Offense
Assault
Aggravated Felony (AF)
Not an AF: Not a COV, plus maximum sentence is less than 1 year
Crime Involving Moral Turpitude (CIMT)
Not CIMT1
See generally Matter of Perez-Contreras, 20 I&N Dec. 615 (BIA 1992); Matter of Short, 20 I&N Dec. 136, 139 (BIA 1989).
Specifically, PC 241(a) simple assault, defined at PC 240, is not a CIMT for a few reasons. First, PC 240 is a lesser or “necessarily” included offense of PC 242, 243, battery. Because battery under PC 243(a), 243(e) is not a CIMT, its lesser included offense simple assault also is not a CIMT. “An assault is a necessary element of battery, and it is impossible to commit battery without assaulting the victim [citations].” People v. Colantuono (1994) 7 Cal.4th 206, 216–217, cited in People v. Hayes (2006) 142 Cal. App. 4th 175, 180. See also California jury instructions listing PC 240 as a lesser included offense for all forms of battery, including simple battery (CALCRIMM # 950). Section 243(a), 243(e) are not CIMTs because they can involve a de minimis, rude touching with no intended or actual injury or pain. See Matter of Sanudo, 23 I&N Dec. 968 (BIA 2006) (CA PC § 243(e), spousal battery, is not a CIMT). Therefore, the lesser included offense, simple assault, also is not.
Second, on its own elements, PC 240, 241(a) is a general intent offense that does not involve intended or actual pain or injury, and actually does not even involve “attempt” as defined under California law. An “assault does not require a specific intent to cause injury or a subjective awareness of the risk that an injury might occur. Rather, assault only requires an intentional act and actual knowledge of those facts sufficient to establish that the act by its nature will probably and directly result in the application of physical force against another.” People v. Williams (2001) 26 Cal.4th 779, 790, cited in People v. Hayes, supra at p. 180, and reaffirmed in People v. Wyatt, (2010) 48 Cal. 4th 776, 778. Identical to battery, the definition of force for simple assault is de minimis touching. “The terms application of force and apply force mean to touch in a harmful or offensive manner. The slightest touching can be enough if it is done in a rude or angry way. Making contact with another person, including through his or her clothing, is enough. The touching does not have to cause pain or injury of any kind.” CALCRIM 915, PC 240. but see Advice regarding ROC
Other Removal Grounds
See 243(a)
Advice and Comments
PC 241(a)
Good immigration plea. (Although due to extensive case law on battery, battery might be better because imm authorities are more familiar with it.) See 243(a) Advice re ROC.
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.