PC 459, 460(b)

PC 459, 460(b)

Offense

Burglary, Second degree, (Commercial)

Aggravated Felony (AF)

Never an AF under any category; see 460(a). But as always, best practice is to obtain 364 days or less on any single count if that is possible.

Crime Involving Moral Turpitude (CIMT)

Never a CIMT regardless of intended offense; see 460(a). See Advice.

Other Removal Grounds

No other removal ground.

Advice and Comments

Very good immigration plea, regardless of record of conviction (ROC). Still, for extra protection against wrongly filed immigration charges, one can create a good ROC by identifying lawful entry or, especially, intent to commit a non-CIMT.

DACA. Misd burglary is a “significant misdemeanor.” See PC 25400.

Prop 47: If offense was entering open business with intent to steal $950 or less, see 459.5. However, for CIMT purposes this may not be as secure as 459. Also immigration authorities may assert they cannot give effect to a Prop 47 redesignation as a misdemeanor.1See discussion in Velasquez-Rios v. Wilkinson, 988 F.3d 1081 (9th Cir. 2021), declining to give effect to the retroactivity clause in Pen C § 18.5(a), because federal law will not give retroactive effect to a state criminal reform statute that purports to change a previously final conviction. It relied on United States v. Diaz, 838 F.3d 968, 975 (9th Cir. 2016), which declined to give effect to a Prop 47 reduction. One can argue that if the property offense at issue also is a wobbler, the reduction should be given federal effect because from its inception the wobbler had the potential to be a misdemeanor. See discussion in Velasquez-Rios at pp 1087-88 of Garcia-Lopez v. Ashcroft, 33 F.3d 334 F.3d 840, 846 (9th Cir. 2003), overruled in part by Ceron v. Holder, 747 F.3d 773, 778 (9th Cir. 2014).

2021-05-18T16:00:38+00:00Updated May 18th, 2021|