Criminal Substitute Plea Of Accessory After the Fact And Immigration Consequences


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 property in violation of Penal Code Section 664/487 (a) was committed by two defendants who unlawfully attempted to take personal property of a value exceeding $400, to wit: auto parts, the property of the victim.

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

But attempted grand theft is a crime involving moral turpitude because one of its elements is intent to permanently deprive another person or entity with money or personal property. Indeed, the bases for classification of offenses as crimes involving 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 general 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 certain offenses are crimes involving moral turpitude or not.

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

So, an accessory after the fact to grand theft (not attempted theft) has not committed a crime involving 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 categorically a crime involving 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 Involving Moral Turpitude:

Conviction of a crime involving 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 involving 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 involving moral turpitude, not arising out of a single scheme of criminal misconduct.

And conviction of a single crime involving 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 exception to inadmissibility applies, if the alien has committed only one crime involving 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.


Plea of guilty or no contest to accessory after the fact of the commission of a crime involving moral turpitude (CMT) by a principal does not relate to the offense and avoids conviction of a crime involving moral turpitude (CMT) and its immigration consequences.


Source by Roman Mosqueda, S. J.D.

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