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.
Tahl Waivers: Manzanilla case
Presently Los Angeles Criminal Defense Attorney sees a lot of courts crossing out “may” on the plea form and putting “shall” in PC 1016.5 advisements in essence making sure that the defendant is aware that he or she will be deported as a result of the plea. This nuance should not prevent you from filing a PC 1473.7 motion because the failure of defense counsel to properly defend his or her client may be ground to reverse a plea. Recent unpublished cases law vacated conviction despite “shall” 1016.5 advisements due to trial council error.
In many courts, a defendant has to sign a plea waiver form to change his plea from not guilty to guilty. But even when there is a Tahl waiver with mandatory deportation, language, the fact that the defendant initialed and signed the waiver “did not absolve the defense counsel of the duty to advise of
immigration consequences.” (People v. Manzanilla (2022) 80 Cal.App.5th 891, 906 (Manzanilla).)
“Even where the form says that the defendant ‘will’ be deported, it does not substitute for the advice of counsel, and it is not a categorical bar to relief.” (Ibid.; accord, People v. Lopez (2021) 66 Cal.App.5th 561, 577 [“ ‘Although the Tahl form contains the word “will” and not “may,” it . . . “is not designed, nor does it operate, as a substitute for such advice” of defense counsel regarding the applicable immigration consequences in a given case’ ”].) Likewise, a trial court’s “ ‘generic advisement’ ” to a defendant that deportation“ ‘will result’ ” is not a substitute for counsel’s advice. (Lopez, at
p. 577.) “A proper advisement by the court does not foreclose the possibility of relief when counsel provides inaccurate or incomplete advice regarding immigration consequences.” (Id. at
p. 578.) Thus, in evaluating whether the defendant is entitled to relief under section 1473.7, “ ‘ “ ‘ “[t]he defendant can be expected to rely on counsel’s independent evaluation of the charges” ’ ” ’
rather than the generic statements in the Tahl waiver and plea colloquy.” (Manzanilla, at p. 906.)
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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