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Name: People v. Cruz-Lopez
Case #: A152348
Court: CA Court of Appeal
District 1 DCA
Division: 1
Opinion Date: 08/21/2018

A defendant who is on probation is still in constructive custody and may not move to vacate a guilty plea pursuant to Penal Code section 1473.7. In January 2014, defendant entered pleas in several cases, including a guilty plea to assault with a deadly weapon. During the plea proceedings, defendant was advised his pleas may result in deportation or exclusion from admission to the United States. Imposition of sentence was suspended and he was granted probation. Probation was revoked after he committed a new criminal offense. The trial court imposed a three-year sentence, execution suspended, and reinstated probation. In March 2017 defendant moved to vacate his admission to violating probation pursuant to Penal Code section 1473.7. He argued his attorney was ineffective for not advising him that a three-year sentence, execution suspended, rendered him subject to removal from the United States. The trial court denied his motion and defendant appealed. Held: Affirmed. Section 1473.7 provides that a person who is no longer in custody or under restraint may move to vacate a sentence or conviction if it is legally invalid due to prejudicial error damaging the defendant’s ability to understand and knowingly accept the immigration consequences of his plea. However, at the time of this case, defendant was in constructive custody because he was on probation. Section 1473.7 is therefore inapplicable. Further, section 1473.7 applies to failure to understand the immigration consequences of pleas, not of the admission of a probation violation.

Defendant was not deprived of the effective assistance of counsel. To advance an IAC claim, a defendant must demonstrate his attorney’s performance was deficient and there is a reasonable probability that, but for the professionals errors of counsel, the result of the proceeding would have been different. Here, defendant was advised of the potential adverse immigration consequences when he entered his guilty plea. Defendant presented no evidence that his attorney was unaware of the immigration consequences of the probation revocation proceeding, or that the hearing judge would have approved a less punitive option. Further, there is no authority requiring a trial court in a probation hearing to remind a person again of the immigration consequences of a revocation of probation or that the failure of a trial attorney to re-advise a client of the immigration consequences at this juncture falls below professional standards.