Motion to Vacate (PC 1473.7) Granted, San Fernando

Over the last six years, since Penal Code § 1473.7 became law, and then as amended twice, there have been a series of appellate court and even California Supreme Court decisions that have clarified how such a motion should be evaluated under varying factual scenarios.

 

Some of the rulings have seemingly made it harder for a non-citizen to prevail and others seem to make it easier.  The following summary of a recent Second Appellate District ruling suggests it is easier.

In 2008, Beatrice Ariana Curiel and her husband, Saul Desantiago, were each charged in Los Angeles County Superior Court, San Fernando Courthouse, with two counts of identity theft (Penal Code § 530.5(a)); one count of making a false financial statement (Penal Code § 532a(1)); two counts of possession of a forged driver’s license (Penal Code § 470b); and two counts of grand theft auto (Penal Code § 487(d)(1)). 

Curiel had no prior criminal history before this series of crimes.  She and Desantiago had six children together.

In 2008, Ms. Curiel pleaded no contest to identity theft, making a false financial statement and grand theft.  She agreed to be jointly and severally liable for $11,396 in restitution to the car owner victim.  She and her husband were then placed on probation.

Prior to entering her plea, Ms. Curiel signed a four-page Tahl waiver form in which she also initialed boxes next to paragraphs on the form acknowledging that she understood and agreed to the terms of the plea, the advisements and waivers of her rights, and the consequences of the plea.  One of the paragraphs stated: “Immigration Consequences – I understand that if I am not a citizen of the United States, I must expect my plea of guilty or no contest will result in my deportation, exclusion from admission or re-entry to the United States, and denial of naturalization and amnesty.”

Another paragraph provided: “Prior to entering this plea, I have had a full opportunity to discuss with my attorney the facts of my case, the elements of the charged offense(s) and enhancement(s), any defenses that I may have, my constitutional rights and waiver of those rights, and the consequences of my plea.”

At the plea hearing, Ms. Curiel was present, with her privately retained attorney and a Spanish-language interpreter. 

The judge asked Ms. Curiel if she had had enough time to discuss the consequences of the plea set forth in the form, including “[i]f you are not a citizen of the United States, you must expect that your plea of guilty or no contest will result in your deportation, . . .”  Ms. Curiel stated yes.  When asked if she understood this consequence, she said yes.

In 2017, Ms. Curiel successfully moved to expunge her conviction under Penal Code § 1203.4. 

In 2021, Ms. Curiel filed a motion to vacate her plea under Penal Code § 1473.7.  In her motion, she argued that her privately retained attorney did not properly advise her of the adverse immigration consequences of her plea because while the attorney knew she was not a U.S. citizen, his response to this was to just have Ms. Curiel avoid jail time to avoid ICE agents in the jail and deportation.

In her motion, Ms. Curiel also explained that she had been living in the United States for 32 years since coming to the U.S. at age 14.  All of her children were U.S. citizens.  Her mom is a U.S. citizen and her five siblings legally reside in the U.S.  At the time she entered her plea, her main interest was staying out of jail because she had six-month old twins.

However, such convictions with move than $10,000 in restitution (even if joint and several) constituted both aggravated felonies and crimes involving moral turpitude.

The judge hearing the motion, Judge David B. Walgren, denied the motion, explaining that “every piece of evidence shows she was fully advised and fully accepted the consequences, indicated the consequences were explained to her, indicated she knew she would be deported. . .  The court also advised her of the consequences.”  Judge Walgren went on to explain that there was no prejudice to her and that he regarded her statements as “self-serving and not credible.”

It merits mention that there is one judge our office knows who states this reasoning in almost every motion we have presented to her.  No one has heard of her ever granting such a motion to vacate. The reasoning by Judge Walgren seems to be her “recipe” as well and she will often add “Well, I guess you took a chance in taking the plea.  You rolled the dice on deportation, knowing the odds.  You now know you lost.  I am denying the motion based on a lack of credibility.”

Ms. Curiel then appealed to the Second Appellate District Court, which reversed Judge Walgren.

The appellate court found that a defendant can be expected to rely upon his or her counsel’s independent evaluation of the charges rather than the generic statements in a Tahl waiver and the plea colloquy with the judge.  Such “pieces of evidence” as Judge Walgren explained, did not preclude Ms. Curiel from demonstrating that she did not meaningfully understand the immigration consequences of her plea. 

Moreover – and we think this is most important – the Second District explained that Ms. Curiel’s post-plea conduct in seeking expungement and lawful residence status were not consistent with someone who understood her conviction made her presumptively deportable and ineligible for re-entry.