NEW Sixth Appellate Opinion Analyzing Recently Enacted Penal Code section 1473.7

On August 31, 2018, the California Court of Appeal filed the sixth appellate case analyzing issues pertaining to Penal Code section 1473.7.[1] In 2012, the defendant in People v. Ramiro Tapia, 2018 S.O.S. 4366, out of the Superior Court of Madera County, pled no contest to one count of violating Penal Code section 182(a)(1) and one count of violating Health and Safety Code section 11358.

At the time of Mr. Tapia’s plea he was a lawful permanent resident. During his probationary term in this matter, Mr. Tapia left the United States for Mexico and was issued a notice to appear before the immigration court when he attempted to re-enter the United States as a “returning lawful permanent resident.”

On January 24, 2017, at the trial court level, Mr. Tapia filed a motion to vacate his judgment based on the theory that his trial counsel rendered ineffective assistance in 2012 for failing to advise him of the precise immigration consequences of his plea and for failing to negotiate a plea bargain that would result in no adverse immigration consequences.

Evidence presented at the trial court hearing on this motion showed that during the plea colloquy in this matter Mr. Tapia’s defense attorney trailed the matter for Mr. Tapia to consider how the people’s offer would affect his status as a legal permanent resident. A declaration submitted by Mr. Tapia’s defense counsel at the time of the plea also showed that his attorney believed he would be convicted of all charges at trial and he negotiated the best resolution possible. The declaration further alleged that Mr. Tapia was advised by counsel that the plea would expose him to deportation proceedings and other negative consequences and it was the attorney’s custom and practice to advise all LPR clients that the negative consequences of the plea include “loss of permanent resident status, preclusion from citizenship and prevention of reentry.”

A waiver form in this matter was also included in the record and showed the defendant was advised the conviction may have the consequences of deportation, exclusion and denial of naturalization. The transcript of the plea shows that the court further advised the defendant that the plea will result in his deportation, never being allowed to legally return to this country and never being allowed to become a legal citizen.

The trial court denied the motion finding that Mr. Tapia’s defense attorney was very competent and had advised him of the immigration consequences. Mr. Tapia appealed.

In its opinion, the appellate court stated that the standard of review was de novo. The appellate court upheld the trial court’s finding that Mr. Tapia was advised of the specific immigration consequences of his plea and the effect the plea would have on his resident status. The appellate court also found that the evidence at the time of trial and the defense attorney’s declaration provide substantial evidence that Mr. Tapia’s plea agreement offered a better resolution that he was likely to achieve at trial and therefore his trial counsel did not render deficient representation by failing to negotiate an “immigration safe” plea bargain.

Ultimately, the appellate court held that Mr. Tapia failed to prove either prong required for a showing of ineffective assistance of counsel and determined that the trial court did not err in denying the Section 1473.7 motion.

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[1] 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.

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