Tooby's California Post-Conviction Relief for Immigrants

After the court file has been purged, the prosecution will be hard‑pressed to show that the conviction was obtained in a constitutionally valid manner.  Criminal convictions based on a plea of guilty must be supported by a record of the plea that contains direct evidence that the accused, if represented by counsel, was advised of, and waived, the right to jury trial, confrontation, and against self‑incrimination.[232]  An accused unrepresented by counsel must also be advised of the right to counsel.[233]

            The court record must demonstrate compliance with these requirements both for felonies and misdemeanors.[234]  When the record exists, the defendant must obtain and present it when s/he files a challenge to the conviction.[235]

            State law requires courts to preserve reporter's notes for at least 10 years (forever for capital cases).[236]  If the courts violate this law, the defendant should not suffer.  It may be possible to persuade a court to vacate a conviction, especially under Penal Code § 1016.5, for violation of these new provisions so as to avoid prejudice in the form of criminal and immigration consequences as a result of a conviction the court's violation has deprived the defendant of the means of challenging.

            If the defendant files a challenge to the validity of the conviction, and the court has failed to preserve any evidence of the necessary “on the record” advice and waivers, the defendant must go forward with evidence that s/he did not waive the rights and/or was not advised of the consequences of the plea.[237]  Even after People v. Howard, which changed the reversible per se rule to a totality of the circumstances test, the plea -- in order to be constitutionally valid -- must still be shown to be knowing and intelligent.[238]

[232] Boykin v. Alabama, 395 U.S. 238  (1969); but see People v. Howard (1992) 1 Cal.4th 1132; K. Brady, § 8.35.

[233] In re Tahl (1969) 1 Cal.3d 122, 128, 81 Cal.Rptr. 577, overruled on other grounds in People v. Howard, supra.

[234] People v. Sumstine (1984) 36 Cal.3d 909, 918, 206 Cal.Rptr. 707, 712 (felonies); Mills v. Municipal Court (1973) 10 Cal.3d 288, 110 Cal.Rptr. 329 (misdemeanors).

[235] People v. Vallejo (1991) 1 Cal.App.4th 760, 763-764 (defendant must produce transcripts or evidence that transcript is unavailable despite due diligence); People v. Zavala (1983) 147 Cal.App.3d 429, 195 Cal.Rptr. 527.

[236] Gov. Code § § 68152, 69955; see 1994 Stats., chs. 390, 870.

[237] People v. Coffee (1967) 67 Cal.2d 204, 215-218; People v. Sumstine (1984) 36 Cal.3d 909.

[238] See People v. Howard (1992) 1 Cal.4th 1132