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Avoid Deportation: Post Conviction Relief For Immigrants in Los Angeles

June 22, 2019

POST CONVICTION RELIEF: CLEANING RECORD WITH LOS ANGELES CRIMINAL ATTORNEY

CLICK HERE FOR THE 1016.5 MOTIONS DISCUSSION

If you were arrested and are not a US citizen, you should contact a Los Angeles criminal defense attorney who specializes in immigration-related cases. Many Los Angeles criminal defense attorneys will not know how to help you avoid immigration issues.

EXAMPLE: if you are arrested for possession of a firearm in Los Angeles or any other gun crime in Los Angeles, and you have a green card, you might think that you will be deported from the United States because of that. What is not commonly known is that the federal definition of a firearm is not the same as California’s definition of a firearm and because of that many California Gun Possession Crimes are not deportable under Federal law. This is known as “the antique firearms exception”. An antique firearm is usually an old gun (18 USC 821). That means that if (1) the record of conviction does not establish the type of gun used and (1) the US Government has the burden of proof (such is the case with current US residents), and you will avoid deportation if the government can’t prove what kind of gun it was based on the “antique firearm exception”.

If you have a Los Angeles Criminal Defense Attorney who specializes in helping immigrants, he will know this and help you settle your criminal case in Los Angeles without being deported from the USA. The definition of a firearm in California can be found here (link). Call Los Angeles Criminal Defense Attorney at our office to get immediate help.

Criminal Defense Attorney Alex Andryuschenko will defend you if you are accused of a crime in Los Angeles. Criminal Defense Attorney Alex Andryuschenko will also help you clean your record to avoid deportation from the United States. Because every 4th person in California is foreign-born and every second child has a parent who is not a US citizen, California is affected extremely hard by deportation laws of the United States. 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 your immigration status. It is always better to negotiate an immigration-safe plea before you plead guilty. But if you already plead guilty and now need to clean your criminal record, call our office so we can explain how to do it. Our first consultation is free and we can help many people who call us. Contact us so we can explain how we can help you avoid deportation or loss of immigration benefits.

Immigration law always changes. Our post-conviction attorney can help you with a criminal case that you lost or pleaded guilty to. After the 2010 decision in Padilla v. Kentucky, the United States Supreme Court started to require criminal defense lawyers to research immigration consequences for clients charged with crimes. Padilla court also applied IAC analysis to plea negotiation (p 373). If your lawyer did not tell you about the plea bargain offer – he provided ineffective assistance (Missouri v. Frye 566 U.S 134).

Prior to the 2010 case of Padilla v. Kentucky (559 US 356), the test for an attorney’s ineffective assistance was “affirmative misadvise”. This means, that if you pleaded guilty to a crime, your lawyer had to actually say “you will not get deported”. But Padilla changed that and now the defendant’s lawyer must research the actual consequences of pleading guilty to a specific crime. For example, if your Los Angeles Criminal defense attorney told you “speak to an immigration attorney about your case”, he violated the 6th amendment right to counsel and you can withdraw the plea. This rationale was confirmed in Vivar, a 2022 California case where the lawyer at the time of the plea told the defendant to seek immigration counsel help.

Note that the 6th amendment simply says “…the accused shall …. have the assistance of counsel for his defense”. However, the supreme court interpreted this to mean “effective counsel”. Thus, any accusation of counsel being ineffective is based on the 6th amendment right to effective counsel, even though the word “effective” is not mentioned in the 6th amendment.

In 2016 California started to require prosecutors to consider immigration consequences (California Penal Code section 1016.3(b)). In 2017, California passed Penal Code 1473.7, law that allows defendants to file a motion that can result in a dismissal. The legal trend in California is to increase protection to non-citizens charged with crimes. Now the prosecutors are required to consider immigration status and even to re-negotiate old pleas if you challenge your plea based on these new laws.

Here, we explain what to do when you are faced with a difficult choice of a plea bargain. A plea bargain is difficult because it can involve losing a greencard on one hand and going to jail on the other. Both choices are bad and you need a lawyer who can help you make sure you can keep your greecard and not to go to jail. Here, we also explain how to clean your record by reversing a conviction. Cleaning your record will help you keep greencard and/or to avoid loss of DACA or other immigration status or benefits.

