CA Appellate Court Finds 1473.7 does not Apply to Sentence Deferral Program

The Appellate Division of the Superior Court has determined that defendants who take advantage of the Sentence Deferral Program cannot later seek relief under Penal Code section 1473.7.

“The threshold question in deciding the propriety of the trial court’s ruling is whether defendant had a conviction or sentence when he made his motion. Defendant was never sentenced so we turn to whether he sustained a conviction within the meaning of section 1473.7, subdivision (a). Under well-settled law, defendant sustained a conviction when the trial court accepted and entered his plea of no contest.3 Nonetheless, section 1473.7 relief was inapplicable because, at the time the motion was litigated, defendant’s plea (or “conviction”) no longer existed. In other words, there was no conviction to ‘vacate.’”

“While the surviving ramifications for the defendant who secures a section 1203.4 dismissal are indicative of a conviction, the same cannot be said for a dismissal under the Sentence Deferral Program. The only exception to complete nullification of the defendant’s criminal proceeding upon dismissal pursuant to the Sentence Deferral Program is (a) the Department of Justice may disclose the arrest ‘in response to a peace officer application request’ and (b) successful completion of the Sentence Deferral Program ‘does not relieve [the defendant] of the obligation to disclose the arrest in response to a direct question contained in a questionnaire of application for a position as a peace officer . . . .’ In other words, the target of potential adverse consequences is strictly limited to a narrow class of defendants who seek employment as a peace officer. For all intents and purposes, the dismissal of a case pursuant to section 1001.96 renders the conviction a complete nullity. A prerequisite for section 1473.7 relief is the existence of a conviction or sentence. Defendant had neither at the time he litigated his motion; because he successfully completed section 1001.94 diversion, his plea was withdrawn, his case was dismissed, and there was no conviction to vacate. Defendant was not eligible for section 1473.7 relief.”

The full text of People v. Kuzmichey can be found here:

http://sos.metnews.com/sos.cgi?1124//JAD24-08

CA Court of Appeals, Sixth District Finds that 1473.7 does not Mandate Dismissal of Charges

The California Court of Appeals, Sixth District, has determined that Penal Code section 1473.7 does not mandate dismissal of the reinstated charges after vacatur of a plea. “Martinez’s construction of the statute, which relies almost entirely on his parsing of its legislative history, would require us to add language that does not exist, namely that a court, after granting a motion to vacate a conviction under section 1473.7, is further required to dismiss the charges underlying that (now-vacated) conviction.” In addition, a prior dismissal of the charges under Penal Code section 1203.4 does not prohibit the prosecutor from refiling the original charges after vacatur. Similarly, a pre-vacatur reduction of the charges from felonies to misdemeanors under Penal Code section 17(b) does not prevent the prosecutor from re-instating felony charges after vacatur. Finally, the court determined that double jeopardy does not prevent the re-filing of charges after vacatur because the vacatur has the effect of permitting the defendant to withdraw from the plea bargain.

The full text of Martinez v. Superior Court of Santa Clara can be found here:

http://sos.metnews.com/sos.cgi?1124//H050489

CA Ct of Appeals Addresses 1473.7 Vacatur of Jury Verdict, Probation Violation

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:

http://sos.metnews.com/sos.cgi?0324//F084751

CA Fourth Appellate District Finds that Receipt of Stolen Property Misdemeanor is not CIMT or Aggravated Felony, Reverses Vacatur

The California Court of Appeals, Fourth Appellate District, has reversed the vacatur of a misdemeanor conviction for receipt of stolen property, finding that the conviction was neither an aggravated felony nor a crime involving moral turpitude. As such, the defendant - a lawful permanent resident - had not established by a preponderance of the evidence that the conviction was causing an adverse immigration consequence.

The full text of People v. Coca can be found here:

http://sos.metnews.com/sos.cgi?1023//E079703

CA Ct. of Apps. Finds that Court is not Required to Dismiss Charges after Vacatur

The California Court of Appeals, First Appellate Division, has determined that a court is not required to dismiss charges after granting a motion to vacate under section 1473.7 of the California Penal Code.

The full text of People v. Vaca can be found here: http://sos.metnews.com/sos.cgi?0423//A164953

CA Appellate Court Finds Sufficient Error to Vacate Domestic Violence Conviction

The California Court of Appeal, Second District, has determined that a defense attorney who “probably likely” advised a client that if he reduced his felony to a misdemeanor, he could avoid mandatory deportation, provided sufficiently inaccurate advice to damage the client’s ability to meaningfully understand the immigration consequences of his plea.

The full text of People v. Villalba can be found here:

http://sos.metnews.com/sos.cgi?0323//B318353

Shoutout to Doug Jalaie for a great decision!

CA Supreme Court Discusses Prejudice Prong of Motion to Vacate

The California Supreme Court has published guidance on how to establish prejudice for a motion to vacate under section 1473.7 of the California Penal Code.

The Court started by evaluating whether Espinoza Espinoza lacked a meaningful understanding of the consequences of his plea, and looked to the fact that he traveled abroad as evidence that he did. “[H]e took an international commercial flight to the United States, which predictably required subjecting himself to the scrutiny of United States immigration officials, which is not consistent with the behavior of a person who understood that his convictions effectively ended his lawful resident status.”

Turning to prejudice, the Court noted that a totality of the circumstances analysis must be applied. “Factors particularly relevant to this inquiry include the defendant’s ties to the United States, the importance the defendant placed on avoiding deportation, the defendant’s priorities in seeking a plea bargain, and whether the defendant had reason to believe an immigration-neutral negotiated disposition was possible. Also relevant are the defendant’s probability of obtaining a more favorable outcome if he had rejected the plea, as well as the difference between the bargained-for term and the likely term if he were convicted at trial. These factors are not exhaustive, and no single type of evidence is a prerequisite to relief. A defendant must provide ‘objective evidence’ to corroborate factual assertions. Objective evidence includes facts provided by declarations, contemporaneous documentation of the defendant’s immigration concerns or interactions with counsel, and evidence of the charges the defendant faced.”

The Court acknowledged that ties to the United States are probative evidence of a defendant’s immigration priorities. Long-standing residency and strong family ties demonstrate that the prospect of deportation may be an integral (or even the most important) part of the calculus when accepting a plea. “Community ties may be established by length of residence; immigration status; lack of connection to the country of origin; connections to family, friends, or the community; work history or financial ties; or other forms of attachment. Objective evidence of a defendant’s community ties includes facts provided by a defendant’s declaration or declarations from family members, friends, colleagues, community members, or other acquaintances.”

“After Espinoza accepted the plea and served jail time, he returned home to care for his family and community. He became the caregiver for his elderly parents who suffer from severe medical conditions. He ran his own business to provide for his family. He volunteered, went to church, and took part in numerous community organizations. These facts lend credence to Espinoza’s assertion that his community ties were important to him at the time of his plea.”

“Another consideration is whether alternative, immigration-safe dispositions were available at the time of the defendant’s plea. Factors relevant to this inquiry include the defendant’s criminal record, the strength of the prosecution’s case, the seriousness of the charges or whether the crimes involved sophistication, the district attorney’s charging policies with respect to immigration consequences, and the existence of comparable offenses without immigration consequences.”

“Espinoza had no prior criminal history at the time of his plea. This fact is relevant because a defendant without an extensive criminal record may persuasively contend that the prosecutor might have been willing to offer an alternative plea without immigration consequences. Additionally, Espinoza presented evidence from an immigration attorney that there were alternatives the prosecution could have offered that would not have resulted in mandatory deportation.” “Espinoza’s lack of a criminal record, combined with the declaration of the immigration attorney, support his assertion that he had reason to expect or hope for a plea bargain without immigration consequences.”

The Court made several other valuable observations. First, a defendant is not required to have expressed contemporaneous confusion about immigration consequences at the time of the plea. Second, a defendant is not required to obtain a statement from defense counsel.

The full text of People v. Espinoza can be found here:

http://sos.metnews.com/sos.cgi?0123//S269647

CA Court of Appeals Applies Collateral Estoppel to Second Motion to Vacate

The California Court of Appeals, Fourth District has applied the doctrine of collateral estoppel to a second motion to vacate under Penal Code section 1473.7. The court noted that the appeal of the first motion applied the newer 2019 standard for relief, and the petitioner did not appeal that determination further.

The full text of People v. DeMontoy can be found here:

https://www.courts.ca.gov/opinions/documents/D079532.PDF

CA Court of Appeals Finds Counsel's Failure to Advise of Mandatory Immigration Consequences Justifies Vacatur

The California Court of Appeals has determined that a defense attorney’s failure to advise about mandatory deportation consequences justifies vacatur of the conviction.

The full text of People v. Lopez can be found here:

http://sos.metnews.com/sos.cgi?0922//B315320

CA Court of Appeals Reverses Denial of Motion to Vacate

The CA Court of Appeal has reversed the denial of a motion to vacate where defense counsel testified that she advised the defendant he would lose his residency status and the defendant signed a plea form advising him that he must expect his conviction would result in deportation, exclusion from admission, and denial of naturalization. The court noted that the defendant sent a letter requesting to withdraw his plea before sentencing, noting his fears that he could be deported. Even though he repeatedly told the judge he wanted to withdraw his plea if he was going to be deported, the judge denied his request.

Four years later, the defendant filed a motion to vacate under Penal Code 1473.7. He indicated that he had difficulty reading the plea because of cataracts, that his whole life was in the United States, and that the last time he was in Mexico, he was assaulted by the police due to his bisexuality. Although the DA agreed to allow the defendant to withdraw his plea and re-plead to a misdemeanor, the judge refused to abide by the agreement.

The court reasoned that defense counsel’s advisals were insufficient. Despite her testimony, her notes indicated that she had advised the client his immigration status would change and he would have an immigration hearing. Nonetheless, the immigration consequences of an aggravated felony (mandatory deportation) were crystal clear at the time of plea. “Counsel did not explain that Manzanilla faced mandatory deportation. Counsel’s advice was deficient for lack of specificity despite clear law establishing that Manzanilla’s removal was virtually certain.” Such advice is constitutionally deficient.

The court noted that the plea form, which described the immigration consequences in mandatory terms, did not cure this inadequate advisal. Even with the word “will,” the plea form is simply a generic advisement, not designed to substitute for accurate advice from counsel. The court noted that there was evidence other than the defendant’s testimony regarding counsel’s advice - namely, counsel’s notes and testimony.

The court found that defense counsel also failed to creatively plea bargain. “It is undisputed that counsel failed to make a counteroffer of 364 days in custody, which was more likely to be accepted by the prosecution than the more significant sentence reductions she sought of six or nine months.” “Moreover, counsel does not remember raising Manzanilla’s immigration status in plea bargaining, and her notes confirm this. Her notes and memory also confirm that she learned Manzanilla was a legal permanent resident only when they discussed the consequences of the plea, after he stated he would take it, and after her counteroffers. This suggests that counsel failed to bargain creatively with the prosecution in a manner that considered immigration consequences.”

The court further noted that the defendant was not required to affirmatively show the prosecution would have accepted 364 days. “Here, there is an indication the prosecution would reasonably accept a plea of 364 days because the prosecution’s opening offer was 365 days. The People offer no explanation as to why the prosecution would have not found a one-day reduction reasonable.”

The court determined that there was evidence the defendant did not understand the consequences of his plea. For example, he told his defense counsel it was “ok” if he was required to attend an immigration court hearing, so long as the hearing was in the United States. This statement shows that he did not understand the nature of an immigration process, which is designed to establish a non-citizen’s deportability. “If Manzanilla knew he was subject to mandatory deportation to Mexico, then his concern about the location of his immigration hearing seems irrelevant.”

The court also noted the swiftness with which the defendant brought his concerns about immigration to the attention of the criminal court. “He did not wait months or years to claim he did not realize he would be deported. He did not wait to claim he did not understand the consequences only after efforts to avoid deportation proceedings had failed. He was not making a desperate allegation to avoid the consequences of an immigration proceeding that had gone unexpectedly bad. Manzanilla advised the court at the first court hearing after entry of the plea, 21 days later, with no deportation proceeding underway, that he had not understood that deportation was a certainty.”

The full text of People v. Manzanilla can be found here:

http://sos.metnews.com/sos.cgi?0722//B313557

CA Appellate Court Grants Vacatur for Defendant Advised Only of Possibility of Immigration Consequences

The California Court of Appeals, Third Appellate District, has sustained the appeal of a defendant who was only warned of the mere possibility of immigration consequences, and who had lived in the United States with his family for decades prior to his plea.

The full text of People v. Valdivias Soto can be found here:

http://sos.metnews.com/sos.cgi?0622//C092015

CA Appellate Court Rejects Motion to Vacate for Defendant who Admitted He Knew he Would be Deported

The California Court of Appeal, Second Appellate Division, has denied a motion to vacate for a defendant who admitted he knew he would be deported when he took his plea and who initially stated his attorney didn’t ask him about his immigration status but later admitted that he did.

The full text of People v. Garcia can be found here:

http://sos.metnews.com/sos.cgi?0622//B310824

CA Ct of Appeals Affirms Denial of 1473.7 Motion for Former Temporary Resident

The California Court of Appeals, Second District, has affirmed the denial of a motion to vacate a robbery plea brought by a former temporary resident. “Diaz knew he had temporary resident status that would soon expire and an upcoming appointment to obtain permanent resident status that he would necessarily miss if incarcerated. Although he was legally in the country at the time he pleaded no contest, he knew that he would lose his legal status if he made the plea.

Even if Diaz had believed that someone legally in the country would not face deportation or other immigration consequences as he claims, he also knew that his legal status would expire and that he would not have the ability to secure it. If he believed his fate relied on his legal status, he would have understood that if he made the plea he would not be in the country legally after his temporary resident status expired and that he would potentially be subject to adverse immigration consequences.

If Diaz’s attorney had not spoken to him about immigration consequences prior to Diaz making the plea, it seems highly unlikely that Diaz would not have consulted him when Diaz was advised of the potential dangers by the District Attorney just prior to pleading no contest. Diaz was aggressive in his self advocacy at the plea hearing. He asked multiple questions, spoke directly to the court several times, and attempted to bargain directly with the court as well. Diaz persevered in his efforts to obtain what he wanted, whether it was the significant benefit of a lesser sentence or the return of $17. It is simply not believable that he would leave his immigration status to chance without discussing it with his attorney. The more logical conclusion is that Diaz did, in fact, discuss deportation with Tanaka, knew it would be nearly impossible to avoid, and decided that the slim possibility of success at trial was not worth the risk that he would serve six years in prison.

'Moreover, Diaz declared that he was processed by immigration officials prior to being imprisoned for his 1989 conviction, and that they informed him he had been convicted of a deportable offense and would lose his legal resident status (although he would not be deported despite his illegal status). Diaz did not state that he was surprised, dismayed, or that he attempted to take any action to secure his legal status at that time. His inaction is inconsistent with his claim that he did not believe he would face any adverse immigration consequences and would not accept any resolution of the charges against him if he knew that he would not have a legal right to remain in the United States.

We further conclude that Diaz has failed to show he was prejudiced—i.e. that there was a reasonable probability Diaz would have rejected the plea agreement if he had correctly understood its actual or potential immigration consequences.

In addition to Diaz’s declarations, there was contemporaneous objective evidence in his favor. Diaz had entered the country as a six-year-old child; deportation would have separated him from his mother and from the country where he had spent two-thirds of his young life. These are compelling reasons for Diaz to wish to remain in the United States legally.

We cannot conclude that they are sufficient to meet his burden when weighed against other considerations, however. There is very strong evidence that Diaz made an informed decision to accept the plea bargain that he was offered. There was no other plea offer available to Diaz, as is evident from the plea colloquy and the sentencing hearing. The court stated that the sentence it was willing to give Diaz was better than the one the District Attorney was willing to offer, and it was also the court’s ‘bottom offer. . . . It isn’t going to get any better.’ Given the facts of this case—including that Diaz was the only one of the perpetrators who wielded a deadly weapon, held a knife to the victim’s neck, and drew blood—Diaz ‘had [no] reason to believe that the charges would allow an immigration-neutral bargain that a court would accept.’”

The court further noted that it appears Diaz had a prior criminal record (including possible prison time), that he had forcefully advocated for a lesser prison term and for the return of $17 that had been in his possession at the time of his arrest, and that despite that forceful advocacy, he had made no inquiry after being advised of potential immigration consequences by the court.

