PC 1473.7 Motion to Vacate Grounds: Defendant’s Own Error?

Less than two years later, she was charged in Orange County Superior Court with one count of second-degree commercial burglary (Penal Code §§ 459, 460(b)), obtaining drugs by a forged prescription (Health & Safety Code § 11368), possession of a controlled substance (Health & Safety Code § 11377(a)), misdemeanor possession of controlled substance paraphernalia (Health & Safety Code § 11364.1(a)) and misdemeanor identity theft with intent to defraud (Penal Code § 530.5(c)(1)). This arose out of an attempt to buy medication in a Walgreen’s using a forged prescription and she was found in possession of meth and a meth pipe.

A few months later, she was arrested for identify theft, sale of a controlled substance, receiving stolen property (Penal Code § 496(a)) and misdemeanor possession of drug paraphernalia.

The two cases were consolidated and she agreed to a sentence of 180 days in county jail. In entering the pleas, she initialed part of a plea form that contained warnings about the immigration consequences.

When she was released from jail, she was taken into custody by Immigration and Customs Enforcement (ICE) and five months later filed motions to withdraw her pleas in both cases.

In hearing her motions, the judge conducted an evidentiary hearing at which time she testified that her public defender handed her a bunch of forms and told her to “sign them and initial them.” She spent a “couple of minutes” reviewing the forms before signing them, but said “she didn’t read the whole thing.” Jung testified that her public defender did not discuss immigration matters and he did not tell her that signing the forms would have immigration consequences for her.

Jung acknowledged in her testimony that the prosecutor asked her if she understood that, if she were not a U.S. citizen, her plea would result in her deportation. She testified she “was kind of scared” and not sure whether she would be deported, but she “was too intimidated” to ask questions.

In other words, the prejudicial error in entering the guilty plea was her own, not her attorney’s and not the judge’s or the prosecutor’s. The Fourth Appellate District found that Ms. Jung’s own error in being too intimidated to ask further questions satisfied the requirement for relief under Penal Code § 1473.7. Jung further showed that had she been aware of the immigration consequences, she would have passed a plea and risked a harsher sentence at trial.

We bring this summary to the readers’ attention because we can see defendants who “are too intimidated” to ask questions all the time. They are scared about going to jail or prison and will agree to anything that avoids that in the short-term, without asking questions about the long-term consequences. Their public defender or their private attorney may be intimidating and the defendant may just obediently follow directions without asking questions that would be treated in a patronizing or irritated manner by the attorney.

Sadly, this probably happens every day, if not dozens of times, in courthouses within California.

The citation for the Fourth Appellate District Court ruling discussed above is People v. Eun Sung Jung (4th App. Dist., 2021) 59 Cal. App. 5th 842, 274 Cal. Rptr. 3d 93.

For more information about a Motion to Vacate a Conviction under Penal Code § 1473.7, please click on the following articles: