Vacating Criminal Convictions and the Meaning of Prejudice

The California Supreme court, in re Resendiz, 25 Cal.4th 230 (2001) ruled that a criminal conviction could be vacated, i.e., eliminated, when a non-citizen is either not advised or is improperly advised as to the immigration consequences of a guilty plea when such non-citizen is facing deportation or exclusion from the United States as a result of such a conviction. Penal Code 1016.5 requires that a criminal defendant pleading guilty must be told the following at the time of the guilty plea: "If you are not a citizen, you are hereby advised that conviction of the offense for which you have been charged may have the consequence of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States."

However, the Court further ruled that in order to vacate a criminal conviction where there is a violation of Penal Code 1016.5 the non-citizen must establish that he has been prejudiced as a result of the improper admonition. The ordinary legal definition of "prejudice" is "injury or damage resulting from some judgment or action of another in disregard of one's rights, especially; detriment to one's legal rights or claims." Thus, at first blush, one would think that since failure to properly advise a non-citizen of the immigration consequences of a guilty plea clearly results in an "injury or damage", i.e., deportation from the United States, prejudice must always be a consequence of the improper admonition.

Unfortunately, Resendiz did not apply such a common sense analysis of prejudice in the context of a non-citizen being improperly advised of immigration consequences. In Resendiz, the court found that bad advice from his legal counsel caused the defendant to be unaware that his guilty plea would require deportation from the United States. However, instead of finding prejudice from the simple fact that Defendant was wrongly advised, the Court went on to say that the defendant had to demonstrate prejudice by establishing "a reasonable probability existed that had he known the true state of affairs regarding the deportation consequences of his guilty plea he would not have pled guilty and would have insisted, instead, on proceeding to trial."

In order to establish this "reasonable probability", it is not enough that the defendant merely claims that he would not have pled guilty had he known the immigration consequences of his guilty plea. Rather, the defendant's claim must be "corroborated independently by objective evidence." "In determining whether a defendant...would have accepted [or rejected a plea] offer, pertinent factors to be considered include: ...the disparity between the terms of the proposed plea bargain and the probable consequences of proceeding to trial, as viewed at the time of the offer; and whether the defendant indicated he or she was amenable to negotiating a plea bargain."

So it seems from the above language that if a non-citizen defendant receives little benefit from a guilty plea, he is definitely prejudiced if he later faces deportation. Of course, balancing the benefit of a plea disposition against the draconian consequence of deportation where such defendant has lived in the United States for a lengthy period of time or has strong connections to the United States and little or no connection to his country of birth would seem to require a finding of prejudice in almost all circumstances. For some unfathomable reason, the Supreme Court did not even consider this aspect of prejudice. Rather, the Court found that the defendant failed to establish prejudice because he did not demonstrate "how he might have been able to avoid conviction or what specific defenses might have been available to him at trial."

It was not sufficient for the Court that the defendant claimed he was innocent and that the police report showed he had a "triable case".

It is worth noting that Justice Mosk filed a dissenting opinion on the issue of prejudice and strongly demonstrated that because of the defendant's ties to the United States he was clearly prejudiced. As he stated: "Few with petitioner's family and cultural ties to the United States would turn down a chance, even a slight chance, of escaping the talons of the federal law. A rational person could conclude that the great likelihood of spending some five years in a California prison, balanced against the slight chance of avoiding permanent banishment to the developing world, is a worthwhile gamble." Unfortunately, the common sense approach taken by Justice Mosk did not move the majority of the justices rendering the Resendiz opinion.

People v. Castro-Vasquez, 148 Cal. App. 4th 1240 came along in 2007 to make matters even more confusing. In this case, the trial court found that Penal Code 1016.5 had been violated, but it further found that there was no prejudice to the defendant because the defendant failed to establish that had he gone to trial "a different and more favorable outcome would probably have resulted," citing Resendiz. The Court of Appeal disagreed with the trial judge, stating "The Court did not hold that prejudice must be established by showing the probable favorable outcome of any trial; it merely suggested that the probable outcome of a trial was one factor a court could consider in assessing the likelihood that a defendant would have rejected a plea offer. In determining whether or not a defendant who has pled guilty would have insisted on proceeding to trail [if properly advised] an appellate court...may consider the probable outcome of any trial, to the extend that may be discerned."

Such an interpretation of prejudice means that the trial court in its infinite wisdom should predict what a jury would do in determining guilt or innocence. Such a standard is completely contrary to the actual holding in Resendiz, where the Supreme Court insisted that an objective standard must be used in determining whether prejudice flowed from an improper immigration admonition. Obviously leaving determination of possible guilt or innocence to a trial judge is the worst form of subjectivity.

Case law in California has also indicated that the test for prejudice is whether the defendant can show that it was "reasonably probable...that he would not have pleaded guilty if properly advised." People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183. Such an interpretation of the standard to be applied in determining prejudice is strongly in accord with the analysis of Justice Mosk in Resendiz. If a defendant has even a shred of a possibility of avoiding deportation by going to trial rather than be deported from his family, friends, and adopted country of many years, certainly it is reasonably probable that such a defendant would avail himself of trial, regardless of what some trial judge might think of his chances of winning such a case.

Thus, the state of the law regarding the standard of proof necessary to establish prejudice remains quite muddled. Like so much else in the criminal system, the outcome of any motion to vacate a conviction in the immigration setting will depend to great extent on the sympathy generated by the plight of the non-citizen applying for relief, and the amount of compassion flowing through the heart of the trial judge hearing the motion.