PC 647.6 (a)

PC 647.6 (a)

Offense

Annoy, molest “child,” defined as underage 18

Aggravated Felony (AF)

Not AF as sexual abuse of a minor (SAM) in Ninth Circuit. Unlikely, but possible, to be held SAM elsewhere.

See Advice, and See § N.10 Sex Offenses.

Crime Involving Moral Turpitude (CIMT)

Not CIMT in Ninth Circuit.

Other Removal Grounds

Does not appear to be being charged as child abuse, but no precedent.

Imm counsel can argue against this due to no element of potential harm, Ninth Circuit rulings that it is not abuse, and fact that it includes persons up to age 17. But to avoid the problem, consider alternate plea. See Advice.

Advice and Comments

See citations and analysis.1The Ninth Circuit held that the minimum conduct to commit Pen C § 647.6 is not an aggravated felony as sexual abuse of a minor. U.S. v. Pallares-Galan, 359 F.3d 1088, 1101 (9th Cir. 2004). Neither is the minimum conduct a CIMT, because as non-explicit, annoying behavior, it does not necessarily harm the victim. Nicanor-Romero v. Mukasey, 523 F.3d 992, 1000-1001 (9th Cir. 2008), partially overruled by Marmolejo-Campos v. Holder, 558 F.3d 903, 911 (9th Cir. 2009) (to the extent it and other decisions suggest that the BIA is not owed Chevron deference in moral turpitude cases)).

Section 647.6 is not a divisible statute, because the terms “annoy” and “molest” are synonymous. See People v. Kongs, 30 Cal. App. 4th 1741, 1749 (1994), cited in Nicanor-Romero, 523 F.3d 992 (9th Cir. 2008). Because § 647.6 is overbroad and indivisible, no conviction is SAM or a CIMT for any immigration purpose, regardless of information in the ROC, within the Ninth Circuit. See categorical approach at n. 4, above.

Because of the minor nature of the minimum conduct and the resulting findings of lack of harm to the minor, § 647.6 also should not be held a crime of child abuse under the BIA’s guidelines. See discussion of BIA standard at ILRC, Practice Advisory: California Penal Code § 273a(b) is not a Crime of Child Abuse (February 2016) at https://www.ilrc.org/sites/default/files/resources/child_abuse_273ab_mendoza.pdf.

The Ninth Circuit went into useful detail about the type of minor conduct that has been found to violate § 647.6. In finding that it is not SAM, the court noted that defendants have been convicted of § 647.6 for conduct such as include urinating in public, offering minor females a ride home, driving in the opposite direction; repeatedly driving past a young girl, looking at her, and making hand and facial gestures at her (in that case, “although the conduct was not particularly lewd,” the “behavior would place a normal person in a state of being unhesitatingly irritated, if not also fearful”) and unsuccessfully soliciting a sex act. U.S. v. Pallares-Galan, 359 F.3d at 1101 (9th Cir. 2004). In finding that it is not a CIMT, the court noted that defendants have been convicted of § 647.6 for conduct such as brief touching of a child’s shoulder, photographing children in public with no focus on sexual parts of the body so long as the manner of photographing is objectively “annoying,” and hand and facial gestures or words alone; it found that words need not be lewd or obscene so long as they, or the manner in which they are spoken, are objectively irritating to someone under the age of eighteen, and it is not necessary that the acts or conduct actually disturb or irritate the child. Nicanor-Romero, 523 F.3d at 1000.

In considering whether § 647.6, which reaches irritating behavior toward a 17-year-old, constitutes a deportable crime of child abuse, it may be useful to note that having sexual intercourse with a minor age 16 or older is neither sexual abuse of a minor (Esquivel-Quintana v. Sessions, 137 S.Ct. 1562 (2017)) nor a crime involving moral turpitude (Matter of Jimenez-Cedillo, 27 I&N 1 (BIA 2017)), due to the lack of harm to the minor.

If pleading to 647.6: Best practice is to ID non-explicit, non-harmful conduct in the ROC, or keep ROC vague, in case authorities wrongly look to ROC to define the offense.

Age-neutral offense to prevent deportable child abuse, SAM: The sure way to avoid any threat of SAM (outside the Ninth Circuit) or child abuse is a plea to age-neutral offense like 243, 236, 646.9, 647, 459, etc. In addition, while it should not be legally necessary, keep the ROC clear of reference to a minor V. See Advice to 243(a). Or, consider 273a(b), which does not have immigration consequences.

Possibly a “significant misdemeanor” for DACA. See PC 25400.

2020-05-19T19:16:38+00:00Updated January 29th, 2020|