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What Happens at a PC 1473.7 or PC 1016.5 Motion Hearing in Los Angeles.

A common question in post-conviction cases is: What actually happens at the hearing for a motion for post-conviction relief?

This question often comes up in cases involving our criminal defense specialty practice involving Penal Code section 1473.7 and Penal Code section 1016.5 – to vacate an old California conviction because of immigration consequences.

For many people, the conviction happened years ago. You may now be facing deportation, denial of a green card, denial of naturalization, inadmissibility, or immigration detention, or various other immigration related problems. In some cases, you may not even be able to personally attend the hearing because you are detained by immigration authorities or are outside the United States.

That is why it is important to understand how these motions work, what evidence the judge may consider, and why declarations are so important.

The Defendant’s Declaration Is Usually the Key to the Motion

In a post-conviction motion, the petitioner — also called the defendant or moving party — usually files a written declaration.

A declaration is a written statement signed under penalty of perjury. In California, a declaration must be signed in compliance with Code of Civil Procedure section 2015.5, which allows a person to state that the facts are true and correct under penalty of perjury.

In a PC 1473.7 motion or PC 1016.5 motion, the defendant’s declaration may explain:

• the defendant’s immigration status and citizenship at the time of the plea;
• whether the defendant understood the immigration consequences;
• whether the defendant was advised about immigration consequences (specific to them)
• whether the defendant would have rejected the plea if properly advised;
• whether the defendant would have tried to negotiate an immigration-safe plea;
• why the conviction caused serious immigration harm;
• why the defendant is now wants to vacate the conviction.

For a post-conviction attorney in Los Angeles, the declaration is one of the most important parts of the motion. It gives the judge the defendant’s own explanation of what happened, what was misunderstood, and how the error affected the defendant’s decision to plead guilty or no contest.

Immigration Counsel’s Declaration Can Be Very Helpful

In addition to the defendant’s declaration, it is often helpful to submit a declaration from an immigration lawyer.

An immigration lawyer may explain the actual immigration consequences of the conviction. This can be very important because criminal judges and prosecutors may not always immediately see why a particular conviction is so damaging under federal immigration law.

This type of declaration can help show prejudice (a required element under the motion). In other words, it can help show that the error mattered.

The judge needs to understand not only that something went wrong, but also that the mistake had real consequences. A strong declaration from immigration counsel can help connect the criminal conviction to the immigration damage.

Evidence of Prejudice Is Critical

In both PC 1473.7 and PC 1016.5 cases, prejudice is required and best addresses the defendant’s connection to the US at the time of the plea.

Prejudice generally means that the defendant suffered harm because of the error. In immigration-related post-conviction cases, the defendant often argues that he or she would not have accepted the plea if the true immigration consequences had been understood.

Evidence of prejudice may include:

• family ties in the United States;
• long residence in the United States;
• U.S. citizen or lawful permanent resident family members;
• employment history;
• lack of meaningful ties to the home country;
• pending immigration applications;
• prior lawful status;
• evidence that immigration consequences were especially important to the defendant;
• evidence that alternative pleas may have been available;
• evidence that the defendant had a reason to fight the case rather than accept the plea.

A knowledgeable Los Angeles criminal defense attorney handling post-conviction work must carefully gather this evidence. The motion should not simply say, “The defendant was prejudiced.” It should show why the immigration consequences were important and why the defendant would have made a different decision.

PC 1016.5 Motions and the Problem with Hearsay

One important issue is that PC 1016.5 motions can involve evidentiary objections.

Under Penal Code section 1016.5, the issue is whether the court gave the required immigration advisement before accepting a guilty or no contest plea. The statute requires the court to advise a noncitizen defendant that conviction may have immigration consequences, including deportation, exclusion from admission to the United States, or denial of naturalization.

In a PC 1016.5 hearing, the court may not be required to simply accept written declarations if the prosecution objects. A declaration can be challenged as hearsay if the declarant is not present for cross-examination.

That means the judge may require live testimony from the defendant or another witness, depending on the facts and the objections made.

This is an important practical difference. A defendant should not assume that every declaration will automatically be accepted for every purpose at a PC 1016.5 hearing. A post-conviction attorney in Los Angeles must be prepared for the possibility that the court may want live testimony. But PC 1473.7 specifically permits declarations instead of live testimony.

PC 1473.7

PC 1473.7 is different in important ways.

Penal Code section 1473.7 allows a person who is no longer in criminal custody to file a motion to vacate a conviction or sentence when the conviction is legally invalid due to prejudicial error affecting the person’s ability to meaningfully understand, defend against, or knowingly accept actual or potential adverse immigration consequences. Unlike PC 1016.5, a straightforward factual finding of advisement – PC 1473.7 standard is subjective and can be entirely in the defendant’s mind. For example, defendant can simply say “I did not know deportation is permanent” or “I did not know that deportation would affect me,” etc.

The statute also says that all motions are entitled to a hearing. Upon request of the moving party, the court may hold the hearing without the moving party’s personal presence if the court finds good cause why the moving party cannot be present.

This matters because many people seeking PC 1473.7 relief cannot easily appear in court. Some are detained by immigration authorities. Some have been deported. Some are outside the United States and cannot lawfully return unless the conviction is vacated.

In these cases, the defendant’s declaration may be especially important. The declaration can allow the defendant to present facts to the court even when personal appearance is difficult or impossible.

When the Defendant Is Detained by Immigration

Some people cannot attend the post-conviction hearing because they are detained by ICE or another immigration authority.

This is common in post-conviction cases. A person may be in removal proceedings, detained far from the criminal courthouse, or unable to travel because he was already deported.

