Matter of Eslamizar, 23 I. & N. Dec. 684 (BIA Oct. 19, 2004) (en banc) (court procedures under Ore. Rev. Stat. 153.076, did not constitute a conviction for immigration purposes, since the proceedings do not allow a jury trial, right to court-appointed counsel, or proof beyond a reasonable doubt), overruling Matter of CR, 8 I. & N. Dec. 59 (BIA 1958) (police court adjudication of petty theft under a municipal ordinance, on a standard of preponderance of the evidence, constituted a conviction for immigration purposes).      In California, certain misdemeanor offenses, notably petty theft in violation of Penal Code 484(a), 488, can be prosecuted as misdemeanors or infractions. Penal Code 17(d), 19.8 (giving list of offenses). The infraction is similar to the Oregon petty offense procedure held in Eslamizar not to be a conviction in several important respects:      (1) "An infraction is not punishable by imprisonment." Penal Code 19.6.
     (2) "A person charged with an infraction shall not be entitled to a trial by jury." (Ibid.)
     (3) There is no right to the assistance of court-appointed counsel. (Ibid.)      There is one difference, however: The defendant must be proved guilty beyond a reasonable doubt. See Penal Code 19.7 (. . . all provisions of law relating to misdemeanors shall apply to infractions including . . . burden of proof.").      On balance, however, the California infraction procedure cannot be said to be a criminal procedure since no punishment of incarceration is permissible, there is no right to jury trial, and there is no right to the assistance of court-appointed counsel if the defendant is unable to afford counsel. In Eslamizar, the Board en banc held "that by 'judgment of guilt' Congress most likely intended to refer to a judgment in a criminal proceeding, that is, a trial or other proceeding whose purpose is to determine whether the accused committed a crime and which provides the constitutional safeguards normally attendant upon a criminal adjudication." (Id. at ___.) Even though the burden of proof for an infraction is beyond a reasonable doubt, that single factor should be insufficient to convert a proceeding without the right to a jury trial, without the right to appointed counsel, and for which no jail sentence is permissible, into " judgment in a criminal proceeding, that is, a trial or other proceeding whose purpose is to determine whether the accused committed a crime and which provides the constitutional safeguards normally attendant upon a criminal adjudication." (Ibid.) Therefore, an infraction under California law should not be considered a criminal conviction, for immigration purposes, under Eslamizar.