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California Court of Appeal Vacates Conviction Because Generic Immigration Consequences Warning Insufficient for Defendant to Understand Mandatory Immigration Consequences as a Result of Guilty Plea

by David M. Reutter

The Court of Appeal of California, Third Appellate District, reversed a defendant’s 2010 conviction for possession for sale of methamphetamine, Health & Saf. Code, § 11378, based on its finding that the defendant was not properly apprised by the trial court of the immigration consequences that attached to his guilty plea.

Manual Valdivias Soto came to the U.S. as a teenager in the late 1980s to be with family and have children of his own. During a September 2009 traffic stop, a search uncovered 29.9 grams of methamphetamine in Soto’s breast pocket. He stated he was to receive $200 for delivering the drugs on behalf of another person. A probation report noted Soto never attended school, was illiterate in English and spoke it poorly, and he was subject to an immigration hold as a noncitizen.

In November 2009, Soto entered into a plea agreement that resulted in dismissal of two charges in return for his guilty plea to possession for sale of methamphetamine, which is an aggravated felony under the federal Immigration and Nationality Act that subjected him to mandatory deportation and exclusion.

The plea agreement form, however, only stated his plea “may cause my deportation, exclusion from admission to the United States and denial of citizenship or naturalization pursuant to the laws of the United States.” During the plea colloquy, the trial court made no inquiry into immigration consequences.

Prior to sentencing, Soto told the probation officer he didn’t want to be deported. Noting Soto was on misdemeanor probation for possession of a loaded weapon in public, the court sentenced Soto to two years in prison.

The Department of Homeland Security detained Soto in November 2017 when he applied for admission for entry at San Luis, Arizona. Soto sought to withdraw his plea in January 2020 under Penal Code § 1473.7, which enables an out-of-custody defendant to file a motion to vacate a conviction by showing by a preponderance of evidence the conviction is “legally invalid due to prejudicial error damaging the moving party’s ability to meaningfully understand, defend against, or knowingly accept the actual or potential immigration consequences of a guilty plea.” § 1473.7(a)(1).

The trial court denied the motion on the basis that Soto understood the immigration consequences when entering the plea and that his “repeated statements that he was guilty” established his “predominant feeling” at the time was that he had no chance of prevailing at trial, not the immigration consequences. Soto appealed.

The Court ruled that the trial court erred in concluding that the generic advisement provided to Soto regarding the potential immigration consequences of his guilty plea satisfied § 1473.7. “[T]he words ‘may have’ in a[n] ... immigration advisement are not an adequate immigration advisement for defendants charged with serious controlled substance offenses.” People v. Ruiz, 49 Cal. App. 5th 1061 (2020). In such cases, “[d]efendants must be advised that they will be deported, excluded, and denied naturalization as a mandatory consequence of the conviction.” Id. Although the plea agreement form indicated that pleading guilty “may” have potential immigration consequences, the Court ruled that generic notice coupled with the trial court’s failure to inquire about Soto’s understanding of the immigration consequences of his guilty plea were insufficient to alert Soto of the mandatory immigration consequences of his guilty plea.

The Court added that “as a result of recent amendments to section 1473.7, defendant did not have to prove that counsel was ineffective in failing to advise him of the mandatory immigration consequences.” See Ruiz. Rather, the Court explained that “a person’s own error in understanding or knowingly accepting that a guilty plea will have certain and adverse immigration consequences may constitute prejudicial error entitling that person to relief under section 1473.7.” People v. Rodriguez, 68 Cal. App. 5th 301 (2021).

The Court concluded that nothing in the record demonstrates that Soto meaningfully understood and knowingly accepted the mandatory immigration consequences. In fact, the record shows the opposite; Soto informed his probation officer that he did not want to be deported. His biographical history and communications corroborated his claim that immigration consequences, at the time of his plea, were of paramount concern to him. Thus, the Court ruled he established prejudice by not being properly advised.

Accordingly, the Court reversed the order denying the § 1473.7 motion and remanded the case to the trial court with directions to grant the motion and vacate the conviction. See: People v. Soto, 79 Cal. App. 5th 602 (2022). 

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