Criminal Substitute Plea Of Accessory After the Fact And Immigration Consequences

Bexar County District Attorney Family Violence - Criminal Substitute Plea Of Accessory After the Fact And Immigration Consequences

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Take this fictional case: A Felony Complaint filed by the Deputy District Attorney for the County of Los Angeles charges that the crime of attempted grand theft of personal asset in violation of Penal Code Section 664/487 (a) was committed by two defendants who unlawfully attempted to take personal asset of a value exceeding 0, to wit: auto parts, the asset of the victim.

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No. 1 defendant, the passenger, pled no contest (equivalent to guilty) to the fee of attempted grand theft. No. 2 defendant, the driver of the tow truck, who has immigration problems, want to plea to a crime not bright moral turpitude.

But attempted grand theft is a crime bright moral turpitude because one of its elements is intent to permanently deprive another someone or entity with money or personal property. Indeed, the bases for classification of offenses as crimes bright moral turpitude ("Cmt") are the elements of the offenses, and not the facts of the cases.

Accessory After The Fact: Not a Cmt offender:

As a normal rule, a crime involves moral turpitude if it contains an element of theft with an intent to permanently deprive, intent to cause great bodily harm, fraud, as well as malice, or even recklessness and lewdness.

But the definition of moral turpitude is nebulous at best, fomenting uncertainty in court rulings whether unavoidable offenses are crimes bright moral turpitude or not.

Accessory after the fact under California Penal Code Section 32 does not merge the elements of the offense committed by the principal. So, an accessory after the fact (to a felony) who harbors, conceals, or aids a indispensable in such felony, with the intent that said indispensable may avoid or fly arrest, trial, conviction, or punishment, has not committed a crime bright moral turpitude, even if the offense committed by the indispensable is a Cmt.

So, an accessory after the fact to grand theft (not attempted theft) has not committed a crime bright moral turpitude. The accessory has no intent to permanently deprive the victim of money or personal property, an element of attempted as well as consummated grand theft.

Indeed, the Ninth Circuit Court en banc held in Navarro-Lopez v. Gonzales (9th Cir. 2007) 503 F 3rd 1063, an immigration case, that California Penal Code Section 32 is "not for real a crime bright moral turpitude."

Conviction of Accessory Not Relating To Principal's Offense:

Moreover, the conviction of an accessory after the fact of an offense has been held not to be a conviction relating to violence (murder), or controlled substances (drug trafficking).

And the conviction of an accessory after a drug trafficking offense has been held by the Board of Immigration Appeals (Bia) as not a deportable drug conviction nor an aggravated felony drug trafficking in Matter of Batista-Hernandez, 21, I. & N. Dec. 955 (Bia 1997).

In the same manner, conviction of an accessory after the fact will not be held to be conviction relating to fraud, domestic violence, bribery, kidnapping, robbery, sexual battery, criminal threats, forgery, firearms, etc...

Deportation (Now Removal) Or Inadmissibility For Crimes bright Moral Turpitude:

Conviction of a crime bright moral turpitude (Cmt) is a ground for deportation/removal under Ina Section 237 (a)(2)(A)(i) if an alien is convicted of a crime bright moral turpitude committed within five years of last admission for which a sentence of one year or longer may be imposed,or at any time after admission is convicted of two or more crimes bright moral turpitude, not arising out of a particular task of criminal misconduct.

And conviction of a particular crime bright moral turpitude or admission of commission thereof (other than a purely political offense), or an attempt or conspiracy to commit such a crime is a ground for inadmissibility under Ina Section 212(a)(2)(A)(i)(I), but with a petty offense exception.

This irregularity to inadmissibility applies, if the alien has committed only one crime bright moral turpitude with a maximum penalty of imprisonment for one year; and the alien was not sentenced to a term of imprisonment in excess of 6 moths.

Conclusion:

Plea of guilty or no contest to accessory after the fact of the commission of a crime bright moral turpitude (Cmt) by a indispensable does not recapitulate to the offense and avoids conviction of a crime bright moral turpitude (Cmt) and its immigration consequences.

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