PC 236, 237(a): Felony

PC 236, 237(a): Felony


False imprisonment by violence, menace, fraud, or deceit (Felony)

Aggravated Felony (AF)

Should not be an AF as COV and should not be held divisible (see Advice), but best practice is to try hard to get 364 days or less on each count.

To avoid a possible wrongful charge as a COV, plead to false imprisonment by deceit, fraud, or menace. See Advice.

Crime Involving Moral Turpitude (CIMT)

Should not be divisible and no conviction should be held a CIMT, but to most surely avoid a CIMT plead to menace, which Ninth Circuit held is not a CIMT, and do not plead to fraud. See Advice.

Other Removal Grounds

If it were held a COV, and V had domestic relationship, it would be deportable crime of DV. It should not be held a COV but see Advice. If 1 yr won’t be imposed, consider PC 32, 243(e), 136.1(b)(2), and offenses in Advice.

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

Adam Walsh Act. Conviction of false imprisonment of a minor can prevent a US or LPR from immigrating family members in the future. See § N.13 Convictions that Bar the Defendant from Petitioning for Family Members: the Adam Walsh Act.

Advice and Comments

See citations and further discussion at this endnote.1Felony Pen C § 237 is indivisible (not divisible).

Section 237(a) makes false imprisonment “effected by violence, menace, fraud, or deceit” a felony rather than a misdemeanor. Section 237(a) should not be held divisible between these means of committing the offense, because a jury is not legally required to unanimously agree upon which of these was used. See CALCRIM 1240 and see People v. Henderson (1977) 19 Cal. 3d 86, 95 (Section 237(a) does not set out four separate crimes; there is “no basis for severing false imprisonment by violence or menace from the offense of felony false imprisonment; the Legislature has not drawn any relevant distinctions between violence, menace, fraud, or deceit.”), partially reversed on other grounds by People v. Flood (1998) 18 Cal 4th 470, 484. The Ninth Circuit suggested in dicta that § 237(a) is divisible, but it did not cite to any California analysis of the elements or undertake a federal divisibility analysis according to Supreme Court or Ninth Circuit precedent. Turijan v. Holder, 744 F.3d 617, n. 7 (9th Cir. 2014).

Pen C § 237(a) by force or menace carries the same or fewer immigration consequences as kidnapping, Pen C § 207(a). Felony false imprisonment is a lesser included offense of kidnapping by force or fear, Pen C § 207(a). See, e.g., People v. Apo (1972) 25 Cal.App.3d 790, 796). Because kidnapping has been held not to be a COV or CIMT, Pen C § 237 by force or menace is not either.

Pen C § 237(a) as a crime of violence (COV). The Ninth Circuit held that Pen C § 207(a) (of which § 237(a) is a lesser included offense) is not a COV under 18 USC § 16(a), because § 207(a) lacks as an element the use of violent force and can be committed by “any means of instilling fear,” including means other than force, for example by threatening to arrest the person. Delgado Hernandez v. Holder, 697 F.3d 1125, 1127 (9th Cir. 2012). Kidnapping by fraud under § 207(d) also is not a COV under the § 16(a) definition. See United States v. Lonczak, 993 F.2d 180, 183 (9th Cir. 1993), considering a federal standard identical to 18 USC § 16(a), cited at Delgado-Hernandez, 697 F.3d at 1128. Because § 237(a) is a lesser included offense of 207(a), it also is not a COV.

Regarding Pen C § 237 itself, the term “violence” used for felony false imprisonment has a specific definition, which does not require actual violence but just that “the force used is greater than that reasonably necessary to effect the restraint.” People v. Castro (2006) 138 Cal. App. 4th 137, 140. In Castro, the court found that evidence that the defendant took the victim by the arm and pulled her a few steps toward his car, as opposed to simply holding her still, before she ran away was sufficient to support a conviction for false imprisonment by violence. “In the present case, appellant grabbed the victim and turned her around. If that is all that had happened, we would agree with appellant that his conduct amounted only to misdemeanor false imprisonment. But appellant pulled her toward his car, an act more than what was required to stop her and keep her where she was located.” Id. at 143-144. Generally, this level of de minimus force has been held not to be a COV under 18 USC § 16(a). However, the Supreme Court’s decision in Stokeling v. U.S., 139 S.Ct. 544 (2019) increases the risk that ICE may wrongly charge felony 236/237 as a COV. The Court held that Florida robbery is a COV under the ACCA definition (which is nearly identical to 18 USC 16(a)) because it requires sufficient force to “overcome the resistance of the victim”—even though that can involve a low level of force, such as the force required to grab something while the victim briefly holds on. ICE might charge that under Stokeling, felony false imprisonment, Pen C §§ 236/237(a), is a COV if it is committed by “violence,” on the grounds that this requires an application of force (no matter how minor) that is sufficient to overcome the will of the victim. Advocates should assert that even if that conduct were found to meet the definition of a COV, no conviction of §§ 236/237 can be a COV because the statute is indivisible between the four means, and the minimum conduct required for guilt is not a COV. But to further protect the defendant, who may be unrepresented and unable to present this argument, criminal defense counsel should plead specifically to menace or deceit rather than force in a felony case.

