Offense
Possess “real or fictitious” check, etc. with intent to defraud
Aggravated Felony (AF)
Can avoid AF as forgery; see Advice.
Yes, AF as fraud if loss exceeds $10k; see Advice for PC 484.
Crime Involving Moral Turpitude (CIMT)
CIMT because intent to defraud
Other Removal Grounds
No other removal ground.
Advice and Comments
PC 475(c)
AF as Forgery. The best defense is to get 364 days or less on each count. But if 1 year was or must be imposed, note that Ninth Cir held 475(c) is broader than forgery because 475(c) includes use of “real” document.1Vizcarra-Ayala v. Mukasey, 514 F.3d 870, 8767 (9th Cir 2008).
In case 475(c) ever is held divisible between real or fictitious documents, plead to use of “real” doc with intent to defraud. That is not an AF in the Ninth Cir even with 1 yr imposed.
AF if $10k loss. If loss exceeds $10k see instructions at PC 484 and 470.
LRA Mandatory Detention. If the client was not admitted into the U.S., ICE might charge that they are subject to mandatory detention under the LRA on the grounds that 475(c) meets the California definition of attempted theft by fraud, PC 484(a). Immigration counsel can argue that it does not: there is no requirement of V’s loss or a taking, and possessing a valid check with bad intent is not sufficient for an “attempted” taking; see discussion of attempt at 460(a). (Note that regardless of LRA, people not admitted to U.S. also are subject to MD if they are inadmissible for crimes, and people admitted to the U.S. are subject to MD if they are deportable for certain crimes. See advice on Mandatory Detention.)
SB54: This felony conviction permits law enforcement notification / transfer to ICE for 15 years. The misdemeanor conviction permits law enforcement notification / transfer for 5 years, unless it is a straight misdemeanor because the loss is $950 or less, in which case NO notification / transfer is permitted. See SB 54 advisory at www.ilrc.org/crimes-summaries.