See ARS § 13-1704.
40. Burning of wildlands, ARS § 13-1706
A. It is unlawful for any person, without lawful authority, to intentionally, knowingly, recklessly or with criminal negligence to set or cause to be set on fire any wildland other than the person's own or to permit a fire that was set or caused to be set by the person to pass from the person's own grounds to the grounds of another person….
C. A person who violates this section is guilty of an offense as follows:
1. If done with criminal negligence, the offense is a class 2 misdemeanor.
2. If done recklessly, the offense is a class 1 misdemeanor.
3. If done intentionally or knowingly and the person knows or reasonably should know that the person's conduct violates any order or rule that is issued by a governmental entity and that prohibits, bans, restricts or otherwise regulates fires during periods of extreme fire hazard, the offense is a class 6 felony.
4. If done intentionally and the person's conduct places another person in danger of death or serious bodily injury or places any building or occupied structure of another person in danger of damage, the offense is a class 3 felony.
Summary: This is a good alternative to arson under §§ 13-1703, 13-1704, and 13-1705 if
counsel can plead to a reckless or negligent mens rea. Otherwise, client may be better off with § 13-1703.
Arson of a Structure or Property.
Crime Involving Moral Turpitude (CMT): The government will likely charge this as a CIMT, saying it matches the definition of “arson.” See § 13-1703, CMT. However, immigration counsel has a good argument if the mens rea is recklessness or negligence. See Matter of Fualaau, 21 I&N 475 (BIA 1996); Matter of Sweetster, 22 I&N Dec. 709 (BIA 1999).
Aggravated Felony: If counsel pleads to a mens rea of negligence or recklessness under C1 or C2, this should not be considered an aggravated felony as a “crime of violence.” See Fernandez-Ruiz v.
Gonzales, 466 F.3d 1121 (9th Cir. 2006) (en banc); Leocal v Ashcroft, 125 S.Ct. 377 (2004). A plea to C3 will likely be found an aggravated felony under 8 U.S.C. § 1101(a)(43)(E)(i) regardless of the length of sentence. Matter of Bautista, 25 I&N Dec. 616 (BIA 2011) (conviction under a New York arson statute was an offense “described in” 18 U.S.C. § 844(i) even though it lacked an element of interstate commerce since such an element was purely jurisdictional). Since § 1101(a)(43)(E)(i) does not require a sentence of 365 days, any conviction under C3 could be an aggravated felony even with a sentence of less than one year. A sentence of one year or more will also trigger an aggravated felony as a crime of violence. See, e.g., Matter of Palacios-Pinera, 22 I&N Dec. 434 (BIA 1998) (intentionally damaging property by starting a fire or causing an explosion). See § 13-1704.
41. Theft, ARS §13-1802
A. A person commits theft if, without lawful authority, the person knowingly:
1. Controls property of another with the intent to deprive the other person of such property;
2. Converts for an unauthorized term or use services or property of another entrusted to the defendant or placed in the defendant's possession for a limited, authorized term or use; or
3. Obtains services or property of another by means of any material misrepresentation with intent to deprive the other person of such property or services; or
4. Comes into control of lost, mislaid or misdelivered property of another under circumstances
providing means of inquiry as to the true owner and appropriates such property to the person's own or another's use without reasonable efforts to notify the true owner; or
5. Controls property of another knowing or having reason to know that the property was stolen; or 6. Obtains services known to the defendant to be available only for compensation without paying or an agreement to pay the compensation or diverts another's services to the person's own or another's benefit without authority to do so.
B……
C. The inferences set forth in section 13-2305 apply to any prosecution under subsection A, paragraph 5 of this section….
E. Theft of property or services with a value of twenty-five thousand dollars or more is a class 2 felony.
Theft of property or services with a value of three thousand dollars or more but less than twenty-five thousand dollars is a class 3 felony. Theft of property or services with a value of two thousand dollars or more but less than three thousand dollars is a class 4 felony. Theft of property or services with a value of one thousand dollars or more but less than two thousand dollars is a class 5 felony. Theft of property or services with a value of two hundred fifty dollars or more but less than one thousand dollars is a class 6 felony. Theft of any property or services valued at less than two hundred fifty dollars is a class 1
misdemeanor, unless such property is taken from the person of another or is a firearm or is a dog taken for the purpose of dog fighting in violation of section 13-2910.01, in which case the theft is a class 6 felony.
F. A person who is convicted of a violation of subsection A, paragraph 1 or 3 of this section that involved property with a value of one hundred thousand dollars or more is not eligible for suspension of sentence, probation, pardon or release from confinement on any basis except pursuant to section 31-233, subsection A or B until the sentence imposed by the court has been served, the person is eligible for release pursuant to section 41-1604.07 or the sentence is commuted.
Note: If the theft involves a car, besides the other options below consider pleading to joyriding, see ARS
§ 13-1803.
Aggravated Felony. Under immigration laws, an aggravated felony includes a theft offense (including receipt of stolen property) where a sentence of a year or more has been imposed. 8 USC § 1101(a)(43)(G). Avoid an aggravated felony by obtaining a sentence of 364 days or less.
If it is not possible to avoid a sentence of a year or more, however, an aggravated felony still can be avoided with careful control of the record of conviction. Counsel should create a record that leaves open the possibility that the offense was A2, A3 or A6 and involved theft of services, or was A2 or A4 and did not involve an intent to deprive the owner either temporarily or permanently.
Theft by material misrepresentation, section A3, is analyzed separately. This conviction will not be an aggravated felony under the theft category if a sentence of a year or more is imposed, but will be an aggravated felony as a crime of fraud or deceit if the loss to the victim/s exceeded $10,000, regardless of whether the amount appears in the record of conviction. See Nijhawan v. Holder, 129 S. Ct. 2294 (2009).
