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CALI<strong>FOR</strong>NIA CODE SECTION Penal § 466 Poss burglary tools with intent to enter, altering keys, making or repairing instrument OFFENSE AGGRAVATED FELONY Penal §470 Forgery Yes AF if 1-yr sentence imposed. If this also constitutes fraud, may be AF if $10,000 loss to victim Penal §476(a) Bad check with intent to defraud AF = Aggravated Felony COV = Crime of Violence CMT = Crime Involving Moral Turpitude CRIME INVOLVING MORAL TURPITUDE-- These findings are questionable Not AF. Probably not CMT, unless ROC shows intent to commit CMT (felonious entry alone is not CMT) Altering, repairing instruments are not CMT, but see Advice Yes if loss to the victim/s was $10,000 or more; if offense also is forgery, AF if 1yr sentence imposed. OTHER DEPORTABLE, INADMISSIBLE GROUNDS ADVICE AND COMMENTS www.ilrc.org/criminal.php No. Because Silva-Trevino permits wide range of evidence on CMT, best course is to plead specifically to something other than CMT (e.g., repairing instruments), which may cut off the inquiry. Yes CMT. No. Avoid AF by avoiding 1-yr sentence; see Note: Sentence. See P.C. 529(3) and Note "Safer Pleas." If $10,000 loss to victim of fraud, see advice for PC 476(a). Yes CMT No If there was $10k loss to the victim/s, but sentence can be 364 or less for any single count, plead to theft to avoid an AF. Supreme Court has expanded evidence gov't permitted to use to prove $10k loss; be sure to read Note "Burglary, Theft and Fraud." See PC 529(c) to possibly avoid a CMT. Avoid 1-yr sentence to avoid possible AF as forgery. CS = Controlled Substance DV = Domestic Violence ROC = Record of Conviction
CALI<strong>FOR</strong>NIA CODE SECTION Penal §484 et seq., §487 OFFENSE AGGRAVATED FELONY Theft (petty or grand) Penal §490.1 Petty theft (infraction) Penal §496 Receiving stolen property Divisible: Theft w/ 1 yr sentence is AF, but theft of labor is not "theft" for AF purposes. See Advice re theft by fraud or deceit. AF = Aggravated Felony COV = Crime of Violence CMT = Crime Involving Moral Turpitude CRIME INVOLVING MORAL TURPITUDE-- These findings are questionable Not AF. Yes CMT, but might be held not to be a "conviction." Yes AF if 1-yr sentence imposed OTHER DEPORTABLE, INADMISSIBLE GROUNDS ADVICE AND COMMENTS www.ilrc.org/criminal.php Yes CMT. No See Notes "Theft, Fraud" and "CMT." To avoid Agg Felony as "theft," avoid 1-yr sent; see Note "Sentence." If 1-yr or more imposed, identify theft of services rather than property in the ROC, or leave vague between property and services. To avoid Agg Felony as "fraud": If loss to victim/s exceeded $10,000, a plea to theft by fraud, embezzlement, etc. is an agg felony. Gov't can use wide range of evidence to prove $10k loss. Avoid the problem by ID'ing straight theft (or if that is not possible, leaving ROC vague) and avoiding 1 yr sentence on any one count. Re CMT: To avoid CMT, and if 1-yr sentence not imposed, consider plea to PC 496(a) specifically with intent to temporarily deprive. If you must plead to 484, which is a CMT: to qualify for petty offense exception to inadmissibility grnd, reduce felony to misdo and/or plead petty theft. To avoid deportability plead petty theft or attempted misd grand theft to keep maximum possible sentence under 1 yr. Petty with a prior is an AF if 1 yr sentence imposed. Divisible: plead to intent to temporarily deprive to avoid CMT, see Advice No. There is a good argument, but no guarantee, that a Calif. infraction is not a "conviction" at all for imm purposes. See Note: Def of Conviction. Since there's no guarantee, this is a better plea than theft, but avoid if necessary to not have CMT. No To avoid AF avoid 1-yr sentence; see Note "Sentence." If will receive 1-yr sentence, consider plea to PC 484 and plead to, or leave ROC open to, theft of services. See Note: Theft. Re CMT: PC 496(a) is not CMT if with only temporary intent to deprive owner. Castillo-Cruz 581 F.3d 1154 (9th Cir. 2009). Plead to that specifically to try to forestall Silva-Trevino factual inquiry on CMT. See Note: CMT CS = Controlled Substance DV = Domestic Violence ROC = Record of Conviction
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Page 7 and 8: CALIFORNIA CODE SECTION Penal §192
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