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California Court of Appeal: Right to Withdraw Plea 23 Years After Entered Because Counsel Failed to Properly Advise of Immigration Consequences and Defendant Mistakenly Believed Permanent Resident Status Barred Adverse Immigration Consequences

by David M. Reutter

The Court of Appeal of California, Second Appellate District, ruled that Miguel Lopez “demonstrated a reasonable probability that if he had been properly advised of the immigration consequences of his plea, he would not have pleaded no contest to an offense that would subject him to mandatory deportation from the United States.” It, therefore, ordered that Lopez be allowed to withdraw his plea.

Lopez and Gustavo Montoya took or attempted to take money from businesses by threatening the employees with an air pellet gun that was a replica of a .45 caliber semiautomatic handgun. Their crimes, which occurred between December 22, 1997, and May 20, 1998, netted an estimated $946. Montoya identified Lopez as the driver of the getaway car. They were charged with four counts of second-degree robbery and one count of attempted second degree robbery.

At arraignment on August 4, 1998, the prosecutor offered Lopez a plea deal of a maximum of two years in state prison in exchange for a plea to one count of second-degree robbery. Lopez accepted the deal. With respect to immigration consequences of the conviction, the prosecutor warned that the conviction “may result” in deportation, denial of naturalization, or denial of reentry if he left the country. When asked if he understood, Lopez answered, “Yes.”

The trial court accepted the no contest plea and on August 31, 1998, sentenced Lopez to two years in prison and dismissed the other four counts. Lopez, on July 12, 2021, moved to vacate the conviction under Penal Code § 1473.7(a), which requires a court to “vacate a conviction or sentence upon a showing, by a preponderance of the evidence, of ‘prejudicial error damaging the moving party’s ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a plea of guilty or nolo contendere.’. . . If the motion is meritorious, ‘the court shall allow the moving party to withdraw the plea.’”

Lopez served his two years but was not deported until 2016. He filed a motion to vacate his conviction under § 1473.7(a)(1) in 2021. In support of his motion, he filed a signed declaration and several exhibits. In his declaration, he stated: (1) he came to the U.S. at the age of 13 and has lived here continuously until his deportation in August 2016, (2) he finished middle and high school in the U.S., (3) he was a lawful permanent resident of the U.S., (4) having grown up in the U.S., he considered himself an American, (5) he had no prior experience with the criminal justice system, (6) at the time of his plea, retained counsel never advised him of the immigration consequences of a conviction, (7) he believed that his status as a lawful permanent resident would shield him from any immigration consequences of his conviction, (8) he first learned of the immigration consequences when he was deported in 2016, (9) had he known of the consequences, he would have never accepted a plea deal and would have gone to trial, (10) prior to being deported, he financially supported his mother and was very close with his siblings and extended family, and (11) he has no friends or family in Mexico and has been unable to find employment – if he is able to gain lawful entry into the U.S., his former employer has assured him of employment.

The trial court denied the motion, ruling that there was insufficient evidence that Lopez would have rejected the plea agreement had he understood the actual immigration consequences. Lopez appealed.

The Court observed that § 1473.7 authorizes a defendant who’s no longer in criminal custody to file a motion to vacate a conviction or sentence where the “conviction or sentence is legally due to prejudicial error damaging the moving party’s ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence.” § 1473.7(a)(1); see People v. Manzanilla, 80 Cal. App. 5th 891 (2022). The moving party need not establish that “counsel’s representation fell below an objective standard of reasonableness” in accordance with prevailing professional norms. Strickland v. Washington, 466 U.S. 668 (1984); see People v. Camacho, 32 Cal. App. 5th 998 (2019). Under § 1473.7, a court must “vacate a conviction or sentence upon a showing, by a preponderance of the evidence, of ‘prejudicial error damaging the moving party’s ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a plea of guilty or nolo contendere.’” § 1473.7(e)(1), (a)(1). Upon a finding that the motion has merit, the “court shall allow the moving party to withdraw the plea.” § 1473.7(e)(1); People v. Vivar, 485 P.3d 425 (Cal. 2021). 

Under federal law, a person convicted of an “aggravated felony” is subject to mandatory deportation and permanent exclusion from the U.S. 8 U.S.C. § 1227(a)(2)(A)(iii); United States v. Palomar-Santiago, 141 S. Ct. 1615 (2021). Aggravated felonies include crimes of violence, theft, or burglary where the term of imprisonment is at least one year. § 1101(a)(43)(F) and (G). Robbery is an aggravated felony under U.S. immigration law. §§ 1227(a)(2)(A)(iii), 1228(c).

The Court stated that the standard of review for § 1473.7 motions is the independent standard of appellate review, which the Vivar Court explained requires an appellate court to exercise “its independent judgment to determine whether the facts satisfy the rule of law.” Vivar.

On appeal, the People argued that Lopez’s motion was untimely, pointing out repeatedly that his motion to vacate was heard 23 years after his conviction and five years after his removal from the U.S. The Court rejected that argument, explaining that § 1473.7 doesn’t define timeliness by the passage of time between the plea and filing the motion to vacate. See, e.g., People v. Perez, 67 Cal. App. 5th 1008 (2021). The Court explained that although he entered his plea in 1998, he didn’t suffer the consequences of removal and permanent exclusion from the U.S. until 2016, at which time he promptly sought to withdraw his plea and vacate his conviction. Thus, the Court concluded that the 23-year gap “does not diminish the credibility of [Lopez’s] declaration in support of the motion.”

The Court then turned to the issue of whether Lopez understood the immigration consequences of his plea. It concluded that the general advisement that he “may” be subject to various adverse immigration consequences of his plea is “insufficient to inform [Lopez] that the conviction would subject him to mandatory deportation and permanent exclusion from” the U.S.

The Court noted that the state Supreme Court has explained there is a material difference between an actual and a theoretical risk of deportation: “A defendant entering a guilty plea may be aware that some criminal convictions may have immigration consequences as a general matter, and yet be unaware that a conviction for a specific charged offense will render the defendant subject to mandatory removal.” People v. Superior Court, 523 P.2d 636 (Cal. 1974); see INS v. St. Cyr, 533 U.S. 289 (2001) (“for noncitizens, [t]here is a clear difference … between facing possible deportation and facing certain deportation”); see also United States v. Rodriguez-Vega, 797 F.3d 781 (9th Cir. 2015) (“Warning of the possibility of a dire consequence is no substitute for warning of its virtual certainty. As Judge Robert L. Hinkle explained, ‘Well, I know every time that I get on an airplane that it could crash, but if you tell me it’s going to crash, I’m not getting on.”). Additionally, where immigration law is clear that upon conviction removal from the country is inevitable, “counsel must advise his client that removal is a virtual certainty.” People v. Manzanilla, 80 Cal. App. 5th 891 (2022).

Turning to the present case, the Court stated that the facts show Lopez did not understand his plea conviction would subject him to mandatory removal. Lopez was a permanent resident and believed that status would protect him from deportation. The record also showed that at the time of his plea, Lopez was 22-years-old and had no previous encounters with the criminal justice system. His lawyer never asked about or counseled Lopez about immigration consequences of a conviction, nor did counsel attempt to negotiate a plea that did not have immigration consequences, the Court noted.

The record further showed Lopez came to the U.S. at the age of 13 with is mother and four siblings after his father died. He became the father figure in the home and supported his mother up to the time he was deported. He has no ties to Mexico, so the deportation is very hard on him.

The Court determined that Lopez’s “personal history, deep ties to the United States, and at the time of his plea, his youth and lack of experience with the criminal justice and immigration systems sufficiently corroborate [his] claim that his ability to remain in the United States with his family was a paramount concern.” The Court concluded that had he been properly advised that his plea would result in mandatory deportation, “it is reasonably probable [Lopez] would have rejected the plea had he correctly understood its actual immigration consequences.” Thus, the Court ruled that counsel’s error together with Lopez’s misunderstanding of the immigration consequences because of his mistaken belief that his status as a permanent resident would shield him from potential adverse immigration consequences interfered with his “ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of” his plea. § 1473.7(a)(1); see People v. Camacho, 32 Cal. App. 5th 998 (2019) (counsel error and defendant’s ignorance and own error believing plea deal shielded him from adverse immigration consequences). 

Then, the Court explained that establishing error alone is insufficient to successfully withdraw a plea under § 1473.7; the error must also be prejudicial. Vivar. The prejudicial error analysis focuses on the defendant’s mindset and what he understood – or didn’t understand – at the time of the plea. People v. Mejia, 36 Cal. App. 5th (2019). The state Supreme Court instructed that “showing prejudicial error under [§ 1473.7(a)(1)] means demonstrating a reasonable probability that the defendant would have rejected the plea if the defendant had correctly understood its actual or potential immigration consequences.” Vivar. Additionally, the U.S. Supreme Court has stated that where avoiding deportation is the defendant’s primary concern, there’s a reasonable probability that the defendant “would have rejected any plea leading to deportation – even if it shaved off prison time….” Jae Lee v. United States, 137 S. Ct. 1958 (2017). 

Turning to the present case, the Court concluded that based on Lopez’s declaration in support of his motion together with the exhibits supporting his declaration, he satisfied the requirements for showing prejudicial error. Thus, the Court held that “it is reasonably probable appellant would have rejected the plea had he correctly understood its actual immigration consequences.”

Accordingly, the Court vacated the trial court’s order and remanded with instructions to grant Lopez’s motion and vacate the conviction. See: People v. Lopez, 83 Cal. App. 5th 698 (2022). 

Editor’s note: Longtime readers of CLN will notice that the presentation of facts in this court-opinion summary is more detailed than usual. This was done intentionally and purposefully. As a practice-tip reminder, when citing to a favorable case and arguing that it governs your situation, you must show how and why your situation is materially similar to the cited case but meaningfully distinguishable from unfavorable cases that the opposing party will inevitably cite in support of its position. With heavily fact-specific issues like this case, each and every fact matters in reaching a decision.

The Lopez case is potentially a favorable decision for those seeking relief under § 1473.7, so you want to argue that you are similarly entitled to relief by showing as many factual similarities between Lopez and your situation as possible. To do that, you must have an understanding of all the relevant facts that persuaded the Court to rule as it did, so that is the reason the recitation of facts is more extensive in this summary than usual.  

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