PC 211

PC 211

Offense

Robbery by means of force or fear

Aggravated Felony (AF)

Get 364 or less to avoid AF as theft and perhaps as a COV.1Robbery under Pen C § 211 has been held an aggravated felony as theft if a sentence of a year or more is imposed. Matter of Delgado, 27 I&N Dec. 100 (BIA 2017); United States v. Martinez-Hernandez, 912 F.3d 1207 (9th Cir. 2019), regarding theft under 8 USC 1101(a)(43)(G).

Pen C § 211 also might be charged as an AF as a COV, under 8 USC 1101(a)(43)(F). The Ninth Circuit held that Pen C § 211 is not a COV under a definition identical to 18 USC § 16(a), because the use of force can be by accident. U.S. v. Dixon, 805 F.3d 1193, 1197 (9th Cir. 2015) (conviction of robbery upheld where thief accidentally hit the owner while driving the car away).  However, the Supreme Court now is considering whether a reckless intent is sufficient for a crime of violence, and such a finding could overturn Dixon. See Borden v. United States (19-5410), decision pending. Note that while § 211 can be committed by de minimus force, which ordinarily is not sufficient for a crime of violence, the Supreme Court found that if an offense such as robbery requires even de minimus force to “overcome the resistance of the victim,” it is a crime of violence. Stokeling v. U.S., 139 S.Ct. 544 (2019). See discussion at Pen C § 207, above. The COV issue may not have much practical consequence for Pen C § 211, however, since a sentence of one year or more already makes it an AF as a theft offense.
See Advice.

Crime Involving Moral Turpitude (CIMT)

Defenders must assume it is a CIMT.

Imm advocates can consider arguments that it is not a CIMT.2Immigration advocates can consider this untried defense: While traditionally robbery has been held a CIMT, and PC § 211 has been so held, the Ninth Circuit found that Oregon robbery is not a CIMT because it can involve a temporary taking and only a small amount of force. Barbosa v. Barr, 926 F.3d 1053 (9th Cir. 2019). Like Oregon robbery, PC § 211 requires only de minimus force. See, e.g., People v. Garcia (1996) 45 Cal.App.4th 1242, 1246 (robber tapped the victim on the shoulder to distract her and then took money from open cash register); People v. Mullins (2018) 19 Cal.App.5th 594 (robber pushed or nudged victim from in front of an ATM and took money). See finding in U.S. v. Dixon, 805 F.3d 1193, 1197 (9th Cir. 2015) that the use of force for Pen C § 211 can be by accident.  However, while Oregon robbery explicitly includes intent to deprive temporarily, which is not a CIMT, California robbery has been held to require intent to deprive permanently, which is a CIMT. Advocates could investigate the possibility that robbery employs the definition of “theft” in PC 484 to describe the taking, and therefore under Silva v. Barr, 965 F.3d 724, 731 (9th Cir. 2020), robbery convictions from before Nov. 16, 2016 should not be held CIMTs as theft because the term intent to deprive permanently actually includes mere substantial erosion of property rights. See discussion of Silva at PC 484, below. As always, while litigating this untried argument, advocates should investigate other defense strategies including the possibility of post-conviction relief.

Other Removal Grounds

If PC 211 is held to be a COV (see aggravated felony column), then it would be a deportable crime of DV if V and D share a protected relationship. Plead to a non-COV; see advice.

To ensure not wrongly charged as child abuse, keep minor V’s age out of ROC. See 243(a).

Advice and Comments

To avoid an AF, avoid a one-year sentence imposed. Consider plea to 487 or 459/460 (can take more than a yr) and/or, e.g., 136.1(b)(1), 243(d), 245(a), or similar with less than a year.

Note: if DA demands strike/s plus more than 1 year, one can offer 459/460 or 487 for over a year (which is not an AF) and felony 136.1(b)(1) as the subordinate (in order to get an 8-month sentence, because this might be held an AF with a year), or if needed see felony 236/237. This should permit prison, avoid an AF, and the only CIMT is the 487.

2021-05-17T16:43:01+00:00Updated May 17th, 2021|