Trial Counsel Declaration for 1473.7
Here is a summary of some case law on this point:
Some judges believe that a declaration of the attorney at the time of the plea, usually, the trial counsel, is needed to win a motion to withdraw the plea under PC 1473.7. This is incorrect.
A party seeking relief under section 1473.7 is not required to provide a declaration of the pea counsel. (People v. Manznilla (2022) 80 Cal.App.5th 891).
And from another case:
A moving party is not required to provide the declaration of plea counsel in support of a Pen. Code, § 1473.7, motion to vacate a conviction. (People v. Lopez 83 Cal.App.5th 698).
Los Angeles Post Conviction attorney in our office handled many cases without prior counsel’s declaration. Sometimes it is impossible to obtain due to the death or retirement of the previous counsel But the law does not require a declaration or contemporaneous documentation from the time of plea (Espinoza 2023 Supreme Court decision on page 16 of the slip opinion). Mejia’s decision says that contemporaneous evidence is helpful but not required.
In the recent case of Vivar, Vivar’s previous counsel refused to provide a declaration.
Also, at the time of hearing on the motion at the trial court, Mr. Vivar lived in Mexico. This did not stop the court from granting a motion under California Penal Code 1473.7
In People v. Vivar (11 Cal. 5th 510) the Supreme Court held that the trial counsel’s advice was deficient.
- The trial counsel declined to submit a declaration but her emails and handwritten notes were submitted to the court.
- Counsel stated that she did not remember Vivar’s case
- Counsel stated that her “standard practice” at the time was to “advise non-citizens client of the potential for immigration consequences” of the convictions and she “routinely followed that practice”
- She also states that “she was confident that Mr. Vivar was fully advised of the consequences of the plea which included “possible” deportation”.
- She also stated that “he should consult an immigration attorney for clarification”.
- She failed to advise about Vivar’s understanding of immigration law regarding felonies versus misdemeanors.
- She also failed to advise Vivar about the “actual immigration consequences of the plea”.
The ruling is thus: the defense attorney cannot delegate his duty to inform of immigration consequences to another attorney, to wit, “talk to an immigration lawyer if you want to know about if your case will cause immigration issue” is ineffective assistance of counsel.
NOTE: Los Angeles post-conviction attorney uses Vivar to set up cases for appeal. Ordinarily, Appeal Court has to apply “independent review” (not “de novo” or “abuse of discretion”) standard of review on appeal. This means that for factual findings by the court the Court of Appeal has to give deference to the trial court’s finindgs. However, when the factual finding is based on a declaration and the trial court made a factual finding based on the declaration, the Court of Appeal has no reason to defer to the trial court factual findings and instead can draw its own conclusions. This holding from Vivar allows litigating a motion in a bad jurisdiction as long as the trial court will accept a declaration. Usins this strategy, a properly written declaration that is accepted by the trial court will win otherwise unwinable case and permit dismissal of your criminal case in Los Angeles or negotiating a desposition that will protect your immigration status in U.S. (the authority for this is found in Vivar page 528). Thus with Vivar the court is not bound by the trial court credibility determination when no live testimony was heard.
Call Los Angeles Post Conviction Attorney for more information about your case.
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