The full text of People v. Diaz can be found here:

http://sos.metnews.com/sos.cgi?0322//B307726

CA Court of Appeals, Second District Affirms Denial of Motion to Vacate

The California Court of Appeals, Second Appellate District, has affirmed the denial of a motion to vacate where the defendant was orally warned (through an interpreter) that he would be deported, he signed a written waiver with the same warning (translated by an interpreter), he went over that waiver with his attorney, his attorney verbally stated that she had explained the immigration consequences of the plea to him, and he orally acknowledged that he would “wait for immigration.” In addition, the victim of the offense testified at the preliminary hearing that she had reported the defendant to ICE and that ICE had said they would apprehend him if she could tell them his whereabouts, and an ICE agent was present at the defendant’s preliminary hearing.

“During the taking of the plea, appellant was told orally and in writing that he will be deported. Not that he ‘might’ be deported, or that he ‘could’ be deported. Appellant’s argument that he was not aware of the mandatory nature of the deportation flies in the face of the mandatory language used to describe the likelihood of deportation. Appellant is not entitled to simply ignore the admonitions he was given about the consequences of the plea, and argue that he unilaterally assumed he would be treated in direct contravention of what he was advised orally and in writing.”

“A defendant seeking to set aside a plea must do more than simply claim he did not understand the immigration consequences of the plea. The claim must be corroborated by evidence beyond the defendant’s self-serving statements.” The court noted the presence in other cases of testimony by the defense attorney or the defense attorney’s notes. “Here, appellant offered no contemporaneous evidence such as an affidavit and/or testimony by trial counsel, or counsel’s files, notes, or email correspondence. This is a case unlike Vivar, where the written advisal informed defendant he ‘may’ be subject to deportation, and counsel stated ‘possible’ deportation was discussed with defendant. Appellant has presented no independent evidence that he was told anything other than that he would be deported.”

“Appellant has also failed to present evidence that at the time of the plea, he ‘had reason to believe an immigration neutral negotiated disposition was possible.’ He did not offer an expert declaration opining hat alternative, nondeportable dispositions would have been available and acceptable to the prosecutor. His counsel now engages in speculation that he could have pled to burglary, without any citation from the record indicating that disposition would have been entertained by the prosecutor. And the issue is whether appellant had reason to believe a nondeportable disposition was available. He did not present a declaration from trial counsel that he was given such advice (which would have been contrary to the direct plea advisals that deportation would occur).”

“Appellant has not explained why anyone would reasonably have expected that ICE would forgo deportation proceedings against someone who admitted in writing they were temporarily getting married solely to obtain citizenship. Appellant has not shown that even if he had made an error in entering into the plea, it was ‘prejudicial’ within the meaning of the statute. At its core, this case comes down to answering the question: Can a defendant be told repeatedly that his plea will result in deportation, confirm he understood, present no contrary evidence from the attorney who advised him, and then withdraw the plea with the claim that he did not understand he would be deported? Our answer under the facts of this case is ‘no.’”

The full text of People v. Abdelsalam can be found here:

http://sos.metnews.com/sos.cgi?0122//B307375

Fourth Appellate District Construes Timeliness Requirements for 1473.7

The Fourth Appellate District has determined that the timeliness of a motion to vacate filed by individual whose conviction pre-dates Penal Code section 1473.7 should be measured, in part, by when the individual became aware of the existence of 1473.7 relief.

“By explaining the scope of the trial court’s discretion under the amended statute, Perez clarified that “reasonable diligence” is not a timeliness requirement for section 1473.7 motions made under subdivision (a)(1), but rather a condition that, if present, requires the court to grant meritorious motions. Conversely, if the condition is lacking, the court is then empowered to exercise its discretion to either consider the merits or deny the motion on timeliness grounds. Here, it is not clear whether the trial court understood that it was making a discretionary decision when it denied Alatorre’s motion as untimely. But of course, it did not have the benefit of Perez’s statutory construction at the time. Nor did it give a clear indication—as the trial court in Perez did—that it would have granted the motion if it understood that it had the discretion to do so. Regardless, the heart of the trial court’s evaluation of timeliness in this case lies elsewhere and requires that we address an issue Perez did not reach: how to analyze whether a petitioner exercised reasonable diligence in cases where the petitioner’s triggering events predate section 1473.7.”

