Tooby's California Post-Conviction Relief for Immigrants

In People v. Barraza,[139] the court of appeal faced a situation in which prosecution and defense had agreed on appeal to substitute an immigration-safe conviction for a firearms conviction.  The court refused to permit a stipulated reversal of the firearms conviction, stating (in dictum) that an expungement pursuant to “Section 1203.4 is . . . the only post-conviction relief from the consequences of a valid criminal conviction available to a defendant under our [California] law.”  It held that a stipulated reversal was “authorized neither by statute nor by Neary [v. Regents of University of California (1992) 3 Cal.4th 273.]”  In the process, the court compared the situation to one in which it had held a stipulated reversal must be denied as against the public interest where the judgment that would be reversed subjected the losing party, a real estate broker, to professional disciplinary proceedings.[140]  It stated, “It would nonetheless appear equally unjust to permit an alien convicted of a criminal offense involving the use of a firearm to avoid one of the legislatively prescribed consequences of such a criminal act absent any reason to question the correctness of the judgment.”

            This latter statement appears to fly in the face of the Legislative concerns expressed in Penal Code § 1016.5(d), to protect immigrants from unforeseen immigration consequences of criminal convictions, and to give them a full opportunity to research those consequences before entry of plea so they can attempt to avoid them if possible.  It also appears to ignore the holding of People v. Soriano (1987) 194 Cal.App.3d 1470, 240 Cal.Rptr. 328, that defense counsel must investigate the federal immigration consequences and attempt to protect the client from them if possible.

            Barraza can, of course, be distinguished in every case in which there is a challenge to the legal validity of the conviction, since its language is expressly limited to cases in which there is no “reason to question the correctness of the judgment.”

[139] People v. Barraza (1994) 30 Cal.App.4th 114, 35 Cal.Rptr.2d 377.

[140] Norman I. Krug Real Estate Investments, Inc. v. Praszker (1994) 22 Cal.App.4th 1814.