False imprisonment committed by fraud or deceit is not a COV even post-Stokeling. See, e.g., U.S. v. Lonczak, supra, holding that kidnapping effected by fraud under Pen C § 207 is not a COV. False imprisonment committed by menace also is not a COV because there is no requirement that the menace be threat of force. For example, it can include threat of arrest (People v. Moore (1961) 196 C.App.2d 91, 99); see also People v. Majors (2004) 33 Cal.4th 321 (threat of arrest satisfies force or fear requirement for kidnapping). See also discussion of People v. Islas (2012) 210 Cal.App.4th 116 in Turijan v. Holder, 744 F.3d 617, 621-622 (9th Cir. 2014), holding that Pen C § 237(a) by menace is not a CIMT, because it was accomplished when the defendants hid from the police in another’s apartment but did not use weapons, did not make threats, did not touch the victims, and expressly stated they would not harm the victims).

Pen C § 237 as a CIMT. The Ninth Circuit held that a conviction for kidnapping under Pen C § 207(a) is not categorically a CIMT because it can be committed with good or innocent intent, and without the intent to instill fear in the victim, when the defendant uses verbal orders to move a person who obeys for fear of harm or injury if they don’t comply. See Castrijon-Garcia v. Holder, 704 F.3d 1205, 1209 (9th Cir. 2013). Because § 237(a) by means of violence or menace is a lesser included offense of § 207(a), it also is not a CIMT.

Specifically concerning § 237(a), a conviction for felony false imprisonment committed by menace is not a CIMT. It is a general intent crime that does not require an evil purpose. It does not require the threat or use of violent force. The Ninth Circuit found that § 237(a) by menace is not a CIMT because it encompasses conduct such as hiding in another’s apartment from the police where the defendants did not use weapons, did not make threats, did not touch the victims, and expressly stated they would not harm them. Turijan v. Holder, 744 F.3d 617, 621-622 (9th Cir. 2014).

As discussed in the crime of violence section above, false imprisonment by violence does not require actual violence, but requires only that “the force used is greater than that reasonably necessary to effect the restraint,” including grabbing the victim’s arm and moving her a few feet. See discussion above of People v. Castro, 138 Cal. App. 4th 137, 140 (Cal. App. 2d Dist. 2006). Pulling someone a few feet by the arm is similar to conduct required for a simple battery. Simple battery has been held not to rise to the level of a CIMT, even when the defendant and victim shared a position of trust such as being married. See, e.g., Matter of Sanudo, 23 I&N Dec. 968 (BIA 2006).

While false imprisonment with intent to defraud might be a CIMT, intent to deceive is not necessarily a CIMT. It can be done in a misguided attempt to do good. See, e.g., People v. Rios (1986) 177 Cal.App.3d 445 (father convicted of felony false imprisonment by deceit for taking infant to Mexico because he believed mother was seriously neglectful).

The Ninth Circuit held that false imprisonment under Hawaiian law is a CIMT, but that offense is defined as “knowingly restrain[ing] another person under circumstances which expose the person to the risk of serious bodily injury.” Haw. Rev. Stat. § 707-721(1). See Fugow v. Barr, 943 F.3d 456, 458 (9th Cir. 2019) (distinguishing Hawaii false imprisonment from California burglary, which is not a CIMT).

Felony 236/237(a) is a good, non-strike alternative to violent offenses. Under Ninth Circuit precedent discussed in the above endnote, because the minimum conduct required for guilt is low and the California Supreme Court held that the statute is not divisible into different elements, no conviction should be a CIMT or COV for any purpose, regardless of info in the ROC—even under the recent Stokeling decision.

But the disadvantage to 236/237 is that there is not yet BIA precedent or an on-point Ninth Cir decision on the offense as a whole, or interpretations of the definition of COV under Stokeling. To be safe, counsel should arrange a plea to deceit or menace, and keep violence out of the record, but a plea to force should not amount to a COV or CIMT because the statute is indivisible. See endnote.

If 1 year must be imposed, see more secure offenses such as PC 460(a) or (b), 487, 594. If they are not possible, this is a reasonable choice for 1 year—but the person should get an imm lawyer.

2020-10-23T20:06:17+00:00Updated February 26th, 2020|