Trial court abused its discretion by denying defendant’s Penal Code section 1016.5 motion to vacate his conviction where he established that he was prejudiced by the court’s failure to advise him of immigration consequences. Defendant, a lawful permanent resident of the U.S., moved to vacate his 1989 plea to drug offenses, because he was not advised of the immigration consequences of his plea (Pen. Code, § 1016.5). In support of his motion he declared he would have reconsidered his plea decision had he been informed of immigration consequences. The trial court denied the motion, finding defendant failed to show prejudice. He appealed. Held: Reversed. Penal Code section 1016.5 requires a trial court to advise a defendant of immigration consequences prior to taking a plea. It provides a procedure whereby a defendant who was not properly advised may seek to vacate his plea. To prevail on a section 1016.5 motion the defendant must show the failure to advise resulted in prejudice, which is shown if the defendant establishes it was reasonably probable he would not have pleaded guilty if properly advised. The defendant does not need to show that his decision would have led to a more favorable result. Although defendant’s declaration did not precisely state that he would have rejected the plea, it was adequate because he was required only to show it was reasonably probable he would not have entered his plea. Other relevant factors also supported a finding of prejudice. Defendant had lived in the country since he was 12 and had no criminal history. He received the “indicated sentence” of probation, which would have been imposed regardless of whether he pleaded guilty or went to trial. He also denied guilt and provided “a very convincing story of being mis-identified.” Under these circumstances, the trial court abused its discretion by denying the motion.

On remand the trial court should resolve whether defendant was reasonably diligent in bringing his Penal Code section 1016.5 motion. In moving to vacate a plea under section 1016.5, a defendant must also show he was reasonably diligent in bringing the motion. In opposing defendant’s motion, the prosecutor claimed that defendant did not show reasonable diligence. The trial court did not resolve this question because it denied the motion based on lack of prejudice. The case was remanded to the trial court with directions to reconsider defendant’s motion and resolve the diligence issue.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/H040563.PDF