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California Quick Reference Chart and Notes February 2010 For the Defendant: Sections 12020(a) of the California Penal Code is divisible for purposes of the firearms deportation ground because it includes offenses that do not relate to firearms, for example possession of a blackjack in § 12020(a)(1) or carrying a concealed dirk or dagger under § 12020(a)(4). Simple possession of a weapon is not a crime of violence or a crime involving moral turpitude. 2. Assault with a firearm or other weapon, PC § 245(a) For purposes of the firearms deportation ground, PC § 245(a) is a divisible statute. There also is an argument that this offense is divisible for moral turpitude purposes. It has been held to be a crime of violence. See discussion and “To the Noncitizen Defendant” box on P.C. § 245(a) at Part B.7, supra. E. Safer pleas for offenses relating to fraud, theft, receipt of stolen property, or burglary See also § N.11, “Burglary, Theft and Fraud” 1. False personation, PC § 529(3) For the Defendant: Conviction under PC § 529(3) is not a categorical aggravated felony as forgery or a counterfeit offense even if a sentence of a year or more is imposed, and is not a categorical crime involving moral turpitude. The offense does not amount to fraud and need not have specific intent other than to take a false identity. In People v. Rathert (2000) 24 Cal.4 th 200, the California Supreme Court held that § 529(3) is violated without any requirement that the defendant have specific intent to cause any liability to the person impersonated, or to secure a benefit to any person. The statute “requires the existence of no state of mind or criminal intent beyond that plainly expressed on the face of the statute.” Id. at 202. “[T]he Legislature sought to deter and to punish all acts by an impersonator that might result in a liability or a benefit, whether or not such a consequence was intended or even foreseen.” Id. at 206. Moral turpitude generally requires an evil motive. Here the Court noted “One does not violate paragraph 3 merely by happening to resemble another person. Rather, one must intentionally engage in a deception that may fairly be described as no innocent behavior, even if, in some instances, it might not stem from an evil motive.” Id. at 209. The authors believe that conviction under PC § 529(3) is not necessarily an aggravated felony as forgery or counterfeit offense, even if a sentence of a year or more is imposed. Neither is it categorically a crime involving moral turpitude. See discussion in Defendant box of People v. Rathert. This offense can be held to have the above consequences, however, if the record of Immigrant Legal Resource Center N-133
California Quick Reference Chart and Notes February 2010 conviction reveals intent to forge, counterfeit, or defraud. Further, under Matter of Silva- Trevino the immigration judge may elect to consult evidence from outside the reviewable record of conviction, to determine if the offense involved moral turpitude (which here would probably require fraud). A statement in a written plea bargain that states that the defendant did not intend to commit fraud, or that tracks the Rathert opinion language, might prevent that. This should not be used as a safer alternative to avoid the aggravated felony of a fraud or deceit offense with a loss to the victim/s exceeding $10,000, 212 however, because deceit is defined more broadly than fraud. Where the record will reflect that loss, it is safer to plead to a theft offense as defined in PC § 484 and let the record of conviction designate, or leave open, theft as opposed to fraud, while not taking a one-year sentence. 2. Joyriding, Veh. Code § 10851(a) For the Defendant: A conviction under Calif. H&S § 10851(a) is a divisible statute for moral turpitude purposes, because it includes auto taking with an intent to temporarily deprive the owner. See, e.g., Matter of M, 2 I&N Dec. 686 (BIA 1946) (§ 10851 predecessor); Castillo-Cruz v. Holder, 581 F.3d 1154, 1159 (9 th Cir. 2009). Section 10851 is a divisible statute as a “theft” aggravated felony, because it includes the offense of accessory after the fact, which is not theft and not an aggravated felony. U.S. v. Vidal, 504 F.3d 1072, 1087 (9 th Cir. 2007) (en banc). Warning on aggravated felony. Even a temporary taking under § 10851 meets the definition of the aggravated felony “theft,” so that a conviction for auto taking is an aggravated felony if a sentence of a year or more is imposed. 213 However, in United States v. Vidal, supra the Ninth Circuit held that § 10851 is divisible as an aggravated felony because it also includes the offense of accessory after the fact, which is not an aggravated felony. Counsel still should make every effort to avoid a one-year sentence on a single count of § 10851, however, in case the U.S. or California Supreme Court disagree with the finding that § 10851 actually includes accessory after the fact. Warning on crime involving moral turpitude. Because joyriding requires only an intent to temporarily deprive the owner, and moral turpitude requires intent to permanently deprive, § 10851(a) is a divisible statute for moral turpitude purposes. Under Matter of Silva-Trevino, the immigration judge may decide to take evidence on the underlying facts for CMT purposes -- unless criminal defense counsel can plead explicitly to a temporary taking, rather than simply creating a vague record of conviction. An explicit plea to a temporary taking ought to prevent an immigration judge from finding a CMT even under Silva-Trevino. 212 8 USC § 1101(a)(43)(M)(i). 213 Duenas-Alvarez v. Gonzales, 127 S.Ct. 815 (2007), Matter of V-Z-S-, Int. Dec. 3434 (BIA 2000). N-134 Immigrant Legal Resource Center
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