Motion to Vacate After 664 / 288(a) Trial Denied, Riverside

In 2009, a Riverside County jury convicted our client, then twenty-six years old, of violating Penal Code §§ 664 / 288(a), attempted lewd acts on a child under age 14. Six months later, our client was deported back to India.

Before our client agreed to proceed to trial, he did not realize the deportation consequences of being convicted at trial. He had not discussed deportation with his attorney, who was then and still is a very well-respected private criminal defense attorney in Riverside.

Our client believed that if he were convicted and sentenced to prison, after serving time in prison, he would return to his family in Fontana.

As is common in cases like this, however, our client also earnestly believed the jury would not convict him. His defense was that he was just meeting with the "decoy" to see her appearance.

Our client's attorney recognized the deportation consequences of such a conviction, but never discussed this with our client and thus, our client did not know there was any deportation consequence from his conviction.

Indeed, the U.S. Supreme Court would not tackle this thorny issue for more than another year when it ruled in Padilla v. Kentucky (2010) 559 U.S. 356 that criminal defense counsel must advise a noncitizen defendant of the immigration consequences of the charges faced.

Furthermore, because our client had lived in the United States as a lawful permanent resident ("Green Card" holder), he believed he was a permanent resident of the United States, meaning his residency here was permanent and he could not be deported. He therefore did not believe the immigration warnings applied to him. When he decided to proceed to trial, he never considered deportation of himself as a risk of a conviction at trial. More importantly, he proceeded to trial, trusting his attorney's experience and expertise.

Recently (in late 2023), our client attempted to visit his elderly mother, a U.S. citizen, here in the United States. He applied for an ESTA (Electronic System for Travel Assistance) pass through a Visa waiver program, however, due to this conviction and the deportation order, his application was denied.

Our client then researched having this conviction vacated, so he could visit his mom, and contacted Greg Hill & Associates. He described what happened and how he was surprised to find out that he was deportable after his conviction.

Greg Hill then explained that in 2021, Assembly Bill 1259 was passed into law, broadening Penal Code § 1473.7(a)(1) to permit a motion to vacate a conviction following a conviction at trial. Greg also explained the legal standard that a judge would have to apply and what evidence from our client would be helpful.

The client then retained Greg Hill & Associates to prepare, file, serve and then appear in court the hearings on the motion. Greg reached out to prior counsel, who stated to Greg and then signed a declaration that was submitted to the motion. Prior counsel stated that he did not recall ever discussing the immigration consequences of the conviction with the client.

Our motion did not seek a judicial finding of ineffective assistance of counsel (IAC). Indeed, to establish the type of "error" required by section 1473.7, a defendant need not establish IAC. Section 1473.7(a)(1) states: "A finding of legal invalidity may, but need not, include a finding of ineffective assistance of counsel." Accordingly, "the focus of the inquiry in a section 1473.7 motion is on the 'defendant's own error in . . . not knowing that his plea would subject him to mandatory deportation and permanent exclusion from the United States.'" People v. Camacho (2019) 32 Cal. App. 5 ^th 998, 1009.

At the hearing on motion in the Riverside Superior Court, the judge denied the motion. The judge made a mistake, we think, as she said the declaration from prior counsel was not sufficient because it did not say he did not advise our client.

Our client, however, signed a declaration stating he never discussed the immigration consequences with the attorney.

We believe this met the preponderance of the evidence standard needed to vacate the motion, but the judge disagreed. After all, the People presented no evidence that our client received any warning about the adverse immigration consequences.

We present this summary to exemplify to the reader how judges often make mistakes. Judges often have no experience with such motions, as we believe was the case here as well.