Aggravated Felony (AF)
Try very hard to get 364 or less on each count in order to surely avoid an AF, but arguably this is not a COV. See Advice.
Crime Involving Moral Turpitude (CIMT)
CIMT, although imm advocates may try to argue against this.1Pen C. § 243.4 has been held a CIMT. Gonzalez Cervantes v. Holder, 709 F.3d 1265 (9th Cir. 2013). In his dissent, Judge Tashima noted that 243.4(e) has been expanded to include cases in which the intent was to insult, and should be held to reach non-turpitudinous conduct, citing In re Shannon T., 50 Cal. Rptr. 3d 564 (Ct. App. 2006), In re Carlos C., 2012 WL 925029 (Cal. Ct. App. 2012).
Other Removal Grounds
This might be (wrongly) charged as a COV under Stokeling, so if possible get a different plea (e.g., 136.1(b)(1), 594) if the V and D share a protected relationship, in order to avoid a deportable crime of DV. Note that 243(d) has been held to be a COV. See Advice for alternate pleas and further discussion.
To ensure not wrongly charged as child abuse, keep minor V’s age out of ROC. See 243(a).
Having to register as a sex offender is not itself a removal ground. However, a state conviction for failure to register could lead to deportability; see PC 290.
Advice and Comments
Good substitute plea to avoid the AFs of sexual abuse of a minor or rape, or deportable child abuse. See also PC 136.1(b)(1), 236/237(a), 243(a), (e), 261.5(c), 289(e), 273a(b).
Ninth Cir in the past held 243.4 is not a COV under 18 USC 16(a) because the touch can be ephemeral and the restraint imposed by psychological means, including the threat of arrest. Immigration advocates have a strong argument that for this reason, it also is not a COV under the 2019 Stokeling decision.2 Pen C § 243.4 should not be held a COV. The Ninth Circuit held that the minimum prosecuted conduct to commit § 243.4 does not meet the definition of crime of violence under a federal definition identical to the one used in 18 USC § 16(a), because the touching can be ephemeral and not by force, and the restraint can be psychological and not threatening force—for example, by threat of arrest. See, e.g., U.S. v. Lopez-Montanez, 421 F.3d 926, 929 (9th Cir. 2005) (“[T] he restraint need not be physical and can be accomplished by words alone, including words that convey no threat of violence,” citing People v. Grant (1992) 8 Cal. App. 4th 1105, 10 Cal. Rptr. 2d 828, 830-33 , where § 243.4 conviction was upheld when defendant restrained trespassing victim by saying he worked with the police and the owner of the property); see also U.S. v. Espinoza-Morales, 621 F.3d 1141 (9th Cir. 2010) (neither Pen C 243.4 nor 289(a)(1) are COVs under 18 USC § 16(a)). While Lopez-Montanez found that felony § 243.4 meets a different definition of COV at 18 USC § 16(b), the Supreme Court held that the § 16(b) definition is unconstitutionally vague and no longer can be applied. Sessions v Dimaya, 138 S Ct 1204 (2018).
The fact that the restraint can be accomplished with no use of force, including threat of arrest, should overcome a charge that this is a COV under Stokeling v. U.S., 139 S.Ct. 544 (2019. There Supreme Court held that an offense that has as an element overcoming the resistance of a victim by use of force is a COV, even if the force can be quite minor. Arguably an offense that requires no physical force cannot be a COV under 18 USC 16(a), however. See discussion of Stokeling at Pen C 207, above. However, because the issue has not yet been litigated, best practice is to try to get 364 or less on each count of 243.4 to be sure to avoid an AF. If 1 yr is required, offer, e.g., felony 459/460(a), 236/237, or even 207 with prison time plus misd 243.4. If a strike is needed, offer 136.1(b)(1) as a consecutive or subordinate offense, with an 8-month sentence.
Misd is a “significant misdemeanor” for DACA. See PC 25400.
Adam Walsh Act. If V is a minor, conviction can prevent a US or LPR from immigrating family members in the future. Assume gov’t can use evidence of age from outside the ROC. See § N.13 Convictions that Bar the Defendant from Petitioning for Family Members: the Adam Walsh Act.