Advice on Immigration Consequences (including P.C. 1473.7)
Category > Advice on Immigration Consequences (including P.C. 1473.7)
Updated 6/1/2024A section 1473.7 motion may be based on a defendant’s failure to understand the immigration consequences following the admission of a probation violation.Defendant filed a motion under Penal Code section 1473.7 to vacate a conviction that resulted from a jury trial (not a plea). His conviction qualified him for deportation after a subsequent probation violation. A section 1473.7 motion may be based on a defendant’s failure to understand the immigration consequences of additional incarceration imposed as a result of a probation violation. Prejudice may be established by showing he wouldn’t have admitted the violation if he had known the consequences. The motion can challenge the admission of a probation violation, the additional incarceration imposed for the violation or both.id: 28278
Updated 3/4/2024Defendant acted with reasonable diligence in filing section 1473.7 motion in less than three months after his removal to Mexico. Defendant filed a motion under Penal Code section 1473.7 to vacate a 2000 conviction based on the lack of proper immigration consequences. The law requires the court to deem the motion timely in certain circumstances, but also has a discretionary exception that permits the court to deem the motion untimely if the moving party did not act with reasonable diligence. (Section 1473.7 (b)(2).) Defendant in the present case acted with reasonable diligence in getting his motion filed in less than three months after his removal to Mexico. id: 27493
Updated 3/4/2024Defendant could properly challenge an immigration advisement error under the 2019 version of section 1473.7 even though her previous motion had been denied in 2017.Defendant was advised by her counsel in 1991 that a guilty plea to her drug-related charge “may” make her ineligible to become a U.S. Citizen. Trial counsel failed to properly advise her of the immigration consequences. She filed a motion to vacate the conviction that was denied in 2017. However, she properly brought the motion in 2019 under the revised version of Penal Code section 1473.7. There was no collateral estoppel issue since the 2019 law provides a new standard for challenging immigration errors.id: 26869
Updated 2/26/2024Section 1473.7 does not require a showing of IAC, but rather requires proof that defendant didn’t meaningfully understand the immigration consequences at the time of the plea. Penal Code section 1473.7 allows a noncitizen defendant to vacate a guilty plea if he or she did not understand the consequences of the deal before accepting it and thereafter suffered prejudice. The trial court rejected defendant’s claim finding there was no ineffective assistance of counsel. However, under section 1473.7, a defendant need not establish IAC. Rather, the defendant is entitled to relief if he or she can prove by a preponderance that he/she did not meaningfully understand the dire immigration consequences of the earlier plea.id: 26250
Updated 2/26/2024The trial court erred by denying defendant’s section 1473.7 motion as untimely and ruling on the issue without having counsel present. Defendant pled guilty to a sex offense in 2005, and was later removed following immigration proceedings. In 2017, he moved to challenge his earlier plea under the newly enacted Penal Code section 1473.7, based on the lack of advice to the immigration consequences following the plea. The trial court erroneously denied relief based on timeliness, finding his motion should have been filed after the plea. The denial was also improper where neither defendant nor counsel were present at the time the court ruled on the motion.id: 26367
Updated 2/7/2024The court erred in denying defendant’s motion to vacate under section 1473.7 where the record did not show defendant understood he would be deported as a result of his plea.The trial court erred in denying defendant’s motion to vacate his conviction under Penal Code section 1473.7 on the grounds that he had not been sufficiently advised of immigration consequences before his plea. Counsel did not recall giving immigration advisements and the plea form did not show defendant meaningfully understood he would become deportable as a result of his plea.id: 27238
Updated 2/4/2024Defendant who had been raised in the U.S. and raised a family here showed a reasonable probability that he would not have entered a plea to the charged offense if he had known it would result in mandatory deportation. The trial court erred in denying defendant’s motion to vacate his 2002 conviction under Penal Code section 1437.7. He was never properly advised that his guilty plea to a charged count of possessing meth precursors with the intent to manufacture (Health and Safety Code section 11383 (c)) would subject him to mandatory deportation. Defendant demonstrated a reasonable probability that if he had been properly advised he would not have accepted the deal as he had spent most of his life in the United States, had raised a family here and had no ties to Mexico. He advised the court of those facts near the end of the plea. He unknowingly rejected a plea offer that would not have resulted in mandatory deportation.id: 27312
Updated 2/4/2024Defendant acted with reasonable diligence in filing section 1473.7 motion less than three months after his removal to Mexico.Defendant filed a motion under Penal Code section 1473.7 to vacate a 2000 conviction based on the lack of proper advisements on immigration consequences. The law requires the court to deem the motion timely in certain circumstances, but also has a discretionary exception that permits the court to deem the motion untimely if the moving party did not act with reasonable diligence. (Section 1473.7 (b)(2).) Defendant in the present case acted with reasonable diligence in getting his motion filed in less that three months after his removal to Mexico.id: 27441
Updated 2/4/2024The trial court erred in denying defendant’s motion to vacate his plea due to inadequate advice regarding immigration consequences given his longstanding ties to the country.The trial court erred in denying defendant’s Penal Code section 1473.7 motion to vacate his earlier conviction due to the lack of effective advice regarding potential immigration consequences following the guilty plea. The record corroborated his claim that immigration consequences were his paramount concern given his deep and longstanding ties to the country.id: 27626
