The chances of post-conviction relief are far greater when a relatively minor change in the conviction or sentence will eliminate the adverse immigration consequences.  The classic case is People v. Soriano,[9] in which the client received a sentence of 365 days in custody, triggering an immigration disaster.  The California Court of Appeal held that defense counsel was ineffective for failing to investigate the immigration consequences or inform the client of them.  In fact, however, if the client had received a sentence of one day less, this would have removed the immigration damage.  One day less would not have been much to ask; it might have been granted easily.  Similar situations will likely arise in the future, now that the definition of so many common aggravated felonies requires a sentence of one year or more to be imposed.[10]  There will be hundreds of situations in which defendants will receive probationary sentences on condition of serving 365 days in county jail that will become aggravated felonies solely because defense counsel failed to obtain a sentence of 364 days instead.

 

            Another common pattern is to vacate a conviction of possession for sale of drugs (after the time has been served) and negotiate a plea to felony accessory after the fact, in violation of Penal Code § 32, to sale of drugs.  This situation offers the prosecution a felony conviction for which the client can be sent to state prison for up to three years on a probation violation, and yet the DHS does not consider the accessory conviction to be a drug conviction or an aggravated felony conviction (so long as the defendant does not receive a sentence imposed of one year or more).[11]

 

            Finally, if the client was originally charged with three different offenses of similar magnitude, and defense counsel negotiated a plea to a deportable offense, it is frequently possible to vacate that plea, enter a plea to a different count that does not trigger deportability, and reinstate the original sentence with credit for time served.

[9] People v. Soriano (1987) 194 Cal.App.3d 1470.  See K. Brady, California Criminal Law and Immigration, 2000 (hereinafter referred to as “K. Brady”), § 8.26.

[10] 8 U.S.C. § § 1101(a)(43)(F) (crime of violence), (G) (theft, receiving stolen property, burglary), (P) (passport fraud), (R) (commercial bribery, counterfeiting, forgery, trafficking in vehicles with altered ID numbers), (S) (obstruction of justice, perjury, subornation of perjury, bribery of a witness).

[11] Matter of Batista-Hernandez, Int. Dec. 3321 (BIA 1997).

Other

CAL POST CON " SENTENCE " PLEA BARGAIN BARS REDUCTION OF SENTENCE CRIMINAL LAW & PROCEDURE, SENTENCING
People v. Nitschmann, No. B210291 Conviction for assault by means of force likely to produce great bodily injury and great bodily injury enhancement, and sentenced to a two-year low term plus three years on the great bodily injury enhancement is affirmed as defendant is not entitled to relief where, having received the benefit of a plea bargain, he sought to further reduce the sentence but keep the plea bargain intact.