“[A] motion is timely if brought within a reasonable time after the conviction actually ‘may have’ such consequences.”[350]   In this case, the Supreme Court held timely a motion filed March 10, 1998 attacking convictions from 1992 and 1997, since it was not until 1997 that the defendant was on notice of the actual danger that the DHS would move to impose immigration consequences.  The Court pointed out that Penal Code § 1016.5 contains no time limit.

 

To the extent [the prosecution] relies on the affirmative defense of laches or its equivalent, the burden is [on the DA] to prove the facts comprising that defense.  (Evid. Code, §  500; see also Miller v. Eisenhower Medical Center (1980) 27 Cal.3d 614, 624.)  (Id. at p. 23.)

 

The court thus approved as timely a motion to vacate filed six years after the plea, since it was not until about a year before the motion was filed that the immigration danger had ripened to the point the defendant could show it was a demonstrable reality, and not merely a theoretical possibility.

 

In People v. Totari, the Sixth District held that a defendant making a motion to vacate a criminal conviction for violation of Penal Code § 1016.5 has the burden of establishing reasonable diligence in bringing the motion. [351]  It quoted the Supreme Court on this issue as follows: "The authority petitioner cites, People v. Castaneda, supra, 37 Cal.App.4th 1612, 44 Cal.Rptr.2d 666, stands at most for the proposition that a postjudgment motion to change a plea must be made with 'reasonable diligence' (id. at p. 1619, 44 Cal.Rptr.2d 666). Absent evidence that defendant long ago had cause to question the accuracy of the trial court's 1992 immigration advisements, to hold he should have objected to them earlier would be unfair.  This conclusion accords with the plain language of section 1016.5, which contains no time bar."  (Zamudio at pp. 203-204, 96 Cal.Rptr. 463, 999 P.2d 686)” [352]  Thus, the obligation to act with due diligence cannot arise prior to the date the defendant “had cause to question the accuracy of the trial court’s . . . immigration advisements.”[353]  The court in Totari therefore reviewed the trial court’s due diligence finding for abuse of discretion. 

 

            The court continued:

 

After defendant was granted probation in 1985, deportation proceedings were held based solely on defendant's violation of his student visa, not his 1985 convictions.  In fact, the immigration judge found that the convictions were not a basis for deportation because imposition of sentence had been suspended.  Defendant was ordered deported but given the alternative of a voluntary departure by November 1986.  He did not depart and a deportation warrant issued in November 1986.  There were apparently no further deportation proceedings prior to defendant's deportation in 1998, and, because his 1998 deportation was based on the 1986 deportation warrant, his deportation was a consequence of his violation of his student visa rather than his 1985 convictions.  Because these deportation proceedings were not a consequence of defendant's 1985 convictions and the immigration judge's findings could reasonably have led defendant to believe that his 1985 convictions did not have any immigration consequences, it would be unreasonable to infer that the 1985 immigration hold or the 1986 deportation proceedings should have apprised defendant of the potential immigration consequences of his 1985 convictions.

 

Of course, the superior court cannot be faulted for failing to take this evidence into account since it was not introduced by either party below. Nevertheless, as this evidence undermines the only rational basis for an inference that defendant unreasonably delayed and tends to support defendant's explanation for his delay, the appropriate remedy is a remand to the superior court for a new hearing on defendant's motion.  We should not be misunderstood to be precluding the parties from offering additional evidence on the diligence issue or to be directing the superior court to find reasonable diligence.  Our disposition is simply based on the record before us that contains no indication of an unreasonable delay and strongly supports defendant's explanation for the timing of his motions.[354]  The court therefore remanded the matter to the superior court for a new hearing on the question of diligence. 

 

            In People v. Castro-Vasquez, though the plea was entered in 1991, the motion to vacate was not filed until 2005, some 14 years later.  The court rejected the government’s contention that the motion to withdraw the plea failed sufficiently to demonstrate due diligence.  Instead, the court suggested that “it was not until [the defendant] was put into deportation proceedings . . . that he became aware of the defects in his 1991 proceedings.”[355]  The court noted that the Master Hearing at Immigration court occurred in 2005, and that soon thereafter he filed the motion tto vacate. 

 

            Theses cases suggest that a defendant acts with due diligence to file the motion, if s/he does so within a reasonable period of time after s/he becomes aware of the immigration consequences of the conviction.

[350] Id. at pp. 23-24.

[351]    People v. Totari (6th Dist. September 9, 2003, as modified, October 2, 2003) 111 Cal.App.4th 1202, 1207, 4 Cal.Rptr.3d 613.

[352]    People v. Totari, 111 Cal.App.4th 1202, 1208-1209, 4 Cal.Rptr.3d 613, 617-618 (6th Dist. September 9, 2003, as modified on denial of rehearing, October 2, 2003).

[353]  Ibid.

[354]    People v. Totari, 111 Cal.App.4th 1202, 1209, 4 Cal.Rptr.3d 613, 619 (6th Dist. September 9, 2003, as modified on denial of rehearing, October 2, 2003).

[355] People v. Castro-Vasquez (2007) 148 Cal.App.4th 1240, 1246.

CONTROLLED SUBSTANCES " UNLISTED SUBSTANCES AGGRAVATED FELONIES " DRUG TRAFFICKING OFFENSES
Coronado v. Holder, ___ F.3d ___, 2014 WL 983621 (9th Cir. Mar. 14, 2014) (Health & S C 11377(a) is not categorically a conviction relating to a federally-listed controlled substance, for purposes of inadmissibility, because it includes at least one substance that is not on the federal list). NOTE: The court found that Health & Safety Code punishes offenses involving "khat (Catha Edulis) and Chorionic gonadotropin (HGC), which are not listed in the federal schedules. See 21 C.F.R. 1308.13 (Schedule III of the CSA). CD4:19.60, 21.34;AF:5.42, A:18, B.4;SH:7.69, 8.5, 7.143 CAL POST CON " VEHICLES " PIECEMEAL LITIGATION People v. Medina, 2011 WL 766949 (6th Dist. Mar. 4, 2011) (unpublished) (rule against piecemeal litigation does not bar a defendant from pursuing a motion to vacate under Penal Code 1016.5, after first unsuccessfully filing a petition for a writ of error coram nobis, because unlike Kim, here defendant did not file two nonstatutory motions to vacate on the same grounds; he filed different motions on different grounds); distinguishing People v. Kim, (2009) 45 Cal.4th 1078, 90 Cal.Rptr.3d 355, 373-374 (for relief on habeas corpus, it has long been the rule that piecemeal presentation of known claims is prohibited.); following People v. Totari (2002) 28 Cal.4th 876, 886-887.

Lower Courts of Ninth Circuit

CAL POST CON " VEHICLES " PIECEMEAL LITIGATION
People v. Medina, 2011 WL 766949 (6th Dist. Mar. 4, 2011) (unpublished) (rule against piecemeal litigation does not bar a defendant from pursuing a motion to vacate under Penal Code 1016.5, after first unsuccessfully filing a petition for a writ of error coram nobis, because unlike Kim, here defendant did not file two nonstatutory motions to vacate on the same grounds; he filed different motions on different grounds); distinguishing People v. Kim, (2009) 45 Cal.4th 1078, 90 Cal.Rptr.3d 355, 373-374 (for relief on habeas corpus, it has long been the rule that piecemeal presentation of known claims is prohibited.); following People v. Totari (2002) 28 Cal.4th 876, 886-887.