What is a Plea Under People v. Palmer? Why Do It?

Following the U.S. Supreme Court ruling in Padilla v. Kentucky (2010) 559 U.S. 356, a criminal defense attorney must advise noncitizens about the deportation risks of a guilty plea.  This holding has been generally extended to include the duty of criminal defense counsel to protect his or her client from all adverse immigration consequences of a conviction.  However, sometimes such consequences are simply unavoidable.  

For example, our office represented a gentleman facing multiple felony sex crime offenses in the Riverside County Superior Court.  While we were aware that convictions for the offenses would be regarded as aggravated felonies and crimes of moral turpitude these crimes were under federal immigration law and we advised the client of this fact, but we could not resolve the case for immigration neutral charges.  In eventually reaching a plea bargain, the judge sought to establish a factual basis for the plea and asked us if we would stipulate to the police report as a factual basis for the plea.  Greg Hill responded that the plea would be entered pursuant to People v. Palmer (2013) 58 Cal. 4th 110, 164 Cal. Rptr. 3d 841, which the judge accepted.

Under Palmer, the California Supreme Court held that the trial court may accept a plea and find that there is a factual basis for the plea without requiring defense counsel to recite specific facts or identify which particular documents form the factual basis. 

 

Palmer does not actually hold that a defendant is entitled to refuse to stipulate to a specific document, but a defendant can never be compelled to enter a stipulation.  It simply holds that a plea is permissible even without a stipulation to a particular document.  From the client’s standpoint, there will rarely ever be a situation where it is in a client’s immigration interest to augment his or her change of plea with additional facts.

If possible, defense counsel therefore should attempt to enter a general stipulation that some factual basis exists, without reference to any specific document.  This approach is approved in Palmer (there is no requirement of a factual basis of any kind for a plea to a misdemeanor offense. People v. Ballard (1978) 84 Cal.App.3d 885).

If it is necessary to refer to a specific document, a prudent criminal defense attorney must be selective, i.e., choose a document that merely recites the basic essential elements of the charged offense and no more.  This may be true, for example, of the charging document.  Criminal defense counsel may also consider stipulating to only certain portions of a document. 

 

One should also be aware that California law allows the defendant to make an oral or written admission to establish a factual basis for a plea. People v. Holmes (2002) 32 Cal. 4th 432. Counsel can control the contents of defendant’s admission, by stating it for him, and then asking, “Is that correct?” Counsel’s wording of the defendants admission can then add detailed facts that do not damage the defendants immigration position, such as the date and place of the offense, the time of day, or the nature of the car the defendant was driving, and complete the admission with a statement of the elements of the offense that is insufficient to cause the conviction to come within a ground of deportation or trigger any other immigration consequence. 

For example, counsel can say, “Mr. Defendant, is it true that on March 4, 2014, at the corner of Hollywood and Fourth Street, in the city of Los Angeles, within the state of California, within the County of Los Angeles, while driving a blue Toyota Celica, you possessed a controlled substance prohibited under Health and Safety Code 11377(a)?”  This would be sufficient to constitute a factual basis for a possession offense, but does not identify the particular controlled substance involved, except that it is on the California schedule.  This preserves the argument that the conviction does not trigger deportation, because the particular substance might be on the state but not the federal list. See Matter of Paulus, 11 I. & N. Dec. 274 (BIA 1965). 

Defense counsel can also personally stipulate that he or she has conducted an investigation into the facts of the case, and personally believes that a factual basis exists, and on that basis, enters a stipulation that a factual basis exists, without identifying a specific document or eliciting an admission from the defendant.  The basis is technically then counsel's review and not what is contained in the documents themselves.  

Lastly, one should be reminded that entering a plea under People v. West (1970) 3 Cal.3d 595, also aids the defense in refusing to admit the truth of any factual basis, since the defendant is explicitly declining to admit guilt of the charge to which a plea is entered.