In a PC 1473.7 case, defense counsel can ask the court to allow the hearing to proceed without the defendant’s personal presence. The court must find good cause. Immigration detention may be a strong reason to request that the hearing proceed without the defendant being physically present.

The Prosecutor May File an Opposition

After the defendant files the motion, the prosecutor may file an opposition.

The prosecution is not always required to oppose the motion. In some cases, the prosecutor may agree that the conviction should be vacated. Penal Code section 1473.7 even provides that if the prosecution has no objection, the court may grant the motion to vacate without a hearing.

But in many cases, the prosecutor will oppose the motion.

The opposition may argue that:

• the defendant was properly advised;
• the plea form contains immigration warnings;
• the defendant cannot prove prejudice;
• the motion is untimely;
• the defendant’s declaration is not credible;
• the record shows the defendant would have taken the plea anyway;
• the defendant has not shown a legally valid basis to vacate the conviction.

A strong reply is often necessary. Post-Conviction Attorney Los Angeles will respond to the prosecution’s arguments, correct misstatements, and explain why the defendant has met the legal standard.

Problems with Prosecutor Declarations

Sometimes the prosecutor attaches a declaration to the opposition. In some cases, the declaration is signed by the same prosecutor who is arguing the case.

This can create several problems.

First, the declaration may contain hearsay. The prosecutor may be repeating what someone else allegedly said or what some record allegedly means.

Second, the declaration may lack foundation. The prosecutor may not have personal knowledge of the old plea, the defendant’s understanding, the immigration consequences, or the communications between the defendant and prior counsel.

Third, the declaration may contain speculation. A prosecutor generally cannot simply speculate about what the defendant understood, what the defendant would have done, or what prior defense counsel must have explained.

Fourth, the declaration may raise an advocate-witness issue.

Rule 3.7: Lawyer as Witness

California Rule of Professional Conduct 3.7 is known as the lawyer-as-witness rule.

The rule provides that a lawyer shall not act as an advocate in a trial in which the lawyer is likely to be a witness unless one of the exceptions applies. The exceptions include testimony about an uncontested issue, testimony about the nature and value of legal services, or informed written consent from the client. (The State Bar of California)

This rule can matter when a prosecutor submits a declaration and then also acts as the advocate arguing the case.

A declaration is testimonial in nature. If the prosecutor is offering factual testimony, and then also arguing the case, your post-conviction attorney must object that the prosecutor is improperly acting as both witness and advocate.

This is especially concerning if the declaration contains disputed factual claims. A lawyer should not be able to place facts before the court through his or her own declaration and then argue the meaning of those same facts as counsel.

Why Prosecutor Declarations Should Be Challenged

Your post-conviction attorney must carefully review any declaration attached to the prosecution’s opposition.

And objections based on:

• hearsay;
• lack of foundation;
• lack of personal knowledge;
• speculation;
• improper legal conclusion;
• improper factual conclusion;
• violation of the advocate-witness rule;
• unfair prejudice;

The objections will depend on the specific declaration and the specific hearing. Not every prosecutor declaration will have the same problem. But when the declaration is being used to prove facts, a Los Angeles criminal defense attorney should consider whether it is admissible and whether it violates Rule 3.7.

A careful Los Angeles criminal defense attorney should not allow the prosecution to prove contested facts through an improper declaration without objection.

What the Judge May Do at the Hearing

At the hearing, the judge may:

• read the motion, opposition, and reply;
• review the defendant’s declaration;
• review the immigration attorney’s declaration;
• consider plea forms and transcripts;
• hear oral argument from both sides;
• decide whether live testimony is required;
• consider evidentiary objections;
• decide whether the defendant’s personal appearance is required;
• grant or deny the motion.

In some cases, the judge may rule after argument. In other cases, the judge may continue the hearing, request additional briefing, require live testimony, or ask for more evidence.

Every case is different. The outcome often depends on the quality of the record, the strength of the declaration, the immigration consequences, the prejudice evidence, and the judge’s view of the credibility of the moving party.

Why the Motion Must Be Prepared Carefully

A PC 1473.7 or PC 1016.5 motion should not be treated as a simple form.

These motions often involve a combination of criminal law, immigration law, evidence rules, ethics rules, and post-conviction procedure.

The attorney must understand:

• the original criminal conviction;
• the plea record;
• the immigration consequences;
• the client’s personal history;
• the standard for prejudice;
• the difference between PC 1473.7 and PC 1016.5;
• whether live testimony may be required;
• how to object to improper prosecution evidence;
• how to respond to hearsay, speculation, and foundation problems.

That is why it is important to work with a post conviction attorney in Los Angeles who understands both criminal defense and immigration-related post-conviction relief.

Conclusion

At a PC 1473.7 or PC 1016.5 hearing, the judge is not simply reviewing paperwork. The judge is deciding whether an old conviction should be vacated because something legally important went wrong.

The defendant’s declaration is usually central. A declaration from immigration counsel can be very helpful. Evidence of prejudice is critical. The prosecution may file an opposition. If the prosecutor submits a declaration, the defense should carefully examine whether that declaration is inadmissible hearsay, lacks foundation, contains speculation, or creates a lawyer-as-witness problem under Rule 3.7.

If you are facing immigration consequences because of an old California conviction, you should speak with a Los Angeles criminal defense attorney or post-conviction attorney in Los Angeles who can review your case, analyze the plea record, and determine whether a motion under Penal Code section 1473.7 or Penal Code section 1016.5 may be available.

The Law Offices of Alex Andryuschenko assists clients with criminal defense, immigration-related post-conviction relief, motions to vacate convictions, and related California criminal law matters. You can call the criminal attorney directly at 323-464-6424

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