PC 496, 496a, 496d

PC 496, 496a, 496d

Offense

Receiving stolen property, or receiving stolen vehicle

Aggravated Felony (AF)

Get 364 or less on each count to avoid AF.1The BIA held that Pen C § 496 with a year or more imposed is an aggravated felony under 8 USC § 1101(a)(43)(G), which provides that “a theft offense (including receipt of stolen property)” is an aggravated felony if a year is imposed. The BIA said that even though § 496 does not require common law theft or larceny, it meets the definition of “receipt of stolen property.” Matter of Alday-Dominguez, 27 I&N Dec. 48 (BIA 2017). The Ninth Circuit deferred to this decision in United States v. Flores, 901 F.3d 1150 (9th Cir. 2018).

See Advice.

Crime Involving Moral Turpitude (CIMT)

Never should be held CIMT, but best practice is a specific plea to receiving stolen property with intent to deprive temporarily. See Advice.

Other Removal Grounds

No other removal ground.

Advice and Comments

Avoid 1 yr. For a discussion of how to obtain a sentence of 364 days or less for immigration purposes, while spending more time in jail, see § N.4 Sentence.

If 1 yr will be imposed: See offenses like 459, 529(a)(3), 530.5 (which also are not CIMTs) and 487 (which is a CIMT). If the loss to the victim/s exceeds $10,000, do not take 529(a)(3) or 530.5 and work carefully with 487.

CIMT: Ninth Cir held that 496 includes intent to temporarily deprive the owner, which is not a CIMT. Under subsequent Supreme Court precedent, 496 should not be held divisible; thus no conviction is a CIMT.2The Ninth Circuit held that the minimum conduct to commit §§ 496 or 496a involves intent to temporarily deprive the owner, which is not a CIMT. Castillo-Cruz v. Holder, 581 F.3d 1154 (9th Cir. 2009) (Pen C § 496(a)); Alvarez-Reynaga v. Holder, 596 F.3d 534 (9th Cir. 2010) (Pen C § 496d(a)).

While those cases held that the statutes were divisible between temporary and permanent taking, the Supreme Court has clarified that the statutes are not divisible, so that the minimum conduct is the sole basis for evaluating the statute. Under the categorical approach, an offense must be evaluated solely according to the minimum conduct required for guilt, which here is a temporary taking. The only exception is if the statute is “truly” divisible. A statute is not divisible unless, at a minimum, it is phrased in the alternative. To meet this requirement, Pen C § 496 would have to be phrased in the alternative, to prohibit intent to deprive “temporarily or permanently.” Because 496 is not phrased in the alternative in this manner, it is not divisible. Because § 496 is both overbroad and indivisible compared to the CIMT generic definition, no conviction can be held a CIMT. (See Categorical Approach Advisory for more information.) However, to make sure there are no misunderstandings, best practice is to plead specifically to intent to temporarily deprive the owner.
However, for extra protection in case officials do not know the law, plead specifically to intent to deprive temporarily, if that is possible.

Prop 47:  Note that immigration authorities will assert they cannot give effect to a Prop 47 redesignation as a misdemeanor.3See 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).

2021-05-18T16:44:40+00:00Updated May 18th, 2021|