Having established that the Legislature determined it is proper for the parties to renegotiate a criminal disposition, after the defendant becomes aware of the immigration consequences, in order to avoid them in an appropriate case, and having established that the client has a reasonable factual case showing prejudice under the appropriate standard, it remains to show that the proposed disposition is appropriate in light of the totality of the circumstances of this case.

 

            It is proposed the Court may vacate the existing conviction, as being legally invalid.  The client agrees to enter a guilty plea to an amended felony charge of accessory after the fact to sale of a controlled substance, in violation of Penal Code § 32, on condition s/he receive a sentence of imposition of sentence suspended, four years felony probation, on condition of service of 360 days in custody, with credit for full satisfaction of the custody condition.  (Accessory after the fact is not considered an “aggravated felony” by the immigration courts unless a sentence of one year or more is imposed.[13])

 

            This proposed disposition is an appropriate exercise of prosecutorial discretion for the following reasons:

 

(1)    The client caused no difficulties while in prison, and performed very well on parole.

 

(2)    He led a completely law-abiding life during the 57 years before he committed the present offense, and the evidence shows he was completely inexperienced in drug dealing at the time of his arrest.

 

(3)    He has remained arrest-free during the more than nine years since he committed this offense.

 

(4)    It is highly unlikely that this 64-year-old gentleman will cause any law enforcement problems in the future.

 

(5)    His health is not good.  He is nearly 65 years of age, and suffers from diabetes, disabling arthritis, and was diagnosed with colon cancer, for which he underwent successful surgery in 1997.  He may also suffer from prostate cancer.  His doctors are checking periodically for recurrence.  He is currently suffering considerable pain in both knees, which may require surgery, followed by an extended and painful recovery in a wheelchair.

 

(6)    His innocent family, including his six children, and their families, and 13 (soon to be 14) grandchildren, would suffer emotional hardship if the client were permanently banished from his home and family in the United States.

 

(7)    He has already served the full amount of custody determined by the prosecution to be appropriate punishment for his offense, and the proposed alteration in his record of conviction will not diminish in any way the actual penal sanction he has already paid as a result of this offense.

 

(8)    The client has a reasonable case for relief under Penal Code § 1016.5 and Zamudio, and it would consume considerable judicial resources and cause public expense to pursue this litigation through a contested hearing and subsequent appeals.  This expense is unnecessary in light of the settlement reached by the parties.

 

(9)    If the client were to prevail, the prosecution would either lose the conviction in its entirety, or be forced to attempt to reconstruct a prosecution case relating to a 1991 transaction, and undergo considerable transaction costs in relitigating this closed case.

 

(10)          Under the proposed disposition, the client will now begin a four-year period of supervised felony probation, which gives court and prosecution considerably more social control (if it be necessary) over his activities than presently exists.

 

(11)          Moreover, there will be hanging time of two additional years, as well as the client’s knowledge that should he violate probation, and receive as little as an additional five days in custody, the new conviction and sentence will trigger mandatory deportation.[14]

 

For these reasons, we believe the proposed settlement of this litigation represents an appropriate resolution in light of the purposes of Penal Code § x1016.5, reconciling fairness to the client and his innocent family with the legitimate prosecution and public interests in law enforcement.

[13] In re Batista-Hernandez, 21 I. & N. Dec. 955 (BIA 1997).

[14] In re Batista-Hernandez, 21 I. & N. Dec. 955 (accessory after the fact with one year sentence imposed is an aggravated felony triggering mandatory deportation).

ARTICLE PROSECUTORIAL DUTY TO NEGOTIATE IMMIGRATION CONSEQUENCES
By Norton Tooby In Padilla v. Kentucky, the Supreme Court held that it is frequently in the interests of both prosecution and defense to include immigration consequences of a plea in the plea bargaining process, implying that there is nothing wrong with this, and much to be gained from it. The Court stated: Finally, informed consideration of possible deportation can only benefit both the State and noncitizen defendants during the plea-bargaining process. By bringing deportation consequences into this process, the defense and prosecution may well be able to reach agreements that better satisfy the interests of both parties. As in this case, a criminal episode may provide the basis for multiple charges, of which only a subset mandate deportation following conviction. Counsel who possess the most rudimentary understanding of the deportation consequences of a particular criminal offense may be able to plea bargain creatively with the prosecutor in order to craft a conviction and sentence that reduce the likelihood of deportation, as by avoiding a conviction for an offense that automatically triggers the removal consequence. At the same time, the threat of deportation may provide the defendant with a powerful incentive to plead guilty to an offense that does not mandate that penalty in exchange for a dismissal of a charge that does. Padilla v. Kentucky, 559 U.S. ___, 130 S.Ct. at 1486. The Court convincingly rejected the notion that it is somehow improper to reach a disposition that consciously averts an immigration disaster for the defendant. Prosecutors sometimes argue that it would violate Equal Protection to give a more favorable disposition to an immigrant defendant than to a U.S. citizen. This argument cannot stand in the face of the Supreme Court's analysis. Many prosecutors agree that it is appropriate to bargain for an immigration-harmless disposition in appropriate cases. For example, the Los Angeles District Attorneys Office, one of the largest in the country, has published a Plea Bargaining Policy that includes authority to plea bargain for an immigration harmless result where the immigration consequences outweigh the criminal consequences in light of the seriousness of the case. http://da.co.la.ca.us/sd03-04.htm. A number of publications recognize the prosecutors duty to consider immigration consequences when raised by a defendant in the context of plea negotiations. E.g., Robert M.A. Johnson, Collateral Consequences, Message from the President of the National District Attorneys Association, May-June 2001 (Our job, our duty, is to seek justice. . . . [W]e must consider them [collateral consequences] if we are to see that justice is done. . . . . At times, the collateral consequences of a conviction are so severe that we are unable to deliver a proportionate penalty in the criminal justice system without disproportionate collateral consequences. . . . As a prosecutor, you must comprehend this full range of consequences that flow from a crucial conviction.); National District Attorneys Association (NDAA Standards) , National Prosecution Standards, Std 1-1.1, Prosecutors Primary Responsibility (3rd ed. 2009) (The primary responsibility of a prosecutor is to seek justice.); NDAA Standards, Std. 2-8.3 (The prosecutor should cooperate with defense counsel at all stages of the criminal process to ensure the attainment of justice and the most appropriate disposition of each case.); NDAA Standards, Std. 4-1.3 (Prosecutors should screen potential charges to eliminate from the criminal justice system those cases where prosecution is not justified or not in the public interest. Factors that may be considered in this decision include: . . . k. Undue hardship that would be caused to the accused by the prosecution; . . . p. Whether the accused has already suffered substantial loss in connection with the alleged crime); NDAA Standards, Std. 5-3.1, Propriety of Plea Negotiation and Plea Agreements (Factors to Consider. Prior to negotiating a plea agreement, the prosecution should consider the following factors: . . . g. Undue hardship caused to the defendant; . . . . l. The probable sentence if the defendant is convicted); ABA Standards of Criminal Justice, Prosecution Function, Standard 3-1.2, The Function of a Prosecutor (3d. ed. 1999) ((b) The prosecutor is an administrator of justice, an advocate, and an officer of the court; the prosecutor must exercise sound discretion in the performance of his or her functions. (c) The duty of the prosecutor is to seek justice, not merely to convict.); ABA Standard 3-1.2, Commentary, p. 5 ( Since the prosecutor bears a large share of the responsibility for determining which cases are taken into the courts, the character, quality, and efficiency of the whole system is shaped in great measure by the manner in which the prosecutor exercises his or her broad discretionary powers.); ABA Standards of Criminal Justice, Prosecution Function Standard 3-3.9 Discretion in the Charging Decision, Commentary, p. 74, (3d. ed. 1999) (Differences in the circumstances under which a crime took place, the motives behind or pressures upon the defendant, mitigating factors in the situation, the defendant's age, prior record, general background, and role in the offense, and a host of other particular factors require that the prosecutor view the whole range of possible charges as a set of tools from which to carefully select the proper instrument to bring the charges.). See generally http://www.ethicsforprosecutors.com/quotes.html. This site was established by a prosecutor's organization. As the Supreme Court stated long ago, as the Constitution has been construed in our cases, it is not forbidden to extend a proper degree of leniency in return for guilty pleas. Corbitt v. New Jersey, 439 U.S. 212, 223, 99 S.Ct. 492, 58 L.Ed.2d 466 (1978).

Other

ARTICLE - PROSECUTORIAL DUTY TO NEGOTIATE IMMIGRATION CONSEQUENCES
ARTICLE PROSECUTORIAL DUTY TO NEGOTIATE IMMIGRATION CONSEQUENCES By Norton Tooby In Padilla v. Kentucky, the Supreme Court held that it is frequently in the interests of both prosecution and defense to include immigration consequences of a plea in the plea bargaining process, implying that there is nothing wrong with this, and much to be gained from it. The Court stated: Finally, informed consideration of possible deportation can only benefit both the State and noncitizen defendants during the plea-bargaining process. By bringing deportation consequences into this process, the defense and prosecution may well be able to reach agreements that better satisfy the interests of both parties. As in this case, a criminal episode may provide the basis for multiple charges, of which only a subset mandate deportation following conviction. Counsel who possess the most rudimentary understanding of the deportation consequences of a particular criminal offense may be able to plea bargain creatively with the prosecutor in order to craft a conviction and sentence that reduce the likelihood of deportation, as by avoiding a conviction for an offense that automatically triggers the removal consequence. At the same time, the threat of deportation may provide the defendant with a powerful incentive to plead guilty to an offense that does not mandate that penalty in exchange for a dismissal of a charge that does. Padilla v. Kentucky, 559 U.S. ___, 130 S.Ct. at 1486. The Court convincingly rejected the notion that it is somehow improper to reach a disposition that consciously averts an immigration disaster for the defendant. Prosecutors sometimes argue that it would violate Equal Protection to give a more favorable disposition to an immigrant defendant than to a U.S. citizen. This argument cannot stand in the face of the Supreme Court's analysis. Many prosecutors agree that it is appropriate to bargain for an immigration-harmless disposition in appropriate cases. For example, the Los Angeles District Attorneys Office, one of the largest in the country, has published a Plea Bargaining Policy that includes authority to plea bargain for an immigration harmless result where the immigration consequences outweigh the criminal consequences in light of the seriousness of the case. http://da.co.la.ca.us/sd03-04.htm. A number of publications recognize the prosecutors duty to consider immigration consequences when raised by a defendant in the context of plea negotiations. E.g., Robert M.A. Johnson, Collateral Consequences, Message from the President of the National District Attorneys Association, May-June 2001 (Our job, our duty, is to seek justice. . . . [W]e must consider them [collateral consequences] if we are to see that justice is done. . . . . At times, the collateral consequences of a conviction are so severe that we are unable to deliver a proportionate penalty in the criminal justice system without disproportionate collateral consequences. . . . As a prosecutor, you must comprehend this full range of consequences that flow from a crucial conviction.); National District Attorneys Association (NDAA Standards) , National Prosecution Standards, Std 1-1.1, Prosecutors Primary Responsibility (3rd ed. 2009) (The primary responsibility of a prosecutor is to seek justice.); NDAA Standards, Std. 2-8.3 (The prosecutor should cooperate with defense counsel at all stages of the criminal process to ensure the attainment of justice and the most appropriate disposition of each case.); NDAA Standards, Std. 4-1.3 (Prosecutors should screen potential charges to eliminate from the criminal justice system those cases where prosecution is not justified or not in the public interest. Factors that may be considered in this decision include: . . . k. Undue hardship that would be caused to the accused by the prosecution; . . . p. Whether the accused has already suffered substantial loss in connection with the alleged crime); NDAA Standards, Std. 5-3.1, Propriety of Plea Negotiation and Plea Agreements (Factors to Consider. Prior to negotiating a plea agreement, the prosecution should consider the following factors: . . . g. Undue hardship caused to the defendant; . . . . l. The probable sentence if the defendant is convicted); ABA Standards of Criminal Justice, Prosecution Function, Standard 3-1.2, The Function of a Prosecutor (3d. ed. 1999) ((b) The prosecutor is an administrator of justice, an advocate, and an officer of the court; the prosecutor must exercise sound discretion in the performance of his or her functions. (c) The duty of the prosecutor is to seek justice, not merely to convict.); ABA Standard 3-1.2, Commentary, p. 5 ( Since the prosecutor bears a large share of the responsibility for determining which cases are taken into the courts, the character, quality, and efficiency of the whole system is shaped in great measure by the manner in which the prosecutor exercises his or her broad discretionary powers.); ABA Standards of Criminal Justice, Prosecution Function Standard 3-3.9 Discretion in the Charging Decision, Commentary, p. 74, (3d. ed. 1999) (Differences in the circumstances under which a crime took place, the motives behind or pressures upon the defendant, mitigating factors in the situation, the defendant's age, prior record, general background, and role in the offense, and a host of other particular factors require that the prosecutor view the whole range of possible charges as a set of tools from which to carefully select the proper instrument to bring the charges.). See generally http://www.ethicsforprosecutors.com/quotes.html. This site was established by a prosecutor's organization. As the Supreme Court stated long ago, as the Constitution has been construed in our cases, it is not forbidden to extend a proper degree of leniency in return for guilty pleas. Corbitt v. New Jersey, 439 U.S. 212, 223, 99 S.Ct. 492, 58 L.Ed.2d 466 (1978).