If you are placed in deportation proceedings or if you lost your immigration status or if you are unable to immigrate because of a criminal conviction, call criminal defense attorney Alex Andryuschenko. He specializes in post-conviction relief and will help you keep your green card. You need a post-conviction attorney now to avoid having problems in the future. Call Criminal Defense Attorney Los Angeles now because delaying your case will make it more difficult to win your criminal case in Los Angeles.

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 a sentence, sometimes a simple expungement will help, and sometimes a more complicated motion under PC 1018, PC 1016.5 or PC 1473.7 is needed. If you were not aware of the immigration consequences of your case, you can hire Criminal Defense Attorney Los Angeles to clean your record. We do that by reversing the guilty plea or negotiating a plea to a different charge. If your criminal case is causing you to be deported from the US and you did not know about the immigration consequences, we can help you withdraw your plea and keep or get permanent residency (Green Card), or DACA, or obtain other immigration benefits or status such as asylum or citizenship. Vacating a plea is a complicated legal procedure that involves getting the prosecutors on board if at all possible. But, if your plea is withdrawn, the prosecutor will dismiss your case most of the time. Call a post-conviction attorney in Los Angeles now 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 lose your TPS status if you have 2 misdemeanor convictions. Often, we can help reduce one of the misdemeanor convictions to an infraction or withdraw the plea to a misdemeanor and get a dismissal. Doing this will allow you to keep TPS (temporary protected status).

EXAMPLE: If you received DACA, you can lose DACA status if you have a conviction that is deemed particularly serious. (For example, even a 1st offense DUI is considered to be a particularly serious offense). Thus, having a lawyer negotiate a “wet reckless” plea will help you keep your DACA immigration status.

EXAMPLE: If you are a green card holder, you can lose a green card if you have certain felonies or even misdemeanors on your criminal record. There are many different grounds of deportability or removability that are difficult to discuss in detail. For example, most convictions for drug offenses, gun possession, prostitution, theft-related offenses, domestic violence offenses, child-abuse-related offenses, and sex-related offenses will affect your permanent resident status and can result in deportation. Call our office for a detailed analysis of your criminal case and immigration defenses.

EXAMPLE: If you are convicted of a certain type of crime that is determined to be an “aggravated felony”, you can not only be deported because of that crime, but you may also not qualify for relief from deportation, 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 concept that can sometimes involve only a misdemeanor in California. Yes, you read correctly! Under US Federal immigration law, you can be considered an aggravated felon and deported even when you only were found guilty of a misdemeanor in a State court (U.S. v. Graham 169 F.3d 787, 792)! You must talk to a post-conviction attorney Los Angeles or to a Los Angeles criminal defense attorney to understand what will happen if you plead guilty to any crime. Some people think that Felonies result in deportation and misdemeanors do not – which is wrong, many many misdemeanors can result in deportation, denial of citizenship, or loss of other immigration benefits.

EXAMPLE: As part of a U.S. citizenship application you need to establish a good moral character. If you are placed on probation, you will not be able to establish a good moral character until your 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 not cause any immigration problems. If you had the choice, you should have selected pleading guilty to PC 460 instead of PC 484. However, because PC 460 became “immigrant-friendly” only recently, you might have to petition the court to change a petty theft conviction to a burglary conviction. This is done by filing a motion for post-conviction relief to modify your plea to a non-deportable PC 460(b). You can contact a 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
PC 1018 motion

Next, we are discussing some of those motions in detail.

California Penal Code Section 1016.5

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 try to start your case again. But, if your case is old, the prosecutor, most of the time, will dismiss your criminal case instead of prosecuting it again.

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 with the application of the case law come up when it allows different courts to come to a different conclusion because it is written poorly. When the Court of Appeals makes things confusing, the Supreme Court can step in to resolve the discrepancy so that the law is clear. I located at least 41 decisions about California Penal Code section 1016.5 by the California Courts. The decisions explain and supplement the statute with recent cases usually carrying more weight. Here cases are listed by the year of publishing and followed by the location of the court and the charges the defendants were convicted of.

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 (disapproved 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) 2 Cal.5th 889: “may” is not sufficient in a plea form.
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):

Prior to 1016.5 adoptions into the law, the California Case of People v. Wiedersperg was the authority for identical advisements.

ELEMENTS OF 1016.5 AND ITS CASE LAW DEVELOPMENT

When the law was passed in 1977, the legislature made it 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 judgment 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 is the Court of Appeal. There, over the course of the 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 year 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. California Penal Code 1016.5 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. Because the burden is on the government, it is fairly easy to prove the first three elements, but, it is much more difficult to prove prejudice. This is especially true if the judge does not like you. Hiring a good post-conviction relief attorney will help you convince the judge that you suffered prejudice. It is not surprising that some judges will find prejudice and some will not on the same fact. Prejudice, for purposes of post-conviction relief, is very subjective!

The prejudice requirement is somewhat based on California Penal Code section 1404 which says that a court proceeding is invalid only when the defendant’s substantial rights are affected. Looking at PC 1404, you might think that a person is prejudiced when he faces negative consequences because of non-advisement (such as being deported from the United States). The Supreme Court does not say that! Instead, the Supreme Court defined prejudice as when the defendant shows that he would not have pleaded guilty if he knew the true facts. In other words, even if the court did not give a proper immigration warning, some defendants can not have their plea withdrawn because they would have pleaded guilty anyways. For example, if the court thinks that the deal was too good to refuse, you can not establish prejudice and would lose a motion to withdraw a plea even when faced with deportation from the United States. 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 the 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 result in a 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 you would not have pleaded guilty. The good news is that after Martinez’s case the court clarified that the test for prejudice is not whether is it not likely that the 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 no 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 the 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 meant 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 misadvisements:

CASE LAW EXAMPLES

The defendant files a motion to withdraw but forgets to state 1016.5 ground. Failure to state grounds is not a waiver of 1016.5 rights (Aguilera).
- A defendant must present evidence that he did not know his rights as an alien when he entered the plea (Aguilera).
The trial court should advise every defendant of 1016.5 advisements (Aguilera)
A 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 the exact language of PC 1016.5 is not crucial (Soriano)
The trial court is not required to advise a 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 and Bautista).
- A counsel is ineffective when he is not aware of the immigration procedure to avoid deportation (RAD in this case). (Barocio)
The advisements in the plea form (as opposed to the record by a judge) are sufficient to comply with PC 1016.5. (Quesada).
- Also, a judge does not have to advise the defendant despite the statute requiring court advisement. The word “court” is construed to include anyone who can speak for the court. (Quesada).
When the defendant files a PC 1016.5 motion 7 years after the plea, he must provide an explanation for the delay to comply with the diligence requirement (Castaneda).
When the defendant files a PC 1016.5 motion, he must state that he was not aware of immigration consequences (Castaneda).
When the defendant files a PC 1016.5 motion, he must state that he would not have pleaded guilty or no contest had the possibility of deportation been known to justify the ignorance requirement. (Castaneda).
Defendant’s INS hold or pending deportation at the time of plea are factors against the defendant because they show knowledge of immigration consequences. Such factors need to be explained in declarations (Castaneda).
The court can not strike a prior conviction on the basis that it was defective (no 1016.5 advisements) because when the prior conviction is stricken, the conviction is not vacated (only not used for sentencing on a newer case) (Murillo)
When a court advises the defendant of only the deportation and the denial of citizenship but does not advise of exclusion, the plea must be set aside (Gontiz). (defective to advise of 2 out of 3)
(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 the immigration consequences of a plea (Zamudio)
Absent evidence that the defendant had reason to question immigration advisement, the court will not impose a time bar (Zamudio)
Advising the defendant prior to the plea about immigration consequences is too abstract to give notice to the 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, the defendant’s mitigation is 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) The defendant must prove by clear and convincing evidence that he is not a US citizen and is subject to deportation (Suon)
Declaration by itself is insufficient to prove that the defendant is not a US citizen (must submit documents) (Suon)
The Standard of proof at 1016.5 motion is “abuse of discretion” (Suon)
(9) The existence of 1016.5 is not a bar to an ineffective assistance claim based on counsel misadvice about adverse immigration consequences (In re Resendiz).
To prove prejudice a defendant has to explain (1) how he would win at trial (2) list the specific defenses he would use at trial. Stating that the defendant has a trialable case is insufficient and does not establish prejudice when the 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 advisements (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, a plea bargain offer is one of the factors to determine prejudice (Martinez)
Defendant’s personal circumstances are part of prejudice (Martinez)
The defendant can not meet the due diligence requirement of the motion to withdraw the plea when he does not explain why he waited 7 years to file the motion to withdraw his plea (Castaneda)

California Penal Code Section 1473.7

In January 2017 California adopted a new law that authorizes defendants to file motions to vacate pleas. This law created a new vehicle to withdraw guilty pleas. Prior to the passage of this law, defendants who were no longer on probation or custody did not have any way to fight their immigration case because the law precluded them from fighting their conviction even if they could prove that they did not understand the consequences of pleading guilty. California Penal Code section 1473.7 reversed the Supreme Court decision of People v. Kim, a 2009 case that caused the deportation of many persons. Kim disallowed ineffective assistance of counsel challenges for old cases even if there is 100% proof that prior defense counsel did a bad job representing the defendant. Before Kim, defendants used to file “Corum Nobis motions” to allege things like (1) failure to negotiate an immigration safe plea; (2) failure to explain immigration consequences, etc.

The even better news is that on January 1 of 2019, PC 1473.7 was modified to no longer require the ineffective assistance of counsel to withdraw old guilty pleas. Thus, the California legislature by passing Penal Code section 1473.7 went even beyond reversing People v. Kim and now authorizes plea withdrawal for defendants who were confused or forced into a plea. Because counsel error is no longer needed to dismiss old cases, prejudice exists when there is a reasonable probability that the defendant would not have pleaded guilty and would have risked going to trial if the defendant had known that the guilty plea would have mandatory and adverse immigration consequences (from Mejia and Camacho).

This prejudicial error is the new standard to establish in a motion to withdraw a plea. Here is a list of 1473.7 cases law of as June of 2019. There are only 12 listed in Lexis annotations as opposed to 41 for PC 1016.5. Some case law overlaps both statutes and therefore is annotated for both PC 1473.7 and for PC 1016.5.

Perez (Jan, 2018)
Morales (Appellate Ct ) (July 2018) – an inability to get a U visa is considered an immigration consequence within the meaning of PC 1473.7. Thus PC 1016.5 is narrower because it does not reference such consequences as the denial of a U visa.
Ogunmowo (Appellate Ct) (May, 2018) – motion based on ineffective assistance of counsel where Ogunmowo’s plea counsel filed a declaration where he admitted that he did not investigate immigration consequences and told the defendant that he would not be deported.
- Ogunmowo case also has “Dubon” problem as the defendant was advised of “alien/citizenship/probation/parole status.
Olivera (June, 2018)
Cruz-Lopez (August, 2018)
Tapia (August 2018)
Espinoza (Sept, 2018)
Gonzalez (Sept, 2018)
Novoa (April 2019) – depublished
Camacho (Feb, 2019)
Fryhaat (May 2019)
Mejia Cal. App. (June, 2019)
DeJesus (Appellate Ct) (June 2019) – lost 1473.7 and affirmed.
Chen (June 28, 2019); 1/3; HS 11358 conviction (depublished!). Great victory – this case was terrible for immigrants.
Rodriguez (Appellate Ct) (August 2019)
Ruiz (Appellate Ct ) (June, 2020).
Bravo (Appellate Ct ) (Dec 2020) – ORDERED DEPUBLISHED
Jung (Appellate Ct) (Dec, 2020)
Perez (Appellate Ct) (August 2021)
Vivar (SUPREME COURT) (May 2021) (At the time of the motion he was living in Mexico). Great case for post-conviction relief from Supreme Court. explained that ties to the community is a substantial factor in establishing prejudice.
Singh (Appellate Ct) (June 2022) – Singh was convicted at trial and his motion under PC 1473.7 was denied because the court found his ineligible for relief because was convicted at trial. Held: deniel reversed, a defendant can litigate PC 1473.7 after he was convicted at trial.
Lopez (Appellate Ct) (Sept 2022) –
Gregor (Appellate Ct) (August 2022) – prohibition of a US citizen to file a family petition because a US Citizen is convicted of a sex crime is not an immigration consequence within meaning of PC 1473.7
Espinoza (SUPREME COURT) (Jan 2023)

MEJIA: A post-conviction attorney in Los Angeles should rely on Mejia (36 Cal. App.5th) in his pleading because under that this case, Defendant wins when he can prove by a preponderance of the evidence that (1) he did not “meaningfully understand” or “knowingly accepted” the actual or potential adverse immigration consequences of the plea; and (2) had he understood the consequences, it is reasonably probable he would have instead defended against the charges. Also, the plea in Mejia was in 1993 and the motion to withdraw the plea was brought in 2017. Thus, 24 years between the motion and the plea did not affect the validity of the argument.

