In order to enter a plea without the assistance of counsel one must knowingly and intelligently waive their Constitutional Right to counsel. This right is embedded in the Sixth Amendment of the United States Constitution. When one does not knowingly waive this right, it brings forth the potential for a Sixth Amendment right to counsel constitutional violation. In a Penal Code section 1473.7 motion, it would be argued that the entry of the plea is invalid since the right to counsel was done unknowingly and is therefore invalid. It would be argued that as a result of the Constitutional violation the self-represented non-citizen defendant did not have a meaningful nor intelligent understanding of the immigration consequences of the guilty plea. It can be asserted that while a defendant has the right to waive his or her Sixth Amendment right to counsel, the Supreme Court has held that such a waiver must be knowing and intelligent. See for instance the decisions of Faretta v. California (1975) 422 U.S. 806, 835; People v. Burgener (2009) 46 Cal.4th 231, 240-41. Whether a waiver is knowing or intelligent is determined by whether the non-citizen defendant actually understood the significance and the consequences of the Sixth Amendment right to counsel. See also the decisions of People v. Stewart (2004) 33 Cal. 4th 425, 513; People v. Welch (1999) 20 Cal. 4th 701, 733-34. A guilty plea is not knowing and intelligently made if one fails to meaningfully understand the adverse immigration consequences of the plea. In People v. Superior Court (Giron) (1974) 11 Cal. 3d 793, 797 the Court permitted the withdrawal of the plea on the grounds that the defendant failed to understand the immigration consequences of the plea. 

A knowing and intelligent waiver of the Sixth Amendment right to counsel may only be made after the court informs a defendant, on the record his or her right to counsel, and the dangers and disadvantages of self-representation. See Johnson v. Zerbst (1938) 304 U.S. 458, 464; Burgener, 46 Cal.4th at p. 241. Required judicial warnings are issued to make sure that the defendant “knows what he is doing and his choice is made with his eyes open.” See for instance Faretta, 422 U.S. at p. 831; see also California Judge’s Bench guide 54 at § 54.7 (2017). The law states that a court “must indulge every reasonable inference against waiver of the right to counsel.” For more information see People v. Marshall (1997) 15 Cal. 4th 1, 20 (citing Brewer v. Williams (1977) 430 U.S. 387, 404); see also People v. Ruffin (2017) 12 Cal. App.5th 536, 545. “This strict standard applies equally to an alleged waiver of the right to counsel whether at trial or at a critical stage of pretrial proceedings.” See Williams, 430 U.S. at p. 404. A determination of whether the waiver is knowing and intelligent depends on the particular facts and circumstances of each case and may depend on the stage of the proceeding at issue. As the United States Supreme Court in the Patterson decision stated: “[W]e have defined the scope of the right to counsel by a pragmatic assessment of the usefulness of counsel to the accused at the particular proceeding and the dangers to the accused of proceeding without counsel. An accused’s waiver of his right to counsel is ‘knowing’ when he is made aware of these basic facts.” If you feel you may have this type of claim please contact Uribe & Uribe APLC for specific detailed advice. 

In a Penal Code section 1473.7 motion we would assert that a non-citizen defendant did not know about the hidden immigration penalty that lies beneath the general waiver the Judge provides pursuant to Penal Code section 1016.5. By law, a criminal defense attorney must advise a non-citizen defendant of the immigration consequences associated with a plea. The Supreme Court has noted that immigration law can be complex and “changes to our immigration law have dramatically raised the stakes” for noncitizens to plead guilty to a crime. See for instance Padilla v. Kentucky (2010) 559 U.S. 356, 364, where it was found that one’s immigration situation is now considered an “integral part – indeed sometimes the most important part – of the penalty . . . imposed[.]” It is for this reason that the attorneys at Uribe & Uribe APLC ensure that a non-citizen defendant understands how a criminal conviction will affect his or her immigration situation. If you have entered a plea as a self-represented defendant and are now facing adverse immigration consequences of the plea contact the attorneys at Uribe & Uribe APLC to discuss your options in vacating the plea.