Tuesday, July 22, 2014

Avoiding Aggravated Felonies: California Redefines Misdemeanor: 364 Days

From the Immigrant Legal Resource Center:

Today Governor Jerry Brown signed into law a provision that will make a California misdemeanor have a maximum possible sentence of 364 days.    See text of SB 1310, creating Cal Penal Code § 18.5, below.   It appears that the law will go into effect on January 1, 2015.   Congratulations and thanks to State Sen. Ricardo Lara and the advocates who made this happen.  
This will provide crucial help to immigrants convicted of minor offenses, in at least three ways:
Deportable.  A noncitizen is deportable for a single conviction of a crime involving moral turpitude committed within five years of admission, if the offense has a potential sentence of one year or more. INA § 237(a)(2)(A), 8 USC § 1227(a)(2)(A).   As of the effective date, a single California misdemeanor conviction will not cause deportability under this ground, because it will carry a maximum possible sentence of 364 days.
Relief.  Currently, conviction of a single crime involving moral turpitude is a bar to “10-year” cancellation for non-permanent residents, unless the person has committed only one moral turpitude offense, and the offense carries a potential sentence of less than a year. See Matter of Cortez, 25 I&N Dec. 301 (BIA 2010); Matter of Pedroza, 25 I&N Dec. 312 (BIA 2010), discussing INA 240A(b)(1), 8 USC § 1229b(b)(1).  As of the effective date, a single California misdemeanor conviction will not be a bar under this provision because it will carry a maximum possible sentence of 364 days.
Aggravated Felony.  Conviction of certain offenses becomes an aggravated felony only if a sentence of a year or more is imposed.  This includes, among others, a federally-defined crime of violence, theft, receipt of stolen property, obstruction of justice, forgery, etc.   See INA 101(a)(43), 8 USC 1101(a)(43).    California misdemeanors will not have the potential to become aggravated felonies because a sentence of a year cannot be legally imposed.  In addition, a RICO offense becomes an aggravated felony if it carries a potential sentence of a year.  INA § 101(a)(43)(J).
The new law will control “wobbler” offenses that are defined as misdemeanors.  Under California law, an alternate felony-misdemeanor (“wobbler”) offense is a misdemeanor if it is designated as, or reduced to, a misdemeanor.  Cal Penal Code § 17.   The Ninth Circuit specifically recognizes that such a conviction has the maximum possible sentence of a California misdemeanor.  LaFarga v. INS, 170 F.3d 1213 (9th Cir. 1999); Garcia-Lopez v. Ashcroft, 334 F.3d 840 (9th Cir. 2003).    Under the new law, that maximum possible sentence will be 364 days.
Although some may investigate an argument that this should be applied retroactively, California criminal defenders should assume that according to the language of the bill, the law is not in effect yet.  Defenders need to continue to use strategies such as pleading to “attempt” to commit a moral turpitude offense, or pleading to a six-month misdemeanor or other alternate offense, in order to avoid the one-year potential sentence on a crime involving moral turpitude.  This will be necessary until the new definition of misdemeanor comes into effect, which we believe will be January 1, 2015.
 Section 18.5 is added to the Penal Code, to read:
18.5.    Every offense which is prescribed by any law of the state to be punishable by imprisonment in a county jail up to or not exceeding one year shall be punishable by imprisonment in a county jail for a period not to exceed 364 days.



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