9th Circuit: California conviction for receipt of stolen property is not crime involving moral turpitude

By University of Denver Sturm College of Law

Sep 21, 2009

In a decision released last week, the Ninth Circuit Court of Appeals held that receipt of stolen property in California, Cal. Penal Code § 496, does not constitute a crime involving moral turpitude. Castillo-Cruz v. Holder, No. 06-70896, slip op. (Sept. 17, 2009) (Schroeder, Reinhardt, Pollack). Judge Reinhardt wrote for the panel.

Castillo-Cruz entered without inspection in 1984 and was served with an NTA in May 2003. He conceded removability and that he was convicted in April 1990 of possession of stolen property, Cal. Penal Code § 496. In his application for Cancellation of Removal under INA § 240A(b) he admitted to having been convicted of a 1989 petty theft misdemeanor offense, Cal. Penal Code §§ 484, 488, and a 1990 conviction for receipt of stolen property, Cal. Penal Code § 496. Castillo-Cruz was sentenced to five months imprisonment and three years probation for the receipt of stolen property conviction. Castillo-Cruz, No. 06-70896, slip op. at 13476. The IJ found that the petty theft and receipt of stolen property convictions constituted CIMTs, thus the IJ pretermitted the Cancellation application. Castillo-Cruz, No. 06-70896, slip op. at 13476.

The Ninth Circuit quickly noted that petty theft is a CIMT. Castillo-Cruz, No. 06-70896, slip op. at 13477 (citing Flores Juarez v. Mukasey, 530 F.3d 1020, 1022 (9th Cir. 2008); United States v. Esparza-Ponce, 193 F.3d 1133, 1136 (9th Cir. 1999)).

The Court then moved onto addressing whether receipt of stolen property constitutes a CIMT. The Court emphasized that, in its interpretation, the BIA has repeatedly held that a theft offense is not a CIMT if the statute criminalizes deprivations of property that are intended to be temporary. Castillo-Cruz, No. 06-70896, slip op. at 13478 (citing Matter of Grazley, 14 I&N Dec. 330, 333 (BIA 1973); Matter of P, 2 I&N Dec. 887 (BIA 1947); Matter of H, 2 I&N Dec. 864, 865 (BIA 1947); Matter of Jurado-Delgado, 24 I&N Dec. 29, 33 (BIA 2006)). Relying on the BIA’s decision in Matter of Jurado-Delgado, in which the BIA held that the “inherently base, vile, or depraved” conduct that must exist for a finding of moral turpitude was evinced in the offender’s “intention to permanently deprive the owner of his property” by joyriding in a vehicle, the Ninth Circuit held: “A recipient who intends, by receiving the stolen property, to deprive its rightful owner of its possession only temporarily would not seem to have committed an act that may be termed morally turpitudinous.” Castillo-Cruz, No. 06-70896, slip op. at 13479-80.

The Ninth Circuit then explained that California’s receipt of stolen property offense “permits conviction for an intent to deprive an individual of his property temporarily.” Castillo-Cruz, No. 06-70896, slip op. at 13480. The Ninth Circuit referenced several cases in which California courts have upheld convictions under § 496 where there was no intent to cause a permanent deprivation. Castillo-Cruz, No. 06-70896, slip op. at 13481 (citing People v. Jaramillo, 16 Cal. 3d 752 (1976); People v. Austell, 223 Cal. App. 3d 1249, 1252 (1990); In Re Jorge C., 2008 WL 2536076 (Cal. App. Ct. 2008) (unpublished)). “Receipt of stolen property under Cal. Penal Code § 496(a) thus falls outside the generic definition of an offense, such as theft, that involves an intent to permanently deprive an individual of his property, and, accordingly, outside the generic definition of a crime of moral turpitude.” Castillo-Cruz, No. 06-70896, slip op. at 13480.

The Ninth Circuit also held that Castillo-Cruz’s petty theft conviction might fall within the petty theft exception of INA § 212(a)(2)(A)(ii)(II).

This case is particularly interesting given that it comes all of three days after the Ninth Circuit announced that California’s receipt of stolen property offense is an aggravated felony. I discussed that case, Verdugo-Gonzalez v. Holder, No. 06-73733, slip op. (9th Cir. Sept. 14, 2009), in detail last week. In a footnote in Castillo-Cruz, the Ninth Circuit explained that the difference between these two cases is that Verdugo-Gonzalez was sentenced to more than one year in prison whereas Castillo-Cruz “was sentenced to only five months imprisonment, and thus could not be deemed to be an aggravated felon: hence the IJ’s decision to pretermit Castillo Cruz’s application for cancellation of removal based on moral turpitude.” Castillo-Cruz, No. 06-70896, slip op. at 13476 n.5. Oh, the vagaries of immigration law: an offense can be an aggravated felony without involving moral turpitude.