NEW Appellate Opinion Analyzing Penal Code section 1473.7

On December 12, 2019, the California Court of Appeal certified for publication a new appellate opinion analyzing issues pertaining to Penal Code section 1473.7.[1]

On March 6, 2002, the defendant in People v. Robert Landeros Vivar, 2019 Cal. App. LEXIS 1238, out of the Superior Court of Riverside County, admitted to a violation of Health and Safety Code section 11383(c), “Intent to Manufacture Methamphetamine” and he was placed on probation for three years and ordered to serve one year in the county jail. The defendant also received a referral to the Residential Substance Abuse Treatment (RSAT) program.

At the time of the offense, the defendant had lawful immigration status. Shortly after the defendant pled to this offense, INS sent him a notice to appear in immigration removal proceedings due to his conviction in this matter. In 2003, the defendant was deported.

In 2018, Mr. Vivar filed a motion to vacate his conviction under Section 1473.7. In support of his motion, Mr. Vivar argued that his trial counsel was ineffective in failing to investigate and advise him of the immigration consequences of his plea and for failing to defend or mitigate the judgement. Mr. Vivar also argued that his plea must be vacated because it was legally invalid. The trial court denied the motion and Mr. Vivar appealed.

According to the evidence produced at the motion hearing, at the time of his plea, Mr. Vivar signed a Tahl form advising him that his plea “may” have immigration consequences. Mr. Vivar also attached a declaration to his motion stating that his trial counsel never asked about his immigration status, never explained the actual immigration consequences of his plea, and that he affirmatively told his trial counsel that he was very worried about possible deportation. The defendant also stated that he mistakenly believed that he could not be deported for a misdemeanor and assumed that felonies result in deportation. Mr. Vivar also stated that he accepted the plea deal that he took because he wanted to participate in the drug program, that if he completed the drug program then he could reduce his offense to a misdemeanor and avoid immigration consequences.

After a review of case law relevant to ineffective assistance of counsel, the court determined that trial counsel in this matter did not meet either the Sixth Amendment standard for assistance of counsel nor the standard under Section 1473.7 because she failed to advise the defendant of the near certainty that his offense would result in his deportation and failed to defend against or mitigate the immigration consequences of the plea. Thus, Mr. Vivar demonstrated by a preponderance of the evidence that his trial counsel’s representation was constitutionally deficient. However, because evidence was shown that the defendant had rejected a plea bargain presented to him that would have been immigration-neutral (Penal Code section 459), the court concluded that the record showed that the defendant prioritized drug treatment over potential immigration-neutral plea – therefore, the appellate court found that it is not reasonably probable that he would have rejected the plea but for his counsel’s failure to properly advise him.

Based on the fact that the defendant has not proven by a preponderance of the evidence that he was prejudiced by his counsel’s alleged errors, the court of appeal found that he is not entitled to relief.

Thus, according to this case, to be granted relief under Penal Code section 1473.7 a defendant is not required to prove a violation of his constitutional rights, but must show a reasonable probability that but for the prejudicial error the defendant would not have entered a plea.


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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.