It is important, if at all possible, to arrange for the client to be present in court with counsel, at the time the post-conviction hearings are conducted.  This is in order to personalize the client and show the reliability that comes from the client being a free person in the community.  It is advisable for the defendant to attend the hearing for post-conviction relief dressed respectably, with a number (perhaps 10) of members of his or her family, friends, and community, to let everybody know this is important and the defendant has strong family and community support.  If at all possible, introduce the defendant to the prosecutor so they shake hands.  Everything changes if you can bring this off.  If you are successful, the conviction will be vacated and the old charges will be reinstated, and ideally a new, immigration-harmless plea bargain and sentence will be entered at the same time, with credit for time served.  The defendant almost certainly needs to be present for the entry of a new plea and sentence.

 

There is generally no legal requirement that a defendant be within the United States for the criminal court to adjudicate a motion to vacate a conviction.  However, the defendant must generally be present at a new felony plea (after the conviction has been vacated), though the court often has discretion to proceed without the defendant.[107]  Post-conviction hearings are often conducted without the presence of the defendant unless the defendant's presence is required for an evidentiary hearing.  Very often no evidentiary hearing is held because the facts are not in dispute the court need only hear legal argument.  Some states allow the court to decide a motion on declarations without an evidentiary hearing, even if the People request to cross-examine the moving party.[108]  That is no guarantee that the judge would not require the client to testify.

 

There are several circumstances in which it may be quite difficult to obtain the client’s presence in court for the hearing (1) if the client is in immigration custody; (2) if the client has already been deported; and (3) if the client has already been deported but has returned illegally.  It is possible in some cases possible, however -- even in these difficult circumstances -- and should be attempted.

[107] See, e.g., California Penal Code § 977.

[108] See, e.g., People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 999 P.2d 686.

CAL POST CON " NONSTATUTORY MOTION " INMATE TRANSFERS
Swarthout v. Superior Court of Los Angeles County, 208 Cal.App.4th 701 (Aug. 16, 2012). Trial court lacked statutory authority to issue an order for warden temporarily to transfer a prisoner to a city jail for investigative purposes, since the transfer was not sought for prisoner to make a criminal appearance or to act as a material witness in a criminal action, prisoner was not involved in an existing judicial proceeding in the trial court, and trial court's order was not a mere request.