9th Circuit holds that burglary with lawful entry is never a theft offense.

Sunday, July 10th, 2011
By: Jonathan MontagJ.D.

It is not an understatement to term “stunning” a Ninth Circuit Court of Appeals decision on July 8, 2011, in Hernandez-Cruz v. Holder. The court held that Cal. Penal Code § 459, burglary, is not a theft offense and thus not a crime of moral turpitude as a theft offense or a basis to conclude that someone is an aggravated felon for commiting a theft offense if the person did not break the law when entering the building or structure that led to the  burglary conviction.  The decision is not only remarkable because of its holding, but because of the clarity and accessibility of its exposition – illustrating the points it is making clearly as it marches through the logical steps to its conclusions.

Because of the clarity and elegance of the exposition, I need not lay it out in detail. Essentially, the argument is that for a crime like California burglary to be a theft offense under the immigration laws, it must fit the elements of a generic theft offense, which the court notes are:

(1) a taking of property or an exercise of control over property

(2) without consent

(3) 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 court compared these elements to the California burglary statute, Cal. Penal Code § 459, which has the following elements:

(1) entry

(2) into any building, certain vehicles and vessels, or other listed structures and containers

(3) with the intent to commit larceny or any felony

The court concluded that lawfully entering a commercial building is not a substantial step in a theft offense so has to make the perpetrator guilty of a theft offense. The court noted that preparing to commit a crime, in this case by entering a commercial property, is not a substantial step in committing a crime. A policy explanation for this is that it would deprive a person of the right to chicken out. If you were entering a mall with the intent to shoplift and were automatically guilty of theft just by entering the mall, you might have less incentive to change your mind since you are guilty anyway. A practical explanation for this is that unless there is a clear substantial step, a person’s quirky behavior could be mistaken as the initial phase of a criminal act. In the case of Mr. Hernandez-Cruz, who took items from grocery stores without paying for them, the court held that “entering a commercial building freely open to the public is not strongly corroborative of a criminal intent, and therefore cannot be a substantial step toward a theft offense.”

The court pointed out that an element of burglary is not that there be an overt act of theft to be guilty of burglary, only an intent to commit theft. As the court wrote:

Unlike generic attempted theft, California commercial burglary does not have as an element both an intent to commit theft and an overt act that is a substantial step toward doing so; only an intent to commit theft or a felony when entering is required. Even if one assumes, as we are doing, that Hernandez-Cruz intended to commit theft when entering, his guilty plea to commercial burglary did not “necessarily admit,” [], the requisite substantial step, as mere entry cannot be such a step. In sum, Hernandez-Cruz’s convictions under § 459 were not for generic attempted theft offenses. Consequently, they are not aggravated felonies, and Hernandez-Cruz is not removable under 8 U.S.C. § 1227(a)(2)(A)(iii) [INA § 237(a)(2)]  by reason of their commission.

Mr. Hernandez-Cruz was caught outside the store with unpaid for merchandise and admitted this in his guilty plea. The court held in Hernandez-Cruz that this does not transform the crime into a morally turpitudinous theft offense because it is the crime that he was convicgted of that must be morally turpitudinous, not the conduct. Since lawfully entering a structure with the intent to commit a crime is not morally turpitudinous, the fact that the person did morally turpitudinous things that he did not get convicted of does not make the entering of the structure with that intent morally turpitudinous.

I predict that this is not the last we will hear of Hernandez-Cruz as I suspect the government will ask for re-hearing. I see three reasons why:

1. A lot of people get deported for burglary convictions and that means a lot of people will now avoid deportation as a result;

2. Prosecutors seek burglary convictions rather than shoplifting convictions to make things worse for aliens, not better for them. The results of this case turn this calculus upside down. A prosecutor who wanted to slam an alien with a felony burglary rather than a misdemeanor petty theft now sees the alien is better off with the felony burglary. Under Hernandez-Cruz, aliens whose concerns are chiefly immigration consequences should now be asking for the felony burglary rather than the misdemeanor shoplifting plea bargains;

3. In light of this decision, it is hard to understand why burglary, at least when the entry into the structure was lawful, is a crime at all. If there is no substantial step of theft for burglary by lawfully entering a structure and the intent to commit theft is not enough to make out an attempted theft charge for the practical and policy reasons discussed, why is burglary when there is lawful entry a crime at all? It would seem to violate the due process clause as irrational or the first amendment right to think criminal thoughts.

In the mean time, now is the time for practitioners to file supplemental motions, motions to remand, and motions to reopen for clients who have been found removable or ineligible for relief because of burglary convictions. Check back for updates. Posted July 10, 2011.


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