The First Appellate District has determined that section 1473.7 of the California Penal Code does not provide a mechanism by which to vacate a probation violation. In addition, the court expressed skepticism as to whether a trial court must advise a defendant of the potential immigration consequences of a probation violation.
“Appellant, furthermore, is not basing his section 1473.7 motion on the contention he did not understand the immigration consequences of a guilty plea or no contest plea. His motion challenged he did not understand the immigration consequences of his probation violation admission. This aspect of criminal proceedings is not covered by section 1473.7 and a literal reading of the statute itself. When there is no ambiguity to the statute in issue, the plain meaning governs.”
“Regarding the issue of ineffective assistance in the probation hearing, appellant maintains now that his trial attorney was ‘unaware that the new sentence on the probation violation rendered the conviction an aggravated felony’ for immigration purposes. Missing from this record is any declaration by his trial attorney confirming she lacked this information, or that appellant’s attorney did not consider alternatives in the disposition. Additionally, there is no evidence to suggest the prosecution, and/or the trial court, would approve any leniency in this revocation proceeding. The remarks by the trial court support the point the hearing judge would not have approved an alternative, less punitive option.”
“Additionally, there is no authority provided that requires a trial court in a probation hearing to remind a person again of the immigration consequences in a revocation proceeding. Nor is there authority the failure to discuss immigration consequences with a defendant previously advised falls below professional standards. Appellant was fully advised in 2014 and provides no information he was not aware of possible adversities to his immigration status when he was before the trial court on this probation violation. Under section 1016.5, admonition regarding immigration status is only necessary when the accused is entering a plea to a violation of state law. That happened here. There is no statutory duty to readvise when the subject is before the court on a probation matter.”
“An allegation that trial counsel failed to properly advise a defendant is meaningless unless there is objective corroborating evidence supporting appellant’s claimed failures. “We have no such evidence presented. There is no declaration of improper advice by trial counsel; the transcript of court proceedings reflects trial counsel and the court were aware of immigration issues during the plea process. Even the declaration by attorney Todd submitted during the hearing on the section 1473.7 hearing finds no statutory or constitutional missteps by trial counsel during the proceedings.”
The full text of People v. Cruz Lopez can be found here:
http://www.courts.ca.gov/opinions/documents/A152348.PDF
Finally, the court found that a motion under 1473.7 was not appropriate, as the defendant was still on probation for the case in which he was trying to vacate the probation violation.