Thursday, October 21, 2010

Criminal and Immigration Consequences of Theft Offenses

By Roman Mosqueda, S. J.D.
A theft offense, including buying or receiving stolen property, or a burglary offense, has criminal and immigration consequences under the California Penal Code and the Immigration and Nationality Act.

The word "theft" includes larceny, embezzlement or stealing. The offense of theft is classified into: grand theft, when the money, labor, or real or personal property taken is of a value exceeding four hundred dollars ($400), subject to certain exceptions, and petty (or petit) theft, which is theft in other cases (including stolen items worth $400 or less). See sections 486, 487 and 488 of the California Penal Code.

Buying or receiving stolen property, knowing the property to be stolen or obtained, is classified as a "theft" offense, punishable by section 496 of the California Penal Code.

And burglary is defined as entering any house, room, apartment, shop, warehouse, store or other building, with intent to commit grand or petit larceny or any felony, by section 459 of the California Penal Code.

Criminal Consequences Of Theft Offenses:

As stated earlier, there are two types or degrees of theft: grand theft and petty (or petit) theft.

Grand theft is punishable by imprisonment in a county jail not exceeding one year or in the state prison, under section 489 of the California Penal Code.

And a grand theft complaint may be filed by the prosecutor as a misdemeanor (by punishment in county jail not exceeding one year), or as a felony (by imprisonment in the state prison). Thus, it is a "wobbler", at the prosecutorial discretion of the City Attorney or District Attorney.

Petty theft is punishable by fine not exceeding one thousand dollars ($1,000), or by imprisonment in the county jail not exceeding six months, or both, under section 490 of the California Penal Code. Thus, petty theft is charged as a misdemeanor in the complaint.

Buying or receiving any property that has been stolen or that has been obtained in any manner constituting theft or extortion, knowing the property to be so stolen or obtained, is punishable by imprisonment in a state prison, or in a county jail for not more than one year.

Thus, section 496 of the California Penal Code makes buying or receiving or selling stolen property either a felony or a misdemeanor. And the element of the crime of "knowing the property to be so stolen or obtained" is difficult to prove.

So, police officers or detectives usually conduct an undercover, "sting" operation, wherein the wired seller of stolen property informs the buyer that the property is stolen or "hot."

And mere possession (or receipt) of stolen property, knowing it to be so stolen or obtained, is already a theft offense.

Burglary is also classified into two (2) degrees: burglary of the first degree, which pertains to every burglary of an inhabited dwelling house, vessel, trailer couch, or the inhabited portion of any building, and burglary of the second degree, which covers all other kinds of burglary, under section 460 of the California Penal Code.

And burglary in the first degree is punishable by imprisonment in the state prison for two, four, or six years. Burglary in the second degree is punishable by imprisonment in the county jail not exceeding one year or in the state prison, under section 461 of the California Penal Code.

Immigration Consequences Of Theft Offenses:

A theft offense (including receipt of stolen property) or burglary offense for which the term of imprisonment is at least one (1) year, even though suspended, is an aggravated felony, under section 101(a)(43)(G) of the Immigration and Nationality Act.

So, if the sentence imposed by a state court judge is one (1) year imprisonment in a misdemeanor complaint for petty (or petit) theft or larceny, it is considered as an aggravated felony under federal immigration law.

And there is no cancellation of removal relief for a lawful permanent resident, nor for an overstaying or illegal alien, convicted of an aggravated felony, either by state or federal court.

If a theft offense is not an aggravated felony (the term of imprisonment imposed is less than one (1) year), it is still a crime involving moral turpitude.

Any alien, including a lawful permanent resident, who is convicted of a crime involving moral turpitude, committed within five years of admission, and is convicted of a crime for which a sentence of one (1) year or longer may be imposed (even if the sentence imposed is less than one (1) year) is deportable (termed "removable" since 1997).

But a lawful permanent resident may obtain cancellation of removal if the theft offense is not an aggravated felony (the term of imprisonment is less than one (1) year), even though it is a crime involving moral turpitude.

And any alien, including a lawful permanent resident, who is convicted of two crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct, is likewise deportable or removable.

If the two crimes involving moral turpitude are not aggravated felonies, a lawful permanent resident may still be eligible for cancellation of removal, and keep his/her lawful permanent resident status.

The criminal and immigration consequences of theft offenses are complex. The immigration consequence of deportation or removal may be worse than the criminal punishment of imprisonment.

1 comments:

Unknown said...

Thanks for all the advice! I have been helping my brother look for a criminal attorney in Canada and it has turned into a huge process. Thanks again, I'll make sure to pass this info on.

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