Many folks in the Torrance area are immigrants and are seeking citizenship in this country. Unfortunately, some are convicted of criminal offenses such as drug possession and may jeopardize their chances of staying in the US legally. Recently, the Courts ruled that some may get a second chance if the proper procedures are not followed. In 1992, appellant, a Mexican citizen, was convicted by guilty plea of the sale of $8 of marijuana to an undercover officer, and granted probation. He successfully completed probation and, apparently, was involved in no further criminal activity. Many years later, his conviction came to the attention of federal immigration authorities and removal proceedings were initiated. Thereafter, in 2011, appellant filed a motion in the trial court to vacate judgment and withdraw his plea on the grounds that he had not been advised of immigration consequences, as required by section 1016.5. The court denied the motion, finding that appellant failed to establish that he would have received a more favorable outcome had he rejected the plea bargain. The Court of Appeal affirmed. The Supreme Court reversed. To obtain relief under section 1016.5, subdivision (b), a defendant must establish that “it is reasonably probable” he would not have pled guilty if properly advised. The criminal court here held that the test for prejudice considers what the defendant would have done, not whether the defendant’s decision would have led to a more favorable result. Nevertheless, the probability of a more favorable result is not necessarily irrelevant and can be one of the factors considered in assessing whether defendant would have opted to reject the plea bargain if he had been properly advised. Relief is available if the defendant in a criminal case establishes that, if properly advised, he or she would have rejected the plea bargain offer in the hope or expectation that he or she might negotiate a different bargain or would have gone to trial if that were to fail. In the instant case, because the trial court did not consider whether appellant would have rejected the plea bargain, the matter was remanded to allow the court to conduct further proceedings where appellant can offer evidence to convince the court he would not have accepted the plea bargain if properly advised.
Matthew Ruff is a Torrance Criminal Attorney who has helped numerous people charged with various crimes and can help you if you are arrested in the Torrance area.