In other words, under Mejia, it is not important what the defendant’s attorney said or did not say: what matters is the mindset of the defendant and what he or she understood at the time of the plea. Thus, as long as there are no negative credibility findings against the defendant, a motion based on Mejia (1473.7) should be a winning motion. This argument is helped by “contemporaneous evidence“, such as the weakness of the government case, and by the “life story” of the defendant (such as having little family outside of the US and strong US ties).

ELEMENTS OF 1473.7

Even before 1473.7, USSC authorized conviction withdrawal even after a trial (Missouri v. Frye 566 US 134). The court reasoning can be applied to reverse conviction after trial.

To win a motion under PC 1473.7 a defendant needs to show (1) an error and (2) prejudice. What kind of error? An error that damages your ability to understand or an error that damages your ability to defend or an error that damages your ability to knowingly accept immigration consequences. The error has to be prejudicial. To show prejudice, a defendant must show (a) either previous counsel error or (b) the defendant’s confusion about the immigration consequences. To show prejudice defendant need to show to the court that “it is reasonably probable that he would not plead guilty if knew of the consequences”. (Zamudio). This position is supported by recent decisions in Espinoza. The court needs to look not at whether or not the outcome would be better but at what the defendant would have done.

Prejudice (Required to win: must show it)

Prejudice is not established only because the defendant was not informed of immigration consequences (Chen) – NO LONGER THE LAW – CHEN IS DEPUBLISHED
Prejudice is established when the defendant convinces the trial court that he would have never entered the plea if he had known that it would render him deportable. (Chen) NO LONGER THE LAW – CHEN IS DEPUBLISHED
Uncorroborated self-serving statements are insufficient to meet the defendant’s burden of proof to show prejudice (Chen) NO LONGER THE LAW – CHEN IS DEPUBLISHED
The likelihood of conviction undermines the show of prejudice (Chen) NO LONGER THE LAW – CHEN IS DEPUBLISHED
Immigration concerns are insufficient motivation to reject a plea (Chen) NO LONGER THE LAW – CHEN IS DEPUBLISHED
The defendant must show by a preponderance of the evidence that he would never have entered the plea if he had known that it would render him deportable (Camacho)
In People v. Vivar (a 2021 case): prejudice was established by an immigrant who was in the US for 40 years and could had plead to an alternative charge that would not cause deportation.
Prejudice is whether it is reasonably probable that the defendant would not have pleaded guilty if properly advised (Vivar court citing Zamudio 23 Cal.4th 183). The focus is on what the defendant would have done, not on whether the defendant’s decision would have led to a more favorable result” (Zamudio reaffirmed by Vivar)
The probability of obtaining a more favorable result at trial is one factor to consider in evaluating prejudice, but it is not necessarily the determinative factor (Ogunmowo 23 Cal.App.5th 67)
A likelihood of winning at trial is not a proper inquiry to focus in a motion to withdraw his plea (Hill v. Lockhart 474 U.S. 52, 59). Instead, the inquiry must be based on the defendant’s decision making.
The more time defendant is in the country the easier it is to establish prejudice. In People v. Bravo (2021) 69 Cal.App.5th 1063, 1076, the defendant was in the US for four and a half years and was unable to establish prejudice. Thus a presence of more than 4 and a half years helps establish prejudice in light of Bravo.
Bravo is also helpful for prejudice analysis because of the type of crime for which the defendants are convicted. For defendants who are convicted of crimes against the family (such as domestic violence or cruelty against children), the connection to the US family is less. When comparing such defendants to those convicted of crimes not targeting family members (such as drug crimes), the defendant should be given an easier time to show prejudice.

