On January 23, 2018, the California Court of Appeal certified for publication the first appellate case analyzing issues pertaining to Penal Code section 1473.7. The defendant in People v. Modesto Perez, out of the Superior Court of San Diego County, pled guilty to possession of methamphetamine for sale (Health and Safety Code section 11378) on August 10, 2005. Mr. Perez was deported to Mexico over six months later based on his controlled substance conviction.
Penal Code section 1473.7 became effective on January 1, 2017, and provided a procedure for individuals no longer in criminal custody to file a motion to vacate a conviction based on a claim of either of the following: (1) a prejudicial error damaging the defendant’s ability to meaningfully understand, defend against, or knowingly accept the actual or potential immigration consequences of a plea, or (2) newly discovered evidence of actual innocence.
On February 21, 2017, Mr. Perez filed a motion to vacate his conviction based on Penal Code section 1473.7. Mr. Perez argued in his motion that “(1) his counsel violated the duty to investigate and accurately advise him about the specific immigration consequences of a plea; (2) his counsel failed to defend against immigration consequences of a plea by attempting to plea bargain for an immigration safe alternative disposition; and (3) Perez failed to meaningfully understand the immigration consequences of the conviction.” At the Superior Court level, the People opposed the motion, arguing it was untimely, and that Mr. Perez understood and was advised of the immigration consequences of his plea; the court denied the motion as untimely. Mr. Perez timely appealed.
In its opinion, the Court of Appeal addressed multiple issues relating to newly enacted Penal Code section 1473.7. First, the court determined that Penal Code section 1473.7 relief may be applied retroactively and can provide relief to individuals who pled prior to the statute’s effective date. The Court of Appeal indicated that it struggled with the Superior Court’s determination that the motion was untimely when “the rights giving rise to the motion did not take effect until January 1, 2017,” and the Superior Court only appeared to consider Mr. Perez’s actions before that date. The Court of Appeal acknowledged that Mr. Perez brought this motion seven weeks after the passage of Section 1473.7 and they found nothing in the record to indicate that the motion was untimely. However, the Court of Appeal stated that even if it is assumed the motion was timely, Mr. Perez did not satisfy his burden of proving he was entitled to relief on other grounds discussed below.
The Court next addressed whether the record before them evidenced a contention that Mr. Perez did not meaningfully understand the immigration consequences of his plea. Based on the documents present in the record, specifically the transcript of the plea which indicated that the Superior Court explicitly informed Mr. Perez that he would be deported if he plead guilty, the appellate court determined that the lower court “left no doubt” that Mr. Perez would be deported. The appellate court determined that the Superior Court was unequivocal about the immigration consequences of a guilty plea - stating to Mr. Perez that the federal government would not allow him to become a United States citizen. The appellate court concluded that this “was not a situation where the court informed a defendant that there was a “high likelihood” that he would face deportation”, as was the case in United States v. Rodriguez-Vega (2015) 797 F. 3d 781, 791). In fact, the court concluded that they struggle to contemplate how Mr. Perez could have been more “indisputably informed of the immigration consequences of his guilty plea.”
What to Take Away from this Ruling:
· Penal Code section 1473.7 applies retroactively and may provide relief to persons convicted prior to its effective date.
· Petitioning for relief under Penal Code section 1473.7 must be timely, but this determination should not be solely focused on action, or inaction, by the defendant prior to this section’s effective date.
· The facts in Modesto Perez clearly demonstrate that the petitioner was properly advised. The good news is that this case seems to suggest that when the advice regarding the immigration consequences is not so clear and explicit, as it was here, relief may be granted.
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 Penal Code section 1473.7 became effective on January 1, 2017 and states, in pertinent part, as follows:
(a) A person no longer imprisoned or restrained may prosecute a motion to vacate a conviction or sentence for either of the following reasons:
(1) The conviction or sentence is legally invalid due to a 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.
(2) Newly discovered evidence of actual innocence exists that requires vacation of the conviction or sentence as a matter of law or in the interests of justice.
(b) A motion pursuant to paragraph (1) of subdivision (a) shall be filed with reasonable diligence after the later of the following:
(1) The date the moving party receives a notice to appear in immigration court or other notice from immigration authorities that asserts the conviction or sentence as a basis for removal.
(2) The date a removal order against the moving party, based on the existence of the conviction or sentence, becomes final.
(c) A motion pursuant to paragraph (2) of subdivision (a) shall be filed without undue delay from the date the moving party discovered, or could have discovered with the exercise of due diligence, the evidence that provides a basis for relief under this section.
 In United States v. Rodriguez-Vega (2015) 797 F.3d 781, Ms. Rodriguez-Vega appealed the magistrate judge’s denial of her 28 U.S.C. § 2255 petition to vacate her conviction of a misdemeanor “Attempted Transportation of Illegal Aliens” (8 U.S.C. § 1324(a)(2)(A)). In relevant part, she asserts that she was deprived of counsel because her attorney failed to advise her that her plea agreement rendered her removal a virtual certainty.
Ms. Vega-Rodriguez was advised on the plea agreement form that pleading guilty “may have consequences with respect to her immigration status if she is not a citizen of the United States. . . . Defendant nevertheless affirms that she wants to plead guilty regardless of any immigration consequences that his [sic] plea may entail, even if the consequence is his [sic] automatic removal from the United States. “ (Id. at 785.) . Further, during her plea colloquy, the magistrate advised her that “potentially” she could be deported or removed, “perhaps.” (Id.). At her sentencing, it was further stated that, “there is a high likelihood that she’ll still be deported.” (Id.). Fifteen days after her sentencing, Ms. Vega-Rodriguez was issued a Notice to Appear alleging she was removable based on this conviction.
Relying on the legal precedent set out in Padilla v Kentucky (2010) 559 U.S. 356 (“[W]hen the deportation consequence is truly clear,…the duty to give correct advice is equally clear.”) and United States v. Bonilla (2011) 637 F.3d 980 (“A criminal defendant who faces almost certain deportation is entitled to know more than it is possible that a guilty plea could lead to removal; he is entitled to know that it is a virtual certainty.”), the appellate court determined that counsel’s statements, made after the defendant had already plead guilty, that she faced a “high likelihood” or removal did not satisfy the duty to accurately advise his client of the removal consequences of a plea before she enters into it. (Id. at 787.). The Court of Appeal stated that even had counsel’s advisement that there was a “high likelihood” that she would be deported came before her plea it would still have been deficient because “it fails to state accurately the plain and clear status of the law.” (Id. at 791.). Overall, the appellate court determined that counsel’s performance was unconstitutionally ineffective.