NEW Appellate Opinion Analyzing Penal Code section 1473.7

On July 2, 2019, the California Court of Appeal certified for publication a new appellate opinion analyzing issues pertaining to Penal Code section 1473.7.

In 2012 the defendant in People v. Min Chang Chen, out of the Superior Court of Napa County, pled guilty to violating Health and Safety Code section 11358, cultivating marijuana. Ms. Chen is now facing immigration consequences as a result of this conviction and sought relief pursuant to Penal Code section 1473.7. The trial court denied her motion and Ms. Chen appealed.

The Court of Appeal upheld the trial court’s denial of Ms. Chen’s Penal Code section 1473.7 motion arguing that it cannot conclude on this record that Mr. Chen’s trial counsel failed to provide her with the ability to meaningfully understand the consequences of her plea and, in any event, she cannot prevail because she cannot establish prejudice.

According to the record, on the date of her plea Ms. Chen signed a waiver form advising her that her plea “could result” in deportation, exclusion from admission to this country, or denial of naturalization. According to Ms. Chen’s declaration attached to her motion, she stated that her lawyer did not mention or discuss the immigration consequences of her plea and she was not aware that by entering the plea she would be subject to deportation and removal and not being allowed back in America. The prosecution opposed her motion and included a declaration from the district attorney handling the matter at the time of the plea indicating that he would not have agreed to any lesser charges.

At the hearing on the motion the prosecutor called Ms. Chen’s trial counsel who testified that he knew Ms. Chen was a permanent legal resident and he attempted to negotiate a disposition that would be less harmful to Ms. Chen.

The court of appeal states that on this record they cannot conclude that Ms. Chen’s trial counsel failed to provide her the ability to meaningfully understand the consequences of her plea. According to the court of appeal, Ms. Chen was advised that the single felony would have the potential to cause her removal and she would not be allowed to come back. The court of appeal states that this “clearly imparts a risk of deportation” and provided her with notice and the ability to more fully explore the immigration impact of her plea. The court of appeal further stated that they are “unwilling to require counsel to state deportation will be certain because it may not be accurate advice, even in cases where an offense qualifies for mandatory deportation under federal law.” The court of appeal ultimately determined that based on counsel’s efforts in this case, they do not find that counsel erred.

The court of appeal went on to state that even if a court would conclude that counsel erred, Ms. Chen cannot prevail because she cannot establish prejudice. According to the court of appeal, Ms. Chen presented insufficient evidence that she would have rejected the plea and proceeded to trial had counsel been more explicit about its immigration consequences. The court of appeal stated that it was unlikely she would have obtained an acquittal or an alternative plea and there was no evidence to corroborate her assertion in her declaration that the immigration consequences were of primary importance to her at the time of her plea. Further, the court determined that Ms. Chen’s unsupported self-serving statements in her declaration are insufficient to meet her burden of proof. Thus, the court of appeal upheld the denial.

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