PC 236, 237(a): Felony

Offense

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

Aggravated Felony (AF)

Not a COV or other AF. CA Supreme Court held 237 is not divisible between violence, deceit, etc. Deceit does not involve threat or use of force.

But because there is no federal immigration decision on point, to avoid a possible wrongful charge as a COV, plead to false imprisonment by something other than force, and/or provide D with legal authority. See Advice.

Crime Involving Moral Turpitude (CIMT)

The Ninth Circuit held 237 by menace is not a CIMT, and other subsections also should not be. Because the statute is indivisible, no 237  felony conviction should be a CIMT.

To avoid possible wrongful CIMT charge, plead to menace.

For further discussion and citations, see Advice.

Other Removal Grounds

See AF column: this is not a COV and thus not a deportable crime of DV.

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 USC 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

PC 236, 237(a)

See this endnote¹Felony Pen C § 237 is overbroad and indivisible as a COV and as a CIMT.

Section 237(a) makes false imprisonment “effected by violence, menace, fraud, or deceit” a felony. This appears to be a separate felony offense with its own elements, so that 236/237 is not a wobbler.

Based on state law definitions of these elements, compared with federal definitions of COV and CIMT, felony 236/237 is not a COV or CIMT. But because there is little federal immigration precedent analyzing 236/237, counsel should consider providing the below text (e.g., in phone photos or an email) to the defendant, their family or friend, or an immigration attorney if any. The danger is that an unrepresented person could be wrongly charged with and found to have been convicted of a COV or CIMT.

Indivisible between violence, menace, fraud, and deceit. The definition of felony false imprisonment at PC 237(a) is not divisible. The California Supreme Court found that “violence, menace, deceit, and fraud” are means, not elements, of felony 237(a). The court rejected the government’s argument that the felony definition at  237 “proscribes not one, but four separate felonies depending upon the means by which false imprisonment is effected… [W]e find 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.” People v. Henderson (1977) 19 Cal. 3d 86, 95, partially reversed on other grounds by People v. Flood (1998) 18 Cal 4th 470, 484. That analysis by the state Supreme Court means that the statute is not divisible. “When a ruling of that kind exists, a [ ] judge need only follow what it says.” Mathis v. United States, 579 U.S. 500, 518 (2016).

The fact that 237(a) is not divisible means that the adjudicator may not go on to review the record of conviction for purposes of the modified categorical approach. Id. If any one of the four means of committing the offense is overbroad as a COV, then no conviction of felony 236/237 is a COV. Similarly, if any of the four means is overbroad as a CIMT, no 236/237 conviction is a CIMT.

Overbroad as a COV. The minimum conduct required for guilt under felony 236/237 is not a COV. Note also that felony 236/237 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. To the extent that kidnapping is not a COV, felony 236/237 is not either, because it is defined even more narrowly than kidnapping.

• “Fraud” or “deceit” is not a COV, because it does not require any force, including de minimis See, e.g., People v. Rios (1986) 177 Cal. App. 3d 445, 449 (father was guilty of felony 236/237 when he told his ex-wife that their baby had been kidnapped, when in fact he had taken her to live with relatives in Mexico because he believed the ex-wife endangered the child through severe neglect). Further, kidnapping by fraud under § 207(d) is not a COV. United States v. Lonczak, 993 F.2d 180, 183 (9th Cir. 1993).
• “Menace” under 236/237 does not require the threat or use of any force, including de minimis force. It can include mere threat of arrest without probable cause. See, e.g., People v. Henderson (1977) 19 Cal. 3d 86, 95, 94 (“The conduct may involve merely the simple act of announcing without probable cause the making of a citizen’s arrest”), citing People v. Agnew, 16 Cal. 2d 655, 659 (announcement of citizen’s arrest in presence of police officers was menace under 236/237). Kidnapping under PC 207(a) also reaches the threat of arrest. People v. Majors (2004) 33 Cal.4^th 321.
• “Violence”under 236/237 has a specific definition that 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 (pulling someone a few steps toward a car before she ran away is false imprisonment by “violence” under 236/237). While this level of de minimis force has been held not to be a COV in the past, it is possible that this would change under Stokeling v. United States, 139 S.Ct. 544 (2019) (de minimis force can be a crime of violence in an offense that has overcoming the will of the victim as an element). However, even if “violence” under 236/237 were held a COV under Stokeling, and the plea was specifically to false imprisonment by violence, the conviction cannot be held a COV because 236/237 is not divisible between violence, menace, fraud, or deceit.

But to further protect the defendant, who may be unrepresented and unable to present these citations, criminal defense counsel should plead specifically to menace, fraud, or deceit rather than to violence.

Overbroad as a CIMT. Felony 236/237 by “violence or menace” is a lesser included offense of kidnapping by force or fear, Pen C § 207(a). People v. Apo (1972) 25 Cal.App.3d 790, 796). 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. Turijan v. Holder, 744 F.3d 617, 622 (9th Cir. 2014).

The Ninth Circuit held that false imprisonment under Hawaiian law is a CIMT because it requires “knowingly restrain[ing] another person under circumstances which expose the person to the risk of serious bodily injury.” Haw. Rev. Stat. § 707-721(1) (emphasis supplied). The court specifically distinguished that offense from California kidnapping, which it reaffirmed is not a CIMT. Fugow v. Barr, 943 F.3d 456, 458 (9th Cir. 2019), citing Castrijon-Garcia v. Holder. Because felony 236/237 is a lesser included offense of PC 207(a) kidnapping, 236/237 also is not a CIMT.

Similarly, false imprisonment with intent to deceive is not necessarily a CIMT. The offense can be committed with the intent to do good, whether misguided or not. See, e.g., People v. Rios (1986) 177 Cal. App. 3d 445, 449 (father was guilty of felony 236/237 when he told his ex-wife that their baby had been kidnapped, when in fact he had taken her to live with relatives in Mexico because he believed ex-wife endangered her through severe neglect).)

Felony 236/237 committed by “menace” is not a CIMT. It is a general intent crime that does not require an evil purpose, or 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 the victims. Turijan v. Holder, 744 F.3d 617, 621-622 (9th Cir. 2014) (citing People v. Islas, 210 Cal. App.4th 116, 147 (2012).

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), above. 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). for citations and further discussion of felony 236/237 as a COV and CIMT.

COV. Felony 236/237 is a good alternative to a COV such as 245, 273.5, 422. Because the minimum conduct required for guilt is low and the California Supreme Court held that the statute is not divisible, no 236/237 conviction should be a COV for any purpose, regardless of info in the ROC—including under the Stokeling decision. See discussion in above endnote.

Still, because there is not yet a BIA or Ninth Cir decision on point, immigrants could be wrongly charged with a COV. To be safer, plead specifically to deceit or menace and keep violence out of the record. Or give the defendant, imm attorney, and/or friend a photo of the COV analysis in the above endnote.

Offenses that are safer, in that there is published federal precedent that they are not an AF even with a sentence of a year or more, include 460(a), (b), 487; 594 also should be.