ ‘necessarily’ rested on the fact identifying the [offense] as generic.” Shepard v. United States, 544 U.S. 13, 21, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005) (quoting Taylor, 495 U.S. at 602, 110 S.Ct. 2143). In making this determination, “any enquiry beyond statute and charging document must be narrowly restricted to implement the object of the statute and avoid evidentiary disputes.” Id. at 23 n. 4, 125 S.Ct. 1254. Accordingly, in considering whether Vidal’s 1994 guilty plea “necessarily admitted, and supported a conviction for, generic [theft],” our review is “limited to examining the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which [Vidal] assented.” Id. at 16, 125 S.Ct. 1254. We may not “ ‘look beyond the record of conviction itself to the particular facts underlying the conviction.’ ” Fernandez-Ruiz v. Gonzales, 468 F.3d 1159, 1164 (9th Cir.2006) (quoting Tokatly v. Ashcroft, 371 F.3d 613, 620 (9th Cir.2004)); see also Lara-Chacon v. Ashcroft, 345 F.3d 1148, 1154 (9th Cir.2003) (same).

Consistent with Shepard, we applied the modified categorical approach in Smith and concluded that the defendant’s plea of nolo contendere to first degree burglary qualified as a violent felony within the meaning of U.S.S.G. § 4B1.2(1). See 390 F.3d at 666. Relying on the transcript of the plea colloquy, during which Smith admitted, through counsel, to having unlawfully entered an inhabited dwelling, we agreed with the district court that the “record clearly established the elements of generic burglary.” Id. at 664; see also id. at 665-66 (summarizing the record and concluding that it established the factual elements of generic burglary).

Also consistent with Shepard, we held in United States v. Snellenberger, 493 F.3d 1015 (9th Cir.2007), that the defendant’s plea of nolo contendere to burglary did not necessarily establish his conviction as a crime of violence when the record did not contain “ ‘the terms of a plea agreement or transcript of a colloquy between the judge and defendant in which the factual basis for the plea was confirmed by the defendant, or some comparable judicial record of this information.’ ” Id. at 1019 (quoting Shepard, 544 U.S. at 26, 125 S.Ct. 1254) (alterations omitted). The record contained only a minute order, which was insufficient because it did not indicate that the defendant even assented to facts supporting the plea, let alone what that factual basis was. See id. (explaining that the minute order “contains no facts and no indication that it has even been shown to the defendant”); see also Jordison v. Gonzales, 501 F.3d 1134, 1134-35, 2007 WL 2472635, at *1 (9th Cir.2007) (publication pending) (holding that a record containing only the charging document and the minute order of defendant’s plea colloquy did not establish the conviction as the generic offense).

The record here similarly fails to establish the factual predicate for Vidal’s plea of guilty pursuant to People v. West. The only two judicially noticeable documents before the district court were the Complaint and the written plea and waiver of rights form.²⁵ We know from the Complaint that Vidal was charged with “willfully and unlawfully driv[ing] and tak[ing] a vehicle ... without the consent of and with intent to deprive the owner of title to and possession of said vehicle, in violation of Vehicle Code Section 10851(a).” He pled guilty, however, only to “Count 110851(a) VC Driving a Stolen Vehicle.” The plea does not, therefore, establish that Vidal admitted to all, or any, of the factual allegations in the Complaint.²⁶ In order to identify a conviction as the generic offense through the modified categorical approach, when the record of conviction comprises only the indictment and the judgment, the judgment must contain “the critical phrase ‘as charged in the Information.’ ” Li, 389 F.3d at 898; cf. Bonat, 106 F.3d at 1477-78 (“Even if we agreed with Bonat that the district court only relied on the charging document, we would affirm because the Judgment on Plea of Guilty shows that Bonat did in fact plead guilty to second degree burglary as charged in the Information, and the Information included all the elements of generic burglary.” (emphasis added)).

