Use or threaten to use force or violence upon the person of, or take, damage, property of, a witness who provided info to authorities
Aggravated Felony (AF)
Possible AF as obstruction, so obtain 364 days or less imposed on each count.
See Advice if that was not done or is not possible.
Probably not a COV
Crime Involving Moral Turpitude (CIMT)
While arguably it is not a CIMT, there is no precedent. If it is important to avoid a CIMT, consider a different plea. But 140 can be violated by an offensive touching or any vandalism and lacks intent to influence any proceeding.
See endnote at Advice.
Other Removal Grounds
Assuming it is not a COV, then it is not a deportable crime of DV. A plea to taking or damaging property ensures that it is not a DV offense.
To ensure not wrongly charged as a deportable crime of child abuse, keep minor V’s age out of the ROC. See discussion at 243(a).
Advice and Comments
For further discussion of PC 140 as a CIMT or AF, see endnote.1Pen C § 140 as COV. While there is no case on point, Pen C § 140 is a general intent crime with no requirement that the defendant intend to cause fear or to affect the victim’s conduct in any way (People v. McDaniel (1994) 22 Cal.App.4th 278), and no requirement that the threat be conveyed to the victim in any manner (People v. McLaughlin (1996) 46 Cal. App.4th 836). See also CALCRIM 2624. The phrase “force or violence” used in § 140 is the same phrase used in simple battery statutes, which has been determined to include the minimal conduct of offensive touching that causes no pain; this is distinct from the violent physical force contemplated by 18 USC § 16(a) and COVs.
It appears to be indivisible, as there is no authority that a jury must unanimously decide whether the conduct was against a person or property in order to find guilty under § 140. CALCRIM 2624.
Pen C § 140 as obstruction of justice. See Pen C §§ 32 and 136.1(b)(1) for further discussion of this aggravated felony, which appears at 8 USC § 1101(a)(43)(S). There is no case on point for whether § 140 is considered an offense related to obstruction of justice as an aggravated felony. Immigration advocates can explore arguments that it is not, but defenders must try hard to avoid a sentence of a year or more on a single count and assume that authorities will be likely to hold that it is.
Using or threatening to use force or violence against, or taking, damaging or destroying the property of, a witness, victim, or other person who provided information or assistance to police or prosecution under § 140 is a general intent crime. There is no requirement that the defendant intended to cause fear to the victim or intended to affect the victim’s conduct in any manner, e.g., preventing a witness from cooperating with an investigation or proceeding. See People v. McDaniel, 22 Cal.App.4th 278, 282-3 (Ct. App. 2nd Dist. 1994). Section 140 “defines only a description of the particular act of threatening to use force or violence, or taking, damaging, or destroying property, without reference to an intent to do a further act or achieve a future consequence.” Id. at 284. The victim need not be aware of the threat. CALCRIM 2624; People v. McLaughlin, 46 Cal.App.4th 836, 841 (Ct App 6th 1996). Therefore, it does not meet the requirement of specific intent that the BIA consistently has set out, and recently reiterated in Matter of Valenzuela Gallardo, 27 I&N Dec. 449, 456 (BIA 2018) (Valenzuela Gallardo II).
But the government may argue that § 140 is obstruction regardless of specific intent, because it comes within the other part of the BIA’s generic definition of obstruction: it is a state offense that matches a federal offense described in 18 USC §§ 1501-1521. Ibid. Section 140 is broader than 18 USC § 1513(b), which requires either bodily injury (as opposed to § 140 offensive touching) or damage to property (as opposed to § 140 taking or damaging) and includes a greater specific intent element. However, § 1513(e) provides, “Whoever knowingly, with the intent to retaliate, takes any action harmful to any person” is guilty. Immigration counsel can investigate arguments distinguishing the statutes, including the fact that § 140 is a general intent crime, but at the same time should pursue other defense strategies including the possibility of post-conviction relief.
Pen C § 140 as a CIMT: The federal generic definition of a CIMT is a crime involving conduct that is: “(1) vile, base, or depraved and (2) violates accepted moral standards.” Escobar v. Lynch, 846 F.3d 1019, 1023 (9th Cir. 2017). There is no Ninth Circuit or BIA case on whether § 140 is a CIMT.
The Ninth Circuit held that “criminal threats alone, without any attendant serious physical harm, do not necessarily implicate moral turpitude.” Latter-Singh v. Holder, 668 F.3d 1156, 1161 (9th Cir. 2012). A violation of § 140 does not require attendant serious physical harm. The underlying conduct threatened, “force or violence,” is not a CIMT and can be distinguished by § 422, proscribing threats of “death or great bodily injury,” which is categorically a CIMT. Latter-Singh v. Holder, 668 F.3d 1156, 1161 (9th Cir. 2012). The threat of “force or violence” in § 140 are terms used in simple assault battery statutes, which are not categorically CIMT because the required mens rea is the intent to “touch another offensively, not the ‘evil’ intent typically required for a CIMT.” Id. at 1161. An assault statute is not a CIMT where it does not include a “specific intent to injure or a special trust relationship and not requiring that the assault cause death or even serious bodily injury.” Id. Section 140 does not involve a specific intent to injure or a special trust relationship, or that if carried out causes serious bodily injury. § 140 does not require the threatened person to be in sustained fear like § 422, rather, the threatened person need not be aware of the threat. CALCRIM 2624. Further, § 140 does not require the intent to prevent the person from providing information to authorities, and even if there were, the Ninth Circuit held that an offense such as Pen C 136.1(a) is not a CIMT. There is no requirement that the prosecution was successful, or the statement was true. Therefore, § 140 should be considered a CIMT. However, because there is no precedent and because the victim is someone who participated in a proceeding, it is possible that ICE would charge it that way.
AF as Obstruction. Imm advocates can argue that 140 is not obstruction under BIA and Ninth Cir definitions, because it has no intent to impede an ongoing (or even past) process and is not a full match to a federal obstruction offense. But authorities may well decide that it is obstruction. If more than 1 year is required, consider offenses such as 236/237, 487, 459, 591, 594 and/or work with structuring the sentence.
AF as COV. A COV is an AF if 1 yr or more is imposed. Taking, or threatening to take, property is not a COV. In addition, it appears that threat/use of force under 140 includes an offensive touching, and thus also is not a COV.