As one court says “Appellant’s long residence in this country, coupled with his resident nuclear and extended family members militate in favor of a finding of prejudicial error. Lengthy and legal United
States residence is objective evidence itself of appellant’s ties to the United States, an important factor in evaluating prejudicial error because they shed light on a defendant’s immigrationpriorities. (Espinoza, supra, 14 Cal.5th at p. 321.)

Prejudicial Error 1 (Defendant Confusion)

Defendant erroneously believed that a no-jailtime-time plea bargain offer will avoid deportation (Camacho)
Defendant does not need to prove ineffective assistance. (Camacho 1008)
But to show prejudicial error defendant must show a reasonable probability of a different outcome absent the error (Camacho 1009)

Prejudicial Error 2 (Counsel Error)

Here are examples of counsel errors from California case law. Under the 6th Amendment, (which applies to the states through the Fourteenth Amendment) an accused is entitled to the assistance of competent counsel at all stages of criminal proceedings. Whenever possible, you need to fit your facts to the facts of these cases.

PEOPLE V. VIVAR (RECENT DECISION ON PREJUDICE)

In 2021 The Supreme Court of California reversed the Court of Appeal decision (a Riverside County Case) that found no prejudice for Mr. Vivar after his prior counsel committed an IAC and after he was deported due to that. The Court of Appeal reasoned that despite IAC, there was no reasonable probability that Vivar would have entered the same plea. This is a very important decision that lessens the burden to show prejudice. Now, all defendant has to show is a “reasonable probability if he had been properly advised by counsel about the immigration consequence of his plea, he wouldn’t have pleaded guilty to an offense subjecting him to mandatory deportation“. The court also modified the standard of review from “abuse of discretion” to “independent review”. Thus, ties to the community appear to be sufficient evidence of prejudice and must be emphasized in every case to establish prejudice.

Important Points about Vivar:
- Mr. Vivar was deported twice and the Trial court held that Vivar was not able to show prejudice.
- The Supreme Court reversed the trial court’s decision.

What is Reasonable Probability: “Reasonable probability” does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility. (People v. Soto (2022) 79 Cal.App.5th 602, 610.)

PEOPLE V. BAUTISTA (115 Cal. App. 4th 229)

Of separate interest is the case of People v. Bautista. In this case, the Defendant was convicted of possession for sale of Marijuana. Dave Bautista filed a habeas petition in which he alleged his trial counsel’s representation fell below the standards for effective assistance of counsel because his trial counsel failed to advise him that deportation and exclusion from readmission were mandatory (8 U.S.C. § 1227(a)(2)(A)(iii)) for possession of marijuana for sale, an “aggravated felony” under federal law (8 U.S.C. § 1101(a)(43)(B)), and did not attempt to negotiate a plea bargain to a non-aggravated felony such as offering to sell marijuana (Health & Saf. Code, § 11360).
The Court held that Dave may have been prejudiced by the attorney’s failure to investigate, advise, and utilize defense alternatives to a plea of guilty to an “aggravated felony.”

EXAMPLES OF CASES FOR POST-CONVICTION RELIEF WHERE COUNSEL ADVICE WAS DEFICIENT

Minimal Interaction with the defendant (Novoa)
Lacked documentation regarding the discussion of Immigration Concerns (Novoa)No evidence of adequate explanation to the defendant of immigration consequences (Novoa)
No evidence counsel attempted to negotiate any plea agreement with the prosecutor (Novoa)
Counsel did not discuss if a conviction can affect Defendant’s immigration status (Hernandez)
Counsel had no awareness of the defendant’s immigration status (Hernandez)
Counsel had no awareness of the defendant’s risk of deportation (Hernandez)
Counsel did not attempt to negotiate an alternative plea to avoid immigration consequences (Hernandez)
Counsel does not remember discussing immigration consequences with the defendant
(Camacho)
Counsel misunderstands the effect of expungement or 17b in immigration cases
(Camacho)
Counsel did not explore alternatives to pleading guilty to an aggravated felony (Camacho)
Counsel can’t recall what advisements he discussed with the defendant (Espinoza)
Counsel’s notes did not refer to a discussion of immigration consequences (Espinoza)
When the counsel’s file does not contain any notes or research about an alternative plea (Dejesus)
When the defense counsel did not explore alternative disposition that can mitigate the harm (Bautista)

EXAMPLES OF CASES FOR POST-CONVICTION RELIEF WHERE COUNSEL ADVICE IS NOT DEFICIENT

Counsel had numerous discussions with a defendant about the plea (Chen) – NO LONGER THE LAW – CHEN IS DEPUBLISHED
Counsel warned the defendant of the immigration effect of the plea (Chen) – NO LONGER THE LAW – CHEN IS DEPUBLISHED
Counsel makes effort to negotiate immigration consequences (Chen) – NO LONGER THE LAW – CHEN IS DEPUBLISHED
The good news is that Chen is depublished!

People v. Ruiz: Josephina Ruiz was convicted of Health and Safety Code 11351.5 in 1991. 29 years later she filed a motion to withdraw her plea based on PC 1473.7. She accused her lawyer of not telling her that she would be “permanently ineligible to ever become a legal resident of the United States”. The court held that language “may have” deportation consequences is insufficient to prove that she knew of the consequences because her lawyer could have told her something else. This case is based on Patterson which holds that “may” language in the plea form is not enough to properly warn the defendant when deportation is mandatory.

What is important in Ruiz is that she was not precluded from filing a second 1473.7 motion, after the legislative amendment. Thus, neither Habeas (below) nor, older 1016.5/1473.7 create collateral estoppel.

It remains to be seen if Ruiz is retroactive to cases before Patterson (a 2017 case that clearly separated the duty of court from duties of counsel that ultimately leading us to conclude that compliance with a PC 1016.5 advisement by the court is not enough to discharge counsel’s duty to his client. In other words, the court can tell a criminal defendant that he will be deported but if the defendant’s lawyer said the opposite, there is a right to withdraw the guilty plea despite clear immigration advisements by the court.)

THE ISSUE OF TIME DELAY

When is it appropriate to bring a motion to withdraw a guilty plea? Trial courts can deny a motion to dismiss a case for a failure to advise about immigration consequences based on time delay. If you facing deportation and want to dismiss your old case, you must file a motion. But you will have to explain a time delay if your motion to withdraw the guilty plea is years later. In Totari the delay was 7 years but there was clear evidence that Defendant did not know about his right to file a motion. What if Defendant is deported after the guilty plea and wants to re-enter the USA because he just found out about California Penal Code section 1473.7? A recent case of Alatorre helps.

Alatorre: Mr. Alatorre plead guilty to a drug case and was deported. After he was deported California Penal Code section 1473.7 was passed (in 2017). Alatorre filed his motion to withdraw the guilty plea in July of 2020 and the trial court decided that he waited too long (3 1/2 years). The court of Appeals reversed that holding and now, depending on the circumstances, a person who was deported before PC 1473.7 became law and files for relief 3 years later is not late within the meaning of the statute.

ALATORRE AFFIRMS CAMACHO AND MEJIA HOLDING THAT ERROR COULD HAVE BEEN DEFENDANT’S

ALATORRE HOLDS THAT PRESUMPTION THAT EVERYONE KNOWS THE LAW DOES NOT APPLY IN THE 1473.7 CONTEXT

The case law thus now is very favorable to PC 1473.7 applicants. If you are thinking about cleaning your record, now is the perfect time to do so. This is a unique opportunity available only to immigrants.

Alatorre case holds that the court should at the defendant’s own subjective error.

Habeas Corpus

If you are still in custody or on probation (constructive custody), then you are not eligible to file a 1473.7 motion. The legislature, in passing PC 1473.7 said that one of the reasons the new law was passed was to allow defendants to challenge convictions when defendants are no longer in state custody. Prior to passing PC 1473.7, a person had no way to challenge a conviction based on the IAC if he was not in prison, not on parole, or not on probation. The only remedy available to such persons is Habeas, which is a steeper hill to climb without actual hearing rights (unlike PC 1473.7, which mandates a hearing). In People v. Dejesus, the court denied 1473.7 because the defendant was still in the state’s custody. (Here the custody was “constructive” because the defendant was on parole). Interestingly, Dejesus argued that his public defender lawyer properly advised him of the immigration consequences but failed to ask for an alternative plea and refused to go to trial.

NOTE: Prior filing of a Habeas Corpus petition should not preclude the future filing of 1473.7 (however multiple writs of habeas corpus are prohibited because they waste the judicial resources and undermine the finality of judgments In re Clark 5 Cal.4th 750).

