The California Court of Appeals, Fifth District, has confirmed that Penal Code section 1473.7 permits vacatur of jury verdicts and probation violations.
“First, to align the state statute with federal immigration law, we interpret the word ‘sentence’ used in section 1473.7, subdivision (a)(1) to encompass the entire ‘term of imprisonment,’ as that phrase is used in the INA. Thus, a section 1473.7 motion may be based on the defendant’s failure to meaningfully misunderstand or defend against the ‘actual or potential adverse immigration consequences of’ the additional incarceration imposed for a probation violation.
Second, we address how a defendant may establish his or her error was ‘prejudicial’ for purposes of section 1473.7, subdivision (a)(1) when adverse immigration consequences are caused by the admission of a probation violation and the incarceration imposed for that violation. In that context, prejudice may be established by demonstrating that, had the defendant been aware of the immigration consequences, (1) there is a reasonable probability he or she would not have admitted the probation violation or (2) there is a reasonable probability that an immigration-neutral punishment would have been available and obtained by the defendant. For example, a defendant might be able to ‘defend against’ the additional incarceration imposed for a probation violation and obtain an immigration-neutral punishment by waiving time credits from his earlier incarceration.
Third, on the question of the relief available under section 1473.7, subdivision (a)(1), we interpret the statute as authorizing an order vacating (1) the initial conviction, (2) the sentence imposed for the initial conviction, (3) a subsequent admission of a probation violation, (4) the additional incarceration imposed for a probation violation, or (5) some combination of the foregoing. As explained below, a motion could challenge the admission of the probation violation, the additional incarceration imposed for the violation, or both.”
The court also provided a comprehensive list of details helpful to include in a declaration by the moving party. “Personal details addressed in a robust declaration include, without limitation, (1) the movant’s age upon arrival in the United States; (2) the identity of the persons with whom the movant came to the United States; (3) the persons with whom the movant lived upon arrival; (4) the movant’s immigration status and language abilities; (5) where the movant’s grandparents, parents, siblings, and other relatives live and their immigration status; (6) the movant’s marital status and, details about any spouse; (7) the ages and citizenship of any children and grandchildren; (8) the schools, if any, the movant attended in the United States; (9) the movant’s employment history; (10) the movant’s history of paying state and federal income taxes and property taxes; (11) persons for whom the movant acts as the primary care giver; (12) real property owned by the movant or the movant’s parents; (13) connections or lack of connections to the movant’s country of origin; (14) community involvement; (15) the movant’s or family members’ military service; and (16) the movant’s pre-plea and post-plea experience with the criminal justice system.”
The court also noted the credibility of a statement by defense counsel that he did not recall discussing immigration consequences when the defendant, when the conviction occurred well before the Supreme Court’s decision in Padilla v. Kentucky. Other factors that corroborated the defendant’s assertion that he did not meaningfully understand the immigration consequences of his conviction were his young age at the time of trial (19), the complexity of immigration law, no 1016.5 advisement provided by the court, and his lack of prior criminal history.
The court also explored how to prove prejudice in an initial sentence when a subsequent probation violation actually caused the immigration consequences of the offense. “The idea of prejudice underlying this argument is that if the jail time imposed in 2002 had been less than 275 days, then his subsequent incarceration of 90 days for the probation violation would not have transformed Carrillo’s conviction into an aggravated felony because the total “term of imprisonment” would have been less than one year. We conclude this theory, if supported by sufficient evidence, is one way of establishing a misunderstanding of immigration consequences was prejudicial for purposes of section 1473.7, subdivision (a)(1). In particular, Carrillo’s misunderstanding would have affected his ability to ‘defend against’ the adverse immigration consequences of the ‘sentence,’ as those terms are used in section 1473.7, subdivision (a)(1).”
Finally, the court noted that the fact that a conviction may have other immigration consequences (i.e., it may be a crime involving moral turpitude even if it’s no longer an aggravated felony) does not prevent a defendant from establishing prejudice when the Department of Homeland Security is not citing that alternate ground of deportability in the Notice to Appear.
The full text of People v. Carrillo can be found here: