quick reference chart and notes for determining immigration - ILRC

California Quick Reference Chart and Notes
February 2010
The definition of theft for aggravated felony purposes is “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.” 186
This definition does not include fraud, embezzlement, or other offenses committed by deceit as
opposed to stealth.
Temporary taking, Veh. Code § 10851 and accessory after the fact. The aggravated
felony definition of theft includes a permanent or temporary taking. (Compare to the moral
turpitude definition of theft, below, which only includes a permanent taking). Thus the act of
taking a vehicle as described in Calif. Veh. Code § 10851 is a “theft” for this purposes, despite
the fact that it does not require intent to permanently deprive the owner. 187 Note, however that in
United States v. Vidal the Ninth Circuit en banc held that § 10851 still is divisible as “theft.”
Because the court found that § 10851 includes accessory after the fact, and because that offense
is not a theft, the court found that § 10851 is divisible as “theft” as long as the record does not
establish that the defendant acted as the principal rather than as an accessory after the fact. 188
Thus a plea to § 10851, even with a sentence of a year imposed, will not be held to be an
aggravated felony if the record of conviction does not establish that the defendant was found
guilty as principal rather than accessory after the fact. However, counsel still should do
everything possible to avoid a one-year sentence. Several judges dissented from the en banc
ruling in Vidal on the grounds that accessory after the fact cannot reasonably be held to be an
offense described in § 10851, and it is possible that the Supreme Court would review the issue
Early in 2007 the Supreme Court dismissed a similar but much weaker argument concerning
aiding and abetting. 189
Theft of services and P.C. § 484. The definition of “theft” is limited to theft of
property. Since P.C. § 484 includes theft of labor, it is a divisible statute for aggravated felony
purposes. 190 If the record of conviction somehow is kept vague between theft of labor and other
theft, the offense is not an aggravated felony as theft. California law expressly permits the
prosecution to charge California offenses in the language of the statute. Section 952 of the
California Penal Code provides that “[The charge] may be in the words of the enactment
describing the offense or declaring the matter to be a public offense, or in any words sufficient to
give the accused notice of the offense of which he is accused. In charging theft it shall be
sufficient to allege that the defendant unlawfully took the labor or property of another.”
(emphasis supplied)
186 United States v. Corona-Sanchez, 291 F.3d 1201, 1205 (9 th Cir. 2002)(en banc). The Supreme Court approved
this definition. Gonzales v. Duenas-Alvarez, 127 S.Ct. 815, 820 (2007).
187 Gonzales v. Duenas-Alvarez, id.; Matter of V-Z-S-, Int. Dec. 3434 (BIA 2000).
188 United States v. Vidal, 504 F.3d 1072, 1087 (9 th Cir. 2007)(en banc), holding that Calif. Veh. Code §10851 is a
divisible statute as a “theft” aggravated felony because it includes the offense of accessory after the fact, and the
record did not establish that the conviction at issue was not for accessory after the fact.
189 Duenas-Alvarez, supra.
190 United States v. Corona-Sanchez, 291 F.3d 1201 (9 th Cir. 2002)(en banc). See also Duenas-Alvarez, supra at
820, acknowledging widespread use of definition of theft as exerting control over property.
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