Offense
“Unlawful deprivation of a retail business opportunity”
Possession of property unlawfully obtained from retail business with intent to sell, return, or exchange, where “aggregate” property value exceeds $950
1170(h) wobbler
Aggravated Felony (AF)
Yes, likely an AF if a year or more is imposed.
Seek 364 days or less, or a different offense. Possible defense if plead to fraud
See Advice
Crime Involving Moral Turpitude (CIMT)
Yes, assume a CIMT as theft/ receipt of stolen property with intent to deprive the owner “permanently or substantially,” as shown by intent to exchange or sell.
See 484 for more on intent to deprive.
See Advice.
Other Removal Grounds
No other removal grounds.
Advice and Comments
PC 496.6 (AB 2943, 2024)
This offense is structurally similar to but substantively different from PC 496.5.
PC 496.6 penalizes unlawfully possessing property that D or any other person obtained by “one or more acts of shoplifting, theft, or burglary from a retail business,” if D “has the intent to sell, exchange, or return” the property for value or act in concert with other/s to do so, if the “aggregate value” of the property exceeds $950.
“Aggregate value” includes value of current property plus other property similarly held by D within the last two years, and/or property similarly held by person/s acting in concert with D — based on proof or admission of such other conduct and valuation, not by prior conviction.
D must avoid this offense especially if a year or more will be imposed. If another plea is not, possible consider plea to 496.6 as fraud; see below.
Alternative pleas to avoid an AF and CIMT: PC 496.6 can be charged even if the value of property held by D in the instant offense does not exceed $950. That may make it hard to plead instead to safer offenses like PC 459, which requires value > $950.
To avoid a CIMT and an AF, offer to stipulate to 459, or to plead to felony attempted PC 459, where the intent was > $950. Or plead to misd 496 and add another felony that is not a CIMT can take a year, e.g., PC 594, especially if there was damage to the store. or 530.5 if fraud was involved and loss to victim/s was $10k or less.
Or see PC 487 which as of 2025 has a similar expansion of its measure of “aggregate” value. Section 487 is a CIMT, but at least is not an AF if a year or more is imposed. For DAs who are intent on obtaining convictions under the new 2025 statutes, this might be acceptable.
Less favorable, plead to felony 496.6 and if more than a year is required, structure the sentence. Spend time in custody before the sentencing hearing and then waive CTS in exchange for a prospective “sentence” of felony probation and 364 days or less. See other strategies in Note: Sentence.
Possible AF Defense: Plead to Fraud. See PC 484 for discussion of AF as theft versus as fraud.
If it is not possible to avoid 496.6 with a year imposed, D might avoid an AF by pleading guilty to 496.6 by committing theft by fraud to obtain the property, and intent to exchange or return the goods for value, which also is fraud. If this creates a fraud offense, and avoids receipt of stolen property, the conviction is not an AF based on a year or more sentence imposed. A fraud offense is an AF only if loss to victim/s exceeds $10,000. See INA 101(a)(43)(G), (M) and discussion at PC 484.
This defense is untried and if possible the sentence imposed should be 364 days or less. D should state that they, rather than another person, obtained the goods. The offense remains a CIMT.
While a plea specifically to fraud is best, removal defense advocates could argue that under the categorical approach, 496.6 is not divisible between theft and fraud offenses, and all convictions must be deemed fraud. As always with untried defenses, advocates at the same time should investigate obtaining post-conviction relief.
CIMT Petty offense exception: Even a plea to a misdemeanor 496.6, or a 17(b)(3) reduction to a misdemeanor 496.6, likely destroys eligibility for the “petty offense exception” to the CIMT inadmissibility ground, if there is evidence that D did not commit just the one CIMT.1The petty offense exception to the CIMT ground of inadmissibility, INA § 212(a)(2)(A)(ii)(II), requires the CIMT conviction to have a potential sentence of a year or less, actual sentence of six months or less, and that the person has “committed” only this one CIMT. Defense counsel should be aware that 496.6 likely destroys petty offense exception eligibility because it requires proof or admission that D committed other similar CIMT/s within 2 years, or that D is acting in concert with another who committed at least one similar CIMT. It might be possible to avoid this if there is no admission or proof that D themselves did not commit another CIMT.