POST CONVICTION RELIEF: CLEANING RECORD WITH LOS ANGELES ATTORNEY
Criminal Defense Attorney Alex Andryuschenko will defend you if you are accused of a crimes. Also, attorney Alex Andryuschenko will help you clean your record to avoid deportation because of a criminal case. Before you plead guilty or if you already plead guilty and regret it, call our office for a free consultation. You need to talk to a lawyer who knows how a criminal case going to affect you before it is too late. It is always better to negotiate immigration safe plea before you plead guilty. But if you did plead guilty and now need to clean your criminal record, call our office so we can explain what to do. Our first consultation is free and we can help most of the people who call us. Contact us to explain how we can help you avoid deportation or loss of immigration benefits.
Here, we explain what to do when you are faced with a difficult choice of a plea bargain. Plea bargain is difficult because it often involves losing greeencard on one hand and going to jail on the other. Both choices are bad and you need a lawyer who can help you make the best decision. Here, we also what to do when you need to reverse a criminal conviction or to clean your criminal record to keep your greencard or avoid loss of DACA.
If you are placed in a deportation proceedings or if you lost an immigration benefit or if you are unable to immigrate because on a criminal conviction, call criminal defense attorney Alex Andryuschenko. He specializes in post conviction relief and will help you keep your greencard. You need a post-conviction attorney now to avoid having problems in the future.
Our office is very skilled in all post-conviction reliefs for immigrants. There are different ways you can fight your case. Sometimes, you will need to file a motion to modify sentence, sometimes a simple expungement will help, sometimes a more complicated motion under PC 1016.5 or PC 1473.7 is needed. If you were not aware of your immigration consequences, you can be eligible to withdraw your plea. Plea vacation is complicated and involves getting prosecutors on board if at all possible. If your plea is withdrawn, the prosecutor will dismiss your case most of the times. Call us for a free no obligation consultation.
EXAMPLES OF HOW A CRIMINAL CASE CAN AFFECT YOUR IMMIGRATION STATUS
EXAMPLE: If you are a TPS recipient, you can get lose your TPS status if you have any 2 misdemeanor convictions.
EXAMPLE: If you received DACA, you can lose your DACA status if you have a conviction that is deemed particularly serious (such as a DUI is considered a particularly serious offense)
EXAMPLE: If you have a greencard, you can lose it if you have certain felonies or misdemeanors on your criminal record. There are many different grounds of deportability or removability that is difficult ito discuss in details. For example, most conviction for drug offenses, gun possessions, prostitution, theft related offenses, domestic violence offenses, child abuse related offenses, sex related offense will affect your permanent resident status and can result in deportation. Call our office for detailed analysis.
EXAMPLE: If you are convicted of certain type of crimes that are determined to be “aggravated felonies”, you will not only can be deported because of this offense, but you will not not qualify for reliefs from deportations such as asylum or cancellation of removal. Therefore, you must make sure the crime or the punishment you are getting will not make you an aggravated felon. The aggravated felony concept is an immigration law concept that can even cover some misdemeanors in California Courts. You must talk to a post-conviction attorney or to a Los Angeles criminal defense attorney to understand what will happen if you plead guilty.
EXAMPLE: As part of U.S. citizenship application you need to establish a good moral character. If you are placed on probation, you can not establish good moral character until probation expires. Convictions for many crimes can forever prevent an establishment of good moral character and therefore will disallow naturalization.
EXAMPLE: You are found guilty of Petty Theft (PC 484(a)). Because this is a crime of moral turpitude, it can result in you being placed in deportation proceedings. Most of the time, a person who commits petty theft can be charged with a 2nd degree burglary, which is a violation of Penal Code section 459/460(b). A violation of Penal Code section 460(b) is not considered a crime of moral turpitude and therefore will cause any immigration problems. If had the choice, you should have selected pleading guilty to PC 460 instead of PC 484. However, if this happened some times ago, you can file a motion for a post-conviction relief to modify this offense to a non-deportable PC 460(b). You can contact post-conviction Los Angeles attorney at our office for help.
TYPES OF POST CONVICTION RELIEF FOR IMMIGRANTS
Here are several commonly used motions to obtain California Post Conviction Relief for Immigrants:
- PC 1016.5
- PC 1473.7
- Habeas Corpus
- Prop 47 reductions
- PC 1203.4 / 17(b)
- 1203.43 etc
This code section became California Law in 1977. It is mostly used for cases when defendants are not advised of the immigration consequences by the courts. California law requires such advisement and not receiving it can allow you to reverse a guilty plea. The reason plea reversal is a big deal has to do with the age of your case. If your case is recent, a plea reversal will allow the prosecutor to refile it and may be even to take it to trial. But, if your case is old, the prosecutor is likely to dismiss your case rather then to re-prosecute it.
Because this code section was codified over 40 years ago, there are many many cases from both the Court of Appeal and the California Supreme Court that explain and apply California Penal Code 1016.5 to specific situations. These court decisions are known as case law and they are as much law as statutes. Case law is very useful to lawyers, especially when they make things clear. Most problems about application of case law when case law is not clear and therefore allow different courts to come to different decisions. Then, when decisions start to pile up on both sides, the Supreme Court can step in to resolve the discrepancy so that the law is clear. In all, I counted 41 decisions on PC 1016.5 by California Courts. They explain and supplement the law with recent cases usually carrying more weight. Here they are listed by year of publishing and followed by location of the court and charge.
- Gloria (1980)
- Guzman (1981) (disapproved in part by Zamudio)
- Borjia (1981) (disapproved in part by Zamudio)
- Aguilera (1984); 2/6 PC 245(a);
- Valenciano (1985); 2/2 HS 11351
- Barocio (1989); 5; PC 288(a); Habeas Corpus
- Quesada (1991); HC 11352
- Limones (1991)
- Castaneda (1995); 1/1 VC 23152;
- Murillo (1995) 6; PC 459(a);
- Gontiz (1997) 3; HS 11351/HS 11350/PC 12020 (disappoved in part by Zamudio)
- Shaw (1998)
- Suon (1999); 5; PC 459; (5 years delay)
- Ramirez (1999)
- Zamudio (2000) *Supreme Court Case*; VC 10851
- In re Resendiz (2001) *Supreme Court Case*; HS 11351/HS 11377
- Dubon (2001) 2/3; HS 11360 (13 years delay)
- Carty (2003) 2/3; Revenue Code 19406 (failure to file tax);
- Gutierrez (2003)
- Totari (2003)
- Miranda (2004)
- Kim (2007)
- Castro-Vasquez (2007)
- Akhile (2008) 1; PC 487.1 (15 years delay)
- Parades (2008)
- Limon (2009)
- Placencia (2011)
- Gari (2011)
- Shokur (2012)
- Serrano (2012)
- Martinez (2013) *Supreme Court Case* HS 11360
- Mbaabu (2013)
- Arriaga (2014)
- Ashgedom (2015)
- Araujo (2016)
- Arendtsz (2016)
- Patterson (2017)
- Olivera (2018)
- Tapia (2018)
- Cruz-Lopez (2018)
- Hernadez (2019)
I bolded the decisions that bear the most relevance to defending immigrants. The first step in our legal analysis here must come from a state (California Penal Code section 1016.5):
ELEMENTS OF 1016.5 AND ITS CASE LAW DEVELOPMENT
When the law was passed in 1977, the legislature made is sound very good. In the present form the law reads:
(a) prior to acceptance of a plea of guilty or nolo contendere to any offense punishable as a crime under state law, except offenses designated as infractions under state law, the court shall administer the following advisement on the record to the defendant:
If you are not a citizen, you are hereby advised that conviction of the offense for which you have been charged may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States.
(b) Upon request, the court shall allow the defendant additional time to consider the appropriateness of the plea in light of the advisement as described in this section. If, after January 1, 1978, the court fails to advise the defendant as required by this section and the defendant shows that conviction of the offense to which defendant pleaded guilty or nolo contendere may have the consequences for the defendant of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States, the court, on defendant’s motion, shall vacated the judgement and permit the defendant to withdraw the plea of guilty or nolo contendere, and enter a plea of not guilty. Absent a record that the court provided the advisement required by this section, the defendant shall be presumed not to have received the required advisement.
As you can see for yourself, seemingly, using subsection (b) presumption and language SHALL seems like this motion is easy to win. But alas, once the statute passed and the courts started to withdraw pleas (or not:)), the prosecutors and defendants started to appeal to the higher courts. The higher court in California are the Court of Appeal. There, over the course of next 23 years the 6-district-16-or-so-division-95-or-so-judges California Court of Appeal handed down decisions allowing or disallowing 1016.5 plea withdrawals. Eventually in the years 2000 the Supreme Court got for the first time in PC 1016.5 analysis and required that defendants prove to the court elements not required in the statute. This motion is one of the very few possible ways to clean your record for immigration benefits in California.
