The challenge is now, after vacating the original conviction or sentence, through standard criminal defense techniques, to achieve a new outcome of the criminal case that the client can live with from an immigration standpoint as well as a criminal standpoint.  It is necessary to do whatever research or consultation is required in order to obtain an exact understanding of which of the possible criminal outcomes have acceptable immigration consequences. 

 

            This task is little different from that of mounting an original criminal defense in light of the exact immigration consequences threatened by the different potential dispositions of the case.  Considerable literature is available to assist counsel in this effort.[14]

 

            Even though a conviction may have been vacated, the defendant could be retried.  For example, the Ninth Circuit has held that the reversal of a conviction for a greater offense, coupled with a final conviction on a lesser included offense, does not preclude retrial of the greater offense when the offenses were charged in the same indictment and tried together in the same original trial.[15]  Similarly, after a vacatur, the criminal court is free to resentence on the remaining counts.[16]  This is because after a vacatur, all charges are reinstated.[17]

 

            The basic approach to defending a criminal case, so as to take immigration consequences fully into account, is quite simple:

 

(1) Obtain exact information on the client’s immigration situation;

 

(2) Consult an immigration expert to determine realistic criminal goals that can minimize immigration consequences;

 

(3) Determine with the client how important the immigration goals are, as opposed to traditional criminal defense goals;

 

(4) Formulate a strategy that gives appropriate weight to the need to minimize adverse immigration consequences, in light of the other consequences of the criminal case and the desires of the client; and

 

(5) Continue to consult with an immigration attorney since additional immigration questions frequently arise during the course of the case.

[14] E.g., N. Tooby & J. Rollin, Criminal Defense of Immigrants (2007); K. Brady; D. Kesselbrenner & L. Rosenberg, Immigration Law and Crimes (West Group 2009); K. Brady & N. Tooby, How to Protect Defendants from Immigration Consequences, 24 California Attorneys For Criminal Justice Forum, No. 3, 42 (August, 1997); D. Keener, M. Mehr, & N. Tooby, Representing the Noncitizen Criminal Defendant, Chap. 52 in California Continuing Education of the Bar, California Criminal Law: Procedure And Practice (2008).

[15] United States v. Jose, 425 F.3d 1237 (9th Cir. 2005). 

[16] United States v. Handa, 61 F.3d 1453 (9th Cir. 1997) (after vacating one count of conviction, the trial court has jurisdiction to resentence the defendant on all remaining counts of conviction).  Accord, United States v. Harrison, 113 F.3d 135 (8th Cir. 1997); United States v. Davis, 112 F.3d 118 (3d Cir. 1997); United States v. Smith, 103 F.3d 531 (7th Cir. 1996), cert. denied, 117 S. Ct. 1861 (1997) (resentencing does not violate double jeopardy); United States v. Gordils, 117 F.3d 99 (2d Cir. 1997); Pasquarille v. United States, 130 F.3d 1220 (6th Cir. 1997); United States v. Morris, 116 F.3d 501 (D.C. Cir. 1997); Gardiner v. United States, 114 F.3d 734 (8th Cir. 1997); United States v. Rodriguez, 112 F.3d 26 (1st Cir. 1997); United States v. Hillary, 106 F.3d 1170 (4th Cir. 1997).

[17] Compare United States v. Sandoval-Lopez, 122 F.3d 797 (9th Cir. 1997) (dismissed counts are not reinstated since defendant did not breach plea agreement), with United States v. Buner, 134 F.3d 1000 (10th Cir. 1998) (dismissed counts are reinstated); United States v. Barron, 127 F.3d 890 (9th Cir. 1997), amended to add dissenting opinion, 136 F.3d 675 (9th Cir. 1998). See also United States v. Hillary, 106 F.3d 1170, 1172 (4th Cir. 1997) ("on correcting the error complained of in a section 2255 petition, the defendant may be placed in exactly the same position in which he would have been had there been no error in the first instance."), quoting United States v. Silvers, 90 F.3d 95, 99 (4th Cir. 1996); United States v. Jose, 425 F.3d 1237 (9th Cir. 2005), cert. denied, 126 S.Ct. 1664 (Feb. 27, 2006).

Other

CAL CRIM DEF " NATURE OF CONVICTION " RECORD OF CONVICTION "FACTUAL BASIS STIPULATION " PRACTICE ADVISORY
In People v. Palmer, the California Supreme Court held that as part of a defendants change of plea, there is no invariable requirement that the defense stipulate to any specific document in order to establish a factual basis for the plea. It seems clear, under People v. Palmer (2013) 58 Cal.4th 110, 164 Cal.Rptr.3d 841, that the trial court is not required to collect such a stipulation We now make clear that, while inclusion of such reference in the stipulation is desirable as a means of eliminating any uncertainty regarding the existence of a factual basis, the trial court may satisfy its statutory duty by accepting a stipulation from counsel that a factual basis for the plea exists without also requiring counsel to recite facts or refer to a document in the record where, as here, the plea colloquy reveals that the defendant has discussed the elements of the crime and any defenses with his or her counsel and is satisfied with counsels advice. (Ibid. at ___.) To protect the defendant against adverse immigration consequences, criminal defense counsel should make every attempt not to stipulate to any particular document as the factual basis for the plea. Some prosecutors may insist upon a specific factual basis as part of a plea bargain. Some judges may simply hew to their personal practice of requiring a stipulation by reference to a specific document. Palmer does not actually hold that a defendant is entitled to refuse stipulation to a specific record document, but a defendant can never be compelled to enter a stipulation. It simply holds that a plea is permissible even without a stipulation to a particular document. From the clients standpoint, there will rarely ever be a situation where it is in a clients immigration interest to augment his or her change of plea with additional facts. Defense counsel if possible should adhere to the following guidelines: Defense counsel should attempt to enter a general stipulation that some factual basis exists, without reference to any specific document. This approach is approved in Palmer, if the Palmer requirements are met. There is no requirement of a factual basis of any kind for a plea to a misdemeanor offense. People v. Ballard (1978) 84 Cal.App.3d 885. If the court insists on a stipulation by reference to a specific document, defense counsel should stipulate that the court may find a factual basis in the specific document without agreeing that anything in that document is true. People v. French (2008) 43 Cal.4th 36, 50-51; People v. Thoma (2007) 150 Cal.App.4th 1096, 1104.) In French, the court stated: Furthermore, nothing in the record indicates that defendant, either personally or through his counsel, admitted the truth of the facts as recited by the prosecutor. Defense counsel stated that she had discussed the facts of the case at length with defendant and that she had allowed defendant to view a portion of the tapes of interviews of the victims, which had been provided to the defense in discovery. As noted earlier, when asked by the trial court whether she believed there was a sufficient factual basis for the no contest pleas, defense counsel stated, "I believe the People have witnesses lined up for this trial that will support what the D.A. read in terms of the factual basis, and that's what they'll testify to." Indeed, counsel was careful to state that she agreed that witnesses would testify to the facts as recited by the prosecutor; she did not stipulate that the prosecutor's statements were correct. Under the circumstances of this case, defense counsel's stipulation to the factual basis cannot reasonably be construed as an admission by the defendant sufficient to satisfy the Sixth Amendment requirements established in Cunningham, supra, ___ U.S. ___, 127 S.Ct. 856, 166 L.Ed.2d 856. (People v. French, supra, 43 Cal.4th at 50-51.) If it is necessary to refer to a specific document, be selective, choose a document that merely recites the basic essential elements of the charged offense and no more. This may be true, for example, of the charging document. Or counsel can consider stipulating to only certain portions of a record document. Finally, California law allows the defendant to make an oral or written admission to establish a factual basis for a plea. People v. Holmes (2002) 32 Cal.4th 432. Counsel can control the contents of the defendants admission, by stating it for him, and then asking, Isnt that correct? Counsels wording of the defendants admission can then add detailed facts that do not damage the defendants immigration position, such as the date and place of the offense, the time of day, or the nature of the car the defendant was driving, and complete the admission with a statement of the elements of the offense that is insufficient to cause the conviction to come within a ground of deportation or trigger any other immigration consequence. For example, counsel can say, Mr. Defendant, isnt it true that on March 4, 2014, at the corner of Hollywood and Vine, Los Angeles, California, within the County of Los Angeles, while driving a blue Camaro, you did possess a controlled substance prohibited under Health and Safety Code 11377(a)? This would be sufficient to constitute a factual basis for a possession offense, but does not identify the particular controlled substance involved, except that it is on the California schedule. This preserves the argument that the conviction does not trigger deportation, because the particular substance might be on the state but not the federal list. See Matter of Paulus, 11 I. & N. Dec. 274 (BIA 1965). Defense counsel can also personally stipulate that he or she has conducted an investigation into the facts of the case, and personally believes that a factual basis exists, and on that basis, enters a stipulation that a factual basis exists, without identifying a specific document or eliciting an admission from the defendant. The basis is technically then counsel's review and not what is contained in the documents themselves. Entering a plea under People v. West (1970) 3 Cal.3d 595, also aids the defense in refusing to admit the truth of any factual basis, since the defendant is explicitly declining to admit guilt of the charge to which a plea is entered.

CAL POST CON " JUVENILE COURT LACKS AUTHORITY TO AMEND CHARGES TO FACILITATE PLEA BARGAINING
In re Jeffrey H., 196 Cal.App.4th 1052, 126 Cal.Rptr.3d 597 (4th Dist. Jun. 2, 2011)(reversing juvenile court order dismissing one count and adding another to the wardship petition to facilitate a plea agreement, where the court exceeded its authority in amending the petition on its own accord).

PRACTICE ADVISORY " GUILTY PLEA " SAMPLE FACTUAL BASIS " PAULUS DEFENSE
Criminal defense counsel can seek to offer a factual basis in a controlled substance case that will not establish the nature of the substance sufficiently to trigger deportation as a result of involving a drug on the federal controlled substances list, by the following procedure: (1) Draft a safe factual basis statement, for example: At ___ p.m., on Month, Day, Year, at Address, in the county of Ventura, California, Mr. Defendant possessed [or possessed for sale] a controlled substance prohibited under Health and Safety Code sec. 11377 [or 11378]. (2) Counsel can state this factual basis on the record at the new plea, and ask the defendant, Isnt that correct? (3) If the prosecution objects, counsel can argue (or submit a short memorandum) that naming the drug is unnecessary to avoid plea. People v. Guy (1980) 107 Cal. App. 3d 593, 601. (4) Counsel can ask the court to accept the plea and rule the oral factual basis statement is sufficient under People v. Holmes (2002) 32 Cal. 4th 432. It is safest to refuse to stipulate to the accuracy of any factual basis stated by the DA, or to a factual basis contained in the police report or preliminary hearing transcript, or other document. Counsel can point out: Your Honor, as you know, the police version many times differs from the defendants version of the facts, and therefore we are unable to stipulate to the accuracy of the [police report][px transcript][prosecutors version], but we hereby offer to admit the truth of the following factual basis.