Motion to Vacate Denied, Immigration Consequences

In the context of motions to vacate a conviction based on a plea or conviction reached without defendant knowing there would be immigration consequences, we have learned that judges generally seem more likely to grant the motion when the conviction is for a rather minor crime and the older the conviction, the more likely the motion will be granted.

These generalities, however, certainly can be inapplicable when there is a detailed transcript from the plea bargain wherein defendant is actively engaged in discussions about the plea with the judge.

In the following summary, a Long Beach Superior Court’s denial of a Penal Code § 1473.7(a)(1) motion to vacate a conviction and the Second Appellate District affirmed the trial court (Laura Laesecke).

The underlying facts showed defendant Moises Fernando Diaz was involved in a serious crime. On March 11, 1989, he and two other men robbed the victim, who was working alone as a cashier at a Shell gasoline station. The men lured the victim into a gas station restroom, where Diaz held a knife to the victim’s neck while the two other men stole cash and other items from the store.

Just after the robbery, Diaz was arrested nearby with a knife in his pocket that had blood on the tip. The victim identified Diaz as the person who held the knife to his neck and identified the knife as the one that was held to his neck.

During the plea colloquy in 1989, defense counsel advised the judge that Diaz had two requests. First, Diaz asked to counter the prosecutor’s offer of three years, which was low term plus one year for the personal use of a deadly weapon (Penal Code § 12022(d)), in state prison with low term, or two years “if he could get a forthwith [be remanded immediately] that day.” His second request was that if the prosecutor would not lower the plea term to two years, would the judge reduce bail.

The judge explained to Diaz that the three year term would not improve and that the matter would simply remain set for trial, at which Diaz faced significantly more time if convicted.

Diaz then asked the judge to sentence him instead only for possession of a firearm by a felon, which would be half-time. The judge declined his invitation. Diaz also asked for the judge to run the weapon use enhancement concurrent with the two year term. The judge also declined this request.

Diaz then even asked the judge about being returned $17 that was seized from him when he was arrested.

Diaz then agreed to the three year term and, in taking the plea, the prosecutor advised Diaz that if he were not a U.S. citizen, the conviction could result in his deportation or exclusion from the United States. Diaz was then remanded, served his term and was released.

On May 21, 2020, Diaz moved to vacate his conviction under Penal Code § 1473.7(a)(1), arguing that he was not adequately advised of and did not understand the immigration consequences of his plea. The motion explained how at the time of the plea, he was 18 years old and had a temporary resident card. He had come to the United States at age six.

In the motion, Diaz claimed he never discussed the immigration consequences of the conviction with his public defender, Norman Tanaka (who had died in the meantime). He also claimed Tanaka never even inquired where he was born or if he was a U.S. citizen.

He acknowledged that he received the immigration warning, but he did not believe it applied to him because he was not in the United States illegally.

After being released from prison, he was not deported. He was convicted of DUI four times and served sixteen months in state prison for the fourth DUI. In 2013, he was deported because of his 1989 robbery conviction with use of a knife because it was an aggravated felony and a crime involving moral turpitude under immigration law. He then re-entered the United States illegally and stayed in the United States.

At the time he filed his motion in 2020, he was in federal immigration custody for illegal re-entry to the United States and faced immediate deportation.

Judge Laesecke ruled that the motion by Diaz was timely (the People argued it was not), but given the facts of the case and the strength of the case against him, it was highly unlikely that Diaz would have been charged with a lesser crime that did not have the same immigration consequences.

The trial court also noted – and we think this is most important – that Diaz was confrontational with the judge at the plea hearing and appeared to have knowledge of the judicial system. He was aware that his temporary status would be expiring in eight to ten months and, consequently, he was aware of the immigration consequences of his plea.

Moreover, the crux of Diaz’s current case with deportation consequences seemed to be his illegal re-entry to the United States, not the robbery conviction. He also had a felony DUI conviction, a further crime of moral turpitude (defense counsel said this was true for impeachment under state law, but not for immigration law). Lastly, the police report stated Diaz was from Mexico, so his attorney would have most likely explained the immigration consequences.

On appeal, the Second Appellate District agreed with Judge Laesecke that Diaz’s declaration was self-serving and just not credible. It also put great weight in Diaz’s knowledge that his temporary status would expire while he was in custody if longer than 8 to 10 months, so he was aware that there were adverse immigration consequences of the plea just because, for practical effect, it would mean he’d miss his opportunity to secure permanent resident status because he would be incarcerated at the time.

Diaz was also aggressive in his self-advocacy at the time of the plea hearing, so it is doubtful that he would not have inquired to his attorney about the immigration consequences after the DA advised him of the immigration consequences. He also asked the judge multiple questions, even about something rather insignificant like the return of the $17 from him when arrested. It was therefore not believable that he would have left his immigration status to chance without discussing it with his attorney. As the Second Appellate Court commented, “this is not the type of person whose legal immigration status was a priority, as he then claimed in the motion to vacate 31 years later."

The more logical explanation is that Diaz did discuss the immigration consequences with Tanaka, knew it would be nearly impossible to avoid, and decided that the slim possibility of success at trial was not worth the risk that he would serve six years in state prison.

Most significant, we think, however, is that Diaz declared he was processed by immigration officials before entering his plea for the 1989 conviction, and that they advised his he would be convicted of a deportable offense and would lose his legal resident status. This was an adverse immigration consequence, as he would then not have a legal right to remain in the United States.

The citation for the Second Appellate District Court ruling discussed above is People v. Moises Fernando Diaz (2nd App. Dist., 2021) 76 Cal. App. 5th 102, 291 Cal. Rptr. 3d 238.

For more information about a motion to vacate a conviction under Penal Code § 1473.7(a)(1), please click on the following articles: