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Criminal Defense Attorneys

Addressing Prejudice in 1473.7(a) & AB 1259 Motions

During the COVID-19 pandemic our office had litigated dozens of motions to vacate a conviction under Penal Code § 1473.7(a)(1).  

The statute, effective January 1, 2017, provides that “[a] person no longer imprisoned or restrained may prosecute a motion to vacate a conviction” when “[t]he conviction is legally invalid due to a prejudicial error damaging the moving party’s ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a plea of guilty or nolo contendere.”  Penal Code § 1473.7(a)(1). 
Brief Synopsis: Establishing prejudice for defendant in a motion to vacate under Penal Code § 1473.7(a)(1) for adverse immigration consequences should address the six Bravo factors, as this article explains.        
Until January 1, 2022, the statute was limited to a conviction via a plea bargain negotiated prior to trial.  On January 1 of 2022, however, Assembly Bill 1259 became effective, allowing a judge the power to vacate a sentence reached at trial.

The amended statute now reads: “(a) A person who is no longer in criminal custody may file a motion to vacate a conviction or sentence for any of the following reasons: (1) The conviction or sentence is legally invalid due to prejudicial error damaging the moving party’s ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence.  A finding of legal invalidity may, but need not, include a finding of ineffective assistance of counsel.”

Until 2021, trial court judges, appellate courts and the California Supreme Court regarded "prejudicial error" as being ineffective assistance of counsel or even defendant’s own error in not asking his or her attorney more questions about the immigration consequences.  See People v. Eun Sung Jung (4th App. Dist. 2020) 59 Cal. App. 5th 842, 274 Cal. Rptr. 3d 93 (defendant’s own mistake in not asking her public defender constituted prejudicial error sufficient to vacate a conviction).

When our office began filing such motions, we had over a dozen granted in row.  Prosecutors did resent a defendant, who may have negotiated a very good plea bargain, coming back to court and asking the judge to vacate the conviction.  Defendants were seen as ungrateful opportunists using a new law to demolish a conviction that usually avoided prison and deportation by simplistically claiming (to a skeptical judge) that he or she had no idea the conviction would prevent renewal of their green card or subject him or her to deportation and removal proceedings. 

Such motions seemed to refute the adage “two wrongs don’t make a right” because judges were forced to apply a subjective standard.  There was no objective standard that prevented misuse of the law.  See People v. Mejia (2019) 36 Cal. App. 5th 859, 866 (“The key to the statute [Penal Code § 1473.7(a)(1), is the mindset of the defendant . . . at the time the plea was taken.”).

After about fifteen wins in a row on such motions, we noticed judges denying such motions based on a finding that defendant lacked credibility in stating he or she did not know there were any immigration consequences.  The judge would put the defendant on the stand and ask a series of questions, probing defendant’s memory and finding defendant conveniently forgets certain things, while remembering others that the judge regards as gamesmanship. 

Then in 2022, the statute was extended to give a judge the power to vacate sentences reached after trial.  Our first hearing under the new statute was within a week of the new statute taking effect.  It was before a judge widely recognized by defense attorneys (and many prosecutors) as incompetent and who consistently demonstrated poor judicial demeanor.  Over the years, both defense counsel and prosecutors repeatedly reported her lack of preparation for hearings and inappropriate comments on the record to the Council for Judicial Performance.  She was transferred from courthouse to courthouse.

She denied our motion.  The prosecutor had argued that our motion was barred by laches, which was unbelievable because our motion may have been the first one in the State of California to have a hearing under the new statute.  Our client certainly had not waited too long to seek judicial action.

The prosecution also argued that the judge had warned our client about the immigration consequences after he had decided to go to trial.  This argument has been rejected by the California Supreme Court in People v. Patterson (2017) 2 Cal.5th 885, 898; see also In re Hernandez (2019 33 Cal. App. 5th 530, 545.  Even an admonition by the court, that deportation “will result” is not a categorical bar to relief.  People v. Camacho (2019) 32 Cal. App. 5th 998, 1011, fn. 8.  

Lastly, the prosecutor argued that our client suffered no prejudice because he was not deported.  In fact, he was deported due to the conviction at trial that the motion sought to vacate.  Our motion even submitted the immigration court order for deportation and our client’s declaration attached to the motion was notarized in Korea.  

Despite such an opposition, the judge denied the motion for a reason she created: our client failed to show that he was presented with an immigration-neutral plea bargain prior to trial that he rejected and instead went to trial.  No published decision imposed such a requirement, which we argued and the judge, in response, seemed to grudgingly agree, making her ruling without prejudice, but still denying the motion.  Our client was devastated, as his wife and children lived in the United States, while he had been deported thirteen years earlier, only seeing them when they came to see him.

In a second hearing under the new statute and based on a different client having taken his case to trial, the judge stated he believed the dispositive issue was whether defendant had rejected an immigration-neutral plea bargain prior to going to trial.  The judge explained that this decision to reject the immigration-neutral resolution would be a sufficient prejudicial error in the sentence.  In other words, it was no longer enough for defendant to demonstrate his mindset at the time of the conviction or decision to proceed to trial (see Mejia, supra).

In our client’s case, the People never offered an immigration-neutral plea bargain in lieu of trial, so the judge denied our motion to vacate.  Our office argued that Penal Code § 1473.7(a)(1) did not impose such a specific requirement and the mindset of our client at the point when he decided to go to trial was “the key to the statute” (Mejia, supra), but the judge denied the motion, also without prejudice.

We were confused and unhappy with both judges.  However, we recalled a six-factor credibility test that seemed to partially incorporate what the judges relied upon.  In People v. Esteban Zarate Bravo, published on October 4, 2021, the Fourth Appellate District disregarded Bravo’s claim of suffering prejudice from the plea as not credible because he did not address six factors that People v. Vivar (2021) 11 Cal. 5th 510, at 529-530, and People v. Martinez (2013) 57 Cal.4th 555, 568 state a court should evaluate.  They are:
  1. “The presence of other plea offers and whether the possibility of a plea to an immigration-neutral charge existed;
  2. The seriousness of the charges in relation to the plea bargain;
  3. The defendant’s criminal record;
  4. The defendant’s priorities in plea bargaining;
  5. The defendant’s aversion to immigration consequences; and
  6. Whether defendant had reason to believe that the charges would allow an immigration-neutral bargain that a court would accept.”
It is a six-factor test, not a one-factor test.  The court must evaluate all the factors.  In our two cases, the judges seemed to overlook the other five factors in their entirety.  Moreover, Bravo is factually distinguishable because it applied to convictions via plea bargains, not via sentences at trial.  However, in neither motion that we had denied did the judges refer to Bravo

As such, we believe both judges were mistaken.  After all, it does not make much sense for a defendant who is aware of the adverse immigration consequences to reject an immigration-neutral plea bargain and instead chose to proceed to trial, risking deportation.
Under the syllogistic logic of such judges, a defendant could only vacate a sentence under 1473.7(a)(1) if he simultaneously was presented an immigration-neutral plea bargain by the prosecution but did not know it was immigration neutral and not knowing this, went to trial.  This would be a very unique, nearly impossible-to-imagine scenario because usually, such plea bargain negotiations have the primary goal of avoiding deportation and minimizing time in custody, so defendant could not also profess being unaware of the immigration consequences of a conviction or sentence under the pending charges.

In the future, we trust that our state’s appellate courts will expose and reverse judges, perhaps even the two judges we experienced, who adopt such reasoning, hopefully very soon, and better, more rational and fair standards will be set.  We have seen this process iron out inconsistent and unfair rulings under the new felony murder rule (Senate Bill 1437) and Proposition 47.

For more information about showing prejudice in a motion to vacate a conviction, as well as other prosecution arguments against relief, please click on the following articles:
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