As a criminal defense law firm that has filed and “won” many motions to vacate a conviction under Penal Code § 1473.7 for defendant not knowing the immigration consequences of his or her plea, we have seen over and over how judges regard such motions with guarded skepticism.
The judges feel uncomfortable with the law that permits such an order because as one judge commented, “it is an entirely subjective standard,” meaning the judge must accept as true, unless it would be unreasonable under the circumstances, whatever defendant says he did or did not understand. Judges feel powerless because there is no objective standard.
The Reader’s Digest Version: The following Fourth Appellate District case sets forth a six-factor test that a court should use in evaluating a motion to vacate under Penal Code § 1473.7(a)(1) – and Defendant would be wise to address – in evaluating undue prejudice claims as a result of a conviction.
District attorneys tasked with opposing such motions have voiced similar frustration. We have seen prosecutors argue that defendant delayed too long in bringing such a motion and therefore did not bring such a motion “with reasonable diligence.” Penal Code § 1473.7(b). However, recently, a Fifth Appellate District Court case, People v. Jose Adrian Perez, addressed this argument, and provided an example of when defendant may delay too long in bringing such a motion three months after learning he could, but the Fifth District stated the court had “broad discretion” to still accept a motion filed later than this delay. People v. Moine (2021) 62 Cal.App.5th 440, 448.
The judicial and prosecutorial unease with 1473.7 motions may be somewhat lessened by the following published opinion from the Fourth Appellate District in People v. Esteban Zarate Bravo, published on October 4, 2021.
Defendant Bravo was a native of Mexico and his first language was Spanish. In 1997, he was arrested on suspicion of violating Penal Code § 273.5(a) (domestic violence upon his then girlfriend) as a felony and Penal Code § 273a (child cruelty), also as a felony. At the time, he was a lawful permanent resident (“green card holder”).
He entered a plea of guilty to both charges with the use of an interpreter and an attorney. In doing so, he initialed a form entitled “Consequences of Plea,” which advised him deportation and other immigration consequences “may” result from the plea.
Bravo was also in custody at the time and had a job as a carpenter that he was in danger of losing. He had to pay bills for his girlfriend, who did not work, and their child. Bravo was told by the prosecution and his own attorney that if he agreed to the plea, he would be released the same day, which would allow him to avoid immigration enforcement officials who would be conducting a sweep of the county jail he was being held at. If he entered the plea, he would avoid deportation.
He then entered the plea and was released, avoiding immigration enforcement officials.
Later, when he sought to renew his application for lawful permanent resident status, he was told his convictions for 273.5(a) and 273a made him ineligible to be a lawful permanent resident and barred from becoming a U.S. citizen. He spoke with an immigration attorney and then filed a motion to vacate his conviction under Penal Code §§ 1473.7 and 1016.5. His motion argued that at the time he entered his pleas, he was unaware of the future immigration consequences of his plea. He also argued that there was a prejudicial error in the convictions damaging his ability to meaningfully understand or knowingly accept the potential or actual adverse immigration consequences because he was not told he could be deported at any time due to the convictions.
He lastly argued that had he known these consequences, he would not have executed the plea agreement and would have relied on his defenses and gone to trial.
The trial court denied the motion, finding the 1016.5 claim as to an inadequate advisement was initialed by him with the use of an interpreter and sufficient, although it contained the words “may result” and not “will result.” The court plainly stated, “I have to take him on his word that he read and understood all the consequences of his plea.” The trial court then denied the 1473.7 motion as well.
On appeal, the case went first up to the Fourth Appellate District, which affirmed the trial court, then up to the California Supreme Court, which did not rule on the appeal, but instead remanded the case back down to the Fourth Appellate District to reevaluate its ruling in light of People v. Vivar (2021) 11 Cal. 5th 510, which disapproved of the earlier Fourth Appellate Court ruling in Bravo.
On remand, the Fourth Appellate District affirmed it earlier denial of both motions, but for a different reason not addressed by Vivar. This reason is what this article is written for and, we think, is a rather ominous warning of the future of such motions.
The Fourth Appellate District clarified first that under People v. Ruiz (2020) 49 Cal. App. 5th 1061, 1065, the Penal Code § 1016.5 warning was inadequate. It should have read “will result,” not “may result” because a conviction for 273.5(a) is an aggravated felony for purposes of the federal Immigration and Nationality Act (INA) (Moncrieffe v. Holder (2013) 569 U.S. 184, 187-188; Sessions v. Dimaya (2018) 138 S. Ct. 1204, 1210-1211). One convicted of an aggravated felony is presumptively deportable. 8 U.S.C.S. §§ 1227(a)(2)(A)(iii), 1228(c).
However, Bravo’s claim of suffering prejudice from the plea was not credible because he did not address six factors that Vivar, supra, at 529-530, and People v. Martinez (2013) 57 Cal.4th 555, 568 state a court should evaluate. They are:
- “The presence of other plea offers and whether the possibility of a plea to an immigration-neutral charge existed;
- The seriousness of the charges in relation to the plea bargain;
- The defendant’s criminal record;
- The defendant’s priorities in plea bargaining;
- The defendant’s aversion to immigration consequences; and
- Whether defendant had reason to believe that the charges would allow an immigration-neutral bargain that a court would accept.”
Looking to Bravo’s case, there was no immigration-neutral charge that was possible and Bravo did not argue that there was one that would have been acceptable to the prosecution, so the 1473.7 motion denial was affirmed.
The ruling is certainly significant for this six-point list, but the Fourth Appellate District also was notable for pointing out how defense counsel made certain arguments in his motion and at oral argument that were not supported by the client’s declaration.
We think this ruling is one all criminal defense attorneys filing 1473.7 motions should study closely as, we predict, it will be the “road map” prosecutors and judge were hungry for after seeing so many convictions vacated under 1473.7 based solely upon what defendant claimed not to know.
Nonetheless, we believe defense counsel can still prevail in such motions by carefully addressing each of the six points for evaluating defendant’s credibility and ensuring each argument in the motion is supported by the defendant’s declaration.
The citation for the Fourth Appellate District Court ruling discussed above is People v. Esteban Zarate Bravo (4th App. Dist., 2021) 69 Cal. App. 5th 1063, 284 Cal. Rptr. 3d 865.
For more information about Penal Code § 1473.7 motions, please click on the following articles: