Tooby's California Post-Conviction Relief for Immigrants

Penal Code § 1016.5 requires the judge, at time of plea, to advise the defendant concerning three specific possible adverse immigration consequences of the plea.  This section specifically requires the court to maintain a record that it has complied with the mandatory advisements prior to plea:

            Absent a record that the court provided the advisement required by this section, the defendant shall be presumed not to have received the required advisement.[239]

The section further provides that if, after January 1, 1978, the court fails to advise the defendant as required, the court “shall vacate the judgment and permit the defendant to withdraw the plea of guilty or nolo contendere, and enter a plea of not guilty.”[240]  In other words, if the court purges the required records, the prosecution may be unable to defend the legality of the conviction.  Having destroyed all record of any compliance with Penal Code § 1016.5, it is difficult to see how the court can avoid vacating the conviction under this section.

[239] Penal Code § 1016.5(b).

[240] Penal Code § 1016.5.