Offense
Second violation of a protective order within 7 years, where the violation includes violence or a credible threat of violence.
Aggravated Felony (AF)
273.6(d) is a COV and thus an AF if a year or more is imposed.1PC 273.6(d) (as well as PC 166(c)(4)) as a COV. This and other sections of PC 273.6 and 166 conviction can cause deportability as a judicial finding of a violation of a DV stay-away order, under INA § 237(a)(2)(E)(ii). But a separate penalty applies to 273.6(d) and 166(c)(4), because these also are crimes of violence (COV). If a year or more is imposed, conviction will be an aggravated felony. See INA § 101(a)(43)(F). Sections 166(c)(4) and 273.6(d) are nearly identical, and this analysis applies to both. They punish as a wobbler a “second or subsequent conviction for a violation of an order described in paragraph (1) occurring within seven years of a prior conviction for a violation of any of those orders and involving an act of violence or ‘a credible threat’ of violence…” (emphasis supplied). In U.S. v. Acevedo-De la Cruz, 844 F.3d 1147 (9th Cir. 2017), the Ninth Circuit held that PC § 273.6(d) is a COV under a definition that is identical to 18 USC § 16(a). The court’s holding will apply to § 166(c)(4) as well. The court stated, “When interpreting other state statutes, California courts have adopted this common understanding of the word ‘violence’ in concluding that force can occur without violence, but violence cannot occur without force.” Id. at 1151. See also CALCRIM 2703, cited for both PC 166(c)(4) and 273.6(d).
If a client in removal proceedings already has this conviction with a sentence of a year or more, advocates can try to challenge Acevedo-De la Cruz by finding a case example of 166(a)(4) or 273.6(d) that involves an offensive touching or other conduct that is not a COV. The defendant in Acevedo-De la Cruz did not do this, and so did not demonstrate a “realistic probability” that the statute would be applied to conduct outside the COV definition. But this is a long shot and advocates at the same time should investigate the possibility for post-conviction relief.
Obtain 364 days or less
Crime Involving Moral Turpitude (CIMT)
Assume that 273.6(d) will be held a CIMT because it requires an act or a credible threat of violence.
Other Removal Grounds
DV deportation ground. If D and V share a protected domestic relationship:
Conviction is a COV and thus a deportable crime of DV, See INA 237(a)(2)(E)(i).
It also is a deportable judicial finding of a violation of a DV stay-away order. See INA 237(a)(2)(E)(ii).
Advice and Comments
PC 273.6(d)
For possible alternatives, see PC 273.6(a)-(c).
For further discussion of this prong of the DV deportation ground, and of 273.6(d), see discussion at PC 166(a). Note that 273.6(d) and 166(c)(4) are nearly identical and have the same immigration analysis.