Moreover, in the context of a People v. West plea, “[a] court is not limited to accepting a guilty plea only to the offense charged but can accept a guilty plea to any reasonably related lesser offense.” People v. Tuggle, 232 Cal.App.3d 147, 283 Cal.Rptr. 422, 426 n. 10 (Ct.App.1991) (rejecting reliance on the fact that the offense was charged in the conjunctive because the prosecutor could have amended the information before the plea) (citing West, 91 Cal.Rptr. 385, 477 P.2d at 419-20), overruled on other grounds by People v. Jenkins, 10 Cal.4th 234, 40 Cal.Rptr.2d 903, 893 P.2d 1224 (1995). The prosecution need not have formally amended the two counts in order for Vidal to have pled guilty to conduct other than that alleged in the Complaint. See People v. Sandoval, 140 Cal.App.4th 111, 43 Cal.Rptr.3d 911, 926 (Ct.App.2006) (explaining that under California’s informal amendment doctrine no “talismanic significance [attaches] to the existence of a written information” and that “a defendant’s conduct may effect an informal amendment of an information without the People having formally filed a written amendment to the information”). Here, and in contrast to Bonat, where we affirmed a sentence enhancement because the state court judgment of conviction on which the district court relied reflected that the defendant pled guilty “to second degree burglary as charged in the Information,” 106 F.3d at 1478 (emphasis added), we have no way of knowing what conduct Vidal admitted when he pled guilty to conduct that was not identical to that charged in Count One of the Complaint.

In addition to the fact that Vidal did not plead “guilty as charged,” an indictment that merely recites the language of the statute, as does the 1994 Complaint, is insufficient to establish the offense as generic for purposes of a modified categorical analysis. See United States v. Lopez-Montanez, 421 F.3d 926, 931 (9th Cir.2005).²⁷ We have repeatedly held that charging documents are “insufficient alone to prove the facts to which [a defendant] admitted.” Snellenberger, 493 F.3d at 1019 (citing Ruiz-Vidal v. Gonzales, 473 F.3d 1072, 1078 (9th Cir.2007), and United States v. Parker, 5 F.3d 1322, 1327 (9th Cir.1993) (holding that charging papers alone did not clearly establish whether the prior conviction was based on conduct that fell within the generic offense)).

When, as here, the statute of conviction is overly inclusive, “without a charging document that narrows the charge to generic limits, the only certainty of a generic finding lies ... in the defendant’s own admissions or accepted findings of fact confirming the factual basis for a valid plea.” Shepard, 544 U.S. at 25, 125 S.Ct. 1254. The only other judicially noticeable document in the record before us that might provide this confirmation is the written plea and waiver of rights form, which reflects that Vidal entered a plea of guilty pursuant to People v. West In West the California Supreme Court affirmed the constitutionality of plea bargaining, specifically addressing the practice of pleading guilty to a lesser offense “without specification of punishment.” 91 Cal.Rptr. 385, 477 P.2d at 416.²⁸ The court also explained that, for purposes of reviewing the constitutionality of a defendant’s plea, the trial court should create a record that includes the plea bargain. Id. at 417-18; see also id. at 421 (“[T]he plea bargain plays a vital role in our system of criminal procedure .... We emphasize, again, however, that the plea bargain can be viable only if it is candidly disclosed to the trial court and incorporated in the record of the case.”).

The California Supreme Court subsequently characterized a People v. West plea as a plea of nolo contendere that does not establish factual guilt. See In re Alvernaz, 2 Cal.4th 924, 8 Cal.Rptr.2d 713, 830 P.2d 747, 752 (1992) (describing a People v. West plea as a “plea of nolo conten-dere, not admitting a factual basis for the plea”); see also United States v. Nguyen, 465 F.3d 1128, 1130 (9th Cir.2006) (“[A] plea of nolo contendere ... is, first and foremost, not an admission of factual guilt. It merely allows the defendant so pleading to waive a trial and to authorize the court to treat him as if he were guilty.” (citation omitted)). By entering a West plea a defendant “[does] not admit the specific details about his conduct on the ... counts[to which] he pled guilty.” Carty v. Nelson, 426 F.3d 1064, 1068 (9th Cir.2005) (citing In re Alvernaz, 2 Cal.4th 924, 8 Cal. Rptr.2d 713, 830 P.2d 747); see also West, 91 Cal.Rptr. 385, 477 P.2d at 420 (explaining that by entering a plea agreement a defendant “demonstrates that he ... is prepared to admit each of [the offensejs elements” but not factual guilt). As a result, unless the record of the plea proceeding reflects that the defendant admitted to facts, a West plea, without more, does not establish the requisite factual predicate to support a sentence enhancement.

Here, we lack a transcript of Vidal’s change of plea hearing or any recordation of the terms of his plea bargain. Although Vidal signed the written plea and waiver of rights form, he wrote only “People v. West ” in the section requesting a description of “facts as to each charge” to which he was pleading guilty. The form, like the Complaint, therefore fails to establish the factual predicate for Vidal’s plea. Because he did not plead guilty “as charged,” see Li, 389 F.3d at 898, and because we lack a memorialization of the terms of his plea bargain or even a judgment of conviction, the paltry record before the district court does not eliminate the possibility that Vidal was convicted as an accessory after the fact to theft, which we have concluded does not fall within the generic theft offense.²⁹

IV.

The district court erred in applying the eight-level enhancement in U.S.S.G. § 2L1.2(b)(l)(C) on the basis of Vidal’s 1994 conviction under California Vehicle Code section 10851(a). In contrast to the generic theft offense, which encompasses principals and other similar offenders, section 10851(a) — read in light of California’s statutory abolition of accessory before the fact as a separate felon category — necessarily applies to accessories after the fact as well as principals and accomplices; the statute is therefore overly inclusive for purposes of a categorical analysis. Nor, applying the modified categorical approach, does the record confirm that Vidal was necessarily convicted for all the elements of the generic theft offense, in the absence of a transcript of the plea colloquy or any other memorialization of the factual basis for his People v. West plea. We therefore vacate the sentence and remand for resentencing.

VACATED and REMANDED.

1 . The district court relied on the 2002 Guidelines Manual.

2 . The application notes to U.S.S.G. § 2L1.2 provide that ''[f]or purposes of subsection (b)(1)(C), 'aggravated felony' has the meaning given that term in 8 U.S.C. § 1101(a)(43).” U.S.S.G. § 2L1.2, cmt. n. 2 (2002).

3 . He was charged sub nom “Jose Luis Martinez, aka Carlos Coral Cruz.”

4 . As noted above, the Guidelines commentary refers to the aggravated felony definition in 8 U.S.C. § 1101(a)(43).

5 . Vidal did not reassert his Blakely argument in his supplemental briefing to the en banc court. In light of our decision to vacate his sentence on other grounds, we need not address this issue, but we note that the argument is foreclosed by United States v. Smith, 390 F.3d 661, 666-67 (9th Cir.2004), amended by 405 F.3d 726 (9th Cir.2005).

6 . See, e.g., Abimbola v. Ashcroft, 378 F.3d 173, 176 (2d Cir.2004); Nugent v. Ashcroft, 367 F.3d 162, 173-74 (3d Cir.2004); Hernandez-Mancilla v. INS, 246 F.3d 1002, 1009 (7th Cir.2001); United States v. Vasquez-Flores, 265 F.3d 1122, 1125 (10th Cir.2001).

7 . The Supreme Court quoted this definition with approval in Duenas-Alvarez, 127 S.Ct. at 820.

8 . We use the term accomplice to refer generally to "[a] person who knowingly, voluntarily, and intentionally unites with the principal offender in committing a crime and thereby becomes punishable for it.” Black's Law Dictionary 17 (8th ed.2004). As we will explain, accessories after the fact do not fall within this definition. See also id. (noting that “not all authorities treat [the term accomplice ] as including an accessory after the fact”); Charles E. Torcia, Wharton’s Criminal Law § 38 (15th ed. 1993) ("The person is not an accomplice if he participated with the accused only as an accessory after the fact.”).

9 . This provision appears as Application Note 5 in the 2007 Guidelines Manual.

10 .We recognize that there is some tension between Shumate and Cox, and Innie insofar as they read Application Note 1 to § 4B1.2 as non-exhaustive. Compare Shumate, 329 F.3d at 1030 (reading solicitation into § 4B1.2's definition of “controlled substance offense” because Application Note l's list of included offenses was "not exhaustive”), and Cox, 74 F.3d at 190 (same), with Innie, 7 F.3d at 852 (vacating a § 4B1.1 enhancement because Application Note 1 to § 4B1.2 "specifically provide[s] that ' “crime of violence” ... include[s] the offenses of aiding and abetting, conspiring, and attempting to commit such offenses’ ” but makes no mention "of being an accessory after the fact to a crime of violence”). We need not resolve this tension here because, even reading the identically worded application note to § 2L1.2 now at issue non-exhaustively, accessories after the fact, in contrast to those liable for the pre-commission offense of solicitation, do not fall within the class of offenders to which the application note logically extends.