To win a case under Penal Code section 1016.5 a defendant needs to prove several elements. To clean your criminal record and to withdraw your plea, you must show: (1) non-advisement, (2) diligence, (3) ignorance, (4) prejudice. It is easy to prove the first three and is very difficult to prove prejudice if the court does not like you. Because prejudice is subjective, different court can rule differently on same facts. Prejudice requirement is somewhat based on California Penal Code section 1404 which says that a court proceeding is invalid only when defendant’s substantial rights are affected. So, looking at PC 1404, you might think that a person is prejudiced when he is faces negative consequences because of non-advisement (such as being deported from the United States). But the Supreme Court does not say that! Instead, the Supreme Court defines prejudice as when defendant shows that he would not have plead guilty if he knew the true facts. In other words, even if the court did not give proper immigration warning, some defendants can not have their plea withdrawn because they would have plead anyways. For example, if the court thinks that you knew of the consequences or if you would have plead guilty anyways because the deal was so good, yo can not establish prejudice and would lose motion to withdraw plea even when faced with deportation from the United States. So, despite the statute saying that the reversal is mandatory (because it says “when not advised… the conviction shall be vacated”), the Supreme Court court in Zamudio simply refuses to give the word “shall’ the meaning “shall” because the Supreme Court believes that this will give unreasonable interpretation to the PC 1016.5. So, the Supreme Court uses California constitutional language to ignore mandatory plea withdrawals. California Constitution says “no judgment should be set aside…unless..the court decides that (not to do so) will results in miscarriage of justice. Of course, the reverse reasoning is to allow plea withdrawal when there is no miscarriage of justice. And no court will do that! Prejudice must be established and you must show that it is reasonably probable that if would have not have plead guilty. The good news is that after Martinez case the court clarify that the test for prejudice is not whether is it not likely that defendant would have obtained a more favorable outcome at trial. To put it another way, the test for prejudice is what the defendant would have done, not whether the defendant’s decision would have led to a more favorable result. This is very important because on longer lower courts can deny a motion because the conviction at trial is more likely than not.
Sometimes prosecutors argue that it is not fair to continue to litigate this 1016.5 motions because years later the defendant file them and there is no “finality to the convictions”. The Supreme Court in Martinez addressed that by saying “…The Legislature, by providing for section1016.5 relief, has expressed its willingness to accept the threat to the finality of judgments “to promote fairness” to affected individuals.”
You must also show that you ask the court to remove the conviction as soon as you found out it was a problem. This is called “due diligence”, which is means that you went back to court as soon as you found out. Next I go through all case law to give a road map that California followed to get us to today’s view of the court on mis-advisements:
- (1) Defendant files a motion to withdraw but forgets to state 1016.5 ground. Failure to state grounds is a not a waiver of 1016.5 rights (Aguilera).
- Defendant must present evidence that he did not know his rights as an alien when he entered the plea (Aguilera).
- Trial court should advise every defendant of 1016.5 (Aguilera)
- (2) Defendant filed a motion to withdraw his plea because he was not specifically told that he could be deported. Instead he was told that he can be excluded from the United States. (Valenciano)
- Using the language “excluded” instead of deported is sufficient compliance with PC 1016.5 (Valenciano)
- When the trial court uses language similar but not identical to PC 1016.5, a motion to withdraw the plea on the basis is likely to be denied. (Valenciano)
- Other courts confirm that exact language of PC 1016.5 is not crucial (Soriano)
- (3) The trial court is not required to advise defendant of anything immigration related beyond the statutory requirement of PC 1016.5
- When the trial attorney fails to ask the court (or the DA) for a non-deportable offense, the plea must be withdrawn (Barocio).
- A counsel is ineffective when he is not aware of immigration procedure to avoid deportation (RAD in this case). (Barocio)
- An advisement in the plea form (as opposed on the record by a judge) is sufficient to comply with PC 1016.5. (Quesada).
- Also, a judge does not have to advise the defendant despite statute requiring court advisement. The word court is construed to include anyone who can speak for the court. (Quesada).
