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1473.7: Prejudice by Deep US Ties, Legal Inexperience

Every now and again, there is an appellate court ruling that favors the defense so strongly and undermines the prosecution so deeply that we recognize it is an opinion that will be cited over and over in the future.  We then read the opinion, knowing the prosecution and judges will attempt to distinguish it or minimize its importance.

People v. Miguel Lopez (2022 DJDAR 10223) is the most recent such opinion.  It was filed on September 26, 2022, by the Second Appellate District, Division Two (in Los Angeles), ruling arising out of an appeal of Van Nuys Superior Court Judge Martin Larry Herscovitz’s order denying Mr. Lopez’s motion to withdraw his plea and vacate his conviction under Penal Code § 1473.7(a).

Over a period of six months from December 1997 to May 1998, Mr. Lopez and co-defendant Gustavo Montoya stole or attempted to steal money from four businesses by threatening the employees with what appeared to a handgun.  The total losses were $946.

When Montoya was arrested, he provided officers with an air pellet gun, a replica of a .45-caliber semiautomatic handgun – that he told police was used in the robberies.  He identified Mr. Lopez, then age 22, as the driver of the getaway car.  Mr. Lopez was later arrested.

Mr. Montoya and Mr. Lopez were then charged with four counts of second degree robbery (Penal Code § 211) and one count of attempted second degree robbery (Penal Code §§ 664/211).

At the arraignment in 1998, the prosecutor advised Mr. Lopez that the maximum prison sentence he faced if convicted of all counts was eight years and eight months.  However, the prosecutor then offered a plea bargain to Mr. Lopez that if he pled to one count of second degree robbery, he would receive a maximum sentence of no more than two years in state prison.  Mr. Lopez accepted the deal.

The prosecutor also told him, “Also, if you are not a citizen of the United States, your conviction may result in your being deported, denied naturalization or denied readmission if you leave the country.”  When asked if he understood this, Mr. Lopez said he did.  Mr. Lopez then pleaded no contest to one count of second degree robbery.  The judge then sentenced Mr. Lopez to two years in state prison.

In 2016, he was deported due to this conviction.

Almost 23 years later after he entered the guilty plea leading to the conviction, in 2021, Mr. Lopez filed his motion to vacate the conviction under Penal Code § 1473.7(a)(1).  His motion explained how he came to the United States in 1990 when he was 13 years old.  He stated he was a lawful permanent resident at the time of the 1998 plea.  He had attended middle school and high school here.  Having grown up here, he considered himself an American.

In 1998, when he entered his plea, he had no prior experience with the criminal justice system.  He was not advised that a conviction for second degree robbery would constitute an aggravated felony under federal immigration law.  He was unaware that as a result of the conviction, he faced mandatory deportation and he would be permanently ineligible for lawful permanent residency in the United States.  8 U.S.C. § 1228(c).

He incorrectly presumed that he would not suffer any adverse immigration consequences because of his status as a lawful permanent resident.

Mr. Lopez was represented by attorney David Kwan, who Mr. Lopez believes assumed he was a United States citizen.  There was no discussion of any immigration consequences. 

Mr. Lopez did not learn of the mandatory deportation consequences until he was deported in 2016.

Had he known he was bargaining away permanent residency status with his plea, he would never have accepted a plea, but would have instead exercised his right to a jury trial to attempt to remain with his family in the United States.  He had deep roots in the United States. 

The trial court denied the motion and Mr. Lopez appealed to the Second Appellate District.  The Second Appellate District then reversed the trial court.

It explained that the admonition by the court stating Mr. Lopez “may” face certain adverse immigration consequences was insufficient to inform him that the conviction would subject him to mandatory deportation and permanent exclusion from the United States.  As the California Supreme Court has stated, there is a stark difference between an actual and a theoretical risk of deportation.  People v. Superior Court (Giron) (1974) 11 Cal.3d 793, at 797; see also U.S. v. Rodriguez (9th Cir. 1995) 797 F.3d 781, 790 [“Warning of the possibility of a dire consequence is no substitute for warning of a virtual certainty.  As Judge Robert L. Hinkle explained, ‘Well, I know every time that I get on an airplane that it could crash, but if you tell me it is going to crash, I’m not getting on.’”]. 

Second, the Second Appellate District explained that Mr. Lopez had demonstrated sufficient prejudice from the conviction by explaining his deep ties to the U.S. pre-conviction and that it was his own error in not understanding the adverse immigration consequences. People v. Jung (2020) 59 Cal. App. 5th 842, 856, overruled on other grounds in People v. Vivar (2021) 11 Cal. 5th 510, at 526.  He had no ties to Mexico.

What we like most about this opinion, however, is what the Second Appellate District characterized as “a reasonable explanation for his silence when told of the possible immigration consequences: He erroneously believed his lawful permanent resident status would shield him from any immigration penalties.”

For more information about motions to vacate for immigration consequences in general, please click on the following articles:
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