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Showing Prejudice in a P.C. 1473.7 Motion to Vacate

As the reader of this website may already be aware, Penal Code § 1473.7(a)(1), as amended effective January 1, 2022, reads:  “(a) A person who is no longer in criminal custody may file a motion to vacate a conviction or sentence for any of the following reasons: (1) The conviction or sentence is legally invalid due to 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 finding of legal invalidity may, but need not, include a finding of ineffective assistance of counsel.”
Brief Synopsis: In the context of a 1473.7(a) motion to vacate, prejudice certainly can be shown by the presence of an immigration-neutral neutral plea bargain that defendant rejected because he was not aware that the alternative plea bargain he or she instead agreed to had adverse immigration consequences that his or her attorney never explained.  Otherwise, we find arguing that had defendant known the adverse consequences, he or she would have gone to trial instead because of his or her deep ties or deep roots to the United States, developed over years being here.  We also think that if defendant had the conviction expunged, it suggests defendant was unaware of the adverse immigration consequences because, otherwise, expungement had beneficial employment effects.        
What is a “prejudicial error damaging the moving party’s ability to meaningfully understand, or knowingly accept the actual or potential adverse immigration consequence of a conviction or sentence?”

What kind of errors are sufficient prejudicial error under 1473.7(a)(1) according to the courts?
  1. Ineffective assistance of counsel (IAC).  However, Assembly Bill 2837, signed into law effective January 1, 2019, modified Penal Code § 1473.7 to remove the requirement of establishing IAC for relief under 1473.7(a)(1).
  2. Defendant’s own error in not asking his or her attorney more questions about the immigration consequences.  See People v. Eun Sung Jung (4th App. Dist. 2020) 59 Cal. App. 5th 842, 274 Cal. Rptr. 3d 93 (defendant’s own mistake in not asking her public defender about the immigration consequences of her plea because she was too intimidated by him constituted prejudicial error sufficient to vacate a conviction).
  3. Not discussing the immigration consequences of a conviction with his or her defense counsel prior to entering a no contest or guilty plea that carried with it immigration consequences.  The case law on this is People v. Martinez (2013) 57 Cal.4th 555, 562, 160 Cal.Rptr.3d 67 (internal citation omitted) (Under California law, a defendant may establish prejudice in the plea context by demonstrating that “it is reasonably probable he would not have pleaded guilty if properly advised.”); see also People v. Mejia (2019) 36 Cal. App. 5th 859, 866 (“The key to the statute [Penal Code § 1473.7(a)(1)] is the mindset of the defendant . . . at the time the plea was taken.”).
In this regard, judges and especially prosecutors often appear eager to characterize any declaration from defendant stating this as “self-serving” and “lacking credibility,” so this valid ground can be eviscerated by a judge.  This is so even when defendant explains that he or she would not have entered into such a plea with such adverse consequences because he or she had no family or friends remaining outside the United States and that our client had developed many friends, other relationships and employment here in the United States that he or she would not have risked losing.  See In re Hernandez (2019) 33 Cal.App.5th 530, at 534.
While these three grounds above seem solid, and certainly were regarded as sufficient in early 2021, we began to notice judges taking a much more critical approach to claims of prejudice.  This was particularly true in some of the cases with convictions that were for serious felonies because in such cases the argument seemed hollow that had defendant known of the adverse immigration consequences of the plea, defendant would have instructed his counsel to continue negotiating for an immigration-neutral plea bargain or proceed to trial.  Courts have then determined that for such charges, there was no immigration-neutral alternative and going to trial was likely to lead to a conviction.
We believe that when courts make this determination, they are overstepping their role as a neutral and become an advocate for the People.

To guard against this, we suggest that defendants present the following six-factor test for the court to use in more serious cases, especially those that may have resolved in the last ten years.  In People v. Esteban Zarate Bravo, published on October 4, 2021, the Fourth Appellate District endorse a six-factor credibility test that People v. Vivar (2021) 11 Cal. 5th 510, at 529-530, and People v. Martinez (2013) 57 Cal.4th 555, 568 state a court should evaluate.  They are:
  1. “The presence of other plea offers and whether the possibility of a plea to an immigration-neutral charge existed;
  2. The seriousness of the charges in relation to the plea bargain;
  3. The defendant’s criminal record;
  4. The defendant’s priorities in plea bargaining;
  5. The defendant’s aversion to immigration consequences; and
  6. Whether defendant had reason to believe that the charges would allow an immigration-neutral bargain that a court would accept.”
We recommend that defendant emphasize that the court should not evaluate whether a defendant’s claim that he or she “would have instead instructed counsel to prepare for trial” was wise.  See United States v. Monzon (9th Cir., 2005) 429 F.3d 1268, 1272 (a court cannot consider whether a defendant’s decision to go to trial “may have been foolish.”).  Moreover, the U.S. Supreme Court acknowledged that while the consequences of trial and a plea may be similarly dire, however, trial has a small chance of success, similar to a late-game “Hail Mary” pass that just might succeed, however unlikely.  Trial, after all, can be unpredictable and defendant was deprived of that chance, however slim, based on his counsel’s advice, or lack thereof.  Jae Lee v. United States (2017) 137 S. Ct. 1958.  That alone, one should argue, constitutes sufficient prejudicial error for the court to vacate the conviction.

For more information about showing prejudice in a 1473-7 Motion to Vacate a Conviction for Improper or Lack of Immigration Advice, please click on the following articles:
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