Updated 2/3/2024Trial counsel misadvised defendant about the consequences of his plea, and given his ties to the country, the record showed he would have risked trial to avoid deportation.The trial court erred in denying defendant’s Penal Code section 1473.7 motion to withdraw his 2017 plea and vacate the conviction. The evidence showed his attorney misadvised him regarding the immigration consequences of the plea by telling him he would not later be deported if his offense was later reduced to a misdemeanor. The error was prejudicial since his family and entire life was in the United States suggesting he would have risked trial to avoid deportation.id: 27701
Updated 2/3/2024The trial court erred in refusing to vacate the plea where trial counsel acknowledged he didn’t know the immigration consequences of the deal.The trial court erred in denying defendant’s motion to vacate his 2019 plea to three felony counts where counsel acknowledged that he didn’t know the immigration consequences of the plea, he believed he might have been able to negotiate an immigration-neutral plea, and defendant said he would have taken his chances at trial if he had known the plea would result in possible deportation.id: 27381
Updated 2/2/2024The trial court erred in denying the section 1473.7 petition where, despite the warning in the Tahl waiver, the record showed defendant did not understand the immigration consequences.The trial court erred in denying defendant’s motion to withdraw her no contest plea and vacate her convictions under Penal Code section 1473.7(a). The record showed she did not meaningfully understand the immigration consequences of her plea despite the warning in the Tahl waiver form suggesting she “must expect” her plea “will result” in deportation. The advice she was given by counsel suggested she could avoid deportation if the court didn’t impose a jail term. The fact that her husband (also involved in the crime) applied for citizenship showed she did not truly understand the law.id: 27903
Updated 2/1/2024Defendant was entitled to relief under section 1473.7 where he was advised in 2010 that his drug conviction “may have” resulted in deportation.Defendant who pled guilty in 2010 to a drug charge received insufficient advice regarding immigration consequences when he was advised that the conviction could result in deportation, not that deportation was mandatory. Following the enactment of Penal Code section 1473.7, defendant need not show that trial counsel rendered ineffective assistance in failing to properly advise him. It was sufficient that he never understood deportation was mandatory. Moreover, prejudice was established as the defendant's biographical history and contemporary communications sufficiently corroborated his claim that immigration consequences were of paramount importance to him.id: 28008
Updated 1/31/2024Defendant was not properly advised about mandatory deportation as a result of his plea and the record showed he did not understand that was a consequence.Defendant pled no contest to a domestic violence felony offense in 2014, and was sentenced to a term of 365 days in county jail. The trial court erred in denying his Penal Code section 1473.7 petition because counsel did not advise him that he was subject to mandatory deportation, did not consider the immigration consequences in plea bargain (as evidenced by the failure to try and negotiate a term of 364 days), and the evidence did not show the defendant subjectively understood the plea would subject him to mandatory deportation.id: 28035
The trial court properly granted defendant’s section 1473.7 motion after accepting defendant’s claim that he and counsel did not discuss immigration consequences before entering a guilty plea.The trial court did not err in granting defendant’s motion to vacate his 2003 conviction. The motion was made after the newly enacted Penal Code section 1473.7. Evidence supported the trial court’s finding that before the plea, counsel did not adequately discuss immigration consequences with the defendant, and that defendant did not read or understand the plea form. The court found credible, defendant’s claim that he would not have taken the deal if he had known the plea would result in deportation. The prejudice finding does not require a showing that defendant had a reasonable chance to win at trial.id: 26158
Defendant, who failed a motion under section 1473.7 to vacate his plea for lack of advice on immigration consequences was entitled to a hearing and the appointment of counsel.In 2018, while facing deportation proceedings, defendant filed a motion to vacate his earlier guilty plea pursuant to Penal Code section 1473.7 because neither counsel nor the trial court adequately advised him of the immigration consequences of the plea. The trial court erred by summarily denying the motion because defendant was entitled to a hearing. Moreover, defendant who had adequately set forth factual allegations stating a prima facie case for entitlement to relief was entitled to the appointment of counsel.id: 26221
The trial court erred in denying defendant’s motion to vacate his conviction under Penal Code section 1473.7 where counsel failed to inform him that a plea to an aggravated felony would result in his deportation.Defendant pled guilty to a charge of possessing marijuana for sale under Health and Safety Code section 11359. At the time of the plea, trial counsel advised him that the charge “could” subject him to deportation and that it might help if he could get the charge later reduced to a misdemeanor and expunged. Defendant misunderstood the immigration consequences of pleading guilty to the aggravated felony. The record shows he would not have entered the plea had he known it would have rendered him deportable. The trial court erred in denying his motion to vacate the judgment under section 1473.7.id: 26102
Defendant’s plea to possessing meth for sale was vacated where trial counsel failed to advise her re mandatory deportation.Defendant’s conviction for possessing methamphetamine for the purpose of sale in violation of Health and Safety Code section 11378 was vacated where the record showed both that her appointed counsel failed to advise her before pleading guilty that the plea would subject her to mandatory deportation, and that she would not have entered the plea if she had been so advised.id: 26119
The trial court erred by finding defendant could not file a section 1437.7 motion to vacate based on the lack of advice regarding immigration consequences, unless he faced removal proceedings.Defendant was convicted of a drug offense, served his sentence, voluntarily left the country and then returned. In 2017, he filed a motion to vacate his conviction under the newly enacted Penal Code section 1437.7 as part of his effort to obtain a “U Visa.” The court erred by denying his motion based on its interpretation of section 1437, (b) which the court wrongly found limits the new provision to circumstances where removal proceedings have been initiated or completed. id: 25800
The trial court erred by denying defendant’s section 1473.7 motion to vacate a plea where defense counsel failed to advise defendant that the conviction would result in deportation.Defendant moved to vacate a 1989 conviction by guilty plea under Penal Code section 1473.7. Trial counsel failed to advise the defendant that a guilty plea would result in deportation, and counsel believed he had no obligation to research immigration consequences before the plea because they were “collateral.” The error was prejudicial where the declarations showed it was reasonably probably that counsel wouldn’t have pled guilty had he known of the immigration consequences.id: 25649
Receipt of the advisement that a conviction “may” have immigration consequences does not bar a noncitizen from seeking to withdraw a guilty plea on grounds of mistake or ignorance.Receipt of the standard statutory advisement that a criminal conviction “may” have adverse immigration consequences (Penal Code section 1016.5) does not categorically bar a noncitizen from withdrawing a guilty plea on that basis. A trial court should consider all relevant factors to determine whether the defendant has established good cause to withdraw a plea. id: 25174
The trial court erred in denying defendant’s motion to withdraw a plea for lack of advice on immigration consequences based on his failure to show prejudice. The trial court abused its discretion by denying defendant’s motion to withdraw a guilty plea due to the failure to properly advise him of the immigration consequences of the plea. (Penal Code section 1016.5.) The court found the defendant failed to show prejudice because his declaration was not precise. However, since he would have received probation whether he entered a plea or went to trial, the only reasonable inference was that he would not have pled guilty if he had known it would threaten his permanent resident status. The matter was remanded to resolve whether defendant made the required showing of reasonable diligence.id: 24463
The trial court used the wrong test for prejudice in denying defendant’s motion to withdraw his guilty plea due to the lack of advice as required by section 1016.5.The trial court erred by denying defendant’s motion to withdraw the guilty plea due to the lack of an advisement of immigration consequences as required by Penal Code section 1016.5 because it found there was no reasonable probability he would have obtained a better result by rejecting the plea bargain. That was not the correct test to establish prejudice and relief is available if the defendant establishes he or she would have rejected the deal to accept or attempt to negotiate another if properly advised.id: 23297
Defendant was not estopped from challenging as part of an agreed upon sentence, an enhancement which was not charged and he did not admit.Defendant pled guilty to six of 24 charged counts in return for a specific sentence to which he agreed was based on an enhancement (robbery in concert) that was never charged and which he did not admit. Contrary to the Attorney General’s claim, defendant was not estopped from challenging the deal in that he benefitted from the plea bargain. The Court of Appeal used its authority under Penal Code section 1260 to reduce the sentence.id: 22320
Advice on immigration consequences given by the trial court at the arraignment several weeks before the taking of the plea did not comply with section 1016.5. The trial court is required under Penal Code section 1016.5 to provide a noncitizen advice regarding the immigration consequences before taking a guilty plea. The advice must be provided during the actual taking of the plea, and the trial court did not comply with the provision by giving the required advice at the arraignment several weeks before defendant entered the plea.id: 20633
Record did not support superior court finding that defendant failed to exercise due diligence in moving to vacate his earlier guilty pleas for lack of advice on immigration consequences.Defendant, a citizen of Israel, pled guilty to two counts of drug possession in 1985. The record does not indicate whether he was advised of the immigration consequences of the pleas. In 1987, after successfully completing probation, his convictions were expunged under Penal Code section 1203.4. Defendant was deported to Israel in 1998. He then moved to vacate his 1985 convictions for lack of advice regarding the immigration consequences. The superior court concluded defendant had not exercised due diligence in moving to vacate the convictions. The ruling was reversed since the present record contained no indication of an unreasonable delay and strongly supported defendant's explanation for the timing of his motions. The case was remanded for a new hearing on the issue.id: 17563
Habeas corpus was available to a person challenging a prior conviction before deportation even though his sentence had expired. Defendant was facing deportation based upon a 1989 conviction for which his sentence had expired. He sought to vacate the conviction claiming his trial counsel had not properly advised him regarding immigration consequences. He appealed the denial of his petition for writ of error coram nobis. However, because ineffective assistance of counsel is a legal rather than factual error, the claim is not cognizable in coram nobis. However, habeas corpus is available even though he was no longer in custody because he was suffering a present restraint of his liberty solely on account of the earlier conviction.id: 19490
Guilty plea was vacated where the trial court did not specifically advise defendant of all possible immigration consequences.Penal Code section 1016.5, subdivision (a), requires the trial court to advise defendants prior to a guilty plea of the possibility of deportation, the possibility of exclusion, or denial of naturalization. Subdivision (b) of the same provision provides the failure to properly advise requires the judgment be vacated. The trial judge in the instant case spoke of the possibility of deportation and the denial of citizenship, but did not speak of exclusion. The advisement was therefore defective and the judgment was vacated.id: 15711
Misadvice regarding immigration consequences of a guilty plea may constitute ineffective assistance of counsel but, to reverse a judgment, defendant must also show he would not have entered the plea if properly advised.Defendant was a permanent resident (not a citizen) of the United States. He pled guilty to narcotics possession which, under the law, required deportation. Prior to the plea, he informed counsel that he wished to protect his permanent residency status. Counsel may have misadvised him that the guilty plea would not result in adverse immigration consequences (despite the contrary wording on the change of plea form and oral advice at the change of plea hearing regarding possible adverse consequences.) Affirmative misadvice regarding immigration consequences may, depending on the circumstances of the case, constitute the ineffective assistance of counsel. However, the defendant did not demonstrate prejudice by establishing that he would have gone to trial had counsel not misadvised him about the immigration consequences of the plea.id: 14943
The denial of defendant's motion to vacate a plea for lack of advice regarding immigration consequences is an appealable order.Penal Code section 1016.5 requires that before accepting a guilty plea the trial court must properly advise a defendant as to the immigration consequences of the plea. The statute allows the defendant to move to vacate the judgment if the trial court fails to give the required advisements. The defendant may appeal from the trial court's denial of his section 1016.5 motion to vacate.id: 16960
Updated 3/7/2024Defendant who was on parole was not eligible for relief under section 1473.7. Defendant moved to invalidate his earlier guilty plea under Penal Code section 1473.7, claiming that while trial counsel advised him of the immigration consequences of his plea he rendered ineffective assistance in failing to try the case, investigate facts or negotiate an immigration-neutral disposition. However, defendant was on parole and not eligible for relief under section 1473.7. Moreover, he failed to offer sufficient evidence to support his claim of ineffective assistance of counsel or resulting prejudice.id: 26290
Updated 3/6/2024Counsel’s failure to advise defendant of the certainty of deportation before the plea did not constitute ineffective assistance or violate section 1473.7 where the client was motivated to enter the plea by drug treatment and not immigration consequences.Defense counsel erred by failing to instruct defendant that the guilty plea would result in deportation. The error was not prejudicial and did not violate Penal Code section 1473.7 because the evidence showed defendant was motivated to enter the plea in order to get drug treatment, not by immigration consequences. The evidence therefore did not show that but for the alleged error he would not have entered the plea.id: 26572
Updated 3/6/2024The imposition of a putatively impossible condition of probation did not render defendant’s plea legally invalid under section 1473.7. Defendant filed a motion to vacate an older plea pursuant to Penal Code section 1473.7, based on the lack of proper advice regarding immigration consequences of the plea. He argued the conviction was legally invalid because it contained conditions that were impossible for him to meet. Specifically, it required him to complete the Residential Substance Abuse Treatment program but his conviction initiated an immigration hold that made it impossible for him to be admitted to RSAT. However, the impossible condition had no effect on defendant’s understanding of the plea, and even if none of the parties understood the problem, it did not render the plea invalid under section 1473.7.id: 26573
Updated 2/26/2024Defendant had no right to a Wende review following the denial of his motion to vacate under section 1473.7.A defendant has no right to Wende review by the court following the denial of his motion to vacate the judgment under Penal Code section1473.7.id: 27212
Updated 2/22/2024The trial court properly denied defendant’s section 1473.7 motion where his misdemeanor receiving stolen property conviction would not subject him to immigration consequences.Defendant filed a motion under Penal Code section 1473.7 to vacate a misdemeanor conviction due to the lack of advice on immigration consequences. The motion was properly denied where he failed to show the conviction for receiving stolen property would subject him to immigration consequences since it was not an aggravated felony or a crime involving moral turpitude.id: 28103
Updated 2/7/2024The trial court did not err in denying defendant’s section 1016.5 motion where he declared that he hadn’t received an admonition regarding immigration consequences but the change of plea form showed he had.In 2018, defendant moved to vacate the judgment under Penal Code section 1016.5 claiming that he was inadequately admonished about the immigration consequences. He signed the declaration saying he wasn’t admonished but the change of plea form showed he initialed the boxes showing he received the warnings. The trial court did not err by discrediting his declaration in the face of contemporaneous evidence showing he did understand.id: 27148
Updated 2/4/2024The trial court properly denied defendant’s section 1473.7 petition since counsel in 1989 was not required to research immigration consequences of a plea.In 2019, defendant filed a motion to vacate his 1989 conviction for possession of cocaine for sale. He filed the motion under Penal Code section 1473.7, arguing that he did not understand in 1989 that the conviction could result in mandatory removal. However, in 1989 defense counsel was not required to research immigration consequences. Moreover, counsel did not err in failing to negotiate for an immigration-neutral offense at the time where there was no evidence in the record indicating the prosecutor would have offered such an option.id: 27338
Updated 2/3/2024The trial court did not err in rejecting defendant’s Penal Code section 1473.7 motion to vacate where he merely alleged he would not have taken the deal if properly advised, but there was no evidence an immigration-neutral deal was possible. The trial did not err in denying defendant’s motion to vacate a judgment due to the lack of proper advisements regarding immigration consequences. While the plea form was inadequate for suggesting a plea “may” result in deportation, defendant failed to show prejudice - that he would have rejected the deal if properly advised. His statement in the declaration saying that was not sufficient. There was no indication in the record that the prosecutor would have offered, or the court would have accepted, an immigration-neutral alternative charge. And defendant had only been in the country for four and one-half years, having come at age 18, and so his ties were not compelling.id: 27524
Updated 2/3/2024The inability to sponsor people for citizenship on a visa was not an adverse immigration consequence for purposes of section 1473.7.Defendant moved under Penal Code section 1473.7 to withdraw his earlier plea claiming that he was unable to understand, accept, or defend against the adverse immigration consequences of his plea. However, he was properly advised of his relevant immigration consequences and the court was under no duty to advise that his future potential ability to sponsor people for citizenship or a visa may be affected by the plea.id: 27544
