Immigration: PC 1473.7 Motion to Vacate After Trial

In 2010, Pravindar Prem Singh, a noncitizen legal resident, was stopped in Sacramento County for a traffic violation.  Law enforcement found about 200 grams of cannabis, a digital scale, empty baggies, cell phones, $580 in cash and other items suggesting sales of marijuana. 

Officers then arrested Singh and he was later charged with possession  of cannabis for sale (Health & Safety Code § 11359) and transportation of more than 28.5 grams of cannabis (Health & Safety Code § 11360(a)).

A Sacramento County jury convicted Singh of both charges and the judge sentenced Singh to one year in state prison.

After serving his sentence, he was detained by Immigration and Customs Enforcement (ICE) until the present. 

 

On May 15, 2020, Singh filed a motion to vacate his conviction under Penal Code § 1437.7(a)(1).  Section 1473.7(a)(1) permits noncitizens to vacate convictions after they are no longer in custody based on a failure to understand adverse immigration consequences of their conviction.  People v. Fryhaat (2019) 35 Cal. App. 5th 969, 976-977.

The motion was supported by two declarations.  One was from him, stating he had lived in the United States since age 13 and his wife, children and parents are United States citizens.  He also declared that this trial counsel did not advise him he would be inadmissible to stay in the country without defense to removal if he were convicted of either charge.

He further declared, “If I had known that conviction of either of the charged offenses would make me inadmissible and destroy any defense to deportation I had, I would not have gone to trial, but would have asked my attorneys to try to negotiate an immigration safe plea bargain. . . I would have accepted a plea bargain to felonies and additional state prison time to preserve some chance to remain in the United States with my family.”

The second declaration to his motion was from his immigration attorney, declaring that Singh is “inadmissible due to all of his convictions” and is therefore “ineligible to apply for a new green card through any of his relatives.”  She also stated there “were several immigration neutral alternatives available to” defendant and provided several examples.  She concluded that a vacatur “will permit him to preserve his lawful permanent residency, and will make him immediately eligible for release from” immigration custody.

On October 14, 2020, the trial court denied the motion because it held that Penal Code § 1473.7(a)(1) did not apply to convictions by trial. 

Mr. Singh then appealed to the Third Appellate District Court of Appeal, arguing that Assembly Bill 1259, effective January 1, 2022, applied retroactively to his case because it conclusively established that 1473.7 is not limited to convictions by plea. 

The People agreed that 1259 applies to convictions after trial, but argued that Singh’s motion lacked merit because he failed to establish that he could have been offered a plea bargain without adverse immigration consequences or that his counsel failed to advise him of the consequences.

The Fourth Appellate District then pointed out that it was unable to do any sort of independent review of the merits of the motion because the trial court simply found that Mr. Singh was not qualified for relief because his conviction came after a trial.  The trial court made no factual findings.  The court did not evaluate or analyze the two declarations. 

For a defendant presenting such a motion, we found the following passage significant.  The Fourth Appellate District explained that the People contended “it would require pure speculation to find defendant could have accepted a plea without adverse immigration consequences.”  The appellate court responded, “[b]ut this is inherent in all section 1473.7 motions.  The trial court will be tasked with determining whether defendant can prove by the preponderance of the evidence whether there was a viable alternative and that defendant would have taken that fully informed of the immigration consequences.”  People v. DeJesus (2019) 37 Cal.App.5th 1124, 1133. 

“The speculative nature of this task does not render it impossible.” 

Therefore, the Fourth Appellate District reversed the trial court and remanded the case to conduct a hearing in accordance with the full provisions of section 1473.7.

For more information about motions to vacate a conviction for immigration issues, please click on the following articles: