Offense
Petty theft or shoplifting (involving value not to exceed $950) with two priors
Punished under 666.1 as a wobbler, per Prop 36
Aggravated Felony (AF)
Should not be an AF even if a year or more sentence is imposed.
But to avoid a (wrongful) AF charge, try to get 364 days or less.
See Advice.
Crime Involving Moral Turpitude (CIMT)
Petty theft is a CIMT.
But strong argument that 459.5 is not a CIMT.
See Advice, including note on factual basis.
To more surely avoid a CIMT, see misdemeanor 496(a) if DA can drop the 666.1.
Other Removal Grounds
No other removal ground
Advice and Comments
Warning: While legally this should not be held an AF, there are risks on the ground. There is no precedent yet on PC 666.1; immigration adjudicators likely do not know the following analysis; and the client may be unrepresented. Therefore try to protect the client by avoiding a year or more sentence, since that is what would trigger a (wrongful) AF charge. Offer a different felony (e.g., PC 594), or work on sentencing (see N.4 Sentencing). Or, be in contact with imm. Counsel who can present argument. See also mandatory detention concerns for clients not admitted to the U.S., below.
Factual basis: Under 459.5, plead to intent to take, not taking. To best protect D, create a careful factual basis. The elements of 459.5 are entry into an open business with intent to commit theft not exceeding $950; an actual taking is not an element.1
Shoplifting: “Taking” is not an element. The good news is that PC 459.5 has no element of a “taking.” As the California Supreme Court stated in discussing PC 459.5, “Burglary and shoplifting do not require any taking, merely an entry with the required intent.” People v. Gonzales, 2 Cal. 5th 858, 872 (2017). Likewise the jury instructions for 459.5, CALCRIM 1703, provide: “To prove that the defendant is guilty of this crime, the People must prove that: 1. The defendant entered a commercial establishment; 2. When the defendant entered the commercial establishment, it was open during regular business hours; AND 3. When (he/she) entered the commercial establishment, (he/she) intended to commit theft.”
A potential problem is that a statement on the criminal record that the property that “is taken” is $950 or less could lead to an incorrect decision in immigration court – especially if the client has no counsel. Therefore, defense counsel should try to plead specifically to the value of the property “intended to be taken” not the property “taken” and should not permit the record to refer to amount of property “taken.” Section 459.5 prohibits “entering a commercial establishment with intent to commit larceny [during businesss hours] where the value of the property that is taken or intended to be taken does not exceed nine hundred fifty dollars ($950).” (emphasis supplied). It is clear from the California Supreme Court opinion and jury instructions cited above that 459.5 has no element of a taking, and that the phrase “is taken” is one means of evaluating the amount. But if a statement regarding property that “was taken,” ICE (wrongly) may assert that a taking was part of the offense, and unfortunately ICE likely would win against an unrepresented client.
If removal defense advocates face this record they should assert the basic argument. Neither PC 459.5 nor burglary have “taking” as an element under the categorical approach. People v. Gonzales, 2 Cal. 5th 858, 872 (2017), CALCRIM 1703, That property “is taken” is not an element of the offense, but simply one means of establishing that the value does not exceed $950. Under the categorical approach, only elements of the offense can be considered to classify an offense as a theft or fraud AF or a CIMT. Further, 459.5 is a lesser included offense of burglary. The Ninth Circuit has held that California commercial burglary, PC 459/460(b), even with intent to commit larceny is not a match to the generic definition of “theft” or “attempted theft” and is not a CIMT because it has no element of “taking,” and it can be committed solely by walking into a commercial establishment during business hours with bad intent. See Hernandez-Cruz v. Holder, 651 F.3d 1094, 1096 (9th Cir. 2011), discussed in “Theft or Attempted Theft,” below. But in discussing the $950 limit, 459.5 refers to “the value of the property that is taken or intended to be taken.” Plead to intent to enter and refer specifically to the value of property “intended to be taken,” not property that was taken. This is because if taken property appears in the record, ICE likely will assert that taking is an element and likely will win this fight against an unrepresented person. Immigration counsel faced with such a record have a strong argument; see discussion below.
The rest of this column argues that neither offense is an AF and 459.5 is not a CIMT.
AF: Even if a year or more is imposed under 666.1, neither petty theft nor shoplifting should be held an AF because, at the least, each also would require proof of a loss to the victim/s exceeding $10,000 , but both offenses have a $950 cap. Further, 459.5 does not require a taking, only intent to take.
Petty theft. “Theft” as defined at PC 484(a) includes both stealing and theft by fraud, and is not divisible between them. Because of that, the Ninth Circuit held that PC 487 is not an AF unless (a) a sentence of a year or more is imposed (which is required to make stealing an AF) and (b) the loss to the victim/s exceeds $10k (required to make theft by fraud an AF). If there is only the 1 yr sentence without the $10k loss, PC 487 is not an AF. See Lopez-Valencia v. Lynch, 798 F.3d 863 (9th Cir. 2015) and discussion at 484. Petty theft also uses the 484(a) definition, so it also requires both a year and a loss over $10k. With value capped at $950, petty theft never can be an AF.
Shoplifting is not an AF for two reasons. First, it requires intent to commit theft as defined at 484(a),2
PC 459.5: intent to commit PC 484(a). Based in part of the consolidation of theft offenses under PC 490a, the California Supreme Court held that when shoplifting penalizes entry with intent to commit “larceny,” this means with intent to commit theft as defined by PC 484(a), including intent to commit theft by fraud. See People v. Gonzales, 2 Cal. 5th 858 (2017) (Section 459.5 includes entry with intent to cash a bad check under $950, because its intent is defined by 484(a) which includes theft by fraud).
