Soonalole, P. Castro, F. May 20, California conviction of theft, under Penal Code a , is not categorically a theft aggravated felony because the California offense includes theft of labor, and because the California statute may be violated even if the victim consented to transfer his property by false pretenses , citing Carrillo"Jaime v.
Grajeda, which held that a conviction under section a 1 is categorically a crime of violence, is still good law even in light of People v. Aznavoleh, Cal. Wyatt, 48 Cal. He may not be convicted based on facts he did not know but should have known. Wyatt, at quoting People v. Williams, 26 Cal.
Grajeda, F. The court reasoned: We disagree. Aznavoleh involved a defendant who intentionally ran a red light while racing another car down the street even though he saw a car entering the intersection on the green. The defendant made no effort to stop despite a passenger warning him that he needed to stop.
The California Court of Appeal upheld the trial court's finding that the defendant met the willfulness element of assault under California Penal Code a 1 , which the California Court of Appeal defined as intentionality. Wyatt involved a father who, while play wrestling with his infant son, struck the boy with such force that he killed him. As did the California Court of Appeal in Aznavoleh, the California Supreme Court in Wyatt explained that a defendant guilty of assault must be aware of the facts that would lead a reasonable person to realize that a battery would directly, naturally and probably result from his conduct.
Contrary to Jimenez"Arzate's argument, Aznavoleh did not hold that an automobile accident stemming from merely reckless driving may result in a conviction under a 1. The defendant in Aznavoleh engaged in street racing, heedlessly disregarding a perceived likelihood of death or grave injury to others. Likewise, in Wyatt, a reasonable person would have recognized the dangers of striking a child with the deadly force used, even if the defendant was not subjectively aware of the risks of his play wrestling with the child in that manner.
Martinez, F. First, it is written in the disjunctive by listing five alternative categories of controlled substances. See Quijada Coronado v. Also, California state law treats the type of controlled substance as a separate element in prosecuting relevant drug offenses. Law 4th ed. Montero, Cal. Gerber, Cal. Hernandez, F. July 1, Failla, P. NOTE: The court states: To be clear, it is black-letter law that a statute is divisible only if it contains multiple alternative elements, as opposed to multiple alternative means.
Thus, when a court encounters a statute that is written in the disjunctive that is, with an or , that fact alone cannot end the divisibility inquiry. Only when state law requires that in order to convict the defendant the jury must unanimously agree that he committed a particular substantive offense contained within the disjunctively worded statute are we able to conclude that the statute contains alternative elements and not alternative means.
Vargas, Cal. Rather, they are the means by which the purpose of the conspiracy was to be achieved. Note: As long as Rendon v. August 22, , remains the law of the Ninth Circuit, the target offense of the conspiracy does not constitute part of the elements of the offense of conviction.
Under the same reasoning, a conspiracy offense is not divisible in terms of the elements, so the immigration authorities cannot use the modified categorical analysis to consult the record of conviction documents to determine the nature of the conviction for immigration purposes.
Thanks to Dan Kesselbrenner. Compare Haw. Barrios-Siguenza, F. Leal"Del Carmen, F. Given the government's authority to permit Barrios to return for retrial, and counsel's assurances that Barrios would be willing to do so, this case is unlikely to languish for an indefinite period before the district court, should the government choose to retry Barrios.
Dominguez-Maroyoqui, F. See 21 C. Garcia-Santana, F. Chandler, F. Code tit. Popov, F. Caceres-Olla, F. Gomez"Mendez, F. Rangel"Castaneda, F. The three examples cited by the Sentencing Commission, see supra at pp. We have acknowledged, however, that the assumption that a minor's legal incapacity implies that the proscribed sexual intercourse is non-consensual does not always hold true[.
Some minors are able to engage in sexual intercourse voluntarily, despite being legally incapable of consent. In other words, because statutory rape is a strict liability crime, the minor's actual state of mind does not matter, nor does the minor's actual capacity for mature deliberation.
The term statutory rape is ordinarily, contemporarily, and commonly understood to mean the unlawful sexual intercourse with a minor under the age of consent specified by state statute. If all sex offenses where consent See U. The same would be true of sexual abuse of a minor, whereby we define the term abuse Medina"Villa, F. A statute should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant.
Corley v. This basic interpretive canon [,] id. Wenner, F. Yet, when asked at argument, the government could identify no circumstance in which a statutory rape would not also be a forcible sex offense under its interpretation. Nor can we.
It is our duty to give effect, if possible, to every clause and word of a statute. Duncan v. Walker, U. We are reluctan[t] to treat Third, deeming as forcible sex offenses all sexual acts with persons under the age of majority would ignore contemporary limitations on the concept of statutory rape. In particular, there has been a move among the states to reform statutory rape laws in cases involving partners of a similar age"for instance, foreclosing prosecutions of 16"year"olds for heavy petting with 14"year"olds, or reducing sentences of 19"year"olds for sexual intercourse with 17"year"olds.
Pol'y , "91 In recognition of this growing consensus, we have held that, for federal purposes, an age difference of at least four years is an element of sexual abuse of a minor, Estrada"Espinoza v.
Reading the term forcible sex offenses"which requires no age difference"to encompass all sexual conduct with minors, would obliterate those limitations.
A so-called Romeo"and"Juliet offender[,] Doe v. Dep't of State Police, F. Note: This holding may be inconsistent with Bautista v. Note: Although not a positive case, the discussion does carefully address prior Ninth Circuit case law and has some very useful analysis distinguishing 18 U. Thanks to Joseph Justin Rollin. Avery, F. Escamilla, F. Franco"Lopez, F. The government cannot seize upon convenient language contained in the information to substantiate a broader charge that was not incorporated into the plea agreement.
Gallegos-Galindo, F. Note: RCW 9A. The statute does not contain any further elements. Without conducting any analysis of Washington case law to determine whether any judicially identified elements exist, and thus whether the statute could be considered divisible, the Court found it could skip the categorical analysis, and apply directly the modified categorical analysis. This allowed the court to conclude the offense was a forcible sex offense which includes any non-consensual sexual intercourse, because the factual basis specified that no consent had been given.
The court did not cite Aguila-Montes de Oca, F. Reyes, F. Dunn, F. Gomez"Leon, F. Castillo-Marin, F. Ramos-Medina, F. Becker, F. Marquez-Lobos, F. Gomez-Hernandez, F. May 31, Arizona attempted aggravated assault conviction, for attempting to "intentionally, knowingly or recklessly" cause a physical injury with a deadly weapon is categorically a crime of violence for illegal re-entry sentencing purposes because one cannot "attempt" to commit a reckless act, and therefore the conviction must have involved intent, rather than recklessness.
Leal-Vega, F. Sanchez"Garcia, F. NOTE: Although refusing to follow similar cases in the immigration context, the Ninth Circuit found that under the sentencing guidelines, the term "controlled substance" also only refers to substances listed in the Federal schedules.
Napolitano, F. Li Hing of Hong Kong, Inc. Levin, F. These arguments are given in Aggravated Felonies , supra. Immigration lawyers must also check the record of conviction very carefully to see if the original criminal lawyer succeeded in obtaining a non-aggravated felony conviction in the first place. Finally, where a conviction does qualify as an aggravated felony, the immigrant may need to seek post-conviction relief in immigration court, so the aggravated felony conviction can be vacated on a ground of legal invalidity, which will eliminate the conviction and avoid its adverse immigration consequences.
This office can assist immigrants who are charged with, or have been convicted of, an aggravated felony in several ways:. We provide the most extensive collection of information on what is and is not an aggravated felony in the world, in our newsletters , practice manuals , website, and seminars. We can offer a consultation , and examine the records from the criminal court, to give a reliable opinion on whether a given conviction is or is not an aggravated felony.
We can also offer arguments that an immigration lawyer can use in immigration procedures to argue that the conviction does not qualify as an aggravated felony. If a conviction is causing damage as an aggravated felony, we can seek post-conviction relief anywhere in the country to reopen the criminal case, vacate the aggravated felony conviction, and obtain a dismissal or alternative plea bargain that does not cause these damaging immigration consequences.
Learn more about our Legal Services. Rollin, Aggravated Felonies is a page treatise on all aspects of aggravated felonies. This volume contains a number of valuable appendices on different aspects of aggravated felonies:. Appendix A: Category Case Index, takes all decisions of all courts defining what is, and is not, an aggravated felony, and organizes them according to the aggravated felony category within which they might or might not fall. These aggravated felony categories are organized in alphabetical order.
Appendix B: Crime Case Index, labels each decision concerning whether a specific criminal conviction constitutes an aggravated felony under a certain category according to the common name of the criminal conviction involved. Appendix C: Aggravated Felony Checklist, contains a quick and easy alphabetical index of all aggravated felony categories listed in the statute defining aggravated felonies.
Download it now Criminal Defense of Immigrants This page practice manual describes the field of criminal immigration law in detail, for both criminal and immigration lawyers, and has been cited by the U. Formulario Inicial Intake Form. Tooby's Guide. Free Newsletter Sign up for our free monthly email newsletter and keep up to date with criminal immigration law. Criminal Defense of Immigrants This page practice manual describes the field of criminal immigration law in detail, for both criminal and immigration lawyers, and has been cited by the U.
Aggravated Felonies This page reference work contains all judicial decisions defining what is and what is not an aggravated felony conviction, for use in both criminal and immigration courts nationwide.
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