Updated 2/3/2024After vacating defendant’s conviction under section 1473.7, the court was not required to dismiss the underlying charge.Defendant successfully moved under Penal Code section 1473.7 to vacate his conviction and withdraw his no contest plea based on his failure to understand the immigration consequences of his plea. The trial court did not err in refusing to dismiss the underlying criminal complaint.id: 27719
Updated 2/3/2024Trial court erred in denying the section 1473.7 motion where defendant did not likely know that removal was required after his plea to robbery.The trial court erred in denying defendant’s petition to vacate an old plea for lack of advice on immigration consequences under Penal Code section 1473.7. The record showed he did not understand the plea and conviction would subject him to mandatory removal. He was a lawful permanent resident who had never been charged with a crime where he would have learned about immigration consequences. His lawyer never asked about his immigration status and did not mention that the robbery was an aggravated felony under the immigration laws. It is reasonably probable defendant would not have entered the plea if he understood the immigration consequences.id: 27571
Updated 2/1/2024Defendant should have filed his motion to withdraw his plea under section 1473.7 in the county where he was prosecuted and sentenced.Penal Code section 1203.9, which allows “full jurisdiction” to be transferred on motion by the probationer, does not permit a probationer (or former probationer) to file a motion to withdraw a plea under section 1473.7, in the county of supervision as opposed to the county of conviction.id: 27905
Updated 2/1/2024The trial court did not err in denying defendant’s section 1473.7 motion after finding his declaration was self-serving and not credible.The trial court did not err in denying defendant’s Penal Code section 1473.7 motion to vacate his plea due to the lack of advice as to the immigration consequences. His declaration was self-serving and not credible. Under his circumstances as a temporary resident there is little chance that he did not believe a robbery conviction would affect his deportation status. Moreover, the evidence of the robbery was very strong, and he would have had little chance for a better result at trial.id: 27937
Updated 2/1/2024Defendant’s post-plea comments that he couldn't see his life in Mexico showed that he understood that his plea would result in deportation.Following defendant's guilty plea to drug sales in 2012, he made comments about having to live in Mexico. The trial court did not err in denying his motion to vacate the plea on the ground that he did not meaningfully understand the immigration consequences of his plea under Penal Code section 1473.7.id: 28018
Trial counsel’s advice on immigration consequences before the 2005 plea was accurate, and defendant showed no immigration-neutral disposition to which the prosecutor may have agreed.Defendant moved to withdraw his 2005 no contest plea to a drug offense under Penal Code section 1473.7 claiming trial counsel failed to advise him of the immigration consequences of the plea and failed to negotiate an immigration-neutral disposition. The motion was timely under the new provision. However, defendant failed to show trial counsel’s performance was deficient where he advised defendant the plea could result in deportation, and defendant did not identify any immigration-neutral disposistion to which the prosecutor was likely to agree.id: 25757
The section 1473.7 petition was properly denied where the defendant could not show that if she had properly understood the immigration consequences she would have rejected the plea and gone to trial. Defendant moved to vacate her conviction under Penal Code section 1473.7. She argued her trial counsel failed to properly advise her of the immigration consequences of her plea and the erroneous advisement damaged her ability to understand the consequences. However, the petition was properly denied where defendant could not show prejudice as the evidence of guilt was exceedingly strong suggesting she could not have rejected it if she understood the consequences, and there was no evidence to support the assertion about plea consequences was of primary importance to her.id: 26251
Section 1473.7 relief based on the lack of advice regarding immigration consequences does not apply to a probation violation admission. Defendant filed a motion under Penal Code section 1473.7 seeking to vacate his sentence claiming that he did not understand the immigration consequences of his probation violation admission. However, section 1473.7 applies where a defendant lacks such understanding prior to a guilty plea or no contest plea. Counsel did not render ineffective assistance in failing to provide the immigration consequences as defendant had been properly advised of the consequences at the time he entered the original guilty plea. No authority requires that the court remind a defendant of such consequences in a revocation proceeding. Moreover, the record did not show the prosecution at the time of the plea would have supported a more favorable sentence.id: 25863
The trial court did not err in denying defendant’s section 1473.7 motion where the record shows counsel informed the defendant that his plea would result in deportation.Defendant argued the trial court erred in denying his motion to vacate a conviction under newly enacted Penal Code section 1473.7. The motion was based on trial counsel’s failure to adequately advise him of the immigration consequences of his plea and the failure to seek an immigration-safe alternative disposition. However, the evidence showed that counsel twice told defendant he would be deported if he pled guilty. Counsel was not required in 2000 to further advise the plea would also result in exclusion, and counsel had no obligation to negotiate a more immigration-favorable deal. There is also no indication in the record that defendant ever asked counsel about immigration consequences.id: 25875
Defendant’s section 1473.7 motion was properly denied where the record showed the trial court correctly advised him of the immigration consequences of his plea.Defendant filed a motion pursuant to Penal Code section 1473.7 to withdraw his plea to a drug offense and vacate the conviction on the ground that he was not informed of the immigration consequences of his plea. Specifically, he claimed that trial counsel failed to advise him of the precise consequences of the plea. However, defendant was clearly advised of the deportation consequences by the trial judge who took the plea, and defendant acknowledged that he understood. The only evidence of trial counsel’s alleged failure was defendant’s self-serving statement that was not supported in the record. Moreover, there was no evidence, just speculation, that an “immigration safe” plea could have been negotiated and no evidence the prosecution would have agreed to such a plea.id: 25850
