Tooby's California Post-Conviction Relief for Immigrants

Failure to warn a noncitizen, prior to entry of a plea of guilty or no contest, that the conviction may cause (a) deportation, (b) exclusion, and (c) denial of naturalization requires automatic vacating of the conviction.  After People v. Wiedersperg,[330] the legislature added Penal Code § 1016.5 as a statutory requirement for every plea taken on and after January 1, 1978.  The statute expressly provides that if this warning was not given before the plea was entered, the conviction is automatically vacated.[331]

[330] People v. Wiedersperg (1975) 44 Cal.App.3d 550 [petition for coram nobis].

[331] See People v. Akhile (2008) 167 Cal.App.4th 558, 84 Cal.Rptr.3d 236 (delivery of statutory Penal Code § 1016.5 warning at arraignment insufficient to comply with statute).  Penal Code § 1016.5 [emphasis added]; People v. Gontiz (1998) 58 Cal.App.4th 1309, 68 Cal.Rptr.2d 786; People v. Guzman (1981) 116 Cal.App.3d 186, 172 Cal.Rptr. 34 [violation of Penal Code § 1016.5 requires plea to be set aside without any showing of prejudice]; see People v. Shaw (1998) 64 Cal.App.4th 492, 74 Cal.Rptr.2d 915 [statute requires defendant must show s/he is actually in danger of the listed immigration consequences to prevail].  Even if a showing of prejudice were required, it can often be shown by the client's declaration that s/he would never have entered a plea that would have destroyed the client's family and resulted in permanent banishment from home, family, and friends.  The same forms of prejudice can be shown here as for habeas corpus.