11 . "For purposes of this guideline — ‘Crime of violence’ and ‘controlled substance offense’ include the offenses of aiding and abetting, conspiring, and attempting to commit such offenses.”

12 . We concluded in Rivera-Sanchez that a conviction for solicitation of a drug trafficking offense did not trigger a sentence enhancement under § 2L1.2(b)(1)(A) because the Controlled Substances Act, to which 8 U.S.C. § 1101(a)(43)(B) refers in defining a drug trafficking offense, covers attempt and conspiracy but not solicitation. 247 F.3d at 909 (citing Leyva-Licea v. INS, 187 F.3d 1147, 1150 (9th Cir.1999)). In Shumate we explained, "Cox is not contrary to our opinion in Rivera-Sanchez .... [which] did not deal with the career offender provision at hand .... [but rather] with the aggravated felony provisions of U.S.S.G. § 2L1.2(b)(1)(A),” which, in contrast to U.S.S.G. § 4B1.2, "are constrained by the provisions of 8 U.S.C. § 1101(a)(43)(B), 8 U.S.C. § 1326, and 18 U.S.C. § 924(c)(2).” 329 F.3d at 1029 n. 5.

13 . Until recently, three separate California statutes addressed vehicle theft: Penal Code section 487(d)(1), which establishes grand theft of an automobile as a felony; Penal Code section 499b, which formerly punished as a misdemeanor the taking of "any automobile, bicycle, motorcycle, or other vehicle or motorboat or vessel, for the purpose of temporarily using or operating the same;’’ and Vehicle Code section 10851. In 1996, the California legislature amended Penal Code section 499b so as to reach only the temporary taking of a "bicycle or motorboat or vessel,” 1996 Legis. Serv. ch. 660, § 1, in order to avoid duplication with section 10851, id. ch. 660 § 3. Accordingly, vehicle theft is now prosecuted under Penal Code section 487(d)(1), which requires proof of intent permanently to deprive the owner of her property, see People v. Marquez, 152 Cal.App.4th 1064, 62 Cal.Rptr.3d 31, 33 (Ct.App.2007), or Vehicle Code section 10851, which in contrast requires proof of intent to deprive the owner of title or possession either permanently or temporarily, see People v. Montoya, 33 Cal.4th 1031, 16 Cal.Rptr.3d 902, 94 P.3d 1098, 1100 (Cal.2004).

14 . See also People v. Bailey, 165 P.2d 558, 558 (Cal.App. Dep't Super. Ct.1946) (explaining that "[t]he Vehicle Act of the State of California, as enacted in 1923 Statutes of 1923, p. 517[], contained section 146 which was the predecessor of the present section 503 of the Vehicle Code, the latter having been passed in 1935 and amended in 1939”). Section 10851 was enacted in 1959, replacing the former section 503.

15 . The 1939 statute, which was recodified in 1959 as section 10851, similarly extended felon liability to "[a]ny person who assists in, or is a party or accessory to or an accomplice in any such driving, or unauthorized taking or stealing.”

16 . The Government’s citation to the legislative history of a different statute, see Cal. Bill Analysis, A.B. 928 Sen., July 8, 2003, is unpersuasive: the Senate Committee's criticism of section 10851(a)’s phrasing in the context of its discussion of a proposed amendment to an unrelated section of the Penal Code does not conclusively demonstrate that section 10851(a) of the Vehicle Code does not extend to accessories after the fact.

17 . As previously noted, Penal Code section 971 predated the original vehicle theft statute by several decades.

18 .For this reason, our holding is not at odds with Gomez-Mendez. See 486 F.3d at 605 (concluding that defendant could not have been convicted as an accessory after the fact to statutory rape when he was only charged under Penal Code section 261.5, which unlike Vehicle Code section 10851(a) does not expressly include accessoiy-after-the-fact liability within the statutory offense).

19 . California’s canon of interpretation accords with federal principles. In Stenberg v. Carhart, 530 U.S. 914, 120 S.Ct. 2597, 147 L.Ed.2d 743 (2000), for example, the Supreme Court noted the principle that a court is "without power to adopt a narrowing construction ... unless such a construction is reasonable and readily apparent.” Id. at 944, 120 S.Ct. 2597 (internal quotation marks omitted); see also Duncan v. Walker, 533 U.S. 167, 174, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001) (rejecting the Government’s construction of a statute that would render one word "insignificant, if not wholly superfluous” and noting that "[it] is our duty to give effect, if possible, to every clause and word of a statute” (internal quotation marks omitted)); United States v. Handy, 761 F.2d 1279, 1280 (9th Cir.1985) (rejecting a statutory construction that "would have us give the phrase ... precisely the meaning the phrase would have if the word [at issue] were deleted”).

20 . Judge Callahan's dissent cites both CALJIC 14.36 and California Criminal Jury Instruction ("CALCRIM”) 1820 in support of its argument that section 10851(a) does not extend to accessories after the fact. CALJIC was formerly produced and revised by judges of the Superior Court of Los Angeles County. In 2005, the Judicial Council of California adopted the CALCRIM; pursuant to Rule 2.1050 of the California Rules of Court, CAL-CRIM "are the official instructions for use in the state of California.” The Superior Court of Los Angeles County agreed to stop maintaining CALJIC once the Judicial Council approves its criminal instructions.

CALJIC 14.36 and CALCRIM 1820 vary in phrasing but are consistent in their articulation of the basic elements of a section 10851 offense for purposes of principal liability. As discussed in the text, however, these instructions' enumeration of a theory of principal liability in no way impedes a prosecution under section 10851(a) as an accessory after the fact, with an appropriately modified jury instruction.

21 . "A person aids and abets the[commission] [or] [attempted commission] of a crime when he or she: (1) With knowledge of the unlawful purpose of the perpetrator, and (2) With the intent or purpose of committing or encouraging or facilitating the commission of the crime, and (3) By act or advice aids, promotes, encourages or instigates the commission of the crime. [A person who aids and abets the [commission] [or] [attempted commission] of a crime need not be present at the scene of the crime.] [Mere presence at the scene of a crime which does not itself assist the commission of the crime does not amount to aiding and abetting.] [Mere knowledge that a crime is being committed and the failure to prevent it does not amount to aiding and abetting.]”

22 . "An accomplice is a person who [is][was] subject to prosecution for the identical offense charged [in Count[s] _ against the defendant on trial by reason of [aiding and abetting] [or][being a member of a criminal conspiracy]].”

23 . Judge Callahan's assertion that a section 10851(a) conviction will lie only when the elements of CALJIC 14.36 are found, see Callahan Dissent at 13657, is further undermined by the fact that California courts have sustained section 10851(a) convictions based on conduct such as that described in People v. Magusin, 120 Cal.App. 115, 7 P.2d 764 (Ct. App.1932), where the Court of Appeal rejected a challenge to the sufficiency of the evidence supporting a conviction under the statutory precursor to section 10851 (Vehicle Code section 146, see supra note 14). In Magusin, the court’s discussion is consistent with the defendant having been treated as an accessory after the fact. The court cited an eyewitness's testimony that the defendant's brother drove the stolen car into the eyewitness’s auto shop, that the defendant followed in a separate car, and that both defendant and his brother “took part in the transaction which followed, whereby the new or nearly new tires on the [stolen] car were taken off and four very old tires put on in their place.” See id. at 765. Contrary to the dissent's assertion, Callahan Dissent at 1097 n. 8, there is no indication that the prosecution relied on an aiding and abetting theory.

24 . Judge Callahan's dissent draws from Dunn v. Superior Court, 159 Cal.App.3d 1110, 206 Cal.Rptr. 242 (Ct.App.1984), see Callahan Dissent at 1094 — 95, a conclusion that the opinion does not support. Dunn involved a defendant's motion for dismissal of several charges because those charges had been twice terminated. A first complaint, which was dismissed before trial, charged the defendant with “violations of Penal Code section 207 (kidnaping), Penal Code section 220 (assault with intent to commit rape) and Vehicle Code section 10851 (theft of an automobile).” Id. at 244. On a second complaint, a magistrate judge refused to hold the defendant to answer on charges of "violations of Penal Code sections 209 (kidnaping for the purpose of robbery), 211 (robbery), 496 (possession of stolen property),” but did hold him to answer on a violation of Penal Code section 32 (accessory to auto theft). Id. When the prosecution filed the information on all counts in superior court, the defendant moved to dismiss some of those charges under a California rule baring actions twice terminated. Id.

Because the defendant in Dunn was charged with “being an accessory after the fact as that charge related to auto theft” under Penal Code § 32, Id., Judge Callahan reads this to demonstrate that "California courts require prosecutions under an accessory after the fact theory of liability to be brought under Penal Code § 32, even if the underlying offense is a violation of Vehicle Code § 10851(a).” Callahan Dissent at 1095 (emphasis added). But as Dunn later makes clear, the predicate vehicle theft felony to the section 32 charge was not pursuant to Vehicle Code section 10851(a), but rather to the Penal Code, presumably Penal Code section 487(d)(1) (grand vehicle theft). See id. at 248 (explaining that "Petitioner ... was subjected to two preliminary hearings after being charged with the theft of the automobile, first under the Vehicle Code and second under the Penal Code”). At most, therefore, Dunn supports the irrelevant point that to prosecute someone as an accessory to grand theft of a vehicle, the prosecution must separately allege and prove the elements of Penal Code section 32.

25 . Although the federal pre-sentence report includes some information about Vidal’s 1994 conviction under section 10851(a), we may not rely on this document. See United States v. Franklin, 235 F.3d 1165, 1171 (9th Cir. 2000) (citing, inter alia, Taylor, 495 U.S. at 602, 110 S.Ct. 2143, and United States v. Bonat, 106 F.3d 1472, 1475-76 (9th Cir.1997)).

26 . For this reason, the fact that the Complaint alleged facts supporting principal liability does not establish that Vidal was convicted as a principal. Contrary to Judge Callahan’s assertion, see Callahan Dissent at 1096-97 n.7, the common-law rule against holding a defendant jointly liable as a principal and accessory after the fact based on the same conduct is not implicated by our conclusion that on this record, Vidal could have been convicted as an accessory after the fact instead of as, not in addition to, a principal.

27 . California case law indicates that California prosecutors regularly employ generic charging language similar to that alleged in the 1994 Complaint when prosecuting section 10851(a) offenses. See, e.g., People v. Moon, 37 Cal.4th 1, 32 Cal.Rptr.3d 894, 117 P.3d 591, 606 (2005) (quoting from the information, which "charged that ‘[o]n or about June 15, 1990, ... the crime of UNLAWFUL DRIVING OR TAKING OF A VEHICLE, in violation of VEHICLE CODE SECTION 10851(a), a Felony, was committed by RICHARD RUSSELL MOON, who did willfully and unlawfully drive and take a certain vehicle, to wit, a VW Cabriolet ... then and there the personal property of MELITTA GREIG without the consent of and with intent, either permanently or temporarily, to deprive the said owner of title to and possession of said vehicle' ”); People v. Green, 34 Cal.App.4th 165, 40 Cal. Rptr.2d 239, 243 (Ct.App.1995) (quoting from the complaint, which alleged, " 'On and between August 5, 1992 and August 6, 1992, in the County of Los Angeles, the crime of UNLAWFUL DRIVING OR TAKING OF A VEHICLE, in violation of VEHICLE CODE SECTION 10851(a), a Felony, was committed by WARREN LEE GREEN, who did willfully and unlawfully drive and take a certain vehicle, to wit, 1977 Chevrolet ... then and there the personal property of Esteban Olalde without the consent of and with intent, either permanently or temporarily, to deprive the said owner of title to and possession of said vehicle’ "). In light of this apparently standard prosecutorial practice, we cannot conclude from the 1994 charging document, which likewise simply recited tire statutory elements of the offense and inserted the victim’s name and car description, that Vidal admitted to the facts as generically alleged.

28 . See also id. at 419-20 (“[I]f the accusatory pleading adequately notifies the defendant that the People will seek to prove the elements of a lesser offense, the court has jurisdiction to convict of that lesser offense although the statutory definition of the lesser crime does not logically compose a part of the greater.” (citing People v. Marshall, 48 Cal.2d 394, 309 P.2d 456 (1957))).

29 . As discussed above, because section 10851(a) expressly identifies accessories after the fact, the prosecution need not have separately charged Vidal under Penal Code section 32 to have convicted him based on an accessory-after-the-fact theory.