Motion to Vacate Denied: Offense Not Deportable

In May, 2004, in San Bernardino County Superior Court, defendant Karla Vanessa Coca was charged with one felony count of receiving stolen property in violation of Penal Code § 496(a) and one felony count of felony second degree commercial burglary in violation of Penal Code § 459. 

In March of 2008, Ms. Coca pled guilty to one count of violating Penal Code § 496(a) as a misdemeanor and the judge dismissed the second degree commercial burglary count.  The judge then sentenced Ms. Coca to 36 months of probation. 

Ms. Coca was not a U.S. citizen at the time.  In entering her plea, she initialed an “Advisement of Rights and Waiver Form – Misdemeanor” which stated: “I understand that if I am not a United States citizen, my plea could result in my deportation, exclusion from future admission to the United States, or a denial of naturalization under the laws of the United States. 

In May 2022, Ms. Coca filed a motion to vacate her conviction under Penal Code § 1473.7(a)(1).  In an attached declaration, she stated she is not a United States citizen, but has been a resident since 1999.  She stated that a “substantial amount” of her family lives in the United States including her husband, daughter, grandmother and brother.

Her motion argued that because of her conviction for receiving stolen property, “I am ineligible for cancellation of removal, asylum, adjustment of status, or any beneficial immigration status.”  She did not otherwise specify the allegedly adverse immigration consequences of her 2008 conviction. 

Ms. Coca also filed a motion to vacate a 2004 conviction for misdemeanor petty theft, a violation of Penal Code § 488(a).

The San Bernardino County District Attorney’s Office opposed Ms. Coca’s motion to vacate her 2008 conviction under § 496(a), arguing Ms. Coca could not demonstrate prejudicial error because a conviction for violating § 496(a) did not qualify as an aggravated felony or a crime involving moral turpitude and thus could not result in any potential adverse immigration consequences. 

The trial court held a combined hearing on both motions to vacate.  At the hearing, Ms. Coca testified how she was born in Nicaragua in 1981 and moved to the United States sometime before she was five years old.  Until sometime around 2009, she believed she was a U.S. citizen and misunderstood the nature of immigration paperwork filed on her behalf when she was a minor.

Therefore, if her attorney had asked her if she was a citizen in 2008, when she entered her plea, she would have told her attorney she was a citizen.  She stated she did not recall any conversation with her attorney about possible immigration consequences from the guilty plea. 

Her attorney argued that while receiving stolen property was not an aggravated felony and was not a crime involving moral turpitude, the United States Citizenship and Immigration Services could consider the conviction in determining whether Ms. Coca possessed good moral character to become naturalized.

The judge granted the motion to vacate and the People appealed to the Fourth Appellate District, contending the trial court judge erred because Ms. Coca failed to carry her burden of demonstrating by a preponderance of the evidence that the 2008 misdemeanor conviction had adverse immigration effects.

The Fourth Appellate District agreed.  It explained that Penal Code § 1473.7(e)(1) requires that the movant “shall also establish that the conviction or sentence being challenged is currently causing or has the potential to cause removal or the denial of an application for an immigration benefit, lawful status, or naturalization.”

The appellate court further explained that a noncitizen who commits either an aggravated felony or a crime involving moral turpitude is subject to removal.  8 U.S.C. § 1227(a)(2)(i) & (iii); People v. Curiel (2023) 92 Cal. App. 4th 1160, 1174.  Moreover, receiving stolen property as a misdemeanor is not a crime involving moral turpitude under the categorical approach because the California statute involving receiving stolen property is broader and the elements of the federal offense.  Castillo-Cruz v. Holder (9th Cir., 2009) 581 F. 3d 1154.

Therefore, the appellate court agreed with the trial court that Ms. Coca failed to carry her burden of proof and the motion to vacate was properly denied.