A California conviction for unauthorized driving, in violation of Vehicle Code 10851, is a good potential safe haven plea that should not constitute a CMT conviction or perhaps an aggravated felony conviction. Depending upon the record of conviction, the offense may be committed with intent to "temporarily deprive" an owner of property, which traditionally is not a CMT.



In United States v. Vidal, 504 F.3d 1072 (9th Cir. Oct. 10, 2007), the Ninth Circuit held that Vehicle Code 10851 did not categorically qualify as an aggravated felony, since the offense includes accessory after the fact, and a conviction does not constitute an aggravated felony theft conviction unless the record of conviction establishes that the defendant was a principal, rather than an accessory after the fact, and therefore the conviction does not qualify as an aggravated felony under that category even if a sentence of a year or more is imposed. However, because the law could change on this point, criminal counsel should attempt to obtain a sentence imposed of 364 days or less.