Compromise of a Misdemeanor:
The disposition known as Compromise of a Misdemeanor, pursuant to RCW 10.22 is, like
bail forfeiture, a great alternative for noncitizen defendants. It will avoid a convictionthat may otherwise trigger deportation. Like bail forfeiture, compromise of a misdemeanor does not constitute a conviction for immigration purposes. Thus, regardless of the charged offense, it will not trigger grounds of deportation, inadmissibility or any provisions of the aggravated felony definition. However, also like bail forfeiture, it is imperative that counsel ensures that there are no written admissions of guilt by the defendant to the charged offense.

Aiding and Abetting Offenses:
The Ninth Circuit has held that because of the breadth of the California definition of aiding and abetting, a conviction for aiding and abetting an offense such as theft is not an aggravated felony as theft even if a sentence of a year or more is imposed.³¹⁵ ThemCourt’s analysis also applies to Washington state’s aiding and abetting laws. The Ninth Circuit further has recognized that under California law, an accusatorympleading against an aider or abettor may be drafted in a form identical to an accusatorynpleading against the person alleged to have directly committed the offense. Again, the same analysis will apply under Washington law.³¹⁶ Therefore a plea of guilty to a charge alleging that the defendant directly committed, e.g., theft, does not prove that he or she did not plead guilty under an aiding or abetting theory, and does not prove that the  offense of conviction was an aggravated felony.³¹⁷ This opens an opportunity for defense counsel. As long as the record of conviction does not exclude the possibility under Washington law that the defendant was convicted for aiding and abetting, the offense is not an aggravated felony, at least as defined by general terms such as theft, sexual abuse of a minor, etc. This theory might not hold up for aggravated felonies defined in relation to federal statute, if the federal statute itself includes broadly defined aiders and abettors. The government might argue that this would not apply to $10,000 fraud cases as well, since aiding and abetting might be held an offense that “involves” fraud in which the loss to the victim was $10,000. Note that as a practical matter, this is an argument that a noncitizen is likely to have to assert in removal proceedings if the conviction constitutes an otherwise removable offense since the immigration authorities are not likely to concede these points and will still likely pursue removal.

³¹⁵ Martinez-Perez v. Ashcroft, 393 F.3d 1019 (9th Cir. 2005) (a plea to aiding and abetting grand theft under Calif. P.C. § 487(c) would not be an aggravated felony even if a sentence of a year or more were imposed). Martinez-Perez originally held that the record of conviction in that case established that the person was not convicted under an aiding and abetting theory. However in Martinez-Perez v. Gonzales,
No.03-70531,(9th Cir., 8-2-2005); 2005 U.S. App. LEXIS 15817 (9th Cir., 2005) the Court reopened the case on its own motion and amended its decision in light of the U.S. Supreme Court decision in Shepard v. Ashcroft, 125 S. Ct. 1254 (March 7, 2005). The Ninth Circuit corrected its earlier ruling and found that he was not convicted of an aggravated felony, under the analysis of California law described above and
discussed in Penuliar v. Ashcroft, 395 F.3d 1037, 1045-46 (9th Cir. 2005) (vehicle taking in violation of Cal. V.C. §10851(a); see discussion in United States v. Corona-Sanchez, 291 F.3d 1201, 1207-08 (9th Cir. 2002)(en banc) (“petty theft with a prior” in violation of Cal. P.C. §§ 490, 666). The Court held that Shepard applies to immigration cases, and that a charging document cannot be used in the “modified categorical” approach if the person pled to a different offense. The Court cited to Shepard’s requirement that a ROC must also contain a plea agreement, transcript, explicit finding by a trial judge, or other specific evidence of the elements pled to, to establish those elements as the offense of conviction.

³¹⁶ See RCW 9A.08.020; State v. Rodriguez, 78 Wn.App. 769, 898 P.2d 871 (1995) (A defendant who has been found guilty under the current accomplice liability statute has been sufficiently apprised of the nature of the charges when charged in the information only as a principal); State v. Williams, 28 Wn. App. 209, 212 (Wash. Ct. App., 1981) (When accomplice liability is before the jury as an alternate theory, the trial
court need not specially instruct the jurors that they are required to unanimously agree upon whether the defendant is a principal or an accomplice in order to convict); State v. Brown, 75 Wn.2d 611, 452 P.2d 958 (1969) (An information charging an aider and abettor as a "principal" is sufficient to put an accused on
notice of charges against him); See also State v. Carothers, 84 Wn.2d 256, 525 P.2d 731 (1974), overruled on other grounds, State v. Harris, 102 Wn.2d 148, 685 P.2d 584 (1984).

³¹⁷ Penuliar v. Ashcroft, 395 F.3d at 1045-46 (9th Cir. 2005) (noncitizen’s plea to a charge alleging that he unlawfully took a vehicle did not make him deportable as an aggravated felon, because it did not eliminate the possibility that he was convicted as an aider and abettor); Corona-Sanchez, supra n. 314; see Cal. Penal
Code §§ 971, 31; see also People v. Greenberg, 111 Cal. App. 3d 181, 188, 168 Cal. Rptr. 416 (Ct. App. 1980). In Martinez-Perez v.Gonzales (supra n. 314) the Court held that the record of conviction, with onlyan original charging document and an abstract of judgment for a different charge, did not permit the Court
to determine if Mr. Martinez was convicted of the generic theft offense-- an actual ‘taking’—or of aiding or abetting.