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Category: State of California

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In yet another positive development in the State of California, the maximum potential sentence to imprisonment for misdemeanors is now 364 days. It accomplishes this by adding section 18.5 to the Penal Code, which provides:

Every offense which is prescribed by any law of the state to be punishable by imprisonment in a county jail up to or not exceeding one year shall be punishable by imprisonment in a county jail for a period not to exceed 364 days.

Governor Brown signed the bill, SB 1310, on July 21, 2014. Since the text of the bill does not specify otherwise, criminal defense attorneys should assume that the change does not go into effect until January 1, 2015.  Until then, attorneys should pursue other strategies to protect their clients.

There are three major benefits for non-citizens convicted of a misdemeanor that carries a 364 day maximum potential sentence.  First, the conviction could not meet the federal definition of an aggravated felony based on a 365 day sentence to imprisonment (be careful, though, because some aggravated felonies do not require any sentence to imprisonment).

Second, a California misdemeanor conviction would no longer make an immigrant deportable for conviction of a single crime involving moral turpitude (CIMT) committed within 5 years of admission, since that ground of deportability only applies if the conviction carries a maximum potential sentence to imprisonment of one year or more.

Third, a single misdemeanor CIMT conviction that results in a sentence to imprisonment of 6 months or less would no longer automatically disqualify a non-permanent resident from cancellation of removal.  Cancellation of removal is discretionary relief from removal based on continuous physical presence of 10 or more years and exceptional and extremely unusual hardship to a citizen or permanent resident family member.

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The California Department of Justice, Division of Law Enforcement, has issued a bulletin on the responsibilities of local jurisdictions under the TRUST Act and potential liability for detaining a person pursuant to an ICE request. Read my previous blog post for more on the TRUST Act. As for liability, the bulletin notes a district court in Oregon found detainers are voluntary requests, and thus a jail may be held financially liable if it turns out there was no probable cause for the detention. This is a worrisome prospect because ICE often issues detainer requests on scant evidence and in the past has even issued detainers against U.S. citizens.

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The Alameda County Sheriff's Office is no longer honoring ICE detainer requests, period. The development likely has a lot to do with the court decisions that have held a local jail could be legally and financially responsible for an erroneous hold, not to mention the fact ICE does not even compensate the county for the expense of holding the person in custody for an additional day or two.

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The San Mateo County Sheriff's Office has revised its ICE hold policy to not honor ICE detainer requests except "in cases of individuals who pose significant public safety concerns, which would require case by case approval from the Sheriff's Executive staff." These should be a "rare exception."

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Scott Mossman will present an MCLE on the California Trust Act, AB-4, on April 2, 2014, from 4:00 pm to 5:30 pm in Oakland.

The Trust Act went into effect on January 1, 2014, and prohibits California law enforcement from honoring ICE detainer requests except under certain circumstances. The seminar will review this new legislation and compare it with the more protective ordinances and policies in place in some Bay Area counties. Our focus will be on the strategic use of the Trust Act and local ordinances to prevent transfer of removable noncitizen clients from local jail custody to ICE custody. In some cases this is possible even if the client has to take a felony conviction.

The Law Office of Scott A. Mossman has applied to the State Bar of California for certification of 1.5 MCLE credits for this in-person seminar. The event is open only to criminal defense attorneys, public defenders, and immigration attorneys. There is a $30 fee for registration, but it is waived for attorneys who previously have consulted with Scott Mossman.

Call Susana Figueroa at (510) 835-1115 to RSVP no later than March 31.

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Assembly Bill 4, the Trust Act, took effect in California on January 1, 2014. The law represents a substantial change in how California law enforcement agencies must respond to a request by Immigration and Customs Enforcement (ICE) to hold a person suspected of being removable for an immigration violation.

In the past few years, ICE has initiated record numbers of removal cases against noncitizens--to the point where the immigration courts cannot keep up. It has done this by using the new Secure Communities program (S-Comm) to flag persons detained even briefly in a city or county jail and to request that they be held so that ICE can initiate an immigration enforcement action. With few exceptions, local law enforcement has complied with these so-called immigration holds--even when the person detained is not actually charged with a criminal offense or the criminal offense is relatively minor. That should change in California with the enactment of the Trust Act.

Under the Trust Act, law enforcement officials cannot comply with a request for an immigration hold unless the subject meets certain criteria. Further, even if a subject meets those criteria, the law enforcement official has discretion as to whether to comply with the hold.

A law enforcement official would be permitted to comply with an immigration hold if the subject meets any of the criteria found at section 7282.5 of the Government Code, which include:

    1. The individual has been convicted of a serious or violent felony identified in subdivision (c) of Section 1192.7 of, or subdivision (c) of Section 667.5 of, the Penal Code.

 

    1. The individual has been convicted of any felony punishable by imprisonment in the state prison (not a PC 1170(h) offense).

 

    1. The individual has been convicted of an offense specified under the Trust Act. This includes certain felonies and certain misdemeanor wobblers (i.e., offenses punishable as either a misdemeanor or felony). For misdemeanor wobblers, the conviction must have occurred within the last 5 years. The list of specified offenses includes most crimes involving violence, sexual abuse, child abuse, burglary, theft, and weapons, as well as gang-related offenses, registerable sex offenses, and offenses involving personal use of a firearm, death, or great bodily injury, and certain others. Notably, DUIs and controlled substance offenses must be felonies to permit a hold.

 

    1. The individual is a current registrant on the California Sex and Arson Registry.

 

    1. A magistrate has found probable cause pursuant to PC 872 for a serious or violent felony, a felony punishable by imprisonment in the state prison, or a felony that is wobbler on the above list (excluding domestic violence).

 

    1. The individual has a federal conviction that meets the definition of an aggravated felony in subparagraphs (A) through (P) of 8 U.S.C. 1101(a)(43), which for unknown reasons omits subparagraphs (Q) through (U) (failure to appear for a felony, bribery, counterfeiting, forgery, obstruction of justice, perjury, and attempt and conspiracy convictions).

 

  1. The individual is the subject of an outstanding federal felony arrest warrant (most current immigration holds are for alleged civil immigration violations, not warrants for felony criminal charges).

Although this list is much longer than the previously-introduced version of the Trust Act, the important thing to note is that it requires an actual conviction or, for certain felonies, a finding of probable cause. This remedies two of the biggest problems that previously existed: (1) undocumented persons being ineligible for bail while they contest the charges, and (2) transfer to ICE even if the prosecutor declines to file charges or the noncitizen prevails in the criminal proceedings.

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510-835-1115