NEW Ninth Appellate Opinion Analyzing Recently Enacted Penal Code section 1473.7

On September 27, 2018, the California Court of Appeal certified for publication a new appellate opinion analyzing issues pertaining to Penal Code section 1473.7.[1]

On July 26, 2000, at his arraignment, the defendant in People v. Pablo Gonzalez, 2018 S.O.S. 4732, out of the Superior Court of San Diego, pled guilty to a violation of Health and Safety Code section 11359, possession of marijuana for sale. Mr. Gonzalez was deported in October of 2000 and deported two additional times after reentering the United States. Mr. Gonzalez’ wife sought legal counsel multiple times on her husband’s behalf since the time of his conviction and, after the passage of Penal Code section 1473.7, Mr. Gonzalez’s wife was informed by counsel that her husband may have viable post-conviction relief.

In August of 2017, Mr. Gonzalez moved to vacate his 2000 conviction pursuant to Penal Code section 1473.7 and, after an evidentiary hearing, it was denied. Mr. Gonzalez appealed arguing that he had established sufficient prejudicial error based on his counsel’s failure to adequately advise him of the immigration consequences of his plea and failed to seek an alternative immigration safe alternative.

In a group plea, Mr. Gonzalez was given the following advisement regarding the immigration consequences of his plea: “Each of you should understand if you’re not citizens of the United States, your guilty plea will affect your status in this country. And it will result in departure, denial of citizenship or exclusion.” Further, per a plea waiver form, Mr. Gonzalez was advised that if he was not a citizen his plea “can or will” result in removal or deportation, exclusion from admission to this country, and denial of naturalization.

Mr. Gonzalez argued in his motion that (1) his counsel violated his duty to investigate and accurately advise him about the specific immigration consequences of a plea and (2) his counsel failed to defend against the immigration consequences by failing to attempt to plea bargain to an immigration safe alternative plea. Mr. Gonzalez attached a declaration stating, amongst many things, that he does not recall anyone telling him that he would be deported if he pled guilty and had he been told he would have fought his case and asked his attorney to try for a better deal.

At the hearing on the motion, Mr. Gonzalez’ attorney at the time of his plea and his wife testified. Mr. Gonzalez’ attorney, Jose Luis Guerrero, stated that he had no recollection of the case but his practice at the time was to review the waiver form with the defendant and if he had an immigration hold he would tell him in a group with other clients with a hold that he could be deported. He would then have informed Mr. Gonzalez on an individual basis that he would be deported. Mr. Guerrero also testified that because Mr. Gonzalez confessed, the offer he received from the People would have been the best he could receive.

Mr. Gonzalez’ wife also testified and stated that at the time of his plea Mr. Gonzalez’ daughter had ailments that required frequent medical attention and that his income was essential to the well-being of his family.

The court of appeal reviewed the standard of review for this matter and determined that a trial court may be found to have abused its discretion on the issues of ineffective assistance of counsel if its factual findings are not supported by substantial evidence.

As to the IAC claim, the court of appeal determined that Mr. Gonzalez failed to satisfy the first prong of the Strickland analysis as required for an IAC claim. At the time of Mr. Gonzalez’ plea, his trial counsel had no affirmative obligation to advise the defendant of the immigration consequences of his plea. As such, his representation of Mr. Gonzalez did not fail below the then-contemporary reasonable objective standard of practice. As such, the court upheld the denial of the 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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