9th Circuit: California conviction for receipt of stolen property is aggravated felony

In a decision released this week, the Ninth Circuit Court of Appeals held that a conviction under California’s receipt of stolen property statute, Cal. Penal Code § 496(a), categorically constitutes an aggravated felony. INA § 240(A)(a), 8 U.S.C. § 1229b(a). Verdugo-Gonzalez v. Holder, No. 06-73733, slip op. at 13264. INA § 101(a)(43)(G) provides that “a theft offense (including receipt of stolen property) or burglary offense for which the term of imprisonment [is] at least one year” constitutes an aggravated felony.

Applying the categorical approach to statutory analysis announced by the Supreme Court in Taylor v. United States, 495 U.S. 575 (1990), the Ninth Circuit “ma[d]e a categorical comparison of the elements of the state statute of conviction to the generic definition of a theft offense in order to determine whether the full range of conduct proscribed by the statute of conviction is broader than the generic definition.” Verdugo-Gonzalez v. Holder, No. 06-73733, slip op. at 13264.

The Ninth Circuit then turned to the statutory definition of receipt of stolen property in California. It noted that § 496(a) provides, in relevant part:

Every person who buys or receives any property that has been stolen or that has been obtained in any manner constituting theft or extortion, knowing the property to be so stolen or obtained, or who conceals, sells, withholds, or aids in concealing, selling, or withholding any property from the owner, knowing the property to be so stolen or obtained, shall be punished by imprisonment in a state prison, or in a county jail for not more than one year.
Verdugo-Gonzalez v. Holder, No. 06-73733, slip op. at 13265.

Under this statute, the offense of receipt of stolen property, the Court added, consists of three elements: 1) the property was stolen, 2) the defendant was in possession of that property, and 3) the defendant knew that the property was stolen. Verdugo-Gonzalez v. Holder, No. 06-73733, slip op. at 13265. The Court then explained that “A theft offense is generically defined as ‘the 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.’” Verdugo-Gonzalez v. Holder, No. 06-73733, slip op. at 13265 (quoting Gonzales v. Duenas-Alvarez, 549 U.S. 183, 189 (2007)).

Comparing California’s receipt of stolen property offense under § 496(a) to the generic definition of a theft offense announced in Duenas-Alvarez, the Ninth Circuit concluded that § 496(a) constitutes a theft offense as that offense is generically defined. Verdugo-Gonzalez v. Holder, No. 06-73733, slip op. at 13265. “Buying or receiving stolen property knowing that it was stolen,” like “concealing, withholding, and selling property knowing it was stolen” all “involve[] an exercise of control over property without consent, with the criminal intent to deprive the owner of rights and benefits of ownership, permanently or temporarily . . . .” Verdugo-Gonzalez v. Holder, No. 06-73733, slip op. at 13265-66. Consequently, all of these acts constitute an aggravated felony. Verdugo-Gonzalez v. Holder, No. 06-73733, slip op. at 13266.

Lastly, the Ninth Circuit also held that aiding in the concealing, selling, or withholding of stolen property under § 496(a) constitutes an aggravated felony because “Duenas-Alvarez explicitly held that the generic definition of a theft offense includes the crime of ‘aiding and abetting’ a theft offense.” Verdugo-Gonzalez v. Holder, No. 06-73733, slip op. at 13266 (quoting Duenas-Alvarez, 549 U.S. at 190). The Ninth Circuit distinguished aiding under § 496(a) to other aiding offenses where “aiding” might simply involve “being an accessory after the fact, someone who subsequently helped the primary wrongdoer.” Verdugo-Gonzalez v. Holder, No. 06-73733, slip op. at 13267. In those instances, the Court suggested, the person who aids is not necessarily involved in the underlying offense. Verdugo-Gonzalez v. Holder, No. 06-73733, slip op. at 13267.

Unlike those other aiding offenses, however, aiding under § 496(a), “only applies to those who aid in committing the underlying offenses of concealment, sale, or withholding of stolen property. A person who does that necessarily commits theft, by its generic definition.” Verdugo-Gonzalez v. Holder, No. 06-73733, slip op. at 13267.

This is just another case pointing out the ridiculous nature of the aggravated felony categories.