Offense
Possession of deadly weapon with intent to assault another.
Aggravated Felony (AF)
Not AF because (a) 6-month max sentence, plus (b) arguably because minimum conduct involves offensive touching.
Crime Involving Moral Turpitude (CIMT)
While it should not be CIMT, it might be charged as such and is not sure to avoid a CIMT. 1
There is a strong argument that PC 17500 is not a CIMT. However, because 17500 can be confused with possessing a deadly weapon with intent to use the weapon in an assault, which is a CIMT (see Matter of S-, 8 I&N Dec. 344, 346 (BIA 1959)), defenders should conservatively assume it will be held a CIMT.
Section 17500 does not require any intent to use a weapon in the assault to harm or intimidate another person; they merely must possess it. See CALCRIM 2503 (PC 17500) (the intended assault requires no use or threat of a weapon nor an injury). Moreover, because simple assault is not turpitudinous (see Matter of Sanudo (BIA 2006) 23 I&N Dec. 968), intending to commit it should not be either. Compare to Matter of S-, supra, finding that intending to use a dangerous weapon against someone is turpitudinous. In immigration proceedings, DHS might assert that under the categorical approach, the immigration advocate must present a case example where a person was convicted who possessed a deadly weapon and intended to assault someone, but not with the weapon. However, the Ninth Circuit and other circuits have held that the “plain language” of the statute is the primary way to show realistic probability under Duenas-Alvarez, and the language of 17500 is plain that it is not an element to use the weapon. “Where, as here, a state statute explicitly defines a crime more broadly than the generic definition, no ‘legal imagination,’ is required to hold that a realistic probability exists that the state will apply its statute to conduct that falls outside the generic definition of the crime. The state statute’s greater breadth is evident from its text.” Lorenzo v. Whitaker, 752 F. App’x 482, 485 (9th Cir. 2019) (quoting United States v. Grisel, 488 F.3d 844, 850 (9th Cir. 2007)).See further discussion of realistic probability at NIPNLG, Realistic Probability in Categorical Approach Cases (2021) and see https://www.ilrc.org/resources/how-use-categorical-approach-now-2021.
See Advice.
Other Removal Grounds
Not a deportable firearms offense, but best practice is a plea to a non-firearm or to leave ROC blank; see Advice.
To ensure not wrongly charged as child abuse, keep minor V’s age out of ROC. See 243(a).
To surely avoid deportable DV offense, best practice is to either identify a specific V with no domestic relationship (e.g., neighbor, police), or plead to a different offense; see Advice. 17500 should not be held a COV but there is no precedent.
Advice and Comments
CIMT/COV: To best avoid a CIMT or COV, consider PC 417, or 243(a) if necessary with PC 21310 or 25400. However, 17500 is preferable to PC 245 to try to avoid a CIMT or COV. In that case, to provide extra security, try to plead to “intent to commit offensive touching, and possession of weapon but not intent to use or threaten.”
Firearms ground: Not a deportable firearms offense due to antique firearms rule; see discussion at 29800. Also, statute should be held not divisible. Assume an ROC identifying a firearm will be a “significant misdemeanor” firearms offense for DACA. Keep ROC clean of firearm and see note at PC 25400.
SB54: As a straight misdemeanor, law enforcement cannot notify ICE of release or transfer someone to ICE. See SB 54 advisory at www.ilrc.org/crimes-summaries