Recently, in Los Angeles County at the Downey Courthouse I successfully litigated a Penal Code § 1473.7 motion arguing that our client failed to meaningfully understand the immigration consequences that would result from his 2000 Penal Code § 273.5(a) conviction.
In this matter, the court file was destroyed in 2013 so the Tahl form is no longer available and the transcript of the plea proceeding has since been destroyed. The only record regarding the immigration advisement the defendant received was in the court docket. According to the court docket, our client was advised that his conviction “may have” immigration consequences, but he was never advised that his conviction was a crime involving moral turpitude and, as such, the immigration consequences were a certainty.
In our motion, we argued that advising our client that immigration consequences “may result” when they in fact “would result” led our client to believe that the charge allowed some possibility for immigration relief, which it does not. Accordingly, we argued our client failed to meaningfully understand and knowingly accept the immigration consequences of his plea as a result of not knowing that those consequences would certainly flow from the conviction and not just “may” occur.
After filing the motion, the court requested a supplemental motion discussing the impact the recently decided California Court of Appeal case, People v. Landaverde, would have on the present case. We wrote and submitted a supplement to the court discussing the minimal impact Landaverde had on our client’s case given that we are not making a claim based on ineffective assistance of counsel (“IAC”), as the defendant in Landaverde relied on. Further, we argued that a claim based on IAC is not required under Section 1473.7. In our supplement we discussed three case examples under Penal Code section 1473.7 that may be successful without alleging IAC: (1) interpreter error, (2) advised “may” v. “will”, and (3) no Faretta advisement.
At the final hearing on the motion, we won the motion to vacate the plea pursuant to Penal Code section 1473.7 and we were able to renegotiate with the DA to a lesser related offense!
The information in this blog post (“post”) is provided for general informational purposes only, and may not reflect the current law in your jurisdiction. No information contained in this post should be construed as legal advice from Escovar & Avila, LLP or the individual author, nor is it intended to be a substitute for legal counsel on any subject matter. No reader of this post should act or refrain from acting on the basis of any information included in, or accessible through, this Post without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from a lawyer licensed in the recipient’s state, country or other appropriate licensing jurisdiction. The information on this website is a communication and is for informational purposes only. The facts of every case are unique and nothing on this page or on this website should be taken as legal advice for any individual case or situation. The information on this website is not intended to create an attorney-client relationship and viewing of this information does not create an attorney-client relationship. The result portrayed in this advertisement was dependent on the facts of this case. Results will differ if based on different facts.