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