- (4) When defendant files a PC 1016.5 motion 7 years after the plea, he must provide explanation for the delay to comply with diligence requirement (Castaneda).
- When defendant files a PC 1016.5 motion, he must state that he was not aware of immigration consequences (Castaneda)
- When defendant files a PC 1016.5 motion, he must state that he would have not plead guilty or no contest had the possibility of deportation been known to justify ignorance requirement. (Castaneda).
- Defendant’s INS hold or pending deportation at the time of plea are factors against defendant because they show knowledge of immigration consequences. Such factors needs to be explained in declarations (Castaneda).
- (5) The court can not strike a prior conviction on the basis that it was defective (no 1016.5 advisements) because the conviction is still there (Murillo)
- (6) When a court advises defendant of only deportation and denial of citizenship but does not advise of exclusion, the plea must be set aside (Gontiz)
- (7) However, before plea withdrawal defendant must prove prejudice. (Zamudio)
- Live testimony is not required in 1016.5 motions (pleading submissions are sufficient) (Zamudio)
- The court did not disallow using immigration counsel declarations only to explain immigration consequences of a plea (Zamudio)
- Absent evidence that defendant had reason to question immigration advisement, the court will not impose time bar (Zamudio)
- Advising defendant prior to the plea about immigration consequences is too abstract to give notice to defendant (Zamudio)
- As part of the prejudice analysis, the court can evaluate the strength of the prosecution case (Zamudio).
- As part of the prejudice analysis, defendant’s mitigation are also relevant because it establishes his connection to the US and more incentive not to plead guilty (Zamudio)
- Prejudice is a factual question that must be decided by the court (Zamudio)
- (8) Defendant have to prove by clear and convincing evidence that they are not US citizens and are subject to deportation (Suon)
- Declaration by itself is insufficient to prove that defendant is not a US citizen (need to submit documents) (Suon)
- Standard of proof at 1016.5 motion is “abuse of discretion” (Suon)
- (9) The existence of 1016.5 is not a bar to ineffective assistance claim based on counsel misadvice about adverse immigration consequences (Resendiz)
- To prove prejudice Defendant have to explain (1) how he would win at trial (2) specific defenses he would allege at trial. Stating that Defendant has a trial case is insufficient and does not establish prejudice when defendant receives a lower sentence as a result of a plea (Resendiz).
- Alien/citizenship advisement is insufficient to deny a 1016.5 motion (Dubon)
- Advisement at the time of the arraignment (several weeks prior to plea) is insufficient for 1016.5 advisement (Akhile)
- The test for prejudice is what the defendant would have done, not whether the defendant’s decision would have led to a more favorable result. (Martinez)
- …A court ruling on a section 1016.5 motion may not deny relief simply by finding it not reasonably probable the defendant by rejecting the plea would have obtained a more favorable outcome. (Martinez)
- However, plea bargain offer is one of factors to determine prejudice (Martinez)
- Defendant’s personal circumstances are part of prejudice (Martinez)
On January of 2017 California added a new law that authorizes defendants to file motions to vacate pleas. This law created a new vehicle to withdraw a plea. Prior to passage of this law, defendants who were no longer on probation did not have a way to fight their conviction even if they could prove that they did not understand consequences of their pleas. PC 1473.7 reversed Supreme Court decision of People v. Kim, a 2009 case that disallowed ineffective assistance claims for a failure of defense counsel to properly defend immigrants. Before that, defendant’s used to file “Corum Nobis motions” to allege things like (1) failure to negotiate immigration safe plea; (2) failure to explain immigration consequences etc.
As of January 1 of 2019, PC 1473.7 was modified to no longer require an ineffective assistance of counsel, thus, the legislature with PC 1473.7 went beyond reversing Kim and now authorizes plea withdrawal for defendants who were confused or forced into a plea. Because counsel error is not needed, the courts title it prejudicial error. This is the new standard to establish in a motion to withdraw plea. Here is a list of 1473.7 cases law of as June of 2019. There are only 12 as oppose to 41 for PC 1016.5. Some case law overlap both statutes and are therefore cited by case law search engins for both PC 1473.7 and for PC 1016.5.
