In a criminal case, before a defendant can enter a plea of guilty or no contest, the Judge must ensure that a non- citizen defendant has been advised pursuant to Penal Code section 1016.5. This is because Penal Code section 1016.5 requires that a non-citizen defendant be advised that the guilty or no contest plea that they are about to enter into may have adverse immigration consequences. In Penal Code section 1016.5 it is held that prior to the acceptance of a plea of guilty or no contest to any offense punishable as a crime under state law, except offenses designated as infractions under state law, the court shall administer the following advisement on the record to the defendant: If you are not a citizen, you are hereby advised that conviction of the offense for which you have been charged may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States. State law requires this advisal so that non-citizen defendants can enter into a plea agreement understand that there may be immigration consequences associated with the plea and they should either take into consideration the consequences before entering into the plea or consult with an immigration lawyer about his or her immigration situation. Unfortunately judges and prosecutors attempt to make it harder for non- citizen defendants withdraw their pleas and change the wording of the admonition to “will” instead of “may”. Essentially the goal is to make it harder for a non-citizen to withdraw a plea of guilty to avoid adverse immigration consequences. The attorneys at Uribe & Uribe APLC understand it is flawed reasoning to assert that since a non-citizen defendant is advised that he or she “will” face adverse immigration during the acceptance of a plea they now have a complete understanding of the immigration consequences associated with the plea. The reality is that immigration law is far to complex and the simplification of a complex legal analysis of one’s immigration status is improper and certainly does not provide the non-citizen defendant with good immigration advice. Instead, the California Legislature enacted Penal Code section 1016.5 as a warning so that non-citizen defendants can seek the appropriate advice and then make an intelligent decision. For instance, for a lawful permanent resident the issue may be related to whether a crime to be pled to, is classified as a crime involving moral turpitude in the federal immigration code and not whether the crime is considered an aggravated felony. Upon making a determination how a California conviction may affect a non-citizen’s immigration situation one must consider the immigration status of the non-citizen. A non-citizen that has no status may not suffer the same immigration consequences as a non-citizen who is a lawful permanent resident. It is for this reason that in changing the language stated in the penal code to “will” instead of “may” is not proper and can even be detrimental to a non-citizen understanding how a specific offense will affect his or her immigration situation.

Inserting “will” into the statutory language of section 1016.5 is intentionally designed to prevent or make it more difficult for defendants who were not citizens of the United States from obtaining post-conviction relief. According to the penal code defendants receiving the section 1016.5 advisement must be told that the immigration consequences are “possible” not that the these are “mandatory” consequences. The insertion of “will” in exchange for “may” casts the adverse immigration consequences of every plea as being mandatory. However, this is contrary to what is required under the statute, which sets forth the court’s duty concerning this advisement. See Penal Code section 1016.5(a). The Legislature wrote the “may” advisement for reason. By requiring the court to tell an accused that if they are not a citizen of the United States the conviction may have consequences, the Legislature was encouraging the accused non-citizens to obtain immigration advice and work with their attorney to negotiate an immigration safe disposition with the prosecutor, if possible. What that immigration advice is will vary from person to person. Not all convictions are harmful to all non-citizens. Some may be harmful to a lawful permanent resident but not to an undocumented person and vice versa. The fact that all three consequences (deportation, exclusion from admission and denial of naturalization) must be given but all three do not apply to every defendant (e.g. an undocumented person is not concerned with naturalization, and a lawful permanent resident may not be concerned with exclusion from admission) further supports the conclusion that these three adverse consequences were meant to be
given as possible results not mandatory results.

Uribe & Uribe APLC’s Interpretation of Relevant Case Law

The fact that the court docket minute order entry reads “will” in the section 1016.5 advisal paragraph does not defeat a claim that the non-citizen defendant did not have a meaningful understanding of the immigration consequences of the conviction. This is type of claim can be raised in a Penal Code section 1473.7 motion. In a Penal Code section 1473.7 motion a non-citizen defendant can attack a past conviction that is causing adverse immigration consequences. Essentially in order to have the conviction vacated the non-citizen defendant must prove in court that he or she did not have a meaningful understanding of the adverse immigration consequences of the conviction. In making a determination whether a non-citizen defendant understood the immigration consequences associated with the plea a Judge examines the record of conviction including how the non-citizen defendant was advised of immigration consequences.

Courts have ruled that even where a waiver of rights form says that the defendant “will” be deported, it does not substitute for the advice of counsel, and it is not categorical bar to relief. See for instance the case of People v. Lopez (2021) where it was ruled that “Although the advisal form contains the word “will” and not “may,” it . . . “is not designed, nor does it operate, as a substitute for such advice” of defense counsel regarding the applicable immigration consequences in a given case”. Likewise, according to controlling case law, a trial court’s “generic advisement” to a defendant that deportation “will result” is not a substitute for defense counsel’s advice. See People v. Lopez (2021) A proper advisement by the court does not foreclose the possibility of relief when counsel provides inaccurate or incomplete advice regarding immigration consequences. Thus, in evaluating whether a non- citizen defendant is entitled to relief under section 1473.7, “the defendant can be expected to rely on counsel’s independent evaluation of the charges” rather than the generic statements in the waiver and plea form and colloquy. In the Manzanilla decision, the Court rejected the claim that the defendant’s signature on Tahl waiver that stated “I must expect my plea . . . will result in my deportation” showed he subjectively understood he would be deported. Along similar lines of reasoning the in the decision of People v. Rodriguez (2021), 1003–1004 the non- citizen defendant did not meaningfully understand immigration consequences despite signing form that stated “this plea . . .will result in my removal/ deportation”. More over in People v. Camacho, even though defendant “was advised that his plea ‘will result’ . . . in adverse immigration consequences,” he presented sufficient evidence of his lack of understanding to warrant section 1473.7 relief. “Rather, as the Judge in People v. Espinoza discussed the inquiry under section 1473.7 requires consideration of the ‘totality of the circumstances,’ which necessarily involves case-by-case examination of the record, and no specific kind of evidence is a prerequisite to relief.” The Judge in deciding on a motion to vacate whether the defendant has shown error, the focus of the Court’s inquiry must be on the defendant’s own error in misunderstanding the immigration consequences of the plea. See People v. Alatorre (2021) where the Court indicated that “the ‘error’ is that the petitioner subjectively misunderstood the immigration consequences of the plea”. Moreover in People v. Mejia the judge there “the focused his inquiry in a section 1473.7 motion is on the ‘defendant’s own error in . . . not knowing that his plea would subject him to mandatory deportation”. The use of “may result” in the advisement reflects the legal reality, that it is not the court’s responsibility to know the immigration consequences for each crime and whether that consequence applies to a particular noncitizen defendant. In fact, the court is forbidden from even asking if a defendant is a citizen or not. “It is further the intent of the Legislature that at the time of the plea no defendant shall be required to disclose his or her legal status to the court.” See Penal Code section 1016.5, subdivision (d). Ultimately, of course, it is the defense attorney’s responsibility to advise the client of the consequences of a plea. See section 1016.2 and 1016.3 subdivision (a). The fact that the “will” advisement is built into the minute order docket entry means that every non-citizen defendant who is accepting a plea must agree that they understand that the plea “will” result in all these consequences whether it is true or not. This results in incorrect legal advice and hindering, if not preventing, communication between the attorney and the client about immigration consequences. Hearing that every single conviction will result “will” result in deportation, exclusion from admission, and denial of naturalization discourages the non-citizen defendant from seeking immigration advice specific to their circumstance contrary to the Legislature’s intent. The “will” advisement works against a non-citizen defendants meaningful understanding of the consequences of a plea when attorneys doing their due diligence negotiate a plea to an immigration safe charge or sentence, only then to have the court advise the non-citizen defendant that they “will” suffer the listed consequences. In other words, non-citizen defendants would be diverted from obtaining meaningful immigration advice because of intentionally incorrect legal advice of the court. Ultimately in order to completely understand potential legal causes to vacate a conviction a thorough investigation must be conducted in order to develop any potential causes of action. For further information regarding this legal concept or for further consultation to discuss your specific legal situation please do not hesitate to contact the attorneys at Uribe & Uribe APLC.

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