Trial counsel’s failure to advise defendant of the immigration consequences before his 1998 plea did not constitute ineffective assistance and so defendant was not entitled to relief under newly enacted section 1473.7.Penal Code section 1473.7, which became effective on January 1, 2017, provides that a person can move to vacate a guilty plea based on a failure to understand the immigration consequences at the time of the plea agreement. A defendant making such a claim must demonstrate prejudicial error. Defendant’s trial counsel’s failure to advise him of the immigration consequences of his plea did not constitute deficient professional performance under the then - contemporary standard, and so defendant failed to show that he suffered any legally cognizable prejudice from the alleged deficient performanceid: 25512
The trial court did not err in denying defendant’s section 1473.7 petition where the change of plea form showed a translator read the immigration consequences before defendant entered the plea.Penal Code section 1473.7 allows a person no longer in custody to vacate a conviction based on his or her failure to understand the potential immigration consequences at the time of a guilty plea. The provision became effective on January 1, 2017, and can be applied retroactively. The present petition was also timely where it was filed seven weeks after the effective date. However, the petitioner was properly denied where the change of plea form established that defendant had an interpreter who explained the immigration consequences at the time of the plea.id: 25493
The trial court properly advised defendant of the immigration consequences of his nolo contendere plea under section 1016.5 and was not required to further explain he would be denied special forms of removal relief.Defendant was correctly advised of the immigration consequences of his nolo contendere plea. Before entering the plea, he was twice advised of the immigration consequences described in Penal Code section 1016.5, subd.(a). The trial court was not further required to advise defendant the plea would result in the denial of special forms of removal relief such as asylum.id: 24704
Modified advisement regarding immigration consequences was not improper given the defendant’s background and obvious knowledge that the plea would result in deportation. Defendant argued the trial court failed to properly advise her of the immigration consequences of her plea because the advisement slightly modified the language of Penal Code section 1016.5. However, given defendant’s criminal history, the record made when she entered into the negotiated plea, and the fact that she voluntarily returned to Mexico to avoid criminal prosecution in 2009, her claim of unawareness of deportation was disingenuous.id: 24464
When immigration consequence advisements don’t appear on the record the prosecution must prove by a preponderance of the evidence that they were given.When proof of the required immigration advisements prior to a guilty plea are not adequately shown in the record, the prosecution must prove by a preponderance of the evidence that the advisements were given. Moreover, a certificate of probable cause is not required to appeal a trial court’s order denying a motion to vacate a conviction under Penal Code section 1016.5.id: 23546
There were no avenues for relief available to the defendant who pled guilty to a gun offense in 2005, was no longer on probation, and later claimed trial counsel failed to advise him of the immigration consequences.In 2005, defendant pled guilty to an offense involving firearm possession and then completed his custody and probation terms, but was facing deportation. He filed a motion to vacate the conviction and withdraw the plea because his trial counsel never advised him of the immigration consequences of the plea. But the court could not give defendant any relief. He was not entitled to habeas corpus relief because he was no longer in custody. He was not entitled to coram nobis relief because the new facts alleged here (counsel’s failure to advise) would not have prevented rendition of judgment, and he was not entitled to relief under Penal Code section 1016.5 because the court provided the statutory advisement. He could not otherwise allege ineffective assistance at this time.id: 23625
Defendant seeking to withdraw a plea due to the lack of advice from counsel on immigration consequences could not seek relief under coram nobis or habeas corpus.Trial counsel failed to admonish defendant about the immigration consequences that would follow his guilty pleas. The trial court erred by granting defendant’s later motion to vacate the judgment. Coram nobis is not a proper vehicle to vacate or withdraw a plea based on the ineffective assistance of counsel. Habeas corpus was also unavailable where defendant was no longer in custody, he could not show the probability of a better result absent the plea and he failed to present the claim in a timely fashion.id: 23080
Defendant was required to obtain a certificate of probable cause when appealing the denial of a motion to vacate a plea based on counsel’s failure to give proper advice on immigration consequences.Defendant pled nolo contendere to a drug offense. He appealed from a post-judgment order denying his nonstatutory motion to vacate the judgment arguing his counsel was ineffective for misadvising him about the immigration consequences of the plea. However, the appeal was dismissed because defendant was essentially challenging the validity of his plea and failed to obtain a certificate of probable cause.id: 22863
Defendant was not entitled to a Wende review in an appeal from a postconviction proceeding.Defendant, a permanent resident, currently faces deportation following a 2007 conviction. He appealed from an order denying his motion to vacate the conviction. On appeal, his counsel filed a “no issues” brief pursuant to People v. Wende (1979) 25 Cal.3d 436. However, because this was an appeal from a postconviction proceeding, defendant was not entitled to Wende review. The appeal was dismissed. id: 22977
Defendant could not file a nonstatutory motion to dismiss a 2005 prior claiming counsel failed to advise that deportation was mandatory even though habeas corpus or error coram nobis were no longer available.In 2005, defendant pled guilty to possessing marijuana for sale and acknowledged he had been advised that deportation would be a consequence of the plea. After he completed his probation, the plea was withdrawn and the case dismissed under Penal Code section 1203.4. After pleading guilty to two offenses in another case, he filed “a nonstatutory motion to set aside” the 2005 conviction. However, the law does not provide for such a nonstatutory motion even where other remedies such as habeas corpus or coram nobis are no longer available.id: 22713
The trial court did not err in finding defendant had been advised of immigration consequences before a 1986 plea where the judge testified he always gave the advice.Defendant sought to vacate a 1986 guilty plea arguing he was not properly advised of the immigration consequences. First, defendant was not required to obtain a certificate of probable cause to appeal the denial of his motion. Next, substantial evidence supports the finding that the advisements were given despite the lack of a reporter’s transcript from the plea hearing or the lack of a notation regarding an advisement in the minute order. The judge from the 1986 plea hearing testified that he always gave the advice and recited his standard statement. Finally, defendant was wrong in arguing that the Penal Code section 1016.5 advisement need be given by the court rather than the prosecutor.id: 22508
The trial court lacked the authority under section 1016.5, coram nobis, or as a matter of equity to grant the request to withdraw defendant’s guilty plea in a case that would result in his deportation.Defendant became a naturalized citizen on October 4th of 1989. That day he filed a form saying he had not committed any crimes since he filed his petition for citizenship. He later pled guilty to 10 counts of child molest including two incidents that occurred before his naturalization date. The trial court later erroneously granted his motion to withdraw the guilty plea. Whether defendant’s motion was construed as a motion for relief under Penal Code section 1016.5, a petition for writ of error coram nobis, or a motion requesting equitable relief based on the court’s inherent power to provide such relief, the defendant failed to cite any legal authority supporting the court’s order.id: 22393
Defendant was required to obtain a certificate of probable cause to appeal the denial of a motion to vacate the judgment following a plea.Defendant argued that because he was inadequately advised of the immigration consequences of his plea, the trial court erred in denying his motion to vacate the judgment. However, the motion to vacate was an attack on the validity of the plea, and an appeal from the denial of the motion required him to obtain a certificate of probable cause. The appeal was dismissed. id: 22145
The section 1016.5 warning given by the court adequately advised defendant of his immigration consequences and defendant could not argue IAC along with that claim. Defendant argued the Penal Code section 1016.5 advisement regarding deportation at the plea hearing was ineffective to convey the message. However, the statute adequately describes the immigration consequences and it was properly read by the trial court at the time of the plea. Moreover, in his motion to vacate for a defective advisement, he could not claim ineffective assistance of counsel based upon his attorney’s lack of warnings on the subject.id: 21289
Defendant seeking to vacate an earlier conviction prior to deportation based on the lack of adequate advisement regarding immigration consequences was ineligible for a writ of error coram nobis on the facts of his case.Defendant who was facing removal by federal immigration authorities because of an earlier conviction petitioned for a writ of error coram nobis in the trial court seeking to vacate the underlying conviction. However, he was ineligible for a writ of error coram nobis because the petition was not diligently filed, defendant failed to avail himself of the adequate legal remedy of habeas corpus, and the petition was successive and raised piecemeal claims. Moreover, defendant failed to state a case for relief on the merits because he alleged no mistake of fact which, had it been known at the time of the plea, would have prevented rendition of judgment. The court refused to expand the boundaries of the writ of error coram nobis.id: 20848
The trial court lacked jurisdiction to address a claim of ineffective assistance of counsel in the context of a section 1016.5 motion regarding lack of advice as to immigration consequences.Penal Code section 1016.5 allows a court to vacate a conviction only if the trial court has failed to advise the defendant of potential adverse immigration consequences at the time of the plea. The statutory motion cannot be used to assert defense counsel's failure to provide effective representation relating to immigration consequences.id: 20081
An appeal did not lie where defendant's motion in superior court was in the nature of a habeas corpus petition despite his later claim that he sought coram nobis relief.A defendant may not appeal the denial of a petition for writ of habeas corpus. Defendant argued his petition in superior court was a hybrid containing elements of both a habeas corpus petition and a petition for writ of error coram nobis, which is appealable. The fact issue involved the ineffective assistance of counsel for failing to advise of immigration consequences which is properly addressed by habeas corpus. However, he argued coram nobis was the appropriate vehicle for inquiry into the defendant's ignorance of the consequences of his plea. Notwithstanding defendant's claim, his petition in the superior court rested entirely on the ineffectiveness of counsel. He may not later transform the lower court proceedings in order to accommodate his possible appeal rights.id: 16320
Clerk's transcript and judge's testimony provided the required "record" that a defendant be advised of the immigration consequences prior to a plea, and a certified reporter's transcript was not required.Defendant argued the trial court failed to advise him of the immigration consequences of his nolo contendere plea as mandated by Penal Code section 1016.5. The statute provides that absent a record that the advisements were given, the defendant is presumed not to have received them. Defendant argued there was no "record" because there was no reporter's transcript and the court reporter's notes had been destroyed as a matter of course, after 10 years. However, the "record" for purposes of section 1016.5 does not require the certified reporter's transcript. The minute order in the present case referred to the required advisement, and the trial judge testified it was his practice to properly advise defendants prior to the plea. This was sufficient to meet the "record" requirement.id: 14941
Court erred in reducing a 1994 sentence by one day nunc pro tunc in order to avoid deportation.In 1994 defendant pled guilty to drunk driving with three prior convictions. As a condition of probation, he was required to serve 365 days in local custody. In April of 2000, after he had served his 365 days and his probation expired, he filed a motion to reduce his sentence nunc pro tunc to 364 days. He argued he had not been fully advised of the immigration consequences at the time he entered the plea. The trial court erred in modifying the sentence to 364 days nunc pro tunc to the date of the original sentence in order to avoid deportation. The case did not involve a clerical error and the nunc pro tunc order cannot be used in order to change a sentence. Since the order was in excess of the trial court's jurisdiction and affected substantial rights, the order was appealable by the prosecution.id: 16638
