A-1233572
Decided by Board January 9, 1957
Conviction — Does not occur under California law where imposition of sentence is suspended — Deportability, section 241 (a) (4), Immigration and Nationality Act.
Where respondent pleaded guilty to a complaint charging petty theft in violation of section 484 of the Penal Code of California and the court suspended proceedings without imposition of sentence, there was no final judgment of conviction sufficient to sustain a finding of deportability under section 241 (a) (4) of the act. (See Matter of O----, A-5825386, Int. Dec. No. 886, modifying this decision.)
CHARGE:
Order To Show Cause: Act of 1952 — Section 241 (a) (4) ( 8 U.S.C. 1251 (a) (4)) — After entry, convicted of two crimes, to wit: Petty theft and burglary.
BEFORE THE BOARD
Discussion: The respondent appeals from an order entered by the special inquiry officer on August 9, 1956, directing his deportation pursuant to section 241 (a) (4) of the Immigration and Nationality Act ( 8 U.S.C. 1251). Respondent takes exception to the finding of fact that he was convicted at Los Angeles, California, on March 12, 1956, of the offense of petty theft and the conclusion of law that he is deportable under section 241 (a) (4), supra.
The respondent concedes that he is a native and national of Mexico, male, married, 46 years of age, and that he last entered the United States through the port of El Paso, Texas, on or about November 15, 1913. The evidence relied upon to establish deportability consists of the respondent's testimony and documentary evidence. Exhibit 3 establishes that the respondent was convicted at Los Angeles, California, on June 1, 1956, of the offense of burglary, a crime involving moral turpitude.
Exhibit 2 shows that the respondent was arraigned in the Municipal Court of East Los Angeles Judicial District, County of Los Angeles, California, on March 12, 1956, on a complaint charging the commission of a misdemeanor on or about February 28, 1956, to wit: "Petty Theft, in violation of section 484, Penal Code of California." The "Transcript of Docket" shows that the respondent entered a "plea of guilty as charged" and orally applied for probation. The case was continued to April 9, 1956, "for hearing on probation and sentence" and respondent was released on his own recognizance.
The transcript of docket (exhibit 2) further shows that on April 9, 1956, the respondent appeared in court without counsel, the "probation report filed," a "hearing had" and the "proceedings suspended without imposition of sentence and defendant placed in custody of Probation Officer for a period of two years subject to the following terms and conditions:
1. Pay fine of $500.00 through Probation Officer.
2. Seek and maintain suitable employment.
3. Follow all further orders of Court and Probation Officer.
4. Report to Probation Officer as directed."
The issue presented by the case before us is whether under the facts disclosed by exhibit 2, supra, there has been a "final judgment of conviction" within the meaning of that portion of section 241 (a) (4) which reads "Any alien in the United States * * * shall * * * be deported who * * * at any time after entry is convicted of two crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct, regardless of whether confined therefor and regardless of whether the convictions were in a single trial." It is well established that under the immigration laws an alien is not convicted of a crime unless there is a valid and final "judgment of conviction" ( United States ex rel. Freislinger v. Smith, 41 F. (2d) 707 (C.C.A. 7, 1930)).
We are governed by the laws of the State of California in determining whether the respondent was convicted of the crime of petty theft pursuant to the entry of a final and valid "judgment of conviction." Cf. 39 Op. Atty. Gen. 95 (1937). The question of what amounts to a "conviction" under the laws of California was before the Supreme Court of that State in the case of In re Phillips, 109 P. (2d) 344 (1941). Phillips argued that there was no final judgment of conviction in his case because the trial court granted him probation and later dismissed the accusation against him upon satisfactory completion of the probationary period. The transcript of the record showed, however, that the court rendered its judgment of conviction, then suspended its execution and thereafter the defendant Phillips appealed.
The court held that under California law (section 1203.1 and 1203.2 of the Penal Code) the trial court could grant probation in one of two ways. "The court may suspend the imposition of sentence, in which case no judgment of conviction is rendered, or it may impose the sentence and thereafter suspend its execution. In the latter case a judgment of conviction has been rendered from which an appeal can be taken, and upon affirmance, it becomes a final judgment. In the former situation, however, where the court suspends the imposition of the sentence, that is, the rendition of a judgment of conviction, there is no judgment from which the defendant can prosecute an appeal (citing cases), and thus there can be no final judgment of conviction."
The transcript of docket (exhibit 2) in the case before us shows that the proceedings against respondent were suspended "without imposition of sentence" and that the respondent was placed in the custody of the Probation Officer subject to certain conditions. Under the authority cited above there has been no final "judgment of conviction" sufficient to sustain an order of deportation under section 241 (a) (4), supra. The respondent, on the record before us, has not been convicted after entry of two crimes involving moral turpitude. Cf People v. Lopez, 110 P. (2d) 140, 147 (Superior Court of L.A., 1941); People v. Hartshorn, 138 P. (2d) 782, 783 (Court of Appeals-First District (1943)).
We note from the record, however, that there is an allegation that respondent was convicted of the crime of rape in the Superior Court of the State of California, County of Los Angeles, on or about the fourth day of June 1931 (exhibit 3). The respondent also testified that he was arrested at Visalia, California, on September 11, 1944, on a charge of lewd exposure and sentenced to six months in the county jail of Tulare County, California. The respondent has also admitted that in 1944 he served six months in the Los Angeles jail for indecent exposure. Under the circumstances, we will remand the case to the special inquiry officer for a reopening of the proceedings to permit the introduction of evidence with respect to the offenses mentioned above and for further development of the charge laid under section 241 (a) (4) of the Immigration annd Nationality Act.
Order: It is ordered that the case be remanded to the special inquiry officer for a reopening of the proceedings pursuant to the foregoing opinion.