Strickland v. Washington

In Strickland v. Washington, the Supreme Court of the United States explained the legal standard for ineffective assistance of counsel (IAC). The court explained that a right to counsel means a right to effective counsel. To win a motion for ineffective counsel, a defendant needs to establish (1) that counsel was deficient and (2) that the 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 and no longer uses Strickland to prove IAC

Proposition 47, Proposition 64, and Proposition 57

Under Prop 47, codified in California Penal Code section 1170.18, some felonies can be reclassified as misdemeanors. Pro 47 also reduced some burglaries and grand theft to misdemeanor “shoplifting”. Most importantly, petty theft now covers theft up to $950 (it was $400 before). For example, possession of cocaine under Prop 47 became a misdemeanor after being a felony in California for years. Prop 47 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, Prop 64 has minor immigration benefits and defendants are well-advised to avoid pleading to drug-related charges because the federal immigration law views all marijuana convictions as drug convictions. Many marijuana-related convictions will result in deportation, so please talk to a criminal defense attorney who knows immigration law before you plead guilty to any drug case. Proposition 57 passed in 2016 allowing the release of non-violent offenders to parole. Under Proposition 57, prosecutors can no longer decide to file an adult case against a juvenile. Such an important decision needs to be made by a juvenile judge (which at least carries a semblance of neutrality. You must contact a criminal defense attorney in Los Angeles as soon as you can if your minor son or daughter is arrested for a serious crime.

People v. Bautista: this is a very important case to use for plea withdrawal. In Bautista, the defendant won by submitting 3 declarations:

(1) from his trial counsel who admitted that instead of asking for an immigration-neutral plea he asked for a lower sentence plea

(2) from an immigration counsel who stated that he believes the prosecution would agree to a plea with a greater sentence but an immigration-neutral charge and

(3) from the defendant who stated that he would not have agreed to enter a plea if he knew the immigration consequences.

If there is any evidence that the defendant’s counsel did not attempt to negotiate an immigration-safe plea, Criminal Defense Attorney Los Angeles recommends that a separate paragraph listing the Bautista case and why its elements are met for plea withdrawal.

NOTE: It can be a good idea to obtain a copy of the “attorney’s file” from your previous counsel to see if it references (1) immigration status and (2) any negotiation with the prosecutor regarding “dropping” or “reducing” charges because of the immigration status.

MOTIONS UNDER PENAL CODE SECTION 17(B) TO REDUCE FELONY TO MISDEMEANOR OR MISDEMEANOR TO INFRACTIONS

Under California Penal Code section 17(b) some crimes can be reduced to a misdemeanor. To qualify, the offense has to be a “wobbler”; that is it can be prosecuted as a misdemeanor or felony. Under a newly enacted PC 17(b)(3), a suspended prison sentence (aka joint suspension or ESS) can now be also reduced to a misdemeanor. This new law is known as AB 1941 and it became effective as of 1.1.19.

In 2017, the State of California passed Penal Code section 18.5. This new law was meant to help immigrants by deeming all misdemeanors a crime with a sentence not to exceed 364 days. Thus, if you were sentenced to 365 days on any misdemeanor, you can petition the court to reduce your sentence by 1 day, to 364 days. Los Angeles criminal defense attorney in our office believes that the California Legislature passed this law to help immigrants avoid deportation/inadmissibility bor because some crimes are only deportable or make you inadmissible when the sentence is 365 days. For example, an Aggravated Felony of Crime of Violence is deportable when the sentence is 365 days. Thus, if you were convicted of a violation of California Penal Code section 245, assault with a deadly weapon and sentenced to 365 days in jail, you were deportable due to this being an Aggravated Felony. Filing a motion under Penal Code 18.5 would remove by modifying the sentence to 364 days, a California Assault aggravated felony.

Sometimes Penal Code section will not work to help immigration cases. In the Matter of Velasquez-Rioz, 27 I&N Dec. 470 the Board of Immigration appeals held that a defect has to be based on legal invalidity. So, do talk to immigration counsel or call us to withdraw your conviction in Los Angeles.

Please call our office to talk about your specific case. We specialize in PC 1473.7 and PC 1016.5 plea withdrawals and can help you avoid immigration consequences.