Defendant's challenge to the failure of the trial court to advise him of the immigration consequences prior to the plea should have been raised under section 1016.5 rather than the nonstatutory petition for writ of error coram nobis.Defendant filed a petition for a writ of error coram nobis to vacate his guilty plea due to the trial court's failure to advise of the immigration consequences. The petition was properly denied because relief should have been requested under Penal Code section 1016.5, subd.(b) and not the nonstatutory petition for writ of error coram nobis brought by defendant.id: 17498
Advisement of immigration consequences prior to guilty plea substantially complied with section 1016.5 where the term "denied entry" was substituted for "excluded from the United States."Defendant moved to vacate his guilty plea after claiming the immigration consequences were not adequately explained as required by Penal Code section 1016.5. Defendant argued the advisement was defective because the prosecutor substituted the words "denied entry" for the statutory phrase "exclusion from admission to the United States." However, the advisement given substantially complied with section 1016.5. Even if the variance used in the language was improper, the error was cured by the trial court's use of the written waiver of rights form when accepting the plea. That form recited the verbatim language of section 1016.5.id: 17207
Motion to withdraw plea for lack of advice on immigration consequences was properly denied where defendant never proved he was subject of such consequences.Defendant pled guilty to a burglary in 1999 without being advised of the possible adverse immigration consequences as required by Penal Code section 1016.5. In 1998, he moved to withdraw the guilty plea on that basis. However, because defendant failed to prove that he was not a citizen of the United States, there was no showing that he was likely to be deported or suffer other adverse immigration consequences. The court did not abuse its discretion in denying the motion to withdraw the plea.id: 15712
Verbal advisement of immigration consequences is not required if the defendant reviewed and understood the advisements on the change of plea form.The list of immigration consequences in the change of plea form contains all components of an adequate warning of the consequences for a noncitizen of pleading guilty to a felony offense. Contrary to defendant's argument, Penal Code section 1016.5 does not require a verbal advisement. The defendant signed the change of plea form. He told the court he had reviewed the form with counsel and that he understood the advisements discussed and the rights ultimately waived. Nothing more was required.id: 15714
Trial court erred in failing to require that defendant demonstrate prejudice in connection with his motion to withdraw a guilty plea for lack of advisements regarding immigration consequences.The trial court permitted the defendant to withdraw his 1992 guilty plea based on the lack of full advisements by the court as to the immigration consequences of the plea under Penal Code section 1016.5, subd.(a). Specifically, he was not advised of the possibility of deportation. However, the court erred in granting the motion under section 1016.5 without a showing by defendant that if he had been properly advised, he would not have entered a plea in the first place.id: 15706
Slow plea is not a guilty plea under Section 1016.5 and a defendant need not be advised of immigration consequences.Penal Code section 1016.5 requires that a defendant be advised of immigration consequences including deportation possibilities prior to accepting a guilty plea. However, section 1016.5 does not apply to a slow plea where the cause is submitted on the stipulated facts from the preliminary hearing evidence.id: 11581
Magistrate need not orally detail the immigration consequences of the plea where he or she reasonably concludes the defendant is fully aware of such consequences.Penal Code section 1016.5 mandates that criminal courts, before accepting a plea of guilty or nolo contendere to most crimes, advise the defendant of the consequences a conviction may have on a person who is not a citizen of the United States. The statute may be satisfied by an advisement which is contained in a written plea form executed by the defendant but is not given orally by the magistrate where the court reasonably concludes the defendant was informed of the potential immigration consequences of the plea.id: 11563
Trial court did not abuse its discretion in denying the motion to vacate a no contest plea seven years later where defendant may not have been advised of the immigration consequences of his plea.In 1987 defendant pled no contest to drunk driving and was sentenced to two years in prison. Seven years later he moved to vacate the judgment of conviction pursuant to Penal Code section 1016.5 on the ground that he was not advised of the possible immigration consequences of his plea. However, a motion to vacate the judgment under section 1016.5 must be supported by a showing, at a minimum, 1) that at the time of the plea defendant was not aware of the immigration consequences, 2) that he would not have pled guilty had he known of the consequences, and 3) that his motion was brought with reasonable diligence upon discovery of the true facts. The trial court did not abuse its discretion in denying the motion where defendant failed to make the showing as to any of these elements.id: 11574
About Pat Ford
Pat Ford is a criminal defense lawyer in San Diego who works on appeals in some of the most difficult cases around the state. He has a great record for success and integrity. Pat has also published a criminal case law digest since 1984 that's used by judges and lawyers around the state. He also speaks and writes articles for criminal lawyers as well as consumers interested in the law. The consumer-related articles are intended to be informative but do not constitute legal advice.
Case of the Day
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Exclusion of 18-25 year-olds from the youthful offender provisions of section 3051 did not violate equal protection. Penal Code section 3051 establishes a parole eligibility hearing for juveniles convicted of special circumstance murder and sentenced to life without the possibility of parole. Excluding persons 18-25 from the youthful offender parole hearing provision did not violate equal protection principles.id: 27245