PC 528.5

PC 528.5

Offense

Impersonate by electronic means, to harm, intimidate, defraud

Aggravated Felony (AF)

AF as fraud if loss exceeds $10k. Con-sider plea to 484/487, and see Advice to 470, above.

Not a COV, plus it has a maximum 364-day sentence.

Crime Involving Moral Turpitude (CIMT)

Intent to defraud is a CIMT, but intent to harm should not be.

See Advice.

Other Removal Grounds

Not a COV because the harm need not be force. Therefore, it cannot be a deportable crime of DV.

To ensure not wrongly charged as child abuse, keep minor V’s age out of ROC. See 243(a).

Advice and Comments

Possible substitute charge for ID theft or similar offense, but a better choice is 529(a)(3), 530.5.

CIMT: Best practice is plea to “harm” (if possible, a specific mild harm). Offense can be committed by, e.g., impersonating a blogger, or sending an email purporting to be from another, to their embarrassment.1See discussion In re Rolando S., 197 Cal. App. 4th 936 (Cal. App. 5th Dist. 2011).

But even if a prior plea was to fraud, imm advocates should assert that 528.5 is not a CIMT for any imm purpose because it is not divisible between fraud and harm, as there appears to be no authority that a jury is required to decide unanimously between those alternatives to find guilt. See n. 4 on the categorical approach, above.

2020-10-23T18:14:44+00:00Updated January 29th, 2020|