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CRIMES OF MORAL TURPITUDE " BURGLARY " TARGET OFFENSE CATEGORICAL ANALYSIS " TARGET OFFENSE
In California burglary cases, the jury need not unanimously agree on the identity of the offense that the defendant intended to commit crime at entry. CALCRIM 1700 provides: The People allege that the defendant intended to commit (theft/ [or] ). You may not find the defendant guilty of burglary unless you all agree that (he/she) intended to commit one of those crimes at the time of the entry. You do not all have to agree on which one of those crimes (he/she) intended.]" (Emphasis supplied.) The jury instructions establish that the target offense for burglary is not an element under California law. The elements are a question of California law, not federal immigration law. Moncrieffe and Descamps hold that the nature of the offense of conviction is limited to the elements (regardless of what is in the Record of Conviction). Therefore, a conviction of violating Penal Code 459 cannot be a crime of moral turpitude for purposes of deportation. The same rules (minimum conduct analysis and ignoring the facts) also apply to inadmissibility and bars to relief. Therefore, a conviction of burglary also did not trigger inadmissibility at entry. There is some slightly contradictory authority. CalCRIM jury instructions provide: Although actual commission of the underlying theft or felony is not an element of burglary (People v. Montoya (1994) 7 Cal.4th 1027, 1041-1042 [31 Cal.Rptr.2d 128, 874 P.2d 903]), the court has a sua sponte duty to instruct that the defendant must have intended to commit a felony and has a sua sponte duty to define the elements of the underlying felony. (People v. Smith (1978) 78 Cal.App.3d 698, 706 [144 Cal.Rptr. 330] ; see also People v. Hughes (2002) 27 Cal.4th 287, 349 [116 Cal.Rptr.2d 401, 39 P.3d 432] .) Give all appropriate instructions on theft or the felony alleged. The courts sua sponte duty to instruct on the elements of the target offense, however, is not the same as a requirement that the jury must unanimously agree on the same offense, just that they must all agree that theft or some felony offense or other was committed.