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Name: People v. Tapia
Case #: F075475
Court: CA Court of Appeal
District 5 DCA
Opinion Date: 08/31/2018

Trial court did not err by denying defendant’s Penal Code section 1473.7 motion because there was substantial evidence that he was advised of the immigration consequences of his plea. In 2012, Tapia pleaded no contest to conspiracy and cultivation of cannabis (Health & Saf. Code, § 11358), the latter of which is considered a deportable offense by federal immigration authorities. In 2017, he filed a motion pursuant to section 1473.7 to withdraw his plea and vacate his convictions on the ground that he was not informed of the actual adverse immigration consequences of his plea. The trial court denied the motion, and Tapia appealed. Held: Affirmed. The Sixth Amendment guarantee to the effective assistance of counsel requires an attorney to advise his or her client of the potential deportation consequences of a plea. Section 1473.7 allows a defendant to challenge his or her conviction based on a mistake of law regarding the immigration consequences of a guilty plea or ineffective assistance of counsel in properly advising the defendant of the consequences when the defendant learns of the error postcustody. (People v. Perez (2018) 19 Cal.App.5th 818, 828.) Here, Tapia signed a plea form advising him of potential adverse immigration consequences, had the assistance of a Spanish interpreter, was advised by the court that the plea would expose him to deportation proceedings, and acknowledged that he understood the consequences of the plea on the record. The People also submitted a declaration from Tapia’s trial attorney stating that Tapia was advised the plea would expose him to deportation proceedings and other negative immigration consequences. The only evidence Tapia was not advised of the specific immigration consequences of his plea was his own declaration, which the trial court implicitly found not credible. The court also rejected Tapia’s argument that his attorney was deficient because he failed to negotiate an “immigration safe” plea bargain.

The full opinion is available on the court’s website here: