In negotiating with the prosecution, it has rarely been fruitful to approach the government lawyer until a motion or petition has been filed with the court.  If counsel goes in cold, even with a large package of favorable information concerning the client, the course of least resistance for the prosecution, involving the least work, is simply to say, “No.”  Once a motion has been filed, the old case file in the prosecutor’s office is pulled from storage, the case is assigned to someone to handle, and a court date (ideally) is approaching.  At that point, the course involving the least work may well be to settle the case with defense counsel.

 

            It is urgent to have in mind exactly the outcome the client needs in order to avoid the adverse immigration consequences.  The chances of a successful negotiation are enhanced if counsel can offer greater offense and sentence counsel as substitutes for the conviction and sentence that must be vacated.  In other words, if you approach the prosecution asking that a felony sale of heroin conviction be vacated, and the charges dismissed, the prosecution may be reluctant.  On the other hand, if you can offer a substitute felony, such as a conviction of accessory after the fact to sale of drugs, with reinstatement of the original sentence and credit for full satisfaction of that sentence, the prosecution gets a new felony conviction out of the deal, as well as reinstatement of the original sentence, and may feel s/he is giving up a good deal less.

 

It often helps to write a settlement proposal in the form of a letter to the prosecutor, outlining exactly what you want, and giving a list of reasons why this is a reasonable disposition.

 

On occasion, court or prosecutor will take the position it is somehow improper to reopen a criminal case for the purpose of avoiding adverse immigration consequences, as if it were to defeat “the will of Congress” or frustrate federal law.  To counter this position, it is possible to argue that California law requires counsel to do so,[8] and to put forward all the factors that indicate a compassionate disposition is appropriate in the present case.[9]  What follows are sample arguments on these two points.  A sample script is also offered below.[10]

[8] See § 11.5.

[9] See § 11.6, infra.

[10] See § 11.7.

Other

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL "PROSECUTION ENCOURAGED TO CONSIDER IMMIGRATION CONSEQUENCES IN PLEA BARGAINING
Although Padilla does not require prosecutors to consider immigration consequences, it certainly encourages them to consider such consequences during plea negotiations. The decision states that informed consideration of possible deportation can only benefit both the State and noncitizen defendants during the plea- bargaining process. Padilla, 2010 U.S. LEXIS at *30. The Court recognized that immigration consequences often stem directly from criminal convictions, and are often even more important to a defendant than the criminal sentence he faces. Id. at *21. In light of the Padilla decision, defense counsel should encourage prosecutors to consider the immigration consequences to noncitizen clients during plea negotiations.

CAL POST CON " SANTA CLARA COUNTY " NEW HEAD PROSECUTER IS MORE OPEN TO POST-CONVICTION RELIEF
Immigration counsel, including Michael Mehr and Kathy Brady, have been in negotiations with the new District Attorney of Santa Clara County, concerning a new policy more favorable to (1) negotiating plea bargains to take disproportionate immigration consequences into account, and (2) negotiating the granting of post-conviction relief under similar circumstances. The final new policy has not yet been adopted, but it appears likely that the Santa Clara County District Attorneys Office will take immigration consequences into account unless there is a violent or serious felony, in which case there will be a presumption against taking immigration into account. In addition, they may choose not to oppose a grant of post-conviction relief if there are good, solid equities and reasons why the immigration disaster caused by the conviction is disproportionate to the crime. This is especially true if the plea is to a more serious or equally serious offense. As a result of the new regime, Michael Mehr has negotiated two new dispositions in which post-conviction relief was granted by writing a letter and making phone calls without filing a motion for post-conviction relief. The reason: If the motion for PCR goes to the law and motion department, they will just file an opposition. It is better to talk with a supervisor. Local counsel may also have a better chance of negotiating a better result. Specifically, he vacated a second petty offense conviction, even though there was no jurisdiction to file a habeas and no real 1016.5 case, with a new plea to a violation of Penal Code 415 with an additional 10 days work release. In another case, he vacated a possession for sale conviction vacated under Penal Code 1016.5 (even though there was no violation of that statute) and substituted a conviction of offering to sell with no additional sentence. Thanks to Michael Mehr.

CAL POST CON " PLEA NEGOTIATION IN LIGHT OF IMMIGRATION CONSEQUENCES " PROPRIETY
Alameda County District Attorneys Office, Guidelines Regarding the Consideration of Collateral Immigration Consequences During Plea Negotiations 1 (Oct. 8, 2012) (Because the Supreme Court recognized and indeed encourages the consideration of collateral consequences, this ruling puts to rest earlier arguments that this would be somehow illegal or improper (e.g., a violation of separation of powers or equal protection principles).). [I]t is appropriate to consider collateral consequences associated with a conviction when seeking to arrive at a just resolution of a criminal case. 1) When it would be just to do so, it is appropriate to consider the collateral consequences (including potential immigration consequences) of a criminal conviction during the plea negotiation process. This sort of analysis will necessarily be fact specific and require consideration of a variety of relevant factors. There is no specific formula that can be applied in every case. 2) It is generally considered appropriate to offer an accommodation if the collateral consequences are disproportionate to the crime and sentence being discussed. a) In other words, consideration of collateral consequences is not typically appropriate in serious or violent felony cases (especially those resulting in a lengthy sentence). b) On the other hand, it would be typically appropriate to consider collateral consequences when dealing with less serious crimes (with shorter sentences). 3) If the consideration of collateral consequences is deemed appropriate and some mitigating modification of an offered plea agreement is suggested, it is also appropriate to require some form of concession by the defendant (to make the resolution roughly equivalent to an offer made to a U.S. citizen). Examples would include more custody time or a longer period of probation. 4) Given the complexity and evolving nature of immigration law, it is difficult for any individual prosecutor to determine the truth of defense assertions regarding potential collateral consequences. It can be assumed, however, that if a defendant is willing to endure a more onerous sentence in return for a modification of the offered plea agreement, then the feared consequence is authentic. 5) These guidelines are not intended to limit the discretion of individual prosecutors. 6) The decision to factor in collateral consequences should be openly made and noted in the file. a) A corollary of this is that when collateral consequences are considered and any modification of an offer is rejected as inappropriate, that fact should be made part of the record. 7) These guidelines are not intended to create a new procedural right in favor of criminal defendants or be enforceable in a court of law. 8) If there are any questions regarding whether these guidelines are applicable to any specific situation or how they should be applied, the prosecutor handling the case should consult with his or her supervisor.