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California Court of Appeal: Statute Allowing Noncitizens to Vacate Convictions Due to Failure to Understand Adverse Immigration Consequences Applies Retroactively to Convictions Resulting From Trials That Are Not Yet Final

by Harold Hempstead

The Court of Appeal of California, Third Appellate District, held that Assembly Bill No. 1259’s (2021-2022 Reg. Sess.) ameliorative changes to Penal Code § 1473.7 apply retroactively to defendants who were convicted by trial as well as by plea, whose cases are not yet final, and who were not adequately advised of the negative immigration consequences of their decision to go to trial.

A 2010 traffic stop led to law enforcement seizing “about 200 grams of marijuana, a scale, empty baggies, cell phones, $580 … and other items” from Pravindar Prem Singh’s car. He was found guilty by a jury of possession of cannabis for sale and transportation of more than 28.5 grams of cannabis and sentenced to one year imprisonment. Singh appealed, and the Court of Appeal affirmed his convictions.

Singh was detained by ICE after he completed his sentence, and in May 2020, he filed a motion to vacate his conviction under § 1473.7, which allows noncitizens, who are no longer in criminal custody, to vacate their convictions based on a lack of understanding of adverse immigration consequences as a result of their convictions. People v. Fryhaat, 35 Cal. App. 5th 969 (2019). In Singh’s motion, he declared that his parents, wife, and children are U.S. citizens; that he had been a legal permanent resident residing in the U.S. since he was 13-years-old; that his counsel failed to inform him that a conviction would make him inadmissible to remain in the U.S. and eliminate any defense to deportation; and that if trial counsel had properly advised him of the foregoing, he would have asked counsel to negotiate a plea agreement that did not have adverse immigration consequences.

Singh’s motion also included a declaration from his immigration attorney declaring that Singh’s convictions made him inadmissible to remain in the U.S. and “ineligible to apply for a new green card.” Also, that vacating his conviction would make “several immigration alternatives available … [allow] him to preserve his lawful permanent residency, and … make him immediately eligible for release from immigration custody.”

The trial court denied Singh’s motion without making a determination on its merits, ruling that § 1473.7 “[o]n its face” does not apply to convictions by trial.

After Singh appealed and Assembly Bill 1259’s modifications to § 1473.7 became effective on January 1, 2022, he filed a supplemental brief arguing that the changes to the statute conclusively establish that § 1473.7 now applies to convictions after trial and that those changes retroactively apply to his case. The People agreed that Assembly Bill 1259’s changes to § 1473.7 make the statute applicable to convictions after trial but argued that Singh still is not entitled to relief, because he failed to establish that his trial counsel did not advise him of the adverse immigration consequences of his decision to go to trial or that he could have been offered an immigration-safe plea.

The Court of Appeal explained that Assembly Bill 1259’s change of the language from “consequences of a plea of guilty, or nolo contendere” to “consequences of a conviction or sentence” in § 1473.7 (a)(i) and (e)(4), shows that the Legislature intended for § 1473.7 to apply to any “conviction or sentence,” including one that comes after a trial. Also, this conclusion is consistent with the legislative history concerning the changes to § 1473.7, according to the Court. See, e.g., Sen. Rules Com., Off. Of Sen. Floor Analyses,3d reading analysis of Assem. Bill No. 1259 (2021-2022 Reg. Sess.) as amended May 24, 2021, p. 3 (“This bill expands the category of persons able to seek to vacate a conviction or sentence as legally invalid, whatever way that person was convicted or sentenced, including a person who was found guilty after a trial.”)

The Court held that the ameliorative changes to § 1473.7 retroactively apply to Singh, because his case was not yet final when the changes to the statute went into effect on January 1, 2022, and he appealed the denial of his § 1473.7 motion. In re Estrada, 408 P.2d 948 (Cal. 1965) (ameliorative criminal statutes apply to cases that are not yet final when the statute takes effect); People v. McKenzie, 459 P.3d 25 (Cal. 2020) (a case is not final as long as it “has not yet reached final disposition in the highest court authorized to review it”).

The Court concluded that the trial court’s summary denial of Singh’s motion prevented the production of a record that the Court could independently review because the lower court never addressed the merits of the motion. The Court added that every “qualifying defendant filing a section 1473.7 motion is entitled to a hearing on the merits of the motion.” § 1473.7(d).

The Court rejected the People’s argument that Singh should be denied relief because it’s “pure speculation” whether he could have accepted a plea without adverse immigration consequences. The Court countered that “this is inherent in all section 1473.7 motions” and that it’s the trial court’s responsibility to determine whether the defendant can prove by a preponderance of the evidence that there was an alternative resolution that he would have chosen if he were properly advised of the adverse immigration consequences by trial counsel. People v. DeJesus, 37 Cal. App. 5th 1124 (2019). The Court advised: “The speculative nature of this task does not render it impossible.”

Accordingly, the Court reversed the trial court’s order denying Singh’s motion and remanded for the trial court, in the first instance, to conduct a hearing in accordance with the full provisions of § 1473.7 on the merits of his motion. See: People v. Singh, 81 Cal. App. 5th 147 (2022). 

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