People v. Josefina Ruiz

The decision in Ruiz considers the question as to whether an immigrant advised pursuant to Penal Code §1016.5 that a plea of guilty “may” or “will” may make her deportable when considering a guilty plea for a violation of Health and Safety Code §11351.5. Ms. Ruiz moved to vacate her 1991 conviction for possession for sale of cocaine base (Health and Saf. Code, §11351.5.) a plea that the Ruiz court reasoned will render the defendant subject to mandatory removal. In Ruiz, the petitioner claimed that her trial counsel did not advise her that a mandatory consequence of her plea would make her “permanently ineligible to ever become a legal resident of the United States.” Ms. Ruiz initialed an advisement in the written plea agreement stating, “I understand that if I am not a citizen of the United States, the conviction for the offense charged may have the consequence of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States. The decision in Ruiz finds that Ms. Ruiz was not provided adequate immigration advisement considering the nature of the conviction that he was pleading to wit the sale of cocaine base. The Ruiz court reasoned that “under section 1016.5, subdivision (a) defendants must be advised: “If you are not a citizen, you are hereby advised that conviction of the offense for which you have been charged may have the consequence of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States” but the California Supreme Court has held, however, that the words “may have” in a section 1016.5 immigration advisement are not adequate immigration advisement for defendants charged with serious controlled substance offenses, instead defendants must be advised that they will be deported, excluded, and denied naturalization as a mandatory consequence of the conviction. See People v. Patterson. “A defendant entering a guilty plea may be aware that some criminal convictions may have immigration consequences as a general matter, and yet be unaware that a conviction for specific charged offense will render the defendant subject to mandatory removal.” See People v. Patterson, see also People v. Espinoza (2018).