California Penal Code section 1016.5 requires that a trial court, before accepting a plea of guilty or nolo contendere from a non-U.S. citizen defendant, advise the defendant that his or her conviction of the offense may result in adverse immigration consequences. If a defendant enters a plea of guilty or nolo contendere without being given the required advisement by the trial court, and can show that his or her conviction may result in his or her being deported, found inadmissible to and therefore excludable from the United States, or denied naturalization, then on the motion of defendant, the trial court must vacate the conviction and allow the defendant to withdraw his or her plea and enter a not guilty plea. To obtain relief from the conviction, the defendant must establish prejudice to himself or herself, i.e., that if he or she had received the proper advisement from the trial court, it is reasonably probable that he or she would not have pleaded guilty.
The California Supreme Court's recent decision in People v. Martinez (S199495) illustrates the application of Penal Code section 1016.5 and clarifies the test to be used in determining prejudice. The defendant in the case, Rodrigo Martinez Martinez, was a non-citizen who was charged with violating California Health and Safety Code section 11360(a) for allegedly having sold a bindle of marijuana to another man for $8. Martinez pleaded guilty to the offense pursuant to the terms of a plea bargain, but certain omissions in the record created a presumption that Martinez was never advised by the trial court that his plea could have serious immigration consequences.
Martinez eventually completed probation, married a lawful permanent resident and had four minor United States citizen children. He obtained an expungement of the conviction in 2008, but that action did not erase the immigration consequences of his conviction, and United States Citizenship and Immigration Services (USCIS) later denied his application for permanent residency and placed him in removal proceedings because of his conviction.
Martinez sought to attack the judgment against him by applying to the trial court for an order vacating his conviction on the ground that no special warning as to immigration consequences preceded his guilty plea. The trial court denied the motion and the California Court of Appeal affirmed the trial court's order in a three-page unpublished opinion. The California Supreme Court agreed to review the case.
The issue before the California Supreme Court was whether, in order to establish prejudice, Martinez must have shown that he would have obtained a more favorable outcome had he chosen to plead differently. The Court held that because the test is what a defendant would have done if he or she had received the advisement required by Penal Code section 1016.5, then so long as a defendant meets his burden of establishing by credible evidence that he or she would have chosen not to plead guilty or nolo contendere, it is not also necessary for the defendant to show that he or she would have obtained a better outcome by entering a different plea.
The California Supreme Court further held that where a not guilty or nolo contendere plea is not preceded by the required warning, vacation of the judgment is proper if the defendant establishes that he or she would have rejected the plea bargain he or she made to accept or attempt to negotiate a different one or go to trial. Accordingly, the Court reversed the order of the trial court denying Martinez's motion, holding that Martinez was not required to show that he would have obtained a more favorable result by entering a different plea in the face of a proper advisement under Penal Code section 1016.5.
The take away from the Martinez case is that any non-citizen convicted of a crime under California law as a result of pleading nolo contendere or guilty should consult with a qualified immigration attorney to understand the immigration consequences of the conviction. The attorney can review the client's record of conviction to determine whether the requirements of Penal Code section 1016.5 were satisfied and to address any available options for obtaining relief from the conviction.
Timothy D. Widman is a San Jose Immigration Attorney and the owner of the Law Office of Timothy D. Widman.