Tooby's California Post-Conviction Relief for Immigrants

 

Under Penal Code § 1018, a court may allow a defendant to withdraw his or her guilty plea “for good cause shown” before judgment is entered or within six months,[86] after the defendant is placed on probation.  Trial courts are “expressly directed to give a liberal construction to the provisions of section 1018 in the interest of promoting justice.”[87]  In California, a judgment of conviction is not deemed to have been entered where imposition of sentence is suspended and probation granted, even though a conviction may exist for purposes of finality and appeal.[88]  In contrast, a defendant who was sentenced to probation more than six months before the date on which post‑conviction relief is requested may not use Penal Code § 1018, but must vacate the judgment pursuant to an extraordinary writ or non-statutory or statutory motion to vacate.[89]

 

            Thus, where a noncitizen has been placed on probation with imposition of sentence suspended, s/he may file a motion under § 1018 to withdraw the guilty plea at any time within six months after being placed on probation.[90]

 

            The California Supreme Court has held that a defendant's ignorance of the immigration consequences of his plea may properly be considered “good cause” to withdraw the plea, in the discretion of the trial court.[91]  This is in keeping with the general rule that “mistake, ignorance or inadvertence” will support withdrawal of a plea. 

 

            However, where the factual basis giving rise to grounds to withdraw a guilty plea is known prior to entry of judgment, the defendant must move to withdraw his plea in the trial court pursuant to Penal Code § 1018.  The failure to do so will prevent the defendant from being able to assert the invalidity of the plea on direct appeal.[92] 

 

          In a proper case, evidence that the plea was entered under duress, or any other factor that would inhibit a plea entered out of free will, will also support granting this motion.[93]  An unconstitutional probation condition will also support this motion.[94]  Since this relief is discretionary, it is especially important to argue the equities.  If the defendant was unrepresented by counsel at the time a plea to certain felony offenses was entered, however, the granting of the motion is mandatory under the terms of the statute.[95]

 

            Withdrawal of a guilty plea will serve to eliminate any conviction generally and as a ground of deportation, exclusion, or ineligibility to show good moral character.[96]  It is important to make sure the plea is withdrawn on grounds of legal invalidity, rather than merely as a compassionate action, in order successfully to avoid the immigration consequences.[97]

 

            This motion is rare, and discretionary.  Standard criminal motion practice may be used.  The burden of proof on a motion to withdraw a guilty plea under Penal Code § 1018 is borne by the defendant by clear and convincing evidence.[98] 

 

            A motion to withdraw a plea under Penal Code § 1018 must be heard and decided by the court before which the plea was entered.[99]  When a felony plea was entered in municipal court, the motion to withdraw must be made (or, if the motion was filed in superior court, remanded for decision) in the municipal court.[100]  While it is desirable for the motion to be heard by the same judge that took the plea, it is not mandatory.[101]

 

            When a plea was taken in municipal court, but the motion to vacate was filed in and denied by the superior court, the defendant could not object for the first time on appeal that the superior court erred when it failed to remand the matter to the municipal court for hearing and decision.[102]  The defendant waived the issue by failure to object in the superior court.  Moreover, this error does not require reversal if the defendant was not prejudiced by it, and suffers no prejudice when there are no legal grounds for withdrawal of the plea.  Since the defendant stated no legal grounds, either in superior court or on appeal, for withdrawal of the plea, he suffered no prejudice.[103]

 

            If the motion is denied, it is not necessary to secure a certificate of probable cause under Penal Code § 1237.5 for appeal from the trial court before an appeal will be allowed, since the appeal is taken under Penal Code § 1237(b).[104]  The notice of appeal must be filed within 60 days after the superior court order, or 30 days after an order in municipal court.

[86] People v. Miranda (2004) 123 Cal.App.4th 1124, 20 Cal.Rptr.3d 610.  It may be possible to argue successfully that such a motion can be filed after the six‑month limit on the same grounds used to file late notices of appeal.  See K. Brady, § 8.24.

[87] People v. Superior Court (Giron) (1974) 11 Cal.3d 793, 796-797, 114 Cal.Rptr. 596.

