Offense
Obtaining utility services without intent to pay
Aggravated Felony (AF)
It might be charged as an AF if there is either (a) a sentence of a year or more or (b) a loss exceeding $10,000 – although there are possible defenses to each.
See Advice.
Crime Involving Moral Turpitude (CIMT)
Assume a CIMT as an unlawful taking with intent to deprive permanently
Other Removal Grounds
No other removal ground
Advice and Comments
PC 498(b), (d)
AF as theft if 1 year imposed: Arguably theft of utility services does not meet the generic definition of theft in the Ninth Circuit, which is a taking of property by stealth, not of services.1The Ninth Circuit has long held that theft of labor or services does not meet the generic definition of “theft.” Theft requires a taking of property. See, e.g., Lopez-Valencia v. Lynch, 798 F.3d 863, 869 (9th Cir. 2015) (noting that “a defendant may be convicted of ‘theft’ if six jurors believe that he committed larceny (which is a form of theft that meets the federal generic definition) and six jurors believe that he committed theft of labor (which is not).”). But try to avoid the issue by getting 364 or less on each count, or else see PC 487.PC 594 or 530.5, 529(a)(3), or 487, 459 second (trespassing on property with intent to commit theft). See Mandatory Detention, below.
AF as deceit with loss exceeding $10k. To protect the client consider PC 487, 594; or plead to a specific amount less than $10k and arrange restitution for the rest with a Harvey waiver. Removal defense advocates can argue this is not deceit (a taking with consent) but is theft (a taking without consent, by stealth). (In other words, the argument is that a taking of services by stealth is neither theft of property nor fraud.)
LRA Mandatory Detention: If D was not admitted to the U.S., a conviction or pending charge for this offense might trigger mandatory detention without bond under LRA. See further discussion at Overview: Mandatory Detention. Best option to avoid LRA is to plead to an offense unrelated to these categories, e.g., trespass, PC 32, 594, etc. (Note that people not admitted to U.S. also are subject to MD if they are inadmissible for crimes, and people admitted to the U.S. are subject to MD if they are deportable for certain crimes. See advice on Mandatory Detention.)
SB54: PC 498(b) is a straight misdemeanor, which does not permit law enforcement cooperationnotification / transfer with to ICE. Felony conviction for 498(d) permits law enforcement cooperation with ICE indefinitely. The misdemeanor conviction does not permit law enforcement cooperation. See SB 54 advisory at www.ilrc.org/crimes-summaries.