Post-conviction Relief for Foreign Nationals Convicted in California
| Publication year | 2020 |
| Author | By Jeffrey A. Aaron |
By Jeffrey A. Aaron*
When Penal Code section 1473.7 was first discussed in this Journal in the Fall of 2017, there were only two cases that had considered the statute.1 There are now, after the third anniversary of the statute being signed into law,2 significantly more. The legislature clearly perceived a need for additional relief, designing the statute to enable defendants, when not advised of the immigration consequences of the plea, and when "other and more traditional collateral relief measures are not available,"3 to withdraw their pleas. It seems that criminal defense and immigration lawyers are using this statute more often, and more successfully. Given the importance of the immigration issue nationwide, one should expect this to continue; indeed, following the amendment of the statute in 2018, the number of reported cases increased.4
People v. Perez (2018) 19 Cal.App.5th 818, dealt with timeliness and the defendant's burden of proof. The defendant pleaded guilty in 2005 and did not file his section 1473.7 motion to vacate his conviction until seven weeks after the effective date.5 The Court found this delay did not make the motion untimely, and that section 1473.7 applies retroactively to people who plead guilty before its effective date.6 The plea form indicated that defendant was advised of the immigration consequences, and the Court ultimately found he failed to carry his burden of proof because he did "not address this unambiguous record on appeal."7 He offered "no evidence to support his position."8 His declaration, eleven years after his conviction, simply recited that he did not "meaningfully understand the immigration consequences of his plea."9 Similarly, his claim that counsel was defective for not negotiating an "immigration safe disposition" failed because there was no evidence that the prosecution would have considered such a disposition, or that counsel did not try to negotiate the same.10
The defendant convincingly met his burden in People v. Ogunmowo (2018) 23 Cal.App.5th 67. In Ogunmowo, while advising his client about a plea to possession for sale of a controlled substance for a two year prison term, defense counsel misadvised the defendant, telling him that he "would not face any immigration consequences because of his plea in this case."11 Defense counsel admitted this and more, detailing in his declaration how "he did not investigate, inform himself about or seek to protect Mr. Ogunmowo from any immigration consequences of the plea."12 Although this case predated Padilla v. Kentucky (2010) 559 U.S. 356, the Court held defense counsel "[a]ffirmatively misadvise[ed]" his client, which was an "objectively deficient performance under prevailing professional norms" at the time of the plea.13 Finally, the Court drew an illuminating distinction between the general advisement given by the trial judge and the specific advisement given by defendant's personal counsel. The defendant would not have pled guilty, the Court wrote, because he "reasonably relied" upon counsel's misadvising him as to the immigration consequences, despite the trial court's warnings as to such consequences.14 "[T]he court's warning, given just before the plea is taken," explained the Court, "does not afford the same time for 'mature reflection' as a private discussion with a defendant's own counsel."15 The Court applied a de novo standard of review as "the appropriate standard for a mixed question of law and fact that implicates a defendant's constitutional right."16
The defense was less fortunate in People v. Olivera (2018) 24 Cal.App.5th 1112 since the defendant failed to demonstrate that counsel's assistance was ineffective.17 The defendant signed a plea form "with boilerplate language about immigration consequences," which he admitted reviewing with his counsel.18 He acknowledged that the effect of a criminal conviction on his legal status (he was a permanent resident) "will change from time to time," and that he "expressly assume[d]" that his plea "will, now or later, result in [his] deportation, exclusion for admission or readmission" and denial of naturalization and citizenship.19 Although the defendant successfully completed probation, received a reduction to a misdemeanor, and then, ultimately, a dismissal, his offense resulted in mandatory removal.20 His section 1473.7 motion was denied as the trial court held the "will" language in the plea form was stronger than the usual "may have" language regarding negative immigration consequences for a conviction.21 Since the defendant did not identify "any alternative immigration-neutral disposition that counsel could have negotiated on his behalf," and the language in the plea form indicated that his plea "will" have deportation consequences, the Court of Appeal found the defendant failed to carry his burden.22
Even though the defendant failed to make the requisite showing, the Court wrote in dicta that "ineffective assistance claims may be viable despite the collateral nature of immigration consequences and despite statutory warnings that the plea 'may' have such consequences."23 The Court declined to answer whether there might have been an affirmative duty to give immigration advice in 2005, when the plea was entered. Instead, the Court found trial counsel had complied with his responsibilities and advised his client about the immigration consequences. "The admonition [on the plea form] was boilerplate, but it was unequivocal and accurate."24 The Olivera Court contrasted the defendant's situation with People v. Bautista (2004) 115 Cal.App.4th 229, where defense counsel had the opportunity to negotiate a plea to an immigration-neutral offense.25 The defendant in Bautista could have "pleaded up" to a more serious offense, i.e., accepted a more serious charge that had less or no negative immigration consequences, and there was expert testimony that prosecutors had accepted such pleas in the past.26
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In People v. Morales (2018) 25 Cal.App.5th 502, the First District Court of Appeal reversed and remanded when the trial court ruled the defendant could not file the motion since he was not subject to a removal proceeding and, therefore, was not facing an "actual or potential adverse immigration consequence" as required by section 1473.7, sudb. (a)(1).27 Here the defendant claimed that the conviction made him unable to apply for a U visa, which would have given him temporary legal status.28 The Court held that the requirement of "actual or potential adverse immigration consequences" was "broad and encompasses circumstances other than removal," including the application for a U visa.29 Requiring noncitizens to wait until they received a notice of removal might result in the noncitizen being removed before the motion could be decided, thereby leading to the Kafkaesque absurdity of section 1473.7 creating "a potentially fatal obstacle to a noncitizen's exercise of a right created by section 1473.7."30
People v. Tapia (2018) 26 Cal.App.5th 942 was resolved much like Olivera. The defendant in Tapia pleaded to one count of conspiracy and one count of cultivation of marijuana in violation of Penal Code section 182 and Health & Safety Code section 11358, respectively.31 On the day of the plea, the defense counsel said the defendant wanted to see "how this would affect his status" as a permanent resident, and the matter was trailed to later that same morning.32 When the defendant entered the plea, the trial court went over each item, including the "may have" immigration consequences language.33 When the trial court went over the waiver form, it stated that a guilty or no contest plea "will result in your being deported" and "never being allowed to legally return."34 Although there were some 760 pounds of marijuana and 143 marijuana plants, the defendant received probation.35 A little over four years after the plea, he filed for relief pursuant to section 1473.7, claiming he was not told of the immigration consequences and, if he had been told, he would have gone to trial.36 Trial counsel testified at the section 1473.7 hearing that the defendant was advised the plea would expose him to deportation proceedings "and other negative consequences."37 It was trial counsel's custom and practice to explain other negative consequences to clients in the defendant's position including those relating to permanent resident status, possible citizenship, and reentry.38 The Court cited both Ogunmowo and Olivera for the principle that the correct standard of review was de novo.39
The "will" language in the trial court's advisement, as in Olivera, convinced the Court of Appeal to affirm the denial of the 1473.7 motion: "[t]he appellate court [in Olivera] upheld the denial of his section 1473.7 motion, stating an advisement the plea will have deportation consequences suffices."40 The Court found that "Tapia was similarly advised by the trial court, and defense counsel's advisement is the equivalent of the advisement in Olivera."41 The only contrary evidence was the defendant's "self-serving declaration," which was "implicitly found" to be "not credible."42 Also similar to Olivera was the failure to show the availability of any alternative disposition for an immigration-safe offense: "Tapia's speculation that another disposition could have been negotiated 'is not evidence, less still substantial evidence.'"43
People v. Cruz-Lopez (2018) 27 Cal.App.5th 212 turned on a very fine point. The defendant did not claim he was misadvised as to the guilty plea; rather, he contended that his admission to the subsequent probation violation was made without proper immigration advice.44 It was not his initial sentence but the sentence for the probation revocations that transformed his offenses into "aggravated felonies," within the meaning of the immigration code, thereby making him deportable.45 The Court...
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