POST-CONVICTION RELIEF

If you have been convicted of a crime, even a minor one, you may still be suffering the consequences of your prior conviction. The criminal conviction might have impacted your immigration status, employment, housing rights, gun rights, voting rights, and even personal relationships.

However, you have an option of seeking post-conviction relief. Our attorneys can help you decide whether there is any relief that you may pursue for your specific case, such as vacating a conviction, expunging your record, reducing your conviction from a felony to a misdemeanor, or modifying your sentence. You can contact our office to discuss your available options and get the relief you deserve.

WHAT IS A POST – CONVICTION RELIEF?

Post-conviction relief is the process of filing a written request with the court, either through a motion or an application, and asking the court to vacate, modify, or reduce your conviction or sentence to regain some rights, or to simply “clean” your record.
Depending on the specific situation of your case, different relief options might be available for you.

ELIGIBILITY FOR POST-CONVICTION RELIEF

• Your prior attorney did not provide you with effective assistance of counsel guaranteed to you by the Constitution
• You were not advised of your constitutional rights or consequences of your plea
• The offense you were convicted of qualifies for a reduction from a felony to a misdemeanor
• You were previously convicted of a felony for a Marijuana related offense

EXCLUSIVE REPRESENTATION FOR SPECIFIC POST-CONVICTION RELIEF CASES

• PC 1473.7 Motion to Vacate Conviction – based on 1) attorney misadvisement of immigration consequences or lack of meaningful understanding of immigration consequences; 2) newly discovered evidence
• PC 1016.5 Motion to Vacate conviction – based on Court misadvisement
• PC 18.5 Motion to modify sentence
• 4 Expungements
• 17(b) Reducing felony to a misdemeanor

If you contact our office, we will evaluate your case, as well as the likelihood of success in pursuing the specific course of relief available in your case.

HOW POST-CONVICTION RELIEF CAN HELP YOU AVOID DEPORTATION?

If you are not a citizen, and have been convicted of a crime, the Immigration and Customs Enforcement, or ICE, may initiate removal proceedings against you based on your conviction. Even if you are a permanent resident and have lived in the United States for decades, you may still be subject to removal proceedings, and may be ultimately deported from the United States.

Non U.S. Citizens Subject To Removal Proceedings

• Conviction of a crime of moral turpitude committed within 5 years after date admitted to the US
• 2 or more convictions of crimes of moral turpitude, not arising out of a single scheme
• Conviction of a crime for which a sentence of 1 year or more of incarceration may be imposed
• Conviction of an aggravated felony at any time after being admitted to the US
• Convictions of crimes of domestic violence/Violators of protection orders
• Drug abusers and drug trafficking

See INA §237 (8 USC §1227) for the full list of deportable crimes.

The Potential of New Penal Code Section 1473.7 in Granting Post-Conviction Relief

The newly amended Penal Code section 1473.7, which became effective on January 1, 2017, provides a remedy to vacate a conviction, even though the defendant is not in actual or constructive custody. Before this statute went into effect, people who were not in actual or constructive custody (for example, were not on in jail or on parole/probation), could not file a petition for post-conviction relief. As a result, many defendants were left without any options of relief once they were released or their probation/parole was over.

There are two grounds based on which a 1473.7 motion can be brought:

1. If the defendant was not defended against the immigration consequences and/or did not meaningfully understand the consequences of his or her plea. PC 1473.7(a)(2), or
2. There is newly discovered evidence of actual innocence that requires vacation of the conviction or sentence as a matter of law or in the interest of justice. See PC 1473.7(a)(2)

In other words, if you were not properly advised of the immigration consequences before you entered your plea, or you were advised but did not fully and meaningfully understand the actual consequences of your plea, you have a chance of withdrawing your plea and starting over.’

Timely Filing of PC 1473.7 Motion: Avoiding Delays for Post-Conviction Relief

A motion under Penal Code section 1473.7 must be filed with “reasonable diligence”, which means that the motion should be filed without undue delay.

If you have been convicted of a crime through a guilty or no contest plea, and that conviction is being used as a basis for deporting you, or might prevent you from becoming a U.S. citizen, call us today at (818) 210-3554 for a free consultation to discuss your available post-conviction relief options.

ANTN Law can help you by evaluating your case, examining the transcripts of the hearings before your plea and at the time of your plea, interviewing your prior counsel, and will advise you whether you have a chance of winning a PC1473.7 motion. ANTN Law offers a free consultation where you can discuss your case, explore potential options, and receive valuable legal advice without any financial commitment. 

FAQ

What authority does the Court have to vacate a conviction despite the defendant receiving a Section 1016.5 warning?

The Court has the authority to vacate a conviction notwithstanding the defendant receiving a Section 1016.5 warning. The California Supreme Court has clarified that defense counsel has a greater duty towards the defendant than the court when it comes to plea hearings. In other words, defense counsel is responsible for ensuring the defendant’s interests are protected. Therefore, even if a defendant has received a Section 1016.5 warning during the plea hearing, they may still be granted relief under Section 1473.7.

Section 1016.5(a) of the California Penal Code mandates that prior to accepting a guilty or nolo contendere plea for an offense punishable under state law, the court must provide the defendant with an advisement on the record regarding the potential immigration consequences. However, the California Supreme Court has emphasized that interpreting Section 1016.5 as an absolute barrier to immigration-based ineffective assistance claims would unjustly deny defendants who can prove incompetence and prejudice the opportunity to seek remedies for constitutional deprivations they have suffered.