Regarding proof of $10,000 loss, see Note: Fraud.
Explanation. Theft for immigration purposes is defined as “a taking of property or an exercise of control over property without consent with the criminal intent to deprive the owner or rights and benefits of ownership, even if such deprivation is less than total or permanent.” U.S. v. Corona-Sanchez, 291 F.3d 1201, 1205 (9th Cir. 2002) (emphasis added).
In Huerta-Guevara v. Ashcroft, 321 F.3d 883, 887 (9th Cir. 2003), the Ninth Circuit held a conviction under A.R.S. § 13-1802 was divisible for this purpose in at least two ways. First, some subparts include the theft of services as opposed to property (see A2, A3 and A6). Second, some subparts do not require an intent to deprive the owner, either temporarily or permanently (see A2, A4 and A5).
The Ninth Circuit also found that identically worded subparts of §13-1814, theft of means of
transportation, do not constitute theft for this purpose. Nevarez-Martinez v. INS, 326 F.3d 1053, 1055 (9th Cir. 2003).
Counsel should not plead to A5, as receiving stolen property under a similar California statute has been held to be an aggravated felony under 8 U.S.C. § 1101(a)(43)(G). Matter of Cardiel, 25 I&N Dec.
12 (BIA 2009); Verdugo-Gonzalez v. Holder, 581 F.3d 1059, 1060 (9th Cir. 2009). However, immigration counsel may have an argument that A5 is broader than the California statute since A5 includes not only “knowing” but “having reason to know” that the property was stolen. Defense counsel should avoid any reference to the client “knowing” that the property was stolen or else leave the language of the plea vague.
Until the tension in the Ninth Circuit is resolved as to whether one may infer a criminal intent where the statute requires only “knowing,” the safest plea for theft would leave open the possibility that defendant stole services (i.e. judgment / indictment recite boilerplate statutory language thus leaving open possibility that defendant stole services or merely refers to 13-1802 without mentioning a specific
subsection). Also, counsel should avoid a plea to A1, which the Ninth Circuit found to constitute a theft offense. Fernandez-Ruiz v. Gonzales, 468 F.3d 1159, 1170 (9th Cir. 2006).
Theft by material misrepresentation. The BIA recognizes the essential difference between theft (by stealth) and fraud or deceit (by trickery). Matter of Garcia-Madruga, 24 I&N Dec. 436 (BIA 2008).
Section A3 is by trickery, not stealth, and therefore it is likely that it will not be considered theft and a sentence of a year or more will not make it an aggravated felony. Where a sentence of a year or more cannot be avoided, attempt to leave the record of conviction vague between A3 and other sections, or designate A3. As always, in case this argument does not prevail it is far better to obtain 364 days on any single count.
Note that a crime involving fraud or deceit is an aggravated felony under 8 USC §
1101(a)(43)(M)(i) if the victim/s loss exceeds $10,000, regardless of whether the amount appears in the record of conviction. See Nijhawan v. Holder, 129 S. Ct. 2294 (2009). Regarding proof of $10,000 loss, see Note: Fraud. If the $10,000 loss will be established, but a sentence of a year or more will not be imposed, leave the record of conviction vague between A3 and the other theft sections, or designate some section other than A3.
Crime Involving Moral Turpitude: Intent to permanently deprive is required for a CMT. Theft offenses that do not involve intent to permanently deprive the owner of the property are not classified as theft crimes involving moral turpitude. See e.g. Matter of P, 2 I&N Dec. 887 (BIA 1947); Matter of M, 2 I&N Dec. 686 (BIA 1946) (conviction for joyriding does not involve moral turpitude because defendant did not intent to effect a permanent taking). Theft offenses that require as an essential element the intent to permanently deprive the owner of his or her property have consistently been held to involve moral turpitude. Gutierrez-Chavez v. INS, 8 F.3d 26 (9th Cir. 1993).
Where a theft statute prohibits both temporary and permanent taking, the statute is considered divisible, allowing the record of conviction to be examined to determine whether the conviction was under the portion of the statute relating to permanent taking. ARS § 13-1802 is arguably a divisible
statute. Subsections A1 and A3 contain an element to deprive the owner of property but not permanent deprivation. In re Juvenile Action No. J-98065, 141 Ariz. 404, 687 P.2d 412 (Ct. App. 1984) (theft does not require permanent deprivation; the statute requires control with the intent to deprive). Subsections A2, A4, A5 and A6 do not have an element to deprive; however, an intent to permanently deprive could be inferred from the record of conviction or other documents. A5 could be analogized to receiving stolen property, which is not a CMT unless it involved a permanent taking. Castillo-Cruz v. Holder,581 F.3d 1154, 1161 (9th Cir. 2009). A6 could be a CMT because an intent to permanently deprive may be inferred.
IMPORTANT: Recent case law has altered the process by which immigration judges decide whether an offense is a CMT. See Matter of Silva-Trevino, 24 I&N Dec. 687 (A.G. 2008). While judges were previously restricted to the record of conviction in determining whether a state offense qualified as a CMT, currently any evidence – including police reports, presentence investigations, and even the
defendant’s own testimony – may be considered in the finding of whether a conviction constitutes a CMT under a divisible statute. As a practical consequence, many Arizona immigration judges are using documents outside of the record to find that a conviction for Theft under § 13-1802 is categorically a CMT, particularly with pro se respondents. Therefore, defense counsel should conservatively assume that a plea in which the intent to deprive is left vague between a permanent and temporary taking will be found a CMT.
Compare Theft Aggravated Felony and CMT: The aggravated felony definition of theft excludes theft of services, but includes theft with less than permanent intent to deprive. To be a crime involving moral turpitude, there must be intent to permanently deprive, but whether the theft is of services or property is irrelevant.