In the context of a motion to vacate a conviction or judgment under Penal Code § 1473.7(a)(1) after a plea or trial, our office has seen that when defendant establishes he or she was unaware of the adverse immigration consequences and would not have agreed to such a plea or to go to trial, the prosecution will argue defendant nonetheless fails to show any prejudicial error took place.
This indeed may be true in some cases, for example when defendant in fact goes to trial and loses.
When defendant entered a plea, however, the analysis is significantly different, as the recent Third Appellate District Court opinion in People v. Manual Valdivias Soto explained.
The underlying facts of the case were that Mr. Soto entered into a plea bargain in 2010 for possession for the sale of methamphetamine (Health & Safety Code § 11378) and then in 2020 filed a motion to vacate the conviction in Tehama County Superior Court.
The judge denied the motion and Soto appealed to the Third Appellate District Court, which reversed in Soto’s favor, finding the admonition of the immigration consequences was legally insufficient because it told him his conviction “may” result in deportation, removal, etc., and not “will” result. On that basis alone, the Third Appellate District vacated the conviction.
In its written opinion, however, at the end, the appellate court addressed the prosecution’s argument that even if the admonition was improper, Soto was not prejudiced because he wanted to plea bargain the case out anyway.
The Third Appellate District disagreed. It explained that the prosecution did not evaluate the facts enough to have the court find this. It then presented the law on prejudicial error that we think is significant because it suggests if defendant had known the adverse immigration consequences and defendant says he would have gone to trial if he knew (even if trial was only a “Hail Mary” long shot), then there is prejudicial error.
The Third District explained that “[S]howing prejudicial error under section 1473.7(a)(1) means demonstrating a reasonable probability that the defendant would have rejected the plea if the defendant had correctly understood the actual or potential immigration consequences.” People v. Vivar (2021) 11 Cal. 5th 510, at 529.
“A ‘reasonable probability’ ‘does not mean more likely than not, but merely a reasonable chance, mor than an abstract possibility.” People v. Hardy (2021) 65 Cal. App. 4th 312, 329; People v. Rodriguez (2021) 68 Cal. App. 5th 301, 324.
“When courts assess whether a petitioner has shows that reasonable probability, they consider the totality of the circumstances [citation]. Factors particularly relevant to this inquiry include the defendant’s ties to the United States, the importance the defendant place on avoiding deportation, the defendant’s priorities in seeks a plea bargain, and whether the defendant had reason to believe an immigration-neutral negotiation was possible.” People v. Vivar, supra, at 529-530. Courts “have long required the defendant corroborate such assertions with ‘objective evidence’ [citation] Id., at 530.
It is not necessary to show defendant could have obtained a more favorable outcome at trial. Rodriguez, at pp. 311-312 [prejudice established if the defendant “would have risked going to trial . . . even if only to figuratively throw a “Hail Mary”].
The standard for determining the sufficiency of such corroborating evidence is an issue pending review at the California Supreme Court (People v. Espinoza
(May 28, 2021, F079209 [nonpub. opn.], review granted Sept. 15, 2021, S269647.).
In Espinoza, the Fifth District Court of Appeal concluded defendant’s declaration, without more, was insufficient to show immigration consequences were a paramount concern of his, even though he had lived in the United States for 20 years and his family was here. Id.
In contrast there are four other appellate court opinions that establish a defendant’s close ties to the United States may sufficiently corroborate his or her declaration:
- In People v. Alatorre (2021) 70 Cal. App. 5th 747, 771, the Fourth Appellate District Court found prejudice was established where the defendant had lived in the United States since he was a preschooler , his entire family lived here, and he eventually married and raised children here;
- In People v. Rodriguez, supra, at pp. 324-325, the First Appellate District Court found prejudice was established where the defendant had lived in the United States for decades since infancy, her immediate family and children lived here, she attended school here, and lacked meaningful ties to her birth country;
- In People v. Mejia (2019) 36 Cal. App. 5th 859, 972, the Fourth Appellate District Court found compelling evidence of prejudice where defendant had been living in the United States for eight years, since he was 14 years old, and his wife and infant son lived here, as well as his mother and six siblings; and
- In People v. Camacho (2019) 32 Cal. App. 5th 998, the Second Appellate District Court found prejudice established because defendant was “brought to the United States over 30 years ago at the age of two, has never left this country, and attended elementary, middle, and high school in Los Angeles County . . . [and] is, and at the time of his plea, was married to a United States citizen with an American citizen son, and also now an American citizen daughter.”
We present this article to suggest that the Third Appellate District seems to state that if a defendant presents a motion to vacate a conviction under 1473.7(a)(1) and states under oath that he would have demanded trial no matter how unlikely victory might have seemed (nothing more than a “Hail Mary”) and establishes prejudice by his pre-plea ties to the United States, as shown by the examples above, his or her motion may be regarded as stronger than if such arguments are not made.
For more information about 1473.7(a)(1) motions, please click on the following articles: