Since parolees remain in the constructive custody of the state, they are not eligible for relief under Penal Code section 1473.7. Defendant came to the U.S. from the Philippines in 1992. He is a lawful permanent resident. In 2016 he pleaded guilty to assault with a firearm. Thereafter federal authorities commenced deportation proceedings based on the conviction. In July 2018 defendant moved to vacate his conviction, alleging that his attorney provided ineffective assistance of counsel (IAC) relative to the plea. He conceded that he had been advised by his attorney and the court regarding the immigration consequences of his plea. He appealed the denial of his motion. Held: Affirmed. Penal Code section 1473.7 authorizes a person who is no longer in criminal custody to move to vacate a conviction where it is legally invalid due to prejudicial error damaging the moving party’s ability to meaningfully understand or knowingly accept the actual or potential adverse immigration consequences of the plea. A parole term is a component of the defendant’s original sentence and parolees remain in the constructive custody of the Department of Corrections during their parole. Defendant was on parole, therefore in “criminal custody” when his motion was filed. He was therefore ineligible for relief under section 1473.7.
Even if defendant were eligible for relief under section 1473.7, the trial court properly denied his motion on the merits. Section 1473.7 initially required the moving party to demonstrate that his trial attorney had been ineffective in representing him and he was thereby prejudiced. However, in 2018, the section was amended to provide that a finding of legal invalidity may, but need not, include a finding of IAC. A defendant need only show that one or more established errors were prejudicial and damaged his ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of his plea. This means the defendant must establish he would not have entered the plea had he known it would render him deportable. Defendant did not offer sufficient evidence that he insisted on going to trial, or that his attorney failed to investigate his case, or failed to seek an immigration-neutral disposition. Further, defendant offered no evidence that he would have rejected the plea had he known it would render him deportable.
The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/archive/B293096.PDF