[88] People v. Orabuena (2004) 116 Cal.App.4th 84, 96; People v. Superior Court (Giron) (1974) 11 Cal.3d 793, 796, 114 Cal.Rptr. 596.

[89] See K. Brady, § § 8.29, 8.34.

[90] People v. Miranda (2004) 123 Cal.App.4th 1124, 20 Cal.Rptr.3d 610 (a trial court does not have jurisdiction to grant a defendant’s motion to withdraw his guilty plea, pursuant to Penal Code § 1018, when the motion is not made within seix months after the defendant has been granted probation).

[91] People v. Superior Court (Giron) (1974) 11 Cal.3d 793, 797-798, 114 Cal.Rptr. 596.

[92] People v. Turner (2002) 118 Cal.Rptr.2d 99, 96 Cal.App.4th 1409.

[93]  People v. Sandoval (2006) 140 Cal.App.4th 411 (June 7, 2006)(court of appeals reversed trial court's denial of motion to withdraw guilty plea for abuse of discretion where codefendant had threatened to harm defendant in prison if he refused to plead guilty, and the trial judge had improperly pressured defendant to plead guilty).  In People v. Huricks (1995) 32 Cal.App.4th 1201, 38 Cal.Rptr.2d 592, the Second District Court of Appeal held the trial court properly denied a motion under Penal Code § 1018 based on the claim that defendant’s family pressured him into the plea.  The court held that he was under no greater pressure than any criminal defendant.

[94]  Alhusainy v. Superior Court, 143 Cal.App.4th 385, 48 Cal.Rptr.3d 914 (2006) (trial court erred in denying order allowing defendant to withdraw his guilty plea on the basis that he was not told of its direct consequences, specifically that the condition he remove himself from the state was unconstitutional as constituting banishment).

[95] Penal Code § 1018.

[96] Puello v. BCIS, 511 F.3d 324 (2d Cir. 2007) (a criminal court's order withdrawing a plea eliminates the conviction for immigration purposes; an interpretation of the statutory definition [of conviction to the contrary] appears to lead to the bizarre result that a withdrawn guilty plea would still be a “conviction” for immigration purposes, because the “conviction” would be established on the date of the entry of the plea. We reject this reading because “[a] statute should be interpreted in a way that avoids absurd results.”), citing United States v. Dauray, 215 F.3d 257, 264 (2d Cir. 2000). The sole issue is whether the trial court had jurisdiction under state law to vacate the conviction.  See, e.g., discussions in Matter of O'Sullivan, 10 I. & N. Dec. 320 (BIA 1963); Matter of Sirhan, 13 I. & N. Dec. 592 (BIA 1970). It is important to make sure the plea is withdrawn on grounds of legal invalidity, rather than merely as a compassionate action to avoid the immigration consequences. Beltran-Leon v. INS, 134 F.3d 1379 (9th Cir. 1998); Matter of Pickering, 23 I. & N. Dec. 621 (BIA 2003), reversed on other grounds in Pickering v. Gonzales, 465 F.3d 263 (6th Cir. Oct. 4, 2006). 

[97] Beltran-Leon v. INS, 134 F.3d 1379 (9th Cir. 1998).

[98] People v. Nance (1991) 1 Cal.App.4th 1453, 2 Cal.Rptr.2d 670.

[99] Penal Code § 859a.

[100] People v. Valdez (1995) 33 Cal.App.4th 1633, 39 Cal.Rptr.2d 818; People v. Mesa (1985) 174 Cal.App.3d 58, 60.

[101] People v. Batt (1994) 24 Cal.App.4th 1044, 1048; People v. Valdez, supra.

[102] People v. Valdez (1995) 33 Cal.App.4th 1633, 39 Cal.Rptr.2d 818

[103] Ibid.

[104] People v. Kraus (1975) 47 Cal.App.3d 568, 121 Cal.Rptr.11; but see People v. Castelan (1995) 32 Cal.App.4th 1185.  If counsel seeks a certificate, just in case one is required, the application must be filed within the same time as the notice of appeal.