Rejecting the BIA's approach in E.E. Hernandez, the Ninth Circuit held that a gang enhancement under California Penal Code section 186.22(b)(1) does not transform a conviction into a crime involving moral turpitude if the offense was not one already.
Here, Hernandez-Gonzalez was convicted of possessing a billy club, which generally would not involve moral turpitude because the offense does not involve threatening or hurting anyone, but rather mere possession. The Board found, in an unpublished decision, that the gang enhancement made Hernandez-Gonzalez's offense a crime involving moral turpitude. This is consistent with the Board's later published decision in E.E. Hernandez. E.E. Hernandez reasoned that the specific intent to promote street gang activity , which is required for a PC 186.22 enhancement, is always morally turpitudinous because street gang activity is morally turpitudinous.
The Ninth Circuit, however, found that California law permits a gang enhancement where the only street gang activity being promoted is the underlying crime itself, which need not involve moral turpitude. The Ninth Circuit pointed to California court decisions applying the gang enhancement to weapons offenses where the weapons were discovered during probation or other searches, such as during traffic stops, that did not involve any actual use of the weapon. The Ninth Circuit held that weapons possession in such circumstances is not a morally turpitudinous. It is criminal, but it does not involve the type of evil intent required for a crime involving moral turpitude.
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The Board of Immigration Appeals held that malicious vandalism in violation of California Penal Code section 594(a) was categorically a crime involving moral turpitude where it is accompanied by a finding that the offense was committed for the benefit of a criminal street gang with the specific intent to promote criminal conduct by gang members, a sentencing enhancement under PC 186.22(d).
First, the Board found that the immigration judge had erred by analyzing the vandalism and the enhancement separately. Rather, the Board held that they must be considered together as a single offense. The enhancement requires a specific intent to promote criminal activity by a street gang, so that means an act of malicious vandalism with the enhancement must be done with the specific intent to promote that activity. What activity? The Board cited "turf wars and gang violence." The Board found that gang vandalism promoted that activity.
I would argue, though, that vandalism with a gang enhancement is not a CIMT under the categorical approach if there is a realistic probability that a defendant might be convicted of it for conduct that does not promote turf wars or gang violence. The Board seems to assume that the only vandalism that comes within the statute is gang graffiti, which obviously stakes out territory and could lead to confrontations.
I would be interested to know if any of my readers could think of a scenario where a person could be convicted of vandalism with a gang enhancement (for the benefit of a gang and to promote criminal activity by the gang) that is not necessarily turpitudinous. If so, is there a realistic probability of it being prosecuted? Submit a comment below if you can.
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