In essence, if a defendant can demonstrate that their attorney, whom they trusted and who had the responsibility of looking out for their best interests, provided incorrect or ineffective advice, then the Court may find grounds to vacate the conviction. The Court recognizes that the advice given by defense counsel holds significant weight and could have had a different impact on the defendant’s decision-making process during plea negotiations.

Therefore, despite a defendant receiving a Section 1016.5 warning, the Court has the authority to consider claims of ineffective assistance of counsel and may grant relief under Section 1473.7 if it is determined that the defendant’s constitutional rights were violated due to the incompetence and prejudice of their attorney.

Is a criminal court’s general advisement of potential immigration consequences sufficient to inform the defendant of the actual immigration consequences?

The general advisement regarding potential immigration consequences provided by a criminal court is not enough to fully inform the defendant about the actual immigration consequences they may face. While the court may issue a general warning, it is insufficient to replace the crucial role of defense counsel, who has the responsibility to provide case-specific advice and defense strategies to address the specific immigration consequences that may arise from a conviction. In summary, merely receiving a general warning, such as a ‘1016.5 warning,’ does not absolve the court from its authority to consider a motion to vacate the conviction in light of the defendant’s need for comprehensive and individualized advice on the immigration consequences.

Can a defendant claim ineffective assistance of counsel even if they received a Section 1016.5 warning?

Yes, a defendant can claim ineffective assistance of counsel even if they received a Section 1016.5 warning. The California Supreme Court has acknowledged that defense counsel has greater duties towards the defendant than the court itself during a plea hearing. While Section 1016.5 of the California Penal Code requires the court to provide advisement on the record about immigration consequences prior to accepting a guilty or nolo contendere plea, it does not address the crucial role of defense counsel in providing accurate advice.

Defendants often rely on the professional advice of their attorneys, who are entrusted with the responsibility of looking out for their interests. If a defendant’s own attorney had provided proper advice, it could have potentially influenced their decision and avoided negative immigration consequences. Therefore, the failure of defense counsel to fulfill this duty cannot be mitigated or cured by the warning provided under Section 1016.5.

California courts have recognized that the required Section 1016.5 warning does not preclude immigrants from presenting claims of ineffective assistance of counsel. Even if defendants received the necessary warning, they may still seek a remedy for their specific constitutional deprivation resulting from their attorney’s incompetence and prejudice. The duty of defense counsel to provide accurate advice goes beyond the scope of the Section 1016.5 warning, and therefore, a defendant may claim ineffective assistance of counsel irrespective of receiving the warning.

Can a defendant rely on the court’s warning about immigration consequences as a substitute for defense counsel’s advice?

California courts have consistently held that a defendant cannot rely solely on the court’s general warning about potential immigration consequences as a substitute for the advice and guidance provided by defense counsel. Even if a defendant is provided with the required warning under section ?1016.5, it does not absolve defense counsel of their unique legal duty to provide tailored and case-specific advice regarding the immigration consequences that may arise from a conviction.

In several cases, including Resendiz, Soriano, and Bautista, the California courts have granted habeas petitions and evidentiary hearings based on claims of ineffective assistance of counsel, despite the fact that the court had provided the ?1016.5 warning. This demonstrates that the court’s warning alone does not guarantee effective counsel or discharge their duty to provide comprehensive guidance on immigration consequences.

Furthermore, in People v. Padilla, the California Supreme Court highlighted that even if the Kentucky courts, for example, had provided notice of possible immigration consequences on their standard plea form, it does not negate the need for defense counsel to offer case-specific advice. The court emphasized that a defendant has the right to withdraw a guilty plea if they were unaware of the immigration consequences at the time of the plea.

Therefore, it is evident that a criminal court’s general advisement about potential immigration consequences cannot serve as a substitute for defense counsel’s responsibilities. Defense counsel plays a vital role in providing detailed information, personalized advice, and effective representation to ensure that a defendant is fully aware of and protected from the immigration consequences that may arise from a conviction.

How can a defendant show prejudice in a motion under Section 1016.5?

To establish prejudice in a motion under Section 1016.5, a defendant can demonstrate that their decision to accept or reject a plea bargain was significantly influenced by their awareness, or lack thereof, of potential immigration consequences resulting from a conviction through the plea. The controlling cases cited by the Camacho Court provide guidance on how a defendant can prove prejudice.

One crucial element is that the test for prejudice focuses on what the defendant would have done if they had been fully informed, rather than solely considering the actual outcome of their decision. Therefore, a court ruling on a motion under Section 1016.5 cannot deny relief merely by finding it unlikely that the defendant would have obtained a more favorable outcome by rejecting the plea. Instead, the defendant can establish prejudice by convincing the court that, despite the possibility or probability of deportation following the rejection of the plea bargain, they would have willingly foregone the benefits of the plea and proceeded to trial.

In essence, showing prejudice requires demonstrating that the defendant would have made a different decision if they had been aware of the immigration consequences associated with the plea bargain. By convincingly illustrating that they would have chosen to sacrifice the advantages of the plea despite the risk of deportation, the defendant can assert that they suffered harm due to their lack of knowledge about the potential immigration outcomes.

It is important to note that this understanding of prejudice emphasizes the defendant’s subjective intent and decision-making process, rather than the objective determination of whether the plea would have resulted in a more favorable outcome. By focusing on the defendant’s personal choice in accepting or rejecting the plea bargain, the courts recognize the significance of immigration consequences in this context and provide a framework for defendants to demonstrate prejudice in their Section 1016.5 motion.