NEW Appellate Opinion Analyzing Recently Enacted Penal Code section 1473.7

On March 6, 2019, the California Court of Appeal certified for publication a new appellate opinion analyzing issues pertaining to Penal Code section 1473.7.

In 2009 the defendant in People v. John Garofy Camacho, 2019 S.O.S. 1065, out of the Superior Court of Los Angeles, pled no contest to a violation of Health and Safety Code section 11359, possession of marijuana for sale. In October of 2016 a Section 1203.4 motion was granted on Mr. Camacho’s behalf. In 2017, his offense was reduced to a misdemeanor pursuant to Proposition 64 (Health and Safety Code section 11361.8(f)). Mr. Camacho then filed a motion to vacate the conviction pursuant to Penal Code section 1473.7 which was denied on January 19, 2018. Mr. Camacho appealed.

Mr. Camacho filed a declaration in support of his motion and testified at the hearing. In his declaration, he declared that he came to the United States in 1985 when he was two years old and had attended school in the United States from elementary to high school. He testified that he was married to a United States citizen and has two United States citizens children. Mr. Camacho declared that his attorney never discussed immigration issues and never advised him to consult an immigration attorney. He further declared that at the time he entered his plea he heard the judge say that his conviction could lead to deportation but his attorney told him everything would be fine.

At the hearing on the motion to vacate, Mr. Camacho testified that he told his attorney during a meeting that he was not born in the United States and was undocumented. Mr. Camacho also testified that he thought that if he received jail time he would be deported. Mr. Camacho testified that the attorney did not tell him that the charge would subject him to mandatory deportation and prevent him from ever becoming a legal permanent resident. Mr. Camacho first learned of the immigration consequences when he retained counsel for the purpose of adjusting his status based on his marriage.

Mr. Camacho’s trial attorney also testified at the hearing on the motion and stated that he did not remember discussing immigration consequences with the defendant but that they did discuss the subject because he discusses immigration consequences with all his clients. His counsel further testified to his habit and practice regarding discussing immigration consequences but did not recall the particular advisements provided to Mr. Camacho. Mr. Camacho’s counsel did recall telling defendant that if he was able to reduce the charge to a misdemeanor and get an expungement that would help with immigration consequences.

The trial court found that the motion was premature because no deportation proceedings had been initiated and denied the motion on the basis that counsel’s performance did not fall below the standards of customs and practice at the time. The trial court concluded that there was no prejudice to the defendant even if counsel had not provided reasonable representation with regard to immigration consequences.

The appellate court began by noting that an expungement pursuant to Penal Code section 1203.4 has no effect on the federal immigration consequences of Mr. Camacho’s conviction. The appellate court also discussed the pre-2019 interpretation of Section 1473.7 which involved California courts assuming that ineffective assistance of counsel was required when moving parties claim a prejudicial error caused by having received erroneous or inadequate information from counsel. The appellate court discussed the Legislature’s amendments to Section 1473.7 by way of Assembly Bill No. 2867, which provided clarification of the statute.

Ultimately, the appellate court determined that the “defendant was required only to show that one or more of the established errors were prejudicial and damaged his ‘ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of [his] plea’” – rejecting respondent’s argument that review must be limited to legal principles relating to the right of effective assistance of counsel.

According to the appellate court, the facts established by the defendant’s declaration and testimony showed not only error by counsel but also defendant’s own error in believing that if he received no custody time he would avoid being deportable and in not knowing that his plea would subject him to mandatory deportation and permanent exclusion from the United States. The appellate court was satisfied that defendant satisfied the required showing that errors damaged his ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of his plea.

The appellate court then evaluated whether the defendant had met the prejudice requirement – noting that courts are not limited to the Strickland test of prejudice (whether there was a reasonable probability of a different outcome in the original proceedings absent the error). The court noted that prejudice can be shown by convincing the court that the defendant would have chosen to lose the benefits of the plea bargain despite the possibility or probability deportation would nonetheless follow. The appellate court found the facts stated in defendant’s declaration and testimony sufficient to meet the prejudice requirement.

The appellate court reversed the denial and directed the trial court to grant the motion.

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