Offense
Escape or attempted escape from (a) sheriff custody or (b) officer custody after arrest
Misdemeanor
or
Wobbler if forcible escape causes officer injury
Aggravated Felony (AF)
Misdemeanor: Never AF as obstruction because maximum sentence is 364 days.(But pre-2015 misdos that have sentence of 1 year may be so held)
Wobbler: Get 364 or less to avoid AF as a COV or obstruction
Crime Involving Moral Turpitude (CIMT)
Misdo: Should not be CIMT. See PC 4532(a)
Wobbler: Likely CIMT, but a plea to “offensive touching” might prevent this.1Pen C 836.6 as a CIMT. Like Pen C § 243(d), “force or violence” in 836.6 can be committed by a mere offensive touching that somehow causes serious bodily injury. (See Cal Crim Jury Instructions 2763). But ICE may assert that 836.6 is categorically a CIMT, because that level of injury must mean that real violence was used and harm was intended. Defenders should conservatively assume it will be so held, but immigration advocates can see discussion of Pen C § 243(d) and United States v. Perez, 932 F.3d 782 (9th Cir. 2019). There the Ninth Circuit (arguably incorrectly) held that 243(d) is a COV; however, PC 243(d) has been held not to be a CIMT. See also ILRC Practice Advisory, Ninth Circuit Holds California Penal Code 243(d) is a Crime of Violence in U.S. v. Perez (2019), https://www.ilrc.org/resources/practice-advisory-ninth-circuit-holds-calif-pen-c-243d-crime-violence-us-v-perez. See Pen C 243(d) and see Advice.
Other Removal Grounds
No other removal grounds. See PC 4532(a).
Advice and Comments
PC 836.6 AF. Defenders should conservatively assume that PC 836.6 as a wobbler is a potential AF as obstruction of justice or as a COV, if a year or more is imposed.2Pen C § 836.6 as an AF. As a wobbler, PC 836.6 , escape or attempted escape, is a potential AF if a year or more is imposed as either obstruction of justice or a crime of violence (COV).
Obstruction of justice is an AF if a year or more is imposed. 8 USC § 1101(a)(43)(S). While obstruction is vaguely defined (see, Pugin v. Garland in discussion of Pen C § 32, above), defenders should assume that it includes intentional interference with an investigation or proceeding or punishment resulting from a completed proceeding. Matter of Valenzuela Gallardo, 27 I&N Dec. 449, 449 (BIA 2018).
A COV is an AF if a year or more is imposed on a single count. 8 USC § 1101(a)(43)(F). Section 836.6 criminalizes escape by “force or violence” that proximately causes “serious bodily injury” of an officer. Under United States v. Perez, 932 F.3d 782 (9th Cir. 2019), these two additional elements are likely to cause immigration authorities to find this also constitutes a crime of violence, even though the offense does not have use of force beyond a mere offensive touching, or intent to cause the injury, as an element. (See Cal Crim Jury Instructions 2763). See discussion of Perez at Pen C 243(d) and see critique at ILRC, Ninth Circuit Holds California Penal Code 243(d) is a Crime of Violence in U.S. v. Perez (2019), https://www.ilrc.org/resources/practice-advisory-ninth-circuit-holds-calif-pen-c-243d-crime-violence-us-v-perez. It is possible that a specific plea to an offensive touching would prevent a COV finding, although that still would leave the obstruction risk.
For strategies to avoid a year for immigration purposes, see N.4 Sentence.
Alternatives: To avoid an AF if a year is required, consider PC 236/237, 459, 591, 594, or even 207 (but this is less sure). To avoid a CIMT, consider misd 836.6 or, with a sentence of less than a year, misd or felony 32, 69, 148(a), 136.1(b)(1).