Aggravated Felony (AF)
Not AF (6-month max)
Crime Involving Moral Turpitude (CIMT)
Not CIMT per Ninth Circuit but plead to property “intended to be taken” if possible and also see Advice. PC 459 may be better for CIMT purposes.
Other Removal Grounds
No other removal ground.
Advice and Comments
CIMT: Ninth Circuit held that a lawful entry with intent to commit theft is not a CIMT, so 459.5 should not be. While it should not be held divisible, do plead to property “intended to be taken” not property “taken.”1See discussion of Hernandez-Cruz v. Holder, 651 F.3d 1094, 1104 (9th Cir. 2011) at § 460(a) CIMT endnote, above. Hernandez-Cruz specifically held that Pen C § 460(b) is not a CIMT even if the intended offense is larceny, because burglary includes a mere lawful entry into a commercial building with bad intent. Section 459.5 has the same elements, at least with intent to take property as opposed to having taken property. Further, § 459.5 should not be held divisible between intent to take and taking, as there is no evidence that a jury must decide unanimously between those two options in order to find guilt. See more on the categorical approach at n. 4, above.
However, if avoiding a CIMT is critical, immigrants with prior convictions of § 460(b) may consider not applying to change the offense to a § 459.5. Burglary as defined by § 459 has a second and unassailable argument against being a CIMT: the intended offense is indivisible between CIMTs and non-CIMTs. See CIMT endnote to § 460(a), above.
But this may not be secure. CIMT law is volatile and 460(b) has a stronger CIMT case. If avoiding a CIMT is critical, consider other options for a new charge (460(b), 496, 530.5), and consider whether to stay with a 460(b) prior rather than obtain Prop 47 relief. See PC 460(a) endnote on CIMT, above.