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
