California theft is not aggravated felony theft per the Ninth Circuit's decision in Roberto Lopez Valencia. This is so because California's definition of theft at PC 484 encompasses more than the federal generic definition of theft and it is not divisible into separate crimes that do meet the federal definition.
Unlike the federal definition, California PC 484 applies to more than taking property without consent and with the intent to deprive the owner of the rights of ownership. PC 484 also covers theft of labor, false credit reporting, and theft by false pretenses. The Ninth Circuit has long recognized this, so it has permitted review of documents from the conviction record to determine if there is a match to the federal definition.
Lopez Valencia held that this was no longer permissible under the Supreme Court's decision in Descamps and the Ninth Circuit's subsequent decision in Rendon. Descamps held that a court may only review documents from the record of conviction to determine whether a conviction meets a federal definition if a statute of conviction contains multiple alternative elements, such that the statute really lists multiple different crimes. A statute is not divisible if it encompasses multiple alternative means of committing the same crime. How to distinguish between elements and means? Rendon held that elements require juror agreement, while means don't.
Under California law larceny, embezzlement, theft by false pretenses, false credit reporting, and theft of labor are all means of committing the unitary crime of theft. They are not separate alternative crimes. How do we know? Because the California Supreme Court has held that a prosecutor need not convincing a jury to agree on which type of theft a defendant committed in order to secure a conviction. The California law was written that way to make it easier for prosecutors to convict thieves. However, it also means that California theft can never meet the federal aggravated felony definition.
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The Ninth Circuit held that George Camacho Garcia did not validly waive his right to appeal because the immigration judge misadvised him as to whether his California theft conviction was an aggravated felony. Mr. Camacho Garcia was convicted of grand theft in violation of California Penal Code (PC) section 487(a) and received a sentence to 16 months of imprisonment.
The court held Mr. Camacho Garcia's theft conviction was not categorically an aggravated felony. California's definition of theft at PC 484 defines the offense to encompass theft of property, theft of labor, and "consensual" taking by false pretenses (i.e., fraud). The federal generic definition of theft, however, is limited to " a taking of property or an exercise of control over property  without consent  with the criminal intent to deprive the owner of rights and benefits of ownership, even if such deprivation is less than total or permanent." The federal definition therefore does not exactly correspond to the California definition, since it does not include taking by false pretenses or taking of labor. Thus, a California theft conviction with a sentence to imprisonment of one year or more is not categorically an aggravated felony.
The Camacho Garcia panel then applied the modified categorical approach to determine whether the conviction documents narrowed the conviction to the federal definition. It found that the charging document did specify theft of property (as opposed to labor), so the conviction matched that element of the federal definition. The conviction documents, however, did not specify whether the theft was by unlawful taking (without consent) or false pretenses (with consent). The conviction therefore did not match the federal definition.
Note, the issue of divisibility was not raised in the briefs on this case. The court accordingly did not address whether a California theft conviction is even susceptible to the modified categorical analysis of whether the conviction meets the federal definition.
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In an extremely helpful decision for noncitizen defendants, the Ninth Circuit held in Rendon v. Holder that California Penal Code § 459 (burglary) is not an aggravated felony as an attempted theft offense.
A state conviction meets the generic federal definition of an attempted theft offense if it includes the elements of intent to commit a theft offense and an overt act constituting a substantial step towards commission of such an offense. California burglary under section 459 consists of entry into a building, vehicle, or structure with intent to commit theft or any felony. Thus, it is not necessarily an attempted theft offense because it might involve entering a structure to commit some other crime that is a felony.
Prior to the Supreme Court's decision in Descamps, courts within the Ninth Circuit thus would have examined the record of conviction to determine whether it indicated a plea to entry to commit theft. If so, then the conviction would be an aggravated felony. Descamps, however, held that such an examination of the record (called a "modified categorical analysis") was possible only where the offense is divisible. Divisibility means that the statute of conviction specifies multiple alternative crimes, at least one of which meets a federal definition and at least one of which does not. Multiple alternative crimes means the statute contains multiple alternative elements of functionally separate crimes, not alternative means of committing a single crime. An element is something a jury must unanimously find beyond a reasonable doubt. On the other hand, a jury need not agree on the means of committing a crime (for example, a jury may not need to agree on the type of weapon used in an assault).
The Ninth Circuit held that "theft or any felony" is not divisible because they are alternative means, not alternative elements. A jury need not agree on whether the defendant entered a structure with intent to commit theft or any other felony to return a conviction for burglary under PC 459. Since the offense is not divisible, a reviewing court cannot turn to the record of conviction to determine if the conviction was for entry with intent to commit theft.
California PC 459 therefore can never meet the definition of an attempted theft offense because it is broader than the federal generic definition and the modified categorical analysis cannot be used to narrow the conviction to meet the definition.
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The Board held that the Nevada offense of attempted violation of NRS 205.273 (possession of a stolen vehicle) was not a categorical aggravated felony theft offense under the law of the Ninth Circuit. NRS 205.273 may be satisfied by possessing, receiving, or transferring a stolen vehicle with either knowledge that it was stolen or reason to believe that it was stolen. However, the generic definition of an aggravated felony theft offense, according to the Ninth Circuit's en banc decision in U.S. v. Corona-Sanchez, requires "the criminal intent to deprive the owner of rights and benefits of ownership, even if such deprivation is less than total or permanent.” The Board appropriately recognized that a conviction does not require that intent if it is based on what a reasonable person should have known, rather than what the defendant actually knew. Therefore, a conviction under NRS 205.273 does not categorically meet the theft definition.
The Board declined to decide whether NRS 205.273 is divisible into two separately enumerated crimes, possession with knowledge and possession with reason to believe. Since both alternatives are listed in the statute, it would seem to be divisible and thus susceptible to the modified categorical approach. I do not know much about Nevada law, though, so perhaps there is an argument against divisibility. It did not matter in this case because the record did not indicate whether the conviction was for knowledge or reason to believe.
The Board also explicitly reserved the question of whether receipt of stolen property with reason to believe it was stolen would meet the generic definition of a theft offense absent controlling circuit precedent. It noted that many jurisdictions, although not most, included receipt with reason to believe in theft statutes at the time Congress enacted the theft aggravated felony definition.
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