The Board of Immigration Appeals has determined that a California sentencing enhancement adds an element to the underlying offense. The Board noted California State law requires sentence-enhancing elements be charged in the information and found beyond a reasonable doubt by a jury.
“Accordingly, the respondent’s enhanced conviction under sections 191.5(b) and 20001(c) requires proof of the following elements: (1) the defendant drove a vehicle under the influence of drugs or alcohol in violation of the California Vehicle Code; (2) while driving under the influence, the driver also committed another infraction or an otherwise lawful act that might cause death; (3) the infraction or other act was committed in a negligent manner; (4) the negligent conduct caused the death of another person; (5) the driver knew that he or she had been involved in an accident that injured another person or knew from the nature of the accident that it was probable that another person was injured; and (6) the driver willfully fled the scene of the accident.'“
“The respondent’s compound conviction contains three mentes reae: (1) a negligence mens rea originating from section 191.5(b) for the actus reus of the driving violation; (2) a knowing mens rea originating from section 20001(c) for knowing that a person was injured; and (3) a willful mens rea for the actus rea of leaving the scene of the accident.” “The respondent does not contest the presence of a knowing mens rea in his enhanced conviction, but he argues that the mens rea of fleeing the scene cannot be applied to the conduct of the base offense of vehicular manslaughter while intoxicated because they are two discrete acts, each with a separate and distinct mens rea. He further argues that, like in Quintero-Cisneros, section 20001(c) supplies a culpable mental state to the respondent’s crime, but unlike in Quintero-Cisneros, section 20001(c) does not explicitly inject the knowing or willful mens rea into to the base offense of vehicular manslaughter; rather, the knowing or willful mens rea is tied to the separate and subsequent actus reus of fleeing the scene.”
“We are not convinced that Quintero-Cisneros provides for this distinction. The Ninth Circuit emphasized that because the sentencing enhancement in that case was an element, it was considered part of the offense of conviction and the combined offense must be compared to the generic definition under the categorical approach. Although the sentencing enhancement in that case differs from section 20001(c) because it modified the motivation with which the defendant committed the base offense, nothing in the Ninth Circuit’s analysis suggests that a sentencing enhancement that joins a further act and a mental state to the base offense would have been analyzed differently. Moreover, at the time of the negligent act resulting in an accident, the knowledge that the respondent had been involved in an injury accident inures, informing the decision to flee. The respondent has not identified any Ninth Circuit case law indicating that the elements of section 20001(c) must be analyzed separately from the elements of the respondent’s underlying conviction.”
“Therefore, the enhanced conviction contains a culpable mental state, and the remaining question is whether, in the context of the respondent’s conviction, the actus reus of fleeing the scene after having caused the death of another as a result of a negligent act while driving under the influence constitutes reprehensible conduct.” “We agree with DHS that knowingly and willfully fleeing the scene after being involved in an accident causing injury to another person is inherently reprehensible conduct.”
The decision drew a detailed dissent.
The full text of Matter of Khan can be found here: