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Immigration Consequences of Criminal Threats (PC 422) Plea

In March of 2009, Defendant Nyaga Kirimi Mbaabu was charged with two counts of felony criminal threats (Penal Code § 422).
Overview:  Immigration consequences of a plea to misdemeanor criminal threats are not grounds to vacate a judgment.
As is often the case in a criminal threats matter, the sanity of defendant was an issue.  In Mbaabu’s case, prior to the preliminary hearing, the judge in San Bernardino County had decided to declare a doubt as to Mbaabu’s competence (Penal Code § 1368), resulting in suspension of criminal proceedings.  Later, after Mbaabu was found competent, the judge again declared a doubt as to Mbaabu’s competence.  The proceedings were then suspended a second time and defendant was committed until January, 2010.  

New counsel for Mbaabu then was retained and a plea bargain was reached.  Mbaabu pled guilty to one count of criminal threats as a misdemeanor.  The remaining felony charge of criminal threats was dismissed.  The plea agreement included 365 days in jail with credit for 365 days served by Mbaabu.  

image descriptionImmigration Court Downtown L.A.

This was a critical part of the disposition.  By agreeing to 365 days, vice 364 days, the crime, although a misdemeanor for the court, was considered an aggravated felony for immigration purposes.  The characterization of the crime as an aggravated felony made Mbaabu subject to automatic deportation.

In 2011, more than a year after the plea was entered, Mbaabu hired new counsel, who filed a motion to withdraw Mbaabu’s plea.  He did so because on March 31, 2010, the U.S. Supreme Court decided Padilla v. Kentucky (2010) 599 U.S. 356, 130 S.Ct. 1473, 176 L.Ed. 2d 284, wherein it had held that constitutionally competent counsel would have advised Padilla of deportation consequences when Padilla entered a guilty plea to charge of illegal drug distribution.

Mbaabu’s motion to withdraw his plea consequently argued that his attorney’s failure to admonish him of the immigration consequences of his plea constituted ineffective assistance of counsel.  The trial judge denied the motion because the immigration consequences were not a “fact” that, if known, would have prevented Mbaabu from entering the plea agreement.  For example, it was not the existence of impeachment evidence of a critical witness.

image description
Four months later, Mbaabu’s new attorney then filed a motion to vacate the judgment.  The motion was also based on Padilla and the trial court granted it.  

Mbaabu’s relief was short-lived, however, as the prosecution appealed.  The People’s appeal argued that the trial court lacked authority to rule on the motion because immigration consequences are not a “fact” that, if known, would have prevented Mbaabu from entering into the plea bargain.  Second, ineffective assistance of counsel is not a valid ground for vacating a judgment (which it argued was analogous to a petition for writ of coram nobis).  Third, the People argued that Padilla is not retro-active.

The Fourth Appellate District, in ruling on People v. Nyaga Kirimi Mbaabu (2013 DJDAR 2172), agreed with the People that a motion to vacate the judgment is not a proper ground for challenging ineffective assistance of counsel.  The proper grounds are that:
  1. There was some fact which existed that, without any fault or negligence on defendant’s part, was not presented to the court at trial on the merits, and which if presented would have prevented the rendition of the judgment;
  2. The newly discovered evidence does not go to the merits of the issues tried; and
  3. Defendant must show that the facts upon which defendant relies were not known to him and could not in the exercise of due diligence have been discovered by him at any time substantially earlier than the time of filing the motion.
Moreover, The Appellate Court pointed out that the motion to vacate the judgment was filed three months after the motion to withdraw the plea, but on the same exact grounds, violating the third ground.

Thus, the Appellate Court reversed the trial court’s ruling.  This meant the original judgment against Mbaabu was reinstated.  This unfortunately subjected Mbaabu to automatic deportation proceedings.

The citation for the Court of Appeals ruling discussed above is People v. Nyaga Kirimi Mbaabu (2013) 213 Cal.App.4th 1139.

For more information about withdrawing a plea and immigration consequences, click on the following articles:
  1. Plea Withdraw and Judgment Vacated When Mexican Citizen Not Advised of Adverse Immigration Consequences of Plea
  2. Immigration Consequences of a Conviction for DUI
  3. Immigration Consequences of a Conviction for Shoplifting   
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