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Motion to Vacate Conviction for Wrong Immigration Advice?

In a Nutshell: Due to amendments in Penal Code § 1473.7, one does not need to prove ineffective assistance of counsel or that there is a pending removal or deportation proceeding.  However, prior to this amendment, it was not ineffective assistance of counsel to fail to warn of adverse immigration consequences for certain pleas, as the following summary exemplifies (we think, quite shockingly).
With President Trump’s public statements concerning illegal immigration, those who are in the United States illegally, and with a criminal conviction or two, may feel quite vulnerable to being subject to deportation proceedings.

John Garofy Camacho had been born in Mexico in 1985 and brought to the United States when he was two years old.  He went to school in the United States and graduated from Huntington Park High School.  He married a United States citizen and has two children that were born here.  He worked as a tow truck driver.

In 2009, in the Norwalk Superior Court, Camacho was charged with possession of marijuana for sale, a violation of Health & Safety Code § 11359.  He hired an attorney and told him the most important thing was to avoid jail or prison because he otherwise would lose his job.  He also thought that if he were put in jail or prison, he would be deported.

The attorney then negotiated a plea bargain with no time in custody.  Due to the quantity of the marijuana found, the prosecutor refused to amend the complaint to allege simple possession instead.  According to the terms of the plea bargain, he was placed on three years of formal probation and required to perform a set amount of community service.  He pled no contest to the felony.

According to Camacho, the attorney never told Camacho about the immigration consequences of the plea and never told Camacho to consult with an immigration attorney before entering into the plea bargain.  Camacho did not know that possession of marijuana for sale was an aggravated felony under federal law.  8 U.S.C. § 1101(a)(43)(B).
Norwalk CourthouseNorwalk Courthouse

When Camacho entered his plea, he heard the judge warn him that the conviction could lead to deportation.  According to Camacho, his attorney never told him that he could have taken the case to trial.  According to Camacho, his attorney also never told him that this conviction would prevent him from becoming a legal permanent resident or that he faced mandatory deportation and exclusion from readmission to the U.S.

In 2016, Camacho petitioned the court under Penal Code § 1203.4 to have his conviction “expunged” and the judge granted this request, replacing his no contest plea with a not guilty plea and dismissing the case.
In 2017, Camacho filed a petition under Prop 64, the Adult Use of Marijuana Act (Health & Safety Code § 11361.8(f)), to have the felony reduced to a misdemeanor and the judge granted this request. 

In 2017, as well, Camacho retained counsel to vacate his original conviction to the original charge.  His motion to vacate under Penal Code § 1473.7 (first effective January 1, 2017) stated that his plea was entered into without his counsel advising him of the immigration consequences of the plea.  Camacho argued that his counsel’s failure to advise him of the immigration consequences of his plea was prejudicial error damaging his ability to understand the adverse immigration consequences of his plea.

In a hearing in January, 2018, the trial court judge (Olivia Rosales) denied the motion because there were no deportation proceedings initiated against Camacho.  The judge also found that counsel’s representation did not fall below the legal standard of what was reasonably expected under the customs and practices at the time.
The judge noted that Padilla v. Kentucky, a U.S. Supreme Court case (559 U.S. 356) on the issue, was decided in 2010.  In Padilla, the U.S. Supreme Court held that it was ineffective assistance of counsel under the Sixth Amendment for a defense attorney to fail to provide immigration advice on the deportation consequences of a plea.  Padilla, however, held that it was not retroactive to defendants whose convictions became final before the U.S. Supreme Court issued its ruling in Padilla v. Kentucky.  Therefore, Camacho’s counsel did not render ineffective assistance of counsel under the pre-2010 norms of performance and those stated by Strickland v. Washington test.  Strickland v. Washington (1984) 466 U.S. 668, 688, 694.

Camacho then filed an appeal with the Second Appellate District Court of Appeal.  The appellate court agreed with the trial court that Camacho did not establish ineffective assistance of counsel, but it did remand the case to the trial court level (Norwalk) with instructions to grant the motion and vacate the plea.

We think this decision is an important ruling to note for how and when ineffective assistance of counsel is viewed.  We further note that with recent changes to Penal Code § 1473.7 made effective January 1, 2019, a petitioner seeking to vacate a conviction does not even need to establish ineffective assistance of counsel in order for the judge to vacate a conviction. 

The citation for the Second Appellate District Court ruling discussed above is People v. John Garofy Camacho (2d App. Ct., 2019) 32 Cal. App. 5th 998.

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