“What event in Alatorre’s life that occurred after section 1473.7 became effective would have given him “a reason to look for the existence of [new] legal grounds for relief” or, at a minimum, “put him on notice of the need to investigate[?]” “[W]e conclude it is most consistent with the meaning and purpose of section 1473.7 to evaluate reasonable diligence in cases where the petitioner’s triggering events predated the law by determining whether or when the petitioner had a reason to inquire about new legal grounds for relief, and assessing the reasonableness of the petitioner’s diligence from that point forward. Just as the triggering events in the statute provide petitioners still in the U.S. with notice of a fact (such as pending deportation), courts must look for an analogous event in the life of petitioners like Alatorre that would provide notice of a change in the law that the petitioner would otherwise have no occasion to learn about (such as the availability of relief under section 1473.7).”

The full text of People v. Alatorre can be found here:

http://sos.metnews.com/sos.cgi?1021//D077894

The court subsequently issued two amended opinions, which indicated that the prosecution could not call a prior defense attorney to testify in contradiction to a defendant’s statements about whether counsel advised the defendant about the immigration consequences of a plea because a motion under 1473.7 does not require a showing of ineffective assistance of counsel.

The first set of modifications can be found here:

http://sos.metnews.com/sos.cgi?1121//D077894M

The second set of modifications can be found here:

http://sos.metnews.com/sos.cgi?1121//D077894N

Fourth Appellate District Reaffirms Denial of 1473.7 Appeal in Light of Vivar

The Fourth Appellate District has reaffirmed its denial of an appeal of a 1473.7 motion, even after considering the new standards laid out by the California Supreme Court in People v. Vivar.

“Here, with regard to the section 273.5 felony domestic violence charge, no immigration-neutral charge existed. Nor did defendant request or even explore the possibility of an immigration-neutral charge as to this offense. He did plead to, and was convicted on, an apparently immigration-neutral felony, namely, the section 273a child cruelty charge. The record shows no attempt to negotiate a plea leveraging the immigration-neutral count by admitting, for example, solely the section 273a count in place of the section 273.5 count requiring mandatory deportation. Neither does the petition suggest the possibility of having done so. Nor is there any indication whatsoever that such a suggestion would have been acceptable in negotiations with the People or when presented to the trial court. Furthermore, defendant presents no evidence that he ever participated in contemporaneous discussions or negotiations for immigration-neutral charges with the People, or even that he discussed the possibility of immigration consequences⸺other than described below⸺with his counsel. Absent any such record evidence, defendant simply claimed in his declaration, without elaboration or explanation of his basis for knowledge, that counsel did not “explore any immigration neutral charges.” However, “a defendant’s self-serving statement—after trial, conviction,and sentence—that with competent advice he or she would have accepted [or rejected] a proffered plea bargain, is insufficient in and of itself to sustain the defendant’s burden of proof as to prejudice, and must be corroborated independently by objective evidence.”

The full text of People v. Bravo can be found here:

http://sos.metnews.com/sos.cgi?1021//E072782A

CA Ct. of Appeals Finds that Defendant on Probation for Another Case is not Precluded from 1473.7 Vacatur

The California Court of Appeals, First District, has determined that a defendant may vacate a conviction under section 1473.7 of the Penal Code even if she is on probation for another case.

The full text of People v. Rodriguez can be found here:

http://sos.metnews.com/sos.cgi?0921//A159679

CA Ct. of Appeals Construes Timeliness Requirements in 1473.7

The California Court of Appeals, Fifth District, has determined that a judge may deem a 1473.7 motion timely even if it is not filed within a reasonable period of time of the issuance of an adverse immigration decision.

“Only when the condition is satisfied does the court have the discretion to deem a motion untimely. Thus, the lack of reasonable diligence does not automatically require the superior court to deem the motion untimely. Instead, the absence of reasonable diligence subjects the motion to the court’s discretionary authority and, in exercising its discretion, the court might deem the motion timely or might deem it untimely. Section 1473.7 does not provide any guidance for exercising that discretion, such as a list of factors that should be weighed by the court. Based on the lack of explicit statutory guidance, we conclude the well-established general rule governing grants of discretion applies. Thus, the discretion is abused when the court exceeds the bounds of reason, all of the circumstances being considered. In other words, before exercising its discretionary authority regarding the timeliness of the motion, the court must consider the totality of the circumstances.”

“A comparison of the September 2019 date with December 23, 2019—the date Perez filed his motion—shows it took Perez over two, but less than three, months to file his section 1473.7 motion.” “Here, Perez was physically removed from the United States and was at least 200 miles away from the county where the motion was filed. In such circumstances, we find as a matter of law that Perez acted with reasonable diligence in getting his section 1473.7 motion filed in less than three months after his removal to Mexico. Because Perez acted with reasonable diligence, his motion must be deemed timely pursuant to section 1473.7, subdivision (b)(1).”

The full text of People v. Perez can be found here:

http://sos.metnews.com/sos.cgi?0821//F080837

CA Supreme Court Weights in on 1473.7 Standards

The California Supreme Court has determined that denials of motions to vacate under Penal Code section 1473.7 should be reviewed by appellate courts under an independent review standard. ‘“Under independent review, an appellate court exercises its independent judgment to determine whether the facts satisfy the rule of law. When courts engage in independent review, they should be mindful that ‘independent review is not the equivalent of de novo review .’ An appellate court may not simply second-guess factual findings that are based on the trial court’s own observations.” “In section 1473.7 proceedings, appellate courts should similarly give particular deference to factual findings based on the trial court’s personal observations of witnesses. Where, as here, the facts derive entirely from written declarations and other documents, however, there is no reason to conclude the trial court has the same special purchase on the question at issue; as a practical matter, ‘the trial court and this court are in the same position in interpreting written declarations’ when reviewing a cold record in a section 1473.7 proceeding. Ultimately it is for the appellate court to decide, based on its independent judgment, whether the facts establish prejudice under section 1473.7.”

The court also clarified the prejudice requirement for a motion to vacate. “So: showing prejudicial error under section 1473.7, subdivision (a)(1) means demonstrating a reasonable probability that the defendant would have rejected the plea if the defendant had correctly understood its actual or potential immigration consequences. When courts assess whether a petitioner has shown that reasonable probability, they consider the totality of the circumstances. Factors particularly relevant to this inquiry include the defendant’s ties to the United States, the importance the defendant placed on avoiding deportation, the defendant’s priorities in seeking a plea bargain, and whether the defendant had reason to believe an immigration-neutral negotiated disposition was possible.” The court noted that a defendant’s ties to the United States and counsel’s notes or recollections of the case all “constitute contemporaneous objective facts that corroborate [the defendant’s] concern about the immigration consequences of his plea options.”

Finally, the court noted that a plea form that advises a defendant that certain immigration consequences may result from a plea does not mitigate the lack of proper advice from counsel on these consequences.

The full text of People v. Vivar can be found here:

http://sos.metnews.com/sos.cgi?0521//S260270

CA Ct. of Appeal Grants 1473.7 Even Though Defendant was Warned in Plea Form that he Would Suffer Adverse Immigration Consequences

The California Court of Appeals, Fourth Appellate District has reversed the denial of a motion to vacate under Penal Code section 1473.7, even though the defendant signed a plea form advising him that he would be deported, excluded from admission, and denied naturalization. In this case, the original defense counsel had negotiated an immigration safe plea, but he transferred offices before the case was finished. The defendant took the plea with the second attorney, and before he could be sentenced pursuant to the deal negotiated by his first attorney, he was arrested, convicted, and imprisoned in another county. The second attorney, in his absence, accepted a concurrent sentence on the original conviction, which converted the conviction from an immigration-safe plea into an aggravated felony. As a result of the advice provided by the original defense counsel that the plea was immigration safe, and the failure of the second attorney to clearly explain that the concurrent sentence would have adverse immigration consequences, the appellate court concluded that the defendant did not meaningfully understand the consequences of the conviction.

The full text of People v. Rodriguez can be found here:

http://sos.metnews.com/sos.cgi?0221//D076917