People v. Salcido
| Citation | 34 Cal.App.5th 1092,246 Cal.Rptr.3d 851 |
| Decision Date | 02 May 2019 |
| Docket Number | E067578 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Sara Arcelia SALCIDO, Defendant and Appellant. |
Defendant Sara Salcido was in the business of providing immigration services — typically, obtaining visas for her clients that would allow them to stay in the United States legally. Under the Immigration Consultant Act ( Bus. & Prof. Code, §§ 22440 - 22449 ) (Act), with certain exceptions, it is illegal for a person to act as an "immigration consultant" (as defined in the Act) unless he or she has complied with a host of consumer protection requirements, such as passing a background check and filing a bond. Defendant failed to comply with these.
As a result, in a bench trial, defendant was convicted on one count of unlawfully engaging in the business of an immigration consultant, a misdemeanor. ( Bus. & Prof. Code, §§ 22440, 22441.) The People argued, however, that each time defendant took money from a client in exchange for providing immigration services, she was committing theft by false pretenses, because she was not a legally qualified immigration consultant under state law. The trial court agreed; thus, it also convicted her on six counts of grand theft ( Pen. Code, §§ 484, 487, subd. (a) ) and two counts of petty theft ( Pen. Code, §§ 484, 488 ). It dismissed two additional counts of grand theft as time-barred. Defendant was placed on probation for five years.
In the published portion of this opinion, we will hold that federal law does not preempt the application of the Act to defendant. In the unpublished portion, we will reject defendant’s other contentions. Accordingly, we will affirm.
In September 2012, Rigoberto S. paid defendant $4,480 to obtain a work permit and some kind of visa. He had seen an ad saying that she provided immigration services. He met with her in her office. However, he never received any documentation from the United States Citizenship and Immigration Services (USCIS) or from defendant. He contacted defendant, but she had no explanation, so he sued her in small claims court.
Defendant testified that she spent some 14 to 20 hours, across some six months, on Rigoberto S.’s case. Nine months after he first contacted her, she discovered that he had previously been deported. She did not file anything with the USCIS, because if she had, he would have been deported automatically. If she had known he had previously been deported, she would never have taken his case. She started paying back his money, in installments; by the time of the preliminary hearing, she had repaid $1,800.
In October 2011, Patricia F. paid defendant $3,000 to obtain a U visa.1 They met at defendant’s office.
Defendant testified that she put in 50 hours on the case. It took her over a year to get the necessary signature from the relevant police department. She never actually filed anything for Flores because Flores saw "a lot of ... bad comments on Facebook" and fired her.
In June or July 2013, Ivonne G. paid defendant $3,000 to obtain a U visa. She had seen an ad for defendant’s immigration services. They met at defendant’s office.
Defendant testified that she had worked on Ivonne G.’s case for about a year and had done "some forms" when she was arrested.
In April 2014, Araceli C. paid defendant a down payment to help her obtain a green card based on marriage to a United States citizen. Over time, she paid defendant a total of $9,265. On defendant’s advice, she divorced her husband and married her live-in boyfriend; defendant handled this paperwork. She learned from the USCIS, however, that defendant had done nothing about the green card.
Defendant testified that she spent 60 hours on the case before Araceli C. fired her.
In 2012, Sofia L. paid defendant a down payment to obtain U visas for herself and her children. She met with defendant at defendant’s office. Over time, she paid defendant a total of $5,760. The USCIS determined that she did not qualify and that it was going to deny her petition; as of the preliminary hearing, however, it had not actually done so, due to its backlog.
Defendant testified that she had spent 300 hours on the case.
In 2014, Javier O. paid defendant $4,580 to assist him with obtaining a work permit. He met with her at her office. He never received any documentation indicating that she had done anything.
Defendant testified that she spent 30 hours on his case. She filed some paperwork with the USCIS and spoke to a USCIS supervisor.
In 2014, Maria T. paid defendant a down payment to assist her in obtaining a U visa or similar permit. She had seen an ad for defendant’s immigration services. She met with defendant at defendant’s office. Over time, she paid defendant a total of $800.
Defendant testified that she spent 20 hours on the case. She obtained the necessary signature of the relevant police department and filed some papers with the USCIS. The case was still pending. However, Maria T. fired her and sued her in small claims court.
At the end of 2014 or the beginning of 2015, Ilsia M. paid defendant $300 to assist her in obtaining a U visa. She never received any documentation from the government.
Defendant testified that she spent four to six hours on the case. She prepared some forms, but she could not send them in because she was arrested.
Defendant maintained an office in Cathedral City. Signs outside advertised the services that she provided, including immigration services.
Defendant admitted that she had been acting as an immigration consultant since 2007. She also admitted that she was not an attorney, though she was a paralegal. She admitted knowing that she was required to have a background check and to post a bond, but she had not done either.
Defendant testified that she learned in either September or November 2013 that she was required to be registered with the state and to post a bond. (At the preliminary hearing, however, she testified that she did not know about the background check until 2015.) She did not post a bond because she could not afford it.
It was stipulated that, at all relevant times, defendant engaged in the business or acted in the capacity of an immigration consultant, for compensation, even though she had not passed the required background check or posted the required bond. It was also stipulated that, at all relevant times, defendant held herself out as legally authorized to act as an immigration consultant. With respect to the last two victims — Maria T. and Ilsia M. — it was additionally stipulated that defendant knew at the time that she had failed to comply with the Act.
Finally, it was stipulated that defendant received compensation greater than $950 in connection with the grand theft counts, and less than $950 in connection with the petty theft counts.
Defendant contends that the Act is preempted by federal law. She demurred to the complaint on this ground. In any event, federal preemption can be raised for the first time on appeal. ( Town of Atherton v. California High-Speed Rail Authority (2014) 228 Cal.App.4th 314, 331, 175 Cal.Rptr.3d 145.)
"We apply a de novo standard of review ... because federal preemption presents a pure question of law [citation]." ( Farm Raised Salmon Cases (2008) 42 Cal.4th 1077, 1089, fn. 10, 72 Cal.Rptr.3d 112, 175 P.3d 1170.)
Our Supreme Court has "identified several species of preemption." ( Solus Industrial Innovations, LLC v. Superior Court , supra , 4 Cal.5th at p. 332, 228 Cal.Rptr.3d 406, 410 P.3d 32.) ( People ex rel. Harris v. Pac Anchor Transp., Inc. (2014) 59 Cal.4th 772, 777-778, 174 Cal.Rptr.3d 626, 329 P.3d 180.)
Ordinarily, there is a presumption against preemption. ( Solus Industrial Innovations, LLC v. Superior Court , supra , 4 Cal.5th at p. 332, 228 Cal.Rptr.3d 406, 410 P.3d 32.) ( Quesada v. Herb Thyme Farms, Inc. (2015) 62 Cal.4th 298, 313, 195 Cal.Rptr.3d 505, 361 P.3d 868.)
Defendant argues that this presumption...
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