Because both petty theft and shoplifting use the 484(a) definition, neither offense is an AF unless a year or more was imposed and the loss exceeded $10k. Because these offenses only can involve loss of $950 or less, a loss exceeding $10,000 is legally impossible; in that case an offense such as PC 487 or 460(b) would be charged. Furthermore, shoplifting does not involve a taking at all; see above endnote. so that like petty theft it would require loss exceeding $10k to be an AF, which is not possible due to its $950 cap. Second, like burglary, shoplifting does not require any actual taking; it only requires a lawful entry with bad intent. It does not meet the federal definition of theft or fraud, or attempt to commit those offenses,3
For AF purposes, PC 459.5 is not theft or attempted theft. Along from failing to be a “fraud or deceit” aggravated felony, PC 459.5 (as opposed to PC 484) does not meet the definition of a “theft” aggravated felony because it does not require an attempted or completed taking. Shoplifting already should be disqualified as an AF because it does not meet the $10k amount required for fraud (see endnote above). But this shows that it also is not an AF as theft or attempted theft, and it may be useful persuasion in some cases to prove that 459.5 fits neither definition.
A state conviction constitutes the aggravated felony “theft” if the offense meets the federal, generic definition of “theft.” and a sentence of a year or more was imposed. 8 USC 1101(a)(43)(G). The generic definition of theft requires, among other things, “the taking of property or an exercise of control over property…” Gonzales v. Duenas-Alvarez, 549 U.S. 183, 189 (2007); see also In re V–Z–S, 22 I. & N. Dec. 1338, 1346 (2000).
As the California Supreme Court stated, “Burglary and shoplifting do not require any taking, merely an entry with the required intent. For more than a century, entry into a store, even during business hours, with the requisite intent was understood to constitute burglary.” People v. Gonzales, 2 Cal. 5th 858, 872 (2017). See also CALCRIM 1703, which provides that to prove guilt under 459.5 the prosecutor only must prove that the person entered a commercial establishment, during business hours, and at the time of that entry “intended to commit theft.” It is true that “the value of the property that is taken or intended to be taken” must not exceed $950, but the value of “taken” property is merely one means of establishing that the offense will be punished as shoplifting under the $950 cap rather than burglary, and is not an element of the offense. See endnote above (“Shoplifting: Taking is not an element”).
Neither are burglary or shoplifting an AF as attempted theft. The Ninth Circuit noted that to be an attempted theft AF, an offense must have an intent to commit a theft and an overt act constituting a substantial step toward the completion of that offense. Hernandez-Cruz v. Holder, 651 F.3d 1094, 1096 (9th Cir. 2011). In the case of burglary, the court found that simply “entering a commercial building freely open to the public is not strongly corroborative of a criminal intent, and therefore cannot be a substantial step toward a theft offense .”Id. at 1104-05. and therefore cannot be an AF in those categories.
CIMT: Petty theft under 484(a) is a CIMT. (If the plea was to 484/490, removal defense advocates can argue that 666.1 is not divisible between 459.5 and 484, so that no PC 666.1 conviction is a CIMT but defense counsel should not rely on this.)
CIMT: PC 459.5 should not be a CIMT, similarly to burglary. In a burglary case the Ninth Circuit held that a lawful entry with intent to commit theft is not a CIMT, and these also are the elements of 459.5.4459.5 is not a CIMT. The Ninth Circuit held that commercial burglary, PC 460(b), is not a CIMT even when the intent is to commit a CIMT such as theft. It noted that an attempted or completed theft can be a CIMT, but entering an area open to the public while “harbor[ing] an inchoate intent to commit a crime, never acted upon, simply does not ‘shock society’s conscience.’ If it did, the phrase ‘moral turpitude’ would be devoid of all meaning.” Hernandez-Cruz v. Holder, 651 F.3d 1094, 1109 (9th Cir. 2011). See further discussion at 460(a) in the Chart.
Shoplifting factual basis: Please see “Factual Basis: Shoplifting” at the top of this column. Do not agree to a record stating that property that “was taken” did not exceed $950; instead say that property “intended to be taken” did not exceed that.
CIMT: priors. In any case, determine if prior offenses also were CIMTs. Some designated 666.1 priors (are not CIMTs (e.g., 459, 496), while others are (e.g., 487, 211). For rules governing when CIMTs trigger a removal ground, see ILRC, All Those Rules About Crimes Involving Moral Turpitude (2021).
If there is a CIMT prior, a new 484 offense may be the dangerous second CIMT conviction. To avoid a first and especially a second CIMT, consider plea to PC 459, 496, or VC 10851, while being mindful of LRA / mandatory detention and AF concerns.
LRA Mandatory Detention: If D was not admitted to the U.S., a conviction or pending charge for this offense will 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 if possible, e.g., trespass, PC 32, 594, etc. See PC 496 for arguments on how it should avoid MD but client will likely have to litigate that pro se from detention. (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: This statute is not an enumerated exception that would permit law enforcement to notify/transfer to ICE. No cooperation should be permitted for a misdemeanor, however any state prison felony permits law enforcement to transfer/notify ICE indefinitely. Some sheriffs may argue that 666.1 is an exception to SB54 protection as a “theft” offense, but advocates should push back because neither 484 nor 459.5 is an enumerated offense, so multiple priors for 484/459.5 should not change the analysis. See SB 54 advisory at www.ilrc.org/crimes-summaries.