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The Criminal Defense Attorney, Immigration Advice Duty
The Gist of this Article: A criminal defense attorney must provide the client who is not a U.S. citizen with affirmative and competent counsel regarding the adverse immigration consequences of a plea in the case. We at Greg Hill & Associates believe counsel should also attempt to negotiate an immigration-neutral plea bargain to avoid such consequences if the original charge is an aggravated felony or a crime involving moral turpitude.
In 2015, an Orange County Sheriff’s Deputy pulled over Sigfredo Zendejas Lopez. Lopez could not produce his driver’s license and gave the deputy permission to search his truck. The search found half a gram of crystal methamphetamine under a cupholder and a loaded 12-gauge shotgun that had been reported stolen. Lopez was arrested and posted bail.
Two weeks later, the same deputy encountered Lopez again and asked if there was anything illegal in the car. Lopez said he might have some marijuana in the car (possession of marijuana was illegal in 2015, pre-Prop 64). Lopez gave the deputy permission to search his car again and the deputy found sixteen grams of methamphetamine and a digital scale. Lopez posted a bond and was again released.
About fifteen months later, Lopez was arrested again while in possession of a controlled substance.
Fourth Appellate District CA Court of Appeals Santa AnaIn February 2019, the Orange County District Attorney filed an information charging Lopez with: 1) being in possession of a controlled substance while armed with a firearm in 2015 (Health & Safety Code § 11370.1); 2) carrying a loaded, stolen firearm in public (Penal Code §§ 25850(a) and (c)(2)); 3) possession of a controlled substance for sale (Health & Safety Code § 11378); and 4) possession of a controlled substance (Health & Safety Code § 11377(a)), a misdemeanor.
About five months later, Lopez entered into a no contest plea and was sentenced to five years of formal probation, including 270 days in county jail. When entering the plea, he signed a Tahl waiver that had an explicit immigration consequences admonition and the judge accepting his plea gave Lopez the standard immigration consequences warning.
Once Lopez was taken into custody in Orange County jail, he was transferred to Immigration and Customs Enforcement (ICE) for deportation proceedings.
Orange County DA Seal
Orange County DA SealBefore six months had passed from the date he was convicted, Lopez filed a motion to withdraw his plea pursuant to Penal Code § 1018 (not Penal Code § 1473.7) based on a mistake in entering his plea without knowing the immigration consequences of his plea. The trial court denied the motion and Lopez filed an appeal with the Fourth Appellate District Court of Appeal in Riverside.
Justice Eileen Moore wrote the court’s opinion, reversing the trial court. Her opinion is extremely well-written and pleasure to read for its clarity and methodical presentation of the law on this issue.
Justice Moore first reminded the reader that Penal Code § 1018 permits a defendant at any time before judgment or at any time within six months of an order granting probation, if judgment is suspended, to withdraw a guilty plea for good cause shown. “This section shall be liberally construed . . . to promote justice” the statute states.
“Mistake, ignorance or any other factor overwhelming the exercise of free judgement is good cause for withdrawal of a guilty plea.” People v. Perez (2015) 233 Cal. App. 4th 736, 741.
“When a defendant is represented by counsel, the grant or denial of an application to withdraw a plea is purely within the discretion of the trial court after consideration of all factors necessary to bring about a just result.” People v. Nocelott (2012) 211 Cal. App. 4th 1091.
The appellate court then addressed Lopez’s claim by acknowledging that “the duty of defense counsel to advise clients of adverse immigration consequences of a plea agreement is an evolving area of the law.” In 2010, the U.S. Supreme Court issued its ruling in Padilla v. Kentucky (2010) 559 U.S. 356, wherein the Court held that being properly advised of adverse immigration consequences is part of counsel’s duty to provide effective representation under the Sixth Amendment. Id., at 367-368. Preserving the right to remain in the United States, the Court noted, can be more important to a defendant than remaining out of prison. Id. at 368.
The California Legislature then codified this duty of defense counsel, citing Padilla, to provide affirmative and competent counsel with accurate and affirmative advice about adverse immigration consequences in Penal Code § 1016.3. Section 1016.3 also imposes a duty on prosecutors to consider the avoidance of adverse immigration consequences “as one factor in an effort to reach a just resolution.”
In Lopez’s case, the court noted that Lopez paid his attorney $20,000 to defend him, but his attorney never discussed adverse immigration consequences of the plea bargain specifically as to him. He only advised him that there might be problems, but the plea bargain was presented to Lopez on the same day he accepted the deal and was only presented once he came to the courthouse. Lopez had been a permanent resident of the United States for 22 years. He had four children here and both his parents lived here. His income supported his four children.
Count three, possession of a controlled substance for sale, was an “aggravated felony” under federal law that left Lopez subject to nearly certain deportation. See 8 U.S.C. § 1227(a); United States v. Verduzco-Rangel (9th Cir., 2018) 884 F.3d 918, 920.
The firearm-related charge, however, would not necessarily have adverse immigration consequences. United States v. Aguilera-Rios (9th Cir., 2014) 769 F.3d 626, 637.
Count one, possession of a controlled substance, while it would render Lopez deportable, left open the possibility of seeking relief from deportation. 8 U.S.C. § 1229(b).
Accordingly, the appellate court reversed the order denying Lopez’s motion to withdraw his plea. The case was then remanded for further proceedings with the case still pending.
The citation for the Fourth Appellate District Court ruling discussed above is People v. Sigfredo Zendejas Lopez (4th App. Dist., 2021) 66 Cal. App. 5th 561, 280 Cal. Rptr. 3d 865.
For more information about the duty of a criminal defense attorney to give accurate and affirmative advice about the immigration consequences of a plea bargain, please click on the following articles:
