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Name: People v. Coca (2023) 96 Cal.App.5th 451
Case #: E079703
Court: CA Court of Appeal
District 4 DCA
Division: 2
Opinion Date: 10/16/2023

Trial court erred in granting defendant’s Penal Code section 1473.7 motion to vacate her misdemeanor conviction where defendant did not demonstrate the conviction had the potential of subjecting her to removal. In 2022, defendant filed a petition under section 1473.7 to vacate her 2008 misdemeanor conviction for receiving stolen property (§ 496(a)). Over the District Attorney’s objection, the trial court granted the motion and vacated defendant’s conviction. The People appealed. Held: Reversed. To vacate a conviction under section 1473.7, the movant must establish that the challenged conviction “is currently causing or has the potential to cause removal or the denial of an application for an immigration benefit, lawful status, or naturalization.” (§ 1473.7(e)(1)). The court agreed with the People that defendant’s misdemeanor conviction did not subject her to removal because receipt of stolen property under section 496(a) is not an aggravated felony nor a crime of moral turpitude. Applying the three-step process for determining whether a state conviction qualifies as a crime of moral turpitude under the Immigration and Nationality Act, Castillo-Cruz v. Holder (9th Cir. 2009) 581 F.3d 1154, 1160, held that to qualify as a crime of moral turpitude, a theft offense must include the intent to permanently deprive the owner of their property. The court agreed with Castillo-Cruz that because section 496(a) permits conviction based on an intent to temporarily deprive an owner of property, and thus criminalizes conduct that goes beyond the elements of the generic federal offense, it does not qualify categorically as a crime of moral turpitude.