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Motion to Vacate (1473.7) Denied and Affirmed

There is no doubt that many judges view a motion to vacate a conviction as akin to a motion to withdraw a plea while in pro per, or a motion to represent oneself, wherein, as one court explained, “defendant's hubris led him to think he could do as well for himself as someone educated in the law, doubtlessly against the stern and reasoned advice of the judge, and now he realizes he stepped off the deep end without water wings and with an anvil chained to his neck, and he now expects someone to shorten up their preparation time to zero and float him through the narrows.”  See Alcala v Woodford 334 F3d 862, 891 - 892 and In re Edward S. 173 Cal.App.4th 387, 407.

In other words, judges regard such motions as deserving closer scrutiny because defendant often can be revealed as trying to manipulate the legal system, feigning ignorance, only after making a very bad decision that he or she later conveniently claims was based on lack of informed consent, knowledge or due process when closer evaluation shows defendant’s claim is entirely meritless.

Judges also regard motions to vacate as epitomizing the distrust so many have of our legal system, where “legal loopholes” are manipulated for those with a clever attorney hoping to find a gullible or naïve judge to pass along such trickery.

The following reported decision from the Second Appellate District, Division Six (Ventura), exemplifies one such legal effort exposed for all that is perhaps wrongly encouraged by a motion to vacate under Penal Code § 1473.7(a)(1).

As the reader may be aware, § 1473.7(a)(1), a person no longer in criminal custody may file a motion to vacate a conviction or sentence where “[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 conviction or sentence.” 

“A successful section 1473.7 motion requires a showing, by a preponderance of the evidence, of a prejudicial error that affected the defendant’s ability to meaningfully understand the actual or potential immigration consequences of a plea. 
[Citation]”  People v. Vivar (2021) 11 Cal. 5th 510, 517.  Showing legal invalidity may, but need not, include a finding of ineffective assistance of counsel, as the amended version of 1473.7(a)(1) was passed into law in 2018, removing that requirement. 

“[S]howing prejudicial error under section 1473.7, subdivision (a)(1) means demonstrating a reasonable probability that the defendant would have rejected the plea if the defendant had correctly understood it actual or potential immigration consequences.”  Vivar, supra, 11 Cal. 5th at pp. 529-530.

When courts assess whether a petitioner has shown that reasonable probability, they consider the totality of the circumstances. [Citation.]  Factors particularly relevant to the inquiry include the defendant’s ties to the United States, the importance defendant placed on avoiding deportation, the defendant’s priorities in seeking a plea bargain, and whether the defendant had reason to believe an immigration-neutral negotiated disposition was possible.”  Id.

In 2012, Diego Denova Garcia was two counts of felony sale / transportation / offer to sell a controlled substance (Health & Safety Code § 11352) and possession for sale of a controlled substance (Health & Safety Code § 11351).  He pled guilty to offer to sell a controlled substance and was placed on thirty-six months of formal probation with 180 days in Ventura County jail.

When he pled guilty, he spontaneously said in court, “I’m screwed.  I can’t see my life in Mexico” after his attorney and the judge told him he would be deported based on his plea.

Seven years later, in 2019, he was in the process of deportation proceedings.  He then filed a motion to vacate his conviction based on ineffective assistance of counsel.  In support of his motion, he filed a signed declaration wherein he stated his attorney never discussed the immigration consequences with him and told him to sign the plea form “so we can get over this.” 

At the hearing in Ventura Superior Court, the judge cross-examined Mr. Garcia, as well as his prior counsel, whose notes from stated he did discuss the immigration consequences with an immigration prior to entering the plea with Mr. Garcia.
On cross-examination, Mr. Garcia then admitted that he pled guilty even though he knew he was going to be deported.  He even acknowledged that after he got home from the plea hearing, he thought about it, and said to himself: “I’m screwed.”  “I can’t see my life in Mexico.’

The trial court denied Mr. Garcia’s motion to vacate, finding in a six-page ruling that Mr. Garcia’s credibility was “severely lacking” and that his declaration was “deceptively phrased.”  The judge also found that Mr. Garcia was “well-advised” and “fully understood the likelihood that he would be deported.”

Despite this ruling, Mr. Garcia appealed the ruling to the Second Appellate District, which not surprisingly affirmed the trial court.

For more information about motions to vacate under Penal Code § 1473.7(a)(1) based on a prejudicial error affecting one’s ability to meaningfully understand the actual or potential immigration consequences of a plea or conviction, please click on the following articles:
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