As anyone who has been convicted at trial (either with a jury or without, i.e., a bench trial with just the judge) and then been deported or faces adverse immigration consequences knows, a motion to vacate a conviction under Penal Code § 1473.7 does not apply. This is because, as currently written, Penal Code § 1473.7(a)(1) only applies to a conviction after a plea of guilty or nolo contendere.
In a Nutshell: Assembly Bill (AB) 1259 allows a person who was convicted at trial to file a motion to vacate under Penal Code 1473.7(a)(1) for a conviction that was legally invalid due to a prejudicial error damaging the person’s ability to meaningfully understand, defend against or knowingly accept the actual or potential adverse immigration consequences of a conviction or a sentence.
Penal Code § 1473.7(a)(1) currently reads that it applies when “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 plea of guilty or nolo contendere.” The term “conviction or sentence”, as written here, refers only to the conviction or sentence resulting from either type of plea, but not a verdict after trial.
Assembly Bill 1259 (2021) seeks to fix this “hole” in Penal Code § 1437.7(a)(1) by expanding the ability to vacate a conviction so that it also applies to a conviction following a trial. As amended, it 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:
- 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.”
We believe this amended version of 1473.7(a)(1) is long overdue. As Assembly Member David Chiu recognized, there are defendants facing a crime involving moral turpitude (CIMT) who proceed to trial without knowing the potential or actual adverse immigration consequences of a plea.
We at Greg Hill & Associates, for example, have had a client who was never told that if convicted at trial and convicted of first-degree residential burglary (Penal Code § 459), he would be deported. His attorneys were focused on earning a larger fee by going to trial, so they never even explored an immigration-neutral plea bargain, i.e., to second-degree residential burglary. The client was then tried, convicted and deported to Korea, but unable to vacate his plea because 1473.7(a)(1) does not apply to a conviction following a verdict at trial. It only applies to a plea of guilty or nolo contendere.
We think this is very unfortunate, as the lack of awareness of the immigration consequences made his conviction by the jury just as certain as the decision to enter into a plea bargain. He had no chance at trial and his attorneys were so inept that a conviction by the jury was a foregone conclusion.
The facts leading to the trial were the exact same as those 1473.7 currently seeks to assist: lack of sound immigration advice. When Padilla v. Kentucky (2010) 559 U.S. 356, 130 S.Ct. 1473, 559 U.S. 356 (granting remand based on ineffective assistance of counsel despite noting that Kentucky courts provided notice of possible immigration consequences on its standard plea form) was decided, the threshold issue was whether there was a prejudicial error in the conviction because defendant entered into a plea bargain without knowing of the adverse immigration consequences. The plea therefore was not entered into knowingly, intelligently and voluntarily.
We believe such a decision is akin to when a defendant choses to go to trial without knowing of the adverse immigration consequences of a jury verdict (or abandons a plea bargain that might have immigration neutral consequences); see People v. Mejia (2019) 36 Cal. App. 5th 859, 866 (“The key to the statute [Penal Code § 1473.7] is the mindset of the defendant . . . at the time the plea was taken.”).
Indeed, “the focus of the inquiry in a section 1473.7 motion is on the ‘defendant’s own error in . . . not knowing that his plea would subject him to mandatory deportation and permanent exclusion from the United States.’” Mejia, supra, at 871, quoting People v. Camacho (2019) 32 Cal. App. 5th 998, 1009; see also People v. Eun Sung Jung (2021 DJDAR 414) (defendant’s own mistake in not asking her public defender constituted prejudicial error sufficient to vacate a conviction).
Lastly, both the current and amended versions of Section 1473.7(a)(1) state: “A finding of legal invalidity may, but need not, include a finding of ineffective assistance of counsel.” We strongly suggest that defendant ask the judge to avoid a ruling that finds ineffective assistance of counsel because such a finding can impose a mandatory duty to report this to the State Bar, which then triggers a due diligence obligation on the State Bar’s behalf to investigate the matter. Such an investigation will most likely result in an inconclusive finding when prior counsel most likely made all reasonable efforts to properly represent defendant, but may not have had a duty to independently evaluate the immigration consequences, especially if the case arose before Padilla, supra.
For more information about Penal Code § 1473.7 motions to vacate, please click on the following articles: