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 Supreme Court Addresses SIJS Standards

The California Supreme Court has published a decision addressing the standards for obtaining a Special Immigrant Juvenile Status (SIJS) predicate order.

First, the Court noted that the applicant must prove the applicability of SIJS findings by a preponderance of the evidence.

Second, the Court reiterated that a child’s declaration can be enough to meet that burden. “Superior courts may not ignore or discredit facts shown by a child’s declaration based on surmise or on evidence outside the record or draw speculative inferences against the child.”

Third, the Court laid out factors for consideration in determining whether reunification with a parent is viable. “In making this inquiry, courts should consider all relevant circumstances, including the ongoing psychological and emotional impact on the child of the past relations between the child and the parent, how forced reunification would affect the child’s welfare, the parent’s ability and willingness to protect and care for the child, and the parent’s living conditions.” “The fact that harm to the child is attributable to a parent’s poverty does not preclude a court from determining that reunification with the parent is not viable.”

Fourth, the Court disagreed with the lower courts’ determination that abandonment and neglect for SIJS purposes requires the parent to intend to abandon or neglect the child. “Family Code section 3402, part of California’s version of the Uniform Child Custody Jurisdiction and Enforcement Act, defines ‘abandoned’ as ‘left without provision for reasonable and necessary care or supervision.’ And Welfare and Institutions Code section 300, subdivision (g) provides a laundry list of ways in which a child may be deemed abandoned for the purposes of establishing dependency jurisdiction, among them when a child is ‘left without any provision for support.’ Neither of these definitions requires a showing that the parent intended to abandon the child.”

Fifth, the Court addressed what other factors might amount to a “similar basis” to abuse, neglect, or abandonment for a nonviability determination. Among those factors are a parent’s inability to supervise or protect a child, and whether this inability poses a substantial risk that the child will suffer serious physical harm or illness. “To the extent it is more common for parents in El Salvador to be unable to protect their children from gang violence than it is for parents in California, that is an improper basis for concluding that Saul has failed to show that reunification with his parents is nonviable due to their inability to adequately protect him from ‘a substantial risk’ of ‘serious physical harm.’”

Sixth, the Court addressed the “best interest” determination. “The best interest determination is distinct from the nonviability of reunification determination in that the court’s focus is not on the relationship between the child and the child’s parent. Instead, the best interest determination focuses on the effects of sending children back to live in their home countries. The court’s inquiry involves a case-specific, holistic comparison of the child’s circumstances in California to the circumstances in which the child would live if repatriated, including the capacities of current or potential caregivers — who may or may not be the child’s parents — in each location.” “[A] court should make a holistic comparison between circumstances affecting the child’s health, safety, and welfare in California and in the child’s home country, giving special consideration, where appropriate, to the child’s wishes.”

The full text of Guardianship of Saul H. can be found here:

http://sos.metnews.com/sos.cgi?0822//S271265

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 Supreme Court Weighs in on Required Parties for SIJS actions

The California Supreme Court has determined that a child’s nonresident, noncustodial parent need not be joined as a party in her parentage action seeking special immigrant juvenile findings. Provided that the absent parent has received adequate notice, the action may proceed even if the parent is beyond the personal jurisdiction of the court and cannot be joined as a party. In addition, any perceived immigration-related motivations for the filing of the parentage action have on bearing on whether the action may proceed. The action may also proceed regardless of whether the court believes it was filed primarily for the purpose of obtaining the protections from abuse, neglect, or abandonment that federal immigration law provides.

“Ultimately we need not decide here whether the courts’ concerns about prejudice would justify Jorge’s joinder as a necessary party if it were feasible to join him. We instead assume, without deciding, that Jorge is a necessary party as to the SIJ finding of abandonment. Because Jorge’s joinder is not feasible, the central question under the mandatory joinder statute is whether the court can, “in equity and good conscience,” make the finding in Jorge’s absence. Under section 389, subdivision (b), the potential prejudice that may flow from a judgment rendered in Jorge’s absence must be weighed alongside other factors: whether the prejudice can be lessened by the shaping of relief; whether a judgment rendered in Jorge’s absence will be adequate; and, as particularly important here, whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder. (Code Civ. Proc., § 389, subd. (b).)”

“To conclude that the state court finding cannot be made in Jorge’s absence is therefore effectively to say that Jorge, by failing to assert any right to custody or visitation of Bianka in this proceeding, can essentially bar Bianka from seeking relief premised on the very fact of his abandonment. While the potential prejudice to Jorge is, at this point, necessarily speculative, the prejudice to Bianka’s legal position is immediate and unavoidable. “

The full text of Bianka M. v. The Superior Court of Los Angeles County can be found here:

http://www.courts.ca.gov/opinions/documents/S233757.PDF

CA Supreme Court Finds no Authority to Dismiss under PC 1385 after Probation has Ended

The California Supreme Court has determined that a trial court has no authority to dismiss a conviction under penal code 1385 after probation has ended.  "At any time before a criminal defendant pleads guilty, receives a suspension of sentence, begins a term of probation, or, indeed, completes it, the defendant may invite the trial court to act in the interests of justice and dismiss the action against him. By the time the defendant has completed probation, however, the trial court’s power under section 1385 to grant him the relief he seeks has run out. The action against the defendant has ceased, the court may no longer impose a final judgment on him, and the court’s dismissal power under section 1385 has expired."

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

http://www.courts.ca.gov/opinions/documents/S238929.PDF