- Perez (Jan, 2018)
- Morales (July, 2018)
- Ogunmowo (May, 2018)
- Olivera (June, 2018)
- Cruz-Lopez (August, 2018)
- Tapia (August 2018)
- Espinoza (Sept, 2018)
- Gonzalez (Sept, 2018)
- Novoa (April, 2019)
- Camacho (Feb, 2019)
- Fryhaat (May, 2019)
- Mejia (June, 2019)
- Chen (June 28, 2019); 1/3; HS 11358 conviction
ELEMENTS OF 1473.7
To win a motion under PC 1473.7 a defendant needs to show (1) a prejudicial error and (2) prejudice. To show prejudicial error, a defendant must show (a) either previous counsel error or (b) defendant’s confusion about the immigration consequences. To show prejudice defendant need to convince the court that her would not plea guilty
Prejudice (Required to win: must show it)
- Prejudice is not established only because defendant was not informed of immigration consequences (Chen)
- Prejudice is established when defendant convinces the trial court that he would have never entered the plea if he had known that it would render him deportable. (Chen)
- Uncorroborated self-serving statement are insufficient to meet defendant’s burden of proof to show prejudice (Chen)
- Likelihood of conviction undermines show of prejudice (Chen)
- Immigration concerns are insufficient motivation to reject a plea (Chen)
Prejudicial Error 1 (Defendant Confusion)
- Defendant erroneously believed that a no time in custody will avoid deportation (Camacho)
- Defendant does not need to prove ineffective assistance. (Camacho 1008)
- But to show prejudicial error defendant must shows a reasonable probability of a different outcome absent the error (Camacho 1009)
Prejudicial Error 2 (Counsel Error)
Here are examples of counsel error from California case law. Whenever possible need to fit your facts to the facts of these cases.
COUNSEL ADVISE IS DEFICIENT
- Minimal Interaction with defendant (Novoa)
- Lacked documentation regarding discussion of Immigration Concerns (Novoa)No evidence of adequate explanation to defendant of immigration consequences (Novoa)
- No evidence counsel attempted to negotiate any plea agreement with prosecutor (Novoa)
- Counsel did not discuss if conviction can effect Defendant’s immigration status (Hernandez)
- Counsel had no awareness of defendant’s immigration status (Hernandez)
- Counsel had no awareness of defendant’s risk of deportation (Hernandez)
- Counsel did not attempt to negotiate alternative plea to avoid immigration consequences (Hernandez)
- Counsel does not remember discussing immigration consequences with the defendant
- Counsel misunderstands the effect of expungement or 17b in immigration cases
- Counsel did not explore alternatives to pleading guilty to aggravated felony (Camacho)
- Counsel can’t recall what advisements he discussed with defendant (Espinoza)
- Counsel’s notes did not refer to discussion of immigration consequences (Espinoza)
COUNSEL ADVISE IS NOT DEFICIENT
- Counsel had numerous discussion with Defendant about plea (Chen)
- Counsel warned defendant of immigration effect of plea (Chen)
- Counsel makes effort to negotiate immigration consequences (Chen)
If you are still in custody or on probation (constructive custody), then you are not eligible to file a 1473.7 motion. Instead, the only remedy is Habeas Procedure, which are a steeper hill to climb and do not give you a hearing rights (unlike 1473.7, which mandates a hearing).
Strickland v. Washington
In Strickland v. Washington, the court explained standard for an ineffective assistance of counsel. The court explained that a right to counsel means a right to an effective counsel. To win a motion for an ineffective counsel, a defendant needs to establish (1) that counsel was deficient and (2) that defendant was prejudiced by the deficiency. This standard is commonly used by courts to evaluate counsel deficiency. Recently, PC 1473.7 motion under Camacho deviated from this standard.
Proposition 47 and Proposition 64
Under Prop 47, codified in California Penal Code section 1170.18, some felonies can be reclassified some as misdemeanors. This law passed in 2014 and has very minor immigration benefits. Under Prop 64, marijuana was legalized for recreational use. This proposition supplemented Proposition 215, which legalized medicinal marijuana use in 1996. Prop 64 also reduced the punishment for marijuana cultivation and possession. But, just like Prop 47, it has minor immigration benefits and defendants are well advised to avoid pleading to drug related charges because federal immigration law view marijuana convictions as a drug conviction. Many marijuana related convictions will result in deportation.
Please call our office to talk about your specific case. We specialize on PC 1473.7 and PC 1016.5 plea withdrawals. and can help you avoid immigration consequences.