Tooby's California Post-Conviction Relief for Immigrants

 

The court must inform the defendant prior to plea of the direct penal consequences of the plea.  When challenging a conviction for lack of advice concerning the consequences of the plea, it is somewhat more difficult to sustain the defense burden of proof because a showing of prejudice is required. 

 

            To prevail, it is necessary to establish:

 

(a) the court failed to advise the defendant of the direct penal consequences of the plea,

 

(b) the client was in fact unaware of these consequences, and

 

(c) the client would have refused to enter the plea if s/he had been properly advised of these consequences.

 

            The California courts have held that the failure to inform a defendant of the direct consequences of the plea is a judicially-declared rule of criminal procedure, not rising to the level of constitutional magnitude.[360]  As a result, any error regarding the direct consequences is subject to a harmless error analysis in state court.  Relief will not be granted unless the petitioner demonstrates a reasonable probability that s/he would have entered a different plea if properly advised.[361]

 

            The defendant must be informed of the following direct consequences:

 

(a) The maximum possible penalty that may be imposed as a result of the plea;[362]

 

(b) absolute or presumptive probation ineligibility;[363]

 

(c) the maximum period of parole defendant might have to serve after completion of any prison term imposed;[364]

 

(d) any mandatory requirement of registration, e.g., as a sex or narcotics offender;[365]

 

(e) if the defendant is not a U.S. citizen, the fact that a conviction may result in deportation, exclusion, or denial of naturalization.  Penal Code § x1016.5.  This statute applies to all convictions occurring after Jan. 1, 1978.  The record must show advisement of this right, or the conviction must be vacated.

 

(f)  Mandatory restitution requirements, although a violation of this right may not always be held prejudicial;[366]

 

The court is not required to advise defendants regarding the collateral consequences that do not automatically flow from the conviction.  Thus, the court need not explain the availability of good time or work-time credits as a direct consequence of plea.[367]  In addition, the trial court need not inform the defendant that it counsel is waived, a viable defense might be overlooked, or that the defendant will lose the opportunity to obtain an independent opinion on whether it is wise to plead guilty.[368]

[360] Bunnell v. Superior Court (1975) 13 Cal.3d 592, 605, 119 Cal.Rptr. 302, 310; In re Yurko (1974) 10 Cal.3d 857.

[361] People v. McMillion (1992) 2 Cal.App.4th 1363.  This showing of prejudice requires evidence that defendant would not have entered the plea if s/he had been informed of the consequences that were omitted.  In re Ronald E. (1977) 19 Cal.3d 315, 137 Cal.Rptr. 781.  In the immigration context, this might include statements that the defendant would not have entered a guilty plea, or would instead have sought a non-deportable result, a sentence of less than one year, or a plea to an alternative offense that does not exhibit moral turpitude, and the like.  See K. Brady § 8.28.

[362] Marvel v. United States, 380 U.S. 262 (1965); United States v. Roberts, 5 F.3d 365 (9th Cir. 1993); Chapin v. United States, 341 F.2d 900 (10th Cir. 1965); cf. Lane v. Williams, 455 U.S. 624, 630 and n.9 (1982)(reserving the question whether and under what circumstances a failure to inform a defendant of a mandatory parole term will invalidate a guilty plea); Hill v. Lockhart, 106 S.Ct. 366, 369 (1985)(dictum that failure to inform a defendant that his or her eligibility for parole is restricted because of a prior conviction would not invalidate a guilty plea); In re Birch (1973) 10 Cal.3d 314.

[363] People v. Caban (1983) 148 Cal.App.3d 706.

[364] In re Moser (1993) 4 Cal.4th 342.

[365] The requirement that certain controlled substances offenders must register under Health and Safety Code § 11590 must be disclosed to the defendant, prior to entry of the plea.  People v. Cotton (1991) 230 Cal.App.3d 1072, 284 Cal.Rptr. 757; People v. Zaidi (2007) 147 Cal.App.4th 1470, 55 Cal.Rptr.3d 566 (denial of petition to withdraw negotiated plea of no contest to misdemeanor lewd conduct in a public place, with sentence and requirement to register as a sex offender, is reversed where defendant met his burden of establishing prejudice from the court's failure to advise that a consequence of his no contest plea would be lifetime registration as a sex offender); cf. People v. Willard (2007) 154 Cal.App.4th 1329, 65 Cal.Rptr.3d 488 (assuming without deciding that the court erred in failing, at plea, to advise the defendant that the sex offender registration requirement was a lifetime requirement, the defendant failed to establish prejudice, i.e., that he would not have entered the plea if he had been properly advised). 

[366]  People v. Collins (2003)  ­­111 Cal.App.4th 726 (no prejudice where court failed to advise defendant, prior to entry of plea, that order of direct restitution would be consequence; defendant was advised that possible $10,000 restitution fine could be assessed).

[367] People v. Barella (1999) 20 Cal.4th 248.

[368] Iowa v. Tovar, 541 U.S. 77 (2004).