The Ninth Circuit has determined that a California conviction qualifies as a theft offense aggravated felony. Generic theft requires (1) the taking of (2) property (3) without consent (4) with the intent to deprive the owner of rights and benefits of ownership. The defendants argued that one can be convicted of CPC § 211 robbery as an accessory after the fact, for example, by being a getaway driver. The court rejected this, finding that accessory after the fact to a felony is separately criminalized in section 32 of the Penal Code.
The defendants also argued that because California courts have upheld convictions under § 211 of defendants who engaged only in asportation (taking) of property that had previously been forcibly taken from its owner, § 211 robbery is not generic theft. The court determined that to be convicted of CPC § 211 robbery under any theory, a defendant must form the intent to facilitate or encourage the commission of the robbery before or during the carrying away of the loot. Furthermore, anyone found guilty of CPC § 211 robbery must have engaged in the exercise of control over property without consent with the criminal intent to deprive the owner of the rights and benefits of ownership. Thus, the statute meets the generic definition of a theft offense.
The full text of United States v. Martinez-Hernandez can be found here: