As clarified in the 2019 amendment to Penal Code section 1473.7, a defendant is not required to establish ineffective assistance of counsel for the trial court to find that a conviction is legally invalid due to prejudicial error damaging his ability to meaningfully understand adverse immigration consequences. In 2009, Camacho pleaded no contest to possessing marijuana for sale in exchange for a term of felony probation and community service. In 2017, Camacho moved to vacate his conviction pursuant to section 1473.7. The trial court denied the motion, and Camacho appealed. Held: Reversed and remanded. Penal Code section 1473.7 provides a procedure to vacate a conviction that is legally invalid due to a prejudicial error damaging the moving party’s ability to meaningfully understand, defend against, or knowingly accept the adverse immigration consequences of a plea. Since its enactment in 2017, California courts uniformly assumed that moving parties must demonstrate that counsel’s performance fell below an objective standard of reasonableness and that they were prejudiced by that ineffective assistance. Effective January 1, 2019, the Legislature amended the statute to clarify that “[a] finding of legal invalidity may, but need not, include a finding of ineffective assistance of counsel.” Under immigration law, deportation is mandatory for the offense of possession of marijuana for sale. Here, Camacho’s former attorney’s undisputed testimony was that he told defendant only that the charge could subject him to deportation; that he misunderstood the potential immigration consequences and the effect of expungement or reductions of felonies in immigration cases; and that he did not explore possible alternatives to pleading to an aggravated felony. Camacho also provided evidence of his own misunderstanding at the time of his plea due to his and counsel’s errors. Camacho satisfied the required showing that the errors damaged his ability to meaningfully understand and defend against the consequences of his plea.
A defendant does not need to establish that there is a reasonable probability of a different outcome in the original proceedings absent the error. Because the errors need not amount to a claim of ineffective assistance of counsel, courts are not limited to the test of prejudice as laid out in Strickland v. Washington (1984) 466 U.S. 668. Instead, the defendant may show prejudice by convincing the court that he would have chosen to lose the benefits of the plea bargain despite the possibility or probability that deportation would nonetheless follow. (People v. Martinez (2013) 57 Cal.4th 555, 565.) Here, Camacho showed by a preponderance of the evidence that he would never have entered the plea if he had known that it would render him deportable. He was brought into the country at the age of two, he never left the country, he attended school and is employed in this country, he married a U.S. citizen and his children are U.S. citizens. The court was thus required to grant the motion to vacate the conviction as invalid. [Editor’s Note: In 2016, Camacho’s plea and conviction were vacated pursuant to Penal Code section 1203.4, and in 2017, his charge was reduced to a misdemeanor after his Prop. 64 petition was granted. The Court of Appeal noted that expungement under section 1203.4 has no effect on the federal immigration consequences of the felony in this case, and it is probable that the reduction to a misdemeanor likely would have no effect as well.]
The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/archive/B288159.PDF
