Wednesday, January 30, 2008

California "Grand Theft from a Person" is an ACCA "Violent Felony"

United States v. Hawley, No. 06-50510 (5th Cir. Jan. 30, 2008) (DeMoss, Dennis, Owen)

The issue: is "grand theft from a person" under Cal. Penal Code § 487(2) a "violent felony" under the Armed Career Criminal Act? The court answers "yes," holding that it's a violent felony under the "otherwise clause" in 18 U.S.C. § 924(e)(2)(B)(ii), which includes offenses that "otherwise involve conduct that presents a serious potential risk of physical injury to another." Hawley follows the lead of a Ninth Circuit case which reasoned thusly:

The California Penal Code defines grand theft from a person as “theft committed . . . when the property is taken from the person of another.” [Since 1897,] California courts have interpreted this statute to require that “the property shall at the time be in some way actually upon or attached to the person, or carried or held in actual physical possession . . . .”

. . . .

By definition, every conviction for grand theft from a person involves direct physical contact between the perpetrator and the victim; the property must be actually attached to or carried by the victim when it is taken by the thief. The thief must not only come near his victim to commit his crime; he must reach out and touch that victim. When he confronts the victim and seizes property from the victim’s person, the criminal creates a serious risk of physical injury to another; the victim might resist, or a bystander intervene, and a struggle ensue. Even though the thief might sometimes, by stealth, avoid immediate detection by his victim, he risks such a confrontation at every encounter. Viewed ex ante, the thief’s conduct presents a serious potential risk of physical injury to another.

The court also pointed to United States v. Hawkins, a Fifth Circuit case holding that a similar Texas theft statute is a "crime of violence" under guideline §4B1.2, which contains a similar "otherwise clause."

It's odd that the court would issue this decision right now, since the Supreme Court is poised to explicate the meaning of the "otherwise clause" in Begay v. United States. It's possible that the decision in Begay, which we'll have no later than the end of June, will require a different analysis than the one Hawley adopts.

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