Immigration advisement given but guilty plea reversed (PC 1473.7 vs. PC 1016.5)
On occasion, the judges view the presence of PC 1016.5 admonishment as a problem when you want to vacate your conviction. Here, we discuss vacating conviction for immigration purposes and to do so by filing a motion to withdraw the plea under PC 1473.7. If a judge takes a position that prior immigration advisement means that you will lose your motion, realize that this position is inaccurate and specifically discussed in Patterson, who was advised of PC 1016.5 and yet was allowed to proceed on a motion to withdraw the plea based on ineffective assistance of counsel (2 Cal 5th 885). Here are also specific PC 1473.7 case laws in which a plea form (or court advisement of deportation) was present and a motion was granted:
People v. Espizoza. This is a Supreme Court case from 2023.
In Espizona Defendant was advised of 1016.5 but the court still vacated the plea based on PC 1473.7 motion.
In his declaration, Espinoza explained: “I took the warning to be a general one that the court had to give everyone who pleads guilty. I did not understand it to have applied to me as a legal permanent resident who is in the United States legally, my attorney at the time did not mention to me that my plea would have immigration consequences. Had I known, I would have not accepted the plea and would instead have taken the case to trial or agreed to a longer sentence in exchange for an immigration safe plea”.
People v. Mejia (36 Cal App 5th 859)
A plea form with PC 1016.5 advisement was used. (defendant was advised of deportation, exclusion from admission, and denial of naturalization). The plea was vacated.
People v. Camacho (32 Cal. App. 5th 998)
The judge informed the defendant that “conviction could lead to deportation” (p 1001). The plea was vacated.
People v. Ruiz (49 Cal. App. 5th 1061)
The defendant signed and initialed 1016.5 advisements on the plea form. The plea was vacated.
People v. Vivar (11 Cal. 5th 510)
Defendant filled out the plea form on which he initialed PC 1016.5 admonishment regarding deportation, exclusion from admission, and denial of citizenship. The plea was vacated.
Thus, there are plenty of cases that can be used to show to a judge that a motion to withdraw the plea can be granted despite the defendant being told at the time of the plea that he could be deported. Probably because of Ruiz, defendants are not advised “will be deported”, which is a violation of PC 1016.5 legally mandated requirement.
If you have any questions about a motion to withdraw a plea in Los Angeles superior Court and are interested in cleaning your record, please contact Los Angeles Criminal Defense Attorney or Los Angeles Post Conviction Attorney at (818) 921-7744
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